Proposal for a COUNCIL DECISION on the signature of a Protocol between the European Community, Switzerland and Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State, in Switzerland or Liechtenstein Proposal for a COUNCIL DECISION on the conclusion of a Protocol between the European Community, Switzerland and Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State, in Switzerland or Liechtenstein
Date: 2006-12-04
Institutions: Provisional data
Subjects: Liechtenstein, Switzerland, admission of aliens, protocol to an agreement, ratification of an agreement, signature of an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.12.2006 
COM(2006) 753 final 

2006/0257 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the signature of a Protocol between the European Community, Switzerland and 
Liechtenstein to the Agreement between the European Community and the Swiss 
Confederation concerning the criteria and mechanisms for establishing the State 
responsible for examining a request for asylum lodged in a Member State, in 
Switzerland or Liechtenstein 

Proposal for a 

COUNCIL DECISION 

on the conclusion of a Protocol between the European Community, Switzerland and 
Liechtenstein to the Agreement between the European Community and the Swiss 
Confederation concerning the criteria and mechanisms for establishing the State 
responsible for examining a request for asylum lodged in a Member State, in 
Switzerland or Liechtenstein 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

I. 

INTRODUCTION 

On  26  October  2004,  the  European  Community  signed  an  Agreement  with  the  Swiss 
Confederation  regarding  criteria  and  mechanisms  for  establishing  the  State  responsible  for 
examining  a  request  for  asylum  lodged  in  a  Member  State  or  in  Switzerland  (the 
"Dublin/Eurodac agreement with Switzerland"). 

That agreement provides in its Article 15 for the possibility for Liechtenstein to accede to the 
agreement.  The  accession  of  Liechtenstein  has  been  negotiated  and  a  draft  protocol  on  the 
accession  of  Liechtenstein  to  the  Dublin/Eurodac  agreement  with  Switzerland  has  been 
initialled.  

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the 
Treaty  of  the  European  Union  and  the  Treaty  establishing  the  European  Community, 
Denmark is not participating to Council Regulation (EC) N° 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 
Regulation”)  and  Council  Regulation  (EC)  N°  2725/2000  concerning  the  establishment  of 
“Eurodac”  for  the  comparison  of  fingerprints  for  the  effective  application  of  the  Dublin 
Convention (“the Eurodac Regulation”)1

 . 

The  Dublin/Eurodac  agreement  with  Switzerland  provides  for  the  possibility  that  Denmark 
may ask to participate. In that event, the Agreement provides that the contracting parties, with 
the consent of Denmark, set out the conditions for Denmark's participation in a protocol to the 
Agreement. 

By  letter  dated  8  November  2004,  the  Kingdom  of  Denmark  asked  to  participate  in  the 
Dublin/Eurodac  Agreement  with  Switzerland.  As  Liechtenstein  will  now  accede  to  this 
Agreement,  it  is  appropriate  that  the  participation  of  Denmark  should  be  established  in 
relation to both Switzerland and Liechtenstein. 

Following  the  authorisation  given  by  the  Council  to  the  Commission  on  27.2.2006, 
negotiations were held with Liechtenstein and Switzerland. On 21.6.2006, negotiations were 
finalised  and  the  draft  protocol  on  the  participation  of  Denmark  in  the  Dublin/Eurodac 
Agreement with Switzerland and Liechtenstein was initialled2. 

The  negotiations  were  held  and  the  draft  protocol  has  been  initialled  on  the  basis  that 
Liechtenstein  would  become  a  contracting  party  after  the  conclusion  of  the  protocol  on  its 
accession  to  the  Dublin/Eurodac  agreement  with  Switzerland.  It  has  therefore  to  be  born  in 
mind  that  Liechtenstein  can  only  become  a  contracting  party  to  the  protocol  on  the 

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It should be recalled that on 21 February 2006, the European Community concluded an agreement with 
the  Kingdom  of  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 the Dublin Convention 
(Agreement between the European Community and Denmark). 
as  well  as  the  draft  protocols  on  the  accession  of  Liechtenstein  to  the  Schengen  Agreement  with 
Switzerland and on the accession of Liechtenstein to the Dublin/Eurodac Agreement with Switzerland 

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participation  of  Denmark  when  it  has  ratified  the  protocol  on  its  accession  to  the 
Dublin/Eurodac agreement with Switzerland3. 

