EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

1.1. Article 78(3) of the Treaty and the current temporary relocation schemes

As part of the common policy on asylum, Article 78(3) of the Treaty on the Functioning of the EU (TFEU) provides a specific legal basis to deal with emergency situations. Based on a proposal by the European Commission, it enables the Council, after consulting the European Parliament, to adopt provisional measures for the benefit of Member State(s) confronted with an emergency situation characterised by a sudden inflow of nationals of third countries into one or more Member State(s). The provisional measures envisaged by Article 78(3) TFEU are exceptional in nature. They can only be triggered when a certain threshold of urgency and severity of the problems created in the Member State(s)' asylum system(s) by a sudden inflow of third country nationals is met. On the basis of Article 78(3) TFEU, the Council adopted two Decisions establishing provisional measures in the area of international protection for the benefit of Italy and Greece. Under Council Decision (EU) 2015/1523, 40 000 applicants for international protection are to be relocated from Italy and Greece to the other Member States. Under Council Decision (EU) 2015/1601, 120 000 applicants for international protection are to be relocated from Italy and Greece and from other Member States if they are confronted with an emergency situation. Under Article 4(2) of Council Decision (EU) 2015/1601 as of 26 September 2016, 54 000 out of 120 000 applicants should be relocated from Italy and Greece, to the territory of other Member States unless by that date, pursuant to Article 4(3), the Commission makes a proposal to allocate them to another beneficiary Member State(s) confronted with an emergency situation characterised by a sudden inflow of persons. According to Article 1(2) the Commission shall keep under constant review the situation regarding massive inflows of third country nationals into Member States and submit as appropriate proposals to amend Decision 2015/1601 in order to take account of the evolution of the situation on the ground and its impact on the relocation mechanism as well as the evolving pressure on Member States, in particular frontline Member States.

The situation remains critical. According to Frontex data, during the first months of 2016, an average of 2 000 to 3 000 persons have entered irregularly Greece from Turkey on a daily basis. The restrictions imposed at the Greece/former Yugoslav Republic of Macedonia border have put additional strain on Greece and have increased the risk of new migratory routes developing through other EU Member States as the weather conditions improve. These new migratory routes are likely to affect frontline Member States.

The Commission adopted the First report on relocation and resettlement on 16 March, in line with the obligation under Article 12 of the two Council Decisions. The Communication summarises the challenges identified and lessons learned in these first months of implementation of the relocation and resettlement schemes and proposes recommendations and actions in the short term to improve the implementation rate.

The EU Heads of State and Government agreed on 7 March a series of principles as the basis for an agreement with Turkey which included "to resettle, for every Syrian readmitted by Turkey from Greek islands, another Syrian from Turkey to the EU Member States, within the framework of the existing commitments".

The implementation of the various schemes to allow for resettlement, humanitarian admission or other forms of legal admission would alleviate the migratory pressure on frontline Member States, and Greece in particular, by substituting dangerous and irregular migration flows to the the EU of Syrian nationals/person displaced by the conflict in Syria with safe and legal pathways.

In this context, the Commission's Communication on next operational steps in EU-Turkey cooperation in the field of migration called for taking the necessary steps to transfer some of the commitments under the existing relocation decisions, notably all or part of the currently unallocated 54 000 places, to the so called 1:1 scheme. The resettlement or other legal pathways for the admission of persons in clear need of international protection can be considered equivalent to relocation, as all are concrete expressions of solidarity with other Member States or third countries experiencing mass influx of migrants.

1.2. Other solidarity instruments

In addition to the obligations under the relocation scheme and with a view to addressing the global migratory crisis comprehensively and to showing solidarity with third countries equally affected, the Commission recommended an EU resettlement scheme for 20 000 people in need of international protection. Following the Commission Recommendation of 8 June 2015 on a European resettlement scheme, 27 Member States together with Dublin Associated States agreed on 20 July 2015 to resettle through multilateral and national schemes 22 504 displaced persons from outside the EU who are in clear need of international protection. The resettling states agreed to take account of priority regions for resettlement, including North Africa, the Middle East, and the Horn of Africa. The resettlement places were distributed between Member States and Dublin Associated States according to the commitments set out in the Annex to the Conclusions.

On 15 December 2015, the Commission adopted a Recommendation for a Voluntary Humanitarian Admission Scheme with Turkey, proposing that participating States would admit persons displaced by the conflict in Syria who are in need of international protection and were registered by the Turkish authorities prior to 29 November 2015. Such a scheme would be a flanking measure to the mutual commitments contained in the Joint Action Plan between the EU and Turkey of 29 November 2015.

2. LEGAL ELEMENTS OF THE PROPOSAL

2.1. Summary of the proposed action

The present amendment consists in counting the efforts made by Member States by admitting Syrians present in Turkey through resettlement, humanitarian admission or other forms of legal admission towards the number of applicants for international protection to be relocated to their territory under Council Decision 2015/1601. In relation to the 54 000 applicants referred to in Article 4(1)(c) of Council Decision 2015/1601, this amendment enables Member States to subtract from their allocated number of relocated applicants the number of Syrians present in Turkey admitted to their territory through resettlement, humanitarian admission or other forms of legal admission under national or multilateral schemes other than the resettlement scheme established under the Conclusions of the Representatives of the Governments of the Member States meeting within the Council of 20 July 2015. Article 10 of Council Decision (EU) 2015/1601 applies, which means the Member States which use this facility will receive the sum of EUR 6 500.

2.2. Legal basis