Opinion of the Economic and Social Committee on the "Proposal for a Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof"

(2001/C 155/06)

On 25 July 2000 the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 7 March 2001. The rapporteur was Mrs Cassina.

At its 380th plenary session (meeting of 28 March 2001), the Economic and Social Committee adopted the following opinion with 101 votes in favour, no dissenting votes and one abstention.

1. Introduction and content of the proposal

1.1. The Commission adopted the proposal on 24 May 2000, in accordance with the relevant Treaty provisions(1) and pursuant to the mandate of the Tampere European Council. The need for an instrument to handle mass influxes of displaced persons from third countries has been highlighted in recent years by the arrival of large numbers of displaced persons from Bosnia and Kosovo. However, the proposal - which implements a Treaty provision - seeks to do more than just respond to a particular set of events; in tandem with other proposed and/or adopted instruments, it seeks to equip the Union with a comprehensive policy on visas, asylum and immigration.

1.2. The proposal establishes a temporary, exceptional instrument to deal with mass influxes of displaced persons from third countries who are unable to return to their country of origin without risking their life, liberty or dignity. The proposal consists of a set of minimum standards, both procedural and substantive, and measures to ensure a balance of efforts between Member States in receiving displaced persons and bearing the consequences thereof.

1.3. The aims of the proposal are as follows:

- to guarantee that when Member States deal with mass influxes of displaced persons, their procedures and actions respect a minimum common standard, so as to avoid the risk of distorting the spontaneous choice of host country;

- to ensure that such persons are treated humanely and receive assistance and protection allowing them to recover from the traumas they have suffered, and to provisionally enter into social, cultural and human relations in the host country or countries, on the same footing as refugees;

- to prepare such persons for the return to their country of origin;

- to ensure that Member States' asylum systems do not become bogged down with requests;

- to show solidarity with Member States in the support of their reception efforts: firstly, by allocating financial resources from the European Refugee Fund (which provides inter alia for the funding of emergency measures in the event of mass influxes), and secondly, by distributing displaced persons among Member States on a voluntary basis and with their agreement;

- to flesh out and increase the effectiveness of measures proposed in the past but not fully implemented;

- to clarify the link between temporary protection and the areas covered by the Geneva Convention, safeguarding the full application of the latter and introducing arrangements for consultation and cooperation with the UN High Commissioner for Refugees (UNHCR).

1.4. The proposal defines the main terms used in the directive: displaced persons from third countries who are unable to return to their country of origin; refugees; unaccompanied minors; residence permit; and mass influx.

1.5. Decisions establishing temporary protection are to be adopted by the Council by a qualified majority vote, on a proposal from the Commission (which will examine requests from the Member States). In each case, the decision will establish the temporary protection of the displaced persons concerned in all Member States. The Council decision must include:

- a description of the specific groups of persons to whom the temporary protection applies;

- the date on which the temporary protection will take effect;

- declarations by the Member States, indicating in figures or in general terms their respective capacity to receive such persons, or stating the reasons why they are unable to receive them. A Member State may subsequently notify the Council and the Commission of any additional reception capacity.

1.5.1. When adopting the decision, the Council will assess the situation and the scale of the influx, and the advisability of establishing temporary protection. It will take into account the potential for emergency aid and action on the ground or the inadequacy of such measures, and will assess the information received from the Member States, the Commission, the UNHCR and other organisations concerned. The European Parliament will be informed of the decision.

1.5.2. Temporary protection will cease when the maximum total duration has been reached (one year, although it may be extended automatically by six-month periods to a total of two years) or at any time by Council Decision adopted by a qualified majority if the situation in the country of origin is such as to permit long-term, safe and dignified return, in accordance with Article 33 of the Geneva Convention. The European Parliament will also be informed of this decision.

1.6. Temporary protection is without prejudice to recognition of refugee status under the Geneva Convention. A displaced person enjoying temporary protection may apply for refugee status at any time while under such protection.

1.7. Member States' obligations towards persons enjoying temporary protection include:

- providing them with a residence permit and facilities for obtaining visas (free of charge);

- issuing them with a document, in the official language(s) of the country of origin, in which the provisions relating to temporary protection are clearly set out;

- authorising them to engage in employed or self-employed activities under the same conditions as refugees;

- ensuring that they have access to suitable accommodation and receive the necessary assistance in terms of social welfare, means of subsistence and medical care if they do not have sufficient resources;

- providing appropriate medical or other assistance to persons with special needs, such as unaccompanied minors or persons who have undergone physical or psychological violence or torture;

- granting minors access to the education system under the same conditions as nationals of the host Member State, and allowing adults access to vocational training, further training or retraining.

