Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national" (COM(2001) 447 final — 2001/0182 (CNS)
Date: 2002-03-20
Institutions: European Economic and Social Committee
Subjects: admission of aliens, foreign national, liability of the State, member country, migration policy, right of asylum

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Official Journal of the European Communities

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should be disseminated and discussed in all the Member States
and applicant countries. Suggestions and feedback should be
absorbed into a further discussion process and used as a basis
for new initiatives. In this way it will be demonstrated that the

widespread application of provisions to promote voluntary
work and the willingness to put these on record can be
harnessed for the task of developing ways of promoting
voluntary work and establishing conditions conducive to it.

Brussels, 20 March 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation
establishing the criteria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by a third-country national’

(COM(2001) 447 final — 2001/0182 (CNS)

(2002/C 125/08)

On 30 August 2001, 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 unanimously on 27 February 2002. The rapporteur
was Mr Sharma.

At its 389th Plenary Session on 20 and 21 March 2002 (meeting of 20 March), the Economic and Social
Committee adopted the following opinion by 79 votes to one with three abstentions.

1.

Introduction

1.3.
After first considering a number of alternatives, the
Commission has decided to maintain the (current) criteria and
mechanisms for determining the Member State responsible for
examining an asylum application.

1.1.
This is a Commission proposal for a Council Regu-
lation laying down the criteria and mechanisms for determin-
ing the Member State responsible for examining an asylum
application lodged in one of the Member States by a third-
country national.

1.2.
The aim of the Commission’s proposal for a Regu-
lation, which is designed to replace the Dublin Convention, is
not merely to implement Article 63(1)(a) of the EC Treaty. The
aim is also to respond to the wish expressed at the Tampere
European Council
the criteria and mechanisms for
determining the Member State responsible for examining an
asylum application are to be based on a ‘clear and workable
method’ forming part of a ‘fair and efficient asylum procedure’.
The Regulation is designed to bring the Dublin Convention
into Community law.

that

1.4.
Thus, the general principle is that responsibility lies
with the Member State which played the greatest part in the
applicant’s entry into or residence on the territories of the
Member State, subject to exceptions designed to protect family
unity. It should be noted that the system for determining
the State responsible applies only to persons requesting
recognition of the status of refugee within the meaning of the
Geneva Convention of 28 July 1951 and does not cover the
forms of subsidiary protection which has not yet been
harmonised.

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1.5.
The proposal seeks to ensure that asylum seekers have
effective access to the procedures for determining refugee
status, prevent abuse of asylum procedures, close the loopholes
and correct the inaccuracies detected in the Dublin Convention,
adapt the system to the new realities resulting from the
progress made as regards the establishment of an area without
internal borders, determine the Member State responsible as
quickly as possible and increase the system’s efficiency.

1.6.

The proposal includes a number of innovations:

New provisions emphasise each Member State’s responsibility
vis-à-vis all its partners in the Union when it allows illegal
residents to remain on its territory, shorter procedural time
limits, extended time limits for implementing transfers to the
Member State responsible and provisions aimed to preserve
the unity of asylum seekers’ families.

2.4.
The second reference is to the Committee’s Opinion
on the Commission’s Communication to the Council and the
European Parliament: ‘Towards a common asylum procedure
and a uniform status, valid throughout the Union, for persons
granted asylum (2) in this opinion the Committee stated that,
at all events, it is clear that the Dublin Convention will need to
be revised in the light of the new overall approach proposed by
the Commission, paying particular attention to the following
aspects:

— Making the common position of 4 March 1996 legally
binding this provides a uniform interpretation of the
concept of refugee — after first correcting the concept of
persecution so that it includes persecution by non-state
bodies;

— Offering the asylum-seeker the possibility of choosing
the country he wishes to apply to, taking account of the
cultural and social factors which determine this choice
and which are crucial for faster integration;

— Guaranteeing the right to legal protection, information

and appeal;

2. General comments

— Defining minimum reception standards;

The Committee would like its opinion on the draft
2.1.
Regulation to be considered in the context of two previously
adopted opinions in this subject area.

