6.8.2004 EN Official Journal of the European Union L 261/15 COUNCIL DIRECTIVE 2004/80/EC of 29 April 2004 relating to compensation to crime victims THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion of the European Parliament (2), Having regard to the opinion of the European Economic and Social Committee (3), Whereas: (1) One of the objectives of the European Community is to abolish, as between Member States, obstacles to the free movement of persons and services. (2) The Court of Justice held in the Cowan (4) Case that, when Community law guarantees to a natural person the freedom to go to another Member State, the protection of that person from harm in the Member State in question, on the same basis as that of nationals and persons residing there, is a corollary of that freedom of movement. Measures to facilitate compensation to victims of crimes should form part of the realisation of this objective. (3) At its meeting in Tampere on 15 and 16 October 1999, the European Council called for the drawing-up of minimum standards on the protection of the victims of crime, in particular on crime victims' access to justice and their rights to compensation for damages, including legal costs. (4) The Brussels European Council, meeting on 25 and 26 March 2004, in the Declaration on Combating Terrorism, called for the adoption of this Directive before 1 May 2004. (5) On 15 March 2001 the Council adopted Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings. (5) This Decision, based on Title VI of the Treaty on the European Union, allows crime victims to claim compensation from the offender in the course of criminal proceedings. (6) Crime victims in the European Union should be entitled to fair and appropriate compensation for the injuries they have suffered, regardless of where in the European Community the crime was committed (7) This Directive sets up a system of cooperation to facilitate access to compensation to victims of crimes in cross-border situations, which should operate on the basis of Member States' schemes on compensation to victims of violent intentional crime, committed in their respective territories. Therefore, a compensation mechanism should be in place in all Member States. (8) Most Member States have already established such compensation schemes, some of them in fulfilment of their obligations under the European Convention of 24 November 1983 on the compensation of victims of violent crimes. (9) Since the measures contained in this Directive are necessary in order to attain objectives of the Community and the Treaty provides for no powers other than those in Article 308 thereof for the adoption of this Directive, that Article should be applied. (10) Crime victims will often not be able to obtain compensation from the offender, since the offender may lack the necessary means to satisfy a judgment on damages or because the offender cannot be identified or prosecuted. (11) A system of cooperation between the authorities of the Member States should be introduced to facilitate access to compensation in cases where the crime was committed in a Member State other than that of the victim's residence. (12) This system should ensure that crime victims could always turn to an authority in their Member State of residence and should ease any practical and linguistic difficulties that occur in a cross-border situation. (13) The system should include the provisions necessary for allowing the crime victim to find the information needed to make the application and for allowing for efficient cooperation between the authorities involved. (14) This Directive respects the fundamental rights and observes the principles reaffirmed in particular by the Charter of Fundamental Rights of the European Union as general principles of Community law. (15) Since the objective of facilitating access to compensation to victims of crimes of cross-border situations cannot be sufficiently achieved by the Member States because of the cross-border elements and can therefore, by reason of the scale or effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (16) The measures necessary for the implementation of the Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (6), HAS ADOPTED THIS DIRECTIVE: CHAPTER I ACCESS TO COMPENSATION IN CROSS-BORDER SITUATIONS Article 1 Right to submit an application in the Member State of residence Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State. Article 2 Responsibility for paying compensation Compensation shall be paid by the competent authority of the Member State on whose territory the crime was committed. Article 3 Responsible authorities and administrative procedures 1. Member States shall establish or designate one or several authorities or any other bodies, hereinafter referred to as ‘assisting authority or authorities’, to be responsible for applying Article 1. 2. Member States shall establish or designate one or several authorities or any other bodies to be responsible for deciding upon applications for compensation, hereinafter referred to as ‘deciding authority or authorities’. 3. Member States shall endeavour to keep to a minimum the administrative formalities required of an applicant for compensation. Article 4 Information to potential applicants Member States shall ensure that potential applicants for compensation have access to essential information on the possibilities to apply for compensation, by any means Member States deem appropriate. Article 5 Assistance to the applicant 1. The assisting authority shall provide the applicant with the information referred to in Article 4 and the required application forms, on the basis of the manual drawn up in accordance with Article 13(2). 2. The assisting authority shall, upon the request of the applicant, provide him or her with general guidance and information on how the application should be completed and what supporting documentation may be required. 3. The assisting authority shall not make any assessment of the application. Article 6 Transmission of applications 1. The assisting authority shall transmit the application and any supporting documentation as quickly as possible to the deciding authority. 2. The assisting authority shall transmit the application using the standard form referred to in Article 14. 3. The language of the application and any supporting documentation shall be determined in accordance with Article 11(1). Article 7 Receipt of applications Upon receipt of an application transmitted in accordance with Article 6, the deciding authority shall send the following information as soon as possible to the assisting authority and to the applicant: (a) the contact person or the department responsible for handling the matter; (b) an acknowledgement of receipt of the application; (c) if possible, an indication of the approximate time by which a decision on the application will be made. Article 8 Requests for supplementary information The assisting authority shall if necessary provide general guidance to the applicant in meeting any request for supplementary information from the deciding authority. It shall upon the request of the applicant subsequently transmit it as soon as possible directly to the deciding authority, enclosing, where appropriate, a list of any supporting documentation transmitted. Article 9 Hearing of the applicant 1. If the deciding authority decides, in accordance with the law of its Member State, to hear the applicant or any other person such as a witness or an expert, it may contact the assisting authority for the purpose of arranging for: (a) the person(s) to be heard directly by the deciding authority, in accordance with the law of its Member State, through the use in particular of telephone- or video-conferencing; or (b) the person(s) to be heard by the assisting authority, in accordance with the law of its Member State, which will subsequently transmit a report of the hearing to the deciding authority. 2. The direct hearing in accordance with paragraph 1(a) may only take place in cooperation with the assisting authority and on a voluntary basis without the possibility of coercive measures being imposed by the deciding authority. Article 10 Communication of the decision The deciding authority shall send the decision on the application for compensation, by using the standard form referred to in Article 14, to the applicant and to the assisting authority, as soon as possible, in accordance with national law, after the decision has been taken. Article 11 Other provisions 1. Information transmitted between the authorities pursuant to Articles 6 to 10 shall be expressed in: (a) the official languages or one of the languages of the Member State of the authority to which the information is sent, which corresponds to one of the languages of the Community institutions; or (b) another language of the Community institutions that that Member State has indicated it can accept; with the exception of: (i) the full text of decisions taken by the deciding authority, where the use of languages shall be governed by the law of its Member State; (ii) reports drawn up following a hearing in accordance with Article 9(1)(b), where the use of languages shall be determined by the assisting authority, subject to the requirement that it corresponds to one of the languages of the Community institutions. 2. Services rendered by the assisting authority in accordance with Articles 1 to 10 shall not give rise to a claim for any reimbursement of charges or costs from the applicant or from the deciding authority. 3. Application forms and any other documentation transmitted in accordance with Articles 6 to 10 shall be exempted from authentication or any equivalent formality. CHAPTER II NATIONAL SCHEMES ON COMPENSATION Article 12 1. The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States' schemes on compensation to victims of violent intentional crime committed in their respective territories. 