QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE: CARRIERS LIABILITY OF 28 JUNE 2001 IN THE NETHERLANDS

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1 QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE: CARRIERS LIABILITY OF 28 JUNE 2001 IN THE NETHERLANDS by Drs. Sophie Scholten and Dr. Karin Zwaan Junior researcher / Researcher S.Scholten@jur.ru.nl / K.Zwaan@jur.ru.nl 12 November 2007 FIRST PART 1. NORMS OF TRANSPOSITION AND JURISPRUDENCE Q.1.A. Identify the MAIN (because of its content) norm(s) of transposition and indicate its legal nature This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) About legal nature in the table below: legislative refers to a norm adopted in principle by the Parliament; regulation refers to a norm complementing the law and adopted in principle by the executive power; circular or instructions refer to practical rules about implementation of laws and regulations and adopted in principle by the administrative authorities Please duplicate the table below if there is more than one MAIN norm of transposition This table is about: * a text already adopted a text which is still a project to be adopted TITLE: Law of 13 may 2004 to amend the Aliens Act 2000 to Directive 2001/51/EC of the Council of the European Union of 28 June 2001 to supplement the provisions of article 26 of the Convention Implementing the Schengen Agreement. Wet van 13 mei 2004 tot aanpassing van de Vreemdelingenwet 2000 aan richtlijn 2001/51/EG van de Raad van de Europese Unie van 28 juni 2001 tot aanvulling van het bepaalde in artikel 26 van de Overeenkomst ter uitvoering van het Akkoord van Schengen van 14 juni DATE: 13 May 2004 NUMBER: 212 1

2 DATE OF ENTRY INTO FORCE: 15 September 2004 PROVISIONS CONCERNED Directive 2001/51/EC REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Official Journal 2004, May 2004 LEGAL NATURE (indicate a cross in the correct box): * LEGISLATIVE: REGULATION: CIRCULAR or INSTRUCTIONS: Q.1.B. List the others norms of transposition by order of importance of their legal nature (first laws, secondly regulations; thirdly circulars or instructions): This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) Please use one table per norm and duplicate as much as necessary TITLE: Decision of 31 August 2004 to amend the Aliens Decree 2000 to Directive 2001/51 of the Council of the European Union of 28 June 2001 to supplement the provisions of article 26 of the Convention Implementing the Schengen Agreement. Besluit van 31 augustus 2004 tot aanpassing van het Vreemdelingenbesluit 2000 aan richtlijn 2001/51/EG van de Raad van de Europese Unie van 28 juni 2001 tot aanvulling van het bepaalde in artikel 26 van de Overeenkomst ter uitvoering van het Akkoord van Schengen van 14 juni DATE: 31 August 2004 NUMBER: 440 DATE OF ENTRY INTO FORCE: 15 September 2004 PROVISIONS CONCERNED : Directive 2001/51/EC REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Official Journal 2004, September 2004 LEGAL NATURE (indicate a cross in the right box): LEGISLATIVE * REGULATION CIRCULAR OR INSTRUCTIONS Q.2. THIS QUESTION IS IN PRINCIPLE ONLY FOR FEDERAL OR ASSIMILATED MEMBER STATES LIKE AUSTRIA, BELGIUM, GERMANY, ITALY, SPAIN 2

3 Q.2.A. Explain which level of government is competent to adopt the norms of transposition. Please include your answer in the tables below LEGISLATIVE RULES COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: REGULATIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: CIRCULAR OR INSTRUCTIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: Q.2.B. In case, explain if the federal structure and the distribution of competences between the different levels pose any problem or difficulty regarding the transposition and/or the implementation of the directive. Q.3. Explain which authorities are competent for the practical implementation of the norm of transposition by taking the decisions in individual cases. Please use one table per competence concerned and duplicate it if necessary COMPETENCE Prosecution of carriers / sanctioning CONCERNED: CENTRAL MINISTRY OF: Ministry of Justice DIRECTION OR SERVICE WITHIN Public Prosecutors Office THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) 3

4 COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) Border control / Reporting carriers / escorting aliens that will be re-transported Ministry of Defence (and the Ministry of Justice and Ministry of Interior and Kingdom Relations.) KMar / MTV (Dutch Border Police) The Marechaussee is subordinate to the Ministry of Defence, however they also work for the Ministry of Justice and The Ministry of Interior and Kingdom Relations. Concerning the border control functions the KMar is subordinated to the Immigration and Naturalisation Service (IND). COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) Border control Ministry of Justice IND (Immigration and Naturalisation Service) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: Sea Border control Zeehaven politie: the Rotterdam-Rijnmond Seaport Police is part of the regional police force Rotterdam Rijnmond which is subordinate to the Ministry of Interior and Kingdom Relations. 4

