# EUR-Lex - 52014PC0382 - EN

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# 52014PC0382

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 604/2013 as regards determining the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, sibling or relative legally present in a Member State /* COM/2014/0382 final - 2014/0202 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

· 
Grounds for the proposal

This proposal is an amendment of Article 8,
paragraph 4 of Regulation (EU) No 604/2013 of the European Parliament and of
the Council 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[1]
(hereafter: the Dublin III Regulation).

During the negotiations on the Dublin III
Regulation, the co-legislators agreed to leave the issue of unaccompanied
minors who are applicants for international protection in the European Union
and who have no family member, a sibling or a relative present in the territory
of the Member States open and the related provision - Article 8(4) - essentially
unchanged (i.e. reflecting the text of Article 6, second paragraph, of Council
Regulation (EC) No 343/2003/EC of 18 February 2003 on 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 national (hereafter:
the Dublin Regulation)[2]
and to make a Declaration, attached to the Regulation, with the following
content:

"The Council and the European
Parliament invite the Commission to consider, without
prejudice to its right of initiative, a revision of Article 8(4) of the Recast
of the Dublin Regulation once the Court of Justice rules on case C-648/11 MA
and Others vs. Secretary of State for the Home Department and at the latest
by the time limits set in Article 46 of the Dublin Regulation. The European
Parliament and the Council will then both exercise their legislative
competences, taking into account the best interests of the child."

The Commission agreed, through the same
Declaration, with the suggested approach:

"The Commission, in a spirit of
compromise and in order to ensure the immediate adoption of the proposal,
accepts to consider this invitation, which it understands as being limited to
these specific circumstances and not creating a precedent."

On 6 June 2013, the Court of Justice of the
European Union delivered its judgment in the case C-648/11, ruling that:

"The second paragraph of Article 6 of
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 national must be interpreted as meaning that, in circumstances
such as those of the main proceedings, where an unaccompanied minor with no
member of his family legally present in the territory of a Member State has
lodged asylum applications in more than one Member State, the Member State in
which that minor is present after having lodged an asylum application there is
to be designated the ‘Member State responsible".

· 
Objectives of the proposal

This proposal takes highest account of the
Court of Justice's ruling in case C-648/11. It is aimed at addressing the
current ambiguity of the provision on unaccompanied minors who have no family,
siblings or relatives on the territory of the Member States, by providing legal
certainty in respect of responsibility for examining the application for
international protection in such cases.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Specific consultations and impact
assessments in preparation of the current proposal were not necessary since this
narrowly targeted proposal constitutes a follow-up to the comprehensive
consultation and impact assessments already undertaken by the Commission in
preparation of its proposal COM(2008)820 final to recast Council Regulation
(EC) No 343/2003/EC. Therefore, the consultations carried out by the Commission
in preparation of that proposal apply to the present proposal.

The Commission considers that the proposal
to amend Article 8(4) should be put forward as soon as possible, in order to
ensure legal certainty as regards the provisions on unaccompanied minors in the
'Dublin procedure'. Moreover, it is indispensable to have a final version of
this Article before proceeding to providing supplementary rules on
unaccompanied minors on the basis of Article 290 of the Treaty of the
Functioning of the European Union.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

· 
Summary of the proposed action

The present proposal addresses the issue of
responsibility for examining the asylum application of an unaccompanied minor
with no family, siblings or relatives on EU territory. The proposed provision covers
the two possible cases of unaccompanied minors found in such a situation:

Paragraph 4a covers the situation similar
to that described in case C-648/11, i.e. an unaccompanied minor with no family,
sibling or relatives on EU territory and who lodged multiple asylum
applications, including in the Member State where he or she is currently
present. In this case, the Member State responsible is established according to
the Court of Justice's judgment, i.e. responsibility belongs to the Member State where the minor lodged an application and is currently present. The purpose of
this rule is to ensure that the procedure for determining the Member State responsible is not unnecessarily prolonged, and that unaccompanied minors have
prompt access to the procedures for determining international protection status.
The reference to the minor's best interests is introduced in order to allow
exceptions from this rule in cases where individual circumstances might
indicate that remaining in the territory of the Member State where he or she is
present might jeopardize the minor's best interests.

Paragraph 4b addresses the situation where
a minor who is an applicant for international protection is present in the
territory of a Member State without having lodged an application there. The
proposal is that the Member State should provide the minor with the opportunity
to lodge an application there, after having informed him or her of such a right
and its implications. The minor has therefore two options: either to apply for
international protection in that Member State or not to apply. Where an
application is lodged with the authorities of that Member State, the
circumstances of paragraph 4a apply, i.e. that Member State becomes responsible
for examining that application. Thus, the minor will remain in the Member State where he/she is present and have his or her application examined there,
provided that this corresponds to the minor's best interests. The alternative
is that the minor should be transferred to the Member State which the
consideration of the minor's best interests indicates as most suitable (which
can include, though it cannot be limited to, the fact that a procedure for
examining the application for international protection might be on-going or
closed with a final decision, etc.).