The  attached  proposals  are  the  legal  bases  for  the  decisions  on  the  signature  and  the 
conclusion of the Protocol. The legal basis of this Protocol is Article 63(1)a, in conjunction 
with  the  first  sentence  of  the first  subparagraph  of  Article  300(2)  of  the  Treaty  establishing 
the European Community. 

The Council will decide by qualified majority. The European Parliament will be consulted on 
the  conclusion  of  the  Protocol, in  accordance  with  Article  300(3)  of  the  Treaty  establishing 
the European Community. 

II. 

RESULTS OF THE NEGOTIATIONS 

The Commission considers that the objectives set by the Council in its negotiating directives 
were attained and that the draft Protocol is acceptable to the Community. 

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

–  It makes the Dublin and Eurodac regulations and their implementing rules applicable to the 
relations between Denmark on the one hand and the Confederation of Switzerland and the 
Principality  of  Liechtenstein  on  the  other.  It  also  renders  future  amendments  or  new 
implementing measures applicable to these relations. 

–  It  gives  Switzerland  and  Liechtenstein  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  Switzerland  or  Lichtenstein  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: 

–  decides  that  the  Protocol  be  signed  on  behalf  of  the  Community  and  authorises  the 
President  of  the  Council  to  appoint  the  person  duly  empowered  to  sign  on  behalf  of  the 
Community; 

–  approves,  after  consulting  the  European  Parliament,  the  attached  Protocol  to  the 
Agreement between the European Community and the Swiss Confederation concerning the 
criteria and mechanisms for establishing the State responsible for examining a request for 
asylum lodged in a Member State or in Switzerland, including the protocol concerning the 
accession of Liechtenstein. 

3 

Article 15 of the Dublin/Eurodac agreement with Switzerland says that the accession of Liechtenstein 
shall be the subject of a protocol to this Agreement 

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Proposal for a 

COUNCIL DECISION 

on the signature of a Protocol between the European Community, Switzerland and 
Liechtenstein to the Agreement between the European Community and the Swiss 
Confederation concerning the criteria and mechanisms for establishing the State 
responsible for examining a request for asylum lodged in a Member State, in 
Switzerland or Liechtenstein 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission,4 

Whereas: 

(1) 

(2) 

(3) 

(4) 

Following  the  authorisation  given  to  the  Commission  on  27  February  2006, 
negotiations  with  the  Swiss  Confederation  and  the  Principality  of  Liechtenstein  of  a 
Protocol  on  the  participation  of  Denmark  in  the  Agreement  between  the  European 
Community and the Swiss Confederation concerning the criteria and mechanisms for 
establishing  the  State  responsible  for  examining  a  request  for  asylum  lodged  in  a 
Member  State  or  in  Switzerland,  including  the  protocol  concerning  the  accession  of 
Liechtenstein, have been finalised; 

Subject to its conclusion at a later date, the Protocol initialled in Brussels on 21 June 
2006 should be signed; 

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  the  European 
Union  and  the  Treaty  establishing  the  European  Community  will  take  part  in  the 
adoption and application of this Decision; 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark 
annexed  to  the  Treaty  on  the  European  Union  and  the  Treaty  establishing  the 
European  Community,  Denmark  is  not  participating  to  the  adoption  of  this  decision 
and is not bound by or subject to its application; 

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HAS DECIDED AS FOLLOWS: 

Sole Article  

Subject to its conclusion at a later date, the President of the Council is authorised to appoint 
the  person  empowered  to  sign,  on  behalf  of  the  Community,  the  Protocol  between  the 
European  Community,  the  Swiss  Confederation  and  the  Principality  of  Liechtenstein  to  the 
Agreement  between  the  European  Community  and  the  Swiss  Confederation  concerning  the 
criteria  and  mechanisms  for  establishing  the  State  responsible  for  examining  a  request  for 
asylum  lodged  in  a  Member  State  or  in  Switzerland,  including  the  protocol  concerning  the 
accession of Liechtenstein  

The text of the Protocol is attached to this Decision. 