5 OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) Concerning the border control functions the Zeehaven politie is subordinated to the IND Rotterdam-Rijnmond Seaport Police and KMar are accountable to the IND in border control tasks. Q.4. A. Has the main regulation foreseen explicitly by the main norm of transposition already been adopted or not: * YES NO Q.4.B. If the main norm(s) of transposition foresees the adoption of one or several regulations, indicate if they have all been adopted: * YES NO If NO, please indicate the missing text(s) in the table below Please use one line per missing text and duplicate it if necessary MISSING TEXTS INDICATE HERE THE MISSING TEXTS Add if necessary some explanations (specify in particular if the missing texts are at least under preparation or foreseen in the very near future): 5

6 SECOND PART 2. INDIVIDUAL PROVISIONS OF THE DIRECTIVE Q.5. Necessary steps to ensure that the obligation of carriers to return third country nationals (Art. 26 (1)(a) of the Schengen Convention) applies when entry is refused to a third country national in transit (see Art. 2, which is a mandatory provision) Q.5.A. Has the existing legislation providing for a carrier obligation to return been amended? (Please keep in mind that this question is about explicit changes, not about a mere change in the interpretation of already existing legislation. The term Legislation includes regulations in connexion with this question) Yes * No; According to the Dutch government (TK , no. 3, p. 1) article 2 of the Directive does not supplement but rather clarify the retransportation duty of the carrier stipulated in article 26 of the Convention Implementing the Schengen Agreement. In the view of the government, the Dutch Aliens Act already complied with these provisions. According to Dutch government the practice would remain the same. Q.5.B. If yes, please specify Q.5.C. Have administrative practices been changed? Yes * No Q.5.D. If yes, please specify Q.6. Necessary measures to oblige carriers which are unable to effect the return of a third country national whose entry is refused to find means of onward transportation and to bear the costs thereof or assume responsibility for the costs (see Art. 3, which is a mandatory provision) Q.6.A. Have legislative provisions stipulating the obligations or responsibilities of carriers been adopted? * Yes 6

7 No Q.6.B. If yes, please specify The existing legislation at the time, before the transposition of Directive 2001/51/EC, already included a re-transportation duty for the carrier through article 65 Aliens Act The amendment to the Aliens Act 2000 following the transposition of Directive 2001/51/EC (OJ 2004, 212) added the duty for the carrier to find if necessary an alternative means of re-transportation in order to re-transport the alien. Further, article 65(2) Aliens Act 2000 already provided a possibility to recoup the costs of expulsion from the carrier, in case the carrier was not able to re-transport the passenger to a place outside the Netherlands within reasonable time. These cost entailed the transportation of the alien to a place outside the Netherlands at the first, yet - under circumstances - cheapest possibility, and the costs of guiding the alien to a place of departure and to a place outside the Netherlands, if necessary. With the transposition of Directive 2001/51, also the costs of the stay/accommodation of the alien in the Netherlands, during the time after the carrier has received instructions of an official responsible for border control to re-transport the alien to a place outside the Netherlands, could also be claimed from the carrier by amending article 6.3 Aliens Decree. (OJ 2004, 440). Concerning recovering the costs of expulsion from the carrier, there is a discrepancy between the wording used in the Directive and in article 65 Aliens Act In the Directive it is stipulated that the carrier should find means of onward transportation immediately and to bear the cost thereof in case it is unable to effect the return of a third-country national whose entry is refused. Through article 65 (2) Aa2000, the costs of expulsion can be recouped from the carrier in case it is not possible to expel the alien within reasonable time. According to the Dutch Minister of Aliens Affairs and Integration, these words will have in practice the same meaning (TK , no. 3, p. 4) According to the Minister both immediately and within reasonable time will in most instances mean: with the first possible flight. The intention is to expel the alien with the return flight of the aircraft with which he had arrived. The Minister adds that the concepts immediately and within reasonable time should not be explained in such a way that it would put a disproportionate burden on the carrier. (what is meant with disproportionate remains unclear). In practice, the Minster argues, both concepts can only be explained as as soon as can be expected of the carrier. Q.6.C. Have administrative measures of control and enforcement of the carrier obligations under Art. 2 and 3 been taken? If so, please specify and describe control and supervision measures and enforcement sanctions It is unclear what administrative changes have occurred resulting from the fact that now also the costs of stay and accommodation of the alien can be recovered from the carrier, no information was received from the Ministry of Justice. No further changes have been made as a consequence of Directive 2001/51. Officers in charge of border control and officers in charge of aliens supervision are responsible for the detection of carriers that are acting against 7

