Legal provisions of COM(2016)270 - Criteria and mechanisms for determining the Member State responsible for an application for international protection by a third-country national or a stateless person (recast) - Main contents
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| dossier | COM(2016)270 - Criteria and mechanisms for determining the Member State responsible for an application for international protection by a ... |
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| document | COM(2016)270  |
| date | May 4, 2016 |
CHAPTER I
SUBJECT MATTERAND DEFINITIONS
Article 1
Subject matter
This Regulation lays down the criteria and mechanisms for determining the E/ single nS Member State responsible for examining an application for international protection lodged in
one of the Mem ber States by a thi rd - country national or a stateless person (‘the Member State responsible’).
Aticle 2
Definitions
For the purposes of this Regulation:
(a)‘third country national’ means any person who is not a citizen of the Union within
the meaning of Article 20(1) TFEU and who is not national of a State which participates in this Regulation by virtue of an agreement with the European Union;
(b)‘application for international protection’ means an application for international
protection as defined in Article 2(h) of Directive 2011/95/EU;
(c)‘applicant’ means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken;
(d)‘examination of an application for international protection’ means any
examination of, or decision or ruling concerning, an application for international
protection by the competent authorities in accordance with Directive 2013/32/EU and Directive 2011/95/EU, except for procedures for determining the Member State responsible in accordance with this Regulation;
(e)‘withdrawal of an application for international protection’ means the actions by
which the applicant terminates the procedures initiated by the submission of his or her application for international protection, in accordance with Directive 2013/32/EU, either explicitly or tacitly;
(f)‘beneficiary of international protection’ means a third-country national or a
stateless person who has been granted international protection as defined in Article 2(a) of Directive 2011/95/EU;
(g)‘family members’ means, insofar as the family already existed I before the
applicant arrived on the territory of the Member States ^ in the countr y o ori gin, the
following members of the applicant’s family who are present on the territory of the
Member States:
– the spouse of the applicant or his or her unmarried partner in a stable
relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to th ir d - country nationals,
– the minor children of couples referred to in the first indent or of the applicant,
on condition that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law,
– when the applicant is a minor and unmarried, the father, mother or another
adult responsible for the applicant, whether by law or by the practice of the Member State where the adult is present,
– when the beneficiary of international protection is a minor and unmarried, the
father, mother or another adult responsible for him or her whether by law or by the practice of the Member State where the beneficiary is present;,
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the sibling or siblings of the applicant;
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(h)‘relative’ means the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State, regardless of whether the applicant was born in or out of wedlock or adopted as defined under national law;
(i)‘minor’ means a third-country national or a stateless person below the age of 18 years;
(j)‘unaccompanied minor’ means a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her, whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such an adult; it includes a minor who is left unaccompanied after he or she has entered the territory of Member States;
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(k)‘representative’ means a person or an organisation appointed by the competent bodies in order to assist and represent an unaccompanied minor in procedures provided for in this Regulation with a view to ensuring the best interests of the child and exercising legal capacity for the minor where necessary. Where an organisation is appointed as a representative, it shall designate a person responsible for carrying out its duties in respect of the minor, in accordance with this Regulation;
(l)‘residence document’ means any authorisation issued by the authorities of a Member State authorising a third-country national or a stateless person to stay on its territory, including the documents substantiating the authorisation to remain on the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the Member State responsible as established in this Regulation or during the examination of an application for international protection or an application for a residence permit;
(m)‘visa’ means the authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions:
– ‘long-stay visa’ means an authorisation or decision issued by one of the
Member States in accordance with its national law or Union law required for entry for an intended stay in that Member State of more than three months,
– ‘short-stay visa’ means an authorisation or decision of a Member State with a
view to transit through or an intended stay on the territory of one or more or all the Member States of a duration of no more than three months in any six-month period beginning on the date of first entry on the territory of the Member States,
– ‘airport transit visa’ means a visa valid for transit through the international
transit areas of one or more airports of the Member States;
(n)‘risk of absconding’ means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond.;
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(o) benefitting Member State means the Member State benefitting from the corrective allocation mechanism set out in Chapter VII of this Regulation and carrying out the allocation of the applicant;
(p) ‘Member State of allocation’ means the Member States to which an applicant will be allocated under the allocation mechanism set out in Chapter VII of this Regulation;
(q) ‘resettled person’ means a person subject to the process of resettlement whereby, on a request from the United Nations High Commissioner for Refugees (‘UNHCR’) based on a person’s need for international protection, third-country nationals are transferred from a third country and established in a Member State where they are permitted to reside with one of the following statuses:
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(i) ‘refugee status’ within the meaning of point (e) of Article 2 of Directive 2011/95/EU;
(ii) ‘subsidiary protection status’ within the meaning of point (g) of Article 2 of Directive 2011/95/EU; or
(iii) any other status which offers similar rights and benefits under national and Union law as those referred to in points (i) and (ii);
(r) ‘European Union Agency for Asylum' means the Agency as established by Regulation (EU) [Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010].
* 604/2013
CHAPTERII GENERALPRINCIPLESANDSAFEGUARDS
Article 3
Access to the procedure for examining an application for international protection
1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.
Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.
Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.
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3. Any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU.
3. Before applying the criteria for determining a Member State responsible in accordance with Chapters III and IV, the first Member State in which the application for international protection was lodged shall:
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(a) examine whether the application for international protection is inadmissible pursuant to Article 33(2) letters b) and c) of Directive 2013/32/EU when a country which is not a Member State is considered as a first country of asylum or as a safe third country for the applicant; and
(b) examine the application in accelerated procedure pursuant to Article 31(8) of Directive 2013/32/EU when the following grounds apply:
(i) the applicant has the nationality of a third country, or he or she is a stateless person and was formerly habitually resident in that country, designated as a safe country of origin in the EU common list of safe countries of origin established under Regulation [Proposal COM (2015) 452 of 9 September 2015]; or
(ii) the applicant may, for serious reasons, be considered a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security or public order under national law.
4. Where the Member State considers an application inadmissible or examines an application in accelerated procedure pursuant to paragraph 3, that Member State shall be considered the Member State responsible.
5. The Member State which has examined an application for international protection, including in the cases referred to in paragraph 3, shall be responsible for examining any further representations or a subsequent application of that applicant in accordance with Article 40, 41 and 42 of Directive 2013/32/EU, irrespective of whether the applicant has left or was removed from the territories of the Member States.
Article 4
Obligations of the applicant
1. Where a person who intends to make an application for international protection has entered irregularly into the territory of the Member States, the application shall be made in the Member State of that first entry. Where a person who intends to make an application for international protection is legally present in a Member State, the application shall be made in that Member State.
2. The applicant shall submit as soon as possible and at the latest during the interview pursuant to Article 7, all the elements and information relevant for determining the Member State responsible and cooperate with the competent authorities of the Member States.
3. The applicant shall:
(a) comply with a transfer decision notified to him or her in accordance with paragraphs 1 and 2 of Article 27 and point (b) of Article 38;
(b) be present and available to the competent authorities in the Member State of application, respectively in the Member State to which he or she is transferred.
Article 5
Consequences of non-compliance
1. If an applicant does not comply with the obligation set out in Article 4(1), the Member State responsible in accordance with this Regulation shall examine the application in an accelerated procedure, in accordance with Article 31(8) of Directive 2013/32/EU.
2. The Member State in which the applicant is obliged to be present shall continue the procedures for determining the Member State responsible even when the applicant leaves the territory of that Member State without authorisation or is otherwise not available for the competent authorities of that Member State.
3. The applicant shall not be entitled to the reception conditions set out in Articles 14 to 19 of Directive 2013/33/EU, with the exception of emergency health care, during the procedures under this Regulation in any Member State other than the one in which he or she is required to be present.
4. The competent authorities shall take into account elements and information relevant for determining the Member State responsible only insofar as these were submitted within the deadline set out in Article 4(2).
* 604/2013 (adapted) ^ new
Article 4 6
Right to information
1. As soon as an application for international protection is lodged within the meaning of Article 20 21 (2) in a Member State, its com petent authorities shall inform the applicant of the application of this Regulation ^ and of the obligations set out in Article 4 as well as the
consequences of non-compliance set
out in Article 5 ^=l , and in particular of:
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(a) that the right to apply for international protection does not encompass any choice of the applicant which Member State shall be responsible for examining the application for international protection;
* 604/2013 (adapted) ^ new
(ab) E/ of \3 the objectives of this Regulation and the consequences of making another application in a different Member State as well as the consequences of moving from one Member State to another ■=> leaving the Member State where he or she is obliged to be present ^ during the phases in which the Member State
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responsible under this Regulation is being determined and the application for international protection is being examined ^ , in particular that the applicant shall not be entitled to the reception conditions set out in Articles 14 to 19 of Directive 2013/33/ EU in any Member State other than the one where he or she is required to be present, with the exception of emergency health care ^ ;
(bc) E/ of nS the criteria ^ and the procedures ^ for determining the Member State responsible, the hierarchy of such criteria in the different steps of the procedure and their duration, including the fact th at an application for interna tional protection lodged in one Member State can result in that Member State becoming responsible under this Regulation een if such responsibility is not based on those criteria;
(cd) E/ of \3 the personal interview pursuant to Article 5 7 and the possi bi lity *-$ obligation ^ of submitting ^ and substantiating ^ information regarding the presence of family members, relatives or any other family relations in the Member States, including the means by which the applicant can submit such information;
(de) E/ of nS the possibility to challenge a transfer decision and, where applicable, to apply for a suspens ion of the transfer ^ within 7 days after notification and of the fact that this challenge shall be limited to an assessment of whether Articles 3(2) in relation to the existence of a risk of inhuman or degrading treatment or Articles 10 to 13 and 18 are infringed upon ^ ;
(ef) the fact that the competent authorities of Member States I and the European
ncy for Asylum process person
ge E/ of nS data on him or he obligations arising under this Regulation;
Union Agency for Asylum process personal data of the applicant including for the ^ can exchange E/ of nS data on him or her for the sole purpose of implementing their
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(g) of the categories of personal data concerned;
* 604/2013 (adapted) ^ new
(fh) E/ of nS the right of access to data relating to him or her and the right to request that such data be corrected if inaccurate or be deleted if unlawfully processed, as well as the procedures for exercising those rights, including the contact details of the authorities referred to in Article 35 47 and of the national data protection authorities responsible for hearing claims concerning the protection of personal data ^ , and of the contact d etails of the data protection officer; ^ .
