Considerations on COM(2016)271 - Proposal for an EU Agency for Asylum

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dossier COM(2016)271 - Proposal for an EU Agency for Asylum.
document COM(2016)271 EN;COM(2018)633 EN
date December 15, 2021
 
(1) The objective of the Union’s policy on asylum is to develop and establish a Common European Asylum System (CEAS) that is consistent with the values and humanitarian tradition of the Union and governed by the principle of solidarity and fair sharing of responsibility.

(2) A common policy on asylum based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, is a constituent part of the Union’s objective of establishing progressively an area of freedom, security and justice open to third-country nationals or stateless persons who seek international protection in the Union.

(3) The CEAS is based on common minimum standards for procedures for international protection, recognition and protection offered at Union level and for reception conditions, and it establishes a system for determining the Member State responsible for examining applications for international protection. Notwithstanding the progress made on the CEAS, there are still significant disparities between the Member States as regards the granting of international protection and the form that such international protection takes. Those disparities should be addressed by ensuring greater convergence in the assessment of applications for international protection and by guaranteeing a uniform level of application of Union law, based on high protection standards, across the Union.

(4) In its communication of 6 April 2016 entitled ‘Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe’, the Commission set out priority areas for structurally improving the CEAS, namely the establishment of a sustainable and fair system for determining the Member State responsible for asylum seekers, the reinforcement of the Eurodac system, the achievement of greater convergence in the Union asylum system, the prevention of secondary movements within the Union and the development of a new mandate for the European Asylum Support Office (EASO). That communication is in line with a call by the European Council on 18 February 2016 to make progress towards reforming the Union’s existing framework so as to ensure a humane, fair and efficient asylum policy. That communication also proposes a way forward in line with the holistic approach to migration set out by the European Parliament in its own-initiative report of 12 April 2016 entitled ‘The situation in the Mediterranean and the need for a holistic EU approach to migration’.

(5) EASO was established by Regulation (EU) No 439/2010 of the European Parliament and of the Council (2), and it took up its responsibilities on 1 February 2011. EASO enhances practical cooperation among Member States on asylum-related matters and assists Member States in implementing their obligations under the CEAS. EASO also provides support to Member States whose asylum and reception systems are under particular pressure. However, its role and function need to be further strengthened so as to not only support practical cooperation among Member States but to reinforce and contribute to ensuring the efficient functioning of the asylum and reception systems of the Member States.

(6) Having regard to the structural weaknesses of the CEAS, which were brought to the fore by the large-scale and uncontrolled arrival of migrants and asylum seekers to the Union, and the need for an efficient, high and uniform level of application of Union law on asylum in the Member States, it is necessary to improve the implementation and functioning of the CEAS by building on the work of EASO and further developing it into a fully-fledged agency. Such an agency should be a centre of expertise on asylum. It should facilitate and improve the functioning of the CEAS by coordinating and strengthening practical cooperation and information exchange on asylum among Member States, by promoting Union and international law on asylum and operational standards in order to ensure a high degree of uniformity based on high protection standards as regards procedures for international protection, reception conditions and the assessment of protection needs across the Union, by enabling genuine and practical solidarity among Member States in order to assist the affected Member States in general and applicants for international protection in particular and in accordance with Article 80 of the Treaty on the Functioning of the European Union (TFEU), which stipulates that relevant Union acts are to contain appropriate measures to give effect to the principle of solidarity, in order to apply in a sustainable way the Union rules for determining the Member State responsible for examining applications for international protection and in order to enable convergence in the assessment of applications for international protection across the Union, by monitoring the operational and technical application of the CEAS, by supporting Member States with resettlement and the implementation of Regulation (EU) No 604/2013 of the European Parliament and of the Council (3) and by providing operational and technical assistance to Member States for the management of their asylum and reception systems, in particular those whose systems are subject to disproportionate pressure.

(7) The tasks of EASO should be expanded, and in order to reflect those changes it should be replaced and succeeded by an agency entitled the European Union Agency for Asylum (the ‘Agency’), with full continuity in all of its activities and procedures.

(8) In order to guarantee that it is independent and that it can carry out its tasks properly, the Agency should be provided with sufficient financial and human resources, including a sufficient number of its own staff to form part of asylum support teams and teams of experts for the monitoring mechanism under this Regulation.