2. All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims. CHAPTER III IMPLEMENTING PROVISIONS Article 13 Information to be sent to the Commission and the manual 1. Member States shall, no later than 1 July 2005, send to the Commission details of: (a) the list of authorities established or designated in accordance with Articles 3(1) and 3(2), including, where appropriate, information on the special and territorial jurisdiction of these authorities; (b) the language(s) referred to in Article 11(1)(a) which the authorities can accept for the purpose of applying Articles 6 to 10 and the official language or languages other than its own which is or are acceptable to it for the transmission of applications in accordance with Article 11(1)(b). (c) the information established in accordance with Article 4; (d) the application forms for compensation; Member States shall inform the Commission of any subsequent changes to this information. 2. The Commission shall, in cooperation with the Member States establish and publish on the internet a manual containing the information provided by the Member States pursuant to paragraph 1. The Commission shall be responsible for arranging the necessary translations of the manual. Article 14 Standard form for transmission of applications and decisions Standard forms shall be established, at the latest by 31 October 2005, for the transmission of applications and decisions in accordance with the procedure referred to in Article 15(2). Article 15 Committee 1. The Commission shall be assisted by a Committee. 2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply. 3. The Committee shall adopt its Rules of Procedure. Article 16 Central contact points Member States shall appoint a central contact point for the purposes of: (a) assisting with the implementation of Article 13(2); (b) furthering close cooperation and exchange of information between the assisting and deciding authorities in the Member States; and (c) giving assistance and seeking solutions to any difficulties that may occur in the application of Articles 1 to 10. The contact points shall meet regularly. Article 17 More favourable provisions This Directive shall not prevent Member States, in so far as such provisions are compatible with this Directive, from: (a) introducing or maintaining more favourable provisions for the benefit of victims of crime or any other persons affected by crime; (b) introducing or retaining provisions for the purpose of compensating victims of crime committed outside their territory, or any other person affected by such a crime, subject to any conditions that Member States may specify for that purpose. Article 18 Implementation 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2006 at the latest, with the exception of Article 12(2), in which case the date of compliance shall be 1 July 2005. They shall forthwith inform the Commission thereof. 2. Member States may provide that the measures necessary to comply with this Directive shall apply only to applicants whose injuries result from crimes committed after 30 June 2005. 3. When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States. 4. Member States shall communicate to the Commission the text of the main provisions of domestic law, which they adopt in the field governed by this Directive. Article 19 Review No later than by 1 January 2009, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive. Article 20 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 21 Addressees This Directive is addressed to the Member States. Done at Luxembourg, 29 April 2004. For the Council The President M. McDOWELL (1) OJ C 45 E, 25.2.2003, p. 69. (2) Opinion delivered on 23 October 2003 (not yet published in the Official Journal). (3) OJ C 95, 23.4.2003, p. 40. (4) Case 186/87, European Court reports 1989, p. 195. (5) OJ L 82, 22.3.2001, p. 1. (6) OJ L 184, 17.7.1999, p. 23.

Summary: Compensation for victims of crime in other EU countries Compensation for victims of crime in other EU countries SUMMARY OF: Directive 2004/80/EC — relating to compensation to crime victims WHAT IS THE AIM OF THE DIRECTIVE? It sets up a system of cooperation to help victims of crime get compensation in situations regardless of where in the European Union (EU) the crime was committed. The system operates on the basis of EU countries’ national compensation schemes for victims of violent intentional crime committed on their own territories. KEY POINTS The directive has two main elements. It requires all EU countries to have a compensation scheme for victims of violent intentional crime committed on their territories. The organisation and operation of such schemes is left to the discretion of each EU country. It sets up an EU-wide cooperation system based on those national schemes. Guaranteeing adequate compensation Ensuring adequate compensation for victims can be difficult either because: the offender does not have the necessary financial resources; or it has not been possible to identify or prosecute the offender (the possibility of obtaining compensation from the offender is dealt with in Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime). The directive requires that victims: be compensated irrespective of their country of residence or the EU country in which the crime was committed; receive fair and appropriate compensation — the exact amount is left to the discretion of the EU country in which the crime was committed. Cooperation All EU countries were required to set up national schemes offering fair and appropriate compensation by 1 July 2005. The directive sets up a system of cooperation between national authorities to facilitate access to compensation for victims throughout the EU: Victims of crimes committed in an EU country other than the one in which they usually live may ask an authority in the country in which they live (assisting authority) for information on how to apply for compensation. That national authority then transmits the application directly to the national authority of the EU country in which the crime was committed (deciding authority), which is responsible for assessing the application and paying out the compensation. All communication must be carried out in the language of the deciding country. The European Commission has drawn up standard forms for the transmission of applications and decisions relating to compensation to victims. The directive creates a system of central contact points in each EU country to facilitate cooperation in cross-border situations which meet regularly. Additional information is available on the website of the European e-Justice Portal. FROM WHEN DOES THE DIRECTIVE APPLY? It entered into force on 26 August 2004. EU countries had to incorporate it in national law by 1 January 2006. BACKGROUND For more information, see: ‘Compensation’ on the European Commission's website. MAIN DOCUMENT Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ L 261, 6.8.2004, pp. 15-18) RELATED DOCUMENTS Commission Decision 2006/337/EC of 19 April 2006 establishing standard forms for the transmission of applications and decisions pursuant to Council Directive 2004/80/EC relating to compensation to crime victims (OJ L 125, 12.5.2006, pp. 25-30) Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 20 01/220/JHA (OJ L 315, 14.11.2012, pp. 57-73) last update 08.12.2015


6.8.2004 EN Official Journal of the European Union L 261/19 COUNCIL DIRECTIVE 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular point 3 of Article 63 thereof, Having regard to the proposal from the Commission, (1) Having regard to the opinion of the European Parliament, (2) Having regard to the opinion of the European Economic and Social Committee, (3) Having consulted the Committee of the Regions, Whereas: (1) The framing of a common immigration policy, including the definition of the conditions of entry and residence for foreigners and measures to combat illegal immigration, is a constituent element of the European Union's objective of creating an area of freedom, security and justice. (2) At its special meeting in Tampere on 15 and 16 October 1999, the European Council expressed its determination to tackle illegal immigration at source, for example by targeting those who engage in trafficking of human beings and the economic exploitation of migrants. It called on the Member States to concentrate their efforts on detecting and dismantling criminal networks while protecting the rights of victims. (3) An indication of the growing concern about this phenomenon at international level was the adoption by the United Nations General Assembly of a Convention against Transnational Organised Crime, supplemented by a Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and a Protocol Against the Smuggling of Migrants by Land, Sea and Air. These were signed by the Community and the 15 Member States in December 2000. (4) This Directive is without prejudice to the protection granted to refugees, to beneficiaries of subsidiary protection and persons seeking international protection under international refugee law and without prejudice to other human rights instruments. (5) This Directive is without prejudice to other provisions on the protection of victims, witnesses or persons who are particularly vulnerable. Nor does it detract from the prerogatives of the Member States as regards the right of residence granted on humanitarian or other grounds. (6) This Directive respects fundamental rights and complies with the principles recognised for example by the Charter of Fundamental Rights of the European Union. (7) Member States should give effect to the provision of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation. (8) At European level, Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (4) and Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings (5) were adopted to strengthen the prevention and the fight against the above offences. (9) This Directive introduces a residence permit intended for victims of trafficking in human beings or, if a Member State decides to extend the scope of this Directive, to third-country nationals who have been the subject of an action to facilitate illegal immigration to whom the residence permit offers a sufficient incentive to cooperate with the competent authorities while including certain conditions to safeguard against abuse. (10) To this end, it is necessary to lay down the criteria for issuing a residence permit, the conditions of stay and the grounds for non-renewal and