Council of the
European Union
Brussels, 15 July 2021
(OR. en)
10858/21
Interinstitutional File:
2021/0232(NLE)
VISA 162
MIGR 148
RELEX 665
COASI 109
COMIX 386
PROPOSAL
From:
Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director
date of receipt:
15 July 2021
To:
Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council
of the European Union
No. Cion doc.:
COM(2021) 412 final
Subject:
Proposal for a COUNCIL IMPLEMENTING DECISION on the
suspension of certain provisions of Regulation (EC) 810/2009 of the
European Parliament and of the Council with respect to Bangladesh
Delegations will find attached document COM(2021) 412 final.
Encl.: COM(2021) 412 final
10858/21
RG/ml
JAI.1
EN
EUROPEAN
COMMISSION
Brussels, 15.7.2021
COM(2021) 412 final
2021/0232 (NLE)
Proposal for a
COUNCIL IMPLEMENTING DECISION
on the suspension of certain provisions of Regulation (EC) 810/2009 of the European
Parliament and of the Council with respect to Bangladesh
EN
EN
EXPLANATORY MEMORANDUM
1.
CONTEXT OF THE PROPOSAL
•
Reasons for and objectives of the proposal
Under Article 25a(2) of the Visa Code1, the Commission shall regularly assess third countries'
cooperation on readmission and report to the Council at least once a year.
The Commission adopted its assessment on 10 February 2021, based on 2019 data and
information provided by EU Member States and Schengen Associated Countries, and
transmitted the report2 to the Council.
Based on the above analysis, and taking into account the Union’s overall relations with the
third country concerned, the Commission may conclude that the given third country does not
cooperate sufficiently and that action is therefore necessary. In this context, it should be noted
that readmission of own nationals is an obligation under international law.
In case of insufficient cooperation, the Commission, in accordance with Article 25a(5), point
(a), of the Visa Code, shall submit proposal for a Council implementing decision suspending
the application of certain provisions of the Visa Code in respect of nationals of that third
country. At all times, the Commission shall continue its efforts to improve cooperation with
the third country concerned.
•
The case of Bangladesh
•
Bangladesh is an important stability provider in the region hosting 1 million
Rohingya refugees. The EU strongly commends Bangladesh for this commitment
and will continue to support Bangladesh to address this ongoing humanitarian crisis.
On 20 September 2017 a readmission business routine was established between the EU and
Bangladesh in the form of Standard Operating Procedures for the Identification and Return of
Persons without an Authorisation to Stay (SOPs). However, the Commission noted in the
above-mentioned report that two-thirds of the Member States that interacted with Bangladesh
on readmission were confronted with practices deviating from the provisions in the SOPs,
hampering all phases of the return process. Half of the Member States concerned experience
that the identification processes, including through interviews and the issuance of the travel
documents, are delayed, discontinued or not performed. Seven Member States assessed the
cooperation in the identification procedure as poor or very poor. Seven Member States noted
that the Bangladeshi authorities mostly request interviews even in cases where sufficient
evidence to establish nationality has been provided (e.g. valid or expired travel documents)
which effectively delays the issuance of travel documents. The same seven Member States
experienced that the travel documents are rarely issued in a timely manner. Two Member
States have not received any travel document at all despite requests for it.
This assessment is further corroborated by developments after 2019 when, despite repeated
contacts with the Bangladeshi authorities, the cooperation did not improve. Despite the launch
in November 2020 of the electronic platform designed to support the readmission process
between EU Member States and Bangladesh (Returnee Case Management System - RCMS),
1
Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009
establishing a Community Code on Visas (Visa Code), OJ L 243, 15.9.2009, p. 1.
2
COM(2021 55 final (EU Restricted).
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the Bangladeshi response to readmission requests and issuing travel documents within the
agreed timeframe remain unsatisfactory.
The Commission has taken steps to improve readmission cooperation in 2020, including in
meetings with the Bangladeshi Embassy in Brussels in October 2020, to stress the need to
improve the response time and address the significant backlog of pending cases, and in May
2021, to present the mechanism of Article 25a of the Visa Code, describe the possible
consequences in case of insufficient cooperation and present the expected actions to be taken
to improve cooperation on readmission. The last Joint Working Group (JWG) established
under the above-mentioned SOPs took place on 21 June 2021, during which the same issues
were raised.
The EU has repeatedly emphasised to the Bangladeshi authorities the increasing level of
dissatisfaction among Member States, the possible consequences of failing to improve the
situation and the specific aspects of cooperation that needed improvement and expected
results.
During the last meeting of the Joint Working Group of 21 June 2021, the Bangladeshi
authorities reconfirmed their commitment to the Standard Operating Procedures and assured
to prioritise the backlog of cases (including those submitted in the RCMS) and to improve the
timing of identification and the delivery of travel documents and cooperate on return
operations.
