Proposal for a Council Decision on the signing of a Protocol to the Agreement between the European Community, the Republic of Iceland and the Kingdom of Norway, concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway
Date: 2005-04-08
Institutions: European Commission
Subjects: EU visa policy, Iceland, Norway, admission of aliens, judicial cooperation, mixed agreement, right of asylum

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 08.04.2005 
COM(2005)131 final 

2005/0031(CNS) 

Proposal for a 

COUNCIL DECISION 

on the signing of a Protocol to the Agreement between the European Community, the 
Republic of Iceland and the Kingdom of Norway, concerning the criteria and 
mechanisms for establishing the State responsible for examining a request for asylum 
lodged in a Member State or in Iceland or Norway 

Proposal for a 

COUNCIL DECISION 

on the conclusion of a Protocol to the Agreement between the European Community, the 
Republic of Iceland and the Kingdom of Norway concerning the criteria and 
mechanisms for establishing the State responsible for examining a request for asylum 
lodged in a Member State or in Iceland or Norway 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

I. 

POLITICAL AND LEGAL BACKGROUND 

On 19 January 2001 the European Community concluded an Agreement with the Republic of 
Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing 
the  State  responsible  for  examining  a  request  for  asylum  lodged  in  a  Member  State  or  in 
Iceland  or  Norway.  Article  12  of  that  Agreement  states  that  Denmark  may  request  to 
participate  in  the  Agreement,  and  that  the  conditions  for  such  participation  are  to  be 
determined by the Community, Norway and Iceland, acting with the consent of Denmark, in a 
Protocol to the Agreement. 

Pursuant to Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty 
on European Union and the Treaty establishing the European Community, Denmark did not 
take  part  in  the  adoption  by  the  Council  of  Regulation  (EC)  No  343/2003  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  (“the 
Dublin  II  Regulation”)  and  Council  Regulation  (EC)  No  2725/2000  concerning  the 
establishment of “Eurodac” for the comparison of fingerprints for the effective application of 
the  Dublin  Convention  (“the  Eurodac  Regulation”).  However,  Denmark  is  a  party  to  the 
Convention determining  the  State  responsible for examining applications for asylum lodged 
in one of the Member States of the European Communities (“the Dublin Convention”), signed 
in Dublin on 15 June 1990. 

On  16  February  2001  Denmark  asked  to  become  a  party  to  the  agreement  between  the 
European Community, Iceland and Norway. 

By decision of 6 May 2003, the Council authorised the Commission to negotiate a Protocol to 
the Agreement between the European Community, the Republic of Iceland and the Kingdom 
of Norway concerning the criteria and mechanisms for establishing the State responsible for 
examining  a  request  for  asylum  lodged  in  a  Member  State  or  in  Iceland  or  Norway,  in 
accordance with Article 12 of the Agreement. 

The  negotiations  for  the  conclusion  of  the  Protocol  to  the  Agreement  with  Norway  and 
Iceland culminated in the initialling of the text on 12 January 2005. 

The  attached  proposals  are  the  legal  instruments  for  signing  and  concluding  the  Protocol. 
With regard to the Community, the legal basis is Article 63(1)(a), taken in conjunction with 
the  first  sentence  of  the  first  subparagraph  of  Article  300(2)  for  the  signature  decision,  and 
Article  63(1)(a),  taken  in  conjunction  with  the  first  sentence  of  the  first  subparagraph  of 
Article 300(2) and the first subparagraph of Article 300(3), for the conclusion decision. That 
means  that  the  Council  takes  its  decision  by  qualified  majority  and  that  the  European 
Parliament is consulted on the conclusion of the Protocol. 

II. 

RESULTS OF THE NEGOTIATIONS 

The  Commission  takes  the  view  that  the  objectives  set  by  the  Council  in  its  negotiating 
directives  have  been  met  and  that  the  draft  Protocol  is  acceptable  to  the  Community.  The 

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Protocol comprises a total of six articles. It also has an Annex, which forms an integral part of 
it.  

The final contents of the Protocol can be summarised as follows: 

–  It  makes  the  Dublin  II  and  Eurodac  Regulations  and  their  implementing  regulations 
applicable to relations between the Kingdom of Denmark on the one hand and the Republic 
of Iceland and the Kingdom of Norway on the other. It also renders future amendments or 
new implementing measures applicable to these relations.  

–  It  gives  Iceland  and  Norway  the  right  to  present  written  pleadings  or  observations  to  the 
Court of Justice when a court in Denmark applies to the Court of Justice for a preliminary 
ruling  on  the  interpretation  of  a  provision  of  the  Agreement  between  the  European 
Community and Denmark. 

–  It provides for a conciliation mechanism in the event of disagreement between Denmark on 
the one hand and Iceland or Norway on the other hand on its interpretation or application. 

