Legal provisions of COM(2020)610 - Asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund]

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dossier COM(2020)610 - Asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX ...
document COM(2020)610 EN
date September 23, 2020


PART I

SCOPE AND DEFINITIONS

Article 1

Aim and subject matter

In accordance with the principle of solidarity and fair sharing of responsibility, and with the objective of reinforcing mutual trust, this Regulation:

(a)          sets out a common framework for the management of asylum and migration in the Union;

(b)          establishes a mechanism for solidarity;

(c)          lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection.

Article 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) of the Treaty and who is not a person enjoying the right to free movement under Union law as defined in Article 2, point (5) of Regulation (EU) 2016/399 of the European Parliament and of the Council53;

(b)          ‘application for international protection’ or ‘application’ means a request for protection made to a Member State by a third-country national or a stateless person, who can be understood as seeking refugee status or subsidiary protection status;

(c)          ‘applicant’ means a third-country national or a stateless person who has made an application for international protection in respect of which a decision has not been taken, or has been taken and is either subject to or can still be subject to a remedy in the Member State concerned, irrespective of whether the applicant has a right to remain or is allowed to remain in accordance with Regulation (EU) XXX/XXX [Asylum Procedure Regulation], including a person who has been granted immediate protection pursuant to Regulation (EU) XXX/XXX [Regulation addressing situations of crisis and force majeure in the field of asylum and migration];

(d)          ‘examination of an application for international protection’ means examination of the admissibility or the merits of an application for international protection in accordance with Regulation (EU) XXX/XXX [Asylum Procedure Regulation] and Regulation (EU) XXX/XXX [Qualification Regulation], excluding procedures for determining the Member State responsible in accordance with this Regulation;

Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, p. 1.

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(e)          ‘withdrawal of an application for international protection’ means either explicit or implicit withdrawal of an application for international protection in accordance with Regulation (EU) XXX/XXX [Asylum Procedure Regulation];

(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(2) of Regulation (EU) XXX/XXX [Qualification Regulation];

(g)          ‘family members’ means, insofar as the family already existed before the applicant or the family member arrived on the territory of the Member States, the following members of the applicant’s family who are present on the territory of the Member States:

(i)     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 third-country nationals,

(ii) 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,

(iii) where 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,

(iv) where 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,

(v) the sibling or siblings of the applicant;

(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;

(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;

(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, including:

(i)     an authorisation or decision issued in accordance with its national law or Union

law required for entry for an intended stay in that Member State of more than 90 days,

(ii) an authorisation or decision issued in accordance with its national law or Union law required for entry for a transit through or an intended stay in that Member State not exceeding 90 days in any 180-day period,

(iii)

an authorisation or decision valid for transit through the international transit areas of one or more airports of the Member States;

(n)         ‘diploma or qualification’ means a diploma or qualification which is obtained after at

least a three months’ period of study in a recognised, state or regional programme of education or vocational training at least equivalent to level 2 of the International Standard Classification of Education, operated by an education establishment in accordance with national law or administrative practice of the Member States;

(o)         ‘education establishment’ means any type of public or private education or

vocational training establishment established in a Member State and recognised by that Member State or considered as such in accordance with national law or whose courses of study or training are recognised in accordance with national law or administrative practice;

(p)         ‘absconding’ means the action by which an applicant does not remain available to the

competent administrative or judicial authorities, such as by leaving the territory of the Member State without authorisation from the competent authorities for reasons which are not beyond the applicant’s control;

(q)         ‘risk of absconding’ means the existence of specific reasons and circumstances in an

individual case, which are based on objective criteria defined by national law to believe that an applicant who is subject to a transfer procedure may abscond;

(r)         ‘benefitting Member State’ means the Member State benefitting from the solidarity

measures in situations of migratory pressure or for disembarkations following search and rescue operations as set out in Chapters I-III of Part IV of this Regulation;

(s)         ‘contributing Member State’ means a Member State that contributes or is obliged to

contribute to the solidarity measures to a benefitting Member State set out in Chapters I-III of Part IV of this Regulation;

(t)         ‘sponsoring Member State’ means a Member State that commits to return illegally

staying third-country nationals to the benefit of another Member State, providing the return sponsorship referred to in Article 55 of this Regulation;

(u)         ‘relocation’ means the transfer of a third-country national or a stateless person from

the territory of a benefitting Member State to the territory of a contributing Member State;

(v)         ‘search and rescue operations’ means operations of search and rescue as referred to

in the 1979 International Convention on Maritime Search and Rescue adopted in Hamburg, Germany on 27 April 1979;

(w)        ‘migratory pressure’ means a situation where there is a large number of arrivals of

third-country nationals or stateless persons, or a risk of such arrivals, including where this stems from arrivals following search and rescue operations, as a result of the geographical location of a Member State and the specific developments in third countries which generate migratory movements that place a burden even on well-prepared asylum and reception systems and requires immediate action;

(x)         ‘resettled or admitted person’ means a person who has been accepted by a Member

State for admission pursuant to Regulation (EU) XXX/XXX [Union Resettlement Framework Regulation] or under a national resettlement scheme outside the framework of that Regulation;

(y)         ‘Asylum Agency’ means the European Union Agency for Asylum as established by

Regulation (EU) XXX/XXX [European Union Asylum Agency];

(z)         ‘return decision’ means an administrative or judicial decision or act stating or

declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return that respects Directive 2008/115/EC of the European Parliament and of

the Council54;

(aa)       ‘illegally staying third-country national’ means a third-country national who does not

fulfil or no longer fulfils the conditions of entry as set out in Article 6 of Regulation (EU) 2016/399 or other conditions for entry, stay or residence in a Member State.

PART II COMMON FRAMEWORK FOR ASYLUM AND MIGRATION MANAGEMENT

Article 3

Comprehensive approach to asylum and migration management

The Union and the Member States shall take actions in the field of asylum and migration management on the basis of a comprehensive approach. That comprehensive approach shall address the entirety of the migratory routes that affect asylum and migration management and shall consist of the following components:

(a)          mutually-beneficial partnerships and close cooperation with relevant third countries, including on legal pathways for third-country nationals in need of international protection and for those otherwise admitted to reside legally in the Member States addressing the root causes of irregular migration, supporting partners hosting large numbers of migrants and refugees in need of protection and building their capacities in border, asylum and migration management, preventing and combatting irregular migration and migrant smuggling, and enhancing cooperation on readmission;

(b)          close cooperation and mutual partnership among Union institutions and bodies, Member States and international organisations;

(c)          full implementation of the common visa policy;

(d)          effective management and prevention of irregular migration;

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 nationals, OJ L 348, 24.12.2008, p. 98.

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(e)          effective management of the Union’s external borders, based on the European integrated border management;

(f)          full respect of the obligations laid down in international and European law concerning persons rescued at sea;

(g)          access to procedures for granting and withdrawing international protection on Union territory and recognition of third-country nationals or stateless persons as refugees or beneficiaries of subsidiary protection;

(h)         determination of the Member State responsible for the examination of an application

for international protection, based on shared responsibility and rules and mechanisms for solidarity;

(i)         access for applicants to adequate reception conditions;

(j)         effective management of the return of illegally staying third-country nationals;

(k)         effective measures to provide incentives for and support to the integration of

beneficiaries of international protection in the Member States;

(l)         measures aimed at reducing and tackling the enabling factors of irregular migration

to and illegal stay in the Union, including illegal employment;

(m)        full deployment and use of the operational tools set up at Union level, notably the

European Border and Coast Guard Agency, the Asylum Agency, EU-LISA and Europol, as well as large-scale Union Information Technology systems;

(n)         full implementation of the European framework for preparedness and management of

crisis.

Article 4

Principle of integrated policy-making

1. The Union and Member States shall ensure coherence of asylum and migration management policies, including both the internal and external components of those policies.

2. The Union and Member States acting within their respective competencies shall be responsible for the implementation of the asylum and migration management policies.

3. Member States, with the support of Union Agencies, shall ensure that they have the capacity to effectively implement asylum and migration management policies, taking into account the comprehensive approach referred to in Article 3, including the necessary human and financial resources and infrastructure.

Article 5

Principle of solidarity and fair sharing of

responsibility

1. In implementing their obligations, the Member States shall observe the principle of

solidarity and fair sharing of responsibility and shall take into account the shared interest in the effective functioning of the Union’s asylum and migration management policies. Member States shall:

2.

1.

2.

(a)

(b)

(c)

(d) (e)

establish and maintain national asylum and migration management systems that provide access to international protection procedures, grant such protection to those who are in need and ensure the return of those who are illegally staying;

take all measures necessary and proportionate to reduce and prevent irregular migration to the territories of the Member States, in close cooperation and partnership with relevant third countries, including as regards the prevention and fight against migrant smuggling;

apply correctly and expeditiously the rules on the determination of the Member State responsible for examining an application for international protection and, where necessary, carry out the transfer to the Member State responsible pursuant to Chapters I-VI of Part III;

provide support to other Member States in the form of solidarity contributions on the basis of needs set out in Chapters I-III of Part IV;

take all reasonable and proportionate measures unauthorised movements between Member States.

prevent

correct

Financial

and operational support by the Union for the implementation of the obligations shall be provided in accordance with the Regulation (EU) XXX/XXX [Asylum and Migration Fund] and Regulation (EU) XXX/XXX [Integrated Border Management Fund].

Article 6

Governance

and monitoring of the migratory situation

The Commission

shall adopt a

European Asylum

Migration Management

Strategy setting out the strategic approach to managing asylum and migration at Union level and on the implementation of asylum and migration management policies in accordance with the principles set out in this Part. The Commission shall transmit the Strategy to the European Parliament and the Council.

The European Asylum and Migration Management Strategy shall take into account the following:

(a) the national strategies of the Member States referred to paragraph 3 of this Article;

information gathered by the Commission under the Commission Recommendation No XXX on an EU Migration Preparedness and Crisis Management Mechanism hereinafter referred to as Migration Preparedness and Crisis Blueprint; the reports issued under that framework as well as the activities of the Migration Preparedness and Crisis Management Network;

(b)

(c)

relevant reports and analyses

from Union agencies;

to

and

and

(d) information gathered in the course of evaluations undertaken in the Schengen evaluation and monitoring mechanism in accordance with Article 4 of Regulation (EU) No 1053/201355.

