18.7.2008 EN Official Journal of the European Union L 190/17 COMMISSION DECISION of 16 June 2008 relating to the setting up of an Advisory Committee on Equal Opportunities for Women and Men (Codified version) (2008/590/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Whereas: (1) Commission Decision 82/43/EEC of 9 December 1981 relating to the settingup of an Advisory Committee on Equal Opportunities for Women and Men (1) has been substantially amended several times (2). In the interests of clarity and rationality the said Decision should be codified. (2) Equality between women and men is essential to human dignity and democracy, and constitutes a fundamental principle of Community law, of the constitutions and laws of the Member States, and of international and European conventions. (3) The application in practice of the principle of equal treatment for women and men must be encouraged by improved cooperation and exchanges of views and experience between those bodies which have special responsibility in the Member States for promoting equality of opportunity, and the Commission. (4) The full implementation in practice of the directives, recommendations and resolutions adopted by the Council in the field of equal opportunities can be speeded up considerably with the assistance of national bodies having a network of specialised information at their disposal. (5) The preparation and implementation of Community measures concerning the employment of women, the improvement of the position of women who are self-employed and those engaged in agriculture, and the promotion of equal opportunities require close cooperation with the specialised bodies in Member States. (6) Therefore, an institutional framework is required for the purpose of regular consultations with those bodies, HAS DECIDED AS FOLLOWS: Article 1 The Commission hereby establishes an Advisory Committee on Equal Opportunities for Women and Men, hereinafter called ‘the Committee’. Article 2 1. The Committee shall assist the Commission in formulating and implementing the Community’s activities aimed at promoting equal opportunities for women and men, and shall foster ongoing exchanges of relevant experience, policies and practices between the Member States and the various parties involved. 2. To achieve the aims referred to in paragraph 1, the Committee shall: (a) assist the Commission in the development of instruments for monitoring, evaluating and disseminating the results of measures taken at Community level to promote equal opportunities; (b) contribute to the implementation of Community action programmes in the field, mainly by analysing the results and suggesting improvements to the measures taken; (c) contribute, through its opinions, to the preparation of the Commission’s annual report on progress made towards achieving equality of opportunity for women and men; (d) encourage exchanges of information on measures taken at all levels to promote equal opportunities and, where appropriate, put forward proposals for possible follow-up action; (e) deliver opinions or submit reports to the Commission, either at the latter’s request or on its own initiative, on any matter of relevance to the promotion of equal opportunities in the Community. 3. Procedures for the circulation of the Committee’s opinions and reports shall be determined in agreement with the Commission. They may be published as an Annex to the Commission’s annual report on equal opportunities for women and men. Article 3 1. The Committee shall comprise 68 members, namely: (a) one representative per Member State from ministries or government departments responsible for promoting equal opportunities; the representative shall be designated by the government of each Member State; (b) one representative per Member State from national committees or bodies set up by official decision, having specific responsibility for equal opportunities between women and men through representation of the sectors concerned; where there are several committees or bodies dealing with these matters in a Member State, the Commission shall determine which body, by its objectives, structure, representativeness and degree of independence, is best qualified to be represented on the Committee; any Member State without such committees shall be represented by members of bodies deemed by the Commission to perform analogous duties; the representative shall be appointed by the Commission, acting on a proposal from the relevant national committee or body; (c) seven members representing employers’ organisations at Community level; (d) seven members representing workers’ organisations at Community level. The representatives shall be appointed by the Commission, acting on a proposal from the social partners at Community level. 2. Two representatives of the European Women’s Lobby shall attend meetings of the Committee as observers. 3. Representatives of international and professional organisations and other associations making duly substantiated requests to the Commission may be given observer status. Article 4 An alternate shall be appointed for each member of the Committee under the same conditions as those laid down in Article 3. Without prejudice to Article 7, the alternate shall not attend meetings of the Committee nor participate in its work unless the relevant member is prevented from doing so. Article 5 The term of office of members of the Committee shall be three years and shall be renewable. At the end of the three-year period, the members of the Committee shall continue in office until a replacement is provided or their term of office is renewed. A member’s term of office shall come to an end before the expiry of the three-year period in the event of her/his resignation, the termination of her/his membership of the organisation which she/he represents, or her/his death. A member’s terms of office may also be terminated if the organisation which nominated her/him requests her/his replacement. The member shall be replaced for the remainder of the term of office in accordance with the procedure laid down in Article 4. No remuneration shall be attached to a member’s duties; travelling and subsistence expenses for meetings of the Committee and the working parties set up under Article 8 shall be met by the Commission in accordance with the administrative rules in force. Article 6 The Committee shall elect a chairperson, with a one-year term of office, from among its members. Election shall be by a majority of two-thirds of the members present; a minimum of half the total votes in favour shall, nevertheless, be required. Two vice-chairpersons shall be elected by the same majority and under the same conditions. They shall be required to stand in for the chairperson in the absence of the latter. The chairperson and vice-chairpersons must belong to different Member States. They shall constitute the Bureau of the Committee, which shall meet before each meeting of the Committee. The Commission shall organise the work of the Committee in close cooperation with the chairperson. The draft agenda for meetings of the Committee shall be set by the Commission in agreement with the chairperson. The Secretariat of the Committee shall be provided by the Commission’s Equal Opportunities Unit. The minutes of the Committee’s meetings shall be drawn up by the Commission and submitted to the Committee for approval. Article 7 The chairperson may invite any person who is specially qualified in a particular subject on the agenda to take part in its work as an expert. Experts shall only take part in the work on the particular subject for which their attendance is requested. Article 8 1. The Committee may set up working parties. 2. For the preparation of its opinions, the Committee may entrust a rapporteur or an outside expert with the task of drawing up reports in accordance with procedures to be determined. 