Considerations on COM(2016)270 - Criteria and mechanisms for determining the Member State responsible for an application for international protection by a third-country national or a stateless person (recast) - EU monitor

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Considerations on COM(2016)270 - Criteria and mechanisms for determining the Member State responsible for an application for international protection by a third-country national or a stateless person (recast)

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

 
 
^ 604/2013 recital 1 (adapted)

(1)          A number of substantive changes are to be made to Council Regulation (EC) No

343/2003 of 18 February 2003 establishing the criteria and mechanisms for

determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national17 E> Regulation (EU) No 604/2013 of the European Parliament and of the Counci l18 O . In the interests of clarity, that Regulation should be recast.

^ 604/2013 recital 2

(2)      A common policy on asylum, including a Common European Asylum System

(CEAS), is a constituent part of the European Union’s objective of progressively

17 18


OJ L 50, 25.2.2003,

Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country

establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union.

* 604/2013 recital 3

(3)      The European Council, at its special meeting in Tampere on 15 and 16 October 1999,

agreed to work towards establishing the CEAS, based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 (‘the Geneva Convention’), thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without the responsibility criteria laid down in this Regulation being affected, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals.

^ 604/2013 recital 4

(4)      The Tampere conclusions also stated that the CEAS should include, in the short-term,

a clear and workable method for determining the Member State responsible for the examination of an asylum application.

^ 604/2013 recital 5

(5)      Such a method should be based on objective, fair criteria both for the Member States

and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection.

* 604/2013 recital 6

(6)      The first phase in the creation of a CEAS that should lead, in the longer term, to a

common procedure and a uniform status, valid throughout the Union, for those granted international protection, has now been completed. The European Council of 4 November 2004 adopted The Hague Programme which set the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010. In this respect, The Hague Programme invited the European Commission to conclude the evaluation of the first-phase legal instruments and to submit the second-phase instruments and measures to the European Parliament and to the Council with a view to their adoption before 2010.

* 604/2013 recital 7 ^ new

(7)             In the Stockholm Programme, the European Council reiterated its commitment to the

objective of establishing a common area of protection and solidarity in accordance with Article 78 of the Treaty on the Functioning of the European Union (TFEU), for those granted international protection, by 2012 at the latest. Furthermore it emphasised that the Dublin system remains a cornerstone in building the CEAS, as it clearly allocates responsibility among Member States for the examination of applications for international protection. ^ In May 2015 the Commission indicated in its Communication on the European Agenda on Migration that the Dublin Regulation would be evaluated and, if necessary, that a proposal for its revision would be made, in particular to achieve a fairer distribution of asylum seekers in Europe ^ .

^ 604/2013 recital 8

(8)      The resources of the European Asylum Support Office (EASO), established by

Regulation (EU) No 439/2010 of the European Parliament and of the Council19, should be available to provide adequate support to the relevant services of the Member States responsible for implementing this Regulation. In particular, EASO should provide solidarity measures, such as the Asylum Intervention Pool with asylum support teams, to assist those Member States which are faced with particular pressure and where applicants for international protection (‘applicants’) cannot benefit from adequate standards, in particular as regards reception and protection.

Q

(9)      The European Union Agency for Asylum should provide adequate support in the

implementation of this Regulation, in particular by establishing the reference key for the distribution of asylum seekers under the corrective allocation mechanism, and by adapting the figures underlying the reference key annually, as well as the reference key based on Eurostat data.

* 604/2013 recital 9 (adapted) ^ new

(10)         In the light of the results of the evaluation underta ken of the implem entation of

\S> Regulation (EU) 604/2013 O the first- phase in strum ents , it is appropriate, at this stage, to confirm the principles underlying Regulation (EC) No 343/2003 (EU) No 604/2013, while making the necessary improvements, in the light of experience, to the effectiveness of the Dublin system and the protection granted to applicants under that system. Given that a well functioning Dublin system is essential for the CEAS, its principles and functioning should be reviewed as other co mponents of the CEAS and

Union solidarity tools are built up. A com prehensive ‘fitness check’ should be


9

foreseen by conducting an evidence based review covering the legal, economic and

social effects of the Dublin system,.....uding its effects on funda mental ri ghts.