3. Member States shall have national strategies in place to ensure sufficient capacity for the implementation of an effective asylum and migration management system in accordance with the principles set out in this Part. Those strategies shall include contingency planning at national level, taking into account the contingency planning pursuant to Regulation (EU) XXX/XXX [European Union Asylum Agency], Regulation (EU) 2019/189656 (European Border and Coast Guard Agency) and Directive XXX/XXX/EU [Reception Conditions Directive] and the reports of the Commission issued within the framework of the Migration Preparedness and Crisis Blueprint. Such national strategies shall include information on how the Member State is implementing the principles set out in this Part and legal obligations stemming therefrom at national level. They shall take into account other relevant strategies and existing support measures notably under Regulation (EU) XXX/XXX [Asylum and Migration Fund] and Regulation (EU) XXX/XXX [European Union Asylum Agency] and be coherent with and complementary to the national strategies for integrated border management established in accordance with Article 8(6) of Regulation (EU) 2019/1896. The results of the monitoring undertaken by the Asylum Agency and the European Border and Coast Guard Agency, of the evaluation carried out in accordance with Council Regulation No 1053/2013 as well as those carried out in line with Article 7 of Regulation (EU) XXX/XXX [Screening Regulation], should also be taken into account in these strategies.

4. The Commission shall adopt a Migration Management Report each year setting out the anticipated evolution of the migratory situation and the preparedness of the Union and the Member States. In the case of migratory flows generated by search and rescue operations, the Commission shall consult the concerned Member States and the Report shall set out the total number of projected disembarkations in the short term and the solidarity response that would be required to contribute to the needs of the Member States of disembarkation through relocation and through measures in the field of capacity building, operational support and measures in the field of the external dimension. The Report shall also indicate whether particular Member States are faced with capacity challenges due to the presence of third-country nationals who are vulnerable and include the results of the reporting on monitoring listed in paragraph 3 including the information gathered within the framework of the Migration Preparedness and Crisis Blueprint and propose improvements where appropriate.

5. The Member States shall establish the national strategies by [one year after the entry into force of this Regulation] at the latest. The first European Asylum and Migration Management Strategy shall be adopted by [18 months after the entry into force of

55

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, OJ L 295, 6.11.2013, p. 27.

Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, OJ L 295, 14.11.2019, p. 1.

56

this Regulation] at the latest and the first Migration Management Report shall be issued by [one year after the entry into force of this Regulation] at the latest.

6. The Commission shall monitor and provide information on the migratory situation

through regular situational reports based on good quality data and information provided by Member States, the External Action Service, the Asylum Agency, the European Border and Coast Guard Agency, Europol and the Fundamental Rights Agency and notably the information gathered within the framework of the Migration Preparedness and Crisis Blueprint and its Network.

Article 7

Cooperation with third countries to facilitate return and readmission

1. Where the Commission, on the basis of the analysis carried out in accordance with Article 25a(2) or (4) of Regulation (EU) No 810/2009 of the European Parliament and of the Council57 and of any other information available, considers that a third country is not cooperating sufficiently on the readmission of illegally staying third-country nationals, and without prejudice to Article 25(a)(5) of that Regulation, it shall submit a report to the Council including, where appropriate, the identification of any measures which could be taken to improve the cooperation of that third country as regards readmission, taking into account the Union’s overall relations with the third country.

2. Where the Commission considers it appropriate, it shall also identify in its report measures designed to promote cooperation among the Member States to facilitate the return of illegal staying third-country nationals.

3. On the basis of the report referred to in paragraph 1, the Commission and the Council, within their respective competencies, shall consider the appropriate actions taking into account the Union’s overall relations with the third country.

4. The Commission shall keep the European Parliament regularly informed of the implementation of this Article.

Regulation (EC) No 810/2009 of the European Parliament and of the Council, of 13 July 2009, establishing a Community Code on Visas, OJ L 243, 15.9.2009, p. 1.

57

PART III

CRITERIA AND MECHANISMS FOR DETERMINING THE MEMBER STATE

RESPONSIBLE

CHAPTER I

GENERAL PRINCIPLES AND SAFEGUARDS

Article 8

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 II of Part 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 registered shall be responsible for examining it.

3. Where it is impossible for a Member State 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 II of Part III in order to establish whether another Member State can be designated as responsible.

Where a Member State cannot carry out the transfer pursuant to the first subparagraph to any Member State designated on the basis of the criteria set out in Chapter II of Part III or to the first Member State with which the application was registered, that Member State shall become the Member State responsible.

4. If a security check provided for in Article 11 of Regulation (EU) XXX/XXX [Screening Regulation] has not been carried out, the first Member State in which the application for international protection was registered shall examine whether there are reasonable grounds to consider the applicant a danger to national security or public order of that Member State as soon as possible after the registration of the application, before applying the criteria for determining the Member State responsible pursuant to Chapter II or the clauses set out in Chapter III of Part III.

If a security check provided for in Article 11 of Regulation (EU) XXX/XXX [Screening Regulation] has been carried out, but the first Member State in which the application for international protection was registered has justified reasons to examine whether there are reasonable grounds to consider the applicant a danger to national security or public order of that Member State, that Member State shall carry out the examination as soon as possible after the registration of the application, before applying the criteria for determining the Member State responsible pursuant to Chapter II or the clauses set out in Chapter III of Part III.

Where the security check carried out in accordance with Article 11 of Regulation (EU) XXX/XXX [Screening Regulation] or in accordance with the first and second subparagraphs of this paragraph shows that there are reasonable grounds to consider the applicant a danger to national security or public order of the Member State carrying out the security check, that Member State shall be the Member State responsible.

5. Each Member State shall retain the right to send an applicant to a safe third country,

subject to the rules and safeguards laid down in Regulation (EU) XXX/XXX [Asylum Procedure Regulation].

Article 9

Obligations of the applicant

1. Where a third-country national or stateless person intends to make an application for international protection, the application shall be made and registered in the Member State of first entry.

2. By derogation from paragraph 1, where a third-country national or stateless person is in possession of a valid residence permit or a valid visa, the application shall be made and registered in the Member State that issued the residence permit or visa.

Where a third-country national or stateless person who intends to make an application for international protection is in possession of a residence permit or visa which has expired, the application shall be made and registered in the Member State where he or she is present.

3. The applicant shall fully cooperate with the competent authorities of the Member States in matters covered by this Regulation, in particular by submitting as soon as possible and at the latest during the interview referred to in Article 12, all the elements and information available to him or her relevant for determining the Member State responsible. Where the applicant is not in a position at the time of the interview to submit evidence to substantiate the elements and information provided, the competent authority may set a time limit within the period referred to in Article 29(1) for submitting such evidence.

4. The applicant shall be required to be present in:

(a)     the Member State referred to in paragraphs 1 and 2 pending the determination of the Member State responsible and, where applicable, the implementation of the transfer procedure;

(b)     the Member State responsible;

(c)     the Member State of relocation following a transfer pursuant to Article 57(9).

5. Where a transfer decision is notified to the applicant in accordance with Article 32(2) and Article 57(8), the applicant shall comply with that decision.

Article 10

Consequences of non-compliance

1. The applicant shall not be entitled to the reception conditions set out in Articles 15 to

17 of Directive XXX/XXX/EU [Reception Conditions Directive] pursuant to Article

2.

17a of that Directive in any Member State other than the one in which he or she is required to be present pursuant to Article 9(4) of this Regulation from the moment he or she has been notified of a decision to transfer him or her to the Member State responsible, provided that the applicant has been informed of that consequence pursuant to Article 8(2), point (b) of Regulation (EU) XXX/XXX [Screening Regulation]. This shall be without prejudice to the need to ensure a standard of living in accordance with Union law, including the Charter of Fundamental Rights of the European Union, and international obligations.

Elements and information relevant for determining the Member State responsible submitted after expiry of the time limit referred to in Article 9(3) shall not be taken into account by the competent authorities.

Article 11

Right to information

1. As soon as possible and at the latest when an application for international protection

is registered in a Member State, its competent authorities shall inform the applicant of the application of this Regulation and of the obligations set out in Article 9 as well as the consequences of non-compliance set out in Article 10, and in particular:

(a)     that the right to apply for international protection does not encompass a choice by the applicant in relation to either the Member State responsible for examining the application for international protection or the Member State of relocation;

(b)     of the objectives of this Regulation and the consequences of making another application in a different Member State as well as the consequences of leaving the Member State where he or she is required to be present pursuant to Article 9(4), in particular that the applicant shall only be entitled to the reception conditions as set out in Article 10(1);

(c)     of 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;

(d)     of the aim of the personal interview pursuant to Article 12 and the obligation to submit and substantiate orally or through the provision of documents information as soon as possible in the procedure any relevant information that could help to establish 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, as well as any assistance that the Member State can offer with regard to the tracing of family members or relatives;

(e)     of the obligation for the applicant to disclose, as soon as possible in the procedure any relevant information that could help to establish any prior residence permits, visas or educational diplomas;

(f)      of the possibility to challenge a transfer decision within the time limit set out in Article 33(2) and of the fact that the scope of that challenge is limited as laid down in Article 33(1);

(g) of the right to be granted, on request, legal assistance free of charge where the person concerned cannot afford the costs involved;

(h) that the competent authorities of Member States and the Asylum Agency will process personal data of the applicant including for the exchange of data on him or her for the sole purpose of implementing their obligations arising under this Regulation;

(i)     of the categories of personal data concerned;

(j)

of 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 41 and of the national data protection authorities responsible for hearing claims concerning the protection of personal data, and of the contact details of the data protection officer;

(k)

in the case of an unaccompanied minor, of the role and responsibilities of the representative and of the procedure to file complaints against a representative in confidence and safety and in full respect of the child's right to be heard in this respect;

(l)     where applicable, of the relocation procedure set out in Articles 57 and 58.

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 information material drawn up in clear and plain language pursuant to paragraph 3 for that purpose.

Where necessary for the applicant’s proper understanding, the information shall also be supplied orally, where appropriate in connection with the personal interview as referred to in Article 12.

3. The Asylum Agency shall, in close cooperation with the responsible national agencies, draw up common information material, as well as a specific leaflet for unaccompanied minors, containing at least the information referred to in paragraph 1. That common information material shall also include information regarding the application of Regulation (EU) XXX/XXX [Eurodac Regulation] and, in particular, the purpose for which the data of an applicant may be processed within Eurodac. The common information material shall be drawn up in such a manner as to enable Member States to complete it with additional Member State-specific information.

Article 12

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. The interview shall also allow the proper understanding of the information supplied to the applicant in accordance with Article 11.

2. The personal interview may be omitted where:

(a)     the applicant has absconded;

(b)     the applicant has not attended the personal interview and has not provided justified reasons for his or her absence;

(c) after having received the information referred to in Article 11, the applicant has already provided the information relevant to determine the Member State responsible by other means. The Member State omitting the interview shall give the applicant the opportunity to present all further information which is relevant to correctly determine the Member State responsible within the period referred to in Article 29(1).

