title: 2010/649/EU: Council Decision of 7 October 2010 on the conclusion of the Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation#Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation

text:
               4.11.2010

               EN

               Official Journal of the European Union

               L 287/50

         COUNCIL DECISION
   of 7 October 2010
   on the conclusion of the Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation
   (2010/649/EU)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 79(3), in conjunction with Article 218(6)(a)(v) thereof,
   Having regard to the proposal from the European Commission,
   Having regard to the consent of the European Parliament,
   Whereas:

               (1)

               The Commission has negotiated on behalf of the European Community an Agreement with the Islamic Republic of Pakistan on the readmission of persons residing without authorisation (hereinafter the Agreement).

               (2)

               The Agreement has been signed, on behalf of the European Community, on 26 October 2009 subject to its conclusion.

               (3)

               As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union has replaced and succeeded the European Community.

               (4)

               The Agreement should be approved.

               (5)

               The Agreement establishes a Joint Readmission Committee which may adopt its rules of procedure. It is appropriate to provide for a simplified procedure for the establishment of the European Union position in this case.

               (6)

               In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, the United Kingdom has notified its wish to take part in the adoption and application of this Decision.

               (7)

               In accordance with Articles 1 and 2 of the Protocol on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of the said Protocol, Ireland is not participating in the adoption of this Decision and is not bound by or subject to its application.

               (8)

               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 on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,

         HAS ADOPTED THIS DECISION:
   Article 1
   The Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation (hereinafter the Agreement) is hereby approved on behalf of the European Union.
   The text of the Agreement is attached to this Decision.
   Article 2
   The President of the Council shall give the notification provided for in Article 20(2) of the Agreement, in order to bind the Union (1), and shall make the following declaration:

         ‘As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union has replaced and succeeded the European Community and from that date exercises all rights and assumes all obligations of the European Community. Therefore, references to “the European Community” or to “the Community” in the text of the Agreement are, where appropriate, to be read as to “the European Union”.’

   Article 3
   The Commission, assisted by experts from Member States invited at the Commission’s request, shall represent the Union in the Joint Readmission Committee established by Article 16 of the Agreement.
   Article 4
   The position of the Union within the Joint Readmission Committee with regard to the adoption of its rules of procedure as required under Article 16(2) of the Agreement shall be taken by the Commission after consultation with a special committee designated by the Council.
   Article 5
   This Decision shall enter into force on the day of its adoption.
   Article 6
   This Decision shall be published in the Official Journal of the European Union.

      Done at Luxembourg, 7 October 2010.

            For the Council

            The President

         M. WATHELET

      (1)  The date of entry into force of the Readmission Agreement will be published in the Official Journal of the European Union by the General Secretariat of the Council.

      AGREEMENT
      between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation
      THE HIGH CONTRACTING PARTIES,
      THE EUROPEAN COMMUNITY,
      hereinafter referred to as ‘the Community’,
      and
      THE ISLAMIC REPUBLIC OF PAKISTAN,
      hereinafter referred to as ‘Pakistan’,
      hereinafter also referred to individually as ‘a Party’ and collectively as ‘the Parties’,
      DESIRING to strengthen their cooperation to combat illegal immigration effectively,
      DESIRING to establish, by means of this Agreement and on the basis of reciprocity, rapid and effective procedures for the identification and safe and orderly return of persons who do not, or no longer, fulfil the conditions for entry into, presence in, or residence on the territories of Pakistan or one of the Member States of European Union, and to facilitate the transit of such persons in a spirit of cooperation,
      EMPHASISING that this Agreement shall be without prejudice to the rights, obligations and responsibilities of the Member States of the European Union and Pakistan under international law,
      CONSIDERING that the provisions of Title IV of the Treaty establishing the European Community, and all acts adopted on the basis of that Title, do not apply to the Kingdom of Denmark,
      HAVE AGREED AS FOLLOWS:
      Article 1
      Definitions
      For the purposes of this Agreement:

                  (a)

                  ‘Member State’ shall mean any Member State of the European Union, with the exception of the Kingdom of Denmark;

                  (b)

                  ‘National of a Member State’ shall mean any person who holds the nationality, as defined for Community purposes, of a Member State;

                  (c)

                  ‘National of Pakistan’ shall mean any person who holds the nationality of Pakistan;

                  (d)

                  ‘Third country national’ shall mean any person who holds a nationality other than that of Pakistan or one of the Member States;

                  (e)

                  ‘Stateless person’ shall mean any person who does not hold a nationality;

                  (f)

                  ‘Residence authorisation’ shall mean a permit of any type issued by Pakistan or one of the Member States entitling a person to reside on the territory of the issuing State;

                  (g)

                  ‘Visa’ shall mean an authorisation issued or a decision taken by Pakistan or one of the Member States which is required with a view to entry into, or transit through, its territory. This shall not include an airport transit visa;

                  (h)

                  ‘Requesting State’ shall mean the State (Pakistan or one of the Member States), which submits a readmission application pursuant to Articles 2 and 3 or a transit application pursuant to Article 12;

                  (i)

                  ‘Requested State’ shall mean the State (Pakistan or one of the Member States) to which a readmission application pursuant to Articles 2 and 3 or a transit application pursuant to Article 12 is submitted.

            SECTION I
      READMISSION OBLIGATIONS
      Article 2
      Readmission of nationals
      1.   The Requested State shall readmit, after the nationality having been proved in accordance with Article 6, upon application by the Requesting State any of its nationals who does not, or who no longer fulfils the conditions in force for entry into, presence in, or residence on, the territory of the Requesting State.
      2.   The Requested State shall, as necessary and without delay, issue the person whose readmission has been accepted with the travel document required for his or her readmission, which shall be valid for at least six months. If, for legal or factual reasons, the person concerned cannot be transferred within the period of validity of the travel document, the Requested State shall issue a new travel document with the same period of validity within 14 days.
      Article 3
      Readmission of third country nationals and Stateless persons
      1.   The Requested State shall readmit, upon application by the Requesting State and without further formalities other than those provided for in this Agreement, any third country national or Stateless person who does not, or who no longer, fulfils the conditions in force for entry into, presence in, or residence on, the territory of the requesting State, provided that such persons:

                  (a)

                  hold, at the time of submission of the readmission application, a valid visa or residence authorisation issued by the Requested State; or

                  (b)

                  entered the territory of the Requesting State unlawfully coming directly from the territory of the Requested State. A person comes directly from the territory of the Requested State within the meaning of this subparagraph if he or she arrived on the territory of the Requesting State, or, where the Requested State is Pakistan, on the territory of the Member States, by air or ship without having entered another country in-between.

            2.   The readmission obligation in paragraph 1 shall not apply if:

                  (a)

                  the third country national or Stateless person has only been in airside transit via an international airport of the Requested State; or

                  (b)

                  the Requesting State has issued to the Third country national or Stateless person a visa or residence authorisation before or after entering its territory unless that person is in possession of a visa or residence permit, issued by the Requested State, which has a longer period of validity.

            3.   If the Requested State is a Member State, the readmission obligation in paragraph 1 is for the Member State that issued a visa or residence authorisation. If two or more Member States issued a visa or residence authorisation, the readmission obligation in paragraph 1 is for the Member State that issued the document with a longer period of validity or, if one or several of them have already expired, the document that is still valid. If all of the documents have already expired, the readmission obligation in paragraph 1 is for the Member State that issued the document with the most recent expiry date.
      4.   The Requested State shall, as necessary and without delay, issue the person whose readmission has been accepted with the travel document required for his or her return which shall be valid for at least six months. If, for legal or factual reasons, the person concerned cannot be transferred within the period of validity of the travel document, the Requested State shall issue a new travel document with the same period of validity within 14 calendar days.
      SECTION II
      READMISSION PROCEDURE
      Article 4
      Principles
      1.   Subject to paragraph 2, any transfer of a person to be readmitted on the basis of the obligations contained in Articles 2 and 3 shall require the submission of a readmission application to the competent authority of the Requested State.
      2.   Without prejudice to Articles 2(1) and 3(1), no readmission application shall be needed where the person to be readmitted is in possession of a valid travel document and, where applicable, a valid visa or residence authorisation of the Requested State.
      3.   No person shall be readmitted only on the basis of prima facie evidence of nationality.
      Article 5
      Readmission application
      1.   A readmission application shall contain the following information:

                  (a)

                  the particulars of the person to be readmitted (e.g. given name, surname, date of birth, place of birth, and the last place of residence);

                  (b)

                  indication of the means for the proof of nationality, transit, the conditions for the readmission of third country nationals and Stateless persons and unlawful entry and residence.

