Proposal to the Council for a Joint Action based on Article K.3 (2) (b) of the Treaty on European Union concerning temporary protection of displaced persons
Date: 1997-03-05
Institutions: European Commission
Subjects: Treaty on European Union, aid to refugees, foreign national, fundamental rights, social security

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 05.03.1997 
COM(97) 93  final 

97/0081 (CNS) 

Proposal to the Council for a Joint Action 
based on Article K.3(2)(b) of the Treaty on European Union 
concerning temporary protection of displaced persons 

(presented by the Commission) 

EXPLANATORY MEMORANDUM 

I. 

Introduction 

1. 

2. 

In the years since the Second World War, the countries which now constitute the 
European Union have often been called upon, either collectively or individually, to 
take  in and  welcome  people from third  countries  who  for  various  reasons  have 
been in need  of international protection. While the refugee  protection  regime set 
up  by the  Convention  relating  to  the  Status  of  Refugees  of  28  July  1951 was 
initially created  to  deal with those displaced  as a result  of that war, the tradition 
thus created served to protect many other individuals. 

The large-scale movement of people fleeing the conflict  in the former  Yugoslavia 
and  attendant  dangers  to  which  it  gave  rise,  have  added  a  new  dimension  to 
dealing with these conflict  situations. For the first time after World War II, Europe 
was  directly  involved  with  forced  population  movements  which  are  not 
comparable to the previous refugee  crises neither in terms of quantity nor in terms 
of quality: 

the number of people involved far exceeds any comparable mass movement 
towards  Western  Europe  (five  times  as  many  as  the  200 000  who fled 
Hungary in 1956); 

the people concerned  do not  necessarily  meet the conditions to  qualify  for 
refugee status under the terms of the Geneva Convention; 

the  situation  in the great  majority  of Western  European  host  countries has 
changed significantly.  Those which are members of the European Union are 
not only committed by the Single European Act to creating an area without 
internal frontiers; but  are also bound by the Treaty on European  Union to 
regard  asylum  policy  and  policy  regarding  nationals  of  third  countries  as 
"matters of common interest". 

3. 

One  response  adopted  by  practically  all  Member  States  to  the  challenge 
constituted by people escaping from the conflict  in the former  Yugoslavia was to 
offer,  on an autonomous basis, special arrangements to make possible accelerated 
decisions on temporary admission, thus avoiding or postponing the full  procedures 
needed for the purpose of asylum applications. 

Although  adopted  on a wider  scale and by a greater  number  of states  than  ever 
before in the case of the Yugoslav crisis, this "temporary protection" formula was 
not completly new. It had been offered,  for  example especially by Austria, to the 
200 000 persons fleeing from Hungary. In 1968, the same applied to people fleeing 
the  Soviet  invasion  of  Czechoslovakia.  More  recently,  Albanian  refugees  were, 
initially, admitted into Italy on a temporary basis. And several European countries 
took in Vietnamese boat people and Tamils from Sri Lanka. 

4. 

Although  the  Geneva  Convention  does  ipso facto  not  exclude  recognition  of 
refugee  status for  whole groups of persons, Western European  States have been 
reluctant to  make use of this possibility.  Similarly,  Article  1C of the Convention 
which  explicitly  refers  to  the  possibility  of  withdrawing  the  refugee  status  is 
seldom applied  in European  States, as it may require lengthy procedures  for  the 
examination of individual cases. 

Temporary  protection  as an  institution,, therefore*  has the  advantage  of  offering 
immediate and flexible protection to individuals in need. Such timely protection is 
exceedingly important in situations where individuals are fleeing areas of conflict a 
situation  which  has  unfortunately  become  increasingly  common.  Though 
temporary protection  schemes are not meant to replace the institution of asylum, 
they can, nonetheless, offer  immediate humanitarian protection to larger groups of 
people who have been forced to flee from their homes and country. 

Additionally,  temporary  protection  is,  by  definition,  limited  to  the  time  during 
which the  conditions  in the  country  of  origin  do  not  allow  a  safe  and  dignified 
return  of  the  individuals  involved.  A  status  that  is  intended  to  end  when  the 
situation in the regions concerned has substantially improved will make it possible 
to reallocate resources to other individuals in need. 

Temporary protection within the EU differs from one Member  State to another in 
particular with regard to the different  legal positions and rights which are  offered 
to  the  beneficiaries.  The  first  and  most  striking  difference  between  the 
Member States  relates  to  the  actual  status  of  the  individual  covered  under 
temporary  protection  schemes.  In  a  few  Member  States  such  individuals  are 
treated in a way comparable either to asylum seekers or to recognized refugees or, 
in some cases, to  nationals  of the Member  State.  Other Member  States fall well 
short  of such high levels of hospitality  and  social protection.  Consequently,  the 
range of rights the individual has, or the extent of assistance offered  to him or her 
upon arrival, varies. In some Member  States, there is the possibility of taking up 
employment, thus making it possible for an individual to support himself and his or 
her family.  In others, beneficiaries  of temporary  protection  regimes must rely on 
social welfare for several years. 