3. The personal interview shall take place in a timely manner and, in any event, before any take charge request is made pursuant to Article 29.

4. The personal interview shall be conducted in a language that the applicant understands or is reasonably supposed to understand and in which he or she is able to communicate. Interviews of unaccompanied minors shall be conducted in a child-friendly manner, by staff who are appropriately trained and qualified under national law, in the presence of the representative and, where applicable, the minor’s legal advisor. Where necessary, Member States shall have recourse to an interpreter, and where appropriate a cultural mediator, who is able to ensure appropriate communication between the applicant and the person conducting the personal interview. The applicant may request to be interviewed and assisted by staff of the same sex.

5. The personal interview shall take place under conditions which ensure appropriate confidentiality. It shall be conducted by a qualified person under national law. Applicants who are identified as being in need of special procedural guarantees pursuant to Regulation (EU) XXX/XXX [Asylum Procedure Regulation], shall be provided with adequate support in order to create the conditions necessary for effectively presenting all elements allowing for the determination of the Member State responsible.

6. 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. The summary may either take the form of a report or a standard form. The Member State shall ensure that the applicant or the legal advisor or other counsellor who is representing the applicant have timely access to the summary.

Article 13

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. Each Member State where an unaccompanied minor is present shall ensure that he or she is represented and assisted by a representative with respect to the relevant procedures provided for in this Regulation. The representative shall have the qualifications, training and expertise to ensure that the best interests 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 information material for unaccompanied minors.

Where an organisation is appointed as a representative, it shall designate a person responsible for carrying out its duties in respect of the minor. The first subparagraph shall apply to that person.

The representative provided for in the first subparagraph may be the same person or organisation as provided for in Article 22 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation].

3. The representative of an unaccompanied minor shall be involved in the process of establishing the Member State responsible under this Regulation. The representative shall assist the unaccompanied minor to provide information relevant to the assessment of his or her best interests in accordance with paragraph 4, including the exercise of the right to be heard, and shall support his or her engagement with other actors, such as family tracing organisations, where appropriate for that purpose.

4. In assessing the best interests 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, taking into particular consideration the minor’s background;

(c)     safety and security considerations, in particular where there is a risk of the minor being a victim of any form of violence and exploitation, including trafficking in human beings;

(d)     the views of the minor, in accordance with his or her age and maturity;

(e)     where the applicant is an unaccompanied minor, the information provided by the representative in the Member State where the unaccompanied minor is present.

5. Before transferring an unaccompanied minor to the Member State responsible or, where applicable, to the Member State of relocation, the transferring Member State shall make sure that the Member State responsible or the Member State of relocation takes the measures referred to in Articles 14 and 23 of Directive XXX/XXX/EU [Reception Conditions Directive] and Article 22 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] 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 4 and the conclusions of the assessment on these factors shall be clearly stated in the transfer decision. 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.

6. For the purpose of applying Article 15, the Member State where the unaccompanied minor’s application for international protection was registered shall, as soon as possible, take appropriate action to identify the family members or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best interests 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 organisations.

The staff of the competent authorities referred to in Article 41 who deal with requests concerning unaccompanied minors shall have received, and shall continue to receive, appropriate training concerning the specific needs of minors.

7. With a view to facilitating the appropriate action to identify the family members or relatives of the unaccompanied minor living in the territory of another Member State

pursuant to paragraph 6, 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 67(2).

CHAPTER II

CRITERIA FOR DETERMINING THE MEMBER STATE RESPONSIBLE

Article 14

Hierarchy of criteria

1. The criteria for determining the Member State responsible shall be applied 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 determined on the basis of the situation obtaining when the application for international protection was first registered with a Member State.

Article 15

Unaccompanied minors

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.

2. The Member State responsible shall be that where a family member of the unaccompanied minor is legally present, unless it is demonstrated that it is not 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.

3. Where the applicant 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, unless it is demonstrated that it is not in the best interests of the minor.

4. Where family members or relatives as referred to in paragraphs 2 and 3, are staying in more than one Member State, the Member State responsible shall be decided on the basis of what is in the best interests of the unaccompanied minor.

5. In the absence of a family member or a relative as referred to in paragraphs 2 and 3, the Member State responsible shall be that where the unaccompanied minor’s application for international protection was first registered, unless it is demonstrated that this is not in the best interests of the minor.

6. The Commission is empowered to adopt delegated acts in accordance with Article 68 concerning:

(a) the identification of family members or relatives of unaccompanied minors;

(b)     the criteria for establishing the existence of proven family links;

(c)     the criteria for assessing the capacity of a relative to take care of an unaccompanied minor, including where family members, siblings or relatives of the unaccompanied minor are staying 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 13(4).

7. 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 67(2).

Article 16

Family members who are beneficiaries of international protection

Where the applicant has a family member 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.

Article 17

Family members who are applicants for international protection

Where 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.

Article 18

Family procedure

Where several family members 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 as follows:

(a)     responsibility for examining the applications for international protection of all the family members 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 19

Issue of residence documents or visas

1. Where the applicant is in possession of a valid residence document, 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, 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. In such a case, the represented Member State shall be responsible for examining the application for international protection.

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 in 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)     where the various visas are of the same type the Member State which issued the visa having the latest expiry date;

(c)     where the visas are of different types, 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 of one or more residence documents or one or more visas which expired less than three years before the application was registered, paragraphs 1, 2 and 3 shall apply.

5. 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 fraud was committed after the document or visa was issued.

Article 20

Diplomas or other qualifications

1. Where the applicant is in possession of a diploma or qualification issued by an education establishment established in a Member State and the application for international protection was registered after the applicant left the territory of the Member States following the completion of his or her studies, the Member State in which that education establishment is established shall be responsible for examining the application for international protection.

2. Where the applicant is in possession of more than one diploma or qualification issued by education establishments in different Member States, the responsibility for

examining the application for international protection shall be assumed by the Member State which issued the diploma or qualification following the longest period of study or, where the periods of study are identical, by the Member State in which the most recent diploma or qualification was obtained.

Article 21

Entry

1. Where it is established, on the basis of proof or circumstantial evidence as described in the two lists referred to in Article 30(4) of this Regulation, including the data referred to in Regulation (EU) XXX/XXX [Eurodac Regulation], that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the first Member State thus entered shall be responsible for examining the application for international protection. That responsibility shall cease if the application is registered more than 3 years after the date on which that border crossing took place.

2. The rule set out in paragraph 1 shall also apply where the applicant was disembarked on the territory following a search and rescue operation.

3. Paragraphs 1 and 2 shall not apply if it can be established, on the basis of proof or circumstantial evidence as described in the two lists referred to in Article 30(4) of this Regulation, including the data referred to in Regulation (EU) XXX/XXX [Eurodac Regulation], that the applicant was relocated pursuant to Article 57 of this Regulation to another Member State after having crossed the border. In that case, that other Member State shall be responsible for examining the application for international protection.

Article 22

Visa waived entry

If a third-country national or a stateless person enters into the territory of the Member States through 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. That responsibility shall cease if the application is registered more than three years after the date on which the person entered the territory.

Article 23

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 III DEPENDENT PERSONS AND DISCRETIONARY CLAUSES

Article 24

Dependent persons

1. Where, on account of pregnancy, having a new-born child, serious illness, severe disability, severe trauma or old age, an applicant is dependent on the assistance of his or her child or parent legally resident in one of the Member States, or his or her child 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 or parent, provided that family ties existed before the applicant arrived on the territory of the Member States, that the child or parent or the applicant is able to take care of the dependent person and that the persons concerned expressed their desire in writing.

Where there are indications that a child or parent is legally resident on the territory of the Member State where the dependent person is present, that Member State shall verify whether the child or parent can take care of the dependent person, before making a take charge request pursuant to Article 29.

2. Where the child 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 responsible shall be the one where the child 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 or parent of the applicant to its territory.

3. The Commission is empowered to adopt delegated acts in accordance with Article 68 concerning:

(a)     the elements to be taken into account in order to assess the dependency link;

(b)     the criteria for establishing the existence of proven family links;

(c) (d)

the criteria for assessing the capacity of the person concerned to take care of the dependent person;

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 67(2).

Article 25

Discretionary clauses

1. By way of derogation from Article 8(1), each Member State may decide to examine

an application for international protection by a third-country national or a stateless

person registered with it, even if such examination is not its responsibility under the criteria laid down in this Regulation.

2. The Member State in which an application for international protection is registered

and which is carrying out the process of determining the Member State responsible, or the Member State responsible, may, at any time before 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 humanitarian grounds based in particular on family or cultural considerations, even where that other Member State is not responsible under the criteria laid down in Articles 15 to 18 and 24. The persons concerned shall express their consent in writing.

The take charge request shall contain all the material in the possession of the requesting Member State necessary to allow the requested Member State to assess the situation.

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 months of receipt of the request using the 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.

CHAPTER IV

OBLIGATIONS OF THE MEMBER STATE RESPONSIBLE

Article 26

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 29, 30 and 35, of an applicant whose application was registered in a different Member State;

(b)     take back, under the conditions laid down in Articles 31 and 35 of this Regulation, an applicant or a third-country national or a stateless person in relation to whom that Member State has been indicated as the Member State responsible under Article 11(1) of Regulation (EU) XXX/XXX [Eurodac Regulation];

(c)     take back, under the conditions laid down in Articles 31 and 35 of this Regulation, a beneficiary of international protection in relation to whom that Member State has been indicated as the Member State responsible under Article 11(1) of Regulation (EU) XXX/XXX [Eurodac Regulation];

(d)     take back, under the conditions laid down in Articles 31 and 35 of this Regulation, a resettled or admitted person who has made an application for international protection or who is irregularly staying in a Member State other than the Member State which accepted to admit him or her in accordance with Regulation (EU) XXX/XXX [Union Resettlement Framework Regulation] or which granted international protection or humanitarian status under a national resettlement scheme.

2. 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 the minor shall be taken charge of or taken back by the Member State responsible for examining the application for international protection of that family member, even if the minor is not individually an applicant, unless it is demonstrated that this is not in the best interests of the child. The same principle 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.

3. In the situations referred to in paragraph 1, points (a) and (b), the Member State responsible shall examine or complete the examination of the application for international protection pursuant to Regulation (EU) XXX/XXX [Asylum Procedure Regulation].

