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"
Date: 2001-03-28
Institutions: European Economic and Social Committee
Subjects: Western Balkans, admission of aliens, aid to refugees, refugee, repatriation grant, residence permit

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Official Journal of the European Communities

C 155/21

5.6.2.
The Committee believes that all Member States
involved in ICZM should prepare reports on the working
methods adopted, the results of initiatives, the degree of
involvement of the social partners, etc. The reports would be
one of the sources of information for discussion at meetings
of the information exchange centre.

Brussels, 28 March 2001.

The Committee

therefore welcomes

5.7.
the work
accomplished with the demonstration programmes and
believes it should continue: the strategy to be employed should
also comply with the overall guidelines of Council Resolution
94/C 135/02.

The President

of the Economic and Social Committee

Göke FRERICHS

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:

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

— 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;

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— 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
firstly, by allocating financial
their reception efforts:
resources from the European Refugee Fund (which pro-
vides 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 arrange-
ments 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; unac-
companied 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
in
such as to permit long-term, safe and dignified return,
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 recog-
nition 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.

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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.

Unaccompanied minors must have a legal guardian
1.7.2.
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.

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 appli-
cable to infringements of the national provisions adopted
pursuant to the directive. Such penalties must be effective,
proportionate and dissuasive.

1.7.9.
to the
The Commission is to present a report
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.

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

2. Comments

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 protec-
tion.

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 Com-
mittee hopes that the Council will approve the proposed text
promptly without any significant amendments.

1.7.5. When the temporary protection ends, the ordinary
foreign
law governing protection, entry and residence of
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

The Committee points out that the particular circum-
2.2.
stances 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

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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
geographically and historically neutral, to be deployed as and
when it is needed.

is not a ‘Balkans Directive’, but

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.

Although the Committee notes and understands that
2.3.
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 dra-
matic, 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.

The Committee warmly appreciates the fact that the
2.6.
proposed directive makes a clear distinction between tempo-
rary 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.

2.8.
The Committee greatly appreciates the concern for
unaccompanied minors, as such cases are increasingly com-
mon. 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.

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

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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

Brussels, 28 March 2001.

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.

The Committee calls on all Member States,

2.14.1.
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 admin-

istrative procedures;

— availability of accommodation;

— health care, psychological help, and general advice and

guidance;

— access to education and training;

— help with integration.

The President

of the Economic and Social Committee

Göke FRERICHS