^Based on this evaluation and on consultation with Member States, the European Parliament and other stakeholders, it is also considered appropriate to establish in the Regulation measures required for a fair share of responsibility between Member States for applications for international protection, in particular to ensure that a disproportionate burden is not placed upon some Member States. ^

^ 604/2013 recital 10

(11)     In order to ensure equal treatment for all applicants and beneficiaries of international

protection, and consistency with the current Union asylum acquis, in particular with Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted20, the scope of this Regulation encompasses applicants for subsidiary protection and persons eligible for subsidiary protection.

.Q,

(12)     In order to ensure that beneficiaries of international protection who entered the

territory of another Member State than the Member State responsible without fulfilling the conditions of stay in that other Member State are taken back by the Member State responsible, it is necessary to encompass beneficiaries of international protection in the scope of this Regulation.

* 604/2013 recital 11

(13)     Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013

laying down standards for the reception of applicants for international protection21 should apply to the procedure for the determination of the Member State responsible as regulated under this Regulation, subject to the limitations in the application of that Directive.

Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ L 337, 20.12.2011, p. 9).

See page 96 of this Official Journal. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international

new

20

21

* 604/2013 recital 12

(14)     Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013

on common procedures for granting and withdrawing international protection22 should apply in addition and without prejudice to the provisions concerning the procedural safeguards regulated under this Regulation, subject to the limitations in the application of that Directive.

* 604/2013 recital 13

(15)     In accordance with the 1989 United Nations Convention on the Rights of the Child

and with the Charter of Fundamental Rights of the European Union, the best interests of the child should be a primary consideration of Member States when applying this Regulation. In assessing the best interests of the child, Member States should, in particular, take 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, including his or her background. In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their particular vulnerability.

^ 604/2013 recital 14

(16)     In accordance with the European Convention for the Protection of Human Rights and

Fundamental Freedoms and with the Charter of Fundamental Rights of the European Union, respect for family life should be a primary consideration of Member States when applying this Regulation.

U> new

(17)     In order to prevent that applicants with inadmissible claims or who are likely not to be

in need of international protection, or who represent a security risk are transferred among the Member States, it is necessary to ensure that the Member where an application is first lodged verifies the admissibility of the claim in relation to the first country of asylum and safe third country, examines in accelerated procedures applications made by applicants coming from a safe country of origin designated on the EU list, as well as applicants presenting security concerns.

^ 604/2013 recital 15

(18)     The processing together of the applications for international protection of the members

of one family by a single Member State makes it possible to ensure that the

See page 60 of this Official Journal. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection

22

applications are examined thoroughly, the decisions taken in respect of them are consistent and the members of one family are not separated.

(19)     The definition of a family member in this Regulation should include the sibling or

siblings of the applicant. Reuniting siblings is of particular importance for improving the chances of integration of applicants and hence reducing secondary movements. The scope of the definition of family member should also reflect the reality of current migratory trends, according to which applicants often arrive to the territory of the Member States after a prolonged period of time in transit. The definition should therefore include families formed outside the country of origin, but before their arrival on the territory of the Member State. This limited and targeted enlargement of the scope of the definition is expected to reduce the incentive for some secondary movements of asylum seekers within the EU.

V 604/2013 recital 16 ^ new

(20)         In order to ensure full respect for the principle of family unity and for the best inte rests

of the child, the existence of a relationship of dependency between an applicant and

his or her child, sibling or parent on account of the applicant’s pregnancy or maternity,

state of health or old age, should become a binding responsibility criterion. When the applicant is an unaccompanied minor, the presence of a family member or relative on the territory of another Member State who can take care of him or her should also become a binding responsibility criterion. ^ In order to discourage secondary movements of unaccompanied minors, which are not in their best interests, in the absence of a family member or a relative, the Member State responsible should be that where the unaccompanied minor first has lodged his or her application for international protection, unless it is demonstrated that this would not be in the best inte rests of the child. Before tr ansferring an unaccompanied minor to another Member State, the transferring Member State should make sure that that Member State will take all necessary and appropriate measures to ensure the adequate protection of the child, and in particular the prompt appointment of a representative or representatives tasked with safeguarding respect for all the rights to which they are entitled. Any decision to transfer an unaccompanied minor should be preceded by an assessment of

with the necessary qualifications and expertise.

his/her best interests by staff w

* 604/2013 recital 17 (adapted) ^ new

(21)         ^ Assuming responsibility by a Member State for examining an application lodged

with it in cases when such examination is not its responsibility under the criteria laid down in this Regulation may undermine the effectiveness and susta in abi lity of the system and should be exceptional. ^ Any \Z> Therefore, a <3 Member State should be able to derogate from the responsibility criteria, in par ticular ^ only ^ on humanitarian and com passionate grounds, ^ in particular for family reasons, before a

Member State responsible has been determined <=■ in order to bring together family

<=1

relatives or any other family relations

and examine an application for international protection lodged with it or with another Member State, even if such examination is not its responsibility under the binding criteria laid down in this Regulation.

