REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL ON THE APPLICATION OF DIRECTIVE 2005/85/EC OF 1 DECEMBER 2005 ON MINIMUM STANDARDS ON PROCEDURES IN MEMBER STATES FOR GRANTING AND WITHDRAWING REFUGEE STATUS
Date: 2010-09-08
Institutions: European Commission
Subjects: EU policy, admission of aliens, application of EU law, national implementing measure, refugee, report, right of asylum, rights of aliens

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EUROPEAN COMMISSION 

Brussels, 8.9.2010 
COM(2010) 465 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL  

ON THE APPLICATION OF DIRECTIVE 2005/85/EC OF 1 DECEMBER 2005 ON 
MINIMUM STANDARDS ON PROCEDURES IN MEMBER STATES FOR 
GRANTING AND WITHDRAWING REFUGEE STATUS 

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

ON THE APPLICATION OF DIRECTIVE 2005/85/EC OF 1 DECEMBER 2005 ON 
MINIMUM STANDARDS ON PROCEDURES IN MEMBER STATES FOR 
GRANTING AND WITHDRAWING REFUGEE STATUS 

1. 

INTRODUCTION 

Council Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in 
Member  States  for  granting  and  withdrawing  refugee  status  (the  "Directive"  or  "APD")1  is 
one of five asylum instruments which laid the foundations for a Common European Asylum 
System (CEAS), based on the conclusions of the 1999 Tampere European Council and in line 
with the Hague Programme. It applies to all Member States except Denmark2. 

This report is prepared pursuant to Article 42 APD and gives an overview of the transposition 
and implementation of the Directive in Member States, including possible problematic issues. 
It is based on an analysis of transposition measures notified to the Commission, consultations 
with Government experts, NGOs, asylum lawyers and UNHCR, Member States' replies to the 
Commission's  questionnaire,  studies  on  the  implementation  of  the  Directive3,  reports  on 
projects  co-funded  by  the  European  Refugee  Fund,  the  report  on  asylum  procedures  in  the 
IGC states4, and the ECRE/ELENA survey on legal aid for asylum seekers. It should be read 
in conjunction with the Impact Assessment accompanying the recast of the Directive5. 

For those Member States which had not notified complete transposition measures at the time 
of preparation of the report, relevant information was gathered on the basis of legislation in 
force and, where relevant, draft legislation.  

2. 

HISTORICAL AND POLITICAL CONTEXT 

The Directive was adopted by the Council by a unanimous vote after consulting the European 
Parliament.  It  is  aimed  at  establishing  minimum  standards  for  fair  and  efficient  asylum 
procedures.  The  Hague  Programme  invited  the  Commission  to  evaluate  the  first  phase 
standards and to propose second generation instruments with a view to their adoption by the 
end of 2010. In the Policy Plan on Asylum6, the Commission proposed the completion of the 
second  stage  of  the  CEAS  through  reducing  divergent  procedural  arrangements,  raising  the 
standards of protection and ensuring their consistent application across the EU. The European 
Pact on Immigration and Asylum of 16 October 2008 provided further political endorsement 

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OJ L 326, 13.12.2005, p. 13 
In this report "Member States" means the Member States bound by the Directive 
See:  Nijmegen  University,  "The  Procedures  Directive:  Central  Themes,  Problem  Issues,  and 
Implementation  in  Selected  Member  States",  K.  Zwaan  (ed.)  March  2008;  UNHCR,  "Improving 
Asylum Procedures. Comparative Analysis and Recommendations for Law and Practice", March 2010.  
IGC, "Asylum Procedures. Report on Policies and Practices in IGC Participating States", May 2009.  
Proposal  for  a  Directive  on  minimum  standards  on  procedures  in  Member  States  for  granting  and 
withdrawing international protection, 21 October 2009, COM(2009)554.  
Policy  Plan  on  Asylum  ‘An  integrated  approach  to  protection  across  the  EU’,  17  June  2008, 
COM(2008) 360 

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for this objective, by inviting the Commission to present proposals for establishing inter alia, 
in 2010 if possible and in 2012 at the latest, a single asylum procedure comprising common 
guarantees, and the Stockholm Programme confirms this commitment.  

On  21  October  2009,  the  Commission  presented  a  proposal  for  the  amendment  of  the 
Directive.  It  aims,  in  particular  at  streamlining  and  consolidating  procedures  and  improving 
the  quality  of  first  instance  decisions  across  the  EU.  The  envisaged  standards  are  inter  alia 
informed by best practices identified by the Commission in a number of Member States.  

3. 

MONITORING AND STATE OF TRANSPOSITION  

The deadline for transposition of most of the Directive was 1 December 2007, while Article 
15  which  concerns  legal  assistance  had  to  be  transposed  by  1  December  2008.  Following 
expiry  of  these  deadlines,  infringement  procedures  were  opened  against  all  Member  States 
which  failed  to  communicate  or  to  fully  communicate  their  transposition  measures. 
Subsequently,  in  accordance  with  Article  226  of  the  Treaty,  the  Commission  dispatched  17 
letters of formal notice and 5 reasoned opinions. At present, all Member States have notified 
their  complete  transposition  measures  except  BE  and  IE.  The  Commission  has  taken  a 
decision to refer the cases against BE and IE to the Court of Justice, and dispatched a letter of 
formal notice to EL with respect to its failure to implement properly several provisions of the 
Directive, notably those on access to the procedure and treatment of unaccompanied minors. 

