WRITTEN QUESTION P-2691/99

by Pernille Frahm (GUE/NGL) to the Commission

(11 January 2000)

Subject: UN Convention on Refugees

The conclusions of the Tampere Summit emphasised the Council's intention of making the UN Convention on Refugees the basis for EU refugee and asylum policy.

Will the Commission confirm that this decision means that the Member States are obliged to deal with applications for asylum regardless of the applicant's country of origin?

Answer given by Mr Vitorino on behalf of the Commission

(3 February 2000)

The Presidency conclusions from the Tampere European Council of 15 and 16 October 1999 include the following statements:

The aim is an open and secure European Union, fully committed to the obligations of the Geneva Refugee Convention and other relevant human rights instruments mldr (paragraph 4); and

The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. (paragraph 13).

The Commission welcomes and endorses these statements. These political commitments will form the background of future legislative proposals in the field of asylum.

As far as Member States' obligations in the field of asylum are concerned, it is appropriate to distinguish between their obligations under international law and their obligations under the Treaties. All Member States are parties to the 1951 United Nations Convention relating to the status of refugees. That Convention imposes obligations on states in relation to refugees, including a prohibition on refoulement under Article 33 of the Convention, which apply irrespective of a refugee's country of origin. Indeed, Article 3 of the Convention specifically provides that contracting states shall apply the provisions of the Convention to refugees without discrimination as to race, religion or country of origin. All Member States are also parties to the Dublin Convention, in Article 2 of which they reaffirm their obligations under the Geneva Convention as amended by the New York Protocol and their commitment to co-operating with the United Nations High Commissioner for Refugees in applying these instruments.

As far as obligations under the Treaties are concerned, at present there is no Community law in the field of asylum. Article 63(1) (ex Article 7K) of the EC Treaty requires the Council to adopt a series of measures on asylum which must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 on the status of refugees and other relevant treaties.

The implementation of Article 63(1) will be the mechanism by which the Council gives effect to the conclusions of the Tampere European Council mentioned above. Two of the four subparagraphs of Article 63(1) envisage measures relating to nationals of a third country, whereas the other two subparagraphs do not specify the scope ratione personae of the measures to be taken.

The Treaty of Amsterdam includes a protocol on asylum for nationals of Member States, which is annexed to the EC Treaty. This provides that an application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only when one of four conditions is met. Three of these conditions are concerned with derogations from human rights legislation or serious and persistent breaches of human rights principles in the Member State of which the applicant for asylum is a national. The fourth condition offers Member States the possibility of unilaterally deciding to process an asylum application from a national of another Member State.

Declaration no 48 to the Treaty of Amsterdam states that: The Protocol on asylum for nationals of Member States of the European Union does not prejudice the right of each Member State to take the organisational measures it deems necessary to fulfil its obligations under the Geneva Convention of 28 July 1951 relating to the status of refugees. It is a matter for each state to determine what organisational measures it needs to take in order to comply with its obligations under the Geneva Convention whilst implementing the Protocol.

Nothing in the Protocol prevents a Member State from considering all applications for asylum regardless of the applicant's country of origin. The Commission recalls that Belgium made a declaration to the effect

that: In approving the Protocol on asylum for nationals of Member States of the European Union, Belgium declares that, in accordance with its obligations under the 1951 Geneva Convention and the 1967 New York Protocol, it shall, in accordance with the provision set out in point (d) of the sole Article of that Protocol, carry out an individual examination of any asylum request made by a national of another Member State.(1)

(1) See the Treaty of Amsterdam, Declarations of which the Conference took note No 5, declaration by Belgium on the Protocol on asylum for nationals of Member State of the European Union.