8 their obligations under the Aliens Act Officers in charge of border control are (see article 46 Aliens Act 2000) officials of the Dutch Royal Marechaussee (KMar), that is the military police, and officials of the regional police force Rotterdam-Rijnmond who are in charge of border control in the Rotterdam harbour a Schengen external border. Officers in charge of alien supervision (art 47 Aliens Act) are police officers assigned with executive tasks, officials of the KMar, and special officers designated by the Minister for Aliens Affairs and Integration (so called BOAs) (article 4.1 Aliens Regulation 2000). Q.7. Penalties Q.7.A. Have maximum or minimum penalties applicable to carriers under Art. 26(2) and (3) of the Schengen Convention been introduced in legislation? (see Art. 4, which provides for minimum amounts to be foreseen, but gives the Member States the freedom to adopt even stricter provisions) * Yes (please provide exact amounts below) Maximum Amount (in Euro for each person carried): 16,750 The Netherlands: 3.00 EUR 1, 16,750 EUR Due to transposition of the Schengen Implementing Convention penalties had to be introduced to sanction carriers acting in breach of their duty of due care. The Schengen Implementing Convention did not explicitly prescribe an obligation for states to impose penal sanctions on carriers; contracting parties were free in choosing the kind of penalty they would impose, whether this would be a civil penalty, administrative, penal or other kind of penalty. The Dutch state chose a penal sanction, reasoning that it would fit within the existing system of legislation in which carriers were already liable for the retransportation of undocumented passengers back to the country of origin or to a country in which their admission is secured. 2 The Dutch Penal Code works with a system of fines which is divided in categories of maximum fines. Penal sanctions for carriers were already provided for under the Aliens Act 2000, due to the transposition of the Schengen Implementing Convention. The existing fines had to be adjusted to comply with Directive 2001/51/EC, and were subsequently raised from the second to the fourth category of the system of fines. This meant a rise of the maximum sanction from 2,250 to a maximum of 11,250. Every two years these categories of criminal sanctions are evaluated and adjusted. The latest adjustment was carried through on February 1 st 2006; raising the amount of the sanctions in the fourth category to a maximum of 16,750. These fines apply to carriers acting in breach of article 4 Aliens Act 2000, who have transported undocumented or improperly documented migrants to the territory or who have 1 The minimum amount of a fine in the Netherlands is always 3.00 EUR. 2 Strijard, 1994, p. 92. See TK , , B, p. 12 and pp

9 not provided a transcript of passengers documents while they were obliged to do so. Fines that can be imposed on carriers for not fulfilling the retransportation duty are of the second category with a maximum amount of 3,350. With regard to these sanctions it should be remarked that, although the fine can be of a maximum of 16,750, in practice a transaction will be offered to the offender by the prosecutor s office. A first offender will be offered a transaction of 3,000 which will be raised to 3,600 in court; in case of a onetime recidivism this will be raised to a transaction of 4500 ( 5,000 in court) and in case of multiple recidivisms to 6,000 ( 7,000 in court). So although the system of penal sanctions works with maximum fines, in practice by offering offenders transactions the Prosecutor s office operates a system of minimum sanctions. Minimum Amount (in Euro for each person carried): 3 euro; the minimum amount of a fine in the Netherlands is always 3. Maximum Amount if penalty is imposed as a lump sum irrespective of the number of persons carried (in Euro): No Q.7.B. How is the provision of Art. 4(2) ( without prejudice to Member States obligations ) interpreted in your country? NB: The wording of Art. 4 (2) is ambiguous and may therefore lead to different interpretations. This problem may be more or less virulent and the different language versions of the directive. Art. 4 (2) may be interpreted as indicating that if a Member State is obliged not to refuse entry to persons seeking international protection, financial sanctions must not be imposed upon carriers who have transported these refugees, but it may as well be interpreted to the contrary way as indicating that carrier obligations apply regardless of an asylum seeker s entitlement to a temporary residence right during the asylum procedure or regardless of recognition as an asylum seeker. Please make clear which interpretation is applied in your Member State or if the provision is interpreted even differently. In the Netherlands the provision of article 4(2) is interpreted so that financial sanctions must not be imposed upon carriers who have transported persons who are granted asylum status. Under certain conditions however, carriers can also be exempted from charges in case the person is only seeking but not granted asylum. The way carriers should deal with undocumented passengers who claim to be in danger is specified in the Aliens Circular 2000 (A2/ Vc 2000) in paragraph It is stipulated that, in case a carrier comes across a passenger without (proper) documentation during a pre-boarding check, he should, in principle, not carry that passenger. If the passenger indicates that his or her life 9