Between  1  January  20087  and  31  December  2009,  the  number  of  asylum  applications 
registered by the 26 Member States bound by the APD was 492,995. During the same period, 
these Member States issued 444,165 first instance decisions and 125,785 appeal decisions8.  

4. 

GENERAL PROVISIONS 

4.1. 

Definitions (Article 2) 

The Directive's definitions are generally reflected in national legislation. In several Member 
States (e.g. BE, IE, LT,  PL,  SK, SI and the UK), the national definition  of  an applicant for 
asylum does not however explicitly include the directive's requirement to consider a person as 
an applicant until a final decision has been taken, and the IE legislation does not reflect the 
directive's definition of an unaccompanied minor. 

4.2. 

Scope and responsible authorities (Articles 3 and 4) 

All  Member  States  except  IE  have  put  in  place  a  single  procedure,  hence  applying  the 
directive  with  respect  to  the  determination  of  both  refugee  status  and  subsidiary  protection 
status.  The  vast  majority  of  Member  States  have  designated  a  single  determining  authority, 
typically  a  specialist  administrative  body.  In  several  Member  States,  other  authorities  are 
involved  in  certain  specific  procedures  or  cases,  namely  a  border  procedure  (EE,  FR),  a 
preliminary procedure for subsequent claims (BE), national security cases (BE), and European 
safe third country cases (DE). 

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Decisions included in this paragraph on claims made before 1.12.2007 were not covered by the APD.  
Appeal decision data are, however, not complete as 3 Member States did not supply data for 2008 and 
data for 9 were missing for 2009. 

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5. 

SPECIFIC PROVISIONS  

5.1. 

Basic principles and guarantees  

5.1.1.  Access to the procedure (Article 6) 

Member States are required to provide for the right to apply for asylum and ensure that the 
relevant authorities are able to facilitate access to the procedure for persons who wish to make 
an application. Other aspects of access procedures are left to the discretion of Member States.  

While all Member States formally provide for the right to apply for asylum, national access 
systems,  as  they  stand  now,  vary  considerably.  In  some  Member  States,  law  enforcement 
authorities,  typically  police  and/or  border  guards,  are  competent  to  receive  asylum  requests 
(e.g.  BE,  CY,  FI,  FR,  LT,  EE,  EL,  IT,  LV,  PL,  PT,  RO,  and  SK).  In  others,  an  application 
must be lodged in a designated place, such as an application (reception) centre or the premises 
of the determining authority (e.g. AT, BG, DE, CZ, HU, FR, NL, MT, SI, SE, and the UK). In 
several  Member  States,  this  system  provides  for  the  possibility  to  initially  communicate  an 
intention  to  apply  for  asylum  to  other  authorities  (e.g.  AT,  DE,  BG,  SI).  In  FR,  persons 
staying irregularly on the territory should first apply for the right to stay to a prefecture, and 
subsequently lodge an application with the determining authority.  

Applications made by parents generally cover dependent minors, and CY, FR, EL, HU, MT, 
PL, and PT also provide for the possibility of an application on behalf of dependent adults. In 
certain Member States (e.g. EL, NL, DE), the right to lodge an application is recognized for 
minors  of  a  certain  age.  A  guardian  or  other  representative  is  competent  to  lodge  an 
application for an unaccompanied minor in BE, DE, FR, EL, LT, NL, and SK.  

Member States require either certain authorities9 or public authorities in general10 to refer de 
facto asylum seekers to the competent authority (e.g. EL, LV, NL, MT, SK) and/or to notify 
that authority of the asylum claim (e.g. AT, BE, CZ, EL, HU, LV, MT, and SE). Time periods 
for completing formalities related to the making of applications vary. It may take from 3 to 5 
months (MT), 36 days (FR11), 1 month (NL12), or 2 weeks (CY), while BE, CZ, FI, HU, LT 
and  SE  have  reported  time  periods  not  exceeding  3  days.  Long  delays  and  other  practical 
difficulties are reported with regard to access to the procedure in EL.  

5.1.2.  Right to remain in the Member State (Article 7) 

The right to remain in the Member State pending the outcomes of first instance procedures is 
generally  recognised  in  national  legislation.  Member  States  adopt  divergent  approaches, 
however, with respect to surrender or extradition related exceptions. In a number of Member 
States,  the  extradition  of  an  asylum  seeker  to  the  country  of  origin  is  only  possible  after  a 
negative  decision  on  the  asylum  request  has  been  taken  (e.g.  EE,  EL,  ES,  FI,  HU,  LT,  LV, 

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With reference to BE, CZ, EL, HU, FR, MT, SK 
With reference to AT, BG, FI, LV, NL, SE 
This includes a period of 15 days for a préfecture to issue permission to stay and 21 day for an applicant 
to file an application. In practice, it takes 20 days in average to complete the process.  
With reference to a waiting period in a transitory centre. 