            2.   The readmission application, to the extent possible, will also contain the following information:

                  (a)

                  a statement indicating that the person to be readmitted may need help or care, provided the person concerned has explicitly consented to the statement;

                  (b)

                  any other protection or security measure which may be necessary in the individual readmission case.

            3.   A common form to be used for readmission applications is attached as Annex V to this Agreement.
      Article 6
      Means of evidence regarding nationality
      1.   Evidence of nationality cannot be furnished through false documents.
      2.   Proof of nationality pursuant to Article 2(1) may be furnished through any of the documents listed in Annex I to this Agreement, even if their period of validity has expired. If such documents are presented, the Requested and the Requesting States shall mutually recognise the nationality without further investigation being required.
      3.   Proof of nationality, as required under Article 2(1), may also be furnished through any of the documents listed in Annex II to this Agreement, even if their period of validity has expired. If such documents are presented, the Requested State shall initiate the process for establishing the nationality of the person concerned.
      4.   If none of the documents listed in Annexes I or II can be presented, the competent authority of the Requesting State and the diplomatic or consular representation of the Requested State shall, upon request, make arrangements to interview the person for whose readmission an application has been submitted, without undue delay.
      Article 7
      Means of evidence regarding third country nationals and Stateless persons
      1.   Proof of the conditions for the readmission of third country nationals and Stateless persons laid down in Article 3(1) shall be particularly furnished through the means of evidence listed in Annex III to this Agreement. It cannot be furnished through false documents. Any such proof shall be based on elements that are mutually recognised by the Requested and the Requesting States.
      2.   Proof of the conditions for the readmission of third country nationals and Stateless persons laid down in Article 3(1) may also be furnished through the means of evidence listed in Annex IV to this Agreement. Where such means of evidence are presented, the Requested State will deem them appropriate to initiate investigation.
      3.   The unlawfulness of entry, presence or residence shall be established by means of the travel documents of the person concerned in which the necessary visa or other residence authorisation for the territory of the Requesting State are missing. A statement by the Requesting State that the person concerned has been found not to have the necessary travel documents, visa or residence authorisation may provide prima facie evidence of the unlawful entry, presence or residence.
      Article 8
      Time limits
      1.   The application for readmission must be submitted to the competent authority of the Requested State within a maximum of one year after the Requesting State’s competent authority has gained knowledge that a third country national or a Stateless person does not fulfil, or no longer fulfils the conditions in force for entry, presence or residence. Where there are legal or factual obstacles to the application being submitted in time, the time limit shall, upon request, be extended but only until the obstacles have ceased to exist.
      2.   A readmission application must be replied to without undue delay, and in any event within a maximum of 30 calendar days; reasons shall be given for refusal of a readmission application. This time limit begins to run from the date of receipt of the readmission application. Where there are legal or factual obstacles to the application being replied to in time, the time limit may, upon request and giving reasons, be extended up to 60 calendar days, except if the maximum detention period in the national legislation of the Requesting State is less than, or equal to, 60 days. Where there is no reply within this time limit, the transfer shall be deemed to have been agreed to.
      3.   After agreement has been given or, where appropriate, upon expiry of the time limit mentioned in paragraph 2 of this Article, the person concerned shall be transferred within three months. Upon request, this time limit may be extended by the time taken to deal with legal or practical obstacles.
      Article 9
      Transfer modalities and modes of transportation
      Before returning a person, the competent authorities of Pakistan and the Member State concerned shall make arrangements in writing in advance, regarding the transfer date, the border crossing point, possible escorts and means of transport.
      Article 10
      Readmission in error
      Pakistan shall take back without delay any person readmitted by a Member State, and a Member State shall take back without delay a person readmitted by Pakistan, if it is established within a period of three months after the transfer of the person concerned that the requirements laid down in Articles 2 and 3 of this Agreement were not met. In such cases, the competent authorities of Pakistan and the Member State concerned shall also exchange all available information relating to the actual identity, nationality or transit route of the person to be taken back.
      SECTION III
      TRANSIT OPERATIONS
      Article 11
      Principles
      1.   The Requested State may allow the transit of a third country national or Stateless person when such a national or person cannot be returned to the State of destination directly after being satisfied, on the basis of written evidence, that the State of destination has committed itself to readmitting its national or the person as the case may be.
      2.   The Requested State may revoke consent if the onward journey in possible States of transit or the readmission by the State of destination is no longer assured. In such cases, the Requesting State shall take back the third country national or the Stateless person at its costs.
      Article 12
      Transit procedure
      1.   An application for transit operations must be submitted to the competent authorities in writing and shall contain the following information:

                  (a)

                  type of transit, possible other States of transit and final destination;

                  (b)

                  the particulars of the person concerned (e.g. given name, surname, date of birth and — where possible — place of birth, nationality, type and number of travel document);

                  (c)

                  envisaged border crossing point, time of transfer and possible use of escorts.

            A common form to be used for transit applications is attached as Annex VI to this Agreement.
      2.   The Requested State shall, within 14 calendar days and in writing, inform the Requesting State of its decision and, if it allows transit, confirm the border crossing point and the envisaged time of transit.
      3.   If the transit operation is effected by air, the person to be transited and possible escorts shall be exempted from having to obtain an airport transit visa.
      4.   The competent authorities of the Requested State shall, subject to mutual consultations, support the transit operations, in particular through the surveillance of the persons in question and the provision of suitable amenities for that purpose, in accordance with its laws and rules.
      SECTION IV
      COSTS
      Article 13
      Transport and transit costs
      Without prejudice to the right of the competent authorities of the Requesting State to recover the costs associated with the readmission from the person to be readmitted or third parties, all transport costs incurred in connection with readmission and transit operations pursuant to this Agreement as far as the border of the State of final destination shall be borne by the Requesting State. In the case of readmission in error, under Article 10, these costs have to be borne by the State which has to take back the person concerned.
      SECTION V
      DATA PROTECTION AND CONSISTENCY WITH OTHER LEGAL OBLIGATIONS
      Article 14
      Personal data
      1.   The processing of personal data shall only take place if such processing is necessary for the implementation of this Agreement by the competent authorities of Pakistan and the Member States. For the purposes of this Article, the definitions contained in Article 2 of Directive 95/46/EC (1) apply. Where the controller is a competent authority of a Member State, such processing shall be subject to the provisions of Directive 95/46/EC and of national legislation adopted pursuant to this Directive, including the rules concerning the transfer of personal data to third countries.
      2.   Additionally, the processing of personal data for the implementation of this Agreement, and in particular the communication of personal data from Pakistan to a Member State and vice versa, shall be subject to the following principles:

                  (a)

                  personal data must be processed fairly and lawfully;

                  (b)

                  personal data must be collected for the specified, explicit and legitimate purpose of implementing this Agreement and not further processed by the communicating authority nor by the receiving authority in a way incompatible with that purpose;

                  (c)

                  personal data must be adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed, in particular, personal data communicated may concern only the following:

                              —

                              the particulars of the person to be transferred (e.g. given name, surname, any previous names, nicknames or pseudonyms, date and place of birth, sex, current and any previous nationality),

                              —

                              passport or identity card (number, period of validity, date of issue, issuing authority, place of issue),

                              —

                              stop-overs and itineraries,

                              —

                              other information needed to identify the person to be transferred or to examine the readmission requirements pursuant to this Agreement;

                  (d)

                  personal data must be accurate and, where necessary, kept up to date;

                  (e)

                  personal data must be kept in a form which permits identification of data subjects for no longer than is necessary for the purpose for which the data were collected or for which they are further processed;

                  (f)

                  both the communicating authority and the receiving authority shall take every reasonable step to ensure as appropriate the rectification, erasure or blocking of personal data where the processing does not comply with the provisions of this Article, in particular because that data are not adequate, relevant, accurate, or they are excessive in relation to the purpose of processing. This includes the notification of any rectification, erasure or blocking to the other Party;

                  (g)

                  upon request, the receiving authority shall inform the communicating authority of the use of the communicated data and of the results obtained therefrom;

                  (h)

                  personal data may only be communicated to the competent authorities. Further communication to other bodies requires the prior consent of the communicating authority;

                  (i)

                  the communicating and the receiving authorities are under the obligation to make a written record of the communication and receipt of personal data.