Furthermore,  there  is  a  need  for  increased  cooperation,  since  the  first 
Member State  to  declare  the  application  of  its  temporary  protection  regime  is 
likely  to  become  a  particular  magnet  as  long  as  other  Member  States  have not 
done so. Similar but opposite considerations apply when it comes to bringing the 
arrangements to an end. A common approach would influence  some of the factors 
determining the destination of persons in need of international protection. 

It  therefore  appears  that,  in  ordef  to  limit  the  unintended  consequences  of 
divergent temporary  protection regimes, some level of approximation  as between 
national  policies  and  practices,  together^with increased  cooperation  needs  to  be 
achieved amongst the Member States in order to allow for  an equitable sharing of 
responsibility.  The importance of attaining such comparable policies will  manifest 
itself especially with respect to the realization of the free movement of persons as 
foreseen in Article 7a of the Treaty Establishing the European Community. 

5. 

6. 

7. 

8. 

One very relevant and fundamental  characteristic of temporary protection is that it 
is  not  a right established  by  any  international  instrument:  States  grant  it  as  an 
autonomous act, and for  the most part national legislation is carefully  worded  to 
keep it that way. The proposed joint action does not seek to introduce a new  right 
to seek temporary protection in addition to the existing right to seek: asylum. This 
approach is realistic and takes into account the history of temporary protection in 
Europe,  and  stresses  the  exceptional  character  of  any  temporary  protection 
regime. Indeed, if a right to seek temporary protection does not exist, the right to 
seek asylum remains essential. 

People who are temporarily displaced from their country of origin are protected in 
the  Member  States  of  the  European  Union  by  the  European  Convention  on 
Human Rights,  the  European  Social  Charter  and  other  applicable  international 
conventions  in  the field of  human rights. Hence  they  enjoy  certain  rights  with 
respect  to  housing,  education,  personal  inviolability  etc.  In  this  context  the 
protection against "refoulement" provided by Article 33 of the Geneva Convention 
and  Article  3  of  the  European  human  rights  convention  is  to  be  regarded  as 
essential.  It  is, however,  of great importance to restate those minimum rights in 
the framework of a joint  action for the coordination of the regimes of temporary 
protection  of  the  Member  States,  so  as  to  avoid  distortions  in  the  streams  of 
displaced  persons  who  would  otherwise flow to  those  states  where  they would 
seem to have the most  rights. 

9. 

Although  the  proposed  joint  action  is  of  a  binding  nature,  its  provisions  relate 
solely to a common approach of Member States when opening up and phasing out 
a  temporary  protection  regime  and  to  the  minimum rights to  be  granted  to  its 
beneficiaries.  As  long  as  the  Council  has  not  decided  to  open  up  a  temporary 
protection  regime,  Member  States  remain free to  adopt  adequate  measures  for 
persons in need of international protection on an autonomous basis. 

II. 

Commentary on the Articles 

Article J 

10.  Article  1  proposes definitions for a number of key concepts used in the draft joint 

action.  Strictly  speaking,  the  term  "temporary  protection  regimes"  covers  all 
arrangements other than those involving admission as a refugee  under the Geneva 
temporary 
Convention  or  admission  on  humanitarian  grounds.  However, 
protection  has been deemed  an appropriate response to  mass influxes  of persons 
seeking refuge abroad, most of whom are not Convention refugees  but refugees in 
a wider sense. Thus, the definition of "persons in need of international protection" 
has been drawn up in rather broad terms, to cover not only situations where mass 
influxes  have occurred, but also cases when it becomes clear that they cannot be 
avoided.  This would  allow anticipatory  action.  The categories  listed  have been 
inspired  by those laid  down in UNHCR's  1994 Note  on International  Protection 
(UN Doc. A/AC.96/830, para. 47). 

Article 2 

11. 

Article 2(1) contains a transitional clause, which provides that the joint action does 
not  apply  to  persons  admitted  as  beneficiaries  of  temporary  protection  regimes 
before its adoption. The aim of this provision is to avoid interference with existing 
situations by imposing  different rights on persons admitted on the basis of purely 
national decisions. 

Temporary  protection  is  normally  granted  to  well  defined  groups  of  persons  in 
need  of  international  protection.  Regardless  of the  criteria for  determining  those 
groups, the implementation  of a temporary protection  regime must not  entail any 
discrimination  with  regard  to  its  beneficiaries.  Therefore,  Article 2(2)  contains 
such a provision,  which corresponds to the principle laid down in Article 3 of the 
Geneva  Convention,  and  is  also  in line  with  the  Commission  communication  on 
racism (COM(95) 653 final, point 2.3.7). 

Article 2(3) contains an important provision: Member States remain free to grant a 
more  favourable  status  to  persons  in  need  of  international  protection.  The 
joint action should be regarded as containing minimum standards. 

Article 3 

12. 

13. 

14. 

This joint  action  is  based  on  the  assumption  that  there  is  a  need  for  increased 
cooperation with regard to the introduction of a temporary protection regime for 
specific  groups. Geographical  proximity or historical ties will  continue to exercise 
a  determining  influence 
in  the  choice  of  destination  by  persons  seeking 
international protection.  However,  as has been  seen in the context  of the crisis in 
the former  Yugoslavia,  if such persons have a choice between  seeking temporary 
protection  in  a Member  State  which  has  introduced  a  full  temporary  protection 
regime  or  in  a  Member  State  which  has  not  done  so,  that  is  likely  to  have  a 
significant  influence  on  their  choice,  because  of  the  differing  degrees  of  legal 
security involved. 

