Do airlines need to comply with 2004/38/EC rights ?

[acme4242]

I'm trying to find a written instruction from the EU Commission
to carriers that says they must comply with 2004/38/EC.
Namely the right of EU citizens and their family to travel even
without required EU visa.
I have not found anything yet. Can someone here help.

Below are my exchanges with the "Your Europe Advice" also
known as the "Citizens Signpost service"
Anyway, I'm non the wiser, except I now know there are 2 EU directives
that force the Airlines to conduct visa checks.

a) Directive 2001/51 which harmonises the financial penalties
imposed on carriers transporting into the territories of European
Union (EU) countries non-EU nationals lacking the necessary admission
documents

b) Directive 2004/82 which requires air carriers to collect and transmit
passenger data to the authorities of the Member State of destination
responsible for control. Non-compliance may lead to fines being imposed
and even, in the case of serious infringement, confiscation of the means
of transport or withdrawal of the operating licence.

Currently, if EU citizens and their non-EEA family members travelling
to other EU country do not have the required Schengen visa, they can
still enter provided they have their marriage cert or other proof that
they are EU family members.
And they can show the Border Guard the Border Guard Handbook.

3. Special rules for checks on certain categories of persons
3.1 Persons enjoying the Community right of free movement
3.1.1 Persons enjoying the Community right of free movement are authorised to cross the border
of a Member State on the basis of the following documents, as a general rule:
– EU, EEA, CH citizens: identity card or passport;
– members of the family of EU, EEA, CH citizens who are nationals of a third country:
passport. They may also be required to have an entry visa, if they are nationals of a third
country subject to the visa obligation, unless they are in possession of a valid residence
permit or card, issued by a Member State (or by EEA countries or CH).

3.1.2 However, if a person enjoying the Community right of free movement does not have the
necessary travel documents or, if required, the necessary visas, the Member State
concerned must, before turning him/her back, give such person every reasonable
opportunity to obtain the necessary documents or have them brought to him/her within a
reasonable period of time or corroborate or prove by other means that he/she is covered by
the right of free movement.

But what about Airlines refusing travel because of no visa ?

---------- Forwarded message ----------
From: <signpost_service@ec.europa.eu>
Date: Wed, Sep 8, 2010 at 9:48 AM
Subject: SIGNPOST SERVICE - Please Do Not Reply To This Email - Answer to the enquiry 79278 posted on 04/09/2010


Enquiry posted on
04/09/2010

Enquiry
79278:
Dear Signpost Service,
The carriers’ liability regime in EU law, which resulted in the introduction of extensive checking facilities belonging to carriers at airports as well as major ports of entry to the EU, occurred with the article 26 of the Schengen Accord. The provision that found its place in the EU asylum acquis after the adoption of the Amsterdam Treaty is as follows:

The carrier shall be obliged to take all necessary measures to ensure that an alien carried by air or sea is in possession of the travel documents required for entry into the territory of the Contracting Parties.

Now, my question is,
As Airlines staff seem completely unaware of the legal rights of EU citizens
and their family. And sometimes wrongly refuse travel to EU families without visa.
Is there any official instructions from the EU commission to the airlines,
on this issue.

Can you please provide me a link to the instructions or send me the document.

Yours Faithfully





Enquiry posted on
02/09/2010

Enquiry
79182:
Dear Signpost Service,

Non-EU family members of EU citizens have a fundamental right (coming from the
EU treaties) to travel together with their EU family members to any of the EU
member states, even if they do not have the required visa. This right has been
clarified and upheld in 2002 by the highest European court, the ECJ, in the case
C-459/99 (MRAX vs Kingdom of Belgium), and has been incorporated explicitly into
Directive 2004/38/EC.

The Schengen Border Guard Handbook also makes this very clear in its instructions
to Schengen Border Guards. So the rules are clearly written for Border Guards

However The EU commission has passed on certain responsibilities such as
checking for Visas to the airlines.
The Airlines staff seem completely unaware of the legal rights of EU citizens
and their family. And sometimes wrongly refuse travel to EU families without visa.

Is there any official instructions from the EU commission to the airlines,
on this issue.

Can you please provide me a link to the instructions or send me the document.

Yours Faithfully








Reply
Dear xxx,
Thank you for your query to Your Europe Advice.
I am not aware of any requirement on an airline to check visas in the EU. I am aware that Ryanair operate a visa check system but am not aware of other airlines engaging in the practice.
Should you wish to revert to the service on this issue, please do not hesitate to do so.
Yours sincerely,
Your Europe Advice

Reply
Dear xxx,

Thank you for your enquiry.