withdrawal. The right to stay under this Directive is subject to conditions and is of provisional nature. (11) The third country nationals concerned should be informed of the possibility of obtaining this residence permit and be given a period in which to reflect on their position. This should help put them in a position to reach a well-informed decision as to whether or not to cooperate with the competent authorities, which may be the police, prosecution and judicial authorities (in view of the risks this may entail), so that they cooperate freely and hence more effectively. (12) Given their vulnerability, the third-country nationals concerned should be granted the assistance provided by this Directive. This assistance should allow them to recover and escape the influence of the perpetrators of the offences. The medical treatment to be provided to the third-country nationals covered by this Directive also includes, where appropriate, psychotherapeutical care. (13) A decision on the issue of a residence permit for at least six months or its renewal has to be taken by the competent authorities, who should consider if the relevant conditions are fulfilled. (14) This Directive should apply without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating the offences concerned. (15) Member States should consider authorising the stay on other grounds, according to their national legislation, for third-country nationals who may fall within the scope of this Directive, but who do not, or no longer, fulfil the conditions set by it, for the members of his/her family or for persons treated as members of his/her family. (16) To enable the third-country nationals concerned to gain their independence and not return to the criminal network, the holders of the residence permit should be authorised, under the conditions set by this Directive, to have access to the labour market and pursue vocational training and education. In authorising access of the holders of the residence permit to vocational training and education, Member States should consider in particular the likely duration of stay. (17) The participation of the third-country nationals concerned to programmes and schemes, already existing or to be introduced, should contribute to their recovery of a normal social life. (18) If the third-country nationals concerned submit an application for another kind of residence permit, Member States take a decision on the basis of ordinary national aliens' law. When examining such an application, Member States should consider the fact that the third-country nationals concerned have been granted the residence permit issued under this Directive. (19) Member States should provide the Commission, with respect to the implementation of this Directive, with the information which has been identified in the framework of the activities developed with regard to the collection and treatment of statistical data concerning matters falling within the area of Justice and Home Affairs. (20) Since the objective of introducing a residence permit for the third-country nationals concerned who cooperate in the fight against trafficking in human beings cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at the Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (21) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on the European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of the said Protocol, these Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application. (22) In accordance with Article 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on the European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive and is not bound by it or subject to its application, HAS ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Purpose The purpose of this Directive is to define the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration. Article 2 Definitions For the purposes of this Directive: (a) ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty; (b) ‘action to facilitate illegal immigration’ covers cases such as those referred to in Articles 1 and 2 of Directive 2002/90/EC; (c) ‘trafficking in human beings’ covers cases such as those referred to in Articles 1, 2 and 3 of Framework Decision 2002/629/JHA; (d) ‘measure to enforce an expulsion order’ means any measure taken by a Member State to enforce the decision of the competent authorities ordering the expulsion of a third-country national; (e) ‘residence permit’ means any authorisation issued by a Member State, allowing a third-country national who fulfils the conditions set by this Directive to stay legally on its territory. (f) ‘unaccompanied minors’ means third-country nationals below the age of eighteen, who arrive on the territory of the Member State unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member State. Article 3 Scope 1. Member States shall apply this Directive to the third-country nationals who are, or have been victims of offences related to the trafficking in human beings, even if they have illegally entered the territory of the Member States. 2. Member States may apply this Directive to the third-country nationals who have been the subject of an action to facilitate illegal immigration. 3. This Directive shall apply to the third-country nationals concerned having reached the age of majority set out by the law of the Member State concerned. By way of derogation, Member States may decide to apply this Directive to minors under the conditions laid down in their national law. Article 4 More favourable provisions This Directive shall not prevent Member States from adopting or maintaining more favourable provisions for the persons covered by this Directive. CHAPTER II PROCEDURE FOR ISSUING THE RESIDENCE PERMIT Article 5 Information given to the third-country nationals concerned When the competent authorities of the Member States take the view that a third-country national may fall into the scope of this Directive, they shall inform the person concerned of the possibilities offered under this Directive. Member States may decide that such information may also be provided by a non-governmental organisation or an association specifically appointed by the Member State concerned. Article 6 Reflection period 1. Member States shall ensure that the third-country nationals concerned are granted a reflection period allowing them to recover and escape the influence of the perpetrators of the offences so that they can take an informed decision as to whether to cooperate with the competent authorities. The duration and starting point of the period referred to in the first subparagraph shall be determined according to national law. 2. During the reflection period and while awaiting the decision of the competent authorities, the third-country nationals concerned shall have access to the treatment referred to in Article 7 and it shall not be possible to enforce any expulsion order against them. 3. The reflection period shall not create any entitlement to residence under this Directive. 4. The Member State may at any time terminate the reflection period if the competent authorities have established that the person concerned has actively, voluntarily and on his/her own initiative renewed contact with the perpetrators of the offences referred to in Article 2(b) and (c) or for reasons relating to public policy and to the protection of national security. Article 7 Treatment granted before the issue of the residence permit 1. Member States shall ensure that the third-country nationals concerned who do not have sufficient resources are granted standards of living capable of ensuring their subsistence and access to emergency medical treatment. They shall attend to the special needs of the most vulnerable, including, where appropriate and if provided by national law, psychological assistance. 2. Member States shall take due account of the safety and protection needs of the third-country nationals concerned when applying this Directive, in accordance with national law. 3. Member States shall provide the third-country nationals concerned, where appropriate, with translation and interpreting services. 4. Member States may provide the third-country nationals concerned with free legal aid, if established and under the conditions set by national law. Article 8 Issue and renewal of the residence permit 1. After the expiry of the reflection period, or earlier if the competent authorities are of the view that the third-country national concerned has already fulfilled the criterion set out in subparagraph (b), Member States shall consider: (a) the opportunity presented by prolonging his/her stay on its territory for the investigations or the judicial proceedings, and (b) whether he/she has shown a clear intention to cooperate and (c) whether he/she has severed all relations with those suspected of acts that might be included among the offences referred to in Article 2(b) and (c). 2. For the issue of the residence permit and without prejudice to the reasons relating to public policy and to the protection of national security, the fulfilment of the conditions referred to in paragraph 1 shall be required. 3. Without prejudice to the provisions on withdrawal referred to in Article 14, the residence permit shall be valid for at least six months. It shall be renewed if the conditions set out in paragraph 2 of this Article continue to be satisfied. CHAPTER III TREATMENT OF HOLDERS OF THE RESIDENCE PERMIT Article 9 Treatment granted after the issue of the residence permit 1. Member States shall ensure that holders of a residence permit who do not have sufficient resources are granted at least the same treatment provided for in Article 7. 