(9) The Agency should work in close cooperation with the national authorities responsible for asylum and immigration and other relevant services, drawing on the capacity and expertise of those authorities and services, and with the Commission. The Member States should cooperate with the Agency to ensure that it is capable of fulfilling its mandate. It is important, for the purposes of this Regulation, that the Agency and the Member States act in good faith and exchange information in a timely and accurate manner. Any provision of statistical data is to respect the technical and methodological specifications laid down in Regulation (EC) No 862/2007 of the European Parliament and of the Council (4).

(10) The Agency should gather and analyse information on the situation of asylum in the Union and in third countries insofar as it might have an impact on the Union. That gathering and analysis of information should enable the Agency to provide Member States with up-to-date information including on migratory and refugee flows, and to identify possible risks for Member States’ asylum and reception systems. For that purpose, the Agency should work in close collaboration with the European Border and Coast Guard Agency, established by Regulation (EU) 2019/1896 of the European Parliament and of the Council (5).

(11) No personal data should be stored in databases or published on web portals created by the Agency concerning legal developments in the field of asylum, including relevant case law, unless such data have been obtained from sources that are publicly accessible.

(12) The Agency should be able to deploy liaison officers to the Member States to foster cooperation and to act as an interface between the Agency and the national authorities responsible for asylum and immigration and other relevant services. Liaison officers should facilitate communication between the Member State concerned and the Agency and share relevant information from the Agency with the Member State concerned. They should support the collection of information and contribute to promoting the application and implementation of Union law on asylum, including with regard to respect for fundamental rights. Liaison officers should regularly report on the situation of asylum in Member States to the Agency’s Executive Director, and those reports should be taken into account for the purposes of the monitoring mechanism under this Regulation. Where such reports raise concerns about one or more aspects relevant for the Member State concerned, the Executive Director should inform that Member State without delay.

(13) The Agency should provide the necessary support to the Member States in carrying out their tasks and obligations under Regulation (EU) No 604/2013.

(14) As regards resettlement, the Agency should be able to provide the necessary support to Member States at their request. To that end, the Agency should develop and offer expertise in resettlement in order to support actions on resettlement taken by Member States.

(15) The Agency should assist Member States with the training of experts from all national administrations, courts and tribunals, and national authorities responsible for asylum matters, including through the development of a European asylum curriculum. Member States should develop appropriate training on the basis of the European asylum curriculum with the aim of promoting best practices and common standards in the implementation of Union law on asylum. In that respect, Member States should include core parts of the European asylum curriculum in their training. It is important that those core parts cover issues related to the determination of whether applicants qualify for international protection, interview techniques and evidence assessment. In addition, the Agency should verify and, where necessary, ensure that all experts participating in asylum support teams or forming part of the asylum reserve pool established under this Regulation (the ‘asylum reserve pool’) receive the necessary training before their participation in operational activities it organises.

(16) The Agency should ensure a more structured, up-to-date and streamlined production of information on relevant third countries at Union level. The Agency should gather relevant information and draw up reports providing for country information. For that purpose, the Agency should establish and manage European networks on third-country information so as to avoid duplication and create synergies with national reports. It is necessary that the third-country information refer, inter alia, to the political, religious and security situation and to violations of human rights, including torture and ill-treatment, in the third country concerned.

(17) In order to foster convergence in the assessment of applications for international protection and the type of protection granted, the Agency should, together with the Member States, develop a common analysis on the situation in specific countries of origin (the ‘common analysis’) and guidance notes. The common analysis should consist of an assessment of the situation in relevant countries of origin based on country-of-origin information. The guidance notes should be based on an interpretation of that common analysis developed by the Agency and Member States. When developing the common analysis and guidance notes the Agency should take note of the most recent United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from specific countries of origin, and it should be able to take into account other relevant sources. Without prejudice to the competence of the Member States to decide on individual applications for international protection, Member States should take into account the relevant common analysis and guidance notes when assessing applications for international protection from applicants who originate from third countries for which a common analysis and guidance notes have been developed in accordance with this Regulation.

(18) The Agency should assist the Commission and should be able to assist the Member States by providing information and analysis on third countries regarding the concept of safe country of origin and the concept of safe third country. When providing such information and analysis the Agency should report to the European Parliament and to the Council in accordance with this Regulation.