3. One or more members of the Committee may participate as observers in the activities of other advisory committees of the Commission, and shall inform the Committee accordingly. Article 9 Measures adopted under Articles 7 and 8 having financial implications for the budget of the European Communities shall be submitted for the prior agreement of the Commission and shall be implemented in accordance with the administrative rules in force. Article 10 The Committee shall be convened by the Commission and shall meet on its premises. It shall meet at least twice a year. Article 11 The Committee’s deliberations shall deal with the requests for opinion presented by the Commission or with the opinions which the Committee delivers on its own initiative. They are not followed by a vote. The Commission, when requesting the Committee’s opinion, may set a deadline within which the opinion should be delivered. The views expressed by the different categories represented in the Committee shall be recorded in the minutes, which shall be transmitted to the Commission. Where the opinion requested has been agreed unanimously by the Committee, the Committee shall draft common conclusions which shall be annexed to the minutes. Article 12 Without prejudice to Article 287 of the Treaty, members of the Committee are required not to disclose information obtained in the course of their work on the Committee or its working parties when informed by the Commission that the opinion requested or question asked concerns a confidential matter. In such cases, only members of the Committee and representatives of the Commission departments shall attend meetings. Article 13 Decision 82/43/EEC is repealed. References to the repealed Decision shall be construed as references to this Decision and shall be read in accordance with the correlation table in Annex II. Done at Brussels, 16 June 2008. For the Commission The President José Manuel BARROSO (1) OJ L 20, 28.1.1982, p. 35. Decision as last amended by Regulation (EC) No 1792/2006 (OJ L 362, 20.12.2006, p. 1). (2) See Annex I. ANNEX I Repealed Decision with list of its successive amendments Commission Decision 82/43/EEC (OJ L 20, 28.1.1982, p. 35). Point VIII.12 of Annex I of the 1985 Act of Accession (OJ L 302, 15.11.1985, p. 209). Point IV.C of Annex I of the 1994 Act of Accession (OJ C 241, 29.8.1994, p. 115). Commission Decision 95/420/EC (OJ L 249, 17.10.1995, p. 43). Point 11.4 of Annex II of the 2003 Act of Accession (OJ L 236, 23.9.2003, p. 585). Commission Regulation (EC) No 1792/2006 (OJ L 362, 20.12.2006, p. 1). Only as regards the reference to Decision 82/43/EEC in the sixth indent of Article 1(2) and Annex, point 9.1. ANNEX II Correlation Table Decision 82/43/EEC This Decision Articles 1 and 2 Articles 1 and 2 Article 3(1), first subparagraph, point (a) Article 3(1), first subparagraph, point (a) Article 3(1), first subparagraph, point (b) Article 3(1), first subparagraph, point (b) Article 3(1), first subparagraph, point (c), first indent Article 3(1), first subparagraph, point (c) Article 3(1), first subparagraph, point (c), second indent Article 3(1), first subparagraph, point (d) Article 3(1), second subparagraph Article 3(1), second subparagraph Article 3(2) and (3) Article 3(2) and (3) Article 4, first sentence Article 4, first subparagraph Article 4, second sentence Article 4, second subparagraph Articles 5 to 12 Articles 5 to 12 Article 13 — — Article 13 — Annex I — Annex II

Summary: Advisory Committee on Equal Opportunities for Men and Women Advisory Committee on Equal Opportunities for Men and Women SUMMARY OF: Establishment of the EU’s Advisory Committee on Equal Opportunities for Women and Men — Decision 2008/590/EC SUMMARY WHAT DOES THIS DECISION DO? It sets up a committee to ensure regular consultations and exchanges between bodies and institutions that promote equal opportunities between women and men in EU countries. KEY POINTS The Advisory Committee on Equal Opportunities for Women and Men is intended to help the European Commission formulate and implement measures to promote equal opportunities for women and men. It does this by encouraging the exchange of relevant experience, policies and practices between EU countries and the various parties involved. The Committee has 70 members with a 3-year renewable term of office comprising: 1 representative from each EU country appointed by its government from a ministry or government department responsible for promoting equal opportunities, 1 representative from each EU country appointed by the Commission from among the members of a national committee or body responsible for equal opportunities upon a proposal from the organisation concerned, 7 members representing employers’ organisations at EU level, and 7 members representing employees’ organisations at EU level. The European Women’s Lobby is represented at committee meetings by 2 members as observers. Representatives of international, professional and membership organisations may also be admitted as observers following a reasoned request made to the Commission. The Committee elects a Chairperson and 2 Vice-Chairpersons from among its members for a period of 1 year. The Chairperson may invite any person who is specially qualified in a particular subject on the agenda to take part in the work of the Committee as an expert. The Committee is brought together by the Commission and meets at least twice a year at the Commission’s headquarters. The Committee’s discussions are based on requests for opinions made by the Commission and on those delivered on its own initiative. They are not followed by a vote. BACKGROUND Commission Decision 2008/590/EC codifies and repeals Decision 82/43/EEC which originally set up an Advisory Committee on Equal Opportunities for Women and Men and which was amended several times. For more information, see Gender equality on the European Commission's website ACT Commission Decision 2008/590/EC of 16 June 2008 relating to the setting up of an Advisory Committee on Equal Opportunities for Women and Men (Codified version) (OJ L 190, 18.7.2008, pp. 17–21) Successive amendments to Decision 2008/590/EC have been incorporated into the basic text. This consolidated version is for reference only. last update 18.01.2016


24.12.2008 EN Official Journal of the European Union L 348/98 DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals THE EUROPEAN PARLIAMENT AND 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 proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty (1), Whereas: (1) The Tampere European Council of 15 and 16 October 1999 established a coherent approach in the field of immigration and asylum, dealing together with the creation of a common asylum system, a legal immigration policy and the fight against illegal immigration. (2) The Brussels European Council of 4 and 5 November 2004 called for the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity. (3) On 4 May 2005 the Committee of Ministers of the Council of Europe adopted ‘Twenty guidelines on forced return’. (4) Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy. (5) This Directive should establish a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State. (6) Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. When using standard forms for decisions related to return, namely return decisions and, if issued, entry-ban decisions and decisions on removal, Member States should respect that principle and fully comply with all applicable provisions of this Directive. (7) The need for Community and bilateral readmission agreements with third countries to facilitate the return process is underlined. International cooperation with countries of origin at all stages of the return process is a prerequisite to achieving sustainable return. (8) It is recognised that it is legitimate for Member States to return illegally staying third-country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement. (9) In accordance with Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (2), a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force. (10) Where there are no reasons to believe that this would undermine the purpose of a return procedure, voluntary return should be preferred over forced return and a period for voluntary departure should be granted. An extension of the period for voluntary departure should be provided for when considered necessary because of the specific circumstances of an individual case. In order to promote voluntary return, Member States should provide for enhanced return assistance and counselling and make best use of the relevant funding possibilities offered under the European Return Fund. (11) A common minimum set of legal safeguards on decisions related to return should be established to guarantee effective protection of the interests of the individuals concerned. The necessary legal aid should be made available to those who lack sufficient resources. Member States should provide in their national legislation for which cases legal aid is to be considered necessary. (12) The