Article  3  does  not  exclude  the possibility  of  a Member  State  applying temporary 
protection in individual cases without  a specific  decision  of the  Council.  In some 
Member  States,  exceptional  leave  to  remain  is  an  important  instrument  to  deal 
with a variety of cases. The proposal solely relates to mass influx situations, where 
there is a risk of distortionary effects on a significant scale. 

Article  3(1)  states that when  opening  a temporary  protection  regime the Council 
is  to  examine whether  adequate  protection  can be  found  in the  region  of origin. 
In  this  context,  "region  of  origin"  is  to  be  understood  as  relating  to 
neighbouring countries. 

Article  3(2)  refers to the  establishment  of the potential  groups  of beneficiaries  of 
temporary  protection.  It  does  not  in  itself  define  the  groups  of  potential 
beneficiaries,  since that will depend on each individual  situation. Definitions which 
appear precise would  be  misleading  in this respect,  not  only because  they  would 
not  be  applicable  under  all  circumstances,  but  also  because  they  could  give  the 
impression  of  seeking to  introduce  a new  criterion in addition to  those  set  out in 
the Geneva Convention. Furthermore, as pointed out in the general considerations, 

5 

the proposed joint action is not intended to create new individual rights. However, 
some  guidelines  can  be  found  in  earlier  work  at  the  EU  level,  in  particular  in 
Point  1(a)  of the Resolution  on burden-sharing with regard to  the  admission and 
residence  of  displaced  persons  on a temporary  basis,  adopted  by the  Council  on 
25 September  19951, which identifies the following categories: 

-

persons  who  have  been  held  in a prisoner-of-war  or  internment  camp and 
who cannot otherwise be saved from a threat to life or limb; 

persons  who  are  injured  or  seriously  ill  and  for  whom  medical  treatment 
cannot be obtained locally; 

persons  who  are,  or  have  been,  under  a  direct  threat  to  life  or  limb  and 
whose protection in their region of origin cannot otherwise be secured; 

persons who have been subjected to  sexual assault provided that there is no 
suitable means for assisting them in safe areas situated as close as possible to 
their homes; 

persons  who,  having  come  directly  from  combat  zones,  are  within  the 
borders  of their countries  and cannot return to  their homes  because  of the 
conflict and human rights abuses. 

15. 

Accordingly,  Article  3(2)  does  not  determine  the  duration  of  the  temporary 
protection regime. This period will be determined by the Council for each  specific 
situation.  It  will  in  each  case  clearly  indicate  the  date  by  which  the  temporary 
protection regime will expire. Nevertheless, the Council may decide to extend that 
time limit in accordance with Article 4, first indent. 

Article 4 

16. 

The purpose of Article 4 is, first, to establish the conditions for the Council being 
kept as well  informed  as possible of the developments in the country of origin. In 
order  to  ensure  continuity,  responsibility  for  producing  the  situation  report 
concerned  is  attributed  to  the  Commission.  In  carrying  out  that  task,  the 
Commission  will  rely  on  a  number  of  external  sources  for  help,  in  particular  of 
course  the  Member  States,  but  also  international  organizations  and  non 
governmental  organizations.  Internal  sources  could,  for  example,  be  the 
Commission's own delegations in relevant host countries outside the EU. 

A yearly review of the situation in the country of origin seems reasonable to allow 
for  consistent  and  sustained  monitoring  of  events  and  of  the  application  of  the 
temporary  protection  regime  by  Member  States.  This  does  not  preclude  the 
possibility for the Commission to produce short-term reports whenever necessary. 
If  such  evaluation  reports  are  to  be  useful  in  enabling  the  Council  to  take  its 
decision  on  the  extention,  adjustment  or  phasing  out  of  temporary  protection 

OJ No C 262, 7.10.1995, p. 1. 

17. 

18. 

1.9. 

regimes, they must be submitted  at least  six months before  the  end of the period 
set by the Council under Article  3.  The Council will  have  to  make  a decision at 
least three months before the end of that period,  so that  all the  relevant  practical 
steps can be taken. 

Article  4, first indent  deals with the  situation in which,  at  the  end  of  the  period 
defined in accordance with Article 3(2), the situation in the country of origin does 
not  yet  allow  for  a  safe  return  under  humane  conditions  of  all  or  part  of  the 
beneficiaries.  In  such  cases,  the  Council  is  to  revise  its  initial  decision  on  the 
opening  of  the  temporary  protection  regime.  Such  revision  may  entail  a  simple 
short-term  extension  of  the  existing  time  limit,  if  for  example  there  are  strong 
indications that the need for protection is likely to disappear in the near future.  A 
revision  may  also  involve  a partial  or  complete  redefinition  of  the  categories  of 
people benefiting from the temporary protection regime. 