–  It lays down provisions relating to the end of its applicability. 

III. 

CONCLUSIONS 

In the light of the above considerations, the Commission proposes that the Council: 

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decide  that  the  Protocol  be  signed  on  behalf  of  the  Community  and  authorise  the 
President of the Council to appoint the person(s) duly empowered to sign on behalf 
of the Community; 

after  consulting  the  European  Parliament,  approve  the  Protocol  to  the  Agreement 
between  the  European  Community,  the  Republic  of  Iceland  and  the  Kingdom  of 
Norway  concerning  the  criteria  and  mechanisms  for  establishing  the  State 
responsible  for  examining  a  request  for  asylum  lodged  in  a  Member  State  or  in 
Iceland or Norway. 

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Proposal for a 

COUNCIL DECISION 

on the signing of a Protocol to the Agreement between the European Community, the 
Republic of Iceland and the Kingdom of Norway, concerning the criteria and 
mechanisms for establishing the State responsible for examining a request for asylum 
lodged in a Member State or in Iceland or Norway 

(Text with EEA relevance) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
63(1)(a),  taken  in  conjunction  with  the  first  sentence  of  the  first  subparagraph  of  Article 
300(2) thereof, 

Having regard to the proposal from the Commission1, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

By its decision of 6 May 2003, the Council authorised the Commission to negotiate a 
Protocol to the Agreement between the European Community, the Republic of Iceland 
and the Kingdom of Norway concerning the criteria and mechanisms for establishing 
the State responsible for examining a request for asylum lodged in a Member State or 
in Iceland or Norway. 

The  negotiations  for  the  signing  of  the  Protocol  took  place  between  June  2004  and 
January 2005. 

The Protocol initialled in Brussels on 12 January 2005 should be signed for conclusion 
at a later date. 

The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the 
position of the United Kingdom and Ireland annexed to the Treaty on European Union 
and the Treaty establishing the European  Community, will take part in adopting and 
applying this Decision. 

In  accordance  with  Articles  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  is  not  taking  part  in  the  adoption  of  this  Decision  and  is  not 
bound by it or subject to its application, 

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HAS DECIDED AS FOLLOWS: 

Sole Article 

Subject  to  conclusion  at  a  later  date,  the  President  of  the  Council  is  hereby  authorised  to 
designate the person or persons empowered to sign, on behalf of the European Community, 
the Protocol to the Agreement between the European Community, the Republic of Iceland and 
the  Kingdom  of  Norway  concerning  the  criteria  and  mechanisms  for  establishing  the  State 
responsible  for  examining  a  request  for  asylum  lodged  in  a  Member  State  or  in  Iceland  or 
Norway. 

Done at Brussels 

For the Council 
The President 

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2005/0031(CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of a Protocol to the Agreement between the European 
Community, the Republic of Iceland and the Kingdom of Norway 
concerning the criteria and mechanisms for establishing the State 
responsible for examining a request for asylum lodged in a Member State or 
in Iceland or Norway 

(Text with EEA relevance) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in 
particular Article 63(1)(a),taken in conjunction with the first sentence of the first 
subparagraph  of  Article  300(2)  and  the  first  subparagraph  of  Article  300(3) 
thereof, 

Having regard to the proposal from the Commission2, 
Having regard to the opinion of the European Parliament3, 

Whereas: 

(1) 

The Commission, on behalf of the European Community, has negotiated 
with  the  Republic  of  Iceland  and  the  Kingdom  of  Norway  a  Protocol  to 
the  Agreement  between  the  European  Community,  the  Republic  of 
Iceland  and  the  Kingdom  of  Norway  concerning  the  criteria  and 
mechanisms for establishing the State responsible for examining a request 
for asylum lodged in a Member State or in Iceland or Norway. 

(2) 

The Protocol was signed on behalf of the European Community on .......... 
2005,  subject  to  conclusion  at  a  later  date,  in  accordance  with  Council 
Decision .../....../EC of [..........]. 

(3) 

This Protocol must be approved. 

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(4) 

(5) 

The  United  Kingdom  and  Ireland,  in  accordance  with  Article  3  of  the 
Protocol  on  the  position  of  the  United  Kingdom  and  Ireland  annexed  to 
the  Treaty  on  European  Union  and  the  Treaty  establishing  the  European 
Community, will take part in adopting and applying this Decision. 

In  accordance  with  Articles  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 is not taking part in the 
adoption  of  this  Decision  and  is  not  bound  by  it  or  subject  to  its 
application, 

HAS DECIDED AS FOLLOWS: 

Article 1 

The  Protocol  to  the  Agreement  between  the  European  Community  and  the 
Republic  of  Iceland  and  the  Kingdom  of  Norway,  concerning  the  criteria  and 
mechanisms  for  establishing  the  State  responsible  for  examining  a  request  for 
asylum lodged in a Member State or in Iceland or Norway is approved on behalf 
of the Community. 

