Explanatory Memorandum to COM(2015)286 - Provisional measures in the area of international protection for the benefit of Italy and Greece - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2015)286 - Provisional measures in the area of international protection for the benefit of Italy and Greece. |
|---|---|
| source | COM(2015)286  |
| date | 27-05-2015 |
1. CONTEXT OF THE PROPOSAL
1.1.European Agenda on Migration
The European Commission presented a comprehensive European Agenda on Migration 1 on 13 May 2015, outlining, on the one hand, the immediate measures that will be proposed by the Commission to respond to the crisis situation in the Mediterranean and, on the other, the medium and long terms initiatives that need to be taken to provide structural solutions for better managing migration in all its aspects.
As part of the immediate measures, the Commission announced that, by the end of May, it will propose a mechanism to trigger the emergency response system envisaged under Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). The Agenda acknowledged that today Member States’ asylum systems face an unprecedented pressure and that with the volumes of arrivals in particular to frontline Member States, their reception and processing capacities are already stretched to their limits. The Agenda announced that the proposal to trigger Article 78(3) will include a temporary distribution scheme for persons in clear need of international protection to ensure a fair and balanced participation of all Member States to this common effort. A redistribution key was included in the Annex to the Agenda, based on the criteria referred to therein (GDP, size of population, unemployment rate and past numbers of asylum seekers and of resettled refugees).
The Agenda underlined that the swift response that will be taken to reply to the current crisis in the Mediterranean must serve as the blueprint for the EU’s reaction to future crisis, whichever part of the common external border comes under pressure from East to West and from North to South.
1.2.Triggering Article 78(3) of the Treaty in respect of Italy and Greece
As part of the common policy on asylum, Article 78(3) of the Treaty provides a specific legal basis to deal with emergency situations. Based on a proposal by the European Commission, it enables the Council, after consulting the European Parliament, to adopt provisional measures for the benefit of Member State(s) confronted with an emergency situation characterised by a sudden inflow of nationals of third countries into one or more Member State(s). The provisional measures envisaged by Article 78(3) are exceptional in nature. They can only be triggered when a certain threshold of urgency and severity of the problems created in the Member State(s)’ asylum system(s) by a sudden inflow of third country nationals is met.
The European Agenda on Migration, the recent statement of the European Council 2 and the European Parliament Resolution 3 presented in the wake of the recent tragedies in the Mediterranean, all concur on the specific and urgent needs frontline Member States are confronted with and on the need to reinforce internal solidarity and propose concrete measures to provide support to the most affected Member States.
The statistical information regarding the numbers of irregular arrivals of third-country nationals in the Member States in 2014 and 2015, including of those who appear to be in clear need of international protection confirms that, at present, two frontline Member States, namely Italy and Greece are confronted with an exceptional migratory pressure.
According to Frontex data, the Central and Eastern Mediterranean route were indeed the main areas for irregular border crossing into the EU in 2014, representing more than 75% of the EU total irregular border crossing. In 2014, more than 170 000 migrants arrived in Italy alone in an irregular manner, representing an increase of 277% compared to 2013. A steady increase was witnessed also by Greece with more than 50 000 irregular migrants reaching the country, representing an increase of 153% compared to 2013. Statistics for the first months of 2015 confirm this clear trend in respect of Italy. In addition, Greece has faced in the first four months of 2015 a sharp increase in the number of irregular border crossings, corresponding to more than 50% of the total number of irregular border crossings in 2014 (almost 28 000 in the first four months of 2015 in comparison to a total number of almost 55 000 in 2014). A significant proportion of the total number of irregular migrants detected in these two regions included migrants of nationalities which, based on the Eurostat data, meet a high EU level recognition rate (in 2014, the Syrians and the Eritreans, for which the EU level recognition rate is more than 75%, represented more than 40% in Italy and more than 50% in Greece).
According to Eurostat, 64 625 persons applied for international protection in Italy in 2014, compared to 26 920 in 2013 (an increase of 143%). A lesser increase in the number of applications was witnessed by Greece with 9 430 applicants (an increase of 15%).
According to Frontex data, another important migration route into the EU in 2014 was the Western Balkan route with 43 357 irregular border crossings (15% of the EU total irregular border crossing). However, the majority of migrants using the Balkan route are not prima facie in need of international protection, with Kosovars accounting for 51% of the arrivals.
Italy’s and Greece’s geographical situation, with the ongoing conflicts in the region of their immediate neighbourhood makes them more vulnerable than the other Member States in the immediate future with unprecedented flows of migrants expected to continue to reach their territories. These external factors of increased migratory pressure add to the existing structural shortcomings in their asylum systems, putting further into question their ability to deal in an adequate manner with this situation of high pressure.
None of the other Member States currently appear in an emergency situation like the one experienced by Italy and Greece with similar peaks in the numbers of irregular arrivals with a high proportion of persons in clear need of international protection, coupled with a serious vulnerability of their asylum systems.