Article 27

Cessation of responsibilities

1. Where a Member State issues a residence document to the applicant, decides to apply Article 25, or does not transfer the person concerned to the Member State responsible within the time limits set out in Article 35, that Member State shall become the Member State responsible and the obligations laid down in Article 26 shall be transferred to that Member State. Where applicable, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of the applicant or has received a take back notification, using the electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003.

The first subparagraph shall not apply if the person has already been granted international protection by the responsible Member State.

The Member State which becomes responsible pursuant to the first subparagraph of this Article shall indicate that it has become the Member State responsible pursuant to Article 11(3) of Regulation (EU) XXX/XXX [Eurodac Regulation].

2. The obligation laid down in Article 26(1), point (b), of this Regulation to take back a third-country national or a stateless person shall cease where it can be established, on the basis of the update of the data set referred to in Article 11(2)(c) of Regulation (EU) XXX/XXX [Eurodac Regulation], that the person concerned has left the territory of the Member States, on either a compulsory or a voluntary basis, in compliance with a return decision or removal order issued following the withdrawal or rejection of the application.

An application registered after an effective removal has taken place shall be regarded as a new application for the purpose of this Regulation, thereby giving rise to a new procedure for determining the Member State responsible.

CHAPTER V

PROCEDURES

SECTION I

Start of the procedure

Article 28

Start of the procedure

1. The Member State where an application for international protection is first registered pursuant to Regulation (EU) XXX/XXX [Asylum Procedure Regulation] or, where applicable, the Member State of relocation shall start the process of determining the Member State responsible without delay.

2. The Member State where an application is first registered or, where applicable, the Member State of relocation shall continue the process of determining the Member State responsible if the applicant leaves the territory of that Member State without authorisation or is otherwise not available to the competent authorities of that Member State.

3. The Member State which has conducted the process of determining the Member State responsible or which has become responsible pursuant to Article 8(4) of this Regulation shall indicate in Eurodac without delay pursuant to Article 11(1) of Regulation (EU) XXX/XXX [Eurodac Regulation]:

(a)     its responsibility pursuant to Article 8(2);

(b)     its responsibility pursuant to Article 8(4);

(c)     its responsibility due to its failure to comply with the time limits laid down in Article 29;

(d)     the responsibility of the Member State which has accepted a request to take charge of the applicant pursuant to Article 30.

Until this indication has been added, the procedures in paragraph 4 shall apply.

4. An applicant who is present in another Member State without a residence document or who there makes an application for international protection during the process of determining the Member State responsible, shall be taken back, under the conditions laid down in Articles 31 and 35, by the Member State with which that application was first registered.

That obligation shall cease where the Member State determining the Member State responsible can establish that the applicant has obtained a residence document from another Member State.

5. An applicant who is present in a Member State without a residence document or who there makes an application for international protection after another Member State has confirmed to relocate the person concerned pursuant to Article 57(7), and before the transfer has been carried out to that Member State pursuant to Article 57(9), shall be taken back, under the conditions laid down in Articles 31 and 35, by the Member State of relocation.

SECTION II

Procedures for take charge requests

Article 29

Submitting a take charge request

1. If a Member State where an application for international protection has been registered considers that another Member State is responsible for examining the application, it shall, without delay and in any event within two months of the date on which the application was registered, 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 Articles 13 and 14a of Regulation (EU) XXX/XXX [Eurodac Regulation] or of a VIS hit with data recorded pursuant to Article 21 of Regulation (EC) No 767/2008, the request to take charge shall be sent within one month of receiving that hit.

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 where the application was registered.

Where the applicant is an unaccompanied minor, the determining Member State may, where it considers that it is in the best interest of the minor, continue the procedure for determining the Member State responsible and request another Member State to take charge of the applicant despite the expiry of the time limits laid down in the first and second subparagraphs.

2. The requesting Member State may request an urgent reply in cases where the application for international protection was registered after a decision to refuse entry or a return decision was issued.

The request shall state the reasons warranting an urgent reply and the period within which a reply is requested. That period shall be at least one week.

3. In the cases referred to in paragraphs 1 and 2, the take charge request by another Member State shall be made using a standard form and including proof or circumstantial evidence as described in the two lists referred to in Article 30(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 67(2).

Article 30

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 one month of receipt of the request.

2. Notwithstanding the first paragraph, in the case of a Eurodac hit with data recorded pursuant to Article 13 and 14a of Regulation (EU) XXX/XXX [Eurodac Regulation] or of a VIS hit with data recorded pursuant to Article 21(2) of Regulation (EC) No 767/2008, the requested Member State shall give a decision on the request within two weeks of receipt of the request.

3. In the procedure for determining the Member State responsible elements of proof and circumstantial evidence shall be used.

4. 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 67(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 67 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 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.

requirement of proof shall not exceed what is necessary for the proper application of this Regulation.

6. The requested Member State shall acknowledge its responsibility if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility.

7. Where the requesting Member State has asked for an urgent reply pursuant to Article 29(2), the requested Member State shall reply within the period requested or, failing that, within two weeks of receipt of the request.

8. Where the requested Member State does not object to the request within the one-month period set out in paragraph 1 by a reply which gives full and detailed reasons, or where applicable within the two-week period set out in paragraphs 2 and 7, 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.

5. The

SECTION III

Procedures for take back notifications

Article 31

Submitting a take back notification

1. In a situation referred to in Article 26(1), point (b), (c) or (d) the Member State where the person is present shall make a take back notification without delay and in any event within two weeks after receiving the Eurodac hit.

2. A take back notification shall be made using a standard form and shall include proof or circumstantial evidence as described in the two lists referred to in Article 30(4) and/or relevant elements from the statements of the person concerned.

3. The notified Member State shall confirm receipt of the notification to the Member State which made the notification within one week, unless the notified Member State can demonstrate within that time limit that its responsibility has ceased pursuant to Article 27.

4. Failure to act within the one-week period set out in paragraph 3 shall be tantamount to confirming the receipt of the notification.

5. The Commission shall, by means of implementing acts, adopt uniform conditions for the preparation and submission of take back notifications. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 67(2).

SECTION IV

Procedural safeguards

Article 32

Notification of a transfer decision

1. The determining Member State whose take charge request as regards the applicant referred to in Article 26(1), point (a) was accepted or who made a take back notification as regards persons referred to in Article 26(1), point (b), (c) and (d) shall take a transfer decision at the latest within one week of the acceptance or notification.

2. Where the requested Member State accepts to take charge of an applicant or to take back a person referred to in Article 26(1), point (b), (c) or (d), the requesting or the notifying Member State shall notify the person concerned in writing without delay of the decision to transfer him or her to the Member State responsible and, where applicable, of the fact that it will not examine his or her application for international protection.

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.

4. The decision referred to in paragraph 1 shall contain information on the legal remedies available, including on the right to apply for suspensive effect, 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 is required to 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 paragraph 1, when that information has not been already communicated.

5. Where 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 33

Remedies

1. The applicant or another person as referred to in Article 26(1), point (b), (c) and (d) shall 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.

The scope of the remedy shall be limited to an assessment of:

(a)     whether the transfer would result in a real risk of inhuman or degrading treatment for the person concerned within the meaning of Article 4 of the Charter of Fundamental Rights;

(b)     whether Articles 15 to 18 and Article 24 have been infringed, in the case of the persons taken charge of pursuant to Article 26(1), point (a).

2. Member States shall provide for a period of two weeks after the notification of a transfer decision within which the person concerned may exercise his or her right to an effective remedy pursuant to paragraph 1.

3. The person concerned shall have the right to request, within a reasonable period of time from the notification of the transfer decision, a court or tribunal to suspend the implementation 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 within one month of the date when that request reached the competent court or tribunal.

Where the person concerned has not exercised his or her right to request suspensive effect, the appeal against, or review of, the transfer decision shall not suspend the implementation of a transfer decision.

A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.

If suspensive effect is granted, the court or tribunal shall endeavour to decide on the substance of the appeal or review within one month of the decision to grant suspensive effect.

4. Member States shall ensure that the person concerned has access to legal assistance and, where necessary, to linguistic assistance.

5. 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 persons subject to this Regulation 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 is not to be granted where the appeal or review is considered by the competent 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 the second subparagraph is 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. Where the decision is challenged, that 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 effective access to justice for the person concerned 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.

SECTION V

Detention for the purposes of transfer

Article 34

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. Where there is a 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, based on an individual assessment of the person’s circumstances.

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 an applicant or another person referred to in Article 26(1), point (b), (c) or (d) is detained pursuant to this Article, the period for submitting a take charge request or a take back notification shall not exceed two weeks from the registration of the application. Where a person is detained at a later stage than the registration of the application, the period for submitting a take charge request or a take back notification shall not exceed one week from the date on which the person was placed in detention. The Member State carrying out the procedure in accordance with this Regulation shall ask for an urgent reply on a take charge request. Such reply shall be given within one week of receipt of the take charge request. Failure to reply within the one-week period shall be tantamount to accepting the take charge request and shall entail the obligation to take charge of 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 or notifying Member State to the Member State responsible shall be carried out as soon as practically possible, and at the latest within four weeks of:

(a) (b)

the date on which the request was accepted or the take back notification was confirmed, or

the date when the appeal or review no longer has suspensive effect in accordance with Article 33(3).

Where the requesting or notifying Member State fails to comply with the time limits for submitting a take charge request or take back notification or to take a transfer decision within the time limit laid down in Article 32(1) or where the transfer does not take place within the period of four weeks referred to in the third subparagraph of this paragraph, the person shall no longer be detained. Articles 29, 31 and 35 shall continue to apply accordingly.

4. Where a person is detained pursuant to this Article, the detention shall be ordered in writing by judicial authorities. The detention order shall state the reasons in fact and in law on which it is based.

5. As regards the detention conditions and the guarantees applicable to applicants detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10 and 11 of Directive XXX/XXX/EU [Reception Conditions Directive] shall apply.

SECTION VI

Transfers

Article 35

Detailed rules and time

limits

1. The transfer of an applicant or of another person as referred to in Article 26(1), point

(b), (c) and (d), from the requesting or notifying Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting or notifying Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of the acceptance of the take charge request or of the confirmation of the take back notification by another Member State or of the final decision on an appeal or review of a transfer

decision where there is a suspensive effect in accordance with Article 33(3). That time limit may be extended up to a maximum of one year if the transfer cannot be carried out due to imprisonment of the person concerned.

Where the transfer is carried out for the purpose of relocation, the transfer shall take place within the time limit set out in Article 57(9).

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 or notifying 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 Article 67(2).

The Member State responsible shall inform the requesting or notifying 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 time limit.