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NL, PT, SI, SK and the UK). Exceptions are allowed in AT, CY, CZ, DE, FR13, IE, IT, LU, 
MT, PL, and SE. In RO, the exception is only allowed in terrorism related cases. 

5.1.3.  Requirements for decision making and guarantees  for applicants (Articles 8, 9  and 

10) 

Applications may neither be rejected nor excluded from the examination on the ground that 
they have not been made as soon as possible, and Member States generally comply with this 
principle.  However,  FI  and  MT14  make  the  lodging  of  a  request  at  a  later  stage  subject  to 
certain conditions, while in FR and CZ persons in detention must make an application within 
respectively 5 and 7 days of being informed of that right15.  

Pursuant  to  the  Directive,  applications  must  be  examined  individually,  objectively  and 
impartially  by  competent  asylum  personnel  and  based  on  accurate  and  current  country  of 
origin information. AT, CY, DE, EL16, FI, HU, IT, LU, RO, SI and the UK have transposed 
these standards with sufficient clarity and detail17, while in other Member States national rules 
reflect  them  only  implicitly.  Institutional  arrangements  for  training,  including  follow  up 
training, are in place in AT, BE, FI, DE, SE, HU, NL, and the UK. Other Member States tend 
to rely on ad hoc training, and the length, intensity and content of training vary considerably.  

Member States generally require the authorities to take decisions on applications in writing, to 
indicate  the  reasons  for  rejection  in  fact  and  in  law  and  to  give  information  on  how  to 
challenge  the  decision18.  There  are,  however,  wide  divergences  with  regard  to  the  structure 
and  content  of  decisions,  and  deficiencies  are  reported  with  respect  to  the  quality  of 
reasoning19.  CY  and  NL  avail  of  an  optional  clause  making  it  possible  not  to  state  reasons 
where the person who is refused refugee status is offered a status which offers the same rights.  

National  legislation  generally  reflects  the  guarantees  listed  in  Article  10  (1)  APD.  The  vast 
majority  of  Member  States  provide  information  to  an  applicant  in  a  language  he/she  is 
supposed  to  understand.  Some,  however,  entitle  applicants  to  receive  information  in  a 
language  they  understand  (AT,  CZ,  HU,  LT,  PL,  BG),  hence  going  beyond  the  Directive's 
standards.  To  inform  the  persons  of  the  procedure,  Member  States  widely  use  printed 
materials in a variety of languages (AT, BE, ES, CY, CZ, EE, FI, FR, IE, HU, LT, LV, MT, 
NL, PL, SE, SK, RO), and several Member States include relevant information in procedural 
documents specifically addressed to the person (BG, CY, CZ, SK) and/or inform the applicant 
orally (FI, LT, MT, SK).  

In the vast majority of Member States, national rules guarantee the services of an interpreter 
free  of  charge  at  least  at  a  personal  interview,  as  provided  for  in  Article  10  (1)  (b).  The 

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Although the two procedures are carried out in parallel, FR does not extradite asylum applicants to the 
country of origin. 
In MT, a claim must be lodged within 60 days of the arrival. Later submissions may be allowed only for 
special and exceptional reasons.  
After the lapse of the time limit, an application is considered inadmissible in FR, while in CZ 'the right 
to apply for asylum expires'.  
Problems are, however, reported with regard to application of these standards in practice  
In  some  Member  States  (e.g.  DE,  FI  and  HU)  legislation  does  not  contain  explicit  rules  on 
qualifications of asylum personnel. Training is, however, provided in practice.  
Some Member States (e.g. NL and FI) rely on common administrative law, in particular as concerns the 
requirement to give reasons for decisions. 
Particular concerns have been expressed with regard to the reasoning of decisions in EL.  

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transposition  of  this  provision  is  not  completed  in  BE  and  IE20,  and  in  EL  interpreters' 
services are reportedly made available in the capital only. Some Member States (e.g. FI, FR, 
LT)  use  video  or  tele-conferences  to  address  the  shortages  of  interpreters  in  particular 
languages  or  in  particular  locations,  and  important  practical  cooperation  initiatives,  notably 
the  Interpreters’  Pool  Project,  have  been  carried  out  in  this  respect.  The  European  Asylum 
Support Office is expected to give further impetus to such cooperation initiatives.  

As  regards  the  duty  to  give  notice  of  the  decision,  a  group  of  Member  States  deliver  the 
decision in person to the applicant in a meeting (e.g. BG, EE, CZ, IT, LT, ES21), while others 
send  the  decision  by  post  (e.g.  FR,  DE,  EE).  Several  Member  States  serve  it  on  both  the 
applicant  and  his/her  legal  counsellor  (e.g.,  BE,  BG,  CZ,  LT,  NL22,  SI),  while  DE  and  NL23 
make use of the clause making it possible to notify the decision to a legal counsellor only. The 
UK uses all the forms described above depending on the procedure.  