situation of third-country nationals who are staying illegally but who cannot yet be removed should be addressed. Their basic conditions of subsistence should be defined according to national legislation. In order to be able to demonstrate their specific situation in the event of administrative controls or checks, such persons should be provided with written confirmation of their situation. Member States should enjoy wide discretion concerning the form and format of the written confirmation and should also be able to include it in decisions related to return adopted under this Directive. (13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued. Minimum safeguards for the conduct of forced return should be established, taking into account 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 (3). Member States should be able to rely on various possibilities to monitor forced return. (14) The effects of national return measures should be given a European dimension by establishing an entry ban prohibiting entry into and stay on the territory of all the Member States. The length of the entry ban should be determined with due regard to all relevant circumstances of an individual case and should not normally exceed five years. In this context, particular account should be taken of the fact that the third-country national concerned has already been the subject of more than one return decision or removal order or has entered the territory of a Member State during an entry ban. (15) It should be for the Member States to decide whether or not the review of decisions related to return implies the power for the reviewing authority or body to substitute its own decision related to the return for the earlier decision. (16) The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient. (17) Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Without prejudice to the initial apprehension by law-enforcement authorities, regulated by national legislation, detention should, as a rule, take place in specialised detention facilities. (18) Member States should have rapid access to information on entry bans issued by other Member States. This information sharing should take place in accordance with Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (4). (19) Cooperation between the institutions involved at all levels in the return process and the exchange and promotion of best practices should accompany the implementation of this Directive and provide European added value. (20) Since the objective of this Directive, namely to establish common rules concerning return, removal, use of coercive measures, detention and entry bans, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, 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 to achieve that objective. (21) Member States should implement this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinions, membership of a national minority, property, birth, disability, age or sexual orientation. (22) In line with the 1989 United Nations Convention on the Rights of the Child, the ‘best interests of the child’ should be a primary consideration of Member States when implementing this Directive. In line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, respect for family life should be a primary consideration of Member States when implementing this Directive. (23) Application of this Directive is without prejudice to the obligations resulting from the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967. (24) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. (25) 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 — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code (5) — 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 adoption of this Directive, whether it will implement it in its national law. (26) To the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code, this Directive constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with 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); moreover, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, the United Kingdom is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application. (27) To the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code, this Directive constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with 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); moreover, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, Ireland is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application. (28) As regards Iceland and Norway, this Directive constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code — a development of 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 association of those two States with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Council Decision 1999/437/EC (8) on certain arrangements for the application of that Agreement. (29) As regards Switzerland, this Directive constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code — a development of provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (9) on the conclusion, on behalf of the European Community, of that Agreement. (30) As regards Liechtenstein, this Directive constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code — a development of provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC (10) on the signature, on behalf of the European Community, and on the provisional application of, certain provisions of that Protocol, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Subject matter This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations. Article 2 Scope 1. This Directive applies to third-country nationals staying illegally on the territory of a Member State. 2. Member States may decide not to apply this Directive to third-country nationals who: (a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State; (b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. 3. This Directive shall not apply to persons enjoying the Community right of free movement as defined in Article 2(5) of the Schengen Borders Code. Article 3 Definitions For the purpose of this Directive the following definitions shall apply: 1. ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of the Schengen Borders Code; 2. ‘illegal stay’ means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State; 3. ‘return’ means the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to: — his or her country of origin, or — a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or — another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted; 4. ‘return decision’ means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return; 5. ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State; 6. ‘entry ban’ means an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision; 7. ‘risk of absconding’ means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond; 8. ‘voluntary departure’ means compliance with the obligation to return within the time-limit fixed for that purpose in the return decision; 9. ‘vulnerable persons’ means minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Article 4 More favourable provisions 1. This Directive shall be without prejudice to more favourable provisions of: (a) bilateral or multilateral agreements between the Community or the Community and its Member States and one or more third countries; (b) bilateral or multilateral agreements between one or more Member States and one or more third countries. 2. This Directive shall be without prejudice to any provision which may be more favourable for the third-country national, laid down in the Community acquis relating to immigration and asylum. 3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive. 4. With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall: (a) ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1) (b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and (b) respect the principle of non-refoulement. Article 5 Non-refoulement, best interests of the child, family life and state of health When implementing this Directive, Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned, and respect the principle of non-refoulement. CHAPTER II TERMINATION OF ILLEGAL STAY Article 6 Return decision 1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5. 2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply. 3. Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1. 4. Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay. 5. If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6. 6. This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law. Article 7 Voluntary departure 1. A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. Member States may provide in their national legislation that such a period shall be granted only following an application by the third-country national concerned. In such a case, Member States shall inform the third-country nationals concerned of the possibility of submitting such an application. The time period provided for in the first subparagraph shall not exclude the possibility for the third-country nationals concerned to leave earlier. 2. Member States shall, where necessary, extend the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links. 3. Certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure. 4. If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days. Article 8 Removal 1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7. 2. If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period. 3. Member States may adopt a separate administrative or judicial decision or act ordering the removal. 4. Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned. 5. In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC. 6. Member States shall provide for an effective forced-return monitoring system. Article 9 Postponement of removal 1. Member States shall postpone removal: (a) when it would violate the principle of non-refoulement, or (b) for as long as a suspensory effect is granted in accordance with Article 13(2). 2. Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity; (b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification. 3. If a removal is postponed as provided for in paragraphs 1 and 2, the obligations set out in Article 7(3) may be imposed on the third-country national concerned. Article 10 Return and removal of unaccompanied minors 1. Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child. 2. Before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return. Article 11 Entry ban 1. Return decisions shall be accompanied by an entry ban: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with. In other cases return decisions may be accompanied by an entry ban. 2. The length of the entry ban shall be determined with due regard to all relevant circumstances of the individual case and shall not in principle exceed five years. It may however exceed five years if the third-country national represents a serious threat to public policy, public security or national security. 3. Member States shall consider withdrawing or suspending an entry ban where a third-country national who is the subject of an entry ban issued in accordance with paragraph 1, second subparagraph, can demonstrate that he or she has left the territory of a Member State in full compliance with a return decision. Victims of trafficking in human beings who have been granted a residence permit pursuant to 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 (11) shall not be subject of an entry ban without prejudice to paragraph 1, first subparagraph, point (b), and provided that the third-country national concerned does not represent a threat to public policy, public security or national security. Member States may refrain from issuing, withdraw or suspend an entry ban in individual cases for humanitarian reasons. Member States may withdraw or suspend an entry ban in individual cases or certain categories of cases for other reasons. 4. Where a Member State is considering issuing a residence permit or other authorisation offering a right to stay to a third-country national who is the subject of an entry ban issued by another Member State, it shall first consult the Member State having issued the entry ban and shall take account of its interests in accordance with Article 25 of the Convention implementing the Schengen Agreement (12). 5. Paragraphs 1 to 4 shall apply without prejudice to the right to international protection, as defined in Article 2(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (13), in the Member States. CHAPTER III PROCEDURAL SAFEGUARDS Article 12 Form 1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences. 2. Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand. 3. Member States may decide not to apply paragraph 2 to third country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State. In such cases decisions related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under national legislation. Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned. Article 13 Remedies 1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. 3. The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance. 4. Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC. Article 14 Safeguards pending return 1. Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; (d) special needs of vulnerable persons are taken into account. 2. Member States shall provide the persons referred to in paragraph 1 with a written confirmation in accordance with national legislation that the period for voluntary departure has been extended in accordance with Article 7(2) or that the return decision will temporarily not be enforced. CHAPTER IV DETENTION FOR THE PURPOSE OF REMOVAL Article 15 Detention 1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries. Article 16 Conditions of detention 1. Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners. 2. Third-country nationals in detention shall be allowed — on request — to establish in due time contact with legal representatives, family members and competent consular authorities. 3. Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided. 4. Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation. 5. Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4. Article 17 Detention of minors and families 1. Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time. 2. Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy. 3. Minors in detention shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age, and shall have, depending on the length of their stay, access to education. 4. Unaccompanied minors shall as far as possible be provided with accommodation in institutions provided with personnel and facilities which take into account the needs of persons of their age. 5. The best interests of the child shall be a primary consideration in the context of the detention of minors pending removal. Article 18 Emergency situations 1. In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2). 2. When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist. 3. Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive. CHAPTER V FINAL PROVISIONS Article 19 Reporting The Commission shall report every three years to the European Parliament and the Council on the application of this Directive in the Member States and, if appropriate, propose amendments. The Commission shall report for the first time by 24 December 2013 and focus on that occasion in particular on the application of Article 11, Article 13(4) and Article 15 in Member States. In relation to Article 13(4) the Commission shall assess in particular the additional financial and administrative impact in Member States. Article 20 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2010. In relation to Article 13(4), Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2011. They shall forthwith communicate to the Commission the text of those measures. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 21 Relationship with the Schengen Convention This Directive replaces the provisions of Articles 23 and 24 of the Convention implementing the Schengen Agreement. Article 22 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 23 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Done at Strasbourg, 16 December 2008. For the European Parliament The President H.-G. PÖTTERING For the Council The President B. LE MAIRE (1) Opinion of the European Parliament of 18 June 2008 (not yet published in the Official Journal) and Council Decision of 9 December 2008. (2) OJ L 326, 13.12.2005, p. 13. (3) OJ L 261, 6.8.2004, p. 28. (4) OJ L 381, 28.12.2006, p. 4. (5) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). (6) OJ L 131, 1.6.2000, p. 43. (7) OJ L 64, 7.3.2002, p. 20. (8) OJ L 176, 10.7.1999, p. 31. (9) OJ L 53, 27.2.2008, p. 1. (10) OJ L 83, 26.3.2008, p. 3. (11) OJ L 261, 6.8.2004, p. 19. (12) OJ L 239, 22.9.2000, p. 19. (13) OJ L 304, 30.9.2004, p. 12.