2. Where the transfer does not take place within the time limits set out in paragraph 1, first subparagraph, the Member State responsible shall be relieved of its obligations to take charge of or to take back the person concerned and responsibility shall be transferred to the requesting or notifying Member State.

Notwithstanding the first subparagraph, where the person concerned absconds and the requesting or notifying Member State informs the Member State responsible before the expiry of the time limits set out in paragraph 1, first subparagraph, that the person concerned has absconded, the transferring Member State shall retain the right to carry out the transfer within the remaining time at a later stage, should the person become available to the authorities again, unless another Member State has carried out the procedures in accordance with this Regulation and transferred the person to the responsible Member State after the person absconded.

3. 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.

4. 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 67(2).

Article 36

Costs

of transfer

1. In accordance with Article 17 of Regulation (EU) XXX/XXX [Asylum and Migration Fund], a contribution shall be paid to the Member State carrying out the transfer for the transfer of an applicant or another person as referred to in Article 26(1), point (b), (c) or (d), pursuant to Article 35.

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 transfers.

Article 37

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 26(1), point (b), (c) or (d), shall communicate to the Member State responsible such personal data concerning the person to be transferred as is adequate, relevant and 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 interests, to ensure continuity in the protection and rights afforded by this Regulation and by other applicable 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 under national law have sufficient time to take the necessary measures.

2. The transferring Member State shall 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;

(e)     information collected during the screening in accordance with Article 13 of Regulation (EU) XXX/XXX [Screening Regulation].

3. The exchange of information under this Article shall only take place between the authorities notified to the Commission in accordance with Article 41 of this Regulation using the 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 standard form for the transfer of the data required pursuant to this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 67(2).

5. The rules laid down in Article 40(8) and (9) shall apply to the exchange of information pursuant to this Article.

Article 38

Exchange of security-relevant information before a transfer is carried out

Where the Member State carrying out a transfer is in possession of information that indicates that there are reasonable grounds to consider the applicant or another person as referred to in Article 26(1), point (b), (c) or (d), a danger to national security or public order in a Member State, that Member State shall also communicate such information to the Member State responsible.

Article 39

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 67(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 when such transmission is necessary to protect public health and public security, or, where the person concerned is physically or legally incapable of giving his or her consent, to protect the vital interests of the person concerned 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. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 67(2).

6. The rules laid down in Article 40(8) and (9) shall apply to the exchange of information pursuant to this Article.

CHAPTER VI ADMINISTRATIVE COOPERATION

Article 40

Information sharing

1. Each Member State shall communicate to any Member State that so requests such personal data concerning the person covered by the scope of this Regulation as is adequate, relevant and 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 shall only cover:

(a)     personal details of the person concerned, 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 person concerned, including biometric data taken of the applicant by the Member State, in particular for the purposes of Article 57(6) of this Regulation, in accordance with Regulation (EU) XXX/XXX [Eurodac Regulation];

(d)     places of residence and routes travelled;

(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 current application was registered, the stage reached in the proceedings and the decision taken, if any.

3. 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 submitted 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 or transfer for the purpose of relocation. 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. 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 three weeks. Any delays in the reply shall be duly justified. Non-compliance with the three 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 time limits provided for in Article 29 as a reason for refusing to comply with a request to take charge. In that case, the time limits provided for in Article 29 for submitting a request to take charge shall be extended by a period of time 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 41(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 information shall ensure that it is accurate and up-to-date. If it transpires that it has forwarded information which is inaccurate or which should not have been forwarded, the recipient Member States shall be informed thereof immediately. They shall be obliged to correct such information or to have it erased.

9. In each Member State concerned, a record shall be kept, in the individual file for the person concerned or in a register, of the transmission and receipt of information exchanged.

Article 41

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,

take back notifications and, if applicable, complying with their obligations under Chapters I-III of Part IV.

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 changes to that list, the Commission shall publish an updated consolidated list once a year.

3. Member States shall ensure that 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 Asylum Agency for transmitting information, biometric data taken in accordance with Regulation (EU) XXX/XXX [Eurodac Regulation], requests, notifications, replies and all written correspondence and for ensuring that senders automatically receive an electronic proof of delivery. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 67(2).

Article 42

Administrative arrangements

1. Member States may, on a bilateral basis, establish administrative arrangements

between themselves concerning the practical details for 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 applicants;

(c)     solidarity contributions made pursuant to Chapters I-III of Part IV.

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.

3. Before concluding or amending any arrangement as referred to in paragraph 1, point (b), the Member States concerned shall consult the Commission as to the compatibility of the arrangement with this Regulation.

4. If the Commission considers the arrangements referred to in paragraph 1, point (b), to be incompatible with this Regulation, it shall, within a reasonable period, notify the Member States concerned. The Member States shall take all appropriate steps 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 Commission of all arrangements referred to in paragraph 1, and of any denunciation thereof, or amendment thereto.

Article 43

Network of responsible units

The Asylum Agency shall set up and facilitate the activities of a network of the competent authorities referred to in Article 41(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.

CHAPTER VII

CONCILIATION

Article 44

Conciliation

1. In order to facilitate the proper functioning of the mechanisms set up under this Regulation and resolve difficulties in the application thereof, where two or more Member States encounter difficulties in their cooperation under this Regulation or in its application between them, the Member States concerned shall, upon request by one or more of them, hold consultations without delay with a view to finding appropriate solutions within a reasonable time, in accordance with the principle of sincere cooperation.

As appropriate, information about the difficulties encountered and the solution found may be shared with the Commission and with the other Member States within the Committee referred to in Article 67.

2. Where no solution is found under paragraph 1 or the difficulties persist, one or more of the Member States concerned may request the Commission to hold consultations with the Member States concerned with a view to finding appropriate solutions. The Commission shall hold such consultations without delay. The Member States concerned shall actively participate in the consultations and, as well as the Commission, take all appropriate measures to promptly resolve the matter. The Commission may adopt recommendations addressed to the Member States concerned indicating the measures to be taken and the appropriate deadlines.

As appropriate, information about the difficulties encountered, the recommendations made and the solution found may be shared with the other Member States within the Committee referred to in Article 67.

3. This Article shall be without prejudice to the powers of the Commission to oversee the application of Union law under Articles 258 and 260 of the Treaty. It shall be without prejudice to the possibility for the Member States concerned to submit their dispute to the Court of Justice in accordance with Article 273 of the Treaty or to bring the matter to it in accordance with Article 259 of the Treaty.

PART IV

SOLIDARITY

CHAPTER I

SOLIDARITY MECHANISMS

Article 45

Solidarity contributions

1. Solidarity contributions for the benefit of a Member State under migratory pressure or subject to disembarkations following search and rescue operations shall consist of the following types:

(a)     relocation of applicants who are not subject to the border procedure for the examination of an application for international protection established by Article 41 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation];

(b)     return sponsorship of illegally staying third-country nationals;

(c)     relocation of beneficiaries of international protection who have been granted international protection less than three years prior to adoption of an implementing act pursuant to Article 53(1);

(d)     capacity-building measures in the field of asylum, reception and return, operational support and measures aimed at responding to migratory trends affecting the benefitting Member State through cooperation with third countries.

2. Such contributions may, pursuant to Article 56, also consist of:

(a)

(b)

relocation of applicants for international protection subject to the border procedure in accordance with Article 41 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation];

relocation of illegally staying third-country nationals.

Article 46

Solidarity Forum

A Solidarity Forum shall comprise all Member States. The Commission shall convene and preside the Solidarity Forum in order to ensure the smooth functioning of this Part.

Article 47

Solidarity for disembarkations following search and rescue

operations

1. This Article and Articles 48 and 49 shall apply to search and rescue operations that

generate recurring arrivals of third-country nationals or stateless persons onto the territory of a Member State and to vulnerable persons as set out in Article 49(4).

2. Where the Migration Management Report referred to in Article 6(4) indicates that one or more Member States faced with the situations referred to in paragraph 1, it shall also set out the total number of applicants for international protection referred to in Article 45(1), point (a) that would need to be relocated in order to assist those Member States. The report shall also identify any capacity-building measures referred to in Article 45(1), point (d) which are necessary to assist the Member State concerned.

3. Within two weeks of the adoption of the Migration Management Report, the Commission shall invite all other Member States that are not expected to be faced with arrivals on their territory as referred to in paragraph 1 to provide the solidarity contributions referred to in paragraph 2. In its request, the Commission shall indicate the total number of applicants to be relocated by each Member State in the form of solidarity contributions referred to in Article 45(1), point (a) by each Member State, calculated according to the distribution key set out in Article 54. The distribution key shall include the share of the benefitting Member States.

4. Within one month of the adoption of the Migration Management Report, Member States shall notify the Commission of the contributions they intend to make, by completing the SAR Solidarity Response Plan set out in Annex I. Member States shall indicate whether they intend to provide contributions in the form of:

(a)     relocation in accordance with Article 45(1), point (a); or

(b)     measures in accordance with Article 45(1), point (d) identified in the Migration Management Report; or

(c)      relocation in accordance with Article 45(1), point (a) of vulnerable persons pursuant to Article 49(4).

5. Where the Commission considers that the solidarity contributions indicated by all the Member States pursuant to paragraph 4 fall significantly short of the total solidarity contributions set out in the Migration Management Report, the Commission shall convene the Solidarity Forum. The Commission shall invite Member States to adjust the number and, where relevant, the type of contributions. Member States that adjust their contributions shall submit revised SAR Solidarity Response Plans in the course of the Solidarity Forum.

Article 48

Commission implementing acts for search and rescue operations

1. Within two weeks from the submission of the SAR Solidarity Response Plans

referred to in Article 47(4) or two weeks from the end of the Solidarity Forum referred to in Article 47(5), and where the total solidarity contributions indicated by all the Member States in their Plans corresponds to, or is considered by the Commission to be sufficiently close to the total solidarity contributions set out in the Migration Management Report, the Commission shall adopt an implementing act setting out the solidarity measures indicated by Member States pursuant to Article 47(4) or Article 47(5). Such measures shall constitute a solidarity pool for each Member State expected to be faced with disembarkations in the short term.

Where the Asylum Agency notifies the Commission and the Member States that 80% of the solidarity pool in the first subparagraph has been used for one or more of the

benefitting Member States, the Commission shall convene the Solidarity Forum to inform the Member States of the situation and request Member States to increase their contributions. Following the end of the Solidary Forum, where Member States have indicated their readiness to make increased contributions the Commission shall amend the implementing act establishing a solidarity pool referred to in the first subparagraph in relation to the benefitting Member State concerned to increase the contributions indicated by Member States.