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(i) where applicable, of the allocation procedure set
out in Chapter VII.
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* 604/2013 (adapted) ^ new
2. The information referred to in paragraph 1 shall be provided in writing in a language that the applicant understands or is reasonably supposed to understand. Member States shall use the common leaflet drawn up pursuant to paragraph 3 for that purpose.
Where necessary for the proper understanding of the applicant, the information shall also be supplied orally, for example in connection with the personal interview as referred to in Article
5 7.
3. The Commission shall, by means of implementing acts, draw up a common leaflet, as well as a specific leaflet for unaccompanied minors, containing at least the information referred to in paragraph 1 of this Article. This common leaflet shall also include information regarding the application of Regulation (EU) [Proposal for a Regulation recasting Regulation No 603/2013] and, in particular, the purpose for which the data of an applicant may be processed within Eurodac. The common leaflet shall be established in such a manner as to enable Member States to complete it with additional Member State-specific information. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56(2) of this Regulation.
Article 5 7
Personal interview
1. In order to facilitate the process of determining the Member State responsible, the determining Member State shall conduct a personal interview with the applicant ^ , unless the applicant has absconded or the information provided by the applicant pursuant to Article 4(2) is sufficient for determining the Member State responsible ^ . The interview shall also allow the proper understanding of the information supplied to the applicant in accordance with Article 4 6.
2. The personal interview m ay be o m itted if:
-------------------(a) the applicant has absconded; or
-------------------(b) after having received the infor m ation referred to in Article 4, the applicant has
already provided the information relevant to determine the Member State responsible
by other m eans. The Member State omitting the interview shall give the a ppli can t th e opportunity to present all further information which is releva nt to correctly determine the Member State respo nsibl e before a deci s ion is ta ken to transfer the applicant to the Member State responsible pursuant to Artic le 26(1) .
32. The personal interview shall take place in a timely manner and, in any event, before any decision is taken to transfer the applicant to the Member State responsible purs uan t to Arti c le 26(1) ^ take charge request pursuant to Article 24 is made ^ .
43. The personal interview shall be conducte d in a language that the applicant understands or is reasonably supposed to understand and in which he or she is able to communicate. Where necessary, Member States shall have recourse to an interpreter who is able to ensure appropriate communication between the applicant and the person conducting the personal interview.
54. The personal interview shall take place under conditions which ensure appropriate confidentiality. It shall be conducted by a qualified person under national law.
65. The Member State conducting the personal interview shall make a written summary thereof which shall contain at least the main information supplied by the applicant at the interview. This summary may either take the form of a report or a standard form. The Member State shall ensure that the applicant and/or the legal advisor or other counsellor who is representing the applicant have timely access to the summary.
Article 6 8
Guarantees for minors
1. The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation.
2. E/ Each nS Member States ^ where an unaccompanied minor is obliged to be present ^ shall ensure that a representative represents and/or assists an E/ the nS unaccompanied minor with respect to all E/ the relevant nS procedures provided for in this Regulation. The representative shall have the qualifications and expertise to ensure that the best inte rests of the minor are taken into consideration during the procedures carried out under this Regulation. Such representative shall have access to the content of the relevant documents in the
applicant’s file including the specific leaflet for unaccompanied minors.
This paragraph shall be without prejudice to the relevant provisions in Article 25 of Directive
2013/32/EU.
3. In assessing the best inte rests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors:
(a) family reunification possibilities;
(b) the minor’s well-being and social development;
(c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking;
(d) the views of the minor, in accordance with his or her age and maturity.
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4. Before transferring an unaccompanied minor to the Member State responsible or, where applicable, to the Member State of allocation, the transferring Member State shall make sure that the Member State responsible or the Member State of allocation takes the measures referred to in Articles 14 and 24 of Directive 2013/33/EU and Article 25 of Directive 2013/32/EU without delay. Any decision to transfer an unaccompanied minor shall be preceded by an assessment of his/her best interests. The assessment shall be based on the factors listed in paragraph 3. The assessment shall be done swiftly by staff with the qualifications and expertise to ensure that the best interests of the minor are taken into consideration.
^ 604/2013 (adapted) ^ new
45. For the purpose of applying Article 8 10, the Member State where the unaccompanied minor lodged an application for international protection shall, as soon as possible, take
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appropriate act ion to identify the family members, siblings or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best i nte rests of the child.
To that end, that Member State may call for the assistance of international or other relevant
organisations, and may facilitate the minor’s access to the tracing services of such
organisati ons.
The staff of the competent authorities referred to in Article 35 47 who deal with requests concerning unaccompanied minors shall have received, and shall continue to receive, appropriate training concerning the specific needs of minors.
56. With a view to facilitating the appropriate action to identify the family mem bers, sibl ing s or relatives of the unaccompanied minor living in the territory of another Member State pursuant to paragraph 4 5 of this Article, the Commission shall adopt implementing acts including a standard form for the exchange of relevant information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56(2) .
CHAPTER III CRITERIA FOR DETERMINING THE MEMBER STATE RESPONSIBLE
Article 7 9
Hierarchy of criteria
1. The criteria for determining the Member State responsible shall be applied ^ only once, ^ in the order in which they are set out in this Chapter.
2. The Member State responsible in accordance with the criteria set out in this Chapter shall be deter m ined on the basis of the situation obtaining when the applicant first lodged his or her application for international protection with a Member State.
3. In view of the application of the criteria referred to in Articles 8, 10 and 16, Member States
shall take into consideration any available evidence reg arding the presence, on th e territory of
a Member State, of family m e m ber s, relatives or any other family relations of the applicant, on condition that such evidence is produced before another Member State accept the request to ta ke charge or take back the person concerned, purs uant to Arti cles 22 and 25 respectively,
and that the previous a ppli cations for intern ational protection of the applicant have not yet
been the subject of a first decision regarding the s ubstance .
Article 8 10
Minors
[S/ 1. Where the applicant is an unaccompanied minor, only the criteria set out in this article shall apply, in the order in which they are set out in paragraphs 2 to 5. nS
12. Where the applicant is an unacco m pan ied minor, tThe Member State responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor. Where the applicant is a married minor whose spouse is not legally present on the territory of the Member States, the Member State responsible shall be the Member State where the father, mother or other adult responsible for the minor, whether by law or by the practice of that Member State, or sibling is legally present.
23. Where the applicant is an un acco m pan ie d minor who has a relative who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her, that Member State shall unite the minor with his or her relative and shall be the Member State responsible, provided that it is in the best interests of the minor.
34. Where family members, siblin gs or relatives as referred to in paragraphs 1 2 and 2 3, stay in more than one Member State, the Member State responsible shall be decided on the basis of what is in the best inte rests of the unaccompanied minor.
45. In the absence of a family member, a sibling or a relative as referred to in paragraphs 1 2 and 2 3, the Member State responsible shall be that where the unaccompanied minor ^ first ^ has lodged his or her application for international protection, provi ded that it is E/ unless it is dem onstrated that this is not nS in the best inte rests of the minor.
56. The Commission shal l be E/ is nS em powered to adopt delegated acts in accordance with Article 45 57 concerning the identification of family members, siblin g s or relatives of the unaccompanied minor; the criteria for establishing the existence of proven family links; the criteria for assessing the capacity of a relative to take care of the unaccompanied minor, including where family members, siblings or relatives of the unaccompanied minor stay in more than one Member State. In exercising its powers to adopt delegated acts, the Commission shall not exceed the scope of the best interests of the child as provided for under Article 6 8(3).
67. The Commission shall, by means of implementing acts, establish uniform conditions for the consultation and the exchange of information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56(2).
Article 9 11
Family members who are beneficiaries of international protection
Where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.
Family members who are applicants for international protection
If the applicant has a family member in a Member State whose application for international protection in that Member State has not yet been the subject of a first decision regarding the substance, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.
Family procedure
Where several family members and/or minor unmarried siblin gs submit applications for international protection in the same Member State simultaneously, or on dates close enough for the procedures for determining the Member State responsible to be conducted together,
and where the application of the criteria set out in this Regulation would lead to their being separated, the Member State responsible shall be determined on the basis of the following provisions:
(a) responsibility for examining the applications for international protection of all the family members and/or minor unmarried siblings shall lie with the Member State which the criteria indicate is responsible for taking charge of the largest number of them;
(b) failing this, responsibility shall lie with the Member State which the criteria indicate is responsible for examining the application of the oldest of them.
Article 12 14
Issue of residence documents or visas
1. Where the applicant is in possession of a valid residence document ^ or a residence document which has expired less than two years before lodging the first application ^ , the Member State which issued the document shall be responsible for examining the application for international protection.
2. Where the applicant is in possession of a valid visa ^ or a visa expired less than six months before lodging the first application ^ , the Member State which issued the visa shall be responsible for examining the application for international protection, unless the visa was issued on behalf of another Member State under a representation arrangement as provided for in Article 8 of Regulation (EC) No 810/2009 of the European Parl ia m ent and of the Council, of 13 July 2009, establishing a Community Code on Visas 29. In such a case, the represented Member State shall be responsible for examining the application for international protect ion.
3. Where the applicant is in possession of more than one valid residence document or visa issued by different Member States, the responsibility for examining the application for international protection shall be assumed by the Member States n the following order:
(a) the Member State which issued the residence document conferring the right to the longest period of residency or, where the periods of validity are identical, the Member State which issued the residence document having the latest expiry date;
(b) the Member State which issued the visa having the latest expiry date where the various visas are of the same type;
(c) where visas are of different kinds, the Member State which issued the visa having the longest period of validity or, where the periods of validity are identical, the Member State which issued the visa having the latest expiry date.