10 is in immediate danger in the country of which he wants to depart at that time, the carrier cannot send him/her to the Dutch diplomatic representation since it is not possible to apply for asylum at a diplomatic post abroad (C2/2.14 Vc 2000). The carrier therefore should, in case he does consider carrying the alien, contact the Immigration and Naturalisation Service (IND). The chief officer at the IND will then determine whether the alien concerned, even though he is not in possession of the proper travel documents, can be carried to the Netherlands. When a carrier has brought an alien, who is not adequately documented to Dutch territory, but has done so with the permission of the IND, that carrier will not be liable to the obligation to re-transport and there will be no charge for acting in breach of article 4 Aliens Act The carrier should in such cases make sure to adequately record the facts and circumstances, as they where presented to the IND officer. The guidelines for carriers stipulate that a passenger without proper documentation should in principle not be carried. It is up to the airline to decide whether or not to deviate from this policy and contact the IND in the Netherlands. The question is whether airlines make use of this possibility, since time is limited on busy airports, and carriers might have other priorities. The policy described above is implemented through the Aliens Circular. In case the carrier has brought in an improperly documented passenger (without contacting an IND officer in the Netherlands), he can apply to some exculpatory provisions, these are not implemented through the Aliens Law or Decree nor through the Aliens Circular but are described in the Guideline concerning criminal proceedings in the criminal liability for the transportation of undocumented or inadequately documented aliens (OJ 2005, 238, p ; see also TK , , B, p and TK , , no. 6.). It can be possible that the carrier will transport a passenger even though (proper) documentation is missing because the account that the asylum seeker has given about being in immediate danger was deemed credible by the carrier s personnel. The carrier should in such cases convince the Public Prosecutor s Office that there are reasons not to prosecute the carrier (strafuitsluitingsgrond). When in such a case the undocumented passenger claims asylum and an asylum status is granted, the carrier will not be fined due to justifiable emergency ; by acting in breach of the Dutch Aliens Law the carrier has served a higher purpose which is the protection of the refugee. In this case the carrier will not be criminally prosecuted. In the case that the account of the asylum seeker has, in the eyes of the Dutch authorities, indeed been an objectively plausible account, but no asylum status is granted, the carrier can appeal to the exclusion of prosecution on the grounds of a forgivable mistake (verschoonbare dwaling) and on that ground he will not be liable to punishment. 3 With this regulation the Dutch authorities want to make clear that the carrier will not be completely responsible for the assessment whether or not the alien is in need of protection (See among others TK , , no. 6, p. 16 and , , no. 7, p. 92.). However in practice it seems that with this policy in carriers some cases are 3 The carrier can in this case call upon a situation of putative emergency. 10

11 made responsible for assessing whether or not an asylum seeker s account is objectively credible. The carrier is criminally accountable if an asylum request is deemed not successful and the carrier should have realised that there would be an considerable chance that this would be the case. (TK , , no. 8, p. 8.) The asylum seeker s account must fulfil certain essential intrinsic criteria in order for the carrier to appeal to the exculpatory provisions by which he can be excluded from a penal sanction. Apparently the carrier is made responsible to judge an asylum seeker s account during boarding to see if it fulfils these criteria. With regard to these exculpatory provisions stipulated in the Public Prosecutor s Guideline one can question what the status of these guideline are compared to implementation in law, regulation or circular. Secondly, it has not become clear if in practice carriers successfully use the exculpatory provisions no comments were received from the Ministry of Justice. The question with regard to passengers without proper documentation who claim to be in danger, is firstly, whether a private carrier is able to judge asylum seekers accounts. And secondly, the question is whether a commercial organisation will risk the costs of re-transportation, the costs of stay of the alien and possibly a fine or if it will choose to stay on the safe side and refuse the passenger without further ado to avoid liability. The provision of article 4(2) only applies to the situation of financial penalties being imposed. The obligation to re-transport the passenger will be temporarily suspended pending the assessment of an asylum claim. Since the suspension of this obligation to re-transport is only temporary (unless protection is granted), a claim for re-transportation will be laid with the carrier regardless of whether the person refused entry will claim asylum in the Netherlands. (A2/7 Vc 2000) Q.8. Have other measures like immobilisation, seizure and confiscation been adopted or retained in your country? (see Art. 5, which is an optional provision and gives the Member States the freedom to adopt additional provisions with regard to sanctions) Yes; * No: there is no separate policy concerning this. However, the Penal Code works with a system of fines which is divided into categories. A fine in the fourth category means a carrier can be imposed a fine with a maximum amount of 16,750, instead of a fine also a prison sentence of up to six months can be imposed. This has not yet happened. It is not exactly clear who would be imprisoned in such a case, since the carrier is in most cases a corporate body. Q.9. Does your Member State apply a policy according to which carriers will not be subject to sanctions if they can prove that they have complied with best practices, a memorandum of understanding between the transport industry and the administration, handbooks of due diligence or other 11

