Legal provisions of COM(2020)613 - Addressal of situations of crisis and force majeure in the field of migration and asylum

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2020)613 - Addressal of situations of crisis and force majeure in the field of migration and asylum.
document COM(2020)613 EN
date September 23, 2020


Chapter I- General provisions

Article 1

Subject matter

1. This Regulation addresses situations of crisis and force majeure in the field of migration and asylum within the Union and provides for specific rules derogating from those set out in Regulations (EU) XXX/XXX [Asylum and Migration Management] and (EU) XXX/XXX [Asylum Procedures Regulation] and in Directive XXX [recast Return Directive].

2. For the purposes of this Regulation, a situation of crisis is to be understood as:

(a)          an exceptional situation of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State or disembarked on its territory following search and rescue operations, being of such a scale, in proportion to the population and GDP of the Member State concerned, and nature, that it renders the Member State’s asylum, reception or return system non-functional and can have serious consequences for the functioning the Common European Asylum System or the Common Framework as set out in Regulation (EU) XXX/XXX [Asylum and Migration Management], or

(b)          an imminent risk of such a situation.

Chapter II – Solidarity mechanism

Article 2

Solidarity in situations of crisis

1. For the purpose of providing solidarity contributions for the benefit of a Member State in situations of crisis as set out in Article 1(2)(a), Part IV of Regulation (EU) XXX/XXX [Asylum and Migration Management] shall apply mutatis mutandis, with the exception of Article 45(1), point (d), Article 47, Article 48, Article 49, Article 51(3)(b)(iii) and (4), Article 52(2) and (5) and Article 53(2), second and third subparagraphs.

2. By way of derogation from Article 50(3), the assessment referred to in that paragraph shall cover the situation in the Member State concerned during the preceding [one] month.

3. By way of derogation from Articles 51(1), 52(3) and 53(1) of Regulation (EU) XXX/XXX [Asylum and Migration Management], the deadlines set in those provisions shall be shortened to one week.

4. By way of derogation from Article 51(2) of Regulation (EU) XXX/XXX [Asylum and Migration Management] the report referred to therein shall indicate whether the Member State concerned is in a situation of crisis as defined in Article 1(2)(a) of this Regulation.

5. By way of derogation from Article 51(3)(b)(ii), Article 52(1) and 52(3) first sub-paragraph and Article 53(3)(a) of Regulation (EU) XXX/XXX [Asylum and Migration Management], relocation shall include not only persons referred to in points (a) and (c) of Article 45(1) of that Regulation, but also persons referred to in points (a) and (b) of Article 45(2).

6. By way of derogation from Article 54 of Regulation (EU) XXX/XXX [Asylum and Migration Management], the share calculated in accordance with the formula set out in that Article shall also apply to measures set out in Article 45(2), points (a) and (b) of that Regulation.

7. By way of derogation from Article 55(2) of Regulation (EU) XXX/XXX [Asylum and Migration Management], the deadline set therein shall be set at four months.

Chapter III - Asylum and return procedures in a situation of crisis

Article 3

Criteria and procedural provisions

1. Where a Member State considers that it is facing a crisis situation as referred to in Article 1(2), that Member State shall submit a reasoned request to the Commission for the purpose of applying the rules laid down in Articles 4, 5 or 6 as necessary.

2. Where, on the basis of the examination carried out in accordance with paragraph 8, the Commission considers such a request justified, it shall, by means of an implementing decision, authorise the Member State concerned to apply the derogatory rules laid down in Articles 4, 5 or 6.

3. The implementing decision referred to in paragraph 2 shall be adopted within ten days from the request and shall set the date from which the rules laid down in Articles 4, 5 or 6 may be applied, as well as the time period for their application.

4. The Commission may authorise the application of the rules laid down in Articles 4 and 5 for six months. That period may be extended for a period not exceeding one year.