4. Where the applicant is in possession only of one or more residence docum ents which have
expired less than two years previously or one or more visas which have expired less than six
months previously and wwwwwwwww abled him or her actually to enter the territory of a Member
State, paragraphs 1, 2 and 3 shall apply for such tim e as the applicant has not left the
territories of the Member States.
Where the applicant is in posssssssssson of one or more residence docum ents which have expired
more than tw o years previously or one or more visas which have expired more than six
months previously and enabled him or her actually to enter the territory of a Member State
Regulation (EC) No 810/2009 of the European Parliament and of the Council, of 13 July 2009,
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and where he has not left the territories of the Member States, the Member State in which the application for international protection is lodged shall be responsible.
54. The fact that the residence document or visa was issued on the basis of a false or assumed identity or on submission of forged, counterfeit or invalid documents shall not prevent responsibility being allocated to the Member State which issued it. However, the Member State issuing the residence document or visa shall not be responsible if it can establish that a fraud was committed after the document or visa had been issued.
Article 13 15
Entry and/or stay
1. Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) 25(4) of this Regulation, including the data referred to in Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013], that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection. That responsibility shall cease 12 months after the date on which the irregular border crossing took place.
2. When a Member State cannot or can no longer be held responsible in accordance with paragraph 1 of this Article and where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 22(3), that the applicant — who has entered the territories of the Member States irregularly or whose circumstances of entry cannot be established — has been living for a continuous period of at least five months in a Member State before lodging the application for international protection, that Member State shall be responsible for examining the application for international protection.
If the applicant has been living for periods of time of at least five months in several Member States, the Member State where he or she has been living most recently shall be responsible for examining the application for international protection.
Article 14 16
Visa waived entry
1. If a third-country national or a stateless person enters into the territory of a Member State in which the need for him or her to have a visa is waived, that Member State shall be responsible for examining his or her application for international protection.
2. The principle set out in paragraph 1 shall not apply if the third-country national or the stateless person lodges his or her application for international protection in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In that case, that other Member State shall be responsible for examining the application for international protection.
Article 15 17
Application in an international transit area of an airport
Where the application for international protection is made in the international transit area of an airport of a Member State by a third-country national or a stateless person, that Member State shall be responsible for examining the application.
CHAPTER IV DEPENDENT PERSONS AND DISCRETIONARY CLAUSES
Article 16 18
Dependent persons
1. Where, on account of pregnancy, a new-born child, serious illness, severe disability or old age, an applicant is dependent on the assistance of his or her child, sibling or parent legally resident in one of the Member States, or his or her child, sibling or parent legally resident in one of the Member States is dependent on the assistance of the applicant, Member States shall normally keep or bring together the applicant with that child, sibling or parent, provided that family ties existed in the country of origin, that the child, sibling or parent or the applicant is able to take care of the dependent person and that the persons concerned expressed their desire in writi ng.
2. Where the child, sibling or parent referred to in paragraph 1 is legally resident in a Member State other than the one where the applicant is present, the Member State responsi ble shall be
the one where the child, sibling or parent is legally resident unless the applicant’s health
prevents him or her from travelling to that Member State for a significant period of time. In such a case, the Member State responsible shall be the one where the applicant is present. Such Member State shall not be subject to the obligation to bring the child, sibling or parent of the applicant to its territory.
3. The Commission shall be E/ is nS empowered to adopt delegated acts in accordance with Article 45 57 concerning the elements to be taken into account in order to assess the dependency link, the criteria for establishing the existence of proven family links, the criteria for assessing the capacity of the person concerned to take care of the dependent person and the elements to be taken into account in order to assess the inability to travel for a significant period of time.
4. The Commission shall, by means of implementing acts, establish uniform conditions for the consultation and exchange of information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56(2).
Article 17 19
Discretionary clauses
1. By way of derogation from Article 3(1) ^ and only as long as no Member State has been determined as responsible ^ , each Member State may decide to examine an application for international protection lodged with it by a th ir d - country national or a stateless person *-$ based on family grounds in relation to wider family not covered by Article 2(g) ^ , even if such examination is not its responsibility under the criteria laid down in this Regulation.
The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the
‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No
1560/2003, the Member State previously responsible, the Member State conducting a procedure for deter m ining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant.
The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013] by adding the date when the decision to examine the application was taken.
2. The Member State in which an application for international protection is made and which is carrying out the process of determining the Member State responsible, or the Member State responsi ble, may, at any time before ^ a Member State responsible has been determined ^ a first decision regarding the substance is taken, request another Member State to take charge of an applicant in order to bring together any family relations? on hum an i ta ri an grounds based in particular on family or cultural considerations, even whe , re that other Member State is not responsible under the criteria laid down in Articles 8 10 to 11 13 and 16 18. The persons concerned must express their consent in writing.
The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Mem ber State to assess the situatio n.
The requested Member State shall carry out any necessary checks to examine the humanitarian grounds cited, and shall reply to the requesting Member State within two
■=> one <=■ months of receipt of the request using the ‘DubliNet’ electronic communication
network set up under Article 18 of Regulation (EC) No 1560/2003. A reply refusing the request shall state the reasons on which the refusal is based.
Where the requested Member State accepts the request, responsibility for examining the application shall be transferred to it.
CHAPTERV OBLIGATIONS OF THE MEMBER STATE RESPONSIBLE
Article 18 20
Obligations of the Member State responsible
1. The Member State responsible under this Regulation shall be obliged to:
(a) take charge, under the conditions laid down in Articles 21 24 , 22 25 and 29 30, of an applicant who has lodged an application in a different Member State;
(b) take back, under the conditions laid down in Articles 23, 26 24, 25 and 29 30, an applicant whose application is under examination and who made an application in another Member State or who is on the territory of another Member State without a residence document;
(c) take back, under the conditions laid down in Articles 23, 26 24, 25 and 29 30, a third-country national or a stateless person who has withdrawn the application under examination and made an application in another Member State or who is on the territory of another Member State without a residence document;
(d) take back, under the conditions laid down in Articles 23, 26 24, 25 and 29 30 , a third-country national or a stateless person whose application has been rejected and who made an application in another Member State or who is on the territory of another Member State without a residence document.;
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(e) take back, under the conditions laid down in Articles 26 and 30 a beneficiary of international protection, who made an application in another Member State than the Member State responsible which granted that protection status or who is on the territory of another Member State than the Member State responsible which granted that protection without a residence document.
2. In a situation referred to in point (a) of paragraph 1, the Member State responsible shall examine or complete the examination of the application for international protection.
3. In a situation referred to in point (b) of paragraph 1, the Member State responsible shall examine or complete the examination of the application for international protection in an accelerated procedure in accordance with Article 31 paragraph 8 of Directive 2013/32/EU.
4. In a situation referred to in point (c) of paragraph 1, the Member State responsible shall treat any further representations or a new application by the applicant as subsequent application in accordance with Directive 2013/32/EU.
5. In a situation referred to in point (d) of paragraph 1, the decision taken by the responsible authority of the Member State responsible to reject the application shall no longer be subject to a remedy within the framework of Chapter V of Directive 2013/32/EU.
6. Where a Member State issues a residence document to the applicant, the obligations referred to in paragraph 1 shall be transferred to that Member State.
7. The Member State responsible shall indicate in the electronic file referred to in Article 22(2) the fact that it is the Member State responsible.
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2. In the cases falling within the scope of paragraph 1(a) and (b), the Member State responsible shall examine or complete the examination of the application for international protection made by the applicant.
In the cases falling within the scope of paragraph 1(c), when the Member State responsible had discontinued the examination of an application following its withdrawal by the applicant before a decision on the substance has been taken at first instance, that Member State shall ensure that the applicant is entitled to request that the examination of his or her application be completed or to lodge a new application for international protection, which shall not be treated as a subsequent application as provided for in Directive 2013/32/EU. In such cases, Member States shall ensure that the examination of the application is completed.
In the cases falling within the scope of paragraph 1(d), where the application has been rejected at first instance only, the Member State responsible shall ensure that the person
new
concerned has or has had the opportunity to seek an effective remedy pursuant to Article 46 of Directive 2013/32/EU.
Cessation of responsibilities
1. Where a Member State issues a residence document to the applicant, the obligations specified in Article 18(1) shall be transferred to that Member State.
2. The obligations specified in Article 18(1) shall cease where the Member State responsible
can establish, when requested to take charge or take back an applicant or another person as referred to in Article 18(1)(c) or (d), that the person concerned has left the territory of the Member States for at least three months, unless the person concerned is in possession of a valid residence document issued by the Member State re spon sibl e.
An application lodged after the period of absence referr ed to in the fir st su bpar agraph shall be
regarded as a new application giving rise to a new procedure for determining the Member
State responsible.
3. The obligations specified in Article 18(1)(c) and (d) shall cease where the Member State
responsible can establish, when requested to take back an appl icant or another person as referred to in Article 18(1)(c) or (d), that the person concerned has left the te rri tory of the Member States in compliance with a return decision or removal order issued following the
withdrawal or rejection of the application.
An application lodged after an effective removal has ta ken place shall be regarded as a new
application giving rise to a new procedure for determining the Member State respon sibl e.
CHAPTERVI PROCEDURESFORTAKINGCHARGEANDTAKINGBACK
SECTION I
Start of the procedure
Article 20 21
Start of the procedure
1. The process of determining the Member State responsible shall start as soon as an application for international protection is first lodged with a Member State ^ , provided that the Member State of first application is not already the Member State responsible pursuant to Article 3(4) or (5) ^ .
2. An application for international protection shall be deemed to have been lodged once a form submitted by the applicant or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible.
3. For the purposes of this Regulation, the situation of a minor who is accompanying the applicant and meets the definition of family member shall be indissociable from that of his or her family member and shall be a m atter for the Member State responsible for examining the
application for international protection of that family member, even if the minor is not individually an applicant, provided that it is in the minor’s best interests. The same treatment shall be applied to children born after the applicant arrives on the territory of the Member States, without the need to initiate a new procedure for taking charge of them.
4. Where an application for international protection is lodged with the competent authorities of a Member State by an applicant who is on the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for international protection was lodged.