•
Bangladesh has recently confirmed its commitment to implement the Standard
Operating Procedures (SOPs) on the returns of irregular migrants. The 5th Joint
Working Group on SOPs on 21 June 2021 recognised that Bangladesh has started to
make progress in addressing the backlog of readmission cases. The Commission will
monitor this progress to assess whether it is substantial and sustained.
The Bangladeshi commitments have concretely translated, over the months of May and June
2021 into an identification mission to one Member State3 and the processing of a noticeable
number of backlog cases in the RCMS, some of which were finalised with issuance of travel
documents4. These steps have not yet been consolidated in concrete substantial results and
sustained cooperation according to the indicators set out in Article 25a(2), including in the
timely identification of persons illegally staying on the territory of the Member States, the
issuance of travel documents and the organisation of return operations.
On that basis, considering the steps taken so far by the Commission to improve the level of
cooperation, and taking into account the EU’s overall relations with Bangladesh (see below),
it is considered that Bangladesh’s cooperation with the EU on readmission matters is not yet
sufficient and that action is therefore needed.
•
The Union’s overall relations with Bangladesh
The Union’s relations with Bangladesh are guided by the EU-Bangladesh Co-operation
Agreement that was concluded in 2001. The EU is an important trading partner for
3
An identification mission to Malta took place between 10 and 15 June 2021 to determine the nationality
of roughly 160 potential Bangladesh nationals, including 91 that were submitted to the RCMS.
4
The Bangladeshi authorities are currently addressing the backlog of cases: As of 13 July 2021, out of
approximately 1500 cases submitted by Member States in the RCMS, the identification process was
finalised for 195 cases and some travel documents have been issued. For another 100 cases,
identification was inconclusive in Bangladesh and will require identification interviews in the
Bangladeshi embassies to the EU Member States. For 200 additional cases, identification results are in
the internal approval chain in Bangladesh.
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Bangladesh. Cooperation on migration is comprehensive and covers support for protection-
related actions in relation to the Rohingya refugees, capacity building laying the ground for
improved migration management in Bangladesh, anti-migrant smuggling actions and
providing sustainable reintegration. In 2017, the EU-Bangladesh Standard Operating
Procedures for the Identification and Return of Persons Without an Authorization to Stay
(SOPs) started to apply with regular meetings of the Joint Working Group established under
this SOPs arrangement.
•
The visa measures
Scope of measures
The Council implementing decision should temporarily suspend the application of certain
provisions of the Visa Code in respect of Bangladeshi nationals. The suspension, however,
does not apply to family members of (mobile) EU citizens covered by the Directive
2004/38/EC5 and of third country nationals enjoying a right of free movement equivalent to
that of Union citizens under an agreement between the Union and its Member States on the
one hand and the third countries concerned on the other.
Content of the visa measures
Bangladesh’ failure to cooperate on readmission justifies the activation of all the measures set
out in point(a) of Article 25a(5) of the Visa Code: suspension of the possibility of waiving
requirements with regard to the documentary evidence to be submitted by visa applicants
referred to in Article 14(6), suspension of the general 15 calendar days processing period
referred to in Article 23(1) (which as a consequence also excludes the application of the rule
on the extension of this period up to a maximum of 45 days in individual cases), suspension
of the issuing of multiple entry visas (MEVs) in accordance with Article 24(2) and (2c) and,
suspension of the optional visa fee waiver for holders of diplomatic and service passports in
accordance with point (b) of Article 16(5).
Period of application of the visa measures
The Visa Code stipulates that the visa measures shall apply temporarily but there is no
obligation to indicate a specific period of application of those measures in the implementing
decision. However, under Article 25a(6) the Commission shall continuously assess progress
in readmission cooperation, on the basis of the indicators set out in Article 25a(2), including
in the timely identification of persons illegally staying on the territory of the Member States,
the issuance of travel documents and the organisation of return operations. The Commission
shall report whether substantial and sustained improvement in the cooperation with the third
country concerned on readmission can be established and, taking also account of the Union's
overall relations with that third country, may submit a proposal to the Council to repeal or
amend the implementing decision. If, by contrast, the visa measures in accordance with the
implementing decision have proven ineffective, it should be considered to trigger the second
stage of the mechanism ( provided for by Article 25a(5), point (b)).
In addition, pursuant to Article 25a(7), the Commission shall - at the latest six months after
the entry into force of the implementing decision - report to the European Parliament and to
the Council on the progress achieved in the given third country’s cooperation on readmission.
5
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of
citizens of the Union and their family members to move and reside freely within the territory of the
Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC (OJ L 158, 30.4.2004, p. 77).