(19) In order to ensure a high degree of uniformity based on high protection standards as regards procedures for international protection, reception conditions and the assessment of protection needs across the Union, the Agency should organise and coordinate activities that promote the correct and effective implementation of Union law on asylum through tools of a non-binding nature. For that purpose, the Agency should develop operational standards, indicators and guidelines on asylum-related matters. The Agency should enable and promote the exchange of best practices among Member States.

(20) The Agency, in close cooperation with the Commission and without prejudice to the Commission’s responsibility as guardian of the Treaties, should monitor the operational and technical application of the CEAS with the aim of preventing or identifying possible shortcomings in the asylum and reception systems of the Member States and of assessing their capacity and preparedness to manage situations of disproportionate pressure in order to enhance the efficiency of those systems (the ‘monitoring mechanism’). The monitoring mechanism should be comprehensive, and it should be possible to base the monitoring on information provided by the Member State concerned, the information analysis on the situation of asylum developed by the Agency, on-site visits, including short-notice visits, case sampling and information provided by intergovernmental organisations or bodies, in particular the UNHCR, and other relevant organisations on the basis of their expertise. The Executive Director should provide for the possibility for the Member State concerned to comment on the draft findings of a monitoring exercise carried out as part of the monitoring mechanism and, subsequently, on the draft recommendations. The Executive Director should draw up the draft recommendations in consultation with the Commission. After taking into account the comments of the Member State concerned, the Executive Director should submit to the Management Board the findings of the monitoring exercise and the draft recommendations, outlining the measures to be taken by the Member State concerned, including with the assistance of the Agency, as necessary, to address any shortcomings or issues of capacity and preparedness. The draft recommendations should specify the time limits within which those measures should be taken. The Management Board should adopt the recommendations. The Member State concerned should be able to request assistance from the Agency for the implementation of the recommendations and can request specific financial support from relevant Union financial instruments.

(21) The monitoring exercise should take place in close collaboration with the Member State concerned, including as regards on-site visits and case sampling, where necessary. It is appropriate that case sampling consist of a selection of positive and negative decisions that cover a particular period of time and are relevant to the aspect of the CEAS that is being monitored. It is appropriate to base case sampling on objective indications, such as recognition rates. Case sampling is without prejudice to the competence of the Member States to decide on individual applications for international protection and is to be carried out in a manner that fully respects the principle of confidentiality.

(22) In order to focus the monitoring exercise on particular elements of the CEAS, the Agency should have the possibility to monitor thematic or specific aspects of the CEAS. Where the Agency initiates a monitoring exercise on thematic or specific aspects of the CEAS, it should ensure that all Member States are subject to that thematic or specific monitoring. However, in order to avoid duplication of the Agency’s work, it would not be appropriate to subject a Member State to a monitoring exercise on thematic or specific aspects of the CEAS in a year during which the operational and technical application of all aspects of the CEAS of that Member State is being monitored.

(23) Where the Member State concerned does not take the measures necessary to implement the recommendations adopted by the Management Board within the set time limit and, therefore, does not address the identified shortcomings in its asylum and reception systems or any issues of capacity and preparedness which result in serious consequences for the functioning of the CEAS, the Commission should, on the basis of its own assessment, adopt recommendations addressed to that Member State identifying the measures needed to remedy the situation, including, where necessary, specific measures to be taken by the Agency in support of that Member State. It should be possible for the Commission to organise on-site visits to the Member State concerned in order to verify the implementation of the recommendations. In its assessment, the Commission should consider the seriousness of the identified shortcomings in relation to their consequences for the functioning of the CEAS. Where, following the expiry of the time limit set in the recommendations, the Member State has not complied with the recommendations, the Commission should be able to make a proposal for a Council implementing act identifying measures to be taken by the Agency to support that Member State and requiring that Member State to cooperate with the Agency in the implementation of those measures.

(24) When setting up teams of experts for carrying out the monitoring exercise, the Agency should invite an observer from the UNHCR. The absence of such an observer does not prevent the teams from performing their tasks.