The authorities inform applicants of the result of the decision and of their appeal rights either 
orally, including through the presence of an interpreter (BG, CZ, EE, EL, IT, FI, IT, LT, ES) or 
by  providing  a  written  translation  (AT,  CY,  EE,  DE,  FR,  PL,  RO,  SI)  when  serving  the 
decision. BE, ES and NL rely on free legal assistance24. In IE, legislation lacks explicit rules 
implementing this guarantee, while in EL applicants are reportedly not properly informed of 
the decision and of their appeal rights. In EE, LT, BG and SI, the entire decision is read to the 
applicant via an interpreter or translated in writing, hence representing good practice.  

5.1.4.  Personal interview (Articles 12, 13 and 14)  

While  all  Member  States  provide  for  the  right  to  a  personal  interview,  some  make  use  of 
optional  exceptions.  The  interview  may  be  omitted  where  the  authority  has  already  had  a 
meeting with the person to assist him/her to complete the application (CY, EL, SI, the UK), 
the  applicant  has  raised  irrelevant  issues  (CY,  EL,  SI,  and  the  UK),  his/her  statements  are 
inconsistent, contradictory, improbable or insufficient (CY, EL, SI and the UK), he/she comes 
from  a  safe  country  of  origin  (EL  and  SI)  or  a  safe  third  country  (EL,  FI,  SI  and  the  UK), 
submits  a  repeat  application  (CY,  CZ,  DE,  FI,  EL,  IT,  LU,  SI  and  the  UK)  or  makes  an 
application to delay removal (CY, EL, SI and the UK). In several cases, national exceptions 
depart from the Directive's wording25.  

The  directive  requirement  that  an  interview  be  conducted  without  the  presence  of  family 
members  is  generally  reflected  in  national  rules.  In  FR,  NL,  SI  and  IE,  however,  the 
legislation is not sufficiently explicit in this respect. In some Member States (e.g. BG, CZ, ES, 
FI,  DE,  NL,  and  SI),  legislation  does  not  explicitly  address  the  Directive's  requirement  to 
ensure  appropriate  confidentiality  of  personal  interviews,  and  problems  are  reported  with 
regard to practices in EL and ES.  

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In IE, legislation requires the presence of an interpreter in an interview only 'where possible'. In BE, an 
interview may be omitted where an interpreter is not available.  
With reference to the prevailing administrative practices 
With reference to the procedure in an application centre  
With reference to the extended procedure  
Article  10  (1)  (e)  APD  allows  Member  States  to  derogate  from  this  obligation  where  free  legal 
assistance is available.  
The  interview  may  be  omitted  where  an  interpreter  is  not  available  (BE)  or  where  the  claim  is 
manifestly  unfounded  (FR).  In  SI,  the  interview  is  not  obligatory  in  the  accelerated  procedure  and  is 
reportedly often omitted in practice. 

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The Directive requires Member States to conduct personal interviews under conditions which 
allow applicants to present their claims in a comprehensive manner. While this standard is of 
relevance to those applicants who due to their gender, age and/or consequences of trauma may 
be in need of additional support, the Directive does not explicitly set guarantees for applicants 
with special needs, such as gender-sensitive interviews. Some Member States, however, have 
put in place relevant arrangements, such as the provision of an interpreter and/or interviewer 
of a same sex (AT, BE, BG, CZ, DE, ES, NL, LT, IT, HU, SK, SI and the UK) and provision 
of information about gender related elements of refugee status determination (AT, DE, SE).  

The Directive requires communication at an interview to take place in a language the person 
'is reasonably supposed to understand', and national rules in several Member States (AT, BG, 
CZ,  BE,  HU,  LT,  IT,  EL)  go  beyond  this  standard,  referring  to  a  language  a  person 
understands, while others stick to the Directive's wording. Legislative rules are reportedly not 
always  followed  in  practice,  notably  due  to  the  shortage  of  interpreters26,  and  in  some 
Member  States  (e.g.  BG,  ES,  FI,  DE,  NL,  IE),  national  rules  do  not  explicitly  address  the 
Directive's standard on the qualifications of interviewers.  

The  requirement  to  prepare  the  interview  report  and  make  it  available  to  the  applicant  is 
generally reflected in law. Practices are, however, highly divergent with some Member States 
producing  a  report  (e.g.  EL,  IT,  NL,  DE,  CY,  HU,  IE,  MT,  PT,  RO,  SE),  others  making  a 
transcript (e.g. BE, BG, FR, CZ, FI, LT, SI, the UK, SK, PL) and some providing for audio 
and/or  visual  recording  (AT,  FI,  ES,  HU,  LU,  LV,  PL  and  the  UK).  While  some  Member 
States  allow  the  applicant  the  possibility  to  provide  his/her  comments  on  the  interview 
document  (e.g.  CY,  FI,  HU,  DE,  BG,  NL,  PT,  MT, PL,  RO  and  SK),  this  is  not  a  standard 
practice in all Member States. The accuracy of  records therefore varies. Divergent practices 
are reported with regard to access to the report. In some MS (e.g. FI, DE, HU, IT, NL, CZ SK, 
PL  and  the  UK),  such  access  is  provided  in  the  first  instance  procedure,  whilst  others  (e.g. 
CY, EL, BE, BG, RO and FR) allow access only after a decision is taken.  