2. Member States shall provide necessary medical or other assistance to the third-country nationals concerned, who do not have sufficient resources and have special needs, such as pregnant women, the disabled or victims of sexual violence or other forms of violence and, if Member States have recourse to the option provided for in Article 3(3), minors. Article 10 Minors If Member States have recourse to the option provided for in Article 3(3), the following provisions shall apply: (a) Member States shall take due account of the best interests of the child when applying this Directive. They shall ensure that the procedure is appropriate to the age and maturity of the child. In particular, if they consider that it is in the best interest of the child, they may extend the reflection period. (b) Member States shall ensure that minors have access to the educational system under the same conditions as nationals. Member States may stipulate that such access must be limited to the public education system. (c) In the case of third-country nationals who are unaccompanied minors, Member States shall take the necessary steps to establish their identity, nationality and the fact that they are unaccompanied. They shall make every effort to locate their families as quickly as possible and take the necessary steps immediately to ensure legal representation, including representation in criminal proceedings, if necessary, in accordance with national law. Article 11 Work, vocational training and education 1. Member States shall define the rules under which holders of the residence permit shall be authorised to have access to the labour market, to vocational training and education. Such access shall be limited to the duration of the residence permit. 2. The conditions and the procedures for authorising access to the labour market, to vocational training and education shall be determined, under the national legislation, by the competent authorities. Article 12 Programmes or schemes for the third-country nationals concerned 1. The third-country nationals concerned shall be granted access to existing programmes or schemes, provided by the Member States or by non-governmental organisations or associations which have specific agreements with the Member States, aimed at their recovery of a normal social life, including, where appropriate, courses designed to improve their professional skills, or preparation of their assisted return to their country of origin. Member States may provide specific programmes or schemes for the third-country nationals concerned. 2. Where a Member State decides to introduce and implement the programmes or schemes referred to in paragraph 1, it may make the issue of the residence permit or its renewal conditional upon the participation in the said programmes or schemes. CHAPTER IV NON-RENEWAL AND WITHDRAWAL Article 13 Non-renewal 1. The residence permit issued on the basis of this Directive shall not be renewed if the conditions of Article 8(2) cease to be satisfied or if a decision adopted by the competent authorities has terminated the relevant proceedings. 2. When the residence permit issued on the basis of this Directive expires ordinary aliens' law shall apply. Article 14 Withdrawal The residence permit may be withdrawn at any time if the conditions for the issue are no longer satisfied. In particular, the residence permit may be withdrawn in the following cases: (a) if the holder has actively, voluntarily and in his/her own initiative renewed contacts with those suspected of committing the offences referred to in Article 2(b) and (c); or (b) if the competent authority believes that the victim's cooperation is fraudulent or that his/her complaint is fraudulent or wrongful; or (c) for reasons relating to public policy and to the protection of national security; or (d) when the victim ceases to cooperate; or (e) when the competent authorities decide to discontinue the proceedings. CHAPTER V FINAL PROVISIONS Article 15 Safeguard clause This Directive shall apply without prejudice to specific national rules concerning the protection of victims and witnesses. Article 16 Report 1. No later than 6 August 2008, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and propose any amendments that are necessary. The Member States shall send the Commission any information relevant to the preparation of this report. 2. After presenting the report referred to in paragraph 1, the Commission shall report to the European Parliament and the Council at least every three years on the application of this Directive in the Member States. Article 17 Transposal The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 6 August 2006. They shall immediately inform the Commission accordingly. When the Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. Article 18 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Union. Article 19 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Done at Luxembourg, 29 April 2004. For the Council The President M. McDOWELL (1) OJ C 126 E, 28.5.2002, p. 393. (2) Opinion delivered on 5 December 2002 (not yet published in the Official Journal). (3) OJ C 221, 17.9.2002, p. 80. (4) OJ L 328, 5.12.2002, p. 17. (5) OJ L 203, 1.8.2002, p. 1.

Summary: Residence permit for victims of human trafficking Residence permit for victims of human trafficking Residence permits of temporary duration may be issued to non-EU nationals who are victims of trafficking in human beings or (optionally) the subject of an illegal immigration action. It is hoped that this will encourage them to cooperate with the competent authorities whilst providing them with adequate protection. ACT Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities. SUMMARY WHAT DOES THIS DIRECTIVE DO? The directive sets out the procedure for issuing and renewing the residence permit and the conditions for non-renewal or withdrawal, as well as the treatment of victims prior to and after being granted a permit. KEY POINTS The directive applies to non-EU nationals regardless of whether they have entered the EU illegally. Permits can be granted to those who have reached the age of majority in the respective EU country and may apply to children under the conditions set out in national laws. Persons concerned must be informed of the possibilities offered under this directive by the competent authorities of the relevant EU country. Non-EU nationals are granted a reflection period to recover and to escape the influence of the perpetrators of the offences. This allows them to make an informed decision on whether to cooperate with the investigating authorities. During this period, the non-EU nationals concerned should: not be made subject to any expulsion order; if required, be provided with help to ensure they have adequate living standards and with access to emergency medical and, if appropriate, psychological treatment; have access to translation and interpreting services, where appropriate; have access to free legal aid, if provided for in national law. The competent authorities are responsible for assessing whether the: presence of the victim can help the investigation; victim has shown a clear intention to cooperate; victim cut all contact with those suspected of the given offences. When the above three conditions have been fulfilled, a temporary renewable residence permit, valid for at least 6 months, will be issued. The permit can be renewed if the relevant conditions continue to be satisfied. The permit grants the holder access to the labour market and to vocational training and education, under conditions determined in national legislation. The residence permit may not be renewed if the conditions of this directive are no longer met or if the relevant proceedings have been terminated. The permit may be withdrawn for a number of reasons, including if the victim renews contact with those suspected of committing the offences or ceases to cooperate or when the proceedings are discontinued. EU countries are free to adopt or maintain more favourable provisions for the persons covered by this directive. While the collection of data on various aspects of this directive still needs to be improved, two reports from the Commission on the application of the directive in 2010 and in 2014 have found that the possibility to issue permits in exchange for cooperation with authorities might be under-utilised by EU countries. BACKGROUND This directive must be read in conjunction with Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. The latter provides a horizontal legal framework for both EU and non-EU citizens and has reinforced most provisions of Council Directive 2004/81/EC, including the protection and assistance framework for children. REFERENCES Act Entry into force Deadline for transposition in the Member States Official Journal Council Directive 2004/81/EC 6.8.2004 5.8.2006 OJ L 261, 6.8.2004, pp. 19-23 RELATED ACTS Report from the Commission to the European Parliament and the Council on the application of Directive 2004/81 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (COM(2010) 493 final of 15.10.2010). Communication from the Commission to the Council and the European Parliament on the application of Directive 2004/81 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (COM(2014) 635 final of 17.10.2014). last update 02.04.2015