Summary: Returning illegal immigrants — common standards and procedures Returning illegal immigrants — common standards and procedures SUMMARY OF: Directive 2008/115/EC – common standards and procedures for returning illegally staying non-EU nationals WHAT IS THE AIM OF THE DIRECTIVE? It aims to ensure the EU has an effective and humane return policy as a necessary element of a well-managed migration policy. It establishes a common set of rules for the return of non-EU nationals who do not or who no longer fulfil the conditions for entry, stay or residence within the territory of any EU country, and the related procedural safeguards, while encouraging the voluntary return of illegal immigrants. KEY POINTS Termination of illegal stay The illegal stay is terminated in a 2-step procedure: 1.firstly a ‘return decision’ which opens up a ‘voluntary departure’ period; 2.then, if necessary, a ‘removal decision’, possibly with detention, ending in ‘expulsion’. Return decision Unless there are compassionate, humanitarian or other reasons not to do so, or there is a pending procedure for renewing a residence permit, an EU country must issue a return decision to the non-EU national staying illegally on its territory. If the non-EU national has a valid residence permit or equivalent from another EU country, he/she must immediately return to that country. If another EU country takes back an illegally staying non-EU national under a bilateral agreement, that country is responsible for issuing the return decision. The return decision may allow for a period of voluntary departure of between 7 and 30 days for the illegally staying non-EU national. In certain circumstances, this period may be extended; it may also be shortened and even not granted, namely when there is a risk that the illegally staying non-EU national: will flee and thus will not be available for return; has submitted a fraudulent application; or poses a risk to public/national security. During the period of voluntary departure, certain obligations may be imposed on the non-EU national in order to prevent him/her from fleeing. An entry ban may be given together with a return decision, when no period of voluntary departure is granted or when the illegally staying non-EU national has not complied with the return decision. The duration of the entry ban is set on a case-by-case basis and may not be longer than 5 years, unless the non-EU national poses a threat to public/national security. Removal If no period is granted, or if the non-EU national has not complied with the return decision within the period granted for voluntary return, the EU country must enforce his/her removal, except in particular circumstances where the removal may be postponed. The removal of non-EU nationals must be postponed if it risks putting their lives in danger (the principle of non-refoulement*) or if the return decision has been temporarily suspended. Coercive measures that are proportionate and do not exceed reasonable force may be used only as a final solution to remove non-EU nationals. Detention for the purposes of removals Under certain conditions – and with due regard to certain safeguards including judicial review – EU countries may detain a non-EU national during the return procedure if there is a risk that he or she will flee or avoids/obstructs the preparation of return or the removal process. The detention period may not be longer than 6 months. Specialised detention facilities are to be used or, if this is not feasible, prison accommodation with separate quarters. Procedural safeguards The directive sets out a number of procedural safeguards: information for the non-EU national; their right of appeal; legal assistance and representation; linguistic assistance, if necessary. EU countries must also respect the right to family unity and provide emergency medical care, basic education to minors and pay attention to the special needs of vulnerable persons pending their voluntary return or removal. Unaccompanied minors Before deciding to issue a return decision in respect of an unaccompanied minor, assistance must be given by appropriate bodies in the best interests of the child. Before an EU country removes an unaccompanied minor from its territory, it must ensure that he or she will be returned to a member of his or her family, a nominated guardian or that appropriate reception facilities in the country of return are available. The directive seeks to limit the detention of unaccompanied minors and families and sets out appropriate detention conditions. General rules Some categories of non-EU nationals may be excluded from the scope of the directive, such as those who are apprehended in connection with illegal border crossing. EU countries must however ensure that the treatment and level of protection of those persons corresponds at least to certain of its rules on coercive measures, removal, health care and detention. In all cases, EU countries must ensure that any return of non-EU nationals does not put them in danger; take into consideration the best interests of children, family life and the health of the person concerned. To which countries does the directive apply? The directive applies to all EU countries except Ireland and the United Kingdom (1) and the following non-EU Schengen Area countries: Iceland, Liechtenstein, Norway and Switzerland. Implementation and related acts The European Commission must report every 3 years on the directive’s application in the EU countries and, if appropriate, propose amendments. Regulation (EU) 2016/1953 establishes a uniform European travel document for the return of illegally staying non-EU nationals (European travel document for return). This document is valid for a single journey up until the time of arrival in the country of return of the non-EU national subject to a return decision issued by an EU country. In 2017, the Commission published Recommendation (EU) 2017/432 to the EU countries on making returns more effective when implementing the directive, as well as a Recommendation (C(2017) 6505) establishing a common ‘Return Handbook’ to be used by EU countries when carrying out return-related tasks. It also proposed new measures on return policy in the form of a renewed Action Plan on Return and a set of recommendations to EU countries. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 13 January 2009. It had to become law in the EU countries by 24 December 2010, except for the rules on free legal assistance and/or representation for which the deadline was 24 December 2011. BACKGROUND For more information, see: Return and readmission (European Commission). KEY TERMS Refoulement: the act of forcing refugees or asylum seekers to return to a country where they are likely to face persecution MAIN DOCUMENT Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, pp. 98–107) RELATED DOCUMENTS Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States' competent authorities when carrying out return-related tasks (OJ L 339, 19.12.2017, pp. 83-159) Commission Recommendation (EU) 2017/432 of 7 March 2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council (OJ L 66, 11.3.2017, pp. 15-21) Communication from the Commission to the European Parliament and the Council on a more effective return policy in the European Union — A renewed action plan (COM(2017) 200 final, 2.3.2017) Regulation (EU) 2016/1953 of the European Parliament and of the Council of 26 October 2016 on the establishment of a European travel document for the return of illegally staying third-country nationals, and repealing the Council Recommendation of 30 November 1994 (OJ L 311, 17.11.2016, pp. 13-19) Communication from the Commission to the Council and the European Parliament on EU Return Policy (COM(2014) 199 final, 28.3.2014) last update 20.02.2018(1) The United Kingdom withdraws from the European Union and becomes a third country (non-EU country) as of 1 February 2020.