5.1.5.  Legal assistance and representation (Articles 15 and 16) 

The  right  to  consult  a  legal  advisor  or  counselor  is  formally  recognized  across  the  EU,  but 
Member States are divided as regards the provision of free legal assistance. CY, EE, EL, FR, 
DE, IT, LV, MT, PL, RO, SK, SI stick to the Directive's wording, hence making it available 
only  at  the  appeal  stage.  Others,  however,  go  beyond  this  standard  granting  either  legal  aid 
(BE, ES, BG, FI, HU, IE, NL, LT, LU, SE, PT, and the UK)27 or free legal advice (AT, CZ28) 
already  in  first  instance  procedures.  As  regards  the  appeal  stage,  most  Member  States  grant 
legal  aid  for  both  the  first  tier  proceedings  and  for  onward  appeals.  AT  and  CY,  however, 
make  legal  aid  in  the  form  of  representation  available  only  in  proceedings  before  higher 
courts.  While  BE,  BG,  CZ,  FI,  HU,  LT,  RO,  SI  and  SE  do  not  apply  a  merits  test  before 
granting  legal  aid,  other  Member  States  do  this  and  national  systems  vary  considerably  as 
regards the applicable threshold, appeal stages and authorities in charge. A lack of sufficient 
resources is a formal pre-condition for benefiting from legal aid in most Member States29.  

Member  States  are  required,  subject  to  several  conditions,  to  grant  access  to  the  applicant's 
file  to  a  legal  advisor  or  counselor,  and  to  make  it  available  to  the  appellate  authorities.  A 

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Serious problems are particularly reported with respect to EL.  
In FI, ES, HU, LT, IE and the UK, this right is, however, subject to a means test 
With reference to NGO services co-funded from public funds  
This condition is not applied in BE, CZ and RO.  

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majority of Member States grant such access to legal advisors without imposing restrictions. 
Limitations, mostly on national security grounds, are applicable in EL, CY, LT, IE, ES, NL, 
and the UK. In some Member States (FR, IT), legal advisors may reportedly not have access 
to  country  of  origin  information  relied  upon  by  the  determining  authority.  Appellate 
authorities  generally  have  access  to  the  entire  information  in  the  applicant's  file30.  In  all 
Member States except FR a legal advisor is allowed to attend a first instance interview.  

5.1.6.  Guarantees for unaccompanied minors (Articles 2 (i) and 17) 

All Member States provide for representation of unaccompanied minors in the procedure, and 
the  appointment  of  a  legal  guardian  or  an  institution  having  competence  to  act  as  a  legal 
guardian is a prevailing trend. Such a system is in place in AT, BE, BG, CY, ES, CZ, DE, EL, 
EE, FI, FR, HU, IT, LT, LV, MT, NL, PL, PT, SE, SK, and SI, albeit varying considerably in 
terms  of  institutional  arrangements,  authorities  involved,  and  the  guardians'  role  and 
qualifications. Some Member States have systems where a different type of representation is 
used at certain stages or throughout the procedure, including representation by a legal advisor 
(AT,  PL),  NGOs  (CZ,  FR31,  PT),  or  social  services  (ES).  In  IE  and  the  UK,  minors  are 
represented by an organization responsible for the care and well-being of the minor.  

Only  a  few  Member  States  apply  exceptions  to  the  duty  to  appoint  a  representative.  EL 
provides for an exception where it is expected that the child will turn 18 before a first instance 
decision is taken, or he/she is married or has been married, or is 16 years old and is able to 
pursue the application. The latter exception is also applicable in DE. 

Medical examinations to determine the age of unaccompanied minors is possible in SK, LU, 
LT,  AT,  IT,  CY,  BG,  HU,  DE,  CZ,  BE,  SE,  MT,  PL,  RO,  SI  and  the  UK,  and  minors  are 
informed of the age assessment procedure either verbally or in writing. These Member States 
also  request  the  minor's  and/or  his/her  representative's  consent  to  undergo  a  medical  test. 
Where  a  person  refuses  to  consent,  he/she  is treated  as  an  adult  (CZ,  HU,  NL,  RO,  PL  and 
SK), the credibility of his/her statements is affected (AT and LU), or he/she may not rely on 
the benefit of the doubt principle (LT). The latter is at variance with the Directive.  

5.1.7.  Withdrawal of the application (Articles 19 and 20) 

Where  an  application  is  explicitly  withdrawn,  the  procedure  is,  as  a  general  trend, 
discontinued by either taking a decision (e.g. BE, BG, CZ, FI, DE, HU, PL and SI) or entering 
a notice in the file (e.g. ES, FR, NL and the UK). In CY, IT32 and the UK, an application is 
rejected,  and  in  EL  and  MT,  legislation  follows  the  directive's  wording,  hence  allowing  for 
either a discontinuation of the procedure or rejection of the application.  