1.7.1. Until two months before the end of protection, and subject to verification of the agreement of the family members in question, persons may be reunited with their spouse or partner (if the host country treats unmarried couples in the same way as married couples), with unmarried dependent children (irrespective of whether they were born in or out of wedlock or adopted), with other dependent relatives, or with family members who have undergone particularly traumatic experiences or require special medical treatment.

1.7.1.1. The absence of documentary evidence of the family relationship must not be regarded as an obstacle in itself to family reunification. Ascertainment of a pre-existing stable relationship is deemed sufficient. If members of a family are in different Member States, the Member States are to authorise the family to be reunited in the host Member State of their choice.

1.7.2. Unaccompanied minors must have a legal guardian or be represented by an organisation which is responsible for the care and well-being of minors, or by any other appropriate form of representation. Provision will be made for such minors to be placed with adult relatives, with a foster family or in reception centres with special provisions for minors. Where appropriate, they may be placed with a person or persons who looked after them when fleeing. In the latter case, the Member States must establish that the minor and adult(s) concerned agree to this arrangement.

1.7.3. Member States must respect the principle of non-discrimination.

1.7.4. Persons enjoying temporary protection must be guaranteed access to the procedure for determining refugee status at any time until the expiry of the temporary protection. Member States may provide that temporary protection may not be enjoyed concurrently with the status of asylum seeker while applications are under consideration. Refusal of refugee status does not prejudice the enjoyment of temporary protection.

1.7.5. When the temporary protection ends, the ordinary law governing protection, entry and residence of foreign nationals in the Member States becomes applicable. Member States must consider any compelling humanitarian reasons which may make return impossible. Special attention must be paid to persons who, on the expiry of temporary protection, still need medical or psychological treatment that should not be interrupted. Minors, too, should be allowed to complete the current school period. Voluntary return is to be encouraged; Member States must ensure that the decision to return is taken in full knowledge of the facts.

1.7.6. Member States must appoint a national contact point for administrative cooperation and must regularly and promptly provide data on the number of persons granted temporary protection.

1.7.7. Persons may be denied temporary protection if they are regarded as a danger to national security, or if there are serious grounds for believing that they have committed a war crime or a crime against humanity, or if exclusion clauses of the Geneva Convention apply. Exclusion decisions must be proportionate and open to appeal.

1.7.8. Member States are to lay down the penalties applicable to infringements of the national provisions adopted pursuant to the directive. Such penalties must be effective, proportionate and dissuasive.

1.7.9. The Commission is to present a report to the European Parliament and the Council no later than two years after the entry into force of Member States' transposition provisions. After this, a report will be submitted every five years.

2. Comments

2.1. The Committee warmly welcomes the proposal. It congratulates the Commission on the text which, although somewhat dense (as can be seen from the lengthy summary given above), establishes minimum, simple and transparent harmonisation of procedures and actions. The text is prompted by elementary respect for basic human rights and values and offers a proper framework for solidarity between Member States. As pointed out by the Tampere Council, there is a pressing need for a special temporary instrument to deal with possible mass influxes of displaced persons, establishing a common action platform for the Member States. The Committee hopes that the Council will approve the proposed text promptly without any significant amendments.

2.2. The Committee points out that the particular circumstances which led Member States to experience massive influxes of displaced persons now appear to have eased somewhat, and that efforts to stabilise the economic, social and political situation in the Balkans - inter alia with the support of the EU and its Member States - seem to be bearing fruit. However, a recurrence of events similar to those seen in the second half of the 1990s cannot be ruled out. The proposed instrument would be vital even if such events occurred at a greater distance from the EU. In short, the proposed instrument is not a "Balkans Directive", but is geographically and historically neutral, to be deployed as and when it is needed.

2.3. Although the Committee notes and understands that the proposal only applies to people fleeing from political situations, it thinks there might also be a case for a directive providing temporary reception and protection mechanisms for persons displaced by natural disasters.

2.4. The Committee is pleased that the decision regarding the existence of a mass influx is to be taken by the Council, as an acceptance of joint responsibility at that level is the only way to ensure practical and effective action. This is particularly important because such events are always sudden and dramatic, and the decision has to be taken rapidly (e.g. a maximum of three months after the Commission proposal), albeit with due thought. Qualified majority voting is thus the appropriate procedure, as unanimity could require protracted negotiations between Member States and could also lead to an effective veto by a single state.

2.5. The Committee emphasises and approves the fact that the proposed directive is minimal in nature, i.e. it only defines the main procedures, actions and criteria that have to be harmonised, leaving Member States plenty of flexibility in their practical measures.