Just  as  it  is  important  to  cooperate  from  the  beginning  of  the  application  of 
temporary  protection  by  Member  States,  the  return  of  temporary  protection 
beneficiaries needs to be well coordinated, in order to avoid confusion arising  from 
each Member  State  negotiating  directly  with the  country  of  origin  and with  the 
international  organizations  concerned.  Article  4,  second  indent  deals  with  the 
situation where a "safe return under humane conditions" has become possible. 

The term "safe return under humane conditions" should be regarded as equivalent 
with  other  notions  used  in  that  context,  as  for  example  "safe,  dignified  and 
humane  return",  or  "return  in  safety  and  with  dignity"  (the  latter  one  being 
used  and  defined 
in  the  UNHCR  Handbook  on  Voluntary  Repatriation: 
International  Protection,  Annex  5,  Geneva  1996).  In  Annex  Seven  to  the 
Dayton Peace  Agreement  on  Refugees  and Displaced  Persons,  "safety"  has been 
defined  as  return  "without  risk  of  harassment,  intimidation,  persecution,  or 
discrimination,  particularly  on  account  of  ...  ethnic  origin,  religious  belief,  or 
political  opinion"  (General  Framework  Agreement  for  Peace  in  Bosnia  and 
Herzegovina,  Annex  7,  Article  1,  para.2).  The  concept  of  "safe  return  under 
humane conditions" involves, at least, the following elements: 

the right to return freely to the homes of origin; 

safety, including physical and legal safety; 

non-discrimination and respect for  other fundamental human rights,  as for 
example freedom of  movement,  respect  for  family  life, freedom of  opinion 
and religion, property rights, etc.; 

in order to  provide  for  the basic  needs  of  returnees  and to  enable them  to 
reintegrate,  assistance  and  shelter may  also  be  a necessary  element,  often 
requiring international aid; 

repatriation  may  also  require  an  effective  system  for  monitoring  the 
reintegration process, through the establishment and functioning of domestic 
and international mechanisms for the protection of returnees' human  rights. 

All these elements will need prior agreements between the parties involved. In the 
event  of a decision taken by the  Council to  phase out  the temporary  protection 
regime  in  accordance  with  Article  4,  second  indent,  agreements  between  the 
countries of origin and the European Union, in cooperation with UNHCR, will be 
appropriate. 

-•*"-• 

20. 

The final paragraph of Article 4 emphasizes the preference to be given to voluntary 
return, since this is by far the least complicated and most humane option. National 
administrations  will not  have to  deal with  "last-minute"  asylum  applications  and 
the  persons  concerned  can  draw  up  their  own  return  plan.  Cooperation  with 
UNHCR, IOM and other relevant organizations is needed, as those organizations 
have developed relevant return programmes in the past. 

Article 5 

21.  With regard to the question raised in Article 5, it should be kept in mind that one 
of the very purposes of the joint action is precisely to create the conditions for an 
effective  sharing of the responsibility  with  regard  to  mass influxes  of persons in 
need  of  international  protection.  Article  5  reflects 
the  content  of  the 
Council resolutions  on  burden-sharing  which  foresee  the  possibility  of  taking 
measures  based  on  solidarity  if  one  or  more  Member  States  are  particularly 
affected  by  mass-influxes.  Such  measures  may  for  example  take  the  form  of 
financial  compensation  and/or,  if  that  is  not  sufficient,  a  fair  allocation  of  the 
persons who are fleeing from the crisis regions. 

Article 6 

22.  Article 6 relates to the residence authorization to be delivered by Member  States 
to the beneficiaries of the temporary protection regime under the decisions referred 
to in Articles 3 and 4. 

23.  Articles  7,  8 and  9 set  out  a number  of minimum rights relating  to  status  to be 
accorded in the context of temporary protection regimes. Distortionary effects can 
arise if there are major differences  between temporary protection regimes in so far 
as some of the basic rights of beneficiaries are concerned. It is, therefore, proposed 
that  Member  States  adopt  a  common  stand  on  these  rights.  The  Articles  are 
couched in general terms to make it clear that modalities will have to be laid down 
in national legislation  and may differ  accordingly.  As the proposal  is framed as a 
joint  action, these provisions are not intended  to  create individual  rights and are, 
therefore, not self-executing, 

24.  Not  all Member  States  currently  grant  all the rights mentioned  in these Articles. 
However,  consistent  with the  philosophy  of the  1991 work  programme  and  the 
1994  Commission  Communication  on  Immigration  and  Asylum  Policies,  a 
comparable  level  of  social  rights  should  be  provided  for.  The  underlying 
consideration in this respect is that the greater the similarity between the measures 
adopted by the Member States, the less the pull factors will influence the choice of 
destination by those seeking protection. 

Article  7 

25. 

In most Member States, there is no right to family reunification, but exceptions are 
made  on  a  case-by-case  basis.  In  general,  family  reunification  is  offered  to  the 
spouse and the minor and unmarried children of individuals who have been granted 
protection,  although  in  a  limited  number  of  cases,  such  as  Austria,  Spain  and 
Portugal,  extended  family  members  -  such  as  dependent  parents  -  may  also  be 
granted protection. 