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•
Consistency with existing policy provisions in the policy area
The proposed decision is consistent with the set of harmonised rules of the common visa
policy governing the procedures and conditions for issuing visas for intended stays on the
territory of the Member States not exceeding 90 days in any 180-day period.
•
Consistency with other Union policies
The EU promotes a comprehensive approach on migration and forced displacement, based on
shared values and responsibilities. The New Pact on Migration and Asylum foresees
developing and deepening tailor-made comprehensive and balanced partnerships to foster co-
operation on all relevant aspects:
–
Providing protection to those in need of protection and support to host countries and
communities;
–
Building economic opportunities and addressing the root causes of irregular
migration and forced displacement;
–
Supporting partners to strengthen migration governance and management;
–
Fostering co-operation on return and readmission;
–
Developing legal pathways to Europe.
The cooperation between Member States and third countries on the readmission of illegally
staying third country nationals is an important element of this policy. To reinforce such
comprehensive partnerships and ensure full cooperation from third countries, the EU needs to
mobilise all available tools, including development co-operation, trade or visa.
2.
LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
•
Legal basis
Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009
establishing a Community Code on Visas (Visa Code), Article 25a(5), point (a).
•
Subsidiarity (for non-exclusive competence)
n.a.
•
Proportionality
The proposed measures, the purpose of which is to stimulate Bangladesh to improve its
cooperation on the readmission of illegally staying third country nationals are proportionate to
the objective pursued. These measures do not affect the possibility for the applicant to apply
for and be granted visas, as such, but cover certain aspects of the procedure for issuing the
visa or the level of the visa fee.
3.
RESULTS
OF
EX-POST
EVALUATIONS,
STAKEHOLDER
CONSULTATIONS AND IMPACT ASSESSMENTS
•
Ex-post evaluations/fitness checks of existing legislation
n.a.
•
Stakeholder consultations
n.a.
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•
Collection and use of expertise
n.a.
•
Impact assessment
n.a.
•
Regulatory fitness and simplification
n.a.
•
Fundamental rights
The proposed measures do not affect the possibility to apply for and be granted visas and
respect the fundamental rights of applicants, in particular the respect for family life.
4.
BUDGETARY IMPLICATIONS
n.a.
5.
OTHER ELEMENTS
•
Implementation plans and monitoring, evaluation and reporting arrangements
n.a.
•
Explanatory documents (for directives)
n.a.
•
Detailed explanation of the specific provisions of the proposal
n.a.
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2021/0232 (NLE)
Proposal for a
COUNCIL IMPLEMENTING DECISION
on the suspension of certain provisions of Regulation (EC) 810/2009 of the European
Parliament and of the Council with respect to Bangladesh
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EC) No 810/2009 of the European Parliament and of the
Council of 13 July 2009 establishing a community Code on Visas (Visa Code)6, and in
particular Article 25a(5), point (a), thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1)
The Member States face unpredictable cooperation hampering all phases of the return
process, despite arrangements having been agreed between the Union and Bangladeshi
authorities. This has led to a considerable backlog of readmission requests remaining
without response.
(2)
Since 2019, the Commission has taken steps to improve Bangladesh’s level of
cooperation on the readmission of illegally staying third-country nationals. These steps
consisted of several meetings organised by the Commission with the Bangladeshi
authorities at both technical and political level to find mutually agreeable solutions,
while taking into account the overall relations between the EU and Bangladesh, and to
agree on further support projects to the benefit of Bangladesh. The issues were also
raised as part of other meetings organised by the EEAS.
(3)
While initial progress has been made by Bangladesh, taking into account the steps
taken, so far by the Commission to improve the level of cooperation and the Union’s
overall relations with Bangladesh, it is considered that Bangladesh’s cooperation with
the Union on readmission matters is not sufficient and that action should be taken.
(4)
The application of certain provisions of Regulation (EC) No 810/2009 should
therefore be temporarily suspended for nationals of Bangladesh. This is considered
the most efficient action to take in view of stimulating the Bangladeshi authorities to
undertake the necessary actions to improve cooperation on readmission matters. The
temporary suspension does not apply to nationals of Bangladesh applying for a visa
and who are family members of a Union citizen to whom Directive 2004/38/EC
applies or of a national of a third country enjoying a right of free movement equivalent
to that of Union citizens under an agreement between the Union and its Member States
on the one hand and a third country on the other.
(5)
The measures temporarily suspended are set out in point(a) of Article 25a(5) of the
Visa Code: suspension of the possibility of waiving requirements with regard to the
documentary evidence to be submitted by visa applicants referred to in Article 14(6),
6
OJ L 243, 15.9.2009, p. 1.