.Q,

(22)     In order to ensure that the aims of this Regulation are achieved and obstacles to its

application are prevented, in particular in order to avoid absconding and secondary movements between Member States, it is necessary to establish clear obligations to be complied with by the applicant in the context of the procedure, of which he or she should be duly informed in a timely manner. Violation of those legal obligations should lead to appropriate and proportionate procedural consequences for the applicant and to appropriate and proportionate consequences in terms of his or her reception conditions. In line with the Charter of Fundamental Rights of the European Union, the Member State where such an applicant is present should in any case ensure that the immediate material needs of that person are covered.

^ 604/2013 recital 18 (adapted) ^ new

(23)         A personal interview with the applicant should be organised in order to facilitate the

determination of the Member State responsible for examining an application for international protection ^ unless the applicant has absconded or the information provided by the applicant is sufficient for determining the Member State responsible ^. As soon as the application for international protection is lodged, the applicant should be informed E/ in particular nS of the application of this Regulation, *-$ of the lack of choice as to which Member State will examine his or her asylum application; of his or her obligations under this Regulation and of the consequences of not complying with them ^ and of the possibility, during the interview, of providing information regarding the presence of family members, relatives or any other family

relations in the Member States, in order to fac il itate the procedure for determining the Member State responsible.

^ 604/2013 recital 19 ^ new

(24)         In order to guarantee effective protection of the rights of the persons concerned, legal

safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. ^ An effective remedy should also be provided in situations when no transfer decision s taken but the applicant claims that another Member State is responsible on the basis that he has a family member or, for unaccompanied minors, a relative in another Member State. ^ In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the

new

application of this Regulation and of the legal and factual situation in the Member State to which the applicant s transferred ^ The scope of the effective remedy should be limited to an assessment of whether applicants fundamental rights to respect of family life, the rights of the child, or the prohibition of inhuman and degrading treatment risk to be infringed upon. ^

.Q,

(25)     The Member State which is determined as responsible under this Regulation should remain responsible for examination of each and every application of that applicant, including any subsequent application, in accordance with Article 40, 41 and 42 of Directive 2013/32/EU, irrespective of whether the applicant has left or was removed from the territories of the Member States. Provisions in Regulation (EU) 604/2013 which had provided for the cessation of responsibility in certain circumstances, including when deadlines for the carrying out of transfers had elapsed for a certain period of time, had created an incentive for absconding, and should therefore be removed.

(26)     In order to ensure the speedy determination of responsibility and allocation of applicants for international protection between Member States, the deadlines for making and replying to requests to take charge, for making take back notifications, and for carrying out transfers, as well as for making and deciding on appeals, should be streamlined and shortened to the greatest extent possible.

^ 604/2013 recital 20

(27)     The detention of applicants should be applied in accordance with the underlying

principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with Article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, Member States should apply the provisions of Directive 2013/33/EU also to persons detained on the basis of this Regulation.

* 604/2013 recital 21

(28)     Deficiencies in, or the collapse of, asylum systems, often aggravated or contributed to

by particular pressures on them, can jeopardise the smooth functioning of the system put in place under this Regulation, which could lead to a risk of a violation of the rights of applicants as set out in the Union asylum acquis and the Charter of Fundamental Rights of the European Union, other international human rights and refugee rights.

new

.n,

(29)     Proper registration of all asylum applications in the EU under a unique application number should help detect multiple applications and prevent irregular secondary movements and asylum shopping. An automated system should be established for the purpose of facilitating the application of this Regulation. It should enable registration of asylum applications lodged in the EU, effective monitoring of the share of applications of each Member State and a correct application of the corrective allocation mechanism.

(30)     The European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice established by Regulation (EU) No 1077/201123 should be responsible for the preparation, development and the operational management of the central system and the communication infrastructure between the central system and the national infrastructures.