Article 7 proposes a right to family reunification, but limits this right to the nuclear 
family. It leaves it up to Member States to lay down the conditions for  admission 
of  dependent  family  members  who  do  not  belong  to  the  nuclear  family.  Since 
temporary  protection  can  last  over  a  period  of  several  years,  it  would  cause  a 
significant  encroachment oh family life if the right to family reunification  were not 
extended to  beneficiaries  of temporary protection  regimes. Moreover,  Article 10 
makes  it  possible  to  suspend  the  examination  of  asylum  applications  of 
beneficiaries  of  temporary  protection.  Among  them,  therefore,. there  may  be 
refugees who would normally have had an immediate right to family  reunification, 
once their refugee status had been recognized. 

26.  Article 7(2) reflects the often unstable situation in the country of origin. Although 
beneficiaries  of temporary  protection have to provide the best  evidence they can 
about  the  status  of  their  family  members,  it  may  not  always  be  possible  to 
obtain  the  necessary  certificates  which  would  have  been  required  under 
normal circumstances. 

Article 8 

27. 

The granting of permission  to  engage in gainful  activity to temporary  protection 
beneficiaries  is a somewhat more controversial issue and the extent to which it is 
granted seems to be inversely proportional to the number of individuals protected. 
Generally,  there  are  three  distinct  situations  with  respect  to  access  to  the  job 
market with increasing levels of  flexibility: 

In two countries, Denmark and Greece, such a possibility does not exist and 
in  two  others,  Germany  and  the  Netherlands,  there  is  an  initial  waiting 
period after which work permits may be issued; , 

In  a  number  of  countries,  access  to  the job  market  is  contingent  on  the 
issuance of work permits which are generally valid for a period of one year, 
but are usually renewable throughout the period of protection; 

In  some  countries,  such  as  Portugal,  Spain,  Sweden  and 
the 
United Kingdom,  the  rights  of  the  temporary  protection  beneficiaries  are 
comparable 
the  right  to  collect 
unemployment benefits as is the case in Finland and Luxembourg. 

those  of  nationals, 

including 

to 

28.  Not  all Member  States currently grant permission to engage in gainful  activity to 
beneficiaries  of  temporary  protection.  This  situation  may  lead  to  secondary 
movements  of  persons  admitted  under  a  national  temporary  protection  regime 
from a Member  State which  does  not  grant  the right to  employment  to another 

9 

Member State where such a right exists. Another reason to allow beneficiaries  to 
engage  in  gainful  activity  is  to  prevent  them  being  drawn  towards  a  "black" 
labour market.  Furthermore,  taking  into  account  the  nature  of  temporary 
protection,  it  would  be  difficult  to  justify  any  distinctions  made  between 
beneficiaries  of temporary protection and nationals or refugees  under the Geneva 
Convention,  when it  comes  to  employment  conditions,  remuneration  and  social 
security. The term "gainful  activity" is to be understood  as covering employment 
as  well  as  self  employment.  Accordingly,  the  term  'social  security'  should  be 
understood as defined in Article 24(1 )(b) of the Geneva Convention. 

Article 9 

29. 

In  general,  individuals  granted  temporary  protection  are  received  in  reception 
facilities which, in the majority  of Member  States, are already being used for the 
reception  of  asylum  seekers.  It  appears,  however,  that  private  or  community 
housing  is  also  available  and  allowed  in  the  majority  of  the  Member  States. 
Accommodation in reception facilities is financed and administered by the recipient 
states, and in a minority of countries, such as Sweden, private housing may also be 
subsidized by the state. Only in one Member  State, the United Kingdom, is there 
no system of reception. Initially, most Member States now provide special housing 
facilities to beneficiaries of temporary protection, but if their stay exceeds a certain 
period  of  time,  more  permanent  housing  accommodation  is  normally  offered. 
Article 9(1) reflects this. 

30.  As  with  access  to  employment,  the  Member  States'  policies  range  between 
allowing no access to welfare benefits (Italy) to allowing the protected individuals 
an  access  comparable  to  that  of  nationals  (United  Kingdom,  Finland).  In  the 
majority  of  Member  States,  individuals  are  allowed  access  to  the  health  care 
system. In some Member  States where individuals have limited  access to  welfare 
benefits, assistance in cash or in kind is provided for their daily sustenance. 

The  sentence  concerning  welfare  benefits  is  carefully  worded,  leaving  it  up  to 
Member States to determine the modalities in the light of the normally temporary 
nature of the admission of beneficiaries of temporary protection, and in the light of 
the individual  possibilities  for  beneficiaries  to  provide for  their  own  subsistence. 
According  to  Article  8,  beneficiaries  taking  up  employment  will  enjoy  social 
security rights as Convention refugees. 

31. 

The educational services available to beneficiaries  of temporary protection vary in 
accessibility and comprehensiveness.  Usually,  some degree of access to the local 
education  network  is  guaranteed  and  there  are  projects  which  offer  language 
training to protected individuals. In a few countries, such as France and Portugal, 
there are no initiatives on the part of the state. In the majority  of countries, minor 
children  have  access to  primary  education,  as is the  case  in Belgium,  Germany, 
Italy, the Netherlands and Spain. Also, in a significant number of countries, such as 
Austria,  Denmark,  Luxembourg,  Sweden  and  the  United  Kingdom,  individuals 
under  temporary  protection  have  the  same  claim  to  education  facilities  as 
recognized  refugees. 