6.8.2004 EN Official Journal of the European Union L 261/24 COUNCIL DIRECTIVE 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 62(2)(a) and Article 63(3)(b) thereof, Having regard to the initiative of the Kingdom of Spain (1), Whereas: (1) In order to combat illegal immigration effectively and to improve border control, it is essential that all Member States introduce provisions laying down obligations on air carriers transporting passengers into the territory of the Member States. In addition, in order to ensure the greater effectiveness of this objective, the financial penalties currently provided for by the Member States for cases where carriers fail to meet their obligations should be harmonised to the extent possible, taking into account the differences in legal systems and practices between the Member States. (2) The European Council of 25 and 26 March 2004 adopted a Declaration on combating terrorism stressing the need to expedite examination of measures in this area and take work forward on the proposed Council Directive on the obligation of carriers to communicate passenger data with a view to an early conclusion on this measure. (3) It is important to avoid a vacuum in the Community's action in combating illegal immigration. (4) As from 1 May 2004 the Council can no longer act on an initiative of a Member State. (5) The Council has exhausted all possibilities to obtain in time the opinion of the European Parliament. (6) Under these exceptional circumstances the Directive should be adopted without the opinion of the European Parliament. (7) The obligations to be imposed on carriers by virtue of this Directive are complementary to those established pursuant to the provisions of Article 26 of the 1990 Schengen Convention implementing the Schengen Agreement of 14 June 1985, as supplemented by Council Directive 2001/51/EC (2), the two types of obligation serving the same objective of curbing migratory flows and combating illegal immigration. (8) Without prejudice to the provisions of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (3), the freedom of the Member States to retain or introduce additional obligations for aircarriers or some categories of other carriers, including information or data in relation to return tickets, whether referred to in this Directive or not, should not be affected. (9) In order to combat illegal immigration more effectively and in order to ensure the greater effectiveness of this objective, it is essential that, without prejudice to the provisions of Directive 95/46/EC, account be taken at the earliest opportunity of any technological innovation, especially with reference to the integration and use of biometric features in the information to be provided by the carriers. (10) Member States should ensure that in any proceedings brought against carriers which may result in the application of penalties, the rights of defence and the right of appeal against such decisions can be exercised effectively. (11) These measures take up the control options set out in the Decision of the Executive Committee of Schengen (SCH/Com-ex (94) 17-rev. 4), aimed at enabling border checks to be increased and providing for sufficient time to enable detailed and comprehensive checks to be carried out on all passengers through the transmission of passenger data to the authorities responsible for carrying out such controls. (12) Directive 95/46/EC applies with regard to the processing of personal data by the authorities of the Member States. This means, that whereas it would be legitimate to process the passenger data transmitted for the performance of border checks also for the purposes of allowing their use as evidence in proceedings aiming at the enforcement of the laws and regulations on entry and immigration, including their provisions on the protection of public policy (ordre public) and national security, any further processing in a way incompatible with those purposes would run counter to the principle set out in Article 6(1)(b) of Directive 95/46/EC. Member States should provide for a system of sanctions to be applied in the event of use contrary to the purpose of the present Directive. (13) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive, and is not bound by it or subject to its application. Given that this Directive builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Directive whether it will implement it in its national law. (14) As regards Iceland and Norway, this Directive constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter's association with the implementation, application and development of the Schengen acquis (4), which fall within the area referred to in Article 1, point E, of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement (5). (15) The United Kingdom is taking part in this Directive in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community, and Article 8(2) of Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (6). (16) Ireland is taking part in this Directive in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and the Treaty establishing the European Community, and Article 6(2) of Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis (7). (17) This Directive constitutes an act building upon the Schengen acquis or otherwise related to it within the meaning of Article 3(1) of the 2003 Act of Accession, HAS ADOPTED THIS DIRECTIVE: Article 1 Objective This Directive aims at improving border controls and combating illegal immigration by the transmission of advance passenger data by carriers to the competent national authorities. Article 2 Definitions For the purpose of this Directive: (a) ‘carrier’ means any natural or legal person whose occupation it is to provide passenger transport by air; (b) ‘external borders’ means the external borders of the Member States with third countries; (c) ‘border control’ means a check carried out at a border in response exclusively to an intention to cross that border, regardless of any other consideration; (d) ‘border crossing point’ means any crossing point authorised by the competent authorities for crossing external borders; (e) ‘personal data’, ‘processing of personal data’ and ‘personal data filing system’ have the meaning as stipulated under Article 2 of Directive 95/46/EC. Article 3 Data transmission 1. Member States shall take the necessary steps to establish an obligation for carriers to transmit at the request of the authorities responsible for carrying out checks on persons at external borders, by the end of check-in, information concerning the passengers they will carry to an authorised border crossing point through which these persons will enter the territory of a Member State. 2. The information referred to above shall comprise: — the number and type of travel document used, — nationality, — full names, — the date of birth, — the border crossing point of entry into the territory of the Member States, — code of transport, — departure and arrival time of the transportation, — total number of passengers carried on that transport, — the initial point of embarkation. 3. In any case the transmission of the above mentioned data does not discharge the obligations and responsibilities laid down in the provisions of Article 26 of the Schengen Convention for carriers, as supplemented by Directive 2001/51/EC. Article 4 Sanctions 1. Member States shall take the necessary measures to impose sanctions on carriers which, as a result of fault, have not transmitted data or have transmitted incomplete or false data. Member States shall take the necessary measures to ensure that sanctions are dissuasive, effective and proportionate and that either: (a) the maximum amount of such sanctions is not less than EUR 5 000, or than the equivalent national currency at the rate of exchange published in the Official Journal of the European Union on the day on which this Directive enters into force for each journey for which passenger data were not communicated or were communicated incorrectly; or (b) the minimum amount of such sanctions is not less than EUR 3 000, or than the equivalent national currency at the rate of exchange published in the Official Journal of the European Union on the day on which this Directive enters into force for each journey for which passenger data were not communicated or were communicated incorrectly. 2. This Directive shall not prevent Member States from adopting or retaining, for carriers which infringe very seriously the obligations arising from the provisions of this Directive, other sanctions, such as immobilisation, seizure and confiscation of the means of transport, or temporary suspension or withdrawal of the operating licence. Article 5 Proceedings Member States shall ensure that their laws, regulations and administrative provisions stipulate that carriers against which proceedings are brought with a view to imposing penalties have effective rights of defence and appeal. Article 6 Data processing 1. The personal data referred to in Article 3(1) shall be communicated to the authorities responsible for carrying out checks on persons at external borders through which the passenger will enter the territory of a Member State, for the purpose of facilitating the performance of such checks with the objective of combating illegal immigration more effectively. Member States shall ensure that these data are collected by the carriers and transmitted electronically or, in case of failure, by any other appropriate means to the authorities responsible for carrying out border checks at the authorised border crossing point through which the passenger will enter the territory of a Member State. The authorities responsible for carrying out checks on persons at external borders shall save the data in a temporary file. After passengers have entered, these authorities shall delete the data, within 24 hours after transmission, unless the data are needed later for the purposes of exercising the statutory functions of the authorities responsible for carrying out checks on persons at external borders in accordance with national law and subject to data protection provisions under Directive 95/46/EC. Member States shall take the necessary measures to oblige carriers to delete, within 24 hours of the arrival of the means of transportation pursuant to Article 3(1), the personal data they have collected and transmitted to the border authorities for the purposes of this Directive. In accordance with their national law and subject to data protection provisions under Directive 95/46/EC, Member States may also use the personal data referred to in Article 3(1) for law enforcement purposes. 2. Member States shall take the necessary measures to oblige the carriers to inform the passengers in accordance with the provisions laid down in Directive 95/46/EC. This shall also comprise the information referred to in Article 10(c) and Article 11(1)(c) of Directive 95/46/EC. Article 7 Transposal 1. Member States shall take the necessary measures to comply with this Directive not later than 5 September 2006. They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission. Article 8 Entry into force This Directive shall enter into force 30 days after its publication in the Official Journal of the European Union. Article 9 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Done at Luxembourg, 29 April 2004. For the Council The President M. McDOWELL (1) OJ C 82, 5.4.2003, p. 23. (2) OJ L 187, 10.7.2001, p. 45. (3) OJ L 281, 23.11.1995, p. 31. (4) OJ L 176, 10.7.1999, p. 36. (5) OJ L 176, 10.7.1999, p. 31. (6) OJ L 131, 1.6.2000, p. 43. (7) OJ L 64, 7.3.2002, p. 20.