The  notion  of  implicit withdrawal  is  in  use  in  the  vast  majority  of  Member  States.  It  is  not 
formally  transposed  in  FR  and  IT.  The  situations  which  give  rise  to  an  assumption  that  the 
claim is withdrawn, in addition to the examples described in the directive, include an attempt 
of unauthorised entry into the territory of another country (CZ) or voluntary return to his/her 
country  of  origin  (AT,  BE,  BG).  National  rules  allow  for  discontinuing  the  procedure, 
typically  as  a  first  step  (e.g.  AT,  BG,  CY,  ES,  FI,  FR,  CZ,  HU,  LT,  MT,  NL,  PL,  PT,  SI) 
and/or rejecting the application (e.g. AT, BE, BG, CY, CZ, EE, EL, MT, RO, the UK).  

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National security related restrictions are possible in LT and ES.  
With reference to the system of ad – hoc administrators  
In IT, this rule applies if an interview has already taken place. 

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5.2. 

Procedures at first instance  

5.2.1.  Examination procedure and unfounded applications (Articles 23 and 28) 

The Directive requires Member States to complete the procedure as soon as possible. Member 
States' approaches vary. In CY, EE, FR, FI, DE, EL, IE, LU, MT, SI, SE and the UK, national 
rules  either  follow  the  Directive's  wording  (e.g.  EL,  EE,  CY,  the  UK)  or  provide  for  the 
principle of due diligence and the right to receive information about progress in administrative 
procedures (FI, SE). In addition, some determining authorities (e.g. DE, SE, and the UK) set 
targets  for  completing  cases.  In  other  Member  States,  legislation  imposes  time  limits  for 
taking a decision. These are 1 month (RO), 2,5 months (HU), 2,6 months (PT), 3 months (BG, 
CZ, LT, LV, SK), and 6 months (AT, ES, NL33, PL). The time limit may be extended by 1 
month (HU, RO), 3 months (BG, LT) or 9 months (LV). In PT, it may be extended up to 6 
months. In AT, CZ and PL, extension is not subject to time limits. In IT, specific time frames 
are set for certain steps in the procedure. 

Member  States  are  given  discretion  to  prioritise  or  accelerate  any  examination  and,  in 
addition, procedures may also be expedited on 16 specific grounds. The circumstances falling 
under  these  grounds  may  also  be  taken  into  account  when  rejecting  an  application  as 
manifestly unfounded34. Relevant national arrangements are consequently highly divergent.  

In  AT,  BE,  CZ,  FI,  EE,  EL,  FR,  LT,  LV,  LU,  MT,  PL,  RO,  SK,  SI  and  the  UK,  an 
examination may be accelerated where a specific ground applies. The number of grounds set 
out  in  national  law  varies  significantly35,  and  some  depart  from  the  Directive's  wording.  In 
FR, SI and the UK, every application is screened to establish the applicable procedure, whilst 
other  Member  States  leave  it  to  the  discretion  of  the  determining  authority.  In  BG,  PT  and 
ES36, all applications are first examined in a preliminary procedure which may result in either 
admitting the person into a regular procedure or rejecting his/her claim on the inadmissibility 
grounds  or  grounds  falling  under  Article  23  (4)  APD.  In  NL,  all  applications  are  first 
examined  in  a  procedure  which  may  result  in  rejection  of  the  application,  the  granting  of 
protection,  or  referral  of  the  case  to  the  extended  procedure.  SE  accelerates  manifestly 
unfounded  cases,  while,  in  IE,  certain  applications  may  be  prioritised.  HU  and  DE  have  no 
arrangements on accelerated procedures.  

The  various  time  limits  applicable  for  completing  the  accelerated  procedure  are  48  hours 
(LT); 3 days (BG, MT, RO and the UK37); 4 days (ES38 and FR39); 10 working days (LV); 15 
days (BE40 and FR); 1 month (EL, CZ and PL); 2 months (SK, LU and BE); 3 months (AT 
and ES). No formal time limits are established in EE, IE41, SE and SI, while in FI, PT and IT 

33 
34 
35 
36 

37 

38 
39 
40 
41 

With reference to the extended procedure 
Article 28 (2) APD 
There are 5 grounds in LT; 8 in FI; 9 in CZ; 10 in RO; 11 in MT; 14 in EL, and 16 in SI. 
In ES, following the adoption of the new Asylum Law two different accelerated procedures apply at the 
border  and  in-side  the  territory.  The  border  procedure  is  similar  to  the  BG  model,  while  the  in-side 
procedure is linked with specific grounds.  
This  concerns  the  detained  fast  track  procedure,  and  data  refer  to  working  days.  Within  the  detained 
non-suspensive appeals procedure the time frames are 6 or 10 days.  
This concerns persons in detention and refers to the working days. It can be extended up to 8 days. 
This concerns applicants in detention. 
This concerns applicants in detention. 
In IE, the priority procedure lasts from 17 to 20 working days in practice.  

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they are fixed for completing certain stages of the procedure42. Accelerated procedures may 
be  conducted  without  offering  the  person  the  opportunity  of  a  personal  interview  (CY,  EE, 
EL, FR, MT, PL, PT, SI and the UK), attract shorter time limits for lodging appeals (BG, CZ, 
IE, IT, NL, PL, SI, SK, RO and the UK), or deprive appeals of automatic suspensive effect 
(AT, CZ, ES, NL, FI, FR, IT, SE, SK and the UK). 

