**Avis juridique important**

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# 52004PC0594(01)

**Proposal for Council Decision on the signing of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 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 and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention  /* COM/2004/0594 final */****

Proposal for COUNCIL DECISION on the signing of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 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 and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. Political and legal background

Further to Articles 1 and 2 of the Protocol on the position of Denmark annexed to the TEU and the TEC, Denmark did not take part in the adoption by the Council of Regulation (EC) No 343/2003 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 ("the Dublin II Regulation") and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention ("the Eurodac Regulation").

However, Denmark is a party to the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities ("the Dublin Convention"), signed in Dublin on 15 June 1990.

On 19 January 2001 the Community concluded an Agreement with 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. Article 12 of that Agreement states that Denmark may request to participate in the Agreement, and that the conditions for such participation are to be determined by the Community, Norway and Iceland, acting with the consent of Denmark, in a Protocol to the Agreement.

Denmark has asked to conclude international agreements with the Community with a view to regulating its relations with the other Member States by taking over the existing Community instruments.

In its Communication of April 2002, while approving the possibility of concluding international agreements in certain specific cases with Denmark on an exceptional, temporary basis, the Commission nevertheless laid down the conditions for such agreements, in particular with regard to the jurisdiction of the Court of Justice and Denmark's obligations as regards its external relations in the relevant fields. By Decision of 6 May 2003, the Council authorised the Commission to negotiate an agreement with the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 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 and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention, and to negotiate with the Republic of Iceland and the Kingdom of Norway the conclusion of a Protocol pursuant to Article 12 of the 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. It deemed it important to conclude an agreement with Denmark at the same time as the Protocol to the Agreement with Norway and Iceland to ensure that the Court of Justice had jurisdiction in respect of Denmark as regards both the interpretation and the validity of the agreements and regulations in question, and to regulate the mutual obligations arising from international agreements.

Negotiations for the Agreement began in June 2003 and the document was initialled on 8 June 2004.

As regards the Community, the legal basis of the Agreement is Article 63(1)(a), read in conjunction with Article 300 TEC.

The enclosed proposals are the legal instrument for the signing and conclusion of the Agreement. The Council will act by qualified majority (Article 251 on the basis of the first indent of Article 67(5) TEC). According to Article 300(3) TEC, the European Parliament will have to be consulted officially on the conclusion of the Agreement.

II. results of the negotiations

The Commission takes the view that the objectives set by the Council in its negotiating directives have been reached and that the draft Agreement is acceptable to the Community.

The final contents of the Agreement can be summarised as follows:

- the Agreement consists of 11 articles in total. It also has an Annex, which forms an integral part of it;

- it makes the provisions determining the State responsible for examining applications for asylum lodged in Denmark or in another Member State by a third-country national applicable in Denmark;

- it makes the Court of Justice responsible for ensuring the uniform interpretation and validity of the provisions of the Agreement and the Regulations to which it refers;

- it confers on the Court of Justice jurisdiction to hear and determine questions referred for a preliminary ruling by the Danish courts regarding the interpretation of the provisions of the Agreement under the same arrangements as those applicable to the courts and tribunals of the other Member States;

- it confers on the Court of Justice jurisdiction to give a ruling, at Denmark's request, on questions concerning the interpretation of the provisions governed by the Agreement, under the same circumstances and with the same effects as in respect of the other Member States, the Council or the Commission on questions concerning the interpretation of the Regulations adopted pursuant to Article 63 TEC;

- the infringement procedures established by the TEC apply;

- under the Agreement Denmark is bound to accept any amendments to the Regulations to which it refers and their implementing measures;

- the Agreement regulates the mutual obligations of the contracting parties in cases where one contracting party wishes to conclude an international agreement which affects the provisions governed by the Agreement;

- the Agreement contains provisions obliging Denmark to make an annual contribution to the operational costs associated with the establishment and operation of the Central Unit of Eurodac based on its gross national product as a percentage of the overall gross national product of all the Member States;

- the recitals of the Agreement provide for the Dublin Convention to be replaced by the Agreement as regards relations between Denmark and the other Member States;

- the Agreement contains provisions concerning its termination.

III. Conclusions

In the light of the above considerations, the Commission proposes that the Council:

- decide that the Agreement be signed on behalf of the Community and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Community;

- approve, after consulting the European Parliament, the attached Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 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 and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention.

Proposal for COUNCIL DECISION on the signing of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 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 and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63(1)(a) thereof, in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof,

Having regard to the proposal from the Commission, [1]

[1]  OJ C ...

Whereas:

(1) By Decision of 6 May 2003 the Council authorised the Commission to negotiate an Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 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 and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention,

(2) Negotiations with a view to signing the Agreement took place between June 2003 and April 2004,

(3) Subject to its possible conclusion at a later date, the Agreement initialled at Luxembourg on 8 June 2004 should be signed,

(4) The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the TEU and the TEC, will take part in adopting and applying this Decision,

HAS DECIDED AS FOLLOWS:

Sole Article

Subject to its possible conclusion at a later date, the President of the Council is authorised to appoint the person(s) empowered to sign, on behalf of the Community, the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) No 343/2003 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 and Council Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention.

Done at Brussels,

For the Council

The President