12 codes of conduct? (This possibility is not explicitly foreseen in the directive but is a big issue in the discussions about the system of carriers liability) * Yes: No If yes, please specify! This only applies to the Dutch Royal Airline: KLM. In 2000 a MOU was signed between the State Secretary of justice and the biggest Dutch Airline KLM. 24 January This MOU came into force on 1 April 2000 (TK , , Annex to no. 502 (Memorandum of Understanding). According to the text of the memorandum, the intention of the MOU was to achieve the goals of the legislation as much as this is reasonably possible. In the MOU (preamble) the State Secretary and KLM acknowledge that a burden rests on the transporter. The agreement was signed in order to regulate the compliance with the legislation first of all with a Memorandum of Understanding, so that criminal prosecution would not need to be used in the future. In the MOU it was agreed in par. 1.1 that KLM would comply with the carrier legislation by checking before every flight, whether passengers were in possession of the right travel documents. KLM agreed to give permission, at all times, to the official appointed by the State Secretary, to act as adviser of KLMs employees at the airport of departure when checking documents. However the decision whether or not to transport the passengers would always be the airline s ( 1.2). Further, it was agreed that KLM would be responsible for making sure that employees responsible for checking travel documents, would have sufficient expertise and knowledge with regard to these travel documents ( 3.1). For this purpose, KLM committed itself to drawing up a training programme ( 3.1). Also KLM should ensure that technical appliances would be available in order to check the relevant documents ( 2.1). The Dutch government obligated itself, if necessary and with regard to possibilities, to provide training and expertise to KLM employees concerning the recognition of false /falsified documents ( 3.2). It was agreed that KLM could request such training of the government ( 3.2), and that the State Secretary would evaluate the request (1.4). The MOU specifies that in case of training on false/falsified documents KLM should agree with its staff on a requirement of confidentiality and to ensure this secrecy ( 3.2). Specific arrangements were agreed on the collaboration between the department of justice and KLM ( 5.1, 6.1 and 6.2). The contracting parties committed themselves to provide each other with the information necessary to correctly execute the MUO. To this end an Information Protocol was included in Annex 2 to the MOU, in which the obligations of both contracting parties was laid down. In this MOU targets were set; quota, concerning the numbers of undocumented or inadequately documented passengers KLM could carry without being criminally prosecuted. To this end four categories of inadmissible passengers were determined. Category I contains migrants who report themselves at the checkpoint of the KMar ( vaste controlebalie ). The KMar then establishes that they are 12

13 not in possession of the necessary visa, or the passport or visa is expired. Also included are those passengers who fail to present an airport transit visa. Category II consists of those passengers who have arrived from a risk airport to which the duty to provide an transcript applies, of whom no transcript can be presented. Category III includes undocumented passengers originating from an airport to which the transcript duty did not apply; undocumented passengers of which a transcript is presented, which proves that the document and or the visa were false or falsified; and passengers who are in possession of a false/falsified passport or a passport with a false/falsified visa. Category IV is made up of those undocumented passengers who originate from an airport to which the transcript duty applies and of which a transcript has been presented, but in which case the transporter had not taken enough precautions. In the event that KLM would transport a passenger without proper documentation, the sanction would depend on the categorisation of the passenger concerned. Concerning passengers in categories I and II, a quota would be determined each month. At all times an official report would be drawn up in case an alien from one of these categories was transported. In case the quota would be exceeded, the carrier would be prosecuted in all cases and/or a settlement would be offered to the carrier. Concerning undocumented passengers who were placed in the third category the sanction would be handled with more leniency. For this category also quota would be determined. An official report would be drawn up in case in fairness could be determined that the carrier did not comply with its duty of due care. In case the quota would be exceeded prosecution would take place or a settlement would be offered in those cases when an official report had been drawn up. Finally, for passengers in the fourth category, it was suggested that a quota would be determined but that in case the limit was overstepped, the MOU would be dissolved or suspended. The reason for this flexibility was that the fourth category did concern undocumented passengers, however it was not deemed a category for which the transporter could be held liable on grounds of the criminal law. In order to determine the quota for each year, the year 1998 was used as reference point. In that year a total of 3,045 undocumented passengers were transported by KLM. The objective was to diminish the quota for each category for each year so that eventually the number of inadmissible passengers should be only 215 in 2003, none of which would belong to categories I and II. Figure: Targets KLM as negotiated in the MOU 4 Category 1998 (ref. year) I * II III Source: TK , no , nr. 502, Annex. 13

14 IV I+II+III+I V * An evaluation would be made of the feasibility of an absolute zero. According to the State Secretary of Justice, the Dutch government signed this Memorandum of Understanding with KLM to increase the duty of due care of the national airline. By providing the airline with expertise, the government reasoned, the duty of due care of the airline becomes more extensive and thus the criminal liability will become bigger. By increasing the liability and the expertise of the airline, the government hoped to improve the supervision by carriers on passenger documents. 5 For KLM this was a way to avoid being fined for some time without completely complying with its duty of due care. The MoU seems to be very successful; at least for KLM; it has not been prosecuted since the signing of the MoU. The Memorandum of Understanding was valid until The MoU has been extended once in 2003, and again late It is clear that some changes were made to the agreements, the quota have been adjusted, However, it is not clear whether it still concerns the same document or if the MoU has been renegotiated, and if there is a new (public) document. Other airlines feel that KLM has been unjustly advantaged by this MoU see jurisprudence Q. 11. Before the MoU was negotiated a Guideline for Carriers had been drawn up. This guideline is incorporated in the Aliens Circular. Also a Guideline concerning criminal proceedings in the criminal liability for the transportation of undocumented or inadequately documented aliens was established. Also see the answer given in response to Q.7.B. Q.10. Measures of Defence and Appeal (see Art. 6, which is a mandatory provision. Please pay attention to the fact that Art. 6 requires effective rights of defence and appeal and make clear if any practical problems hinder the effectiveness of system of appeal in your Member State) Q.10.A. If proceedings are brought against carriers with a view to imposing penalties, are carriers entitled to the following defence or appeal measures (Art. 6)? Administrative appeal rights * Judicial appeal rights Q.10.B. Measures of defence and/or appeal have suspensive effect with regard to administrative appeal * suspensive effect with regard to judicial appeal 5 TK ,