5. The Commission may authorise the application of the rules laid down in Article 6 for a maximum period of four weeks. If a Member State considers it necessary to further extend the application of the rules laid down in Article 6, it shall submit a reasoned request to the Commission at the latest five days before the expiry of the four-week period. The Commission may authorise the prolongation of the application of the rules laid down in Article 6 for an additional maximum period of four weeks, which shall be renewable once. The period of application shall not exceed twelve weeks in total, including, where paragraph 8 is applied, the period preceding the adoption of the implementing decision referred to in paragraph 2.

6. The implementing decision referred to in paragraph 2 shall be adopted in accordance with the procedure referred to in Article 11(1).

7. When submitting the request referred to in paragraph 1, a Member State may notify the Commission that it considers necessary to apply the rules laid down in Article 6 before the examination of this request by the Commission is concluded. In such a case, by way of derogation from paragraph 3 of this Article, the Member State

concerned may apply the rules laid down in Article 6 from the day following the request and for a period not exceeding 15 days. The Member State shall indicate in the request the reasons for which an immediate action is required.

8. The Commission shall examine the reasoned request pursuant to paragraph 1, or the

notification pursuant to paragraph 7 on the basis of substantiated information, in particular the information gathered by the Commission pursuant to the EU mechanism for Preparedness and Management of Crises related to Migration (Migration Preparedness and Crisis Blueprint) and by the European Asylum Support Office (EASO) pursuant to Regulation (EU) No 439/201010, the European Border and Coast Guard Agency pursuant to Regulation (EU) 2019/1896 and the Migration Management Report referred to Article 6 of Regulation (EU) XXX/XXX [Asylum and Migration Management].

Article 4

Asylum crisis management procedure

1. In a crisis situation as referred to in Article 1(2), and in accordance with the

procedures laid down in Article 3, Member States may, as regards applications made within the period during which this Article is applied, derogate from Article 41 of Regulation (EU) XXX/XXX [Asylum Procedures Regulation] as follows:

(a)          By way of derogation from Article 41(2)(b) of Regulation (EU) XXX/XXX [Asylum Procedures Regulation], Member States may in a border procedure take decisions on the merits of an application in cases where the applicant is of a nationality, or, in the case of stateless persons, a former habitual resident of a third country, for which the proportion of decisions granting international protection by the determining authority is, according to the latest available yearly Union-wide average Eurostat data, 75% or lower, in addition to the cases referred to in Article 40(1) of Regulation (EU) XXX/XXX [Asylum Procedures Regulation];

(b)          By way of derogation from Article 41(11) and (13) of Regulation (EU) XXX/XXX [Asylum Procedures Regulation], the maximum duration of the border procedure for the examination of applications set out in that Article may be prolonged by an additional period of maximum eight weeks. Following this period, the applicant shall be authorised to enter the Member State’s territory for the completion of the procedure for international protection.

Article 5

Return crisis management procedure

1. In a crisis situation as referred to in Article 1(2), and in accordance with the

procedures laid down in Article 3, Member States may, in respect of illegally staying third-country nationals or stateless persons whose applications were rejected in the context of the asylum crisis management procedure pursuant to Article 4, and who

Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (OJ L 132, 29.5.2010, p. 11.)

10

have no right to remain and are not allowed to remain, derogate from Article 41a of Regulation (EU) XXX/XXX [Asylum Procedures Regulation] as follows:

(a)          By way of derogation from Article 41a(2) of Regulation (EU) XXX/XXX [Asylum Procedures Regulation], the maximum period during which third-country nationals or stateless persons shall be kept at the locations referred to in that Article may be prolonged by an additional period of maximum eight weeks;

(b)          By way of derogation from Article 41a(7) of Regulation (EU) XXX/XXX [Asylum Procedures Regulation], the period of detention set in that Article shall not exceed the period referred to in point (a);

(c)          In addition to the cases provided for by Article 6(2) of Directive XXX [recast Return Directive], Member States shall establish that a risk of absconding is presumed in an individual case, unless proven otherwise, when the criterion referred to in Article 6(1), point (f) of Directive XXX [recast Return Directive] is fulfilled or when the applicant, third-country national or stateless person concerned is manifestly and persistently not fulfilling the obligation to cooperate established by Article 7 of that Directive.