Done at Brussels,  

For the Council 
The President

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2006/0257 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of a Protocol between the European Community, Switzerland and 
Liechtenstein to the Agreement between the European Community and the Swiss 
Confederation concerning the criteria and mechanisms for establishing the State 
responsible for examining a request for asylum lodged in a Member State, in 
Switzerland or Liechtenstein 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 63(1)(a)  thereof,  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 Commission proposal,5 
Having regard to the opinion of the European Parliament6 

Whereas: 

(1) 

Following  the  authorisation  given  to  the  Commission  on  27  February  2006, 
negotiations  with  the  Swiss  Confederation  and  the  Principality  of  Liechtenstein  of  a 
Protocol  on  the  participation  of  Denmark  in  the  Agreement  between  the  European 
Community and the Swiss Confederation concerning the criteria and mechanisms for 
establishing  the  State  responsible  for  examining  a  request  for  asylum  lodged  in  a 
Member  State  or  in  Switzerland,  including  the  protocol  concerning  the  accession  of 
Liechtenstein, have been finalised 

(2) 

According  to  Decision  .../....../EC  of  the  Council  of  [..........],  and  subject  to  its  final 
conclusion  at  a  later  date,  this  Protocol  has  been  signed,  on  behalf  of  the  European 
Community, on .......... 2006; 

(3) 

This Protocol should be approved; 

(4) 

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  the  European 
Union  and  the  Treaty  establishing  the  European  Community,  are  taking  part  in  the 
adoption and application of this Decision; 

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(5) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark 
annexed  to  the  Treaty  on  the  European  Union  and  the  Treaty  establishing  the 
European  Community,  Denmark  is  not  participating  to  the  adoption  of  this  decision 
and is not bound by or subject to its application; 

HAS DECIDED AS FOLLOWS: 

Article 1 

The  Protocol  to  the  Agreement  between  the  European  Community  and  the  Swiss 
Confederation concerning the criteria and mechanisms for establishing the State responsible 
for examining a request for asylum lodged in a Member State or in Switzerland, including the 
protocol concerning the accession of Liechtenstein, is approved on behalf of the Community. 

The text of the Protocol is annexed to this Decision.  

Article 2 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person  empowered  to 
deposit  on  behalf  of  the  European  Community  the  instrument  of  approval  provided  for  in 
Article 5 of the Protocol, in order to express the consent of the Community to be bound. 

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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Annex  

Protocol between the European Community, Switzerland and Liechtenstein to the 
Agreement between the European Community and the Swiss Confederation concerning 
the criteria and mechanisms for establishing the State responsible for examining a 
request for asylum lodged in a Member State, in Switzerland or Liechtenstein 

The European Community 

and  

The Swiss Confederation 

and  

The Principality of Liechtenstein 

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 11(1) of the Agreement between the European Community and the 
Swiss  Confederation  concerning  the  criteria  and  mechanisms  for  establishing  the  State 
responsible for examining a request for asylum lodged in a Member State or in Switzerland7 
(hereinafter  referred  to  as  “the  Agreement  between  the  European  Community  and 
Switzerland”), which states that the Kingdom of Denmark may request to participate in this 
Agreement; 

CONSIDERING  the  Protocol  between  the  European  Community,  the  Swiss  Confederation 
and the Principality of Liechtenstein to the Agreement between the European Community and 
Switzerland  on  the  accession  of  the  Principality  of  Liechtenstein  to  that  Agreement,  in 
accordance with its Article 15; 

NOTING  that  Denmark  by  letter  dated  8  November  2004  requested  to  participate  in  the 
Agreement between the European Community and Switzerland; 

RECALLING  that  according  to  Article  11(1)  of  the  Agreement  between  the  European 
Community  and  Switzerland  to  which  the  Principality  of  Liechtenstein  has  acceded,  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; 

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ASILE 54, 13049/04 

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CONSIDERING  the  Agreement  between  Denmark  and  the  Community  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 the Dublin Convention8;  