The applicant shall be informed in writing of this change in the determining Member State and of the date on which it took place.
5. An applicant who is present in another Member State without a residence document or who there lodges an application for international protection after withdrawing his or her first application made in a different Member State during the process of determining the Member State responsible shall be taken back, under the conditions laid down in Articles 23, 26 24, 25 and 29 30, by the Member State with which that application for international protection was
first lodged, responsible.
with a view to completing the process of determining the Member State
That obligation shall cease where the Member State requested to complete the process of determining the Member State responsible can establish that the applicant has in the meantime left the territory of the Member States for a period of at least three months or has obtained a residence document from another Member State.
An application lodged after the period of absence referred to in the second subparagraph shall be regarded as a new application giving rise to a new procedure for determining the Member State responsible.
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SECTION II Application registration and monitoring
Article 22
Registration
1. The Member State with which an application for international protection is lodged shall enter in the automated system referred to in Article 44(1) within the period referred to in Article 10 (1) of Regulation [Proposal for a Regulation recasting Regulation (EU) 603/2013]
that:
(a) such application is lodged;
new
(b) where applicable, links to the applications of family members or relatives travelling together;
(c) the reference number referred to in Article 12 (i) of Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013].
2. Upon entry of the information pursuant to paragraph 1, the automated system referred to in Article 44 shall register each application under a unique application number, create an electronic file for each application and communicate the unique application number to the Member State of application.
3. Member States shall provide the European Union Agency for Asylum with information on the number of third country nationals effectively resettled on a weekly basis. The Agency shall validate this information and enter the data in the automated system.
4. Where a hit in Eurodac indicates that the applicant has previously lodged an application for international protection before having left or having been removed from the territories of the Member States, the Member State with which the new application is lodged shall also indicate which Member State has been the Member State responsible for examining the previous application.
5. The Member State with which the application is lodged shall search the VIS pursuant to Article 21 of Regulation (EC) 767/2008. Where a hit in the VIS indicates that the applicant is in possession of a valid visa or a visa expired less than six months before lodging the first application, the Member State shall indicate the visa application number and the Member State, the authority of which issued or extended the visa and whether the visa has been issued on behalf of another Member State.
Article 23
Information in the automated system
1. The automated system referred to in Article 44(1) shall indicate in real time:
(a) the total number of applications lodged in the Union;
(b) the actual number of applications lodged in each Member State;
(c) the number of third country nationals resettled by each Member State;
(d) the actual number of applications to be examined by each Member State as Member State responsible;
(e) the share of each Member State pursuant to the reference key referred to in Article 35.
2. In the electronic file referred to in Article 22(2) only the following information shall be recorded:
(a) the unique application number referred to in Article 22(2):
(b) link to applications referred to in point b of Article 22 (1) and 22(4);
(c) the reference number referred to in point d of Article 12(i) of Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013];
(d) the existence of an alert following the security verification pursuant to Article 40;
(e) the Member State responsible;
(f) in case of the indication of a previous application for international protection by the same applicant pursuant to Article 22(4), the Member State who was responsible for that previous application;
(g) in case of the indication of a visa issued to the applicant pursuant to Article 22(5), the Member State which issued or extended the visa or on behalf of which the visa has been issued and the visa application number;
(h) where the allocation mechanism under Chapter VII applies, the information
referred to in Article 36(4) and point (h) of Article 39.
3. Upon communication by the Member State responsible pursuant to Article 20(7) and
Article 22(3) the automated system referred to in Article 44(1) shall count that application and that third country national effectively resettled for the share of that Member State.
4. The electronic files shall be automatically erased after expiry of the period set out in Article
17(1) of Regulation [Proposal for Regulation recasting Regulation (EU) No 603/2013].
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SECTIONII III
Procedures for take charge requests
Article 21 24
Submitting a take charge request
1. Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may ^ shall ^ , as quickly as possible and in any event within thr ee ^ one ^ months of the date on which the application was lodged within the meaning of Article 20 21 (2), request that other Member State to take charge of the applicant.
Notwithstanding the first subparagraph, in the case of a Eurodac hit with data recorded pursuant to Article 13 of Regulation [Proposal for a Regulation recasting Regulation (EU)
No 603/2013] ^ or of a VIS hit with data recorded pursuant to Article 21(2) of Regulation (EU) 767/2008 ^=l , the request shall be sent within two m onths ^ weeks ^ of receiving that hit pursuant to Article 15(2) of that Regulation.
Where the request to take charge of an applicant is not made within the periods laid down in the first and second subparagraphs, responsibility for examining the application for international protection shall lie with the Member State in which the application was lodged.
2. The requesting Member State may ask for an urgent reply in cases where the application
for international protection was lodged after leave to enter or remain was refused, after an arrest for an unlawful stay or after the service or execution of a removal order.
The request shall state th e reasons warranting an urgent reply and the period within which a reply is expected. That period shall be at least one week.
32. In the cases referred to in paragraphs 1 and 2, the request that charge be taken by another Member State shall be made using a standard form and including proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) 25(4) and/or relevant elements from the applicant’s statement, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation.
The Commission shall, by means of implementing acts, adopt uniform conditions on the preparation and submission of take charge requests. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56 (2) .
Article 22 25
Replying to a take charge request
1. The requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two ^ one ^ months of receipt of the request.
U> new
2. Notwithstanding the first subparagraph, in the case of a Eurodac hit with data recorded pursuant to Article 13 of Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013] or of a VIS hit with data recorded pursuant to Article 21(2) of Regulation (EU) 767/2008, the requested Member State shall give a decision on the request within two weeks of receipt of the request.
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new
23. In the procedure for determining the Member State responsible elements of proof and circumstantial evidence shall be used.
34. The Commission shall, by means of implementing acts, establish, and review periodically, two lists, indicating the relevant elements of proof and circumstantial evidence in accordance with the criteria set out in points (a) and (b) of this paragraph. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56(2).
(a) Proof:
(i) this refers to formal proof which determines responsibility pursuant to this Regulation, as long as it is not refuted by proof to the contrary;
(ii) the Member States shall provide the Committee provided for in Article 44 56 with models of the different types of administrative documents, in accordance with the typology established in the list of formal proofs;
(b) Circumstantial evidence:
(i) this refers to indicative elements which while being refutable may be sufficient, in certain cases, according to the evidentiary value attributed to them;
(ii) their evidentiary value, in relation to the responsibility for examining the application for international protection shall be assessed on a case-by-case basis.
45. The requirement of proof should not exceed what is necessary for the proper application of this Regulation.
56. If there is no formal proof, the requested Member State shall acknowledge its responsibility if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility.
6. Where the requesting Member State has pleaded urgency in accordance with the provisions of Article 21(2), the requested Member State shall make every effort to comply with the time limit requested. In exceptional cases, where it can be demonstrated that the examination of a request for taking charge of an applicant is particularly complex, the requested Member State may give its reply after the time limit requested, but in any event within one month. In such situations the requested Member State must communicate its decision to postpone a reply to the requesting Member State within the time limit originally requested.
7. Failure to act O Where the requested Member State does not object to the request within
<=1
the two m onth ^ one-month ^ period mentioned in paragraph 1 and the one m onth per iod mentioned in par agraph 6 ^ by a reply which gives substantiated reasons, or where applicable within the two weeks period mentioned in paragraph 2, this ^ shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the obligation to provide for proper arrangements for arrival.
SECTIONIII IV Procedures for take back requests \e> notifications <z\
Article 23 26
Submitting a take back E> notification <S] request when a ne application has been
lodged in the requesting Member State
1. Where a Member Sta te with which a person as \E> In a situation O referred to in Article 18 20(1)(b), (c), or (d) ■=> or (e) ^ has lodged a new application for in te rnational protection consi ders that another E/ the nS Member State where the person is present is responsible in accordance with Article 20(5) and Article 18(1)(b), (c) or (d), it may request that other Member State to take back that person where the per son is present ■=> shall make a take back
notification at the latest within two weeks after receiving the Eurodac hit, and transfer that person to the Member State responsible ^ .
2. A take back request shall be made as quickly as possible and in any event within tw o months of receiving the Eurodac hit, pursuant to Article 9(5) of Regulation (EU) No
603/2013.
If the take back request is based on evidence other than data obtained from the Eurodac
system, iiiiiiiiit shall be sent to the requested Member State within th ree months of the date on
wwwwww the application for inte rnatio nal protection was lodged within the meaning of Article
3. Where the take back request is not made within the periods laid down in paragraph 2, responsibility for examining the application for international protection shall lie with the Member State in which the new application was lodged.
42. A take back re quest ^ notification ^ shall be made using a standard form and shall include proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) 25(4) and/or relevant elements from the statements of the person concerned , enabl ing the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid dowwwwwwww s Regulation.
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3. The Member State responsible shall confirm immediately the receipt of the notification to the Member State which made the notification.
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4. The Commission shall, by means of implementing acts, adopt uniform conditions for the preparation and submission of take back ^ notifications ^ requests. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56(2).
Submitting a take back request when no new application has been lodged in the
requesting Member State
1. Where a Member State on whose territory a person as referred to in Article 18(1)(b), (c) or
(d) is staying without a residence document and with which no new application
international protection has been lodged consi ders tha t anothe r Member State is respon sibl e in accordance with Article 20(5) and Article 18(1)(b), (c) or (d), it may request that other Member State to take ba ck that p er so n.
2. By way of derogation from Article 6(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in
Member States for returning illegally staying third country nationals30, where a Member
State on whose territory a person is staying without a residence document decides to search the Eurodac system in accordance with Article 17 of Regulation (EU) No 603/2013, the
new
30
request to take back a person as referred to in Article 18(1)(b) or (c) of this Regulation, or a person as referred to in its Article 18(1)(d) whose application for international protection has not been rejected by a final decision, shall be made as quickly as possible and in any event within two months of receipt of the Eurodac hit, pursuant to Article 17(5) of Regulation (EU) No 603/2013.
If the take back request is based on evidence other than data obtained from the Eurodac system, it shall be sent to the requested Member State within three months of the date on which the requesting Member State becomes aware that another Member State may be responsible for the person concerned.