24.5.2008 EN Official Journal of the European Union L 136/3 DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matters THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 61(c) and the second indent of Article 67(5) thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Economic and Social Committee (1), Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), Whereas: (1) The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. To that end, the Community has to adopt, inter alia, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market. (2) The principle of access to justice is fundamental and, with a view to facilitating better access to justice, the European Council at its meeting in Tampere on 15 and 16 October 1999 called for alternative, extra-judicial procedures to be created by the Member States. (3) In May 2000 the Council adopted Conclusions on alternative methods of settling disputes under civil and commercial law, stating that the establishment of basic principles in this area is an essential step towards enabling the appropriate development and operation of extrajudicial procedures for the settlement of disputes in civil and commercial matters so as to simplify and improve access to justice. (4) In April 2002 the Commission presented a Green Paper on alternative dispute resolution in civil and commercial law, taking stock of the existing situation as concerns alternative dispute resolution methods in the European Union and initiating widespread consultations with Member States and interested parties on possible measures to promote the use of mediation. (5) The objective of securing better access to justice, as part of the policy of the European Union to establish an area of freedom, security and justice, should encompass access to judicial as well as extrajudicial dispute resolution methods. This Directive should contribute to the proper functioning of the internal market, in particular as concerns the availability of mediation services. (6) Mediation can provide a cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. Agreements resulting from mediation are more likely to be complied with voluntarily and are more likely to preserve an amicable and sustainable relationship between the parties. These benefits become even more pronounced in situations displaying cross-border elements. (7) In order to promote further the use of mediation and ensure that parties having recourse to mediation can rely on a predictable legal framework, it is necessary to introduce framework legislation addressing, in particular, key aspects of civil procedure. (8) The provisions of this Directive should apply only to mediation in cross-border disputes, but nothing should prevent Member States from applying such provisions also to internal mediation processes. (9) This Directive should not in any way prevent the use of modern communication technologies in the mediation process. (10) This Directive should apply to processes whereby two or more parties to a cross-border dispute attempt by themselves, on a voluntary basis, to reach an amicable agreement on the settlement of their dispute with the assistance of a mediator. It should apply in civil and commercial matters. However, it should not apply to rights and obligations on which the parties are not free to decide themselves under the relevant applicable law. Such rights and obligations are particularly frequent in family law and employment law. (11) This Directive should not apply to pre-contractual negotiations or to processes of an adjudicatory nature such as certain judicial conciliation schemes, consumer complaint schemes, arbitration and expert determination or to processes administered by persons or bodies issuing a formal recommendation, whether or not it be legally binding as to the resolution of the dispute. (12) This Directive should apply to cases where a court refers parties to mediation or in which national law prescribes mediation. Furthermore, in so far as a judge may act as a mediator under national law, this Directive should also apply to mediation conducted by a judge who is not responsible for any judicial proceedings relating to the matter or matters in dispute. This Directive should not, however, extend to attempts made by the court or judge seised to settle a dispute in the context of judicial proceedings concerning the dispute in question or to cases in which the court or judge seised requests assistance or advice from a competent person. (13) The mediation provided for in this Directive should be a voluntary process in the sense that the parties are themselves in charge of the process and may organise it as they wish and terminate it at any time. However, it should be possible under national law for the courts to set time-limits for a mediation process. Moreover, the courts should be able to draw the parties’ attention to the possibility of mediation whenever this is appropriate. (14) Nothing in this Directive should prejudice national legislation making the use of mediation compulsory or subject to incentives or sanctions provided that such legislation does not prevent parties from exercising their right of access to the judicial system. Nor should anything in this Directive prejudice existing self-regulating mediation systems in so far as these deal with aspects which are not covered by this Directive. (15) In order to provide legal certainty, this Directive should indicate which date should be relevant for determining whether or not a dispute which the parties attempt to settle through mediation is a cross-border dispute. In the absence of a written agreement, the parties should be deemed to agree to use mediation at the point in time when they take specific action to start the mediation process. (16) To ensure the necessary mutual trust with respect to confidentiality, effect on limitation and prescription periods, and recognition and enforcement of agreements resulting from mediation, Member States should encourage, by any means they consider appropriate, the training of mediators and the introduction of effective quality control mechanisms concerning the provision of mediation services. (17) Member States should define such mechanisms, which may include having recourse to market-based solutions, and should not be required to provide any funding in that respect. The mechanisms should aim at preserving the flexibility of the mediation process and the autonomy of the parties, and at ensuring that mediation is conducted in an effective, impartial and competent way. Mediators should be made aware of the existence of the European Code of Conduct for Mediators which should also be made available to the general public on the Internet. (18) In the field of consumer protection, the Commission has adopted a Recommendation (3) establishing minimum quality criteria which out-of-court bodies involved in the consensual resolution of consumer disputes should offer to their users. Any mediators or organisations coming within the scope of that Recommendation should be encouraged to respect its principles. In order to facilitate the dissemination of information concerning such bodies, the Commission should set up a database of out-of-court schemes which Member States consider as respecting the principles of that Recommendation. (19) Mediation should not be regarded as a poorer alternative to judicial proceedings in the sense that compliance