(25) To facilitate and improve the proper functioning of the CEAS and to assist Member States in implementing their obligations within the framework of the CEAS, the Agency should provide Member States with operational and technical assistance, in particular where their asylum and reception systems are subject to disproportionate pressure. Such assistance should be provided on the basis of an operational plan and through the deployment of asylum support teams. Asylum support teams should consist of experts from the Agency’s own staff, experts from Member States, experts seconded by Member States to the Agency or other experts not employed by the Agency with demonstrated relevant knowledge and experience in line with operational needs. It is important that the Agency only make use of such other experts not employed by it where it cannot otherwise ensure the proper and timely exercise of its tasks due to the lack of available experts from the Member States or the Agency’s own staff.

(26) The asylum support teams should be able to support Member States with operational and technical measures, including by providing expertise relating to the identification and registration of third-country nationals, interpreting services and information on countries of origin and on the handling and management of asylum cases, by assisting national authorities competent for examining applications for international protection and by assisting with the relocation or transfer of applicants for or beneficiaries of international protection. Arrangements for asylum support teams should be governed by this Regulation in order to ensure that they can be deployed effectively.

(27) Experts who participate in asylum support teams should complete the necessary training relevant to their duties and functions for their participation in operational activities. The Agency should, where necessary and in advance of or upon deployment, provide those experts with training specific to the operational and technical assistance provided in the Member State concerned (the ‘host Member State’). In order for experts participating in asylum support teams to be involved in facilitating the examination of applications for international protection, it is important that they demonstrate relevant experience of at least 1 year.

(28) To ensure the availability of experts for asylum support teams and to ensure that they can be immediately deployed as necessary, the asylum reserve pool should be established. The asylum reserve pool should constitute a reserve of experts from Member States amounting to a minimum of 500 persons.

(29) Where a Member State’s asylum and reception systems are subject to disproportionate pressure, the Agency should, at the request of that Member State or on its own initiative with the agreement of that Member State, be able to assist that Member State by means of a comprehensive set of measures, including the deployment of experts from the asylum reserve pool.

(30) In order to address a situation in which the asylum or reception system of a Member State is rendered ineffective to the extent of having serious consequences for the functioning of the CEAS and is subject to disproportionate pressure that places an exceptionally heavy and urgent demand on that system and the Member State concerned does not take sufficient action to address that pressure, including by not requesting operational and technical assistance or by not agreeing to an initiative of the Agency for such assistance, or the Member State concerned does not comply with the Commission’s recommendations following a monitoring exercise, the Commission should be able to propose to the Council an implementing act identifying the measures to be taken by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The power to adopt such an implementing act should be conferred on the Council due to the potentially politically sensitive nature of the measures to be decided and the possible impact which such measures might have on the tasks of the national authorities. The Agency should be able to intervene, on the basis of that implementing act, in support of a Member State where its asylum or reception system is rendered ineffective to the extent of having serious consequences for the functioning of the CEAS. Such an intervention by the Agency is without prejudice to any infringement procedure initiated by the Commission.

(31) To ensure that the asylum support teams, including experts deployed from the asylum reserve pool, are able to perform their tasks effectively with the means necessary, the Agency should be able to acquire or lease technical equipment. This should not, however, affect the obligation of host Member States to supply the facilities and equipment necessary for the Agency to be able to provide the required operational and technical assistance. Prior to acquiring or leasing equipment, the Agency should conduct a thorough needs and cost-benefit analysis.

(32) For Member States that are faced with specific and disproportionate pressure on their asylum and reception systems due, in particular, to their geographic or demographic situation, the Agency should support solidarity measures within the Union and perform its tasks and obligations with regard to the relocation or transfer of applicants for or beneficiaries of international protection within the Union, while ensuring that advantage is not taken of asylum and reception systems.

(33) Where a Member State faces specific and disproportionate migratory challenges at particular areas of the external borders, referred to as hotspot areas, it should be able to request that the Agency provide operational and technical assistance. In such cases, the Member State can rely on increased operational and technical reinforcement by migration management support teams composed of teams of experts from Member States deployed through the Agency, the European Border and Coast Guard Agency and the European Union Agency for Law Enforcement Cooperation (Europol), established by Regulation (EU) 2016/794 of the European Parliament and of the Council (6), or other relevant Union bodies, offices and agencies, as well as experts from the Agency’s staff and the European Border and Coast Guard Agency with the aim of managing such challenges. It is appropriate that the Agency assist the Commission with coordination among the different Union bodies, offices and agencies on the ground.