Therefore, the current migratory landscape in Italy and Greece is unique in the EU and the strain on their capacity to process applications for international protection and to provide adequate reception conditions and integration perspectives to persons in clear need of international protection requires all the other Member States to show solidarity.
Developments in the migratory flows will continue to be closely monitored by the Commission with regard to all Member States, including Malta, which, due to its similar geographic situation to Italy and Greece, has handled similar emergencies in the past. Therefore, similar measures can be triggered in the future in respect of those Member States which may be confronted by an emergency situation characterised by a sudden inflow of nationals of third countries.
2. CONSULTATION OF INTERESTED PARTIES
This proposal is presented as result of a prevailing crisis in the area of asylum in Italy and Greece. To prevent further deterioration of the asylum situation in these two countries and provide them with effective support, the Commission had to react rapidly and present promptly its proposal based on Article 78(3) of the Treaty in view of its swift adoption by the Council and implementation of the provisional measures to the benefit of Italy and Greece by the Member States.
EU institutions and key actors have already expressed their broad views on this topic. In its 23 April 2015 statement, the European Council committed to consider options for organising emergency relocation between all Member States on a voluntary basis. In its 28 April 2015 resolution, the European Parliament has called upon the Council to seriously consider the possibility of triggering Article 78(3) of the Treaty.
The UNHCR 4 has called the EU to commit to intra-EU solidarity tools to support in particular Greece and Italy, including by relocating Syrian refugees who are rescued at sea to different countries across Europe, based on a fair distribution system. The NGO sector has also expressed its views on the issue of relocation of persons in need of international protection. 5
3. LEGAL ELEMENTS OF THE PROPOSAL
3.1.Summary of the proposed action
The objective of the proposal is to establish provisional measures in the area of international protection for the benefit of Italy and Greece, in order to enable them to deal in an effective manner with the current significant inflow of third country nationals in their territories, putting their asylum systems under strain.
The measures foreseen in this Decision entail a temporary derogation from the criterion laid down in Article 13(1) of Regulation (EU) 604/2013 and the procedural steps, including the time limits, laid down in Articles 21, 22 and 29 of that Regulation. The legal and procedural safeguards set out in Regulation (EU) No 604/2013, including the right to an effective remedy, remain applicable in respect of applicants covered by this Decision.
In line with Article 78(3), the measures which can be taken for the benefit of a Member State must be provisional. At the same time, in order to ensure that the measures taken have a real impact in practice and provide genuine support for Italy and Greece to cope with the influx of migrants, the duration of these measures should not be too short. It is therefore proposed to apply the provisional measures foreseen in this proposal for a period of 24 months from the entry into force of this Decision.
The provisional measures envisaged by this proposal relate first and foremost to the relocation of applicants for international protection who appear prima facie to be in clear need of international protection from Italy and Greece to the other Member States.
The other Member States, defined in the proposal as the “Member States of relocation" become responsible for examining the application of the person to be relocated. The examination of the application will be carried out pursuant to the rules laid down in Directive 2011/95/EU and Directive 2005/85/EC, and, as from 20 July 2015, Directive 2013/32/EU which will replace Directive 2005/85/EC. The reception conditions will be provided pursuant to the rules laid down in Directive 2003/9/EC, and, as from 20 July 2015, Directive 2013/33/EU, which will replace Directive 2003/9/EC.
The proposal establishes a numerical target for the applicants to be relocated from Italy and Greece, namely 24 000 and 16 000 respectively and includes in its annexes two distribution keys which define the number of applicants that shall be relocated from Italy and Greece respectively to the other Member States. This allocation between Italy and Greece is based on their respective shares in the total number of the irregular border crossings in Italy and Greece of persons in clear need of international protection. This also takes into account the sharp increase in the number of irregular border crossing in Greece over the January-April 2015 period when comparing to the same period last year. It is proposed that Italy and Greece do not themselves contribute as relocating Member States. The total of 40 000 applicants that should be relocated from Italy and Greece corresponds to approximately 40% of the total number of persons in clear need of international protection who have entered irregularly in these two countries in 2014. Thus, the relocation measure proposed in this Decision constitutes fair burden sharing between Italy and Greece on the one hand and the other Member States on the other hand.
The scope of the relocation procedure set out in this Decision is limited in two respects.
Firstly, it is proposed to apply this Decision only in respect of applicants who are, prima facie, in clear need of international protection. This proposal defines those applicants as those belonging to nationalities for which the EU average recognition rate as established by Eurostat is above 75%.