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suspension of the general 15 calendar days processing period referred to in Article
23(1) (which as a consequence also excludes the application of the rule on the
extension of this period up to a maximum of 45 days in individual cases), suspension
of the issuing of multiple entry visas (MEVs) in accordance with Article 24(2) and
(2c) and, suspension of the optional visa fee waiver for holders of diplomatic and
service passports in accordance with point (b) of Article 16(5).
(6)
Article 21(1) of the Treaty on the Functioning of the European Union provides that
every citizen of the Union has the right to move and reside freely within the territory
of the Member States, subject to the limitations and conditions laid down in the
Treaties and by the measures adopted to give them effect. Directive 2004/38/EC of the
European Parliament and of the Council7 gives effect to those limitations and
conditions. This Decision does not affect the application of that Directive, which
extends the right of free movement to family members independent of their nationality
when joining or accompanying the Union citizen. This Decision thus does not apply to
family members of a Union citizen to whom Directive 2004/38/EC applies or of a
national of a third country enjoying a right of free movement equivalent to that of
Union citizens under an agreement between the Union and its Member States on the
one hand and a third country on the other.
(7)
Given that Denmark decided to implement Regulation (EC) No 810/2009 which builds
on the Schengen acquis in its national law, in accordance with Article 4 of Protocol
(No 22) on the position of Denmark, annexed to the Treaty on the European Union and
to the Treaty on the Functioning of the European Union, Denmark is bound under
international law to implement this Decision.
(8)
This Decision constitutes a development of provisions of the Schengen acquis in
which Ireland does not take part, in accordance with Council Decision 2002/192/EC8;
Ireland is therefore not taking part in the adoption of this Decision and is not bound by
it or subject to its application.
(9)
As regards Iceland and Norway, this Decision constitutes 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 latters’ association with the implementation, application and
development of the Schengen
acquis which fall within the area referred to in Article 1,
point B of Council Decision 1999/437/EC9.
(10) As regards Switzerland, this Decision constitutes a development of the 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
7
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of
citizens of the Union and their family members to move and reside freely within the territory of the
Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC (OJ L 158, 30.4.2004, p. 77).
8
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 (OJ L 64, 7.3.2002, p. 20).
9
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application 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 (OJ L 176, 10.7.1999, p. 31).
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the Schengen
acquis10 which fall within the area referred to in Article 1, point B of
Decision 1999/437/EC read in conjunction with Article 3 of Decision 2008/146/EC11.
(11) As regards Liechtenstein, this Decision constitutes a development of the 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
acquis12 which fall within the area referred to in
Article 1, point B of Decision 1999/437/EC read in conjunction with Article 3 of
Decision 2011/350/EU13.
(12) This Decision constitutes an act building upon, or otherwise relating to, the Schengen
acquis within, respectively, the meaning of Article 3(2) of the 2003 Act of Accession,
Article 4(2) of the 2005 Act of Accession and Article 4(2) of the 2011 Act of
Accession.
HAS ADOPTED THIS DECISION:
Article 1
Scope
1.
This Decision shall apply to nationals of Bangladesh who are subject to the visa
requirement pursuant to Regulation (EU) 2018/1806 of the European Parliament and
of the Council14.
2.
It does not apply to nationals of Bangladesh who are exempt from the visa
requirement under Article 4 or Article 6 of that Regulation.
3.
This Decision does not apply to nationals of Bangladesh applying for a visa and who
are family members of a Union citizen to whom Directive 2004/38/EC applies or of a
national of a third country enjoying a right of free movement equivalent to that of
Union citizens under an agreement between the Union and its Member States on the
one hand and a third country on the other.
10
OJ L 53, 27.2.2008, p. 52.
11
Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European
Community, 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 (OJ L 53, 27.2.2008, p. 1).
12
OJ L 160, 18.6.2011, p. 21.
13
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union,
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, relating to the abolition of checks at internal borders and movement of persons (OJ L 160,
18.6.2011, p. 19).
14
Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018
listing the third countries whose nationals must be in possession of visas when crossing the external
borders and those whose nationals are exempt from that requirement (codification) (OJ L 303,
28.11.2018, p. 39).
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Article 2
Temporary suspension of the application of certain provisions of Regulation (EC) No
810/2009
The application of the following provisions of Regulation (EC) No 810/2009 shall be
temporarily suspended:
(a)
Article 14(6);
(b)
Article 16(5), point (b);
(c)
Article 23(1);
(d)
Article 24(2) and (2c).
Article 3
Addressees
This Decision is addressed to the Kingdom of Belgium, the Republic of Bulgaria, the Czech
Republic, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic,
the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the
Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of
Luxembourg, Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic
of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of
Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden.
Done at Brussels,
For the Council
The President
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Document Outline