(34) In hotspot areas, the Member States cooperate, under the coordination of the Commission, with relevant Union bodies, offices and agencies. Union bodies, offices and agencies are to operate in accordance with their respective mandates and powers. The Commission, in cooperation with the relevant Union bodies, offices and agencies, is to ensure that activities in hotspot areas comply with relevant Union law.

(35) For the purpose of fulfilling its mission and to the extent required for the accomplishment of its tasks, the Agency should cooperate with Union bodies, offices and agencies, in particular the bodies, offices and agencies in the field of justice and home affairs, in matters covered by this Regulation in the framework of working arrangements concluded in accordance with Union law and policy. Those working arrangements should receive the Commission’s prior approval.

(36) It is important that the Agency cooperate with the European Migration Network, established by Council Decision 2008/381/EC (7), to ensure synergies and avoid duplication of activities.

(37) The Agency should cooperate with international organisations, in particular the UNHCR, in matters covered by this Regulation in the framework of working arrangements so as to benefit from their expertise and support. To that end, the roles of the UNHCR and other relevant international organisations should be fully recognised, and those organisations should be involved in the work of the Agency. Those working arrangements should receive the Commission’s prior approval.

(38) The Agency should facilitate operational cooperation between Member States and third countries in matters related to its activities and to the extent necessary for the fulfilment of its tasks. The Agency should also be able to cooperate with the authorities of third countries in matters covered by this Regulation in the framework of working arrangements, which should receive the Commission’s prior approval. The Agency should act in accordance with the Union’s external policy, and it is appropriate that it integrate its external activities in broader strategic cooperation with third countries. It does not, under any circumstances, fall within the mandate of the Agency to formulate independent external policy. In their cooperation with third countries, the Agency and the Member States should respect the fundamental rights set out in the Charter of Fundamental Rights of the European Union (the ‘Charter’) and should comply with norms and standards which form part of Union law, including where the activities are carried out on the territory of third countries.

(39) The Agency should be able to deploy experts from its own staff as liaison officers to relevant third countries to facilitate cooperation with third countries on asylum-related matters. Prior to the deployment of a liaison officer, the Agency should assess the human rights situation in the country concerned in order to ensure that that country complies with non-derogable human rights standards.

(40) The Agency should maintain a close dialogue with civil society with a view to exchanging information and pooling knowledge in the field of asylum. The Agency should set up a Consultative Forum, which should constitute a mechanism for the exchange of information and the sharing of knowledge on asylum. The Consultative Forum should advise the Executive Director and the Management Board in matters covered by this Regulation. It is important that the composition and size of the Consultative Forum be determined with due regard to the efficiency of its activities, and that the Agency allocate adequate human and financial resources to the Consultative Forum.

(41) This Regulation respects the fundamental rights and observes the principles recognised, in particular, by international and Union law, including the Charter. All activities of the Agency should be carried out in a manner that fully respects those fundamental rights and principles, in particular the right to asylum, the principle of non-refoulement, the right to respect for private and family life, including family reunification under Union law, the rights of the child, the right to protection of personal data and the right to an effective remedy and to a fair trial. The rights of the child and the special needs of persons in a vulnerable situation should always be taken into account. The Agency should therefore carry out its tasks with respect for the best interests of the child, in compliance with the United Nations Convention on the Rights of the Child, taking due account of the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity.

(42) Where the operational and technical assistance provided by the Agency concerns persons in a vulnerable situation, that assistance should be adapted to the situation of those persons in accordance with the requirements laid down by Union and national law on asylum.

(43) The Agency should adopt and implement a fundamental rights strategy to monitor and ensure the protection of fundamental rights.

(44) An independent fundamental rights officer should be appointed to ensure that the Agency complies with fundamental rights in the course of its activities and to promote respect for fundamental rights within the Agency in accordance with the Charter, including by making a proposal for the Agency’s fundamental rights strategy and ensuring its implementation, and by handling complaints received by the Agency under the Agency’s complaints mechanism. To that end, it is important that the Agency provide the fundamental rights officer with adequate resources and staff corresponding to its mandate and size.