Member States are allowed to reject the claim as unfounded or manifestly unfounded only if 
the person does not qualify for international protection. In CZ, FI, EL, IT, LV, LT, MT, PL, 
PT, SK and SI applications may, however, be rejected as unfounded or manifestly unfounded 
where the determining authority establishes a circumstance falling under Article 23 (4) APD, 
and in BG, CZ, FI, FR, DE, HU, LT, MT, and SI, the corresponding national provisions tend, 
moreover, to depart from the Directive's wording.  

5.2.2. 

Inadmissible applications (Article 25 (2)) 

The  possibility  to  refrain  from  examining  the  application  where  another  Member  State  has 
granted refugee status has been transposed in BG, CZ, CY, FI, HU, SK, EL, ES, IT, LV, MT, 
PL, PT, SI and the UK. In BG, CZ, CY, HU, EE, EL, ES, FI, DE, IE, IT, LU, LV, MT, NL, 
PT,  RO,  SI,  SE,  SK  and  the  UK,  a  claim  may  be  considered  inadmissible  where  a  person 
comes  from  a  'first  country  of  asylum'.  The  safe  third  country  notion  is  applicable  at  the 
admissibility stage in AT, BG43, RO, SK, CY, EE, EL, ES, FI, LT, LV, MT, NL, PT, LU, SI 
and the UK. In BG, NL, CY, MT, SI and PT, an application may be considered inadmissible 
where a person has been granted or has applied for a status which offer rights equivalent to 
refugee status. Identical subsequent applications are considered inadmissible in AT, CZ, CY, 
HU, EL, ES, IT, NL, RO, LV, LT, PL, MT, SI and the UK, whilst CY, EL, PL, MT and PT 
applies this notion to the claims of dependent adults previously covered by applications made 
on their behalf and where there are no new facts specific to their situation.  

BE and FR have not transposed Article 25 (2), whilst a number of Member States which do 
make use of this article have no special admissibility procedure (e.g. EE, FI, IE, IT, NL), and 
others (e.g. AT, BG, ES and PT) have provided for a preliminary procedure in which both the 
admissibility  and  substantive  criteria  are  examined.  In  several  cases,  national  legislation 
provides for inadmissibility grounds which do not correspond to Article 25 (2)44.  

5.2.3.  The concept of first country of asylum (Article 26) 

Member  States  may  only  consider  a  third  country  to  be  a  first  country  of  asylum  for  an 
applicant where he/she has been recognised as a refugee there and can still avail him/herself 
of that protection; or otherwise enjoys sufficient protection there, and where that country will 
readmit the person. AT, BE, FR, LT and PL have not transposed this optional notion. In BG, 
CY, CZ, EE, ES, DE, EL, HU, IE,  IT,  LV, LU, PT, RO, SK, SI and the UK, the provision 
may be applied to recognised refugees, while CY, DE, EE, EL, ES, FI, LV, LU, MT, NL, PT, 
SI,  SE  and  the  UK  have  also  foreseen  the  possibility  to  apply  this  notion  to  persons  who 
otherwise  enjoy  sufficient  protection.  The  notion  of  sufficient  protection  is  interpreted 
diversely,  including  'some  other  kind  of  international  protection'  (EE),  'effective  protection 

42 
43 
44 

In FI and PT, the average time limits are accordingly 67 and 30 days in practice.  
In BG, this ground may be applied in the accelerated procedure, as described in section 5.2.1.  
This  includes  the  possibility  not  to  examine  an  application  in  substance  based  on  the  safe  country  of 
origin  notion  (MT),  a  lack  of  legitimate  interest  (BG),  the  lodging  of  a  new  application  with  another 
personal data (ES) or where a person is in possession of a residence permit (EE). 

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under the terms of the Geneva Convention' (PT), and 'the right to reside or to obtain effective 
international protection' (ES). DE applies a presumption of safety where a person has lived for 
more  than  3  months  in  another  third  country  where  he/she  is  not  threatened  by  political 
persecution,  and  NL  makes  use  of  the  concept  of  a  country  of  former  residence45.  SI  and  EL 
follow the directive's wording, literally, hence referring to sufficient protection. In EE, DE, SE, 
and FI, the requirement that the notion is applicable only if a person will be readmitted to a 
third country is omitted in transposition norms.  

5.2.4.  The safe third country concept (Article 27)  

The safe third country concept applies where a person might have requested protection in a 
third country which is safe and able to offer protection in line with the 1951 Convention and 
with which the person has a connection. BE, DE, FR, IT, PL and SE have not transposed this 
notion,  whilst  other  Member  States  rarely  apply  it  in  practice46.  As  regards  material  criteria 
for  applying  the  concept  to  a  third  country,  national  rules,  in  general,  either  follow  or 
essentially reflect the Directive's wording. Several problems are reported. In CZ and the UK, 
the applicable legislation does not provide that a third country  must respect the  principle of 
non-refoulement47, whilst in RO and the UK the national criteria do not refer to the possibility 
to request refugee status and receive protection. In FI, IE and LT, an emphasis is placed on 
the third country's participation in and observance of refugee and human rights treaties rather 
than on the treatment of a person in accordance with the Directive's specific criteria.  