Secondly, it is proposed to make this Decision applicable only in respect of those applicants for whom Italy or Greece would in principle be the Member State responsible, in line with the take charge criteria defined in Regulation (EU) No 604/2013. By doing so, it is ensured that Regulation (EU) No 604/2013 remains applicable in respect of those applicants present in Italy and Greece, including those with a recognition rate of above 75%, for which one of the objective criteria laid down in that Regulation (for instance the presence of family members in another Member State) indicates that another Member State would be responsible. These applicants will therefore be transferred to the other Member States in application of Regulation (EU) No 604/2013 and not as part of the provisional measures envisaged in this proposal. At the same time, Regulation (EU) No 604/2013 remains applicable also in respect of those persons who have not been relocated under the present scheme and who can be sent back to Italy by the other Member States. In this last respect, the situation is different for Greece, where the status quo is that Member States have suspended the Dublin transfers to Greece, in implementation of the European Court of Human Rights M.S.S. vs. Belgium and Greece judgment, followed by the decision in N.S. v. UK of the Court of Justice of the European Union, which confirmed the existence of systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in Greece.
The proposal sets out a simple relocation procedure, to ensure a quick transfer of the persons concerned to the Member State of relocation. Each Member State shall appoint a national contact point for the purpose of the implementation of this Decision and communicate it to the other Member States and to the European Asylum Support Office (EASO). Italy and Greece, with the assistance of EASO, and, where applicable, of Member States' liaison officers, shall, at regular intervals of time, identify the applicants who could be relocated. In doing so, priority should be given to the vulnerable applicants. Italy and Greece shall then communicate to the contact points of the other Member States and to EASO the precise numbers of applicants that could be relocated. The other Member States shall indicate the number of applicants that can be relocated immediately to their territory and any other relevant information, such as in respect of the reception of families or vulnerable applicants. A formal decision to relocate an applicant needs then to be taken by Italy or Greece and notified to the applicant. The proposal specifies that applicants whose fingerprints are required to be taken pursuant to the obligations set out in Article 9 of Regulation (EU) No 603/2013 may not be relocated unless their fingerprints have been taken.The proposal also specifies that Member States retain the right to refuse to relocate an applicant for which it is likely that there are national security or public order concerns. The proposal foresees that all the procedural steps must be carried out as soon as possible and that, in any event, the transfer of the applicant needs to take place no later than one month from his/her identification as applicant to be relocated. Finally, the proposal also specifies that for the purpose of the relocation procedure, Member States may decide to send to Italy and Greece liaison officers.
It is clear that the full commitment and genuine cooperation of Member States, in the framework of the coordinated support to be provided by EASO, is essential for ensuring an effective implementation of the provisional measures envisaged.
In addition to relocation, the proposal lays down other measures of support to be provided to Italy and Greece sur place. In particular, the proposal envisages an increase in the support provided by other Member States to Italy and Greece under the coordination of EASO and other relevant Agencies. The aim is to assist Italy and Greece in particular in the screening and the initial stages of the processing of applications as well as in the implementation of the relocation procedure set out in this proposal (in particular provision of information and specific assistance to the persons concerned and practical arrangements for implementing the transfers).
The proposal also provides the obligation for Italy and Greece to present to the Commission a roadmap which shall include adequate measures in the area of asylum, first reception and return enhancing the capacity, quality and efficiency of their systems in these areas as well as measures to ensure a proper application of this Decision. The proposal foresees the possibility for the Commission to suspend, under certain circumstances, the application of this Decision.
The proposal includes specific guarantees and obligations for the applicants who are subject to relocation to another Member State. The proposal specifies the right to receive information on the relocation procedure, the right to be notified with the relocation decision which must specify the precise Member State of relocation and the right to be relocated with the family members in the same Member State of relocation. The proposal also recalls the obligation to give primary consideration to the best interests of the child when deciding the Member State of relocation. This implies inter alia the obligation for Italy and Greece to indicate to the other Member States when the applicant to be relocated is an unaccompanied minor and, together with the Member State who manifested an interest in relocating that minor, to ensure that before relocation takes place, a best interests of the child assessment is carried out, in line with General Comment No 14 (2013) of the UN Committee on the rights of the child to have his or her best interests taken as primary consideration 6 . The proposal also recalls the consequences of the secondary movements of the applicants for or beneficiaries of international protection which were part of the relocation scheme based on the currently applicable EU law, i.e. where they enter without authorisation into the territory of another Member State than the responsible one (in this case, the Member State of relocation).
The proposal recalls the possibility, which derives from Article 78 (3) of the Treaty, for the Council, based on a proposal from the Commission and after consulting the European Parliament, to adopt provisional measures for the benefit of a Member State other than Italy or Greece which would be confronted with a similar emergency situation characterised by a sudden inflow of nationals of third countries. In addition, the proposal foresees that such measures may include, where appropriate, a suspension of the obligations of that Member State provided for in this Decision.