2.2.
The first of these references is the Committee’s opinion
on the Commission’s proposal for a Council Directive on
minimum standards on procedures in Member States for
granting and withdrawing refugee status (1). In this opinion the
Committee stated that it should be remembered that the
Geneva Convention is a human rights’ instrument. The refer-
ences made in the preamble to the convention to the 1948
Universal Declaration of Human Rights strengthen the view
that protection of refugees should be seen as an integral
element of human rights’ protection, since it is based on
safeguarding the dignity and fundamental rights of all human
beings.

2.3.
Alongside the references to the Geneva Convention,
the Committee believes that there must also be references
to other relevant international conventions: the European
Convention on Human Rights; the International Covenant on
Civil and Political Rights;
the International Covenant on
Economic, Social and Cultural Rights; the Convention on the
Rights of the Child; the Convention on the Elimination of all
forms of discrimination against Women.

— Overcoming excessively slow transfers and the scarcity of

information given to asylum-seekers.’

2.5.
The Dublin Convention was introduced with the
two-fold aim of reducing multiple asylum applications (i.e.
submitted by one individual to several states), and of solving
the problem of asylum seekers being shunted from one
country to another.

In the light of experience, it is generally felt that the
2.6.
convention does not work as it should and creates more
problems than it solves. The volume of work and costs which
it entails are not proportional to the results, as many asylum-
seekers disappear before they are transferred, thus swelling the
ranks of illegal immigrants.

2.7.
In only 6 % of cases is there any debate as to which
Member State has the responsibility for determining the
application and, moreover, in 95 % of cases it is the Member
State, in which the asylum application is lodged, that assumes
responsibility for examining that application. The laborious
mechanism of the Dublin Convention is therefore only applied
to a very small proportion of all asylum application cases, and
of these, only 1,7 % are actually transferred to a Member State
other than in which the application was lodged. In the years
1998 and 1999, of the 655 000 applications for asylum only
10 998 asylum seekers were actually transferred to a Member
State other than the one to which they had applied. The figures
therefore demonstrate that only around 5 000 people are
successfully transferred/taken back per year.

(1) OJ C 193, 10.7.2001, points 2.1.1.1 and 2.1.2.

(2) OJ C 260, 17.9.2001, point 2.3.4.3.

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2.8.
The Committee’s conclusion is that this Regulation is
bringing into Community law the main features of a substan-
tially flawed Dublin Convention. Even after the improvements
proposed by the Commission we will not have a Regulation
that is clear, workable, effective, fair and humane.

2.9.
The Committee does accept however, that there may
well be a political imperative to proceed with this Regulation
at this moment in time. It therefore notes the greater emphasis
which is put on the principle of a Member State’s responsibility
for illegal entrants into its territory and those who have been
resident
time. The
illegally for a considerable length of
Committee also welcomes the greater importance attached to
family unity, although this falls well short of the Commission’s
proposals on family reunification. The Committee welcomes
the much shorter procedural deadlines which we hope will
lead to earlier determination of asylum applications.

3.3. Article 16

Article 16 refers to the circumstances in which a Member State
may consider the criteria of family reunification in determining
where an asylum application from a dependant person should
be processed. The Regulation proposes that ‘Member States
shall regard situations where one of the persons concerned, is
dependent on the assistance of the other on account of
pregnancy or maternity, their state of health or great age as
justifying the uniting of the asylum seeker with a member of
his family present in the territory of one of the Member States
in circumstances not provided for in this Regulation’. The
Committee proposes that the definition of family member be
widened to include the words or other relative.