Summary: Obligation of air carriers to communicate passenger data Obligation of air carriers to communicate passenger data This Directive requires air carriers to collect and transmit passenger data to the authorities of the Member State of destination responsible for control. Non-compliance may lead to fines being imposed and even, in the case of serious infringement, confiscation of the means of transport or withdrawal of the operating licence. ACT Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data. SUMMARY According to this Directive, air carriers * are required to communicate information concerning their passengers travelling to a European Union (EU) border crossing *. This information is supplied, at the request of the authorities responsible for carrying out checks * on persons at the external borders * of the EU, to improve border control and to combat illegal immigration more effectively. These data are forwarded to these authorities for passenger registration purposes. In principle they are transmitted electronically to these authorities. Carriers are required to transmit the following information: number and type of travel document used, nationality, name and date of birth of the passenger, border crossing point of entry into the EU, departure and arrival time of the transportation, total number of passengers carried. In principle, these data are deleted by these authorities within 24 hours of transmission, provided that the passengers have arrived within the territory of the Member States. The personal data are deleted by the carrier within 24 hours of arrival of the means of transport. Member States must adopt dissuasive, effective and proportionate sanctions, should carriers fail to comply with this obligation. Such sanctions are applicable to carriers which, as a result of fault, have not transmitted data or have transmitted incomplete or false data. The maximum amount of these sanctions is not less than EUR 5000 and their minimum amount is not less than EUR 3000 for each journey. Member States may also provide for other types of sanctions in the event of serious infringement of the communication requirement. These sanctions may consist of: immobilisation, seizure and confiscation of the means of transport; temporary suspension or even withdrawal of the carrier's operating licence. Carriers may appeal against measures imposed against them. Member States adopt all the necessary measures for this right of appeal to be effective. Background This Directive was adopted following a request by the European Council of 25 and 26 March 2004, which met following the terrorist attacks in Madrid. The obligations provided for in this Directive are complementary to those laid down by Article 26 of the Convention implementing the Schengen Agreement, as supplemented by Council Directive 2001/51/EC, concerning the obligation of carriers to return third-country nationals who are refused entry by the Member State of destination. Key terms used in the act Carrier: any natural or legal person whose occupation it is to provide passenger transport by air. External borders: external borders of the Member States with third countries. Border control: check carried out at a border exclusively on account of crossing that border. Border crossing point: any crossing point authorised by the competent authorities for crossing external borders. References Act Entry into force Deadline for transposition in the Member States Official Journal Directive 2004/82/EC 5.9.2004 5.9.2006 OJ L 261 of 6.8.2004 Last updated: 24.08.2008


6.8.2004 EN Official Journal of the European Union L 261/28 COUNCIL DECISION of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders (2004/573/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(b) thereof, Having regard to the initiative of the Italian Republic (1), Whereas: (1) The comprehensive plan to combat illegal immigration and trafficking of human beings in the European Union (2), approved by the Council on 28 February 2002, which built upon the Communication of 15 November 2001 from the Commission to the Council and to the European Parliament on a common policy on illegal immigration states that readmission and return policy is an integral and vital component of the fight against illegal immigration. To that end, the Comprehensive Plan emphasises the necessity of highlighting a number of practical measures, including the establishment of a joint approach and cooperation between Member States with regard to the implementation of return measures. Common standards should therefore be adopted for return procedures. (2) The plan for the management of the external borders of the European Union, approved by the Council on 13 June 2002, which built upon the Communication of 7 May 2002 from the Commission to the Council and the European Parliament ‘Towards integrated management of the external borders of the Member States of the European Union’, provides for rational repatriation operations as one of the measures and actions for the integrated management of the external borders of the Member States of the European Union. (3) The Return Action Programme, approved by the Council on 28 November 2002, which built upon the Commission Green Paper of 10 April 2002 on a Community return policy on illegal residents, as well as on the Communication of 14 October 2002 from the Commission to the European Parliament and to the Council on a Community return policy on illegal residents recommends, as one of the measures and actions with regard to improved operational cooperation among Member States, that the return of third-country nationals illegally resident in a Member State should be made as efficient as possible by sharing existing capacities for organising joint flights. (4) It is important to avoid a vacuum of the Community in the field of the organisation of joint flights. (5) As from 1 May 2004 the Council can no longer act on an initiative of a Member State. (6) The Council has exhausted all the possibilities to obtain in time the opinion of the European Parliament. (7) Under these exceptional circumstances the Decision should be adopted without the opinion of the European Parliament. (8) Member States are to implement this Decision with due respect for human rights and fundamental freedoms, and in particular for the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment of 10 December 1984, the Geneva Convention of 28 July 1951 and the New York Protocol thereto of 31 January 1967, relating to the status of refugees, the Convention on the rights of the child of 20 November 1989, and the Charter of fundamental rights of the European Union of 18 December 2000 (3). (9) This Decision should apply without prejudice to the relevant international instruments in the area of removal by air, such as Annex 9 to the 1944 Chicago Convention on International Civil Aviation (ICAO) and the relevant documents of the European Civil Aviation Conference (ECAC). (10) The non-binding Common Guidelines on security provisions for joint removals by air should provide useful guidance in the implementation of this Decision. (11) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision, and is not bound by it or subject to its application. However, given that this Decision builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark, in accordance with Article 5 of the said Protocol, is to decide within a period of six months after the Council has adopted this Decision, whether it will implement it in its national law. (12) As regards the Republic of Iceland and the Kingdom of Norway, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded on 18 May 1999 between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis (4), which fall within the area referred to in Article 1, point C of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement (5). As a result of the procedures laid down in the said Agreement, the rights and obligations arising from this Decision should also apply to those two States and in relations between those two States and the Member States of the European Community to which this Decision is addressed. (13) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and to the Treaty establishing the European Community, these Member States have notified their wish to take part in the adoption and application of this Decision, HAS ADOPTED THIS DECISION: Article 1 Purpose The purpose of this Decision is to coordinate joint removals by air, from two or more Member States, of third-country nationals who are subjects of individual removal orders (hereinafter referred to as third-country nationals). Article 2 Definitions For the purpose of this Decision: (a) ‘third-country national’, means any person who is not a national of a Member State of the European Union, the Republic of Iceland or the Kingdom of Norway; (b) ‘organising Member State’, means a Member State, which is responsible for the organisation of joint flights; (c) ‘participating Member State’, means a Member State which participates in joint flights organised by an organising Member State; (d) ‘joint flight’, means the transport of third-country nationals carried out by an air carrier selected for that purpose; (e) ‘removal operations’ and ‘joint removals by air’, mean all the activities which are necessary to return the third-country nationals concerned, including transport on joint flights; (f) ‘escort(s)’, means the security personnel responsible for accompanying third-country nationals on a joint flight and the persons in charge of medical care and interpreters. Article 3 National authority Each Member State shall appoint the national authority responsible for organising and/or participating in joint flights and communicate the relevant information to the other Member States. Article 4 Tasks of the organising Member State 1. Where a Member State decides to organise a joint flight for the removal of third-country nationals which is open to the participation of the other Member States, it shall inform the national authorities of those Member States. 