CONSIDERING  that  it  is  therefore  necessary  to  fix  the  conditions  whereby  Denmark 
participates  in  the  Agreement  between  the  European  Community  and  Switzerland,  to  which 
the  Principality  of  Liechtenstein  has  acceded,  and  in  particular  it  is  necessary  to  establish 
rights and obligations between Switzerland, Liechtenstein 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  European 
Community  and  the  Swiss  Confederation  concerning  the  criteria  and  mechanisms  for 
establishing  the  State  responsible  for  examining  a  request  for  asylum  lodged  in  a  Member 
State  and  Switzerland  (hereinafter  referred  to  as  "the  Agreement  between  the  European 
Community  and  Switzerland")  to  which  the  Principality  of  Liechtenstein  has  acceded  by  a 
protocol  to  that  Agreement  (hereinafter  referred  to  as  "the  Liechtenstein  Protocol")  in 
accordance with Article 15 thereof, under the conditions set out in the Agreement between the 
European 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 the Dublin Convention (hereinafter referred to as “the Agreement between the 
European Community and Denmark”) and the present Protocol. 

1. 

2. 

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Article 2 

The provisions of the "Dublin Regulation”9
 , which is annexed to this Protocol and 
forms  part  thereof,  together  with  its  implementing  measures  adopted  pursuant  to 
Article 27 (2) of the "Dublin Regulation" shall, under international law, apply to the 
relations  between  Denmark  on  the  one  hand  and  Switzerland  and  Liechtenstein  on 
the other hand. 

The provisions of the "Eurodac Regulation"10, which is annexed to this Protocol and 
forms  part  thereof,  together  with  its  implementing  measures  adopted  pursuant  to 

OJ L66/38, 8.3.2006 
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. L316, 15.12.2000. 

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3. 

4. 

Article 22 or 23(2) of the "Eurodac Regulation" shall, under international law, apply 
to the relations between Denmark on the one hand and Switzerland and Liechtenstein 
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 Switzerland and 
Liechtenstein  to  the  Commission  in  accordance  respectively  with  Article  4  of  the 
Agreement between the European Community and Switzerland, and Article 5 of the 
Liechtenstein  Protocol  shall  under  international  law  apply  to  the  relations  between 
Denmark on the one hand and Switzerland and Liechtenstein on the other hand. 

Implementing  measures  adopted  pursuant  to  Article  27  (2)  of  the  "Dublin 
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  Switzerland  and  Liechtenstein  to  the 
Commission in accordance respectively with Article 4 of the Agreement between the 
European  Community  and  Switzerland  and  Article  5  of  the  Liechtenstein  Protocol 
shall under international law apply to the relations between Denmark on the one hand 
and Switzerland and Liechtenstein on the other hand. 

Article 3 

Switzerland  and  Liechtenstein  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. 

Article 4 

1. 

2. 

3. 

4. 

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

In  the  case  of  a  complaint  by  Denmark  concerning  the  application  or  the 
interpretation  by  Switzerland  or  Liechtenstein  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 Mixed Committee. The matter shall be placed on the agenda by the 
Commission.  

The Mixed 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 Mixed Committee. 

In  case  where  a  dispute  is  settled  by  the  Mixed  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 

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settlement. In case where Denmark notifies its decision not to implement the content 
of the settlement, paragraph 5 shall apply. 

5. 

In  a  case  where  the  dispute  cannot  be  settled  by  the  Mixed  Committee  within  the 
period  envisaged  in  paragraph  3,  a  further  period  of  90  days  shall  be  observed  for 
reaching a final settlement. If the Mixed 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. 

As far as Liechtenstein is concerned, this Protocol shall enter into force on the first day of the 
second month following the notification by the European Community and the Principality of 
Liechtenstein of the completion of their respective procedures required for this purpose.  

As far as Switzerland is concerned, this Protocol shall enter into force on the first day of the 
second  month  following  the  notification  by  the  European  Community  and  the  Swiss 
Confederation of the completion of their respective procedures required for this purpose.  

The  entry  into  force  of  this  Protocol  for  the  European  Community  and  the  Principality  of 
Liechtenstein on the one hand and for the European Community and the Swiss Confederation 
on  the  other  hand,  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 Switzerland and Liechtenstein. 

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 European Community 
and Denmark is terminated. 

This  Protocol  shall  cease  to  be  effective  if  either  the  European  Community  or  both 
Switzerland as well as Liechtenstein have denounced it. 

Done at Brussels, 

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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. L316, 15.12.2000 

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