15 no suspensive effect Q.10.C. If there is no suspensive effect, how is effectiveness of defence and appeal ensured? 15

16 THIRD PART 3. IMPACT OF THE DIRECTIVE ON NATIONAL LAW Q.11. Did the transposition of the Directive make the rules related to carrier obligations to return third country nationals become from the point of view of carriers concerned more favourable or less favourable regarding the evolution of internal law (for example because of abolition or introduction of more favourable provisions, more restrictive conditions or amendments)? Make also a comparison with the standard of the Directive in the last column of the table below. OBLIGATIONS OF CARRIERS TO RETURN THIRD COUNTRY NATIONALS WHEN ENTRY IS REFUSED TO A THIRD COUNTRY NATIONAL IN TRANSIT The amendment The existing legislation in the Aliens Act 2000 before the implementation of the Directive already included a retransportation duty for the carrier.. Please use one box per object and duplicate it if necessary EVALUATION REGARDING THE EVOLUTION OF INTERNAL LAW following the transposition of Directive 2001/51 (OJ 2004, 212) added the duty for the carrier to find if necessary an alternative means of re-transportation in order to re-transport the alien. Less favourable than previous internal rules EVALUATION IN COMPARISON WITH THE STANDARD OF THE DIRECTIVE In line with the Directive OBLIGATIONS OF CARRIERS TO RETURN THIRD COUNTRY NATIONALS WHEN ENTRY IS REFUSED TO A THIRD COUNTRY NATIONAL IN TRANSIT Art 65(2) Aliens Act 2000 provided a possibility to recoup costs of expulsion from the carrier, in case the carrier was not able to retransport the alien within reasonable With the transposition of Directive 2001/51, the costs of the stay/ accommodation of the alien in the Netherlands, during the time after the carrier has received instructions EVALUATION REGARDING THE EVOLUTION OF INTERNAL LAW Less favourable than previous internal rules EVALUATION IN COMPARISON WITH THE STANDARD OF THE DIRECTIVE In line with the Directive 16

17 time. These cost entailed the transportation of the alien to a place outside the Netherlands at the first, yet - under circumstancescheapest possibility, and the costs of guiding the alien to a place of departure and to a place outside the Netherlands, if necessary. of an official responsible for border control to retransport the alien to a place outside the Netherlands, could also be claimed from the carrier (OJ 2004, 440). Q.12. From your point of view, did the transposition of the directive imply other interesting changes for the carriers concerned regarding other elements than the ones mentioned in the previous question. Make also a comparison with the standard of the directive in the last column of the table below Please use one box per object and duplicate it if necessary Maximum amount of the sanctions EVALUATION REGARDING THE EVOLUTION OF NATIONAL LAW EVALUATION IN COMPARISON WITH THE STANDARD OF THE DIRECTIVE Before transposition of Directive 2001/51/EC the sanctions that could be imposed for bringing in inadmissible passengers were of a maximum amount of 2,250. After transposition the sanctions were of a maximum amount of , were in February 2006 they were again raised to a maximum of Less favourable than previous internal rules Stricter than required by the Directive / In line with the directive The maximum amount is stricter than the Directive, a fine of the third category with a maximum of 6,700 would already suffice. However, the transaction policy that the practice of the criminal proceedings are in line with the Directive, since normally a 17

18 transaction is offered to airlines of 3,000 for first offenders (see below). Q.13.A. Mention if there is a general tendency to just copy the provisions of the directive into national legislation without redrafting or adaptation them to national circumstances. * NO YES Q.13.B. If yes, please indicate if this general tendency may or may not create problems (for example difficulties of implementation, risk that a provision remain unapplied). NO YES Q.13.C. Q.13.D. If yes, give some of examples: If only some provisions of the directive have been copied and if this may create any problem, please quote them and explain the problem. Q.14. Quote interesting decisions of jurisprudence related to the directive, its transposition or implementation (so this question concerns in principle decisions later that the directive, but previous ones might be quoted if relevant). Quote in particular decisions of supreme Courts; limit yourself to the appeal Courts and ignore the first resort if there are too many decisions at this level, unless there is a certain jurisprudence made of a group of decisions. DECISION OF SUPREME COURTS Please use one box per decision and duplicate it if necessary DATE: 11 July 2000 REFERENCE OF PUBLICATIONS: HR LJN AA6456, SUMMARY OF CONTENT: This was a trial case and the first time the Supreme Court made a ruling on the carrier sanctions regime in the Netherlands. The Supreme Court in this case overruled the appeal which was lodged by the airline against a decision of the district court in Haarlem (11 Dec 1998). As a consequence KLM was imposed a fine of 10 million guilders (about 4,5 million Euro). A returning point of discussion in the case was how the burden of proof was divided between the Public Prosecutor and the 18