3. Where the take back request is not made within the periods laid down in paragraph 2, the Member State on whose territory the person concerned is staying without a residence document shall give that person the opportunity to lodge a new application.
4. Where a person as referred to in Article 18(1)(d) of this Regulation whose application for international protection has been rejected by a final decision in one Member State is on the territory of another Member State without a residence document, the latter Member State may either request the former Member State to take back the person concerned or carry out a return procedure in accordance with Directive 2008/115/EC.
When the latter Member State decides to request the former Member State to take back the person concerned, the rules laid down in Directive 2008/115/EC shall not apply.
5. The request for the person referred to in Article 18(1)(b), (c) or (d) to be taken back shall be made using a standard form and shall include proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) and/or relevant elements from the person’s statements, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation.
The Commission shall, by means of implementing acts, establish and review periodically two lists indicating the relevant elements of proof and circumstantial evidence in accordance with the criteria set out in Article 22(3)(a) and (b), and shall adopt uniform conditions for the preparation and submission of take back requests. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).
Article 25
Replying to a take back request
1. The requested Member State shall make the necessary checks and shall give a decision on the request to take back the person concerned as quickly as possible and in any event no later than one month from the date on which the request was received. When the request is based on data obtained from the Eurodac system, that time limit shall be reduced to two weeks.
2. Failure to act within the one month period or the two weeks period mentioned in paragraph 1 shall be tantamount to accepting the request, and shall entail the obligation to take back the person concerned, including the obligation to provide for proper arrangements for arrival.
SECTIONIVV
Procedural safeguards
Article 26 27
Notification of a transfer decision
1. Where the requested Member State accepts to take charge of or to ta ke back an applicant or other person as referred to in Article 18(1)(c) or (d), the requesting Member State shall notify the per son concerned ^ applicant in writing without delay ^ of the decision to transfer him or her to the Member State responsible and, where applicable, of not examining his or her application for international protection.
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2. Where the applicant or another person referred to in Article 20(1) (c), (d) or (e) is to be taken back, the Member State where the person concerned is present shall notify the person concerned in writing without undue delay the decision to transfer him or her to the Member State responsible.
^ 604/2013 (adapted) ^ new
3. If a legal advisor or other counsellor is representing the person concerned, Member States may choose to notify the decision to such legal advisor or counsellor instead of to the person concerned and, where applicable, communicate the decision to the person concerned.
24. The decision referred to in paragraphs 1 ^ and 2 ^ shall contain information on the legal remedies available, including on the right to apply for suspensive effect, where applicable, and on the time limits applicable for seeking such remedies and for carrying out the transfer, and shall, if necessary, contain information on the place where, and the date on which, the person concerned should appear, if that person is travelling to the Member State responsible by his or her own means.
Member States shall ensure that information on persons or entities that may provide legal assistance to the person concerned is communicated to the person concerned together with the decision referred to in paragraphs 1 ^ and 2 ^ , when that information has not been already comm unicated.
35. When the person concerned is not assisted or represented by a legal advisor or other counsellor, Member States shall inform him or her of the main elements of the decision, which shall always include information on the legal remedies available and the time limits applicable for seeking such remedies, in a language that the person concerned understands or is reasonably supposed to understand.
Article 27 28
Remedies
1. The applicant or another person as referred to in Arti c le 18 20(1) (c), or (d) ^ or (e) ^ shal l have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.
days after the notification
2. Member States shall provide for a reasonable period of tim e | 7
of a transfer decision ^ within which the person concerned may exercise his or her right to an
effective remedy pursuant
to paragraph 1.
3. For the purposes of appeals against, or reviews of, transfer decisions, Mem ber States sh all provide in th eir national law that: ^ the court or tribunal shall decide within a period of 15
new
days on the substance of the appeal or review. No transfer shall take place before this decision on the appeal or review s taken ^
(a) the appeal or review confers upon the person concerned the ri ght to remain in the Member State concerned pending the outcome of the appeal or review; or
-------------------(b) the transfer is automatically suspended and such suspension lapses after a cer tain
reasonable period of time, during wwwwww a court or a tribunal, after a close and
rigorous scrutiny, shall have taken a decision whether to gr an t suspens ive eff ect to an appeal or review; or
-------------------(c) the person concerned has the opportunity to request within a reasonable period of
time a court or tribuna l to suspend the im ple m entation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken w ithin a reasonable period of
time, while perrrrrrrrrrrrrrg a close and rigorous scrutiny of the suspension request. A
decision not to suspend the im ple mentation of the transfer decision shall state the reasons on which it is based.
4. Member States may provide that the com petent au thor iti es may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or
eview
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4. The scope of the effective remedy laid down in paragraph 1 shall be limited to an assessment of whether Articles 3(2) in relation to the existence of a risk of inhuman or degrading treatment or Articles 10 to 13 and 18 are infringed upon.
5. Where no transfer decision referred to in paragraph 1 is taken, Member States shall provide for an effective remedy before a court or tribunal, where the applicant claims that a family member or, in the case of unaccompanied minors, a relative is legally present in a Member State other than the one which is examining his or her application for international protection, and considers therefore that other Member State as Member State responsible for examining the application.
* 604/2013 (adapted) ^ new
56. Member States shall ensure that the person concerned has access to legal assistance and, where necessary, to linguistic assistance.
67. Member States shall ensure that legal assistance is granted on request free of charge where the person concerned cannot afford the costs involved. Member States may provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.
Without arbitrarily restricting access to legal assistance, Member States may provide that free legal assistance and representation not be granted where the appeal or review is considered by the com petent authority or a court or tribunal to have no tangible prospect of success.
Where a decision not to grant free legal assistance and representation pursuant to this paragraph s taken by an authority other than a court or tribunal, Member States shall provide the right to an effective remedy before a court or tribunal to challenge that decision. ^ In case the decision is challenged, this remedy shall be an integral part of the remedy referred to in paragraph 1. ^
In complying with the requirements set out in this paragraph, Member States shall ensure that
legal assistance and representation is not arbitrarily restricted and that the applicant’s effective
access to justice is not hindered.
Legal assistance shall include at least the preparation of the required procedural documents and representation before a court or tribunal and may be restricted to legal advisors or counsellors specifically designated by national law to provide assistance and representation.
Procedures for access to legal assistance shall be laid down in national law.
SECTIONVVI
Detention for the purpose of transfer
Article 28 29
Detention
1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.
2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.
3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out.
Where a person is detained pursuant to this Article, the period for submitting a take charge or ta ke back request ^ or a take back notification ^ shall not exceed one m onth ^ two weeks ^ from the lodging of the application. The Member State carrying out the procedure in accordance with this Regulation shall ask for an urgent reply in such cases ^ on a take charge request ^ . Such reply shall be given within tw o ^ one ^ weeks of receipt of the ^ take charge ^ request. Failure to reply within the two week ^ one-week ^ period shall be tantamount to accepting the ^ take charge ^ request and shall entail the obligation to take ^ the person in ^ charge or take back the person, including the obligation to provide for proper arrangements for arrival.
Where a person is detained pursuant to this Article, the transfer of that person from the requesting Member State to the Member State responsible shall be carried out as soon as practically possible, and at the latest within six ^ four ^ weeks ^ from the final transfer decision <=■ of the implicit or explicit acceptance of the request by another Member State to take charge or to take back the person concerned or of the moment when the appeal or review
no longer has a suspensive effect in accordance with Article 27(3).
When the requesting Member State fails to comply with the deadlines for submitting a take charge o r take back request ^ or take back notification ^ or where the transfer does not take place within the period of six ^ four ^ weeks referred to in the third subparagraph, the person shall no longer be detained. Articles 21 24 , 23, 26 24 and 29 30 shall continue to apply accord ingly.
4. As regards the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10 and 11 of Directive 2013/33/EU shall apply.
SECTIONVI VII
Transfers
Article 29 30
Modalities and time limits
Q
1. The determining Member State whose take charge request referred to in Article 20(1) (a) was accepted or who made a take back notification referred to in Article 20(1) (b) to (e) shall take a transfer decision at the latest within one week of acceptance or notification and transfer the applicant or the person concerned to the Member State responsible.
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The transfer of the applicant or of another person as referred to in Article 18 20(1) (c), or (d) ■=> or (e) <=■ from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within ^ four weeks from the final transfer decision ^ six months of acceptance o the request by another Member State to take charge or to take back the person concerned or of the
final decision on an appeal or review where there is a suspensive effect in accordance with
Article 27(3).
If transfers to the Member State responsible are carried out by supervised departure or under escort, Member States shall ensure that they are carried out in a humane manner and with full respect for fundamental rights and human dignity.
If necessary, the applicant shall be supplied by the requesting Member State with a laissez passer. The Commission shall, by means of implementing acts, establish the design of the laissez passer. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Arti c le 44 56(2) .
The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the person concerned or of the fact that he or she did not appear within the set tim e limit.
2. Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.
32. If a person has been transferred erroneously or a decision to transfer is overturned on appeal or review after the transfer has been carried out, the Member State which carried out the transfer shall promptly accept that person back.
43. The Commission shall, by means of implementing acts, establish uniform conditions for the consultation and exchange of information between Member States, in particular in the event of postponed or delayed transfers, transfers following acceptance by default, transfers of minors or dependent persons, and supervised transfers. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44 56(2).
Article 30 31
Costs of transfer
1. The costs necessary to transfer an applicant or another person as referred to in Article 18 20(1) (c)i '5=F (d) ^ or (e) ^ to the Member State responsible shall be met by the transferring Member , State.
2. Where the person concerned has to be transferred back to a Member State as a result of an erroneous transfer or of a transfer decision that has been overturned on appeal or review after the transfer has been carried out, the Member State which initially carried out the transfer shall be responsible for the costs of transferring the person concerned back to its territory.