^ 604/2013 recital 22 ^ new

(31) A process for early warning, preparedness and m anage m ent of asylum cr ises ser ving

to prevent a deterioration in, or the collapse of, asylum systems, with EASO playing a key role using its powers under Regulation (EU) No 439/2010, should be established in order to ensure robust cooperation within the framework of thi s Regulation and to develop mutual trust among Member States with respect to asylum policy. Such a process should ensure that the Union is aler ted as soon a s possible when there is a concern that the smooth functioning of the system set up by this Regulation is being jeopardised as a result of particular pressure on, and/or deficiencies in, the asylum systems of one or more Member States. Such a process would allow the Union to promote preventive measures at an early stage and pay the appropriate political attention to such situations. Soli darity, which is a pivotal element in the CEAS, goes hand in hand with mutual trust. By enhancing such trust, the process for early warning, preparedness and management of asylum crises could improve the steering of concrete measures of genuine and practical solidarity towards Member States, in order to assist the affected Member States in general and the applicants in particular. In accordance with Article 80 TFEU of the Treaty, Union acts should, whenever necessary, contain appropriate measures to give effect to the principle of solidarity., ^ A corrective allocation mechanism should be established in order to ensure a fair sharing of responsibility between Member States and a swift access of applicants to procedures for granting international protection in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is responsible under this Regulation. ^ and the process s hould be accom panie d by such measures. The conclusions on a Common Framework for genuine and practical

solidarity towards Member States facing particular pressures on their asylum system s,

including through mixed migration flows, adopted by the Council on 8 March 2012,

provide for a ‘tool box’ of existing and potential new measures, which should be taken

Regulation (EU) No 1077/2011 of the European Parliament and of the council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of

new

23

into account in the context of a mechanism for early warning, preparedness and crisis management.

(32)     A key based on the size of the population and of the economy of the Member States should be applied as a point of reference in the operation of the corrective allocation mechanism in conjunction with a threshold, so as to enable the mechanism to function as a means of assisting Member States under disproportionate pressure. The application of the corrective allocation for the benefit of a Member State should be triggered automatically where the number of applications for international protection for which a Member State is responsible exceeds 150% of the figure identified in the reference key. In order to comprehensively reflect the efforts of each Member State, the number of persons effectively resettled to that Member State should be added to the number of applications for international protection for the purposes of this calculation.

(33)     When the allocation mechanism applies, the applicants who lodged their applications in the benefitting Member State should be allocated to Member States which are below their share of applications on the basis of the reference key as applied to those Member States. Appropriate rules should be provided for in cases where an applicant may for serious reasons be considered a danger to national security or public order, especially rules as regards the exchange of information between competent asylum authorities of Member States. After the transfer, the Member State of allocation should determine the Member State responsible, and should become responsible for examining the application, unless the overriding responsible criteria, related in particular to the presence of family members, determine that a different Member State should be responsible.

(34)     Under the allocation mechanism, the costs of transfer of an applicant to the Member State of allocation should be reimbursed from the EU budget.

(35)     A Member State of allocation may decide not to accept the allocated applicants during a twelve months-period, in which case it should enter this information in the automated system and notify the other Member States, the Commission and the European Union Agency for Asylum. Thereafter the applicants that would have been allocated to that Member State should be allocated to the other Member States instead. The Member State which temporarily does not take part in the corrective allocation should make a solidarity contribution of EUR 250,000 per applicant not accepted to the Member State that was determined as responsible for examining those applications. The Commission should lay down the practical modalities for the implementation of the solidarity contribution mechanism in an implementing act. The European Union Agency for Asylum will monitor and report to the Commission on a yearly basis on the application of the financial solidarity mechanism.

* 604/2013 recital 22

Member States should collaborate with EASO in the gathering of information concerning their ability to manage particular pressure on their asylum and reception systems, in particular

within the framework of the application of this Regulation. EASO should regularly report on the information gathered in accordance with Regulation (EU) No 439/2010.

* 604/2013 recital 24

(36)     In accordance with Commission Regulation (EC) No 1560/200324, transfers to the

Member State responsible for examining an application for international protection may be carried out on a voluntary basis, by supervised departure or under escort. Member States should promote voluntary transfers by providing adequate information to the applicant and should ensure that supervised or escorted transfers are undertaken in a humane manner, in full compliance with fundamental rights and respect for human dignity, as well as the best interests of the child and taking utmost account of developments in the relevant case law, in particular as regards transfers on humanitarian grounds.