19 DECISION OF APPEAL COURTS DATE: REFERENCE OF PUBLICATIONS: Carrier. According to the Hoge Raad the Government assumed in its policy that for a carrier to be liable for a breach of its duty of due care, negligence is required. However this negligence may be assumed in case a passenger without proper documentation is brought in. According to the attorney general this is reasonable to assume, since the fact that passengers do not have the proper documentation is a serious indication that controls have not been executed thoroughly. Therefore it may be asked of the carrier in such circumstances to argue and provide proof that the carrier did indeed take necessary measures to prevent this from happening. According to the attorney general, this is not contrary to art 6 ECHR since there are sufficient possibilities for the carrier to proof otherwise. SUMMARY OF CONTENT: DECISION(S) IN FIRST RESORT DATE: 21 January 2005 REFERENCE OF PUBLICATIONS: LNJ AS4578 (JV 2005, 164) SUMMARY OF CONTENT: This case dealt with a shipping company which had transported stowaways to the Netherlands. The carrier was given removal orders by the Dutch Sea Port Police, ordering the company to transport the stowaways out of the Netherlands. The Shipping company refused to re-transport the stowaways and refused to take the stowaways on board. The shipping company argued that the re-transportation duty is outdated and is furthermore contrary to the security measures it is obliged to take following EC Regulation 725/ and the IMO ISPS-code 7 ; further the re- 6 Regulation (EC) no. 725/2004 of 31 March 2004 On enhancing ship and port facility security OJ L 129/ The International Ship and Port Facility Security Code (ISPS Code) is a set of measures to enhance the security of ships and port facilities, developed in response to the perceived threats to ships and port facilities in the wake of the 9/11 attacks in the United States. 19

20 DECISION(S) IN FIRST RESORT DATE: 5 April 2007 REFERENCE OF PUBLICATIONS: LJN BA2584 and LJN BA2586 transportation duty was argued to be contrary to Regulation XI-2/8 8 of the SOLAS Convention. The Court reasoned that when these provisions are taking into account it cannot be deduced that an obligation cannot be placed on the carrier to re-transport the stowaways. However, the Court did state that with regard to Regulation XI- 2/8 of the SOLAS Convention, immigration authorities should check the reasonableness of the retransportation; grounds for refusing the re-transportation should be considered and it should be judged whether the retransportation duty or the provisions of Regulation XI-2/8 should prevail. Further, according to the Court, the Guidelines on the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases 9 do not imply that immigration authorities are not authorised to place stowaways back on board the carrier. Based on the above the Court ruled that these grievances could not lead to the destruction of the disputed decision. However despite these arguments regarding the content, since counsel did not repute the arguments put forward by the carrier, the carrier did win the appeal. SUMMARY OF CONTENT: In these cases the air carriers argued that the Public Prosecutors Office should be declared nonsuited because all air carriers are treated equally except for the Dutch Royal Airline (KLM) which has a special arrangement with the Public Prosecutors Office (OM), based on a MoU with the Ministry of Justice, and will therefore not be charged concerning breaches of article 4 Aliens Act These carriers argue that since KLM has not been charged following this MoU (that was signed for 8 Regulation XI-2/8 confirms the role of the Master in exercising his professional judgement over decisions necessary to maintain the security of the ship. It says he shall not be constrained by the Company, the charterer or any other person in this respect. 9 Resolution A.871 (20), adopted in 1997, which established basic principles to be applied in dealing with stowaways. 20

21 the first time in 2000), while other air carriers that make the same efforts are charged, and where the consultation that is requested with the public prosecutor has not yet bee realised, the OM, which knows of these circumstances should be declared nonsuited. The cantonal court in Haarlem dismissed this reasoning arguing that the single fact that the public prosecutor has not yet made an appointment with these air carriers does not mean it has to be declared nonsuited, since it is up to the public prosecutor to decide whether or not arrangements will be made concerning offences or the prevention of offences. Further, the cantonal court has taken into consideration that KLM distinguishes itself by having its home base at Schiphol Airport, and can therefore be considered to be the home carrier. According to the cantonal court this is enough justification to apply a different prosecution policy to KLM. Besides the court ads, noting stand in the way of these carriers to make negotiate with the OM about arrangements. Finally, the court emphasised that KLM is not protected from prosecution since the MoU that was signed with the state secretary of Justice does not obstruct the competences of the public prosecutor to prosecute KLM. Since this was the carriers only defence, in both cases the carrier lost the case and a financial sanction was imposed. ANY SUPPLEMENTARY COMMENT ABOUT THE TREND OF THE JURISPRUDENCE: Q.15. Specify if there are or not problems with the translation of the text of the directive in the official language of your Member State and give in case a list of the worst examples of provisions which have been badly translated. * There are no problems with the translation of the directive 21