10 

The  right  to  education  is  a  fundamental  human  right  laid  down  in  Article  2  of 
Protocol  1  to  the  European  Convention  on  Human  Rights.  It  is,  therefore, 
normally  granted  to  all  beneficiaries  of  temporary  protection  in  the  compulsory 
education  age bracket.  Other  forms  of (extended)  public education  should  also be 
open to beneficiaries  of temporary protection,  since this would make it possible for 
them to acquire the necessary skills for their further  development, either in the host 
country or subsequently when they return to their country of origin. 

Article 10 

32. 

The importance of the right to seek asylum has already been stressed in the chapter 
on  general  considerations.  Article  10  reflects  that  idea,  while  enabling  the 
suspension  of  examination  procedures  for  as  long  as  temporary  protection  is 
offered  and, in any event, for no longer than a maximum period of five years. 

Article 11 

33. 

Article  11 contains a number of exclusion clauses, which are directly derived  from 
Articles  1(F) and 33 of the Geneva Convention. 

Article 12 

34.  Whereas  the  joint  action  provides  the  general  rules  applicable  to  temporary 
protection  regimes  and  some  minimum  rights  relating  to  the  status  of  its 
beneficiaries,  the  establishment  and  and  phasing  out  of  such  regimes  can  thus  be 
decided  by the Council  as an implementing  measure  of this joint  action.  Qualified 
majority 
is  needed  in  order  to  ensure  the  effectiveness  of  the  proposed 
coordination mechanism with regard to the establishment, the revision as well as to 
the phasing out of the temporary protection regime. 

35. 

Any  decision  to  apply temporary  protection  in  cases  of new  mass  influxes  would 
seem to  come  clearly within the  category  of the  "principal  aspects"  of third  pillar 
activities referred  to in Article K.6 and would therefore  require consultation  of the 
European Parliament,  even if there is no specific  mention of this in the joint  action. 
However,  consultation  should  not  hamper  rapid  decision-making.  Article  4  gives 
the  European  Parliament 
its  views  and  make 
the  possibility 
recommendations on the basis of the report prepared by the Commission. 

to  express 

It is, however,  suggested  that, in addition to the cooperation  referred  to in the last 
paragraph  of Article  4, Member  States  should  seek  the  opinion  of UNHCR  when 
deciding  to  establish,  revise  or  phase  out  the  temporary  protection  regime.  The 
General  Assembly  of the  United  Nations  has  consistently  asked  UNHCR  to  deal 
with  mass  influxes  of  persons  in  need  of  international  protection,  even  if  they 
to  ensure 
are  not  necessarily  refugees.  UNHCR's  assistance  would  help 
proper coordination  with  action  of  a  more  global  nature,  and  would  take  into 
account  the  role  that  temporary  protection  may  play  in  the  context  of  a 
comprehensive  strategy. 

36. 

In  view  of  the  importance  of  the  measures  implementing  the  joint  action,  it  is 
suggested that they be published  in the Official  Journal. 

11 

Article 13 

37. 

In  order  to  preserve  the  concept  that  these  regimes  are  indeed  intended  to  be 
temporary, it is necessary to address the question of how long the temporary status 
can be allowed  to  last before  a decision is taken on converting  it into-something 
permanent. This question is being examined by the international  community and it 
is  one  on  which  the  European  Union  could  take  a  lead.  Therefore,  it  is 
recommended  in Article  13  that Member  States  should  examine  that  question  if, 
five years after the initial decision to  set up a temporary protection regime, a safe 
return under humane conditions of the persons concerned is still not possible.» The 
examination  should  focus  on the  possibility  of  introducing  longer-term  measures 
for beneficiaries of temporary protection. 

Article 14 

38. 

In order to  give immediate  effect  to the present joint  action, which is justified by 
the  urgency  required  in  situations  of  mass  influx,  Article  14  provides  for 
the  entry  into  force  cf  the  joint  action  on  the  day  of  its  publication  in  the 
Official  Journal.  This  provision  is  logical  since  the joint  action  does  not  in itself 
create individual  rights. 

12 

Proposal to the Council for a Joint Action 
based on Article K.3(2)(b) of the Treaty on European Union 
concerning temporary protection of displaced persons 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  European  Union,  and  in  particular  Article  K.3(2), 
point (b) thereof 

Having regard to the proposal from the Commission2, 

Having regard to the opinion of the European Parliament3, 

Whereas, pursuant to Article K.1, point  1, of the Treaty, avium policy is regarded  as a matter 
of common interest for the Member States; 

Whereas,  in  conformity  with  Article  K.2  of  the  Treaty,  the  principle  of  non-refoulement, 
guaranteed  by the  Convention  relating  to  the  Status  of Refugees  of  28  July  1951, and  the 
European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms  of 
4 November 1950, should be observed in all situations; 

Whereas the number of displaced persons in Europe has dramatically increased in recent years; 