            Article 15
      Consistency with other legal obligations
      1.   This Agreement shall be without prejudice to the rights, obligations and responsibilities of the Community, the Member States and Pakistan arising from or under international law, and international treaties to which they are Parties.
      2.   Nothing in this Agreement shall prevent the return of a person under other bilateral arrangements.
      3.   This Agreement shall be without prejudice to the remedies and rights available to the person concerned under the laws of the host country including international law.
      SECTION VI
      IMPLEMENTATION AND APPLICATION
      Article 16
      Joint Readmission Committee
      1.   The Parties shall provide each other with mutual assistance in the application and interpretation of this Agreement. To this end, they shall set up a Joint Readmission Committee (hereinafter referred to as the Committee) which will, in particular, have the task of:

                  (a)

                  monitoring the application of this Agreement;

                  (b)

                  deciding on technical arrangements necessary for its uniform execution, including amendments to Annexes III and IV;

                  (c)

                  having a regular exchange of information on the implementing Protocols drawn up by individual Member States and Pakistan pursuant to Article 17;

                  (d)

                  proposing amendments to this Agreement and Annexes I and II.

            2.   The decisions of the Committee shall be taken by unanimity and be implemented accordingly.
      3.   The Committee shall be composed by representatives of the Community and Pakistan. The Community shall be represented by the European Commission, assisted by experts from Member States.
      4.   The Committee shall meet where necessary at the request of one of the Parties, normally on an annual basis.
      5.   Disputes which cannot be resolved by the Committee shall be settled through consultations between the Parties.
      6.   The Committee shall establish its rules of procedure, including establishing a working language common to both Parties.
      Article 17
      Implementing protocols
      1.   Pakistan and a Member State may draw up an implementing Protocol which shall cover rules on:

                  (a)

                  the designation of the competent authorities, the border crossing points and the exchange of contact points;

                  (b)

                  the conditions for escorted returns, including the transit of third country nationals and Stateless persons under escort;

                  (c)

                  means and documents other than those listed in the Annexes I to IV to this Agreement.

            2.   The implementing Protocols referred to in paragraph 1 shall enter into force only after the Committee, referred to in Article 16, has been notified.
      Article 18
      Relation to bilateral readmission agreements or arrangements of Member States
      The provisions of this Agreement shall take precedence over the provisions of any bilateral agreement or arrangement on the readmission of persons residing without authorisation which have been or may, under Article 17, be concluded between individual Member States and Pakistan, in so far as the provisions of the latter are incompatible with those of this Agreement.
      SECTION VII
      FINAL PROVISIONS
      Article 19
      Territorial application
      1.   Subject to paragraph 2, this Agreement shall apply to the territory in which the Treaty establishing the European Community is applicable and the territory of Pakistan.
      2.   This Agreement shall not apply to the territory of the Kingdom of Denmark.
      Article 20
      Entry into force, duration and termination
      1.   This Agreement shall be ratified or approved by the Parties in accordance with their respective procedures.
      2.   This Agreement shall enter into force on the first day of the second month following the date on which the Parties notify each other that the procedures referred to in paragraph 1 have been completed.
      3.   Without prejudice to existing obligations of the Parties under customary international law to take back own nationals, this Agreement, and the Implementing Protocols, shall apply to persons who entered into the territories of Pakistan and the Member States after its entry into force.
      4.   Either Party may terminate this Agreement at any time by officially notifying the other Party. This Agreement shall cease to apply six months after the date of such notification.
      Article 21
      Annexes
      Annexes I to VI shall form an integral part of this Agreement.

         Done at Brussels on the twenty-sixth day of October in the year two thousand and nine in duplicate in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, and Swedish languages, each of these texts being equally authentic.

            За Европейската общност
            Por la Comunidad Europea
            Za Evropské společenství
            For Det Europæiske Fællesskab
            Für die Europäische Gemeinschaft
            Euroopa Ühenduse nimel
            Για την Ευρωπαϊκή Κοινότητα
            For the European Community
            Pour la Communauté européenne
            Per la Comunità europea
            Eiropas Kopienas vārdā
            Europos bendrijos vardu
            Az Európai Közösség részéről
            Għall-Komunità Ewropea
            Voor de Europese Gemeenschap
            W imieniu Wspólnoty Europejskiej
            Pela Comunidade Europeia
            Pentru Comunitatea Europeană
            Za Európske spoločenstvo
            Za Evropsko skupnost
            Euroopan yhteisön puolesta
            För Europeiska gemenskapen

            За Ислямска република Пакистан
            Por la República Islámica de Pakistán
            Za Pákistánskou islámskou republiku
            For Den Islamiske Republik Pakistan
            Für die Islamische Republik Pakistan
            Pakistani Islamivabariigi nimel
            Για την Ισλαμική Δημοκρατία του Πακιστάν
            For the Islamic Republic of Pakistan
            Pour la République islamique du Pakistan
            Per la Repubblica islamica del Pakistan
            Pakistānas Islāma Republikas vārdā
            Pakistano Islamo Respublikos vardu
            A Pakisztáni Iszlám Köztársaság részéről
            Għar-Repubblika Iżlamika tal-Pakistan
            Voor de Islamitische Republiek Pakistan
            W imieniu Islamskiej Republiki Pakistanu
            Pela República Islâmica do Paquistão
            Pentru Republica Islamică Pakistan
            Za Pakistanskú islamskú republiku
            Za Islamsko republiko Pakistan
            Pakistanin islamilaisen tasavallan puolesta
            För Islamiska republiken Pakistan

         (1)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).

         ANNEX I
         Common list of documents the presentation of which is considered as evidence of nationality (Articles 2(1) in conjunction with article 6(2))

                     —

                     Genuine passports of any kind (national passports, diplomatic passports, service passports, collective passports and surrogate passports including children’s passports),

                     —

                     computerised national identity cards,

                     —

                     genuine citizenship certificates.

         ANNEX II
         Common list of documents the presentation of which shall initiate the process for establishing nationality (Article 2(1) in conjunction with article 6(3))

                     —

                     Digital fingerprints or other biometric data,

                     —

                     temporary and provisional national identity cards, military identity cards and birth certificates issued by the Government of the Requested Party,

                     —

                     photocopies (1) of any of the documents listed in Annex I to this Agreement,

                     —

                     driving licences or photocopies (1) thereof,

                     —

                     photocopies (1) of other official documents that mention or indicate citizenship (e.g. birth certificates),

                     —

                     service cards, seaman’s registration cards, skipper’s service cards or photocopies (1) thereof,

                     —

                     statements made by the person concerned.

            (1)  For the purpose of this Annex, the term ‘photocopies’ shall mean photocopies officially authenticated by the authorities of Pakistan or the Member States.

         ANNEX III
         Common list of documents which shall be considered as means of evidence of the conditions for the readmission of third country nationals and stateless persons (Article 3(1) in conjunction with article 7(1))

                     —

                     Entry and/or departure stamps/endorsements in the travel document of the person concerned,

                     —

                     valid visa and/or residence authorisation issued by the Requested State.

