Discours - Mr. Durante Rapacciuolo

CTP SEMINAR ON HARMONISED RULES AND CONTROLS FOR INTERNATIONAL BUS AND COACH TRANSPORT

CTP Seminar organised in the framework of the IRU Spring Cocktail, Brussels, 21 February 2006.

Mr. Durante Rapacciuolo
Principal Administrator, European Commission, DG JLS

THE CARRIERS’ LIABILITY ON ILLEGAL IMMIGRATION

The obligations of the carriers according to the pertinent EU provisions dealing with the control of persons at the external borders.

The overall objectives of the EU policy on borders and visas are fluidity of the travellers flows and security at the external borders and within the EU territory. Rapid crossings for bona fide travellers must be ensured together with the effective and uniform contrast of the illegal immigration. The EU legislation and initiatives must be placed in this political context.

The EU legal provisions
Article 26 of the Convention implements the Schengen Agreement concerning carriers’ liability, while Council Directive 2001/51/EC of 28 June 2001 supplements the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985.

The purpose of Article 26 of the Schengen Convention

It is part of the accompanying measures established by the chapter 6 of the Schengen Convention.

The two provisions of this chapter deal both with penalties: article 26 concerns the carriers and article 27 obliges Member States to impose penalties on smugglers and traffickers of human beings.

Article 26 aims to create a uniform legal obligation for the carriers, which bring aliens into the territories of Schengen member states.

Article 26 obliges the Member States to transpose into national law two different and complementary provisions, which design the EU content of the carriers’ responsibility when transporting aliens into the territory of a Schengen MS.

The first obligation occurs while the travel is running or is just achieved. Article 26, point 1, a) deals with the running travel stage responsibility, when the carriers, who bring the aliens at the EU external borders or better at the external borders of the Schengen Member States, are obliged to return the refused aliens to the transit or the origin third country.

Such an obligation of return the non qualified alien does apply to the air, sea and land transport companies at the air, sea and land borders.

An important derogation does concern the land borders. Here the companies working for the pure traffic border are excluded from that obligation.

Finally, the carrier has the choice to bring back the refused aliens to:

The third country which issued the travel document;
The third country, where the aliens are certain to be admitted.

The second obligation occurs before the travel starts stage. At that moment the carriers must verify that the carried travellers are in possession of the valid travel documents. Here the obligation for the carriers is being absolutely sure that the carried aliens have the necessary papers/travel documents, which are required by the host Member State for entry into the Schengen territory at the air or sea border BEFORE the travel starts or at least at the external border of the concerned Member State.

Article 26 Article 26 paragraph 2 provides for penalties for the liable carriers.

This provision gives the legal framework for fixing the principle of imposing national penalties for faulty carriers, leaving to the derived, detailed legislation to detail the specific terms such as the amounts of those penalties.

The Council Directive 2001/51/EC

It is based on articles 61 and 63 of the EC Treaty as it deals with flanking measures and return of illegal migrants but in accordance with the pertinent provisions of articles 62.

According to Article 26, the amounts for the penalties are only provided for the case of carriers not having controlled the travellers for their possession of the necessary travel documents and for this reason are refused at the external borders.

The scope of the Directive is supplementing Article 26 of the Schengen Convention in detailing the obligations of the MS as regards the two main issues:

Return of the aliens refused at the external border
Verification of the necessary travel documents.

RETURN

Firstly, the obligation of returning the alien applies also to carriers when the alien is refused at an entry for transit:
At the transit on the way for a final destination;
At the transit on the way back after the destination country has refused entry and sent the alien back to the transit country.

Secondly
The surrogate function of the responsible carrier is designed by the Directive.

Whenever the carrier is unable to execute the return, it must find IMMEDIATELY other means of transport and pay for them. Whenever that is not possible immediately, the carrier assumes its responsibility for the costs of the stay and delayed return of the refused alien.

The thresholds of the penalties
According to Article 4, the penalties must be DISSUASIVE, EFFECTIVE and PROPORTIONATE.
So, top and bottom minimum thresholds are imposed alternatively.

€5.000 or equivalent national currency at the date of 10 August 2001, are the downward limit not to be trespassed as the maximum amount. In other words no MS can fix a maximum amount of such penalties inferior to that amount.
The minimum amount cannot be less than €3.000. Those amounts are intended for each transported persons.

Finally, the MS may opt for imposing a lump sum to the carrier, irrespective of the number of persons carried and not in possession of valid travel documents, for each infringement, whose maximum amount is NOT LESS than €500.000

Naturally, since the Community legislative act is a Directive, the MS can decide how they want to transpose it and they are equally free to impose other, harsher money penalties trespassing the indicated minimum of the maximum and legal or judicial executions such as immobilisation, seizure, or confiscation of the means of transport or suspension or withdrawal of the operating licence.

The directive entered in force 10.08.2001 and the deadline for transposition was 11.02.2003.
All the MS have communicated the national measure of transposition of the directive. The assessment of the national measures transposing the directive should be achieved in due course.

Durante Rapacciuolo
JLS Unit B1 Borders and Visas

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