2. Where the total number or type of solidarity contributions indicated by Member

States pursuant to Article 47(5) still falls significantly short of the total solidarity contributions set out in the Migration Management Report leading to a situation where the solidarity pool is not able to provide a foreseeable basis of ongoing support to the Member States referred to in Article 47(2), the Commission shall, within two weeks after the end of the Solidarity Forum, adopt an implementing act establishing a solidarity pool for each Member State expected to be faced with disembarkations in the short term. That implementing act shall set out:

(a)

the total number of third-country nationals to be covered by relocation to contribute to the needs of the Member States referred to in Article 47(2) as identified in the Migration Management Report;

(b)     the number and share referred to in point (a) for each Member State, including the benefitting Member States calculated according to the distribution key set out in Article 54;

(c)     the measures indicated by Member States as set out in Article 45(1), point (d).

Where Member States have indicated measures set out in Article 45(1), point (d), those measures shall be in proportion to the contributions that the Member States would have made by means of the relocations referred to in Article 45(1), point (a) as a result of the application of the distribution key set out in Article 54. They shall be set out in the implementing act except where the indications by Member States would lead to a shortfall of greater than 30% of the total number of relocations identified in the Migration Management Report. In those cases, the contributions set out in the implementing act shall be adjusted so that those Member States indicating such measures are required to cover 50% of their share calculated in accordance with the distribution key set out in Article 54 through relocation or return sponsorship as referred to in Article 45(1) point (b) or a combination of both. The Member States concerned shall immediately indicate to the Commission how they intend to cover their share in this regard. The Commission shall adjust the contributions set out in the implementing act regarding relocation, return sponsorship and the measures referred to in Article 45(1), point (d) for those Member States accordingly.

Where one or more Member States have not submitted an SAR Solidarity Response Plan within the time limits set out in Article 47(4) and Article 47(5), the Commission shall determine the amount and type of contributions to be made by those Member States.

Where the Asylum Agency notifies the Commission and the Member States that 80% of the solidarity pool in the first subparagraph has been used for one or more of the benefitting Member States, the Commission shall convene the Solidarity Forum to inform the Member States of the situation and the additional needs of the Member States. Following the Solidary Forum the Commission shall adopt an amendment to the implementing act establishing a solidarity pool referred to in the first

subparagraph in relation to the benefitting Member State concerned to increase the total number of third-country nationals covered by the solidarity measures referred to in point (a) of the first subparagraph by a maximum of 50%. The share of each Member State referred to in point (b) of the first subparagraph shall be amended accordingly. Where the provisions of the second subparagraph are applied and Member States have indicated that they shall contribute through return sponsorship, the share of these measures shall be increased by 50%. The measures referred to in Article 45(1), point (d) shall also be increased by a share that is in proportion to a 50% increase of that Member States share calculated according to the distribution key set out in Article 54.

3. The implementing act referred to in paragraphs 1 and 2 shall be adopted in

accordance with the examination procedure referred to in Article 67(2).

Article 49

Solidarity pool for search and rescue operations

1. Within two weeks of the adoption of the implementing act referred to in Article 48(1) or Article 48(2), the Member State referred to in Article 47(2) shall notify the Commission of its request for solidarity support. Following that request, the Commission shall draw on the solidarity pool and coordinate the implementation of the solidarity measures for each disembarkation or group of disembarkations taking place in a period of two weeks.

2. Under the coordination of the Commission, the Asylum Agency and the European Border and Coast Guard Agency shall draw up the list of eligible persons to be relocated and to be subject to return sponsorship. The list shall indicate the distribution of those persons among the contributing Member States taking into account the total number of persons to be relocated or to be subject to return sponsorship by each contributing Member State, the nationality of those persons and the existence of meaningful links between them and the Member State of relocation or of return sponsorship. Priority shall be given to the relocation of vulnerable persons. The Asylum Agency and the European Border and Coast Guard Agency shall assist the Commission in monitoring the use of the solidarity pool.

3. Where the Commission has adopted a report concluding that a Member State referred to in Article 47(2) is under migratory pressure as set out in Article 51(3), the remaining solidarity contributions from the solidarity pool established under Article 48(1) or Article 48(2) may be used for the purpose of immediately alleviating the migratory pressure on that Member State. In such cases, the provisions of paragraph 2 shall apply.

This paragraph shall not apply where an implementing act provided for in Article 53 is adopted. As from the adoption of that implementing act drawing on the list of eligible persons to be relocated and to be subject to return sponsorship as provided for in paragraph 2 shall cease.

Where the solidarity pool referred to in the first subparagraph is insufficient for the purpose of immediately alleviating the challenges faced by the Member State referred to in Article 47(2), solidarity contributions from the solidarity pool of the other Member States established under Article 48(1) or Article 48(2) may be used

insofar as this does not jeopardize the functioning of the pool for those Member States.

4. Where the Migration Management Report identifies that a Member State referred to in Article 47(2) is faced with capacity challenges due to the presence of applicants who are vulnerable regardless of how they crossed the external borders, the solidarity pool established under Article 48(1) or Article 48(2) may also be used for the purpose of relocation of vulnerable persons. In such cases, the provisions of paragraph 2 shall apply.

5. The Commission shall support and facilitate the procedures leading to the relocation of applicants and the implementation of return sponsorship, paying particular attention to unaccompanied minors. It shall coordinate the operational aspects of relocation and return sponsorship, including with the assistance of experts or teams of experts to be deployed by the Asylum Agency or the European Border and Coast Guard Agency.

Article 50

Assessment of migratory pressure

1. The Commission shall assess the migratory situation in a Member State where:

(a)     that Member State has informed the Commission that it considers itself to be under migratory pressure;

(b)     on the basis of available information, it considers that a Member State may be under migratory pressure.

2. The Asylum Agency and the European Border and Coast Guard Agency shall assist the Commission in drawing up the assessment of migratory pressure. The Commission shall inform the European Parliament, the Council and the Member States, without delay, that it is undertaking an assessment.

3. The assessment of migratory pressure shall cover the situation in the Member State concerned during the preceding six months, compared to the overall situation in the Union, and shall be based in particular on the following information:

(a)     the number of applications for international protection by third-country nationals and the nationality of the applicants;

(b)     the number of third-country nationals who have been detected by Member State authorities while not fulfilling, or no longer fulfilling, the conditions for entry, stay or residence in the Member State including overstayers within the meaning of Article 3(1)(19) of Regulation (EU) 2017/2226 of the European Parliament and of the Council58;

(c)     the number of return decisions that respect Directive 2008/115/EC;

Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011, OJ L 327, 9.12.2017, p. 20.

58

4.

(d)

(e)

(f)

(g) (h)

(i)

(j)

(k)

The

(a)

(b)

(c) (d)

(e)

(f) (g)

the number of third-country nationals who left the territory of the Member States following a return decision that respects Directive 2008/115/EC;

the number of third-country nationals admitted by the Member States through Union and national resettlement [or humanitarian admission] schemes;

the number of incoming and outgoing take charge requests and take back notifications in accordance with Articles 34 and 36;

the number of transfers carried out in accordance

with Article 31;

the number of persons apprehended in connection with an irregular crossing of the external land, sea or air border;

the number of persons refused entry in accordance with Article 14 of Regulation EU (No) 2016/399;

the number and nationality of third-country nationals disembarked following search and rescue operations, including the number of applications for international protection;

the number of unaccompanied minors.

assessment of migratory pressure shall also take into account the following:

the information presented by the Member State, where the assessment is carried out pursuant to paragraph 1, point (a);

the level of cooperation on migration with third countries of origin and transit, first countries of asylum, and safe third countries as defined in Regulation (EU) XXX/XXX [Asylum Procedure Regulation];

the geopolitical situation in relevant third countries that may affect migratory movements;

the relevant Recommendations provided for in Article 15 of Council Regulation (EU) No 1053/201359, Article 13, 14 and 22 of Regulation (EU) XXX/XXX [European Union Asylum Agency] and Article 32(7) of Regulation (EU) 2019/1896;

information gathered pursuant to Commission Recommendation of XXX on an EU mechanism for Preparedness and Management of Crisis related to Migration (Migration Preparedness and Crisis Blueprint)

the Migration Management Report referred to in Article 6(4);

the Integrated Situational Awareness and Analysis (ISAA) reports under Council Implementing Decision (EU) 2018/1993 on the EU Integrated Political Crisis Response Arrangements, provided that the Integrated Political Crisis Response is activated or the Migration Situational Awareness and Analysis (MISAA) report issued under the first stage of the Migration Preparedness and Crisis Blueprint, when the Integrated Political Crisis Response is not activated;

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, OJ L 295, 6.11.2013, p. 27.

59

(h) (i) (j)

information from the visa liberalisation reporting process and dialogues with third countries;

quarterly bulletins on migration, and other reports, of the European Union Agency for Fundamental Rights.

the support provided by

Union Agencies to the

benefitting

Member State.

Article 51

1.

2. 3.

4.

Report on migratory pressure

The Commission shall consult the Member State concerned during its assessment undertaken pursuant to Article 50(1).

The Commission shall submit the report on migratory pressure to the European Parliament and to the Council within one month after the Commission informed them that it was carrying out an assessment pursuant to Article 50(2).

In the report, the Commission shall state whether the Member State concerned is under migratory pressure.

Where the Commission concludes that the Member State concerned is under migratory pressure, the report shall identify:

(a)     the capacity of the Member State under migratory pressure in the field of migration management, in particular asylum and return as well as its overall needs in managing its asylum and return caseload;

(b)     measures that are appropriate to address the situation and the expected timeframe for their implementation consisting, as appropriate, of:

(i)

(ii) (iii) Where the

measures that the Member State under migratory pressure should take in the field of migration management, and in particular in the field of asylum and return;

measures referred to in Article 45(1), points (a), (b) by other Member States;

(c)

to be taken

measures referred to in Member States.

Article 45 - (1), point (d) to be taken by other considers that a rapid response is required due to a

Commission developing situation in a Member State, it shall submit its report within two weeks at the latest from the date on which it informed the European Parliament, the Council and the Member States pursuant to Article 50(2) that it was carrying out an assessment.

Article 52

Solidarity Response Plans in situations of migratory pressure

1. Where the report referred to in Article 51 indicates that a Member State is under

migratory pressure, the other Member States which are not themselves benefitting Member States shall contribute by means of the solidarity contributions referred to in Article 45(1), points (a), (b) and (c). Member States shall prioritise the relocation of unaccompanied minors.