         ANNEX IV
         Common list of documents which are considered as means of evidence to initiate the investigations for the readmission of third country nationals and stateless persons (Article 3 in conjunction with article 7(2))

                     —

                     Official statements made, in particular, by border authority staff and other official or bona fide witnesses (e.g. airline staff) who can testify to the person concerned crossing the border,

                     —

                     description, by the competent authorities of the Requesting State, of the place and circumstances under which the person concerned has been intercepted after entering the territory of the Requesting State,

                     —

                     information related to the identity and/or stay of a person which has been provided by an international organisation (e.g. UNHCR),

                     —

                     reports/confirmation of information by family members,

                     —

                     statement by the person concerned,

                     —

                     named tickets as well as certificates and bills of any kind (e.g. hotel bills, appointment cards for doctors/dentists, entry cards for public/private institutions, etc.) which clearly show that the person concerned stayed on the territory of the Requested State;

                     —

                     named tickets and/or passenger lists of air or boat passages which show the itinerary on the territory of the Requested State,

                     —

                     information showing that the person concerned has used the services of a courier or travel agency.

         ANNEX V

         ANNEX VI

         JOINT DECLARATION CONCERNING ARTICLE 1(f)
         For the purpose of Article 1(f), the Parties agree that residence authorisation shall not include temporary permissions to remain on their territories in connection with the processing of an asylum application or an application for a residence authorisation.

         JOINT DECLARATION CONCERNING ARTICLE 2(1)
         The Parties take note that, according to the current Pakistan Citizenship Act, 1951, and the Rules made thereunder, a citizen of Pakistan cannot renounce his citizenship without having acquired or having been given a valid document assuring the grant of citizenship or nationality of another State.
         The Parties agree to consult each other as and when the need arises.

         JOINT DECLARATION CONCERNING ARTICLE 3
         With regard to Article 3, the Parties will endeavour to return, as a matter of principle, any third country national or Stateless person who does not, or who no longer fulfils the conditions in force for entry into, presence in, or residence on the territory of either Party, to his or her country of origin.

         JOINT DECLARATION CONCERNING ARTICLE 3(1)(b)
         The Parties agree that mere airside transit stays in a third country shall not be considered as ‘having entered another country in-between’ within the meaning of those provisions.

         JOINT DECLARATION CONCERNING ARTICLE 8(2)
         The Parties agree that, with regard to readmission applications submitted by Member States whose maximum detention period in their national legislation is lower than, or equal to, 30 days, the time limit of 30 calendar days mentioned in Article 8(2) includes, in case of a positive reply to the readmission application, the issuing of the travel document required for his or her readmission in respect of Article 2(2) and Article 3(4) of the Agreement.

         JOINT DECLARATION BETWEEN THE EUROPEAN COMMISSION AND PAKISTAN ON LEGAL MIGRATION
         In keeping with Pakistan’s interest in benefiting from opportunities for legal migration existing in the Member States of the European Union, the Parties agreed that the application of this Agreement will be instrumental in encouraging individual Member States to offer legal migration opportunities to Pakistani citizens. In this context, the European Commission calls upon Member States to enter into talks with Pakistan, according to their own national legislation, regarding legal migration possibilities of Pakistani citizens.

         JOINT DECLARATION ON TECHNICAL ASSISTANCE
         The Parties are committed to implement this Agreement on the basis of shared responsibility and a balanced partnership in a spirit of solidarity as regards the management of migratory flows between the European Union and Pakistan.
         In this context, the European Union will support Pakistan, through Community assistance programmes, notably the Aeneas Programme, in the implementation of all components of this Agreement, including support aimed at resettlement and welfare of the readmitted persons.
         Such support can in principle also cover fostering the links between migration and development, organising and promoting legal economic migration, managing illegal migration, and protecting migrants against exploitation and exclusion.

         JOINT DECLARATION CONCERNING DENMARK
         The Parties take note that this Agreement does not apply to the territory of the Kingdom of Denmark, nor to nationals of the Kingdom of Denmark. In such circumstances it is appropriate that Pakistan and Denmark conclude a readmission agreement in the same terms as this Agreement.

         JOINT DECLARATION CONCERNING ICELAND AND NORWAY
         The Parties take note of the close relationship between the European Community and Iceland and Norway, particularly by virtue of the Agreement of 18 May 1999 concerning the association of these countries with the implementation, application and development of the Schengen acquis. In such circumstances it is appropriate that Pakistan concludes a readmission agreement with Iceland and Norway in the same terms as this Agreement.

         JOINT DECLARATION ON A COMPREHENSIVE DIALOGUE ON MIGRATION MANAGEMENT
         The Parties are committed to engage in a comprehensive dialogue on migration management within the framework of the Joint Commission to be established under the EC — Pakistan Third Generation Cooperation Agreement. This dialogue will include visa policies, with a view to facilitating people-to-people exchanges.


title: 2011/580/EU: Decision of the European Parliament of 10 May 2011 on discharge in respect of the implementation of the budget of the European Food Safety Authority for the financial year 2009#Resolution of the European Parliament of 10 May 2011 with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Food Safety Authority for the financial year 2009

text:
               27.9.2011

               EN

               Official Journal of the European Union

               L 250/162

         DECISION OF THE EUROPEAN PARLIAMENT
   of 10 May 2011
   on discharge in respect of the implementation of the budget of the European Food Safety Authority for the financial year 2009
   (2011/580/EU)
   THE EUROPEAN PARLIAMENT,

               —

               having regard to the final annual accounts of the European Food Safety Authority for the financial year 2009,

               —

               having regard to the Court of Auditors’ report on the annual accounts of the European Food Safety Authority for the financial year 2009, together with the Authority’s replies (1),

               —

               having regard to the Council’s recommendation of 15 February 2011 (05892/2011 — C7-0052/2011),

               —

               having regard to Article 276 of the EC Treaty and Article 319 of the Treaty on the Functioning of the European Union,

               —

               having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

               —

               having regard to Regulation (EC) No 178/2002 of the European Parliament and of the Council (3) establishing a European Food Safety Authority, and in particular Article 44 thereof,

               —

               having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

               —

               having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

               —

               having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on the Environment, Public Health and Food Safety (A7-0146/2011),

               1.

               Grants the Executive Director of the European Food Safety Authority discharge in respect of the implementation of the Authority’s budget for the financial year 2009;

               2.

               Sets out its observations in the resolution below;

               3.

               Instructs its President to forward this Decision and the resolution that forms an integral part of it to the Executive Director of the European Food Safety Authority, the Council, the Commission and the Court of Auditors, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Jerzy BUZEK

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 338, 14.12.2010, p. 108.

      (2)  OJ L 248, 16.9.2002, p. 1.

      (3)  OJ L 31, 1.2.2002, p. 1.

      (4)  OJ L 357, 31.12.2002, p. 72.

      RESOLUTION OF THE EUROPEAN PARLIAMENT
      of 10 May 2011
      with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Food Safety Authority for the financial year 2009
      THE EUROPEAN PARLIAMENT,

                  —

                  having regard to the final annual accounts of the European Food Safety Authority for the financial year 2009,

                  —

                  having regard to the Court of Auditors’ report on the annual accounts of the European Food Safety Authority for the financial year 2009, together with the Authority’s replies (1),

                  —

                  having regard to the Council’s recommendation of 15 February 2011 (05892/2011 — C7-0052/2011),

                  —

                  having regard to Article 276 of the EC Treaty and Article 319 of the Treaty on the Functioning of the European Union,

                  —

                  having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

                  —

                  having regard to Regulation (EC) No 178/2002 of the European Parliament and of the Council (3) establishing a European Food Safety Authority, and in particular Article 44 thereof,

                  —

                  having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

                  —

                  having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

                  —

                  having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on the Environment, Public Health and Food Safety (A7-0146/2011),

                  A.

                  whereas the Court of Auditors stated that it has obtained reasonable assurances that the annual accounts for the financial year 2009 are reliable and that the underlying transactions are legal and regular,

                  B.

                  whereas on 5 May 2010 Parliament granted the Executive Director of the European Food Safety Authority discharge for implementation of the Authority’s budget for the financial year 2008 (5), and in its resolution accompanying the discharge decision, inter alia:

                              —

                              observed that for the third successive year the Court of Auditors has flagged up carry-overs of appropriations to the following year (23 % of the 2008 budget was carried over to 2009, 16 % of the 2007 budget was carried over to 2008, 20 % of the 2006 budget was carried over to 2007),

                              —

                              noted that 20 out of the 25 recommendations (80 %) made by the Internal Audit Service (IAS) and the Internal Audit Capability (IAC) have been implemented,

                              —

                              noted that the second staff survey was launched in October 2008 with a view to assessing the Authority’s working environment,

                  C.

                  whereas the budget of the Authority for 2009 was EUR 71 400 000, which is an increase of 7,5 % on the financial year 2008,

         Performance

                  1.