The case of a minor who decides not to lodge
a new application in the Member State where he/she is present is not addressed
by case C-648/11. However, this situation needs to be covered in the
Regulation, in order to avoid loopholes in the responsibility criteria. The
solution proposed is that the Member State responsible should be the one where
the minor has lodged his or her most recent application. This rule aims to
ensure that there is certainty in establishing the Member State responsible, by
introducing a rule that is certain and predictable. The reference to the
minor's best interests is added in order to ensure, as in paragraph 4a, that
transfers contrary to his or her best interests are avoided.

Paragraph 4c aims at ensuring that the
assessment of the minor's best interests is made in cooperation between the
requested and the requesting Member States, in order to establish in common the
  Member State responsible for the minor and avoid conflicts of interest.

The guarantees for minors provided in
Article 6 of Regulation 604/2013 apply to all minors that are subject to the
procedures of this Regulation. Therefore, an explicit reference to the
provisions of Article 6 in respect of unaccompanied minors found in one of the
situations described in Article 8(4) was not considered necessary.

Paragraph 4d does not contain a criterion
for establishing responsibility, but provides a rule allowing Member States to
inform each other of a newly assumed responsibility. This allows the Member State previously responsible for carrying out a 'Dublin procedure' to close the case in
its internal administration. This is particularly relevant in order to avoid
situations of abuse of the system, where the minor moves on to another Member State for no other reason than to prolong his or her stay on EU territory. The
provision is similar to that in Article 17(1)(2) of Regulation 604/2013, where
the same information rule is introduced in respect of the sovereignty clause.

· 
Variable geometry

This proposal amends Regulation (EU) No 604/2013
and uses the same legal base as that act, namely Article 78, second paragraph,
point (e) of the Treaty on the Functioning of the European Union.

Title V of the TFEU is not applicable to
the United Kingdom and Ireland, unless those two countries decide otherwise, in
accordance with the provisions set out in the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union (TEU) and to the TFEU.

The United Kingdom and Ireland are bound by Regulation 604/2013, following their notice of their wish to take part
in the adoption and application of that Regulation based on the above-mentioned
Protocol. The position of these Member States with regard to Regulation
604/2013 does not affect their possible participation with regard to the
amended Regulation.

Under the Protocol on the position of
Denmark, annexed to the TEU and the TFEU, Denmark does not take part in the
adoption by the Council of the measures pursuant to Title V of the TFEU (with
the exception of "measures determining the third countries whose nationals
must be in possession of a visa when crossing the external borders of the
Member States, or measures relating to a uniform format
for visas").
However, given that Denmark applies the current Dublin Regulation,
on the basis of an international agreement that it concluded with the EC in
2006[3], it shall, in
accordance with Article 3 of that agreement, notify the Commission of its
decision whether or not to implement the content of the amended Regulation.

· 
Impact of the proposal on non EU Member States
associated to the Dublin system

In parallel to the association of several
non-EU Member States to the Schengen acquis, the Community concluded several
agreements associating these countries also to the Dublin/Eurodac acquis:

– 
the agreement associating Iceland and Norway, concluded in 2001[4];

– 
the agreement associating Switzerland, concluded on 28 February 2008[5];

– 
the protocol associating Liechtenstein, signed on 28 February 2008[6].

In order to create rights and obligations
between Denmark – which as explained above has been associated to the
Dublin/Eurodac acquis via an international agreement – and the associated
countries mentioned above, two other instruments have been concluded between the
Community and the associated countries[7].

In accordance with the three above-cited
agreements, the associated countries shall accept the Dublin/Eurodac acquis and
its development without exception. They do not take part in the adoption of any
acts amending or building upon the Dublin acquis (including therefore this proposal)
but have to notify to the Commission within a given time-frame of their
decision whether or not to accept the content of that act, once approved by the
Council and the European Parliament. In case Norway, Iceland, Switzerland or
Liechtenstein do not accept an act amending or building upon the Dublin/Eurodac
acquis, the "guillotine" clause is applied and the respective
agreements will be terminated, unless the Joint/Mixed Committee established by
the agreements decides otherwise by unanimity.

2014/0202 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Regulation (EU) No 604/2013 as
regards determining the Member State responsible for examining the application
for international protection of unaccompanied minors with no family member,
sibling or relative legally present in a Member State

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 78(2(e) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[8],

Having regard to the opinion of the
Committee of the Regions[9],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Regulation (EU) No
604/2013 of the European Parliament and of the Council[10] determines the Member State where the unaccompanied minor has lodged the application for international
protection as the Member State responsible for examining that application.