2. Paragraph 1 shall also apply to applicants, third-country nationals and stateless

persons subject to the procedure referred to in Article 41 of Regulation (EU) XXX/XXX [Asylum Procedures Regulation] whose application has been rejected before the adoption by the Commission of a decision issued in accordance with Article 3 of this Regulation, and who have no right to remain and are not allowed to remain after the adoption of that decision.

Article 6

Registration of applications for international protection in situations of crisis

In a crisis situation as referred to in Article 1(2)(a) and in accordance with the procedure laid down in Article 3, applications made within the period during which this Article is applied shall be registered no later than within four weeks from when they are made by way of derogation from Article 27 of Regulation (EU) XXX/XXX [Asylum Procedures Regulation].

Chapter IV – Timelimits in a situation of FORCE MAJEURE

Article 7

Extension of registration time limit set out in Regulation (EU) XXX/XXX [Asylum Procedures

Regulation]

1. Where a Member State is facing a situation of force majeure which renders it

impossible to comply with the time limits set out in Article 27 of Regulation (EU) XXX/XXX [Asylum Procedures Regulation], that Member State shall notify the Commission. After such notification, by way of derogation from Article 27 of Regulation (EU) XXX/XXX [Asylum Procedures Regulation], applications may be registered by that Member State no later than four weeks from when they are made. In the notification, the Member State concerned shall indicate the precise reasons for which it considers that this paragraph has to be applied and indicate the period of time during which it will be applied.

2. Where a Member State referred to in paragraph 1 is no longer facing a situation of

force majeure as referred to in that paragraph which renders it impossible to comply with the time limits set out in Article 27 of Regulation (EU) XXX/XXX [Asylum Procedures Regulation], that Member State shall, as soon as possible, notify the Commission of the termination of the situation. After such notification, the extended time limit set out in paragraph 1 shall no longer be applied.

Article 8

Extension of time limits set out in Regulation (EU) XXX/XXX [Asylum and Migration

Management]

1. Where a Member State is facing a situation of force majeure which renders it impossible to comply with the time limits set out in Articles 29, 30, 31 and 35 of Regulation (EU) XXX/XXX [Asylum and Migration Management], the Member State concerned shall notify the other Member States and the Commission. Such information shall indicate the precise reasons for which the Member State considers that this paragraph has to be applied. After such notification, by way of derogation from Articles 29, 30, 31 and 35 of that Regulation, that Member State shall:

(a)          submit a take charge request as referred to in Article 29 within four months of the date on which the application was registered;

(b)          reply to a take charge request as referred to in Article 30 within two months of receipt of the request;

(c)          submit a take back notification as referred to in Article 31 within one month of receiving the Eurodac hit or confirm the receipt within one month of such notification;

(d)          carry out a transfer as referred to in Article 35 within one year 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) of that Regulation.

2. Where the Member State referred to in paragraph 1 does not comply with the time limits set out in paragraph 1, points (a), (b) and (d), the responsibility for examining the application for international protection pursuant to Regulation XXX/XXX [Asylum and Migration Management] shall lie with it or be transferred to it.

3. Where a Member State is facing a situation of force majeure which renders it impossible to receive persons it is responsible for pursuant to Regulation (EU) XXX/XXX [Asylum and Migration Management], it shall notify the other Member States and the Commission, indicating the precise reasons for such impossibility. In such cases, the requesting or notifying Member State shall not carry out the transfer until the Member State responsible is no longer facing a situation of force majeure. Where, because of the persistence of the situation of force majeure or for any other reason, the transfer does not take place within one year 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) of that Regulation, by way of derogation from Article 35 of Regulation (EU) XXX/XXX [Asylum and Migration Management], 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.