The text of the Protocol is annexed to this Decision.  

Article 2 

The  President  of  the  Council  shall  make  the  notification  provided  for  by  the 
second paragraph of Article 5 of the Protocol4. 

Article 3 

This Decision shall be published in the Official Journal of the European Union. 

Done at Brussels 

For the Council 
The President 

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The  date  of  entry  into  force  of  the  Protocol  shall  be  the  first  day  of  the  second  month 
following notification by the Contracting Parties. 

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ANNEX 

Protocol to the Agreement between the European Community and the 
Republic of Iceland and the Kingdom of Norway, concerning the criteria and 
mechanisms for establishing the State responsible for examining a request 
for asylum lodged in a Member State or in Iceland or Norway. 

The European Community 
and  
The Republic of Iceland 
and  
The Kingdom of Norway 
Hereinafter referred to as “the Contracting Parties” 

Bearing  in  mind  that  the  Protocol  on  the  position  of  Denmark,  annexed  to  the 
Treaty  on  the  European  Union  and  to  the  Treaty  establishing  the  European 
Community, provides that no measure adopted pursuant to Title IV of the Treaty 
establishing  the  European  Community  shall  be  binding  upon  or  applicable  in 
Denmark; 

Referring to Article 12 of the Agreement between the European Community, the 
Kingdom  of  Norway  and  the  Republic  of  Iceland  concerning  the  criteria  and 
mechanisms  for  establishing  the  State  responsible  for  examining  a  request  for 
asylum lodged in a Member State or in Iceland or Norway (hereinafter referred to 
as  “the  Agreement  between  the  European  Community,  Iceland  and  Norway”) 
which  states  that  the  Kingdom  of  Denmark  may  request  to  participate  in  this 
Agreement;  

Noting that Denmark by letter dated 16 February 2001 requested to participate in 
the Agreement; 

Recalling  that  according  to  Article  12  of  the  Agreement  between  the  European 
Community,  Iceland  and  Norway,  the  conditions  for  such  participation  by  the 
Kingdom of Denmark shall be determined by the Contracting Parties, acting with 
the consent of Denmark, in a Protocol to that Agreement; 

Considering  that  it  was  appropriate,  in  the  first  place,  for  Denmark  and  the 
Community  to  conclude  an  Agreement  in  order  to  settle,  in  particular,  matters 
relating to the jurisdiction of the Court of Justice and to the coordination between 
the Community and Denmark regarding international agreements; 

Considering the Agreement between the Community and Denmark on the criteria 
and mechanisms for establishing the State responsible for examining a request for 
asylum  lodged  in  Denmark  or  any  other  Member  State  of  the  European  Union 
and “Eurodac” for the comparison of fingerprints for the effective application of 

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the Dublin Convention (hereinafter called “The Agreement between the European 
Community and Denmark”); 

Considering that it is therefore necessary to fix the conditions whereby Denmark 
participates  in  the  Agreement  between  the  European  Community,  Iceland  and 
Norway  and  in  particular  it  is  necessary  to  establish  rights  and  obligations 
between Iceland and Norway and Denmark; 

Noting  that  the  entry  into  force  of  this  Protocol  is  based  on  the  consent  of 
Denmark, in accordance with its constitutional requirements. 

HAVE AGREED AS FOLLOWS 

Article 1 

The  Kingdom  of  Denmark  shall  participate  in  the  Agreement  between  the 
Community, Iceland and Norway, under the conditions set out in the Agreement 
between the European Community and Denmark and the present Protocol. 

1. 

2. 

3. 

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Article 2 

The provisions of the "Dublin II Regulation”5, which is annexed to this 
Protocol  and  forms  part  thereof,  together  with  its  implementing 
measures  adopted  pursuant  to  Article  27  (2)  of  the  "Dublin  II 
Regulation" shall under international law apply to the relations between 
Denmark on the one hand and Iceland and Norway on the other hand. 

The  provisions  of  the  "Eurodac  Regulation"6,  which  is  annexed  to  this 
Protocol  and  forms  part  thereof,  together  with  its  implementing 
measures  adopted  pursuant  to  Article  22  or  23(2)  of  the  "Eurodac 
Regulation" shall under international law apply to the relations between 
Denmark on the one hand and Iceland and Norway on the other hand. 

Amendments to the Acts referred to under paragraph 1 and 2 which are 
notified by Denmark to the Commission in accordance with Article 3 of 
the  Agreement  between  the  European  Community  and  Denmark  and 
which  are  notified  by  Iceland  and  Norway  to  the  Commission  in 
accordance  with  Article  4  of  the  Agreement  between  the  European 
Community, Iceland and Norway shall under international law apply to 

COUNCIL  REGULATION  (EC)  No  343/2003  of  18  February  2003  adopted  by  the 
Council of the European Union 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, O.J. L 50, 25.2.2003. 
COUNCIL  REGULATION  (EC)  No  2725/2000  of  11  December  2000  adopted  by  the 
Council  of  the  European  Union  concerning  the  establishment  of  “Eurodac”  for  the 
comparison of fingerprints for the effective application of the Dublin Convention, O.J. L 
316, 15.12.2000.  