3. Persons to be transferred pursuant to this Regulation shall not be required to meet the costs of such tra nsfers.
Article 31 32
Exchange of relevant information before a transfer is carried out
1. The Member State carrying out the transfer of an applicant or of another person as referred to in Article 18 20(1)(c) or (d) shall communicate to the Member State responsible such personal data concerning the person to be transferred as is E/ adequate nS appropriate, relevant and non excessive ^ limited to what is necessary ^ for the sole purposes of ensuring that the competent authorities, in accordance with national law in the Member State responsible, are in a position to provide that person with adequate assistance, including the provision of immediate health care required in order to protect his or her vital inte rests, and to ensure continuity in the protection and rights afforded by this Regulation and by other relevant asylum legal instruments. Those data shall be communicated to the Member State responsible within a reasonable period of time before a transfer is carried out, in order to ensure that its competent authorities in accordance with national law have suff ic ie nt ti m e to take the necessary measures.
2. The transferring Member State shall, in so far as such information is available to the competent authority in accordance with national law, transmit to the Member State responsible any information that is essential in order to safeguard the rights and immediate special needs of the person to be transferred, and in particular:
(a) any immediate measures which the Member State responsible is required to take in order to ensure that the special needs of the person to be transferred are adequately addressed, including any immediate health care that may be required;
(b) contact details of family members, relatives or any other family relations in the receiving Member State, where applicable;
(c) in the case of minors, information on their education;
(d) an assessment of the age of an applicant.
3. The exchange of information under this Article shall only take place between the authorities notified to the Commission in accordance with Article 35 47 of this Regulation
using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation
(EC) No 1560/2003. The information exchanged shall only be used for the purposes set out in paragraph 1 of this Article and shall not be further processed.
4. With a view to facilitating the exchange of information between Member States, the Commission shall, by means of implementing acts, draw up a sta ndard form for the transfer of the data required pursuant to this Article. T hose implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44 56(2).
5. The rules laid down in Article 34(8) to (12) ■=> 46(8) <=■ shall apply to the exchange of information pursuant to this Article.
Article 32 33
Exchange of health data before a transfer is carried out
1. For the sole purpose of the provision of medical care or treatment, in particular concerning disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence, the transferring Member State shall, in so far as it is available to the competent authority in accordance with national law, transmit to the Member State responsible information on any special needs of the person to be transferred, which in specific cases may include information on that person s physical or mental health. That information shall be transferred in a common health certificate with the necessary documents attached. The Member State responsible shall ensure that those special needs are adequately addressed, including in particular any essential medical care that may be required.
The Commission shall, by means of implementing acts, draw up the common health certificate. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44 56(2) .
2. The transferring Member State shall only transmit the information referred to in paragraph 1 to the Member State responsible after having obtained the explicit consent of the applicant and/or of his or her representative or, if the applicant is physically or legally incapable of giving his or her consent, when such transmission is necessary ^ to protect public health and public security, ^ E/ or, if the applicant is physically or legally incapable of giving his or her consent, nS to protect the vital interests of the applicant or of another person. The lack of consent, including a refusal to consent, shall not constitute an obstacle to the transfer.
3. The processing of personal health data referred to in paragraph 1 shall only be carried out by a health professional who is subject, under national law or rules established by national competent bodies, to the obligation of professional secrecy or by another person subject to an equivalent obligation of professional secrecy.
4. The exchange of information under this Article shall only take place between the health professionals or other persons referred to in paragraph 3. The information exchanged shall only be used for the purposes set out in paragraph 1 and shall not be further processed.
5. The Commission shall, by means of implementing acts, adopt uniform conditions and practical arrangements for exchanging the information referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44 56(2) .
6. The rules laid down in Article 34(8) to (12) ■=> 46(8) ^ information pursuant to this Article.
shall apply to the exchange of
Article 33
A mechanism for early warning, preparedness and crisis management
1. Where, on the basis of, in particular, the information gathered by EASO pursuant to Regulation (EU) No 439/2010, the Commission establishes that the application of this Regulation may be jeopardised due either to a substantiated risk of particular pressure being placed on a Member State’s asylum system and/or to problems in the functioning of the asylum system of a Member State, it shall, in cooperation with EASO, make recommendations to that Member State, inviting it to draw up a preventive action plan.
The Member State concerned shall inform the Council and the Commission whether it intends to present a preventive action plan in order to overcome the pressure and/or problems in the functioning of its asylum system whilst ensuring the protection of the fundamental rights of applicants for international protection.
A Member State may, at its own discretion and initiative, draw up a preventive action plan and subsequent revisions thereof. When drawing up a preventive action plan, the Member State may call for the assistance of the Commission, other Member States, EASO and other relevant Union agencies.
2. Where a preventive action plan is drawn up, the Member State concerned shall submit it and shall regularly report on its implementation to the Council and to the Commission. The Commission shall subsequently inform the European Parliament of the key elements of the preventive action plan. The Commission shall submit reports on its implementation to the Council and transmit reports on its implementation to the European Parliament.
The Member State concerned shall take all appropriate measures to deal with the situation of particular pressure on its asylum system or to ensure that the deficiencies identified are addressed before the situation deteriorates. Where the preventive action plan includes measures aimed at addressing particular pressure on a Member State’s asylum system which may jeopardise the application of this Regulation, the Commission shall seek the advice of EASO before reporting to the European Parliament and to the Council.
3. Where the Commission establishes, on the basis of EASO’s analysis, that the implementation of the preventive action plan has not remedied the deficiencies identified or where there is a serious risk that the asylum situation in the Member State concerned develops into a crisis which is unlikely to be remedied by a preventive action plan, the Commission, in cooperation with EASO as applicable, may request the Member State concerned to draw up a crisis management action plan and, where necessary, revisions thereof. The crisis management action plan shall ensure, throughout the entire process, compliance with the asylum acquis of the Union, in particular with the fundamental rights of applicants for international protection.
Following the request to draw up a crisis management action plan, the Member State concerned shall, in cooperation with the Commission and EASO, do so promptly, and at the latest within three months of the request.
The Member State concerned shall submit its crisis management action plan and shall report, at least every three months, on its implementation to the Commission and other relevant stakeholders, such as EASO, as appropriate.
The Commission shall inform the European Parliament and the Council of the crisis management action plan, possible revisions and the implementation thereof. In those reports, the Member State concerned shall report on data to monitor compliance with the crisis management action plan, such as the length of the procedure, the detention conditions and the reception capacity in relation to the inflow of applicants.
4. Throughout the entire process for early warning, preparedness and crisis management established in this Article, the Council shall closely monitor the situation and may request further information and provide political guidance, in particular as regards the urgency and severity of the situation and thus the need for a Member State to draw up either a preventive action plan or, if necessary, a crisis management action plan. The European Parliament and the Council may, throughout the entire process, discuss and provide guidance on any solidarity measures as they deem appropriate.
Q
CHAPTER VII Corrective allocation mechanism
Article 34 - General Principle
1. The allocation mechanism referred to in this Chapter shall be applied for the benefit of a Member State, where that Member State is confronted with a disproportionate number of applications for international protection for which it is the Member State responsible under this Regulation.2. Paragraph 1 applies where the automated system referred to in Article 44(1) indicates that the number of applications for international protection for which a Member State is responsible under the criteria in Chapter III, Articles 3(2) or (3), 18 and 19 , in addition to the number of persons effectively resettled, is higher than 150% of the reference number for that Member State as determined by the key referred to in Article 35.
3. The reference number of a Member State shall be determined by applying the key referred to in Article 35 to the total number of applications as well as the total number of resettled persons that have been entered by the respective Member States responsible in the automated system during the preceding 12 months.
4. The automated system shall inform Member States, the Commission and the European Union Agency for Asylum once per week of the Member States' respective shares in applications for which they are the Member State responsible.
5. The automated system shall continously monitor whether any of the Member States is above the threshold referred to in paragraph 2, and if so, notify the Member States and the Commission of this fact, indicating the number of applications above this threshold.
6. Upon the notification referred to in paragraph 5, the allocation mechanism shall apply.
Article 35
Reference key
1. For the purpose of the corrective mechanism, the reference number for each Member State shall be determined by a key.
2. The reference key referred to in paragraph 1 shall be based on the following criteria for each Member State, according to Eurostat figures:
(a) the size of the population (50 % weighting);
(b) the total GDP (50% weighting);
3. The criteria referred to in paragraph 2 shall be applied by the formula as set out in Annex I.
4. The European Union Agency for Asylum shall
establish the reference key and adapt the
figures of the criteria for the reference key as well as the reference key referred to in paragraph 2 annually, based on Eurostat figures.
Article 36
Application
of the reference key
1. Where the threshold referred to in Article 34(2) is reached, the automated system referred to in Article 44(1) shall apply the reference key referred to in Article 35 to those Member States with a number of applications for which they are the Member States responsible below their share pursuant to Article 35(1) and notify the Member States thereof.
2. Applicants who lodged their application in the benefitting Member State after notification of allocation referred to in Article 34(5) shall be allocated to the Member States referred to in paragraph 1, and these Member States shall determine the Member State responsible;
3. Applications declared inadmissible or examined in accelerated procedure in accordance with Article 3(3) shall not be subject to allocation.
4. On the basis of the application of the reference key pursuant to paragraph 1, the automated system referred to in Article 44(1) shall indicate the Member State of allocation and communicate this information not later than 72 hours after the registration referred to in Article 22(1) to the benefitting Member State and to the Member State of allocation, and add the Member State of allocation in the electronic file referred to in Article 23(2).
Article 37
Financial solidarity
1. A Member State may, at the end of the three-month period after the entry into force of this Regulation and at the end of each twelve-month period thereafter, enter in the automated system that it will temporarily not take part in the corrective allocation mechanism set out in Chapter VII of this Regulation as a Member State of allocation and notify this to the Member States, the Commission and the European Union Agency for Asylum.
2. The automated system referred to in Article 44(1) shall in that case apply the reference key during this twelve-month period to those Member States with a number of applications for which they are the Member States responsible below their share pursuant to Article 35(1), with the exception of the Member State which entered the information, as well as the benefitting Member State. The automated system referred to in Article 44(1) shall count each application which would have otherwise been allocated to the Member State which entered the information pursuant to Article 36(4) for the share of that Member State.