^ 604/2013 recital 25

(37)     The progressive creation of an area without internal frontiers in which free movement

of persons is guaranteed in accordance with the TFEU and the establishment of Union policies regarding the conditions of entry and stay of third-country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility criteria in a spirit of solidarity.

(38)     The [General Data Protection Regulation (EU) .../2016] applies to the processing of personal data by the Member States under this Regulation from the date set out in that Regulation; until this date Directive 95/46/EC applies. Member States should implement appropriate technical and organisational measures to ensure and be able to demonstrate that processing is performed in accordance with that Regulation and the provisions specifying its requirements in this Regulation. In particular those measures should ensure the security of personal data processed under this Regulation and in particular to prevent unlawful or unauthorised access or disclosure, alteration or loss of personal data processed. The competent supervisory authority or authorities of each Member State should monitor the lawfulness of the processing of personal data by the authorities concerned, including of the transmission to and from the automated system and to the authorities competent for carrying out security checks.

(39)     The processing of personal data by the European Union Agency for Asylum should be subject to the monitoring of the European Data Protection Supervisor in accordance with Regulation (EC) No 45/2001 and the provisions on data protection laid down in [Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010].


24

I * 604/2013 recital 26 (adapted)       |

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data25 applies to the processing of personal data by the Member States under this Regulation.

^ 604/2013 recital 27

The exchange of an applicant’s personal data, including sensitive data on his or her health, prior to a transfer, will ensure that the competent asylum authorities are in a position to provide applicants with adequate assistance and to ensure continuity in the protection and rights afforded to them. Special provisions should be made to ensure the protection of data relating to applicants involved in that situation, in accordance with Directive 95/46/EC.

25 26

^ 604/2013 recital 28

(40)     The application of this Regulation can be facilitated, and its effectiveness increased,

by bilateral arrangements between Member States for improving communication between competent departments, reducing time limits for procedures or simplifying the processing of requests to take charge or take back, or establishing procedures for the performance of transfers.

^ 604/2013 recital 29

(41)     Continuity between the system for determining the Member State responsible

established by Regulation (EC) No 343/2003 (EU) No 604/2013 and the system established by this Regulation should be ensured. Similarly, consistency should be ensured between this Regulation and Regulation [Proposal for a Regulation recasting Regulation (EU) No 603/2013 of the European Parliament and of the Council] of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law

enforcement

purposes26.

OJ L 281, 23.11.1995, p. 31.

See page 1 of this Official Journal. Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law

.n,

(42)     A network of competent Member State authorities should be set up and facilitated by

the European Union Agency for Asylum to enhance practical cooperation and information sharing on all matters related to the application of this Regulation, including the development of practical tools and guidance.

* 604/2013 recital 30

(43)     The operation of the Eurodac system, as established by Regulation [Proposal for a

Regulation recasting Regulation (EU) No 603/2013 of the European Parliament and of the Council], should facilitate the application of this Regulation.

^ 604/2013 recital 31

(44)     The operation of the Visa Information System, as established by Regulation (EC) No

767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas27, and in particular the implementation of Articles 21 and 22 thereof, should facilitate the application of this Regulation.

* 604/2013 recital 32

(45)     With respect to the treatment of persons falling within the scope of this Regulation,

Member States are bound by their obligations under instruments of international law, including the relevant case-law of the European Court of Human Rights.

* 604/2013 recital 33

(46)     In order to ensure uniform conditions for the implementation of this Regulation,

implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers28.


for the operational management of large-scale IT systems in the area of freedom, security and

(OJ L 180, 29.6.2013, p. 1).

Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning

the Visa Information System (VIS) and the exchange of data between Member States on short-stay

visas (OJ L 218, 13.8.2008, p. 60).