The proposal specifies that the relocation measures provided for in this Decision will benefit from the financial support under the Asylum, Migration and Integration Fund (AMIF) set up by Regulation (EU) N°516/2014. To this end, Member States of relocation shall receive a lump sum of EUR 6 000 for each applicant for international protection relocated from Italy and Greece pursuant to this Decision. This financial support will be implemented by applying the procedures laid down in Article 18 of Regulation (EU) N° 516/2014.
The proposal requires Italy and Greece to report every three months on the implementation of this Decision, including of the roadmaps, to the Council and the Commission.
Finally, the proposal specifies that this Decision shall apply to persons arriving on the territory of Italy and Greece as from the date of the entry into force of the Decision. The Decision will also be applied to applicants having arrived on the territory of those Member States from 15 April 2015, date around which the tragic events occurred prompting the European Council to decide to reinforce internal solidarity and responsibility and committed in particular to increase emergency assistance to front line Member States.
3.2.Legal basis
The legal basis for the proposed Council Decision is Article 78(3) of the Treaty on the Functioning of the European Union.
In accordance with the provisions of Protocol No 21 annexed to the TFEU on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, the United Kingdom and Ireland do not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the TFEU. The United Kingdom and Ireland may notify the Council, within three months after a proposal or initiative has been presented, or at any time after its adoption, that they wish to take part in the adoption and application of any such proposed measures.
In accordance with the provisions of Protocol No 22 on the position of Denmark, annexed to the TFEU, Denmark does not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the TFEU. At any time Denmark may, in accordance with its constitutional requirements, notify the other Member States that it wishes to apply in full all relevant measures adopted on the basis of Title V of the TFEU.
The European Community has concluded agreements with Iceland, Norway, Switzerland and Liechtenstein associating them to the “Dublin/Eurodac acquis” (Regulation 343/2003 replaced by Regulation 604/2013 and Regulation 2725/2000 which will be replaced by Regulation 603/2014). This proposal does not constitute a development of the “Dublin/Eurodac acquis” and there is therefore no obligation on behalf of the associated states to notify to the Commission their acceptance of this Decision, once approved by the Council. The associated states may nevertheless decide to voluntarily participate in the provisional measures established by this Decision.
3.3.Subsidiarity principle
Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on the European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union.
The emergency situation created by the sudden influx of third-country nationals in Italy and Greece as described above puts their asylum systems and resources under considerable strain. As a consequence of this, other Member States can become affected, due to the secondary movements of these persons from Italy and Greece to these other States. It is clear that actions of individual Member States cannot satisfactorily reply to the common challenges all Member States are confronted with in this area. EU action in this field is therefore essential.
3.4.Proportionality principle
The different financial and operational measures taken so far by the European Commission and the EASO to support the asylum systems of Italy and Greece have not proven sufficient to address the current crisis situation in these two Member States. Given the urgency and the severity of the situation created by the influx described above, opting for further EU action in their respect does not go beyond what is necessary to achieve the objective of addressing the situation effectively. In particular, the proposal envisages the relocation over a period of two years of 24 000 and 16 000 applicants who are in clear need of international protection from Italy and Greece respectively to the territory of the other Member States. Based on the statistical data in 2014 and the first four months of 2015, the number of persons to be relocated represents 12% in respect of Italy and 19% in respect of Greece out of the total number of irregular border crossing in Italy and Greece respectively.
The remaining third country nationals who have or who have not applied for international protection will fall outside the relocation scheme and remain under the responsibility of Italy and Greece or of the State which has been identified as the Member State responsible pursuant to Regulation (EU) No 604/2013. At the same time, the support provided by the Member States of relocation to Italy and Greece is linked to the submission by Italy and Greece respectively and the monitoring by the Commission of the respect for those roadmaps which shall include specific measures to be taken by Italy and Greece to ensure that, following the end of applicability of the relocation procedure provided for in this proposal, their asylum and migration sytems will be better equipped to deal with situations of particular pressure.
3.5.Impact on fundamental rights
As a result of introducing provisional measures in the area of international protection for the benefit of Italy and Greece, the fundamental rights as provided for in the EU Charter of Fundamental Rights ("the Charter") of the applicants who are in clear need of international protection will be safeguarded.
In particular, by ensuring a swift access of the persons concerned to an adequate procedure for granting international protection, this Decision aims to protect the right to asylum and to ensure protection against non-refoulement, as provided for in Articles 18 and 19 of the Charter. In addition, by ensuring the transfer of the persons concerned to a Member State which is in a position to give them adequate reception conditions and integration perspectives, this Decision aims to ensure full respect for the right to dignity and protection against torture and inhuman or degrading treatment or punishment, as provided for in Articles 1 and 4 of the Charter. This Decision also aims to protect the rights of the child, in line with Article 24 of the Charter and right to family unity, in line with Article 7 of the Charter.
3.6.Budgetary impact
This proposal entails additional costs for the EU Budget for a total amount of EUR 240 000 000.