22 There are some problems with the translation of (indicate the number of the articles concerned) of the directive. Explain the difficulties that this could create: 4. ANY OTHER INTERESTING ELEMENT Q.16. Following your personal point of view, mention from the point of view of third country nationals and/or from the Member State any interesting or innovative practice in your Member State Please use one table per practice and duplicate it if necessary OBJECT OF THE PRACTICE EXPLANATIONS Q.17. Please add here any other interesting element in your Member State which you did not had the occasion to mention in your previous answers Sanction and Transaction policy Public Prosecutors Office (OM) Penal sanctions can be imposed on private carriers when transporting an improperly or undocumented passenger, or in case the carrier did not provide a transcript where he should have done so (see below). Even though these sanctions can be as high as an amount of 16,750, normally the Public prosecutor will at first offer a transaction to the responsible carrier. A first offender will be offered a transaction of 3,000, in case of a one-time recidivism the sanction will be raised with 50% ( 4,500) in case of recidivism in multiple cases the sanction will be raised with 100% ( 6,000). Although this means that the maximum fine of 16,750 may not be imposed in practice, the amounts offered as a transaction still are in line with the Directive since the minimum is not lower than 3,000. Ultimately when the carrier does not accept the transaction the case is brought before the court, the public prosecutor will demand a higher fine and the judge will eventually decide on the amount of the fine (which in this case cannot be higher than 16,750). When these criminal sanctions were first introduced the fines and the amounts of the transactions were much lower. The Public Prosecutor however, concluded that the imposed and paid transactions were not sufficiently deterrent. In the Guideline concerning Criminal Proceedings, the fact that the carrier in most cases will be a corporate body is a justification for the penalty. (It is not a requirement that a carrier is a corporate body, it can also be a private person. Also there is no need that the passenger was transported for profit.) Exempting the carrier of liability: theory or practice In the Dutch policy there is a possibility for the carrier to try to avoid liability in case it has transported a passenger even though (proper) documentation was missing based on the account that the asylum seekers has given about being in immediate danger which was deemed credible by employees of the carrier. The carrier should in such cases convince the OM that there are reasons not to prosecute the carrier (strafuitsluitingsgrond). When in such a case the undocumented passenger claims asylum and an asylum status is granted, 22

23 the carrier will not be fined due to justifiable emergency. By acting in breach of the Dutch Aliens Law the carrier has served a higher purpose of justice namely the protection of the refugee. In this case the carrier will not be criminally prosecuted. In the case that the account of the asylum seeker has, in the eyes of the Dutch authorities, indeed been an objectively plausible account, but no asylum status is granted, the carrier can appeal to the exclusion of prosecution on the grounds of a forgivable mistake (verschoonbare dwaling) and on that ground he will not be liable to punishment. 10 It is not clear if this policy is indeed practised by carriers and, in case it is, if it is successful for the carriers. Criminal prosecution for human smuggling Carriers can be fined for bringing in un- or improperly documented passengers. Next to being criminally charged for acting in violation of the Dutch Aliens Act, they can also be criminally charged with human smuggling, based on article 197a of the Penal Code. Contrary to violation of the duty of due care, transcript and re-transportation duty (which are misdemeanours), human smuggling is a felony and can be sanctioned with a fine of the fifth category (maximum amount of 67,000) or a prison sentence of up to four years. This has not yet happened in the Netherlands. Transcript duty Generally captains of airplanes and ships must hand over a crew and passenger list when they arrive in the Netherlands, following articles 4.11 and 4.15 Aliens Decree An additional task is imposed on carriers through the second paragraph of article 4 Aliens Act An obligation can be imposed on the carrier to make a transcript of the border crossing document of the alien and to put this at the disposal of the official responsible for the border control. This transcript duty can be fulfilled by making a representation (afbeelding) of pages in the document of the passenger. The copy must be a clear representation of the pages of the travel document with the relevant data of the travel document of the passenger. A transcript does not necessary have to be a photocopy, but can also be a photograph or scan of the relevant pages of the document. Carriers can be obliged to provide a transcript according to article 4(2); they must hand over a transcript when departing from airports or seaports that have been designated in the ministerial regulation as risk-ports. 11 Although in theory this obligation applies to airlines as well as boat companies, until now the list has only consisted of airports. Airports assigned to the list generally produce a lot of asylum seekers; flights from these airports are pointed out as riskflights. The list of risk-ports has been put together on the basis of experience (ervaringsgegevens) and consists of about 20 airports. 12 As stipulated in article 2.1 of the Aliens Regulation, the Minister of Aliens Affairs and Integration can appoint airlines for whom the transcript duty can be temporarily suspended. This can be the case when, after the opinion of the Dutch authorities, the arrival of undocumented passengers by that carrier has declined sufficiently. The obligation to copy documents on flights from specific airports can then be suspended in 10 The carrier can in this case call upon a situation of putative emergency. 11 A list of ports that are considered a risk, is to be found in Annex 1 of the Aliens Regulations The list is currently being put together on the basis of risk-indicators concerned with illegal immigration, however according to the Dutch government it is possible to adjust the list using risk-indicators aimed at the prevention of terrorism; TK , , no. 3, p. 6, 3 February