Whereas the Member  States and the institutions of the Union have repeatedly  expressed their 
concern  about  the  situation  of  displaced  persons,  in  particular  in  the  conclusion  on  people 
displaced by the conflict in the former Yugoslavia, adopted by the ministers with responsibility 
for  immigration  at  their  meeting  in  London  on  30  November  and  1 December  1992,  the 
resolution  on  certain  common  guidelines  as regards  the  admission  of  particularly  vulnerable 
groups of persons from the former Yugoslavia, adopted by the ministers with responsibility for 
immigration  at  their  meeting  in  Copenhagen  on  1  and  2  June  1993,  the  Commission 
communication4  to  the  Council  and  the  European  Parliament  on  immigration  and  asylum 
policies  and  the  European  Parliament  resolution5  on  the  Commission  Communication  on 
immigration and asylum policies; 

Whereas the Council has adopted on 25 September  1995 a Resolution6 on burden-sharing with 
regard  to  the  admission  and  residence  of  displaced  persons  on  a  temporary  basis  and,  on 
4 March  1996,  a  Decision7  on  an  alert  and  emergency  procedure  for  burden-sharing  with 
regard to the admission and residence of displaced persons on a temporary basis; 

OJNo 
OJNo 
COM(94) 23 final, 23.2.1994. 
OJNoC269,  16.10.1995, p. 156. 
OJ No C 262, 7.10.1995, p. 1. 
OJNoL63,  13.3.1996, p. 10. 

13 

Whereas  the  Council  has  recognized  in  the  abovementioned  resolution  that  an  actual  or 
probable mass influx of displaced persons into the territory of the Member  States may require 
prompt and coordinated action in order to avert a serious threat to human life; 

Whereas  such  a  coordinated  approach  should  demonstrate  solidarity  between 
the 
Member States  and  reflect  Europe's  humanitarian  tradition,  thus  ensuring  that  all  persons  in 
need  of  international  protection  within  their  jurisdiction  are  treated  in  conformity  with 
human dignity; 

Whereas  it  is  necessary,  therefore,  to  decide  on  the  establishment  of  a temporary  protection 
regime in specific situations at the level of the Union; 

Whereas  it  is  also  necessary  to  lay  down  the  minimum  content  of  the  rights  relating  to 
the  status  of  the  displaced  persons  who  will  be  placed  under  such  a  regime  of 
temporary protection; 

Whereas  decisions  to  set  up  specific  temporary  protection  regimes  implementing  this  joint 
action should be taken by qualified majority, 

HAS ADOPTED THIS JOINT ACTION. 

Article  1 
Definitions 

For the purpose of this joint action: 

(a) 

(b) 

"temporary protection  regime"  means  an  arrangement,  pursuant  to  this  joint  action, 
offering protection of a temporary nature to persons in need of international protection; 

"persons  in  need  of  international  protection"  means  any  third  country  national  or 
stateless person who has left his or her country of residence and whose safe return under 
humane  conditions  is  impossible  in  view  of  the  situation  prevailing  in  that  country, 
in particular: 

persons  who  have  fled  from  areas  affected  by  armed  conflict  and 
persistent violence; 

persons who have been or are under a serious risk of exposure to  systematic  or 
widespread human rights abuses, including those belonging to groups  compelled 
to leave their homes by campaigns of ethnic or religious persecution; and 

persons who  for  other reasons  specific  to their personal  situation  are presumed 
to be in need of international protection; 

(c) 

"mass influx of persons  in need  of international protection"  means the arrival within the 
Union  of  a  significant  number  of  persons  who  claim  to  be  in  need  of  international 
protection or a strong probability that such a situation may soon arise; 

14 

(d) 

(e) 

"Geneva Com>ention"  means  the  Convention  relating  to  the  Status  of  Refugees  of 
28 July 1951, as amended by the New York Protocol of 31 January 1967; 

"recognized refugees"  means  persons  who  have  obtained  refugee  status  under  the 
Geneva Convention. 

-„ 

Article  2 
General  provisions 

1. 

This joint action shall not apply to persons who were admitted by Member States in the 
context of national temporary protection regimes set up before  the  entry into force  of 
this joint action. 

2.  Member States shall apply the provisions of this joint action without discrimination as to 

race, religion, or nationality. 

3. 

This joint action is without prejudice to the prerogative of Member States to grant more 
favourable conditions to persons in need of international protection. 

Article 3 
The establishment of temporary protection regimes 

1. 

In cases of mass influx of persons in need of international protection, the Council, taking 
into consideration whether adequate protection can be found in the region of origin, shall 
decide to establish a temporary protection regime in accordance with the procedure set 
out in Article 12(1). 

2. 

The decision referred to in paragraph  1  shall determine the specific groups of persons to 
which the temporary protection regime applies and its duration. 

Article 4 
Revision  and/or phasing out of temporary protection  regimes 

Every  year,  and  at  least  six  months  before  the  end  of  a  temporary  protection  regime,  the 
Commission shall submit to the European Parliament  and the Council a report on the situation 
in the  country  of  origin  and  on  the  application  of  the  temporary  protection  regime  by  the 
Member States, as well as on its financial implications. 