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4. 

the relations between Denmark on the one hand and Iceland and Norway 
on the other hand. 

Implementing  measures  adopted  pursuant  to  Article  27  (2)  of  the 
"Dublin II Regulation" and implementing measures adopted pursuant to 
Article  22  or  23(2)  of  the  "Eurodac  Regulation"  which  are  notified  by 
Denmark  to  the  Commission  in  accordance  with  Article  4  of  the 
Agreement between the European Community and Denmark and which 
are  notified  by  Iceland  and  Norway  to  the  Commission  in  accordance 
with  Article  4  of  the  Agreement  between  the  European  Community, 
Iceland and Norway shall under international law apply to the relations 
between Denmark on the one hand and Iceland and Norway on the other 
hand. 

Article 3 

Iceland  and  Norway  shall  be  entitled  to  submit  statements  of  case  or  written 
observations to the Court of Justice in cases where a question has been referred to 
it by a Danish court or tribunal for a preliminary ruling in accordance with Article 
6(1) of the Agreement between the European Community and Denmark. 

1. 

2. 

3. 

4. 

Article 4 

In  the  case  of  a  complaint  by  Norway  or  Iceland  concerning  the 
application or the interpretation by Denmark of this Protocol, Norway or 
Iceland  may  ask  that  the  matter  be  officially  entered  as  a  matter  of 
dispute on the agenda of the Joint Committee. 

In the case of a complaint by Denmark concerning the application or the 
interpretation by Norway or Iceland of this Protocol, Denmark shall be 
entitled to ask the Commission to enter officially the matter as a matter 
of  dispute  on  the  agenda  of  the  Joint  Committee.  The  matter  shall  be 
placed on agenda by the Commission. 

The Joint Committee shall have 90 days from the date of the adoption of 
the agenda on which the dispute has been entered within which to settle 
the  dispute.  For  this  purpose,  Denmark  shall  be  entitled  to  make 
observations to the Joint Committee. 

In  case  a  dispute  is  settled  by  the  Joint  Committee  in  a  manner  that  it 
requires  implementation  in  Denmark,  Denmark  shall,  within  the 
timeframe envisaged in paragraph 3, notify the Parties whether or not to 
implement  the  content  of  the  settlement.  In  case  Denmark  notifies  its 
decision  not  to  implement  the  content  of  the  settlement,  paragraph  5 
shall apply. 

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5. 

In  a  case  where  the  dispute  cannot  be  settled  by  the  Joint  Committee 
within the period envisaged in paragraph 3, a further period of 90 days 
shall be observed for reaching a final settlement. If the Joint Committee 
has  not  taken  a  decision  at  the  end  of  the  period  this  Protocol  shall  be 
considered terminated at the end of the last day of that period. 

Article 5 

This  Protocol  is  subject  to  ratification  or  approval  by  the  Contracting  Parties. 
Instruments  of  ratification  or  approval  shall  be  deposited  with  the  Secretary-
General of the Council who shall act as depositary. 

This Protocol shall enter into force on the first day of the second month following 
the  notification  by  the  Contracting  Parties  of  the  completion  of  their  respective 
procedures required for this purpose.  

The  entry  into  force  of  this  Protocol  is  also  subject  to  the  prior  receipt  by  the 
depositary  of  a  Note  from  the  Kingdom  of  Denmark  to  the  effect  that  the 
Kingdom of Denmark assents to the provisions contained in the present Protocol 
and declares that it shall apply the provisions referred to in Article 2 in its mutual 
relations with Iceland and Norway. 

Article 6 

Each Contracting Party may terminate this Protocol by written declaration to the 
depositary. Such declaration shall take effect six months after its deposition. 

This  Protocol  shall  cease  to  be  effective  if  the  Agreement  between  the 
Community and Denmark is terminated. 

This Protocol shall cease to be effective if either the Community or both Iceland 
and Norway have denounced it. 

Done at 

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Annex to the Protocol 

COUNCIL REGULATION (EC) No 343/2003 of 18 February 2003 adopted by the Council 
of the European Union 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, O.J. L 50, 25.2.2003 

COUNCIL  REGULATION  (EC)  No  2725/2000  of  11  December  2000  adopted  by  the 
Council  of  the  European  Union  concerning  the  establishment  of  “Eurodac”  for  the 
comparison of fingerprints for the effective application of the Dublin Convention, O.J. L 316, 
15.12.2000.  

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