On Wednesday 3 December, the Danish Presidency of the EU Council will submit to the representatives of the Member States a draft political agreement (‘general approach’) on the regulation on the return of persons residing illegally in the EU.
Although the aim is to reach an agreement by the time the interior ministers meet in Brussels on 8 December, it was not certain the day before that the green light would be given as early as 3 December, as certain points – such as the mandatory mutual recognition of national return decisions – remain thorny for some delegations. Some large Member States, initially opposed to this principle, could nevertheless live with the recent Danish compromises, which have delayed the arrival of this potentially mandatory recognition.
In its text of 1 December, the Presidency makes further adjustments to the agreements or arrangements that interested Member States will enter into with third countries to create ‘hubs’, to the definition and role of the judicial authorities and to the suspensive or non-suspensive nature of appeals.
With regard to mutual recognition, it had already reintroduced the obligation for Member States to complete a European return order (integrated into the SIS) as soon as a decision is taken against an illegal immigrant. Whereas the Commission wanted to introduce mandatory mutual recognition one year after the entry into force of the Pact on Migration and Asylum, the latest text states that one year after the entry into application of this Regulation (i.e. three years after its entry into force), the Commission should, on the basis of an evaluation, present, if appropriate, legislative proposals with a view to introducing mandatory recognition and enforcement of return decisions and removal orders issued by another Member State, or indicate the reasons for not making a proposal.
Guidelines have also been established to enable a national authority not to enforce a return decision issued in another Member State.
On agreements or arrangements with third countries to establish ‘hubs’, the latest text states that “deficiencies in relation to specific parts of the territory of the third country or to identifiable category of persons should not prevent the conclusions of such an agreement or arrangement, provided that sufficient guarantees are in place to ensure the full respect of the rights of the third country nationals which are concerned by such agreement or arrangement”.
The agreement or arrangement should, in particular, specify the transfer procedures applicable to return, the conditions of stay in the country, the arrangements in the event of subsequent return to the obligations of the third country of origin and the consequences in the event of breach of the agreement or arrangement. However, “where an agreement or an arrangement involves onward return from the third country, the agreement or arrangement should in addition set out the consequences in case onward return is not possible, the obligations and responsibilities of the Member State or the EU and the third country, the consequences in case or of significant changes adversely impacting the situation in the third country” and an independent monitoring body or mechanism to assess the implementation of the agreement or arrangement.
Sincere cooperation. “Where a Member State negotiates an agreement or arrangement for the purposes of this Regulation with one of the Union’s neighbouring third countries, the Member States that share a common border with that third country should, at an appropriate time before the conclusion of the agreement or arrangement, be informed of those negotiations”, in full respect of the principle of sincere cooperation.
As soon as agreements or arrangements are concluded, Member States should be required to inform the Commission and the other Member States before their provisional application or entry into force.
In addition, Member States should “be able, on a voluntary basis, to keep the Commission and other Member States informed of the progress of negotiations with a third country (...) before final agreement has been reached by the parties, including with a view to seeking the Commission’s assessment as to the compatibility of the envisaged agreement or arrangement under negotiation with Union law”.
As for the concept of judicial authority, it “should perform judicial functions and it is not decisive whether that authority is recognised as a court or tribunal under national law. This regulation should not affect Member States’ competence to organise their national court system and determine the number of instances of appeal”, the text insists.
Suspensive effect. A removal can be suspended “upon requestor or ex officio (...) unless national law already provides for provisions according to which first instance remedies have a suspensive effect”, the text states.
As regards other levels of appeal against a decision given at first instance or on appeal, “the procedure and the suspensive effect of such appeals should be regulated in national law”.
Link to text: https://aeur.eu/f/jsl (Original version in French by (Solenn Paulic)