4. Where a Member State is no longer facing a situation of force majeure as referred to

in paragraphs 1 and 3 which renders it impossible to comply with the time limits set out in Articles 29, 30, 31 and 35 of Regulation (EU) XXX/XXX [Asylum and Migration Management] or to receive persons it is responsible for pursuant to that Regulation, that Member State shall as soon as possible notify the Commission and the other Member States of the termination of the situation. After such notification, the time limits set out in paragraphs 1 and 3 shall no longer be applied in respect of new applications for international protection made or third-country nationals or stateless persons who are found to be illegally staying on or after the date of that notification.

Article 9

Extension of the timeframes for solidarity measures

1. Where a Member State is facing a situation of force majeure which renders it impossible to comply with the obligation to undertake solidarity measures within the timeframes established in Articles 47 and 53(1) of Regulation (EU) XXX/XXX [Asylum and Migration Management] and Article 2 of this Regulation, it shall notify the Commission and the other Member States without delay. The Member State concerned shall indicate the precise reasons for which it considers that it is facing a situation of force majeure and provide all necessary information for that effect. After such notification, by way of derogation from the timeframes established by those Articles, the timeframe for undertaking solidarity measures established in those Articles shall be suspended for a maximum period of six months.

2. Where a Member State is no longer facing a situation of force majeure, that Member State shall immediately notify the Commission and the other Member States of the cessation of the situation. After such notification, the extended timeframe set out in paragraph 1 shall cease to apply.

Chapter V – Granting of immediate protection

Article 10

Granting of immediate protection status

1. In a crisis situation as referred to in Article 1(2)(a), and on the basis of an

implementing act adopted by the Commission in accordance with paragraph 4 of this Article, Member States may suspend the examination of applications for international protection in accordance with Regulation (EU) XXX/XXX [Asylum Procedures Regulation] and Regulation (EU) XXX/XXX [Qualification Regulation] in respect of displaced persons from third countries who are facing a high degree of risk of being subject to indiscriminate violence, in exceptional situations of armed conflict, and who are unable to return to their country of origin. In such a case, Member States shall grant immediate protection status to the persons concerned, unless they represent a danger to the national security or public order of the Member

State. Such status shall be without prejudice to their ongoing application for international protection in the relevant Member State.

2. Member States shall ensure that beneficiaries of immediate protection have effective access to all the rights laid down in Regulation (EU) XXX/XXX [Qualification Regulation] applicable to beneficiaries of subsidiary protection.

3. Member States shall resume the examination of the applications for international protection that have been suspended pursuant to paragraph 1 after a maximum of one year.

4. The Commission shall, by means of an implementing decision:

(a) (b) (c)

establish that there is a situation of crisis on the basis of the elements referred to in Article 3;

establish that there is a need to suspend the examination of applications for international protection;

define the specific country of origin, or a part of a specific country of origin, in respect of the persons referred to in paragraph 1;

(d)         establish the date from which this Article shall be applied and set out the time period

during which applications for international protection of displaced person as referred to in point (a) may be suspended and immediate protection status shall be granted.

Chapter VI – General and final provisions

Article 11

Adoption of implementing acts

1. The Commission shall adopt implementing acts in respect of authorising the application of the derogatory procedural rules referred to in Articles 4, 5 and 6, and triggering the granting of immediate protection status in accordance with Article 10. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 12(2).

2. On duly justified imperative grounds of urgency, due to the situation of crisis as defined in Article 1(2) in a Member State, the Commission shall adopt immediately applicable implementing acts in respect of authorising the application of the derogatory procedural rules referred to in Articles 4, 5 and 6, and triggering the granting of immediate protection status in accordance with Article 10. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 12(3).

3. The implementing acts shall remain in force for a period not exceeding one year.

Article 12

Committee

procedure

1. For the implementing act referred to in Article 3, 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.

3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

Article 14

Repeal Council Directive 2001/55/EC is repealed with effect from xxx (date).

Article 15

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

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