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011

laying down the rules and general principles concerning mechanisms for control by the Member States

new

2

28

* 604/2013 recital 34 (adapted) ^ new

(47)          The examination procedure should be used for the adoption of a common leaflet on

Dublin/Eurodac, as well as a specific leaflet for unaccompanied minors; of a standard form for the exchange of relevant information on unaccompanied minors; of uniform conditions for the consultation and exchange of information on minors and dependent persons; of uniform conditions on the preparation and submission of take charge E/ requests nS and take back ^ notifications ^ re quests; of two lists of relevant elements of proof and circumstantial evidence, and the periodical revision thereof; of a laissez passer; of uniform conditions for the consultation and exchange of information regarding transfers; of a standard form for the exchange of data before a transfer; of a common health certificate; of uniform conditions and practical arrangements for the

exchange of information on a person’s health data before a transfer, and of secure

electron c transmission channels for the transmission of requests.

| ^ 604/2013 recital 35 (adapted)        |

(48)         In order to provide for supplementary rules, the power to adopt acts in accordance

with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the identification of family members or relatives of an unaccompanied minor; the criteria for establishing the existence of proven family links; the criteria for assessing the capacity of a relative to take care of an unaccompanied minor, including where family members, siblings or relatives of the unaccompanied minor stay in more than one Member State; the elements for assessing a dependency link; the criteria for assessing the capacity of a person to take care of a dependent person and the elements to be taken into account in order to assess the inability to travel for a significant period of time. In exercising its powers to adopt delegated acts, the Commission shall not exceed the scope of the best interests of the child as provided for under Article 68(3) of this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level E/ and that those consultations be conducted in accordance with the principles laid down in the Interi nstitution al Agreement on Better Law-Making of 13 April 2016 O. \E> In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and Council receive all documents at the same time as Member States experts, and their experts systematically have access to meetings of Commission expert groups dealing

with the preparation of delegated acts.


The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

* 604/2013 recital 36

(49)     In the application of this Regulation, including the preparation of delegated acts, the

Commission should consult experts from, among others, all relevant national authorities.

* 604/2013 recital 37

(50)     Detailed rules for the application of Regulation (EC) No 343/2003 (EU) No 604/2013

have been laid down by Regulation (EC) No 1560/2003. Certain provisions of Regulation (EC) No 1560/2003 as amended by Regulation 118/2014 should be incorporated into this Regulation, either for reasons of clarity or because they can serve a general objective. In particular, it is important, both for the Member States and the applicants concerned, that there should be a general mechanism for finding a solution in cases where Member States differ over the application of a provision of this Regulation. It is therefore justified to incorporate the mechanism provided for in Regulation (EC) No 1560/2003 for the settling of disputes on the humanitarian clause into this Regulation and to extend its scope to the entirety of this Regulation.

* 604/2013 recital 38

(51)     The effective monitoring of the application of this Regulation requires that it be

evaluated at regular intervals.

.n,

(52)     In order to assess whether the corrective allocation mechanism in this Regulation is

meeting the objective of ensuring a fair sharing of responsibility between Member States and of relieving disproportionate pressure on certain Member States, the Commission should review the functioning of the corrective allocation mechanism and in particular verify that the threshold for the triggering and cessation of the corrective allocation effectively ensures a fair sharing of responsibility between the Member States and a swift access of applicants to procedures for granting international protection in situations when a Member State is confronted with a disproportionate number of applications for international protection for which it is responsible under this Regulation.

^ 604/2013 recital 39

(53)     This Regulation respects the fundamental rights and observes the principles which are

acknowledged, in particular, in the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof. This Regulation should therefore be applied accordingly.

^ 604/2013 rectal 40

(54)     Since the objective of this Regulation, namely the establishment of criteria and

mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-

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country national or a stateless person, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, 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 that objective.

^ 604/2013 recital 41

In accordance with Article 3 and Article 4a(1) 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, those Member States have notified their wish to take part in the adoption and application of this Regulation.

.Q.

(55)     [In accordance with Article 3 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 Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States have notified their wish to take part in the adoption and application of this Regulation]

OR

(56)     [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 Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Regulation and are not bound by it or subject to its application.]

OR

(53)[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 Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(54) In accordance with Article 3 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 Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified (, by letter of ...,) its wish to take part in the adoption and application of this Regulation.]

OR

(53) In accordance with Article 3 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 Treaty on European Union and to the Treaty on the Functioning of the

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European Union, the United Kingdom has notified (, by letter of ...,) its wish to take part in the adoption and application of this Regulation.

(54) 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 Treaty on European Union and to the Treaty on the Functioning of the European Union, 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.]

* 604/2013 recital 42

(57)     In accordance with Articles 1 and 2 of 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,

* 604/2013 (adapted) ^ new