3. At the end of the twelve-month period referred to in paragraph 2, the automated system shall communicate to the Member State not taking part in the corrective allocation mechanism the number of applicants for whom it would have otherwise been the Member State of allocation. That Member State shall thereafter make a solidarity contribution of EUR 250,000 per each applicant who would have otherwise been allocated to that Member State during the respective twelve-month period. The solidarity contribution shall be paid to the Member State determined as responsible for examining the respective applications.
4.The Commission shall, by means of implementing acts, adopt a decision in accordance with the examination procedure referred to in Article 56, lay down the modalities for the implementation of paragraph 3.
5. The European Union Agency for Asylum shall monitor and report to the Commission on a yearly basis on the application of the financial solidarity mechanism.
Article 38
Obligations of the benefitting Member State
The benefitting Member State shall:
(a) take a decision at the latest within one week from the communication referred to in Article 36(4) to transfer the applicant to the Member State of allocation, unless the benefitting Member State can accept within the same time limit responsibility for examining the application pursuant to the criteria set out in Articles 10 to 13 and Article 18;
(b) notify without delay the applicant of the decision to transfer him or her to the Member State of allocation;
(c) transfer the applicant to the Member State of allocation, at the latest within four weeks from the final transfer decision.
Article 39
Obligations of the Member State of allocation
The Member State of allocation shall:
(a) confirm to the benefitting Member State the receipt of the allocation communication and indicate the competent authority to which the applicant shall report following his or her transfer;
(b) communicate to the benefitting Member State the arrival of the applicant or the fact that he or she did not appear within the set time limit;
(c) receive the applicant and carry out the personal interview pursuant to Article 7, where applicable;
(d) examine his or her application for international protection as Member State responsible, unless, according to the criteria set out in Articles 10 to 13 and 16 to 18, a different Member State is responsible for examining the application;
(e) where, according to the criteria set out in Articles 10 to 13 and 16 to 18 a different Member State is responsible for examining the application, the Member State of allocation shall request that other Member State to take charge of the applicant;
(f) where applicable, communicate to the Member State responsible the transfer to that Member State;
(g) where applicable, transfer the applicant to the Member State responsible;
(h) where applicable, enter in the electronic file referred to in Article 23(2) that it
will examine the application for international protection as Member State responsible.
Article 40
Exchange of relevant information for security verification
1. Where a transfer decision according to point (a) of Article 38 is taken, the benefitting Member State shall transmit, at the same time and for the sole purpose of verifying whether the applicant may for serious reasons be considered a danger to the national security or public order, the fingerprint data of the applicant taken pursuant to Regulation (Proposal for a Regulation recasting Regulation 603/2013/EU) to the Member State of allocation.
2. Where, following a security verification, information on an applicant reveals that he or she is for serious reasons considered to be a danger to the national security or public order, information on the nature of the alert shall be shared with the law enforcement authorities in the benefitting Member State and shall not be communicated via the electronic communication channels referred to in Article 47(4).
The Member State of allocation shall inform the benefitting Member State of the existence of such alert, specifying the law enforcement authorities in the Member State of application that have been fully informed, and record the existence of the alert in the automated system pursuant to point d of Article 23(2), within one week of receipt of the fingerprints.
3. Where the outcome of the security verification confirms that the applicant may for serious reasons be considered a danger to the national security or public order, the benefitting Member State of application shall be the Member State responsible and shall examine the application in accelerated procedure pursuant to Article 31(8) of Directive 2013/32/EU.
4. The information exchanged shall only be used for the purposes set out in paragraph 1 and shall not be further processed.
Article 41
Procedure for allocation
1. Chapter V and Sections II to VII of Chapter VI shall apply mutatis mutandis.
2. Family members to whom the procedure for allocation applies shall be allocated to the same Member State.
Article 42
Costs of allocation transfers
For the costs to transfer an applicant to the Member State of allocation, the benefitting Member State shall be refunded by a lump sum of EUR 500 for each person transferred pursuant to Article 38(c). This financial support shall be implemented by applying the procedures laid down in Article 18 of Regulation (EU) No 516/2014.
Article 43
Cessation of corrective allocation
The automated system shall notify the Member States and the Commission as soon as the number of applications in the benefitting Member State for which it is the Member State responsible under this Regulation is below 150 % of its share pursuant to Article 35(1).
Upon the notification referred to in paragraph 2, the application of the corrective allocation shall cease for that Member State.
* 604/2013
CHAPTER VII VIII ADMINISTRATIVE COOPERATION
q
Article 44
Automated system for registration, monitoring and the allocation mechanism
new
1. For the purposes of the registration and monitoring the share of applications for international protection pursuant to Article 22 and of the application of the allocation mechanism set out in Chapter VII an automated system shall be established.
2. The automated system shall consist of the central system and the communication infrastructure between the central system and the national infrastructures.
3. The European agency for the operational management of large scale IT systems in the area of freedom, security and justice established by Regulation (EU) No 1077/2011 shall be responsible for the preparation, development and the operational management of the central system and the communication infrastructure between the central system and the national infrastructures.
4. The national infrastructures shall be developed and managed by the Member States.
Article 45
Access to the automated system
1. The competent asylum authorities of the Member States referred to in Article 47 shall have access to the automated system referred to in Article 44(1) for entering the information referred to in Article 20(7), Article 22(1), (4) and (5), Article 37(1) and point (h) of Article 39.
2. The European Union Agency for Asylum shall have access to the automated system for entering and adapting the reference key pursuant to Article 35(4) and for entering the information referred to in Article 22(3).
3. The information referred to in Article 23(2), Article 36(4) and point h of Article 39 shall be accessible for consultation only by the competent asylum authorities of the Member States referred to in Article 47 for the purposes of this Regulation and of Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013].
4. The Commission shall, by means of implementing acts, adopt uniform conditions and practical arrangements for entering and consulting the information referred to in paragraphs 1 and 3. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 56(2).
* 604/2013 (adapted) ^ new
Information sharing
1. Each Member State shall communicate to any Member State that so requests such personal data concerning the applicant as is E/ adequate nS appr opriate, relevant and non excessi v e *-$ limited to what is necessary ^ for:
(a) determining the Member State responsible;
(b) examining the application for international protection;
(c) implementing any obligation arising under this Regulation.
2. The information referred to in paragraph 1 may only cover:
(a) personal details of the applicant, and, where appropriate, his or her family members, relatives or any other family relations (full name and where appropriate, former name; nicknames or pseudonyms; nationality, present and former; date and place of birth);
(b) identity and travel papers (references, validity, date of issue, issuing authority, place of issue, etc.);
(c) other information necessary for establishing the identity of the applicant, including fingerprints processed ^ taken of the applicant by the Member State, in particular for the purposes of Article 40 | in accordance with Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013];
(d) places of residence and routes travel led;
(e) residence documents or visas issued by a Member State;
(f) the place where the application was lodged;
(g) the date on which any previous application for international protection was lodged, the date on which the present application was lodged, the stage reached in the proceedings and the decision taken, if any.
3. Furthermore, provided it is necessary for the examination of the application for international protection, the Member State responsible may request another Member State to let it know on what grounds the applicant bases his or her application and, where applicable, the grounds for any decisions taken concerning the applicant. The other Member State may refuse to respond to the request subm itted to it, if the communication of such information is likely to harm its essential interests or the protection of the liberties and fundamental rights of the person concerned or of others. In any event, communication of the information requested shall be subject to the written approval of the applicant for international protection, obtained by the requesting Member State. In that case, the applicant must know for what specific information he or she is giving his or her approval.
4. Any request for information shall only be sent in the context of an individual application for international protection. It shall set out the grounds on which it is based and, where its purpose is to check whether there is a criterion that is likely to entail the responsibility of the requested Member State, shall state on what evidence, including relevant information from reliable sources on the ways and means by which applicants enter the territories of the
Member States, or on what specific and verifiable part of the applicant’s statements it is
based. It is understood that such relevant information from reliable sources is not in itself sufficient to determine the responsibility and the competence of a Member State under this Regulation, but it may contribute to the evaluation of other indications relating to an individual applicant.
5. The requested Member State shall be obliged to reply within five ^ two ^ weeks. Any delays in the reply shall be duly justified. Non-compliance with the five ^ two ^ week time limit shall not relieve the requested Member State of the obligation to reply. If the research carried out by the requested Member State which did not respect the maximum time limit withholds information which shows that it is responsible, that Member State may not invoke
the expiry of the tim e llllllllllllll provided for in Articles 21, 23 and 24 as a reason for refusing to
comply with a request to take charge or take back. In that case, the time limits provided for in Articles 21, 24 23 and 24 for submitting a request to take charge or take back shall be
extended by a period of time which shall be equivalent to the delay in the reply by the requested Member State.
6. The exchange of information shall be effected at the request of a Member State and may only take place between authorities whose designation by each Member State has been communicated to the Commission in accordance with Article 35 47(1) .
7. The information exchanged may only be used for the purposes set out in paragraph 1. In each Member State such information may, depending on its type and the powers of the recipient authority, only be communicated to the authorities and courts and tribunals entrusted
with
(a) determining the Member State responsible;
(b) examining the application for international protection;
(c) implementing any obligation arising under this Regulation.
8. The Member State which forwards the inform ati on shall ensure that it is accurate and up
to date. If it transpires that it has forwarded inf orm ation which is inaccurate or wwwwww should
not have been forwarded, the re c ipi e nt Mem ber States sssssshall be informed thereof imm
They shall b e obl ige d to cor rect such information or to
9. The applicant shall have the right to be informed, on request, of any data that is pr ocessed
concerning him or her.
If the applicant finds that the data have been processed in breach of this Regulation or of Directive 95/46/EC, in particular because they are inc om ple te or inaccurate, he or she shall be entitled to have them corrected or erased.
The authority correcting or erasing the data shall inform, as appropriate, the Member State tr ansm itting or receiving the information.
The applicant shall have the right to bri ng an action or a complaint before the competent authorities or courts or tribuna ls of the Member State which refused the right of access to or the right of correction or erasure of data relatin g to him or her.
108. In each Member State concerned, a record shall be kept, in the individual file for the person concerned and/or in a register, of the transmission and receipt of information exchanged.