                  Takes note that the Authority’s 2009 budget amounted to EUR 71 400 000 compared to EUR 66 400 000 in the previous year;

                  2.

                  Underlines that, in the course of the budgetary procedure 2009, an overall reserve of EUR 4 546 000 was introduced by the budgetary authority to the Authority’s budget; welcomes the fact that EUR 2 000 000 of the reserve was released in November 2009 to implement the IT development and infrastructure projects of the Authority, as it provided the respective committee with the results of the staff opinion survey, which was the condition for lifting the reserve;

                  3.

                  Notes, further, that the other part of the reserve has been allocated to the same policy area in order to contribute to effective response measures against the H1N1 pandemic; is aware that the Authority has not requested these funds for recruitment procedures as they were postponed to 2010;

                  4.

                  Congratulates the Authority for having set out, in the table annexed to the Court of Auditors’ 2009 report, a comparison of the operations that were carried out during 2008 and 2009 so as to enable the discharge authority to assess more effectively its performance from one year to the next; welcomes the fact that the Authority has increased its number of thematic papers and policy briefings;

                  5.

                  Observes that the Authority introduced differentiated appropriations for science grants and scientific cooperation projects in 2009 which led to the cancellation of EUR 6 000 000 in payment appropriations; advises the Authority to strengthen the planning and monitoring of budget processes related to differentiated appropriations;

                  6.

                  Underlines the need for the Authority to ensure its advice is of a high quality and is independent, in order to guarantee compliance with Union safety standards, scientific excellence and independence on all matters with a direct or indirect impact on food and feed safety, and plant protection; recommends, particularly in the interests of transparency, measures to further foster and monitor internal rules on declarations of interest of staff of the Authority and of experts working for the Authority;

                  7.

                  Requests that the Court of Auditors undertake performance audits on the Authority;

         Budgetary and financial management

                  8.

                  Calls on the Authority to strengthen the budget processes related to its differentiated appropriations and the planning and monitoring of its multiannual implementation; notes, in fact, that the Court of Auditors reported that EUR 6 000 000 (75 %) of the differentiated appropriations for science grants and scientific cooperation projects had to be cancelled, of which EUR 3 100 000 were funds allocated in excess of the needs identified by the Authority; welcomes, nevertheless, the Authority’s intention to take measures based on its experience for the year 2009, the first year in which the concept of differentiated appropriations for scientific cooperation projects was introduced;

                  9.

                  Urges, in addition, the Authority to improve its budget management in order to reduce its high carry-over amounts; stresses, in fact, that for the fourth successive year the Court of Auditors has flagged up carry-overs of appropriations to the following year (13 % of the 2009 budget was carried over to 2010, 23 % of the 2008 budget was carried over to 2009, 16 % of the 2007 budget was carried over to 2008 and 20 % of the 2006 budget was carried over to 2007); notes, in particular, that this situation demonstrates weaknesses in the Authority’s contract management and monitoring of the remittance of reports and cost statements;

                  10.

                  Regrets that, for the third successive year, the Court of Auditors pointed out that commitments for operational activities carried over from the previous year had to be cancelled (19 % of commitments for operational activities carried over from 2008, 37 % of commitments for operational activities carried over from 2007 and 26 % of commitments for operational activities carried over from 2006); urges the Authority to change this situation and to notify the Court of Auditors of the measures taken;

                  11.

                  Notes, in addition, that the Court of Auditors reported difficulties in the implementation of the 2009 work programme; calls, accordingly, on the Authority to take the necessary measures to remedy these deficiencies;

         Internal audit

                  12.

                  Acknowledges that the Authority has sent to the authority responsible for discharge a report drawn up by its Executive Director summarising the content of the IAS recommendation as provided for in Article 72(5) of the framework Financial Regulation; nevertheless is concerned, in particular, that out of the 48 recommendations, one is considered ‘critical’ (on grant management), 27 ‘very important’ and 20 ‘important’ but no information has been given to the discharge authority on the content of these recommendations; urges, accordingly, the Executive Director of the Authority to provide this information;

                  13.

                  Acknowledges from the Authority that the IAS conducted an in-depth audit risk assessment in the last quarter of 2009 to determine the audit priorities and the IAS audit plan for the next 3 years, an audit on declarations of interest and an audit on recruitment in 2009;

                  14.

                  Considers that the audit committee, created by the Authority in 2006, plays an important role in assisting the Management Board by ensuring that the work of the IAS and the IAC is properly carried out and duly taken into consideration by the Management Board and the Executive Director; believes, therefore, that this audit committee within the Authority might serve as an example to other agencies;

                  15.

                  Reiterates its demand on the Authority to take appropriate measures in case of conflicts of interest; invites the Authority to initiate a survey on potential conflicts of interest of its leading scientists, board and panel members, so that possible omissions in the declarations of interest can be detected and followed by action in a timely manner;

                  16.

                  Refers, in respect of the other observations accompanying its Decision on discharge, which are of a horizontal nature, to its resolution of 10 May 2011 (6) on the performance, financial management and control of the agencies.

         (1)  OJ C 338, 14.12.2010, p. 108.

         (2)  OJ L 248, 16.9.2002, p. 1.

         (3)  OJ L 31, 1.2.2002, p. 1.

         (4)  OJ L 357, 31.12.2002, p. 72.

         (5)  OJ L 252, 25.9.2010, p. 155.

         (6)  Texts adopted, P7_TA(2011)0163 (See page 269 of this Official Journal).


title: 2011/213/EU: Council Decision of 9 March 2011 on the conclusion of the Agreement between the European Community and the Government of Japan on cooperation in science and technology#Agreement between the European Community and the Government of Japan on cooperation in science and technology

text:
               6.4.2011

               EN

               Official Journal of the European Union

               L 90/1

         COUNCIL DECISION
   of 9 March 2011
   on the conclusion of the Agreement between the European Community and the Government of Japan on cooperation in science and technology
   (2011/213/EU)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 186 in conjunction with point (v) of Article 218(6)(a) thereof,
   Having regard to the proposal from the European Commission,
   Having regard to the consent of the European Parliament,
   Whereas:

               (1)

               The Commission negotiated, on behalf of the European Community, an Agreement on cooperation in science and technology with the Government of Japan.

               (2)

               That Agreement was signed by the representatives of the Parties on 30 November 2009 in Brussels subject to its conclusion at a later date.

               (3)

               As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union has replaced and succeeded the European Community.

               (4)

               The Agreement should be concluded on behalf of the Union,

         HAS ADOPTED THIS DECISION:
   Article 1
   The Agreement between the European Community and the Government of Japan on cooperation in science and technology is hereby approved on behalf of the Union.
   The text of the Agreement is attached to this Decision.
   Article 2
   The Commission shall adopt the position to be taken by the Union in the Joint Committee established by Article 6(1) of the Agreement with regard to amendments to the Agreement according to Article 13(5) of the Agreement.
   Article 3
   The President of the Council shall, on behalf of the Union, give the notification provided for in Article 13(1) of the Agreement and make the following notification to the Government of Japan:

      ‘As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union has replaced and succeeded the European Community and from that date exercises all rights and assumes all obligations of the European Community. Therefore, references to “the European Community” in the text of the Agreement are, where appropriate, to be read as “the European Union”.’

   Article 4
   This Decision shall enter into force on the day of its adoption.

      Done at Brussels, 9 March 2011.

            For the Council

            The President

         CSÉFALVAY Z.