with agreements resulting from mediation would depend on the good will of the parties. Member States should therefore ensure that the parties to a written agreement resulting from mediation can have the content of their agreement made enforceable. It should only be possible for a Member State to refuse to make an agreement enforceable if the content is contrary to its law, including its private international law, or if its law does not provide for the enforceability of the content of the specific agreement. This could be the case if the obligation specified in the agreement was by its nature unenforceable. (20) The content of an agreement resulting from mediation which has been made enforceable in a Member State should be recognised and declared enforceable in the other Member States in accordance with applicable Community or national law. This could, for example, be on the basis of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (4) or Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (5). (21) Regulation (EC) No 2201/2003 specifically provides that, in order to be enforceable in another Member State, agreements between the parties have to be enforceable in the Member State in which they were concluded. Consequently, if the content of an agreement resulting from mediation in a family law matter is not enforceable in the Member State where the agreement was concluded and where the request for enforceability is made, this Directive should not encourage the parties to circumvent the law of that Member State by having their agreement made enforceable in another Member State. (22) This Directive should not affect the rules in the Member States concerning enforcement of agreements resulting from mediation. (23) Confidentiality in the mediation process is important and this Directive should therefore provide for a minimum degree of compatibility of civil procedural rules with regard to how to protect the confidentiality of mediation in any subsequent civil and commercial judicial proceedings or arbitration. (24) In order to encourage the parties to use mediation, Member States should ensure that their rules on limitation and prescription periods do not prevent the parties from going to court or to arbitration if their mediation attempt fails. Member States should make sure that this result is achieved even though this Directive does not harmonise national rules on limitation and prescription periods. Provisions on limitation and prescription periods in international agreements as implemented in the Member States, for instance in the area of transport law, should not be affected by this Directive. (25) Member States should encourage the provision of information to the general public on how to contact mediators and organisations providing mediation services. They should also encourage legal practitioners to inform their clients of the possibility of mediation. (26) In accordance with point 34 of the Interinstitutional agreement on better law-making (6), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public. (27) This Directive seeks to promote the fundamental rights, and takes into account the principles, recognised in particular by the Charter of Fundamental Rights of the European Union. (28) Since the objective of this Directive cannot be sufficiently achieved by the Member States 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. (29) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Directive. (30) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to 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, HAVE ADOPTED THIS DIRECTIVE: Article 1 Objective and scope 1. The objective of this Directive is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings. 2. This Directive shall apply, in cross-border disputes, to civil and commercial matters except as regards rights and obligations which are not at the parties’ disposal under the relevant applicable law. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). 3. In this Directive, the term ‘Member State’ shall mean Member States with the exception of Denmark. Article 2 Cross-border disputes 1. For the purposes of this Directive a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Member State other than that of any other party on the date on which: (a) the parties agree to use mediation after the dispute has arisen; (b) mediation is ordered by a court; (c) an obligation to use mediation arises under national law; or (d) for the purposes of Article 5 an invitation is made to the parties. 2. Notwithstanding paragraph 1, for the purposes of Articles 7 and 8 a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation between the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident on the date referred to in paragraph 1(a), (b) or (c). 3. For the purposes of paragraphs 1 and 2, domicile shall be determined in accordance with Articles 59 and 60 of Regulation (EC) No 44/2001. Article 3 Definitions For the purposes of this Directive the following definitions shall apply: (a) ‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State. It includes mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question. (b) ‘Mediator’ means any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation. Article 4 Ensuring the quality of mediation 1. Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by mediators and organisations providing mediation services, as well as other effective quality control mechanisms concerning the provision of mediation services. 2. Member States shall encourage the initial and further training of mediators in order to ensure that the mediation is conducted in an effective, impartial and competent way in relation to the parties. Article 5 Recourse to mediation 1. A court before which an action is brought may, when appropriate and having regard to all the circumstances of the case, invite the parties to use mediation in order to settle the dispute. The court may also invite the parties to attend an information session on the use of mediation if such sessions are held and are easily available. 2. This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system. Article 6 Enforceability of agreements resulting from mediation 1. Member States shall ensure that it is possible for the parties, or for one of them with the explicit consent of the others, to request that the content of a written agreement resulting from mediation be made enforceable. The content of such an agreement shall be made enforceable unless, in the case in question, either the content of that agreement is contrary to the law of the Member State where the request is made or the law of that Member State does not provide for its enforceability. 2. The content of the agreement may be made enforceable by a court or other competent authority in a judgment or decision or in an authentic instrument in accordance with the law of the Member State where the request is made. 3. Member States shall inform the Commission of the courts or other authorities competent to receive requests in accordance with paragraphs 1 and 2. 