In February 2011 the Commission released its first evaluation of the readmission agreements which have been concluded by the European Union or on which negotiations are underway. In this context, a number of questions still need to be answered.
1. Have all the EU Member States already transposed the provisions of the Return Directive (2008/115/EC) into national law? Which have and which have not done so?
2. What steps does the Commission plan to take to convince the remaining Member States to transpose the Return Directive?
3. What solution or alternative does the Commission propose in response to the problem that has been raised of a shortage of funding for negotiating readmission agreements?
4. What reasons have readmission-agreement partner countries given for refusing to readmit third-country nationals to their territory?
5. What are the reasons for Member States’ not requesting the readmission of third-country nationals even though a readmission agreement provides for their return?
6. What are the reasons for Member States’ not returning nationals of a partner country to that partner country?
7. Does the Commission support an extension of detention periods?
8. Readmission agreements are binding on both sides, yet the evaluation does not assess readmission to the EU. How many EU citizens have been returned to the EU under a readmission agreement?
Franziska Keller (Verts/ALE) , Tatjana Ždanoka (Verts/ALE) , Hélène Flautre (Verts/ALE) , Judith Sargentini (Verts/ALE) , Raül Romeva i Rueda (Verts/ALE) and Jean Lambert (Verts/ALE)
Answer given by Ms Malmström on behalf of the Commission (24 August 2011)
1. As of 4 July 2011, 11 countries had fully transposed the Return Directive 2008/115/EC: Bulgaria, Czech Republic, Estonia, Greece, Spain, Hungary, Malta, Portugal, Slovakia, Finland, and Italy. Five Member States have notified only partial transposition of the directive (Belgium, Latvia, Lithuania, Netherlands and Sweden) and eight Member States have not notified at all (Denmark, Germany, Cyprus, Luxembourg, Austria, Poland, Romania and Slovenia).
2. The Commission will use all necessary measures to ensure full transposition. For those Member States not having notified transposition or not having notified full transposition, infringement procedures have been opened in January 2011. The next step in the procedure, the reasoned opinion letters provided for in Article 258 of the TFEU, is under preparation. Pursuant to Article 260(3), the infringements can result in financial sanctions that the Court of Justice may impose pursuant to Article 260(3) of the Treaty
3. The Commission makes a number of recommendations in the recent evaluation of EU readmission agreements(1). In particular, it recommends that the EU should develop the four main incentives at its disposal (various visa related policy tools, financial assistance, elements of the Global Approach to Migration ‘toolbox’ and legal migration) into a coherent package, which should be offered to the partner country at the outset of the negotiations. Stand-alone readmission negotiating directives should no longer be proposed. Where possible, readmission negotiations should be opened in parallel with framework agreement negotiations. Future readmission negotiating directives should include the incentives that the EU will offer, in particular in case the negotiating directives include a third-country national clause, and at the same time indicate possible counter measures by the EU in cases of persistent and unjustified denial of cooperation by the partner country.
4. There is very limited practice with regard to the application of this provision in EU readmission agreements. This is in particular due to the fact that Member States hardly apply these provisions for most of the third countries with which the EU has concluded a readmission agreement (excepting Ukraine). This has prompted the Commission to insist that Member States make use of these provisions (which are very difficult to negotiate) and, on the other hand, to consider omitting this clause from future negotiation mandates for third countries which experience little or no transit migration.
Bearing in mind these limitations, the most common reasons for refusal by third countries of the (very limited number of) readmission applications pertaining to third country nationals concern the expiry of the period during which readmission may be requested upon discovery of the unauthorised stay of a person by Member State authorities, and insufficient documentation or transit evidence accompanying the readmission applications of Member States as required by the agreements.
5&6.The EU readmission agreements are directly implemented by the Member States and it is for their authorities to decide whether third country nationals should be returned to their country of origin or a country of transit.
The information gathered by the Commission during the preparation of its evaluation and during the general monitoring of the EU readmission agreements shows that Member States as a principle prefer to return persons to their countries of origin. For own nationals of the partner country, it is for the Member States’ authorities to decide whether or not they will submit a readmission request.
7. As laid down in Art 19 of Directive 2008/115/EC, the first report of the Commission on the application of the directive is due by 24 December 2013. The Commission is not planning to propose any changes to the directive before having had a chance to properly analyse the practical experiences with the current rules.
8. Readmission requests addressed to EU Member States from third countries regarding their own nationals under EU readmission agreements were explicitly included by the Commission in its preparatory work undertaken before the publication of the abovementioned evaluation. The statistics and data provided by Member States were however insufficient in quantity and quality to allow for the drawing of conclusions in the final publication.