2.6. The Committee warmly appreciates the fact that the proposed directive makes a clear distinction between temporary protection and asylum policy, while allowing persons in receipt of temporary protection the option of applying for refugee status. This option - which remains open throughout the period of temporary protection - enables the persons concerned to consider the matter calmly, in full possession of the facts, before taking a decision. It will also ensure that Member States' asylum systems and the future Community asylum system are not inundated with a sudden flood of requests. Displaced persons often apply for refugee status because they have no clear alternative, even though such status may not meet their practical needs or expectations. In such cases, if refugee status is granted, red tape subsequently makes it difficult for the person concerned to return home promptly if the general conditions in the country or region of origin change for the better.

2.7. It is important that Member States be obliged to issue a document in the official language(s) of the country of origin, clearly setting out the rules governing temporary protection. The Committee notes however that often, on entry, the persons concerned may face further language problems, for example if they only speak regional languages or dialects. The Member States should cater for such eventualities by preparing provisions to help all displaced persons clearly understand their rights and duties so that they can immediately embark on an informed, responsible integration process.

2.8. The Committee greatly appreciates the concern for unaccompanied minors, as such cases are increasingly common. Their implications are particularly dramatic in emergency situations, in view of both their root causes and the dangers faced by such minors when fleeing their countries or after reaching (often with some difficulty) the EU. It is especially important that Member States ensure that minors who are put in the care of private individuals, pursuant to Article 14(3) in particular, do not fall prey to trafficking or exploitation rings.

2.9. Although the proposed instrument is temporary, it is also very important that the directive includes an obligation to promote integration, albeit only over a limited period. Access to employment, education and training is useful for persons receiving temporary protection because it enables them to provide for their needs (at least in part) and acquire skills and also to become acquainted with the social and cultural life of the Member States and overcome the traumas they have suffered. In order for access to be effective, all the necessary instruments and facilities must be provided to help them learn the language of the host country. For the EU too, integration is an investment in human resources which creates a network of human contacts and awareness. When people who have received temporary protection return to their country of origin, they can pass on their knowledge and provide a potential reference point for relations between societies in the EU Member States and in the countries of origin. In this way too, the directive makes a partial but direct and substantial contribution to the EU's peace, security and international relations policy. The rules on family reunification in the context of temporary integration seem both fair and prudent.

2.10. The Committee is pleased that the directive includes measures regulating the return home and laying down minimum, clear and farsighted provisions.

2.11. Turning to the question of practical solidarity between Member States, and welcoming the linkage with the European Refugee Fund, the Committee particularly appreciates the fact that the distribution of displaced persons between Member States is to be based on an extremely simple and transparent mechanism of declared availability, alerting everyone to their responsibility towards people in great need while also fully respecting the practical requirements of the Member States and considering the wishes of the persons concerned. The pass to be used for the transfer of persons between Member States (reproduced in Annex 2) is a model of simplicity and transparency, which could usefully be borne in mind in other situations.

2.12. The Committee thinks that the directive should make it obligatory (and not merely optional) for Member States to give minors enjoying temporary protection access to the education system, without prejudice to the need to provide these minors with the requisite linguistic tools.

2.13. The Committee is concerned that the duration of protection (one year, with possible extension up to a maximum total of two years) seems insufficient. It thinks that by way of exception in special cases, it might have been more appropriate to allow the deadline to be extended for a further short period. Displaced persons come from regions suffering war or conflict, or from countries whose systems threaten their life, personal integrity or dignity, and such situations are unlikely to change so quickly as to allow return "in a secure and dignified manner" as mentioned in Article 21(1). However, as the ordinary law on protection, entry and residence of foreign nationals in the Member States becomes applicable when temporary protection ends, the Committee calls on Member States to take great care over the transition from the common legal system to the national legal system, particularly when the conditions and infrastructure in the country or region of origin are not yet stable or safe enough to receive the persons concerned. An extension of protection (or the establishment of another legal residence or protection system) based on national rules should always be possible in such cases.

2.14. The Committee hopes that mass influxes of displaced persons will be handled with the requisite synergies. In addition to cooperation through regular consultations with the UNHCR and the other relevant international bodies, Member States should ensure that the social partners and NGOs at national and local level shoulder their share of responsibility. This is particularly important when integrating displaced persons into employment, training or education, but also in order to organise their entry into appropriate accommodation and identify any specific needs, especially in the health field. Experience shows that crisis management in the past benefited greatly from the activity and competence of these bodies which, in some cases, completely took over reception duties and effectively made up for the administrative and regulatory shortcomings of the Member States.

2.14.1. The Committee calls on all Member States, in cooperation with the bodies mentioned in the preceding point, to make advance provision for emergency infrastructure that can be activated at the appropriate moment to handle mass influxes, particularly as regards:

- a network of interpreters who can be called on as soon as the influx starts;

- the introduction of simpler and more transparent administrative procedures;

- availability of accommodation;

- health care, psychological help, and general advice and guidance;

- access to education and training;

- help with integration.

Brussels, 28 March 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) The main legal basis is Article 63(2)(a) and (b) of the Treaty.