4. Nothing in this Article shall affect the rules applicable to the recognition and enforcement in another Member State of an agreement made enforceable in accordance with paragraph 1. Article 7 Confidentiality of mediation 1. Given that mediation is intended to take place in a manner which respects confidentiality, Member States shall ensure that, unless the parties agree otherwise, neither mediators nor those involved in the administration of the mediation process shall be compelled to give evidence in civil and commercial judicial proceedings or arbitration regarding information arising out of or in connection with a mediation process, except: (a) where this is necessary for overriding considerations of public policy of the Member State concerned, in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person; or (b) where disclosure of the content of the agreement resulting from mediation is necessary in order to implement or enforce that agreement. 2. Nothing in paragraph 1 shall preclude Member States from enacting stricter measures to protect the confidentiality of mediation. Article 8 Effect of mediation on limitation and prescription periods 1. Member States shall ensure that parties who choose mediation in an attempt to settle a dispute are not subsequently prevented from initiating judicial proceedings or arbitration in relation to that dispute by the expiry of limitation or prescription periods during the mediation process. 2. Paragraph 1 shall be without prejudice to provisions on limitation or prescription periods in international agreements to which Member States are party. Article 9 Information for the general public Member States shall encourage, by any means which they consider appropriate, the availability to the general public, in particular on the Internet, of information on how to contact mediators and organisations providing mediation services. Article 10 Information on competent courts and authorities The Commission shall make publicly available, by any appropriate means, information on the competent courts or authorities communicated by the Member States pursuant to Article 6(3). Article 11 Review Not later than 21 May 2016, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive. The report shall consider the development of mediation throughout the European Union and the impact of this Directive in the Member States. If necessary, the report shall be accompanied by proposals to adapt this Directive. Article 12 Transposition 1. Member States shall bring into force the laws, regulations, and administrative provisions necessary to comply with this Directive before 21 May 2011, with the exception of Article 10, for which the date of compliance shall be 21 November 2010 at the latest. They shall forthwith inform the Commission thereof. When they are adopted by Member States, these measures 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 to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 13 Entry into force This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 14 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 21 May 2008. For the European Parliament The President H.-G. PÖTTERING For the Council The President J. LENARČIČ (1) OJ C 286, 17.11.2005, p. 1. (2) Opinion of the European Parliament of 29 March 2007 (OJ C 27 E, 31.1.2008, p. 129). Council Common Position of 28 February 2008 (not yet published in the Official Journal) and Position of the European Parliament of 23 April 2008 (not yet published in the Official Journal). (3) Commission Recommendation 2001/310/EC of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (OJ L 109, 19.4.2001, p. 56). (4) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1). (5) OJ L 338, 23.12.2003, p. 1. Regulation as amended by Regulation (EC) No 2116/2004 (OJ L 367, 14.12.2004, p. 1). (6) OJ C 321, 31.12.2003, p. 1.

Summary: Mediation in civil and commercial matters Mediation in civil and commercial matters A predictable legal framework can enable European Union (EU) citizens to benefit fully from the advantages of mediation* as a dispute resolution process, particularly in terms of cost-effectiveness and speed. ACT Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters SUMMARY WHAT DOES THE DIRECTIVE DO? The directive aims to encourage the use of alternative methods of dispute resolution, particularly the use of mediation. It seeks to ensure a balanced relationship between mediation and judicial proceedings. KEY POINTS The directive applies to cross-border disputes in civil and commercial matters. It does not extend to: revenue, customs or administrative matters; the liability of an EU country for acts and omissions in the exercise of State authority; disputes where one or more parties is domiciled or resident in Denmark. EU countries must establish a procedure allowing parties to request the confirmation of an agreement. This confirmation can be by a judgment, decision or authentic act of a court or public authority. It will allow the mutual recognition and enforcement of an agreement throughout the EU under the same conditions as those established for court decisions in civil and commercial matters and in matrimonial matters and matters of parental responsibility. Mediators* or those involved in the mediation process are not obliged to give evidence in judicial proceedings regarding information obtained during that process, except if: necessary for overriding considerations of public policy, particularly to protect the physical integrity of a person; disclosure of the content of the agreement is necessary to implement or enforce that agreement. EU countries must encourage the training of mediators as well as the development and application of voluntary codes of conduct for the profession. BACKGROUND In 2013 the EU published 2 new pieces of legislation on alternative dispute resolution: Directive 2013/11/EU on alternative dispute resolution which ensures that consumers have access to quality alternative dispute resolution (ADR) entities for all kinds of contractual disputes with traders. To ensure such access, EU countries must establish national ADR infrastructures by January 2016. Mediation is one out of several forms of ADR on which EU countries can rely for establishing that infrastructure; Regulation (EU) No 524/2013 on online dispute resolution (ODR), under which an EU-wide online platform will be set up for disputes that arise from online transactions. The platform will allow consumers to submit their disputes online and will operate in all EU official languages. It is scheduled to be accessible as of January 2016. For more information see the Alternative and Online Dispute Resolution (ADR/ODR) on the European Commission’s website. KEYWORDS * Mediation: a structured process in which 2 or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. It may be initiated by the parties or suggested or ordered by a court or prescribed by the law of an EU country. * Mediator: a third person who is asked to conduct mediation in an effective, impartial and competent way. The status or occupation of this person in the EU country concerned is not relevant, nor is the way in which the third person has been appointed or requested to conduct the mediation. REFERENCES Act Entry into force Date of transposition in the Member State Official Journal Directive 2008/52/EC 13.6.2008 21.5.2011 (Article 10: 21.11.2010) OJ L 136 of 24.5.2008, pp. 3-8 RELATED ACTS Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ L 165, 18.6.2013, pp. 63-79) Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, pp. 1-12) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Towards a European Horizontal Framework for Collective Redress (COM(2013) 401 final of 11.6.2013) last update 17.08.2015