11. The data exchanged shall be kept for a period not exceeding that wwwwww is necessary for
the purposes for which they ar e exch anged.
12. Where the data are not processed autom ati c al ly or are not conta ined, or intend ed to be entered, in a file, each Member State shall take appropriate measures to ensure co mplianc e with this Article through effective checks.
Article 35 47
Competent authorities and resources
1. Each Member State shall notify the Commission without delay of the specific authorities responsible for fulfilling the obligations arising under this Regulation, and any amendments thereto. The Member States shall ensure that those authorities have the necessary resources for carrying out their tasks and in particular for replying within the prescribed time limits to requests for information, requests to take charge, of an d re quests to take back ^ notifications and, if applicable, complying with their obligations under the allocation mechanism ^ appl icants.
2. The Commission shall publish a consolidated list of the authorities referred to in paragraph 1 in the Official Journal of the European Union. Where there are amendments thereto, the Commission shall publish once a year an updated consolidated list.
3. The authorities referred to in paragraph 1 shall receive the necessary training with respect to the application of this Regulation.
4. The Commission shall, by means of implementing acts, establish secure electronic transmission channels between the authorities referred to in paragraph 1 ^ and between those authorities and the European Union Agency for Asylum <=■ for transmitting ■=> information, fingerprint data taken in accordance with Regulation [Proposal for a Regulation recasting Regulation 603/2013/EU], ^ requests, ^ notifications, ^ replies and all written correspondence and for ensuring that senders automatically receive an electronic proof of delivery. T hose implementing acts shall be adopted in accordance with the examination procedure referred to in Arti c le 44 56(2) .
Article 36 48
Administrative arrangements
1. Member States may, on a bilateral basis, establish administrative arrangements between themselves concerning the practical details of the implementation of this Regulation, in order to facilitate its application and increase its effectiveness. Such arrangements may relate to:
(a) exchanges of liaison officers;
(b) simplification of the procedures and shortening of the time limits relating to transmission and the examination of requests to take charge of or take back appl icants.
2. Member States may also maintain the administrative arrangements concluded under Regulation (EC) No 343/2003 ^and Regulation (EU) No 604/2013^ . To the extent that such arrangements are not compatible with this Regulation, the Member States concerned shall amend the arrangements in such a way as to eliminate any incompatibilities observed.
3. Bef ore concluding or amending any ar ran gement refer red to in paragraph 1(b), the Member
States concerned shall consult the Commmmmmion as to the c o m patibi lity of the a rr a ngem ent
with this Regulation.
4. If the Commmmmmion considers the arrangements referred to in p ar agraph 1(b) to be
incompatible with this Regulation, it shalllllllllllllllllllllll a reasonable period, notify the Member
States concerned. The Member States shall take all appropriate ste ps to amend the
arrangement concerned within a reasonable time in such a way as to eliminate any
incompatibilities observed.
5. Member States shall notify the Commmmmmion of all arrangements referred to in paragraph 1,
and of any denunci a ti on thereof, or am end ment the re to.
Q
Article 49
Network of Dublin units
new
The European Union Agency for Asylum shall set up and facilitate the activities of a network of the competent authorities referred to in Article 47 (1), with a view to enhancing practical cooperation and information sharing on all matters related to the application of this Regulation, including the development of practical tools and guidance.
^ 604/2013 (adapted) ^ new
CHAPTERVIII CONCILIATION
Conciliation
1. Where the Member States cannot resolve a dispute on any matter related to th e application
of this Regulation, they m ay have recourse to the conci li ation procedure provided for in
paragraph 2.
2. The conciliation procedure shall b e initiated by a request from one of the Member States in
dispute to th e Chairman of the Commmmme set up by Article 44. By agreeing to use the
conciliation procedure, the Member States conce rne d undertake to ta ke the utm ost acc ount o f the sol uti on proposed.
The Chairman of the Commmmme shall appoint three m e mber s of the Commmmm e re p resenting
three Member States not connected with the matter. They shall receive the ar gum ents of the parties either in writing or orally and, after de libera tion, shall propose a solution within one month, where necessary after a vote.
The Chairman of the Commmmme, or his or her deputy, shall chair the discussion. He or she
may put forward his or her point of view but m a y not vote.
Whether it is adopted or rejected by the parties, the solution proposed shall b e final and ir re vocable.
CHAPTER IX TRANSITIONAL PROVISIONS AND FINAL PROVISIONS
Article 38 50
Data security and data protection
1. Member States shall take all E/ im ple ment nS appropriate E/ technical and organisati onal nS measures to ensure the security of tr ansm itte d personal data ^ processed under this Regulation ^ and in particular to avoi d E/ prevent nS unlawful or unauthorised access or disclosure, alteration or loss of personal data processed.
Each Member State shall provide that the national sup ervi sor y authority or authorities designated pursuant to Article 28(1) of Directive 95/46/EC shall monitor inde p en dentl y, in accordance with its respective national law, the lawfulness of the processing, in accordance
with this Regulation, of personal data by the Member State in question.
.n,
2. The competent supervisory authority or authorities of each Member State shall monitor the lawfulness of the processing of personal data by the authorities referred to in Article 47 of the Member State in question, including of the transmission to and from the automated system referred to in Article 44(1) and to the authorities competent for carrying out checks referred to in Article 40.
3. The processing of personal data by the European Union Agency for Asylum shall be subject to the monitoring of the European Data Protection Supervisor in accordance with Regulation (EC) No 45/2001 and the provisions on data protection laid down in [Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010].
* 604/2013 (adapted) ^ new
Article 39 51
Confidentiality
Member States shall ensure that the authorities referred to in Article 35 47 are bound by the confidentiality rules provided for in national law, in relation to any information they obtain in the course of their work.
Article 40 52
Penalties
Member States shall \S> lay down the rules on <3 take the necessary measures to ensure that any misuse of data processed in accordance with this Regulation is punishable by penalties, including administrative and/or criminal penalties in accordance with national law, *-$ applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be ^ that are effective, proportionate and dissuasive.
Transitional measures
Where an application has been lodged after [the first day following the entry into force of this Regulation] the date mentioned in the second paragraph of Article 49, the events that are likely to entail the responsibility of a Member State under this Regulation shall be taken into
consideration, even if they precede that date, Article 13(2).
with the exception of the events mentioned in
Q
By way of derogation from Article 34(2), during the first three months after entry into force of this Regulation, the corrective allocation mechanism shall not be triggered. By way of
new
new
derogation from Article 34(3), after the expiry of the three month period following the entry into force of this Regulation and until the expiry of one year following the entry into force of this Regulation, the reference period shall be the period which has elapsed since the entry into force of this Regulation.
* 604/2013
Article 42 54
Calculation of time limits
Any period of time prescribed in this Regulation shall be calculated as follows:
(a) where a period expressed in days, weeks or months is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the period in question;
(b) a period expressed in weeks or months shall end with the expiry of whichever day in the last week or month is the same day of the week or falls on the same date as the day during which the event or action from which the period is to be calculated occurred or took place. If, in a period expressed in months, the day on which it should expire does not occur in the last month, the period shall end with the expiry of the last day of that month;
(c) time limits shall include Saturdays, Sundays and official holidays in any of the Member States concerned.
Article 43 55
Territorial scope
As far as the French Republic is concerned, this Regulation shall apply only to its European territory.
Article 44 56
Committee
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
Article 45 57
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Articles 8(5) 10(6) and 16 18(3) shall be conferred on the Commission for a period of 5 years from the date of entry into force of this Regulation. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the 5-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
3. The delegation of power referred to in Articles 8(5) 10(6) and 16 18(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
* 604/2013 (adapted)
E/4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitution al Agreement on Better Law-Making of 13 April 2016. <3
* 604/2013
45. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
^ 604/2013 (adapted) ^ new
56. A delegated act adopted pursuant to Articles 8(5) 10(6) and 16 18 (3) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of four ^ two ^ months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Aticle 46 58 \E> Review, <X] mMonitoring and evaluation
By [18 months after entry into force] and from then on annually, the Commission shall review the functioning of the corrective allocation mechanism set out in Chapter VII of this Regulation and in particular the thresholds set out in Article 34(2) and Article 43 thereof.
By ■=> [three years after entry into force] <=■ 21 July 2016, the Commission shall report to the European Parliament and to the Council on the application of this Regulation and, where appropriate, shall propose the necessary amendments. Member States shall forward to the Commission all information appropriate for the preparation of that report, at the latest six months before that time limit expires.
After having submitted that report, the Commission shall report to the European Parliament and to the Council on the application of this Regulation at the same time as it submits reports
on the implementation of the Eurodac system provided for by Article 40 42 of Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013].
Article 47 59
Statistics
1. In accordance with Article 4(4) of Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection31, Member States shall communicate to the Commission (Eurostat), statistics concerning the application of this Regulation and of Regulation (EC) No 1560/2003.
Q
2. The European Union Agency for Asylum shall publish at quarterly intervals the information transmitted pursuant to Article 34(4).
* 604/2013 (adapted) ^ new
Article 48 60
Repeal
Regulation (EC) No 343/2003 \E> (EU) No 604/2013 <Z1 is repealed ^ for the Member States bound by this Regulation as concerns their obligations in their relations between themselves^.
Articles 11(1), 13, 14 and 17 of Regulation (EC) No 1560/2003 are repealed.
References to the repealed Regulation or Articles shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.
Entry into force and applicability
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply to applications for international protection lodged as from [E/the first day
following its entry into force
<X] ] of the sixth month following its entry into force and, from
that date, it will apply to any request to take charge of or take back applicant, irrespective of
the date on wwwwwwwww e application was made . The Member State responsible for the
examination of an application for international protection submitted before that date shall be determined in accordance with the criteria set out in Regulation 343/2003604/2013.
Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007
new
3
on
References in this Regulation to Regulation (EU) No 603/2013, Directive 2013/32/EU and Directive 2013/33/EU shall be construed, until the dates of their application, as references to Regulation (EC) No 2725/200032, Directive 2003/9/EC33 and Directive 2005/85/EC34 respectively.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.