(45) The Agency should establish a complaints mechanism under the responsibility of the fundamental rights officer. The aim of the complaints mechanism should be to ensure that fundamental rights are respected in all the activities of the Agency. The complaints mechanism should be an administrative mechanism. The fundamental rights officer should be responsible for handling complaints received by the Agency in accordance with the right to good administration. It is important that the complaints mechanism be effective, ensuring that complaints are properly followed up. The complaints mechanism is without prejudice to access to administrative and judicial remedies and does not constitute a requirement for seeking such remedies. The complaints mechanism should not constitute a mechanism for challenging any decision of a national authority on individual applications for international protection. It is essential that Member States conduct criminal investigations, where necessary. In order to increase transparency and accountability, the Agency should report on the complaints mechanism in its annual report on the situation of asylum in the Union. It is important that the Agency’s annual report on the situation of asylum in the Union cover, in particular, the number of complaints it has received, the types of fundamental rights violations involved, the operations concerned, where possible, and the follow-up measures taken by the Agency and Member States.

(46) The Commission and the Member States should be represented on the Agency’s Management Board in order to exercise a policy and political oversight over its workings. The Management Board should give general orientation for the Agency’s activities and should ensure that the Agency performs its tasks. Where possible, it is advisable that the Management Board consist of the operational heads of the Member States’ asylum administrations or their representatives and that all parties represented in the Management Board make an effort to limit turnover of their representatives in order to ensure continuity of its work. The Management Board should be given the necessary powers, in particular to establish the budget, verify its execution, adopt the appropriate financial rules, establish transparent working procedures for decision-making by the Agency and appoint an Executive Director and Deputy Executive Director. It is appropriate that the Agency be governed and operate in line with the principles of the Common Approach on Union decentralised agencies adopted on 19 July 2012 by the European Parliament, the Council and the Commission.

(47) The Agency should be independent as regards operational and technical matters, and it should enjoy legal, administrative and financial autonomy. To that end, it is necessary and appropriate that the Agency be an agency of the Union having legal personality and exercising the powers conferred upon it by this Regulation.

(48) The Agency should report on its activities to the European Parliament and to the Council.

(49) In order to guarantee its autonomy, the Agency should have its own budget, most of which should come from a contribution from the Union. The financing of the Agency will be subject to an agreement by the budgetary authority as set out in point 27 of the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources (8). The Union budgetary procedure should be applicable to the Union’s contribution and to any grant chargeable to the general budget of the Union. The Court of Auditors should audit the Agency’s accounts.

(50) It is important that the consolidated annual report on the Agency’s activities set out the proportion of the expenditure for each of the Agency’s main activities.

(51) Financial resources made available by the Agency in the form of grants, delegated agreements or contracts in accordance with this Regulation are not to result in double financing with other national, Union or international financial resources.

(52) Commission Delegated Regulation (EU) 2019/715 (9) should apply to the Agency.

(53) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (10) should apply without restriction to the Agency, which should accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF) (11).

(54) Regulation (EC) No 1049/2001 of the European Parliament and of the Council (12) should apply to the Agency.

(55) Any processing of personal data by the Agency within the framework of this Regulation should be conducted in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (13) and should respect the principles of necessity and proportionality. The Agency should only process personal data in order to perform its tasks relating to the provision of operational and technical assistance to Member States, to resettlement, to the facilitation of the exchange of information with Member States, the European Border and Coast Guard Agency, Europol or the European Union Agency for Criminal Justice Cooperation (Eurojust), established by Regulation (EU) 2018/1727 of the European Parliament and of the Council (14), and to the analysis of information on the situation of asylum, for the purpose of carrying out case sampling for the purposes of the monitoring exercise and of potentially handling applications for international protection, in the framework of information obtained in the course of performing its tasks in migration management support teams at hotspot areas, and for administrative purposes. Any processing of personal data should be strictly limited to personal data necessary for those purposes and should respect the principle of proportionality. Any processing of retained personal data for purposes other than those set out in this Regulation should be prohibited.

(56) Any personal data that the Agency processes, except those processed for administrative purposes, should be deleted after 30 days. A longer storage period is not necessary for the purposes for which the Agency processes personal data within the framework of this Regulation.

