Initiative of Austria with a view to adopting a Council Regulation establishing the criteria for determining the States which qualify as safe third States for the purpose of taking the responsibility for examining an application for asylum lodged in a Member State by a third country national and drawing up a list of European safe third States

(2003/C 17/06)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63(1)(d) thereof,

Having regard to the initiative of the Republic of Austria(1),

Having regard to the opinion of the European Parliament(2),

Whereas:

(1) At its meeting in Tampere, the European Council reaffirmed the importance the Union and Member States attach to absolute respect of the right to seek asylum. It agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention relating to the Status of Refugees, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement.

(2) The Laeken European Council agreed on the adoption, on the basis of the Tampere conclusions and as soon as possible, of a common policy on asylum and immigration, which would maintain the necessary balance between protection of refugees, in accordance with the principles of the 1951 Geneva Convention, the legitimate aspiration to a better life and the reception capacities of the Union and its Member States.

(3) The Seville European Council emphasised that measures taken in the short and medium term for the joint management of migration flows should strike a fair balance between, on the one hand, a policy for the integration of lawfully resident immigrants and an asylum policy complying with international conventions, principally the 1951 Geneva Convention, and, on the other hand, resolute action to combat illegal immigration and trafficking in human beings. In this context it is important to afford refugees swift, effective protection, while making arrangements to prevent abuse of the system.

(4) With a view to the creation of a Common European Asylum System, it is desirable to establish criteria for determining the States, which qualify as safe third States and to draw up a list of European safe third States, in respect of which it can be assumed that they provide an adequate level of protection to refugees and asylum seekers against refoulement to their countries of origin, and by which such persons are to be received.

(5) The third States listed in the Annex are bound by the relevant international obligations (Geneva Convention relating to the Status of Refugees, European Convention for the Protection of Human Rights and Fundamental Freedoms) and have transposed the provisions set out therein into their national law. The acquis screening in the framework of the accession negotiations has already proved the implementation and alignment of the candidate States to the asylum acquis of the European Union.

(6) The list of safe third States will be regularly reviewed on the basis of an examination and evaluation of criteria based on the application and observation of standards established under international law for the protection of refugees and of basic human rights.

(7) Compliance by the third States included on the list with the standards established under international law for the protection of refugees and of basic human rights will be monitored by the Commission on the basis of information from the Member States, the UNHCR, the Council of Europe, and other relevant international organisations.

(8) As soon as States included in the list become Member States of the European Union, they are no longer to be considered as third States for the purposes of this Regulation, since then being subject to the Dublin regime.

(9) In accordance with Article 3 of Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, these Member States have notified their wish to take part in the adoption and application of this Regulation.

(10) In accordance with Article 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of the present Regulation and is not bound by it or subject to its application.

(11) This Regulation deals with one aspect of the creation of a Common European Asylum System, and more particularly with one aspect of minimum standards on procedures in Member States for granting or withdrawing refugee status. Once the Council has adopted the Directive dealing with this minimum standard in general, for which the Commission has submitted a proposal in 2000, the present Regulation may be repealed in order to allow for a full application of the provisions adopted in implementing that Directive,

HAS ADOPTED THIS REGULATION:

Article 1

Definition of safe third States

1. For the purposes of this Regulation, a safe third State means a State which has ratified the Geneva Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees and

(a) the European Convention for the Protection of Human Rights and Fundamental Freedoms and at least Protocols Nos 6 and 11 thereto, or

(b) the 1966 International Covenant on Civil and Political Rights and the (first) Optional Protocol to the International Covenant on Civil and Political Rights.

2. Effective protection exists in a State according to paragraph 1, where there are procedures available effectively enabling asylum seekers to be granted refugee status in accordance with the Geneva Convention, where asylum seekers have the right to remain until a decision is taken and where they are protected from inhuman treatment also by expulsion to their country of origin, including via other States.

3. Third country nationals who have entered the territory of a Member State after passing through or coming from a third State, which may be held to have a responsibility in receiving or readmitting those persons, and who apply for asylum in the Member State fall under the responsibility of the third State for examining their asylum applications, if this is a safe third State.

Article 2

List of European safe third States

Those third States which are included on the list in the Annex shall be regarded as safe third States in the meaning of this Regulation.

Article 3

Accession to the European Union

This Regulation shall cease to apply in respect of States included in the list in the Annex which accede to the European Union, as from the date on which such accession takes effect.

Article 4

Amendment of the list

1. The Commission shall monitor compliance by the third States included on the list with the criteria set out in Article 1 and shall annually submit a report to the Council. In its assessment of the States, the Commission shall make use of information from the Member States, the UNHCR, the Council of Europe, and other relevant international organisations.

2. When presenting its report to the Council, the Commission may make such recommendations or proposals as it deems appropriate.

Article 5

Scope

This Regulation shall not affect the competence of each Member States to determine its procedures for dealing with requests for asylum.

Article 6

Entering into force

1. This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.

2. This Regulation shall not apply to the States listed in the Annex indicated with an asterisk. The Council shall take a decision in respect of those States at a later date in accordance with the procedure applicable to the adoption of modifications of the present Regulation on the basis of a report from the Commission pursuant to Article 4. The Commission shall submit a first report to the Council not later than 30 June 2003.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

Done at ...

For the Council

The President

...

(1) OJ C ...

(2) Opinion of ...

ANNEX

Common list of European safe third States

Bulgaria *

Cyprus

Czech Republic

Estonia

Hungary

Iceland

Latvia

Lithuania

Malta

Norway

Poland

Romania *

Slovakia

Slovenia

Switzerland