(2)       After adoption of the Regulation
(EU) No 604/2013 the Court of Justice ruled in case C-648/11 that, where an
unaccompanied minor with no family member legally present in the territory of a
Member State has lodged asylum applications in more than one Member State, the
Member State in which that minor is present after having lodged an asylum
application there is to be designated as the Member State responsible.

(3)       The situation of an
unaccompanied minor with no family member legally present in the territory of a
Member State, who has lodged asylum applications in one or more Member States,
and who is present in the territory of a Member State without having lodged an
application there, has not been addressed by the judgment. In order to ensure a
coherent provision on unaccompanied minors in this Regulation and avoid legal uncertainty,
the criterion for establishing the Member State responsible in such a situation
should equally be provided for.

(4)       According to the judgment,
the Member State responsible should inform accordingly the Member State with which the first application has been lodged. Since the asylum application is
required to be examined only by a single Member State, the Member State responsible
should inform of its decision the Member State previously responsible, the Member
State conducting a procedure for determining the Member State responsible or the
Member State which has been requested to take charge or take back the minor, as
the case may be.

(5)       [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 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.]

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

(7)       Regulation (EU) No 604/2013
should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

In Regulation (EU) No 604/2013 paragraph 4 of
Article 8 is replaced by the following:

"4a.        Where the unaccompanied
minor has no family member, sibling or relative legally present in a Member State as referred to in paragraphs 1 and 2, the Member State responsible shall be the
one where the unaccompanied minor has lodged an application for international
protection and is present, provided that this is in the best interests of the
minor.

4b.         Where an applicant as referred
to in paragraph 4a is  present in the territory of a Member State without
having lodged an application there, that Member State shall inform the unaccompanied
minor of the right to make an application and give him or her an effective
opportunity to lodge an application in that Member State.

Where the unaccompanied minor referred to in
the first subparagraph lodges an application in the Member State where he or she is present that Member State shall become responsible for examining that application,
provided this is in the best interests of the minor.

Where the unaccompanied minor referred to in
the first subparagraph does not lodge an application in the Member State where he or she is present, the Member State responsible shall be the one where
the unaccompanied minor has lodged his or her most recent application, unless
this is not in the best interests of the minor.

4c.          The Member State requested
to take back an unaccompanied minor shall cooperate with the Member State where the unaccompanied minor is present in order to assess the best interests of
the minor.

4d.         The Member State, which is
responsible pursuant to paragraph 4a, shall inform the following Member States,
as applicable, thereof:

(a) 
the Member State previously responsible;

(b) 
the Member State conducting a procedure for
determining the Member State responsible;

(c) 
the Member State which has been requested to
take charge of the unaccompanied minor;

(d) 
the Member State which has been requested to
take back the unaccompanied minor.

That information shall be sent using the
‘DubliNet’ electronic communication network set up under Article 18 of
Regulation (EC) No 1560/2003."

Article 2

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

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

Done at Brussels,

For the European Parliament                        For
the Council

The President                                                 The
President

[1]               OJ L 180/31, 29.6.2013, p. 31

[2]               OJ L 50, 25.2.2003, p.1

[3]           Agreement
between the European Community and the Kingdom of Denmark on the criteria and
mechanisms for establishing the State responsible for examining a request for
asylum lodged in Denmark or any other Member State of the European Union and
“Eurodac” for the comparison of fingerprints for the effective application of
the Dublin Convention, OJ L66, 8.3.2006, p.38

[4]           Agreement
between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible
for examining a request for asylum lodged in a Member State or in Iceland or Norway (OJ L 93, 3.4.2001, p. 40)

[5]           Agreement
between the European Community and the Swiss Confederation concerning the
criteria and mechanisms for establishing the State responsible for examining a
request for asylum lodged in a Member State or in Switzerland (OJ L 53,
27.2.2008, p. 5).

[6]           Protocol
between the European Community, the Swiss Confederation and the Principality of
Liechtenstein on the accession of the Principality of Liechtenstein to the
Agreement between the European Community and the Swiss Confederation concerning
the criteria and mechanisms for establishing the State responsible for
examining a request for asylum lodged in a Member State or in Switzerland (OJ L
160 18.6.2011 p. 39)

[7]           Protocol
between the European Community, the Swiss Confederation and the Principality of
Liechtenstein to the Agreement between the European Community and the Swiss
Confederation concerning the criteria and mechanisms for establishing the State
responsible for examining a request for asylum lodged in a Member State or in Switzerland
(concluded on 24.10.2008, OJ L 161, 24.06.2009, p. 8) and Protocol to the
Agreement between the Community, Republic of Iceland and the Kingdom of Norway
concerning the criteria and mechanisms for establishing the State responsible
for examining a request for asylum lodged in a Member State, Iceland and Norway
(OJ L 93, 3.4.2001).

[8]               OJ C , , p. .

[9]               OJ C , , p. .

[10]             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
national or a stateless person (OJ L 180, 29.6.2013, p. 31).