(57) Personal data of a sensitive nature which are necessary for assessing whether a third-country national qualifies for international protection should only be processed for the purpose of facilitating the examination of an application for international protection, for the purpose of providing the necessary assistance in a procedure for international protection or for the purposes of resettlement. Such processing should be limited to what is strictly necessary for the purpose of conducting a complete assessment of an application for international protection in the interest of the applicant.

(58) Regulation (EU) 2016/679 of the European Parliament and of the Council (15) applies to the processing of personal data by the Member States carried out in the application of this Regulation unless such processing is carried out by competent authorities of the Member States for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

(59) Directive (EU) 2016/680 of the European Parliament and of the Council (16) applies to the processing of personal data by competent authorities of the Member States for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security, pursuant to this Regulation.

(60) The rules set out in Regulation (EU) 2016/679 regarding the protection of the rights and freedoms of natural persons with regard to the processing of personal data, in particular their right to the protection of personal data which concerns them, should be specified in respect of the responsibility for the processing of the data, of safeguarding the rights of data subjects and of the supervision of data protection, in particular as far as certain sectors are concerned.

(61) Since the objectives of this Regulation, namely to facilitate the implementation and improve the functioning of the CEAS, to strengthen practical cooperation and information exchange among Member States on asylum-related matters, to promote Union law on asylum and operational standards to ensure a high degree of uniformity as regards procedures for international protection, reception conditions and the assessment of protection needs across the Union, to monitor the operational and technical application of the CEAS, and to provide increased operational and technical assistance to Member States for the management of their asylum and reception systems, in particular to Member States subject to disproportionate pressure on their asylum and reception systems, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(62) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(63) In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(64) Taking into account the fact that Denmark has until now contributed to the practical cooperation between Member States within the area of asylum, the Agency should facilitate operational cooperation with Denmark. To that end, a representative of Denmark should be invited to participate in all the meetings of the Management Board, without the right to vote.

(65) To fulfil its purpose, the Agency should be open to participation by countries which have concluded agreements with the Union by virtue of which they have adopted and apply Union law in the field covered by this Regulation, in particular Iceland, Liechtenstein, Norway and Switzerland. Consequently, and having regard to the fact that Liechtenstein, Norway and Switzerland participate in the activities of EASO on the basis of arrangements concluded by those countries with the Union concerning their participation in EASO, Iceland, Liechtenstein, Norway and Switzerland should be able to participate in the activities of the Agency and contribute to the practical cooperation between Member States and the Agency in accordance with the terms and conditions established by existing or new arrangements. To that end, representatives of Iceland, Liechtenstein, Norway and Switzerland should be allowed to participate in the meetings of the Management Board as observers.

(66) This Regulation does not affect the competence of national asylum authorities to decide on individual applications for international protection.

(67) This Regulation aims to amend and expand the provisions of Regulation (EU) No 439/2010. Since the amendments to be made are of substantial number and nature, that Regulation should, in the interests of clarity, be replaced in its entirety in relation to the Member States bound by this Regulation. The Agency, established by this Regulation, should replace and assume the functions of EASO, established by Regulation (EU) No 439/2010, which, as a consequence, should be repealed. With regard to the Member States bound by this Regulation references to the repealed Regulation should be construed as references to this Regulation.

(68) The provisions of this Regulation on the monitoring mechanism for the operational and technical application of the CEAS are linked, inter alia, with the system for determining the Member State responsible for examining applications for international protection established by Regulation (EU) No 604/2013. Since the system as established by that Regulation might change, it is deemed necessary to defer the application of those provisions to a later date, namely 31 December 2023. Moreover, the provisions on the monitoring mechanism which relate to the adoption of recommendations addressed to the Member State concerned and the provisions on situations of disproportionate pressure or the ineffectiveness of the asylum and reception systems are more directly linked to, and affected by, the responsibility aspects of the system established by Regulation (EU) No 604/2013. Since that Regulation might be replaced by a new legal act currently under negotiation, and given the importance of the relevant aspects of such a new legal act, those provisions should only apply from the date on which that Regulation is replaced, unless that Regulation is replaced before 31 December 2023, in which case those provisions should apply from 31 December 2023.

(69) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (17) and delivered an opinion on 21 September 2016 (18).