There are two Directives which attempt to ensure co-ordination in relation to the implementation of Article 26 of the Schengen Convention. These Directives are as follows:

a) Directive 2001/51 which harmonises the financial penalties imposed on carriers transporting into the territories of European Union (EU) countries non-EU nationals lacking the necessary admission documents
b) Directive 2004/82 which requires air carriers to collect and transmit passenger data to the authorities of the Member State of destination responsible for control. Non-compliance may lead to fines being imposed and even, in the case of serious infringement, confiscation of the means of transport or withdrawal of the operating licence.
For further information on free movement of persons in the EU, you may wish to browse the following website where you can also find copies of the Directives referred to above.

I trust that this information is of assistance to you.

Yours sincerely,

Your Europe Advice





Note: To post another enquiry, please visit the Signpost Service Web Site or contact EUROPE DIRECT.

[ca.funke]

Hi acme4242,

I´ve had contact with the "Signpost-Service" several times so far, and never got a correct/reliable answer.

So far, whatever I researched myself between 30 minutes to one hour, was more accurate than what they told me.

That´s the only general feedback I have on the matter.

However, I hope that this thread will lead to more results, as next week I´ll travel from Switzerland to Cyprus. The visa-implications for this specific trip are -as usual- quite complicated, and I hope we´ll make it onto the plane here in Zürich...

Regards,
Christian

[MelC]

Hi, we eem to be loitering around the same threads here ~

i also emailed with your europe on this point, as if the italians don't get their act together huibby will have to travel visaless!!!

there does't seem to be anything other than what you have, what i have done is as we are travelling by Ferry (at least you have airline info! try ferry info!)
I have emailled the ferry company directly, enclosed the schengen border rules, and the carriers libaility, and info from the directive, assuring them that they will receive no penalty as my hubby has the right to entry blah blah ~
I hve asked would they accept my husband on board without issue, and would they provide a letter visa email to state that he can board, as our problem without a visa is getting OUT of this country not getting into the EU!

so i wonder if you contacted the airline directly, pointed out the directive relevance and photocopies of marraige cert and passports ~ what their response would be?

I am waiting to hear from the ferry company, don't expect anything too soon as it too 2 weeks to confirm kenneling for the cats!

[acme4242]

so i wonder if you contacted the airline directly, pointed out the directive relevance and photocopies of marraige cert and passports ~ what their response would be?

I asked at Ryanair's visa checking desk.
The reply was, "we only know how to check visas, nothing else, sorry"
and sent me off to airline information. They were similarly polite, but
clueless.
They said they don't have any instruction manuals from head office either.
I didn't take it any further.

But in fairness, this mess is caused by the EU commission
passing carrier liability directives without ensuring it would not
conflict with EU freedom of movement directives.

[MelC]

i agree, the mess starts there, however ~ each countries foreign ministry KNOWS the directive exists, every govt KNOWS it exists and it is up to them to make sure that the various industries KNOW, and up to them to make sure the frontline staff know!!!

when my friend went from here to france, yes on this visa lol the girl on check in desk asked for his return ticket, he pointed at the visa and said see that it says FAMILY EU ~ I am not coming back, a senior member of staff stepped forward looked and said oh accompanying family member welcome sir!!!!!!!!!!!!!!!!!!!!!

the girl on check in wanted to know why SHE didn't know about the visa when its her job to check them, but the senior member of staff did ~ So do they really know but don't want to say so? who exactly is they want to keep out of where?

i won't take that any further here.

[ca.funke]

My overall feeling tells me the following:

"Carrier´s liability" forces airlines to ensure that everyone who boards the plane may legally enter the destination country.

Reason is simple: If an "illegal" passenger arrives, (s)he has to be deported. This will involve costs which the concerned states do not want to bear and thus shift them on the airlines.

As soon as you have a plane-ticket, you have a contract with the airline to take you from "A" to "B".

The only legitimate reason for an airline not to take you from "A" to "B" (aside from overbooking), would be that you do not have the legal right to enter "B".

As such airlines must know all relevant immigration-laws, and this also includes 2004/38/EC >>travel without visa<<.

[MelC]

My overall feeling tells me the following:

"Carrier´s liability" forces airlines to ensure that everyone who boards the plane may legally enter the destination country.

Reason is simple: If an "illegal" passenger arrives, (s)he has to be deported. This will involve costs which the concerned states do not want to bear and thus shift them on the airlines.

As soon as you have a plane-ticket, you have a contract with the airline to take you from "A" to "B".

The only legitimate reason for an airline not to take you from "A" to "B" (aside from overbooking), would be that you do not have the legal right to enter "B".

As such airlines must know all relevant immigration-laws, and this also includes 2004/38/EC >>travel without visa<<.

I agree, however, as most third country nationals, have to depart via "national airlines" which may be only thier own country, the directive means little to nothing!

my passport gets scrutinised to make sure i have the correct exit info as i have residence here, so i know my hubby would not stand a chance without a visa of EXITING the third country ~