In the light of this report, and at least three months before the end of a temporary  protection 
regime, the-Council shall, in accordance with the procedure set out in Article 12(1), 

decide to revise the decision taken in accordance with Article 3; or 

decide on the phasing out  of the temporary protection regime and on the return of the 
persons concerned,  if the  situation  in the country  of origin  allows  a  safe  return  under 
humane conditions. 

In organizing the return, priority will be given to the furtherance  of voluntary repatriation, in 
close  cooperation  with  the  international  organizations  concerned,  and  in  particular  the 
United Nations Hieh Commissioner for Refugees. 
United Nations High Commissioner for Refugees. 

V J - V t JW  W V U V l U V A V ll 

1 1 1 1 - V1  X A M U X / 1 MM 

T » » W1  W 1V 

V i ^ VU 

15 

Article S 
Assistance to Member States which are particularly  affected 

On the basis of the report of the Commission referred to in Article 4, the Council shall examine 
how best to assist Member  States which have been particularly affected  by the mass influx of 
persons in need of international protection. 

Article 6 
Residence  authorization 

Member  States  shall  deliver  a  residence  authorization  to  the  beneficiaries  of  the  temporary 
protection regime for the duration of the regime. 

Article  7 
Family  reunification 

1.  Member  States  shall  ensure  mat  beneficiaries  of  a  temporary  protection  regime  have 
the right  to  family  reunification  with  respect  to  their  spouses  and  their  minor  and 
dependent children. 

2.  When  deciding  on  family  reunification,  the  absence  of  documentary  proof  of  the 
marriage or of the filiation of children should not in itself be considered  an impediment. 
All the relevant facts and circumstances should be taken into account in order to assess 
the validity of any evidence and the credibility of the claimant's statements. 

Article  8 
Employment and social security 

Member States shall ensure that beneficiaries of a temporary protection regime will be granted 
permission  to  engage  in  gainful  activity.  There  shall  be  equality  of  treatment  between 
beneficiaries  of  a 
regarding 
remuneration, social security and other working conditions. 

temporary  protection  regime  and  recognized  refugees 

Article 9 
Housing, welfare benefits  and  education 

1.  Member  States  shall endeavour  to  provide the beneficiaries  of a temporary  protection 
regime with housing facilities similar to those granted to recognized refugees.  However, 
as a provisional measure, temporary housing may be offered  during a period of one year 
from  the beginning of the temporary protection regime. 

2.  Member  States  shall  ensure  that  the  beneficiaries  of  a  temporary  protection  regime 
receive all the necessary support,  in particular with regard to means of subsistance and 
medical  care.  Where  the  beneficiaries  have  access  to  gainful  activity,  their  ability  to 
provide for their own subsistence is to be taken into account in determining the level and 
nature of support arrangements. 

3.  Member States shall ensure that the beneficiaries of a temporary protection regime have 

access to public education under the same conditions as recognized refugees. 

16 

Article  10 
Asylum 

The examination of an application  for  asylum under the Geneva Convention introduced  by a 
beneficiary of a temporary protection regime may be postponed for as long as the Council has 
not  adopted a decision on the phasing out of the temporary protection  regime in accordance 
with Article 4, second indent, but in any event for a period not exceeding five years from the 
beginning of the temporary protection regime. 

Article  11 
Exclusion clauses 

The benefit  of a temporary  protection  regime  shall not  apply to  any person  with  respect  to 
whom there are serious reasons for considering that he or she has 

committed a crime against peace, a war crime, or a crime against humanity, as defined in 
the international instruments drawn up to make provision in respect of such crimes; 

committed a serious non-political crime outside the country of refuge prior to his or her 
arrival on the territory of one of the Member States; 

been guilty of acts contrary to the purposes and principles of the United Nations; 

A Member State may refuse the benefit  of a temporary protection regime to any person whom 
there are reasonable grounds for regarding  as a danger to the security of that Member State, 
or who, having been convicted by a final judgement of a particularly serious crime, constitutes 
a danger to the community of that Member State. 

Article 12 
Implementing measures 

1.  On  the  initiative  of  any  Member  State  or  the  Commission,  which  may  ask  the 
United Nations High Commissioner for Refugees for his opinion, the Council shall adopt 
the measures implementing this joint action, as referred to in Articles 3 and 4, acting by a 
qualified  majority. 

2. 

The  implementing  measures  referred  to  in  paragraph  1  shall  be  published  in  the 
Official Journal of the European Communities. 

Article  13 
Long-term  protection  measures 

I£ five years  after  the  introduction  of  a  temporary  protection  regime,  the  Council  has  not 
adopted  a  decision  to  phase  out  the  regime  in  accordance  with  Article 4,  Member  States 
should  examine  whether  long-term  measures  should  be  introduced  for  beneficiaries  of 
temporary protection. 

17 

Article 14 
Final provision 

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

Done at Brussels, 

For the Council 
The President 

18 

ISSN 0254-1475 

COM(97) 93 final 

DOCUMENTS 

EN 

04  05 

Catalogue  number  :  CB-CO-97-094-EN-C 

ISBN  92-78-16715-0 

Office  for  Official  Publications of the European  Communities 

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