2. The national authority of the organising Member State shall adopt the necessary measures to ensure that the joint flight is conducted properly. In particular, it shall: (a) select the air carrier and determine with the selected air carrier all the relevant costs of the joint flight, assume the relevant contractual obligations and ensure that it takes all the measures necessary for carrying out the joint flight, including providing the appropriate assistance to the third-country nationals and to the escorts; (b) request and receive, from the third-countries of transit and destination, the authorisations which are required for the implementation of the joint flight; (c) make use of contacts and make the appropriate arrangements for the organisation of the joint flight with the participating Member States. (d) define the operational details and procedures and determine, in agreement with the participating Member States, the number of the escorts which is appropriate in relation to the number of third-country nationals to be removed; (e) conclude all the appropriate financial arrangements with the participating Member States. Article 5 Tasks of the participating Member State Where it decides to participate in a joint flight, a participating Member State shall: (a) inform the national authority of the organising Member State of its intention to participate in the joint flight, specifying the number of third-country nationals to be removed; (b) provide a sufficient number of escorts for each third-country national to be removed. If the escorts are to be provided solely by the organising Member State, each participating Member State shall ensure the presence of at least two representatives on board. These representatives, who shall have the same status as the escorts, shall be in charge of handing over the third-country nationals for whom they are responsible to the authorities of the country of destination. Article 6 Common tasks The organising Member State and each participating Member State shall: (a) ensure that each third-country national and the escorts hold valid travel documents and any other necessary additional documents, such as entry and/or transit visas, certificates or records; (b) inform, as soon as possible, their diplomatic and consular representations in the third-countries of transit and destination of the arrangements concerning the joint flight, in order to obtain necessary assistance. Article 7 Final clause In carrying out joint removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air attached hereto. Article 8 Entry into force This Decision shall take effect from the day following that of its publication in the Official Journal of the European Union. Article 9 Addressees This Decision is addressed to the Member States in accordance with the Treaty. Done at Luxembourg, 29 April 2004. For the Council The President M. McDOWELL (1) OJ C 223, 19.9.2003, p. 3. (2) OJ C 142, 14.6.2002, p. 23. (3) OJ C 364, 18.12.2000, p. 1. (4) OJ L 176, 10.7.1999, p. 36. (5) OJ L 176, 10.7.1999, p. 31. ANNEX COMMON GUIDELINES ON SECURITY PROVISIONS FOR JOINT REMOVALS BY AIR 1. PRE-RETURN PHASE 1.1. Requirements for returnees 1.1.1. Legal situation Joint flights are organised for illegal residents, who are persons who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territory of a Member State of the European Union. The organising Member State and each participating Member State shall ensure that the legal situation of each of the returnees for which they are responsible allows for removal. 1.1.2. Medical condition and medical records The organising Member State and each participating Member State shall ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for a safe removal by air. Medical records shall be provided for returnees with a known medical disposition or where medical treatment is required. These medical records shall include the results of medical examinations, a diagnosis and the specification of possibly needed medication to allow for necessary medical measures. Multilingual versions of medical records shall be provided, if the accompanying medical staff is not able to understand properly the original language. Organising and participating Member States are encouraged to use common standardised forms for medical records or fit-for-fly declarations. Participating Member States shall inform the organising Member State in advance of a removal operation of any medical condition which would have a bearing on the removability of a returnee. The organising Member State shall reserve the right to refuse access to a joint flight to any returnee with a medical condition which would mean that their return was not compatible with the principles of safety and dignity. 1.1.3. Documentation The organising Member State and each participating Member State shall ensure that for each returnee valid travel documents and other necessary additional documents, certificates or records are available. An authorised person shall keep the documentation until arrival in the country of destination. It is the responsibility of the organising Member State and each participating State to ensure that escorts and representatives have entry visas where necessary for the country(ies) of transit and destination of the joint flight. 1.1.4. Notifications The organising Member State shall ensure that the airlines, the transit states, where applicable, and the country of destination are notified and consulted duly in advance about the removal operation. 1.2. Requirements for escorts 1.2.1. Escorts from the organising Member State Where the organising Member State provides the escorts for all the returnees, each participating Member State shall assign at least two representatives to be present on board the aircraft; they shall be in charge of handing over the returnees for whom they are responsible to the local authorities in the country of destination. 1.2.2. Escorts from participating Member States Where the organising Member State intends to take charge solely of the returnees from its own country, the participating Member States shall provide escorts for the returnees, for whom they are responsible. In such cases, the participation of the various national units requires mutual agreement between the organising Member State and the participating Member States on the security rules as set out in these Common Guidelines or in other agreements between Member States and there shall be prior consultation on any other details of the operation. 1.2.3. Use of private-sector escorts When a participating Member State makes use of private-sector escorts, the authorities of that Member State shall provide for at least one official representative on board the flight. 1.2.4. Skills and training of escorts Escorts assigned on board the joint flights shall have received prior special training in order to carry out these missions; they must be provided with the necessary medical support depending on the mission. Escorts used for joint flights should preferably be familiar with the removal standards of the organising Member State and the participating Member States. Member States are encouraged, therefore, to exchange information on their respective training courses for escorts and to offer training courses to escorts from other Member States. 1.2.5. Code of conduct for escorts The escorts shall not be armed. They may wear civilian dress, which shall have a distinctive emblem for identification purposes. Other duly accredited accompanying staff shall also wear a distinctive emblem. The members of the escort shall be strategically positioned in the aircraft in order to provide optimum safety. Moreover, they shall be seated with the returnees for whom they have responsibility. 1.2.6. Arrangements regarding the number of escorts The number of escorts shall be determined on a case-by-case basis following an analysis of the potential risks and following mutual consultation. It is recommended in most cases that they are at least equivalent to the number of returnees on board. A back-up unit shall be available for support, where necessary (e.g. in cases of long-distance destinations). 2. PRE-DEPARTURE PHASE IN DEPARTURE OR STOPOVER AIRPORTS 2.1. Transportation to the airport and stay in the airport As regards transportation to and stay in the airport the following shall apply: (a) in principle, the escorts and the returnees should be at the airport at least three hours before departure; (b) returnees should be briefed regarding the enforcement of their removal and advised that it is in their interest to cooperate fully with the escorts. It should be made clear that any disruptive behaviour will not be tolerated and will not lead to the aborting of the removal operation; (c) the organising Member State shall provide a secure area at the departure airport in order to ensure a discrete gathering and safe boarding of the returnees. This area shall also secure the arrival of the aircraft of any other Member State, which is transporting returnees to join the joint flight; (d) if a joint flight has to stop over at an airport of another Member State for the collection of returnees, it is the responsibility of that Member State to provide for a secure area at the airport; (e) the representatives of the participating Member State shall hand over the returnees, for whom they are responsible, to officials of the Member State of the present location, who will usually be from the organising Member State. The representatives of the participating Member States shall indicate, if need be, which of the returnees have expressed their intention not to board the aircraft and in particular which of them need special attention due to their physical or psychological condition; (f) the Member State of the present location of the removal operation is responsible for the performance of any sovereign power (e.g. coercive measures). The powers of the escorts from other participating Member States are limited to self-defence. In addition, in the absence of law enforcement officers from the Member State of the present location, or for the purpose of supporting the law-enforcement officers, the escorts may take reasonable and proportionate action in response to an immediate and serious risk in order to prevent the returnee from escaping, causing injury to himself or to a third party, or damage to property. 2.2. Check-in, boarding and security check before take-off The arrangements as regards check-in, boarding and security checking before take-off shall be as follows: (a) the escorts of the Member State of the present location are responsible for checking in and for assisting in passing control areas; (b) all returnees shall undergo a meticulous security search before they board a joint flight. All objects that could be a threat to the safety of individuals and to the security of the joint flight shall be seized and placed in the luggage hold; (c) ‘the returnee's luggage shall not be placed in the passengers’ cabin. All luggage placed in the hold shall undergo a security check and be labelled with the owner's name. Anything that is considered as dangerous according to the rules of the International Civil Aviation Organisation (ICAO) shall be removed from luggage; (d) money and valuable objects shall be placed in a transparent covering labelled with the owner's name. The returnees shall be informed about the procedure regarding objects and money that have been put aside; (e) for each removal operation the organising Member State shall determine the maximum authorised weight of luggage for each returnee; (f) All returnees shall be boarded onto the joint flight by personnel of the Member State of the present location and, where appropriate, assisted by the escorts for the removal operation. 