3. Specific comments

3.1. Article 3

Article 3 refers to the criteria for determining which Member
State will be responsible for examining an asylum claim. It is
notable that unlike the Dublin Convention there is no reference
in this provision to Member States’ international obligations.
The Committee is concerned that Member States are reminded
of
law, such as the
European Convention on Human Rights and the Convention
against torture, when they undertake to examine asylum
applications.

their obligations under international

3.2. Article 6

Article 6 refers to the position of unaccompanied minors. It is
proposed that the Member State where there is a member of
his family who is able to take charge of him shall be responsible
for determining the application for asylum. The Committee
accepts that processing an application made by an unac-
companied minor can raise many problems and that in the
best interests of the minor and in completing the procedures
as rapidly as possible the definition of people who are eligible
to take charge of the child should not be unnecessarily
restrictive. The definition as proposed, excludes grandparents,
uncles and aunts and adult brothers and sisters, all of whom
might be equally suitable to take charge of the child. The
Committee therefore proposes that, in the best interest of the
minor, the definition of family member be extended to a
family member or another relative who is both able and
willing to take charge of the minor.

3.4. Article 18, paragraph 1

Article 18 concerns the timetable for requesting another
Member State to take charge of processing an asylum appli-
cation. The proposal is for a request to be lodged with another
Member State within a maximum limit of 65 working days.
The Committee believes that this time-scale is too short when
considering asylum applications from unaccompanied minors.
the time limit should be
The Committee proposes that
suspended and the 65 working days should only start to run
in the following circumstances:

— after the completion of an assessment of the suitability of
a family member or other relative to take charge of the
child;

— and, where it is necessary, after the outcome of the
admissibility procedure relating to the asylum application
of a family member or other relative.

3.5. Article 20

This provision provides for an appeal to the courts against a
decision on inadmissibility. However the appeal is not to have
suspensive effect on the basis that, ‘Since a transfer to another
Member State is not likely to cause the person concerned
serious loss that is hard to make good, it is not necessary for
the performance of the transfer to be suspended pending the
outcome of the proceedings’. The Committee does not accept
this rationale because it is extremely difficult for an asylum
applicant to maintain contact with lawyers who would have
to conduct the appeal. Most asylum applicants lead a hand-to-
mouth existence and international communications are likely
to be impossible.

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4. Conclusion

4.1. Whilst the Committee welcomes the improvements to
the Dublin Convention proposed in this Regulation, our
position remains that, harmonisation of asylum procedures,
reception conditions, interpretation of the definition of refugee
and other complementary forms of protection, should take
place before formulating a system for allocating responsibility
between Member States for examining of asylum applications.
In our view such harmonisation would reduce any perceived
incentives for asylum applicants to choose between Member
States when lodging their applications. No system of allocating
responsibility for considering asylum applications can function
fairly without harmonisation of the law and procedures.

At the European Council in Tampere the importance
4.2.
of both the European Union and individual Member States
respecting the right to seek asylum was reaffirmed, as was the

offer of guarantees to those who seek protection in, or access
to, the European Union.

4.3.
The right to seek asylum is contained in the Universal
Declaration on Human Rights is undermined by a system
which links allocation of responsibility for asylum applications
to responsibility for entry controls. Such a system encourages
States to prevent asylum applicants from ever reaching their
territory through an ever-increasing variety of control
measures.

Far from contributing to safeguarding of rights at
4.4.
national
level, this proposed regulation undermines those
rights. It encourages Member States to externalise their borders
and to take repressive measures against those seeking entry
into their territory with the result that asylum seekers are
forced into the hand of organised criminals involved in human
trafficking.

Brussels, 20 March 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Green Paper on compensation to crime
victims’

(COM(2001) 536 final)

(2002/C 125/09)

On 28 September 2001 the Commission decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the ‘Green Paper on compensation
to crime victims’.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 27 February 2002. The rapporteur was
Mr Melı´cias.

At its 389th Plenary Session (meeting of 20 March 2002), the Economic and Social Committee adopted
the following opinion by 85 votes to three with no abstentions.

1.

Introduction

1.1.
The State first took on the role of the injured party in
the settlement of criminal cases in the 18th century, thereby
taking the place of the victim. Ever since then, individuals who
are the victims of crime have increasingly lost the chance to
speak for themselves and have been ignored more and more

as they ceased to play any part in proceedings. The leading
role taken by the State, and the consequent sidelining of the
victim, have brought suffering and injustice for crime victims
and disrupted the social order.

A negative and unsustainable situation has thus
1.1.1.
developed which has slowly begun to be questioned only in
the last few years.