2. Where the report referred to in Article 51 identifies measures referred to in paragraph 3, point (b)(iii) of that Article, other Member States may contribute by means of those measures instead of measures referred to in Article 51(3)(b)(ii). Such measures shall not lead to a short fall of more than 30% of the total contributions identified in the report on migratory pressure under Article 51(3)(b)(ii).

3. Within two weeks from the adoption of the report referred to in Article 51, Member States shall submit to the Commission a Solidarity Response Plan by completing the form in Annex II. The Solidarity Response Plan shall indicate the type of contributions from among those set out in Article 51(3)(b)(ii) or, where relevant, the measures set out in Article 51(3)(b)(iii) that Member States propose to take. Where Member States propose more than one type of contribution set out in Article 51(3)(b)(ii), they shall indicate the share of each.

Where the Solidarity Response Plan includes return sponsorship, Member States shall indicate the nationalities of the illegally staying third-country nationals present on the territory of the Member State concerned that they intend to sponsor.

Where Member States indicate measures set out in Article 51(3)(b)(iii) in the Solidarity Response Plan they shall also indicate the detailed arrangements and the time-frame for their implementation.

4. Where the Commission considers that the solidarity contributions indicated in the Solidarity Response Plans do not correspond to the needs identified in the report on migratory pressure provided for in Article 51, it shall convene the Solidarity Forum. In such cases, the Commission shall invite Member States to adjust the type of contributions in their Solidarity Response Plans in the course of the Solidarity Forum by submitting revised Solidarity Response Plans.

5. A Member State proposing solidarity contributions set out in Article 51(3)(b)(ii), may request a deduction of 10% of its share calculated according to the distribution key set out in Article 54 where it indicates in the Solidarity Response Plans that over the preceding five years it has examined twice the Union average per capita of applications for international protection.

Article 53

Commission implementing acts on solidarity in situations of migratory pressure

1. Within two weeks from the submission of the Solidarity Response Plans referred to in Article 52(3) or, where the Solidarity Forum is convened pursuant to Article 52(4), within two weeks from the end of the Solidarity Forum, the Commission shall adopt an implementing act laying down the solidarity contributions for the benefit of the Member State under migratory pressure to be taken by the other Member States and the timeframe for their implementation.

2. The types of contributions set out in the implementing act shall be those indicated by Member States in their Solidarity Response Plans. Where one or more Member States have not submitted a Solidarity Response Plan, the Commission shall determine the types of contributions to be made by the Member State taking into account the needs identified in the report on migratory pressure.

Where the type of contribution indicated by Member States in their solidarity response plans is that referred to in Article 45(1), point (d), the Commission shall assess whether the measures proposed are in proportion to the contributions that the

Member States would have made by means of the measures referred to in Article 45(1), points (a), (b) or (c) as a result of the application of the distribution key set out in Article 54.

Where the measures proposed are not in proportion to the contributions that the contributing Member State would have made by means of the measures referred to in Article 45(1), points (a), (b) or (c), the Commission shall set out in the implementing act the measures proposed while adjusting their level.

Where the measures proposed would lead to a shortfall greater than 30% of the total number of solidarity measures identified in the report on migratory pressure under Article 51(3)(b)(ii), the contributions set out in the implementing act shall be adjusted so that those Member States indicating such measures would be required to cover 50% of their share calculated according to the distribution key set out in Article 54 through measures set out in Article 51(3)(b)(ii). The Commission shall adjust measures referred to in Article 51(3)(b)(iii) indicated by those Member States accordingly.

3. The implementing act shall set out:

(a)     the total number of persons to be relocated from the requesting Member State pursuant to Article 45(1), points (a) or (c), taking into account the capacity and needs of the requesting Member States in the area of asylum identified in the report referred to in Article 51(3)(b)(ii);

(b)     the total number of persons to be subject to return sponsorship from the requesting Member State pursuant to Article 45(1), point (b), taking into account the capacity and needs of the requesting Member States on return identified in the report referred to in Article 51(3)(b)(ii);

(c)     the distribution of persons to be relocated and/or those to be subject to return sponsorship among the Member States including the benefitting Member State, on the basis of the distribution key set out in Article 54;

(d)     the measures indicated by Member States pursuant to second, third and fourth subparagraph of paragraph 2.

The distribution referred to in paragraph 3 point (c) shall be adjusted where a Member State making a request pursuant to Article 52(5) demonstrates in the Solidarity Response Plan that over the preceding 5 years it has been responsible for twice the Union average per capita of applications for international protection. In such cases the Member State shall receive a deduction of 10/% of its share calculated according to the distribution key set out in Article 54. This deduction shall be distributed proportionately among the Member States making contributions referred to in Article 45(1) points (a), (b) and (c);

4. Where contributions have been made in response to a request by a Member State for solidarity support from other Member States to assist it in addressing the migratory situation on its territory to prevent migratory pressure pursuant to Article 56(1) within the preceding year, and where they correspond to the type of measures set out in the implementing act, the Commission shall deduct these contributions from the corresponding contributions set out in the implementing act.

5. On duly justified imperative grounds of urgency due to the migratory pressure present in a benefitting Member State, the Commission shall adopt immediately

applicable implementing acts in accordance with the urgency procedure referred to in Article 67(3).

Those acts shall remain in force for a period not exceeding 1 year.

6. The Commission shall report on the implementation of the implementing act one

month after it ceases to apply. The report shall contain an analysis of the effectiveness of the measures undertaken.

Article 54

Distribution key

The share of solidarity contributions referred to in Article 45(1), points (a), (b) and (c) to be provided by each Member State in accordance with Articles 48 and 53 shall be calculated in accordance with the formula set out in Annex III and shall be based on the following criteria for each Member State, according to the latest available Eurostat data:

(a)     the size of the population (50% weighting);

(b)     the total GDP (50% weighting).

Article 55

Return sponsorship

1. A Member State may commit to support a Member State to return illegally staying third-country nationals by means of return sponsorship whereby, acting in close coordination with the benefitting Member State, it shall take measures to carry out the return of those third-country nationals from the territory of the benefitting Member State.

2. Where a Member State commits to provide return sponsorship and the illegally staying third-country nationals who are subject to a return decision issued by the benefitting Member State do not return or are not removed within 8 months, the Member State providing return sponsorship shall transfer the persons concerned onto its own territory in line with the procedure set out in Articles 57 and 58. This period shall start from the adoption of the implementing act referred to in Article 53(1) or, where applicable, in Article 49(2).

3. Where a Member State commits to provide return sponsorship in relation to third-country nationals who are not yet subject to a return decision in the benefitting Member State, the period referred to in paragraph 2 shall start to run from either of the following dates:

(a)     the date when a return decision is issued by the benefitting Member State; or

(b)      where a return decision is issued as a part of a decision rejecting an application for international protection or where a return decision is issued in a separate act, at the same time and together with the decision rejecting an application for international protection in accordance with Article 35a of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the date when the applicant or third-country national no longer has a right to remain and is not allowed to remain.

4. The measures referred to in paragraph 1 shall include one or more of the following

activities carried out by the sponsoring Member State:

(a)     providing counselling on return and reintegration to illegally staying third-country nationals;

(b)     using the national programme and resources for providing logistical, financial and other material or in-kind assistance, including reintegration, to illegally staying third-country nationals willing to depart voluntarily;

(c)     leading or supporting the policy dialogue and exchanges with the authorities of third countries for the purpose of facilitating readmission;

(d)     contacting the competent authorities of third countries for the purpose of verifying the identity of third-country nationals and obtaining a valid travel document;

(e)     organising on behalf of the benefitting Member State the practical arrangements for the enforcement of return, such as charter or scheduled flights or other means of transport to the third country of return.

These measures shall not affect the obligations and responsibilities of the benefitting Member State laid down in Directive 2008/115/EC.

Article 56

Other solidarity contributions

1. Where a Member State requests solidarity support from other Member States to assist it in addressing the migratory situation on its territory to prevent migratory pressure, it shall notify the Commission of that request.

2. Any Member State may, at any time, in response to a request for solidarity support by a Member State, or on its own initiative, including in agreement with another Member State, make contributions by means of the measures referred to in Article 45 for the benefit of the Member State concerned and with its agreement. Contributions referred to in article 45, point (d) shall be in accordance with the objectives of Regulation (EU) XXX/XXX [Asylum Migration Fund].

3. Member States which have contributed or plan to contribute with solidarity contributions in response to a request for solidarity support by a Member State, or on its own initiative, shall notify the Commission, thereof by completing the Solidarity Support Plan form set out in Annex IV. The Solidarity Response Plan shall include, where relevant, verifiable information, including on the scope and nature of the measures and their implementation.

CHAPTER II

PROCEDURAL REQUIREMENTS

Article 57

Procedure before relocation 1.          The procedure set out in this Article shall apply to:

(a)     persons referred to in Article 45(1), points (a) and (c) and in Article 45(2), point (a);

(b)     persons referred to in Article 45(1), point (b) where the period referred to in Article 55(2) has expired, and Article 45(2), point (b).

2. Before applying the procedure set out in this Article, the benefitting Member State shall ensure that there are no reasonable grounds to consider the person concerned a danger to national security or public order of that Member State. If there are reasonable grounds to consider the person a danger to national security or public order, the benefitting Member State shall not apply the procedure set out in this Article and shall, where applicable, exclude the person from the list referred to in Article 49(2).

3. Where relocation is to be applied, the benefitting Member State shall identify the persons who could be relocated. Where the person concerned is an applicant for or a beneficiary of international protection, that Member State shall take into account, where applicable, the existence of meaningful links between the person concerned and the Member State of relocation. Where the identified person to be relocated is a beneficiary for international protection, the person concerned shall be relocated only after that person consented to relocation in writing.

Where relocation is to be applied pursuant to Article 49, the benefitting Member State shall use the list drawn up by the Asylum Agency and the European Border and Coast Guard Agency referred to in Article 49(2).

The first subparagraph shall not apply to applicants for whom the benefitting Member State can be determined as the Member State responsible pursuant to the criteria set out in Articles 15 to 20 and 24, with the exception of Article 15(5). Those applicants shall not be eligible for relocation.

4. When the period referred to in Article 55(2) expires, the benefitting Member State shall immediately inform the sponsoring Member State that the procedure set out in paragraphs 5 to 10 shall be applied in respect of the illegally staying third-country nationals concerned.

5. The benefitting Member State shall transmit to the Member State of relocation as quickly as possible the relevant information and documents on the person referred to in paragraphs 2 and 3.