      AGREEMENT
      between the European Community and the Government of Japan on cooperation in science and technology
      THE EUROPEAN COMMUNITY hereinafter referred to as ‘the Community’
      and
      THE GOVERNMENT OF JAPAN
      DESIRING to further promote the close and friendly relations existing between Japan and the Community, and being aware of the rapid development of scientific knowledge and of its positive contribution in promoting bilateral and international cooperation;
      WISHING to broaden the scope of cooperation in science and technology in a number of areas of common interest through the creation of a productive partnership for peaceful purposes and for their mutual benefit;
      BELIEVING that such cooperation and the application of the results of such cooperation contribute to the economic and social development of Japan and the Community;
      DESIRING to establish a formal framework for the conduct of the overall cooperative activities which will strengthen cooperation in science and technology between the Parties;
      HAVE AGREED AS FOLLOWS:
      Article 1
      1.   The Parties shall encourage, develop and facilitate cooperative activities under this Agreement in the areas of science and technology for peaceful purposes.
      2.   The cooperative activities under this Agreement shall be conducted on the basis of the following principles:

                  (a)

                  mutual and equitable contributions and benefits;

                  (b)

                  reciprocal access to research and development programmes and projects and facilities for visiting researchers;

                  (c)

                  timely exchange of information which may affect the cooperative activities under this Agreement;

                  (d)

                  promotion of a knowledge-based society for the benefit of the economic and social development of Japan and the Community.

            Article 2
      1.   The cooperative activities under this Agreement consist of direct cooperative activities and indirect cooperative activities.
      2.   For the purpose of this Agreement:

                  (a)

                  the term ‘the Parties’ means the Government of Japan and the Community;

                  (b)

                  the term ‘direct cooperative activities’ means cooperative activities between the Parties or their agencies;

                  (c)

                  the term ‘indirect cooperative activities’ means cooperative activities between persons of Japan and the Community carried out under research and development programmes and projects;

                  (d)

                  the term ‘research and development programmes and projects’ means the Framework Programme for research and technological development operated by the Community or research and development programmes and projects with the competitive funding system operated by the Government of Japan, its agencies or official institutions;

                  (e)

                  the term ‘persons’ means:

                              (i)

                              with respect to Japan, any nationals of Japan or any legal persons established under the national laws of Japan; and

                              (ii)

                              with respect to the Community, any nationals of the Member States of the Community or any legal persons established under the national laws of the Member States of the Community or the Community law;

                  (f)

                  the term ‘agencies’ means:

                              (i)

                              with respect to Japan, the governmental agencies of Japan; and

                              (ii)

                              with respect to the Community, the European Commission;

                  (g)

                  the term ‘official institutions’ means official institutions whose budgets and operating plans are approved by the competent Ministers of the Government of Japan, and whose research and development programmes and projects with the competitive funding system are included, with their consent, into those programmes and projects for indirect cooperative activities;

                  (h)

                  the term ‘intellectual property rights’ shall have the meaning given to ‘intellectual property’ in Article 2 of the Convention Establishing the World Intellectual Property Organization, signed at Stockholm on July 14, 1967.

            Article 3
      1.   Forms of the direct cooperative activities may include the following:

                  (a)

                  meetings of various forms, such as those of experts, to discuss and exchange information on scientific and technological aspects of general or specific subjects and to identify research and development programmes and projects that may be usefully undertaken on a cooperative basis;

                  (b)

                  exchange of information on activities, policies, practices, and laws and regulations concerning research and development;

                  (c)

                  visits and exchanges of scientists, technical personnel, or other experts on general or specific subjects;

                  (d)

                  implementation of any other forms of cooperative activities as may be identified, proposed and decided at the Joint Committee on Scientific and Technological Cooperation referred to in Article 6 of this Agreement.

            2.   For the purpose of developing indirect cooperative activities, any person of a Party can participate in research and development programmes and projects, operated by the other Party, its agencies or official institutions, in accordance with the laws and regulations of the other Party, and subject to Annexes I and II to this Agreement.
      Article 4
      The details and procedures of each cooperative activity under this Agreement may be decided between the Parties, their agencies or official institutions engaged in that cooperative activity.
      Article 5
      With regard to the direct cooperative activities under this Agreement, each Party or its agencies may allow, as appropriate, with the consent of the other Party or its agencies, the participation of researchers and organisations from all sectors of the research establishment including the private sector.
      Article 6
      1.   For the purpose of effective implementation of this Agreement, the Parties shall establish a Joint Committee on Scientific and Technological Cooperation (hereinafter referred to as ‘the Joint Committee’). The Joint Committee shall be co-chaired by officials of the Ministry of Foreign Affairs of Japan and of the European Commission.
      2.   The functions of the Joint Committee shall be:

                  (a)

                  exchanging information and views on scientific and technological policy issues;

                  (b)

                  identifying, proposing and deciding the cooperative activities under this Agreement;

                  (c)

                  reviewing and discussing the accomplishments of the cooperative activities under this Agreement;

                  (d)

                  providing advice and encouragement to the Parties with regard to the implementation of this Agreement;

                  (e)

                  reviewing regularly the reciprocal access to research and development programmes and projects and arrangements for visiting researchers and examining concrete measures to improve that access and to ensure the effectiveness of the principle on reciprocity mentioned in Article 1 of this Agreement.

            3.   Decisions of the Joint Committee shall be reached by mutual consent.
      4.   The Joint Committee shall meet at mutually convenient times, preferably at least once every 2 years.
      5.   The Government of Japan and the Community shall host alternately the Joint Committee meeting, unless otherwise agreed.
      6.   For the Joint Committee meeting, the expenses for travel and accommodation of the participants will be borne by the Party to whom they relate. Any other costs associated with the Joint Committee meeting will be borne by the host Party.
      7.   The Joint Committee will adopt its own internal rules of procedure.
      8.   The Joint Committee may make decisions through diplomatic channels when it is not in session.
      Article 7
      Implementation of this Agreement shall be subject to the availability of appropriated funds and to the applicable laws and regulations of each Party.
      Article 8
      1.   Scientific and technological information of a non-proprietary nature resulting from direct cooperative activities may be made available to the public by either Party through customary channels and in accordance with the normal procedures of the participating agencies.
      2.   Intellectual property rights and undisclosed information resulting from, introduced in the course of, or obtained through the cooperative activities under this Agreement shall be treated in accordance with the provisions of Annex II to this Agreement.
      Article 9
      Each Party shall make every effort, within the framework of its laws and regulations, to accord to the persons, carrying out the cooperative activities under this Agreement, all possible facilities with a view to facilitating the free movement and stay of researchers participating in those cooperative activities and to facilitating the entry into and exit from its territory of materials, data or equipment intended for use in those cooperative activities.
      Article 10
      The provisions of this Agreement shall not prejudice rights and obligations with respect to existing and future agreements for cooperation between the Parties or between the Government of Japan and the Government of any Member State of the Community.
      Article 11
      All questions or disputes related to the interpretation or implementation of this Agreement shall be settled by mutual consultation between the Parties.
      Article 12
      Annexes I and II to this Agreement form an integral part of this Agreement.
      Article 13
      1.   This Agreement shall enter into force on the date on which the Parties exchange diplomatic notes informing each other that their respective internal procedures necessary for the entry into force of this Agreement have been completed.
      2.   This Agreement shall remain in force for 5 years and shall continue in force thereafter unless terminated by either Party at the end of the initial 5-year period or at any time thereafter by giving to the other Party at least 6 months’ written advance notice of its intention to terminate this Agreement.
      3.   The termination of this Agreement shall not affect carrying out of the cooperative activities undertaken under this Agreement and not fully executed at the time of the termination of this Agreement, or any specific rights and obligations that have accrued in compliance with Annex II to this Agreement.
      4.   Each Party may evaluate the impact of this Agreement and activities under this Agreement every 5 years, and the Party which does so shall inform the other Party of the results of the evaluation. Each Party will make every effort to facilitate the evaluation conducted by the other Party.
      5.   This Agreement may be amended by mutual consent of the Parties through diplomatic notes exchanged between them. Amendments shall enter into force under the same conditions as mentioned in paragraph 1 above, unless otherwise agreed.
      This Agreement and Annexes I and II of this Agreement are drawn up in two originals in each of the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and Japanese languages with each of these texts being equally authentic. In case of divergence of interpretation, the English and Japanese texts shall prevail over the other language texts.

         IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by the European Community and the Government of Japan respectively, have signed this Agreement.
         Done at Brussels, this thirtieth day of November, 2009.

               For the European Community

               For the Government of Japan

         ANNEX I

            TERMS AND CONDITIONS FOR THE PARTICIPATION OF PERSONS IN RESEARCH AND DEVELOPMENT PROGRAMMES AND PROJECTS

                     I.

                     Where within the framework of this Agreement a Party, its agencies or official institutions conclude a contract with a person of the other Party for research and development programmes and projects, the other Party shall, when requested, endeavour to provide any reasonable and feasible assistance as may be necessary or helpful for the former Party, its agencies or official institutions to facilitate the smooth implementation of such contract.

                     II.

                     Persons of Japan may participate in the Framework Programme for research and technological development operated by the Community. Such participation of persons of Japan shall be in accordance with the rules for participation, dissemination and implementation of the Framework Programme.

                     III.

                     Persons of the Community may participate in research and development programmes and projects with the competitive funding system operated by the Government of Japan, its agencies or official institutions in scientific and technological fields similar to those of the Framework Programme for research and technological development. Such participation of persons of the Community shall be in accordance with the laws and regulations of Japan and the relevant rules for participation, dissemination and implementation of the specific programme or project.

         ANNEX II

            INTELLECTUAL PROPERTY RIGHTS AND UNDISCLOSED INFORMATION

         I.   Intellectual property rights of the Parties in direct cooperative activities

                     1.

                     The following rules shall apply to intellectual property rights resulting from direct cooperative activities, except copyright and related rights referred to in paragraph 3 below:

                                 (a)

                                 the intellectual property rights shall be owned by the Party or its agencies which generate the intellectual property. Where the intellectual property has been generated jointly, the Parties or their agencies shall consult to agree upon the ownership or allocation of the intellectual property rights taking into account the respective share of the work of the Parties or their agencies;

                                 (b)

                                 the Party or its agencies owning the intellectual property rights shall grant a licence to use such rights to the other Party or its agencies for carrying out any direct cooperative activity if this is needed to enable the other Party or its agencies to carry out their own work for the specific project under this Agreement. In case of patents and utility models, this licence shall be granted on a royalty-free basis. The granting of a licence to use any intellectual property rights under this subparagraph shall be subject to the applicable laws and regulations of each Party, and the conditions to be agreed upon between the Parties or their agencies prior to the start of the project.

                     2.

                     The Party or its agencies owning the intellectual property rights introduced in the course of direct cooperative activities shall grant a licence to use such rights to the other Party or its agencies for carrying out any direct cooperative activity if this is needed to enable the other Party or its agencies to carry out their own work for the specific project under this Agreement. The granting of a licence to use any intellectual property rights under this paragraph shall be subject to the applicable laws and regulations of each Party, and the conditions to be agreed upon between the Parties or their agencies prior to the start of the project.

                     3.

                     The following rules shall apply to copyright and related rights of the Parties or their agencies:

                                 (a)

                                 where a Party or its agencies publish scientific and technical data, information and results by means of journals, articles, reports, books, video tapes and digital storage devices, resulting from direct cooperative activities, the Party will make its best efforts to obtain for the other Party a non-exclusive, irrevocable and royalty-free licence in all countries where copyright protection is available to translate, reproduce, adapt, transmit and publicly distribute such works;

                                 (b)

                                 all publicly distributed copies of a copyrighted work under the provisions of subparagraph (a) above shall indicate the name(s) of the author(s) of the work unless an author explicitly declines to be named. They shall also bear a clearly visible acknowledgement of the cooperative support of the Parties.

               II.   Undisclosed information in direct cooperative activities

         The following rules shall apply to undisclosed information of the Parties or their agencies:

                     1.

                     When communicating to the other Party or its agencies information necessary to carry out direct cooperative activities, each Party shall identify that information it wishes to remain undisclosed.

                     2.

                     The Party or its agencies receiving undisclosed information may, under its own responsibility, communicate such undisclosed information to its agencies or persons within or employed by themselves if this is needed to enable those agencies or persons to carry out their own work for the specific project under this Agreement.

                     3.

                     With the prior written consent of a Party or its agencies providing undisclosed information, the other Party or its agencies may disseminate such undisclosed information more widely than otherwise permitted in paragraph 2 above. The Parties or their agencies shall cooperate with each other in developing procedures for requesting and obtaining prior written consent for such wider dissemination, and each Party will grant such consent to the extent permitted by its laws and regulations.

                     4.

                     Information obtained through seminars, other meetings, assignment of staff and use of facilities arranged under this Agreement, shall remain confidential where the recipient of such undisclosed or other confidential or privileged information was made aware of the confidential character of the information communicated at the time such communication was made according to paragraph 1 above, and be treated as indicated in paragraphs 2 and 3 above.

                     5.

                     If a Party becomes aware that it will be, or may be reasonably expected to become, unable to meet the restrictions and conditions of dissemination in paragraphs 2, 3 and 4 above, it shall immediately inform the other Party. The Parties shall thereafter consult to define an appropriate course of action.

               III.   Intellectual property rights of persons in indirect cooperative activities

         Each Party shall ensure that the intellectual property rights of persons of the other Party participating in research and development programmes and projects operated by the former Party, its agencies or official institutions, and the related rights and obligations resulting from such participation, shall be consistent with the relevant international conventions which are binding on the Government of Japan and the Community or all its Member States, including the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the Marrakech Agreement Establishing the World Trade Organization, as well as the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works and the Stockholm Act of July 14, 1967 of the Paris Convention for the Protection of Industrial Property.


title: 2011/604/EU: Decision of the European Parliament of 10 May 2011 on discharge in respect of the implementation of the budget of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2009#Resolution of the European Parliament of 10 May 2011 with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2009

text:
               27.9.2011

               EN

               Official Journal of the European Union

               L 250/224

         DECISION OF THE EUROPEAN PARLIAMENT
   of 10 May 2011
   on discharge in respect of the implementation of the budget of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2009
   (2011/604/EU)
   THE EUROPEAN PARLIAMENT,

               —

               having regard to the final annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2009,

               —

               having regard to the Court of Auditors’ report on the annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States for the financial year 2009, together with the Agency’s replies (1),

               —

               having regard to the Council’s recommendation of 15 February 2011 (05892/2011 — C7-0052/2011),

               —

               having regard to Article 276 of the EC Treaty and Article 319 of the Treaty on the Functioning of the European Union,

               —

               having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

               —

               having regard to Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (3), and in particular Article 30 thereof,

               —

               having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

               —

               having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

               —

               having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Civil Liberties, Justice and Home Affairs (A7-0145/2011),

               1.

               Grants the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union discharge in respect of the implementation of the Agency’s budget for the financial year 2009;

               2.

               Sets out its observations in the resolution below;

               3.

               Instructs its President to forward this Decision and the resolution that forms an integral part of it to the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, the Council, the Commission and the Court of Auditors, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Jerzy BUZEK

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 338, 14.12.2010, p. 40.

      (2)  OJ L 248, 16.9.2002, p. 1.

      (3)  OJ L 349, 25.11.2004, p. 1.

      (4)  OJ L 357, 31.12.2002, p. 72.