3. IN-FLIGHT PROCEDURE 3.1. Security measures on board the aircraft During the flight the following security measures on board the aircraft shall apply: (a) the head of the removal operation of the organising Member State shall define an overall security and surveillance plan to be implemented on board the aircraft (movements within the cabin, meals, etc.). All escorts must be informed about the security and surveillance plan before the beginning of a removal operation; (b) in cases where returnees are of different nationalities, they shall be seated in the passengers' cabin according to the Member State responsible for effecting their removal and according to their final destinations; (c) seatbelts shall be kept fastened throughout the entire duration of the flight; (d) in the event of a major incident on board (i.e. disruptive behaviour likely to jeopardise the completion of the operation or the safety of those on board the flight), the head of operation of the organising Member State, in close liaison with or under instruction of the flight captain, shall be in charge of the operational command to restore order. 3.2. Use of coercive measures Coercive measures shall be used as follows: (a) coercive measures shall be implemented with due respect to the individual rights of the returnees; (b) coercion may be used on individuals who refuse or resist removal. All coercive measures shall be proportional and shall not exceed reasonable force. The dignity and physical integrity of the returnee shall be maintained. As a consequence, in case of doubt, the removal operation including the implementation of legal coercion based on the resistance and dangerousness of the returnee, shall be stopped following the principle ‘no removal at all cost’; (c) any coercive measures should not compromise or threaten the ability of the returnee to breathe normally. In the event that coercive force is used, it shall be ensured that the chest of the returnee remains in upright position and that nothing affects his or her chest in order to maintain normal respiratory function; (d) the immobilisation of resisting returnees may be achieved by means of restraints that will not endanger their dignity and physical integrity; (e) the organising Member State and each participating Member State shall agree on a list of authorised restraints in advance of the removal operation. The use of sedatives to facilitate the removal is forbidden without prejudice to emergency measures to ensure flight security; (f) all escorts shall be informed and made aware of the authorised and forbidden restraints; (g) restrained returnees shall remain under constant surveillance throughout the flight; (h) the decision temporarily to remove a means of restraint shall be made by the head or deputy-head of the removal operation. 3.3. Medical personnel and interpreters The arrangements with regard to medical personnel and interpreters shall be as follows: (a) at least one medical doctor should be present on a joint flight; (b) the doctor shall have access to any relevant medical records of the returnees and shall be informed before departure about returnees with particular medical dispositions. Previously unknown medical dispositions, which are discovered immediately before departure and which may affect the enforcement of the removal, should be assessed with the responsible authorities; (c) only a doctor may, after a precise medical diagnosis has been made, administer medication to the returnees. Medicine required by a returnee during the course of the flight shall be held on board; (d) each returnee shall be able to address the doctor or the escorts directly, or via an interpreter in a language in which he or she can express him- or herself; (e) the organising Member States shall ensure that appropriate medical and language staff are available for the removal operation. 3.4. Documentation and monitoring of removal operation 3.4.1. Recording and observers from third parties Any video- and/or audio-recording or monitoring by third-party observers on joint flights shall be subject to prior agreement between the organising Member State and the participating Member States. 3.4.2. Internal reports on the removal operation The organising Member State and participating Member States shall exchange their internal reports on the removal operation, if a common report is not to be prepared. This is particularly important if the removal operation has failed. All mission reports are strictly confidential and for internal use only. Reports shall include statements on incidents, and coercive and medical measures, if any have taken place. 3.4.3. Media coverage The organising and participating Member States shall agree before a removal operation on the nature and timing of publicity (if any) to be given to the removal operation. Information about the removal operation will normally be issued only after its completion. Publication of photographs or personal details of the escorts is to be avoided. 4. TRANSIT PHASE Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (1) shall apply during transit in a Member State. 5. ARRIVAL PHASE On arrival: (a) the organising Member State shall be responsible for contacting the authorities of the country of destination; participating Member States shall be involved in this process; (b) the head of the removal operation of the organising Member State shall be the spokesperson to establish first contact with the local authorities upon arrival, unless another spokesperson has been determined among the organising and participating Member States prior to arrival; (c) the organising Member State and each participating Member State shall hand over the returnees, for whom they are responsible, to the authorities of the country of destination, with their luggage and any items that were seized prior to boarding. The lead representatives of the organising and participating Member States will be responsible for handing over the returnees to the local authorities upon arrival. The escorts will not normally leave the aircraft; (d) where appropriate and feasible, the organising and participating Member States should invite consular staff, immigration liaison officers or advance parties of the Member States concerned to facilitate the handover of the returnees to the local authorities insofar as this is consistent with national practices and procedure; (e) the returnees shall be free of handcuffs or any other restraint when handed over to the local authorities; (f) the handover of returnees shall take place outside the aircraft (either at the bottom of the gangway or in adequate premises of the airport, as considered appropriate). As far as possible the local authorities shall be prevented from coming on board the aircraft; (g) the time spent at the airport of destination should be kept to a minimum; (h) it is the responsibility of the organising Member State and each participating Member State to have in place contingency arrangements for escorts and representatives (and returnees whose readmission has not been permitted) in the event that the departure of the aircraft is delayed following disembarkation of the returnees. These arrangements should include the provision of overnight accommodation, if necessary. 6. FAILURE OF THE REMOVAL OPERATION In the event that the authorities of the country of destination refuse entry to the territory, or the removal operation has to be aborted for other reasons, the organising Member State and each participating Member State shall take responsibility, at its own cost, for the return of the returnees, for whom they are responsible, to their respective territories. (1) OJ L 321, 6.12.2003, p. 26.

Summary: Return of illegal immigrants to their countries: joint flights Return of illegal immigrants to their countries: joint flights SUMMARY OF: Decision 2004/573/EC — Joint flights for removals from the territory of two or more EU countries of illegal immigrants WHAT IS THE AIM OF THIS DECISION? It sets out the procedures when two or more EU countries cooperate to deport illegal immigrants by air from the EU. KEY POINTS Every EU country appoints a national authority responsible for organising or participating in joint flights. The authority organising a joint flight must: provide the relevant information to other EU countries; select the airline involved and ensure all the contractual and practical arrangements are in place; request and receive authorisations from the flight’s transit and destination countries; make the appropriate arrangements, including financial ones, with other EU countries participating in the flight; define the operational details and procedures, including the number of escorts required. An EU country participating in a joint flight must: inform the national authority organising the flight of its intention to participate; provide a sufficient number of escorts; ensure the presence of at least 2 of its representatives if the organising country provides all the escorts. Organising and participating countries must: ensure escorts and all those being deported have valid travel papers and other necessary documents, such as visas and certificates; provide the flight arrangements to their embassies and consulates in the transit and destination countries involved to receive any necessary assistance. The decision sets out detailed procedures and requirements for the five phases involved in removing illegal immigrants: pre-return pre-departure in-flight transit arrival. These cover issues such as check-in, security and the use of coercive measures*. Operational cooperation between EU countries also covers: transit assistance for removal flights; organisation of flights for illegal immigrants subject to individual removal orders; mutual recognition of expulsion decisions. FROM WHEN DOES THIS DECISION APPLY? It has applied since 7 August 2004. BACKGROUND Between 400,000 and 500,000 foreign nationals are ordered to leave the EU every year because they have entered, or are staying, illegally. Only 40 % are sent back home or to the country from which they entered the EU. Ensuring the return of illegal immigrants is essential to guarantee the credibility of legal migration. For more information, see: ‘Return and readmission’ on the European Commission’s website. * KEY TERMS coercive measures: these may be used on people who refuse or resist removal; they must be proportional and must not exceed reasonable force or compromise the person’s ability to breathe. MAIN DOCUMENT Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States of third-country nationals who are subjects of individual removal orders (OJ L 261, 6.8.2004, pp. 28-35) RELATED ACTS Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ L 321, 6.12.2003, pp. 26-31) Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals (OJ L 149, 2.6.2001, pp. 34-36) last update 29.07.2016