6. The Member State of relocation shall examine the information transmitted by the benefitting Member State pursuant to paragraph 5, and verify that there are no reasonable grounds to consider the person concerned a danger to its national security or public order.

7. Where there are no reasonable grounds to consider the person concerned a danger to its national security or public order, the Member State of relocation shall confirm within one week that it will relocate the person concerned.

Where the checks confirm that there are reasonable grounds to consider the person concerned a danger to its national security or public order, the Member State of relocation shall inform within one week the benefitting Member State of the nature of and underlying elements for an alert from any relevant database. In such cases, relocation of the person concerned shall not take place.

In exceptional cases, where it can be demonstrated that the examination of the information is particularly complex or that a large number of cases need checking at

that time, the Member State of relocation may give its reply after the one-week time limit mentioned in the first and second subparagraphs, but in any event within two weeks. In such situations, the Member State of relocation shall communicate its decision to postpone a reply to the benefitting Member State within the original one-week time limit.

Failure to act within the one-week period mentioned in the first and second subparagraphs and the two-week period mentioned in the third subparagraph of this paragraph shall be tantamount to confirming the receipt of the information, and entail the obligation to relocate the person, including the obligation to provide for proper arrangements for arrival.

8. The benefitting Member State shall take a transfer decision at the latest within one week of the confirmation by the Member State of relocation. It shall notify the person concerned in writing without delay of the decision to transfer him or her to that Member State.

9. The transfer of the person concerned from the benefitting Member State to the Member State of relocation shall be carried out in accordance with the national law of the benefitting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within 4 weeks of the confirmation by the Member State of relocation or of the final decision on an appeal or review of a transfer decision where there is a suspensive effect in accordance with Article 33(3).

10. Articles 32(3), (4) and (5), Articles 33 and 34, Article 35(1) and (3), Article 36(2) and (3), and Articles 37 and 39 shall apply mutatis mutandis to the transfer for the purpose of relocation.

11. The Commission shall, by means of implementing acts, adopt uniform conditions for the preparation and submission of information and documents for the purpose of relocation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 67(2).

Article 58

Procedure after relocation

1. The Member State of relocation shall inform the benefitting Member State of the safe arrival of the person concerned or of the fact that he or she did not appear within the set time limit.

2. Where the Member State of relocation has relocated an applicant for whom the Member State responsible has not yet been determined, that Member State shall apply the procedures set out in Part III, with the exception of Article 8(2), Article 9(1) and (2), Article 15(5), and Article 21(1) and (2).

Where no Member State responsible can be designated under the first subparagraph, the Member State of relocation shall be responsible for examining the application for international protection.

The Member State of relocation shall indicate its responsibility in Eurodac pursuant to Article 11(1) of Regulation (EU) XXX/XXX [Eurodac Regulation].

3. Where the Member State of relocation has relocated an applicant for whom the benefitting Member State had previously been determined as responsible on other

grounds than the criteria referred to in Article 57(3) third subparagraph, the responsibility for examining the application for international protection shall be transferred to the Member State of relocation.

The Member State of relocation shall indicate its responsibility in Eurodac pursuant to Article 11(3) of Regulation (EU) XXX/XXX [Eurodac Regulation].

4. Where the Member State of relocation has relocated a beneficiary for international protection, the Member State of relocation shall automatically grant international protection status respecting the respective status granted by the benefitting Member State.

5. Where the Member State of relocation has relocated a third-country national who is illegally staying on its territory, of Directive 2008/115/EC shall apply.

Article 59

Other obligations

The benefitting and contributing Member States shall keep the Commission informed on the implementation of solidarity measures taken on a bilateral level including measures of cooperation with a third country.

Article 60

Operational coordination

Upon request, the Commission shall coordinate the operational aspects of the measures offered by the contributing Member States, including any assistance by experts or teams deployed by the Asylum Agency or the European Border and Coast Guard Agency.

CHAPTER III

FINANCIAL SUPPORT PROVIDED BY THE UNION

Article 61

Financial support

Funding support following relocation pursuant to Chapters I and II of Part IV shall be implemented in accordance with Article 17 of Regulation (EU) XXX/XXX [Asylum and Migration Fund].

PARTV GENERAL PROVISIONS

Article 62

Data security and data protection

1. Member States shall implement appropriate technical and organisational measures to

ensure the security of personal data processed under this Regulation and in particular

to prevent unlawful or unauthorised access or disclosure, alteration or loss of personal data processed.

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 41 of the Member State in question.

3. The processing of personal data by the Asylum Agency shall be subject to Regulation (EU) XXX/XXX [European Union Asylum Agency], in particular as regards the monitoring of the European Data Protection Supervisor.

Article 63

Confidentiality

Member States shall ensure that the authorities referred to in Article 41 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 64

Penalties

Member States shall lay down the rules on penalties, including administrative 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 effective, proportionate and dissuasive.

Article 65

Calculation of time limits Any period of time provided for 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 66

Territorial scope

As far as the French Republic is concerned, this Regulation shall apply only to its European territory.

Article 67

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.

3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011 shall apply.

Article 68

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 15(6) and 24(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 15(6) and 24(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.

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 Interinstitutional Agreement on Better Law-Making of 13 April 2016.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Articles 15(6) and 24(3) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 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.

Article 69

Monitoring

and evaluation

By [18 months after entry into force] and from then on annually, the Commission shall review the functioning of the measures set out in Chapters I-III of Part IV of this Regulation.

[Three years after entry into force, the Commission shall report on the implementation of the measures set out in this Regulation.]

No sooner than [five] years after the date of application of this Regulation, and every five years thereafter, the Commission shall carry out an evaluation of this Regulation. The Commission shall present a Report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. Member States shall provide the Commission all information necessary for the preparation of that report, at the latest six months before the [five] years time limit expires.

Article 70

Statistics

In accordance with Article 4(4) of Regulation (EC) No 862/2007 of the European Parliament and of the Council60, Member States shall communicate to the Commission (Eurostat), statistics concerning the application of this Regulation and of Regulation (EC) No 1560/2003.

PART VI AMENDMENTS TO OTHER UNION ACTS

Article 71

Amendments to the Long Term Residence Directive

1. Directive 2003/109/EC is amended as follows:

Article 4 is amended as follows:

(a) in paragraph 1, the following sub-paragraph is added:

“With regard to beneficiaries of international protection, the required period of legal and continuous residence shall be three years”.

Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 Community statistics on migration and international protection, OJ L 199, 31.7.2007, p. 23.

60

on

Article 72

Amendments to Regulation (EU) XXX/XXX [Asylum and Migration Fund] Regulation (EU) XXX/XXX [Asylum and Migration Fund] is amended as follows:

1. Article 16 is replaced by the following:

" 1. Member States shall receive, in addition to their allocation calculated in accordance with point (a) of Article 11(1), an amount of EUR 10 000 for each person admitted through resettlement or humanitarian admission.

2. Where appropriate, Member States may also be eligible for an additional amount of EUR 10 000 for family members of persons referred to in paragraph 1, if the persons are admitted to ensure family unity.

3. The amount referred to in paragraph 1 shall take the form of financing not linked to costs in accordance with Article of the Financial Regulation.

4. The additional amount referred to in paragraph 1 shall be allocated to the Member State programme. The funding shall not be used for other actions in the programme except in duly justified circumstances and as approved by the Commission through the amendment of the programme. The amount referred to in paragraph 1 may be included in the payment applications to the Commission, provided that the person in respect of whom the amount is allocated was resettled or admitted.

5. Member States shall keep the information necessary to allow the proper identification of the persons resettled or admitted and of the date of their resettlement or admission, while applicable provisions concerning data retention periods shall prevail.

6. To take account of current inflation rates and relevant developments in the field of resettlement, and within the limits of available resources, the Commission shall be empowered to adopt delegated acts in accordance with Article 32 of this Regulation to adjust, if deemed appropriate, the amount referred to in paragraph 1 of this Article, to take into account the current rates of inflation, relevant developments in the field of resettlement, as well as factors which can optimise the use of the financial incentive brought by those amounts.”

2. Article 17 is replaced by the following:

“1. A Member State shall receive a contribution of:

(a)     EUR [10 000] per applicant for whom that Member State becomes responsible as a result of relocation in accordance with Articles 48, 53 and Article 56 Regulation (EU) XXX/XXX [Asylum and Migration Management Regulation];

(b)     EUR [10 000] per beneficiary of international protection relocated in accordance with Articles 53 and 56 of Regulation (EU) XXX/XXX [Asylum and Migration Management Regulation];

(c)     EUR [10 000] per illegally staying third-country national relocated in accordance with Article 53, when the period referred to in Article 55(2) has expired, and Article 56 of Regulation (EU) XXX/XXX [Asylum and Migration Management Regulation].

(d)     The contribution in points (a), (b) and (c) is increased to EUR [12 000] for each unaccompanied minor relocated in accordance with Article 48, Article 53 and

Article 56 of Regulation (EU) XXX/XXX [Asylum and Migration Management Regulation].

2. A Member State carrying out the transfer shall receive a contribution of EUR 500 to cover the transfer of persons pursuant to paragraph 1 for each person, applicant or beneficiary subject to relocation.

3. A Member State shall receive a contribution of EUR 500 to cover the transfer of a person referred to in Article 26(1)(a), (b), (c) or (d) pursuant to Article 35 of Regulation (EU) XXX/XXX [Asylum and Migration Management Regulation].

4. A Member State will receive amounts referred to in paragraphs 1 to 3 for each person provided that the person in respect of whom the contribution is allocated was relocated.

5. The amounts referred to in this Article shall take the form of financing not linked to costs in accordance with Article of the Financial Regulation.

6. Member States shall keep the information necessary to allow the proper identification of the persons transferred and of the date of their transfer, while applicable provisions concerning data retention periods shall prevail.

7. Within the limits of available resources, the Commission shall be empowered to adopt delegated acts in accordance with Article 32 to adjust, if deemed appropriate, the amounts referred to in paragraphs 1, 2 and 3 of this Article to take into account the current rates of inflation, relevant developments in the field of transfer of applicants for international protection and of beneficiaries of international protection from one Member State to another, as well as factors which can optimise the use of the financial incentive brought by those amounts.”

PART VII TRANSITIONAL PROVISIONS AND FINAL PROVISIONS

Article 73

Repeal Regulation (EU) No 604/2013 is repealed. References to the repealed Regulation shall be construed as references to this Regulation.

Article 74

Transitional measures

Where an application has been registered after [the first day following the entry into force of this Regulation], 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 75

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 registered as from [the first day of the thirteenth month following its entry into force]. 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 604/2013.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.