      RESOLUTION OF THE EUROPEAN PARLIAMENT
      of 10 May 2011
      with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2009
      THE EUROPEAN PARLIAMENT,

                  —

                  having regard to the final annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2009,

                  —

                  having regard to the Court of Auditors’ report on the annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States for the financial year 2009, together with the Agency’s replies (1),

                  —

                  having regard to the Council’s recommendation of 15 February 2011 (05892/2011 — C7-0052/2011),

                  —

                  having regard to Article 276 of the EC Treaty and Article 319 of the Treaty on the Functioning of the European Union,

                  —

                  having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

                  —

                  having regard to Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (3), and in particular Article 30 thereof,

                  —

                  having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

                  —

                  having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

                  —

                  having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Civil Liberties, Justice and Home Affairs (A7-0145/2011),

                  A.

                  whereas the Court of Auditors stated that it has obtained reasonable assurances that the annual accounts for the financial year 2009 are reliable and that the underlying transactions are legal and regular,

                  B.

                  whereas, on 5 May 2010, Parliament granted the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union discharge for implementation of the Agency’s budget for the financial year 2008 (5), and, in its resolution accompanying the discharge decision, inter alia:

                              —

                              was concerned that the Court of Auditors found several weaknesses already highlighted in its 2006 and 2007 annual reports and in particular concerning:

                                          (i)

                                          the high level of carry-overs and cancellations (with, respectively, 49 %, nearly 69 % and 55 % of the appropriations available in 2008, 2007 and 2006 unspent);

                                          (ii)

                                          the fact that legal commitments were entered into before the corresponding budgetary commitments;

                                          (iii)

                                          the fact that, according to the Court of Auditors, the recruitment procedures depart from the rules, in particular as regards the transparency and non-discriminatory nature of the procedures in question;

                              —

                              called on the Agency to improve its financial management, especially as regards the increase in its budget for the financial years 2007 and 2008,

                  C.

                  whereas 2008 was the fourth full year of the Agency’s operation,

                  D.

                  whereas the Agency’s budget for the year 2009 was EUR 88 800 000, which is an increase of nearly 28 %, compared with the previous year,

                  1.

                  Is pleased to note that the Court of Auditors has been able to obtain reasonable assurances that the annual accounts of the Agency for the financial year 2009 are in all material respects reliable and that the underlying transactions, taken as a whole, are legal and regular;

         Substantial increase of the budget

                  2.

                  Notes that the Agency’s budget has increased substantially in the last 4 years; notes that, for the financial year 2009, the budget increased more than threefold over the financial year 2006 (EUR 19 200 000);

         Performance

                  3.

                  Welcomes that, in June 2009, the Management Board of the Agency adopted a multiannual plan for the period 2010-2013 despite the lack of provision for this in its basic regulation; stresses the importance of that multiannual plan in enabling the Agency to plan its activities and risk-assess them more effectively; none the less, calls on the Agency to promptly establish a link between its work programme and its financial forecasts;

                  4.

                  Calls again on the Agency to set out, in its table to be annexed to the Court of Auditors’ next report, a comparison of the operations that were carried out during the year for which discharge is to be granted and in the previous financial year, so as to enable the discharge authority to assess more effectively its performance from one year to the next;

                  5.

                  Welcomes the Agency’s initiative of launching, in 2009, the so-called ‘Frontex Performance Management System’ to better inform the Agency’s Governing Board by providing it with data on the impact of the agency operations; notes that this new system is intended to promote reporting which is more ‘outcome-oriented’ and which completes input and output indicators; calls, nevertheless, on the Agency to provide information on the impact of its operations and to inform the discharge authority thereof;

                  6.

                  Notes that the discharge for the implementation of the Agency’s budget should be further based on its performance throughout the year;

         Cooperation with the Member States

                  7.

                  Calls on the Agency to improve its financial management with regard to the reimbursement of costs incurred by Member States by identifying, with those Member States, the roots of the problem so as to implement, together, the appropriate solutions;

         Carry-overs and cancellations of appropriations

                  8.

                  Is concerned that the Court of Auditors has reported carry-overs which were already reported in its 2006, 2007 and 2008 annual reports; regrets, in particular, the high level of carry-overs and cancellations since 2006;

                  9.

                  Urges, therefore, the Agency to improve the level of use of appropriations by putting in place appropriate instructions and procedures for the analysis of potential carry-forwards to reduce to a minimum the volume of appropriations carried over; considers it, also, to be important for the Agency to improve the programming and the monitoring of activities;

                  10.

                  Is also concerned that the Agency had to cancel appropriations (EUR 13 900 000 for 2009 and EUR 13 000 000 for 2008);

                  11.

                  Notes that the Court of Auditors reported 28 budgetary transfers due to the fact that the procedures for drawing up the budget were not sufficiently rigorous; observes, also, that, by the end of 2009, six of 39 budgetary lines of Title II -Administrative expenditure had not been used and 35 % of the corresponding appropriations were cancelled;

                  12.

                  Points out that a high level of carry-overs and cancellations is indicative of the inability of the Agency to manage such a large increase in its budget; wonders whether it would not be more responsible for the budgetary authorities to take greater care in future when deciding on increases in the Agency’s budget in the light of the time needed to carry out the new activities; calls on the Agency therefore to provide it with fuller details on the feasibility of future commitments;

                  13.

                  Welcomes, nevertheless, the Agency’s initiative to further develop its system for scheduling and monitoring the contractual deadline laid down in grants; notes also that since 2009 the Agency has implemented a risk assessment and risk management process for its activities;

         Grant Management

                  14.

                  Observes that the Court of Auditors reported, for the second year running, that the Agency paid out amounts on the basis of unilateral grant decisions signed by the Agency, while the rules in force make no provision for this type of instrument; notes that the amount paid out in 2009 was more than EUR 28 000 000 and in 2008 was EUR 17 000 000; welcomes, nevertheless, the Agency’s initiative, made in response to the Court’s observation, of signing a framework Partnership Agreement with Member States border authorities;

                  15.

                  Calls on the Agency to improve its grant management by:

                              —

                              carrying out on-the-spot controls on the grant beneficiaries,

                              —

                              promoting standard unit costs per category instead of grants based on reimbursements of eligible costs,

                              —

                              clearly describing, communicating and monitoring the actors’ responsibilities,

                              —

                              providing an operational plan agreed by all actors;

         Accuracy of the operational budget

                  16.

                  Notes with concern that the Court of Auditors reported the overstatement by 27 % of the costs for pre-financing to border authorities in the 8 cases audited; notes also that, for the activities which ended in 2009, more than 40 recovery orders had to be issued to recover advances made in excess;

         Human resources

                  17.

                  Welcomes the Agency’s initiative of taking measures to increase the objectivity and transparency of the recruitment processes, in accordance with the Parliament’s recommendations; notes, in fact, that the Agency adopted implementing rules and internal guidelines for the members of the selection committees; congratulates, in particular, the Agency for adopting a Recruitment Policy in November 2010 which includes the following concrete actions: compliance with deadlines when nominating the selection board members, prior preparation of interview questions and the content of written tests, anonymous assessment of written tests; preparation of model answers for interview questions and written tests, preparation of minutes in respect of any recruitment, development of an e-recruitment tool to be implemented in the course of 2011 to facilitate the recruitment and selection process;

         Internal audit

                  18.

                  Acknowledges that the Internal Audit Service (IAS) carried out, in 2009, an audit on Grant Management with the objective of assessing the following: the annual planning of grants, the legal instrument used, the implementation of grants and the monitoring and reporting;

                  19.

                  Acknowledges that, out of the 19 recommendations issued by the IAS on the follow-up of early recommendations, 6 have been adequately and effectively implemented, 10 are in progress and 3 are completed but still need to be verified by the IAS; calls, nevertheless, on the Director of the Agency to inform the discharge authority as to the content of the recommendations that are considered to be ‘very important’ by the IAS and on the actions taken in that respect;

                  20.

                  Refers, in respect of the other observations accompanying its Decision on discharge, which are of a horizontal nature, to its resolution of 10 May 2011 (6) on the performance, financial management and control of the agencies.

         (1)  OJ C 338, 14.12.2010, p. 40.

         (2)  OJ L 248, 16.9.2002, p. 1.

         (3)  OJ L 349, 25.11.2004, p. 1.

         (4)  OJ L 357, 31.12.2002, p. 72.

         (5)  OJ L 252, 25.9.2010, p. 211.

         (6)  Texts adopted, P7_TA(2011)0163 (See page 269 of this Official Journal).