The safe third country notion may only be applied where a connection with a third country, 
which  makes  it  reasonable  for  a  person  to  go  there,  is  established.  National  measures  lack 
detailed rules in that respect and merely refer to a person who 'was present' (SI), 'has transited 
and had an opportunity at the border or within the territory to contact the authorities' (RO and 
the UK), 'has remained or transited and there is a connection which may, in principle, allow 
the  person  to  address  that  country'  (PT),  'has  stayed'  (CZ),  or  'has  resided'  (BG,  EL48  and 
MT49) in a third country. No relevant rules are laid down in AT, FI50, LT and SK. In EE, ES, 
LU, CY, national rules require the authorities to establish a connection without specifying the 
applicable criteria. In NL, relevant rules are in place and inter alia require the authorities to 
assess the nature, length and circumstances of a person's residence in a third country.  

Member States may either designate safe third countries and/or apply the notion on a case by 
case basis. BG, CZ, RO, SK, SI and PT have opted for the former approach, whilst AT, EE, 
ES51,  FI,  EL,  LT,  LV,  MT,  NL  and  SE  use  a  case  by  case  approach.  In  the  UK,  both  the 
designation  and  case  by  case  consideration  of  safety  are  foreseen52.  Member  States' 
approaches  vary  and  generally  lack  necessary  details  with  respect  to  an  individual 
examination  of  safety  for  a  particular  person.  In  a  number  of  Member  States,  the  person  is 
entitled to rebut the presumption of safety already in the first instance procedure (e.g. BG, CZ, 
EE, FI, NL, SI, SK), whilst in others this opportunity is available through exercising a right of 
appeal (e.g. CY, RO, LT, MT, EL53, ES, the UK). While a general trend is that a person may 

45 

46 
47 
48 
49 
50 
51 
52 
53 

This refers to a country where a person has obtained or may obtain a residence permit which offers a 
long term protection against return. 
Reportedly, only AT, ES, HU, PT and the UK apply it in practice and only in a limited number of cases. 
For CZ, it concerns Articles 27 (1) (b) and (c). As regards the UK, it concerns Article 27 (1) (c) only.  
In EL, legislation refers to a residence permit.  
In MT, national rules refer to 'a meaningful period' and a connection with the country concerned.  
The only requirement is that the person 'could have enjoyed protection' in that country. 
With reference to practice 
In practice, only a case by case approach is used, since no safe third country lists have been adopted. 
With reference to practice. No explicit rules are provided in legislation. 

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challenge  the  presumption  of  safety  on  any  ground,  several  Member  States  limit  it  only  to 
either Article 3 ECHR grounds (MT, NL, PT) or ECHR grounds in general (the UK). In FI 
and  EL,  the  grounds  are  not  specified  in  legislation.  It  is  the  Commission's  view  that  the 
persons  concerned  must  be  informed  of  and  have  an  effective  opportunity  to  rebut  the 
application of the notion before a first instance decision is taken54.  

5.2.5. 

Safe countries of origin (Articles 29 – 31) 

The  Court  of  Justice  has  annulled  the  Directive's  rules  on  procedures  for  the  adoption  and 
amendment of a minimum common list of safe countries of origin (the "SCO")55. As regards 
national  designation,  no  SCO  notion  exists  in  BE,  IT,  PL  and  SE56.  Wide  divergences  are 
identified between Member States which have SCO procedures in place. In CY, EE, HU and 
EL, the notion is applicable to part of a country. A number of Member States (DE, FI, FR, NL 
and  the  UK)  may  rely  on  stand-still  clauses,  hence  applying  less  rigorous  criteria  for  the 
national designation, and the UK makes use of the possibility to designate part of a country as 
safe, or a country or part of a country as safe for a specified group of persons. While national 
laws  generally  provide  for  a  list  of  SCO,  they  have  been  actually  adopted  only  in  several 
Member States (AT, DE, FR, LU, RO, SK and the UK), and the contents of these lists vary 
significantly.57 In EE, CZ, FI, NL and PT, no lists are foreseen and the notion may be applied 
on  a  case  by  case  basis,  and  in  BG,  FR,  PT,  MT  and  RO,  national  rules  do  not  fully  and 
explicitly reflect the Directive's criteria for considering a country as SCO.  

The  requirement  of  an  individual  examination  is  generally  recognised  either  as  a  general 
principle  or  specifically  in  the  context  of  the  SCO  notion.  While  the  same  applies  to  the 
possibility  to  rebut  the  presumption  of  safety,  reportedly  applicants  may  not  always  be 
informed of the authorities' intention to apply the notion58, and in EE, EL, and SI a personal 
interview may be omitted in SCO procedures.  

5.2.6.  Preliminary procedure for subsequent applications (Articles 32 – 34) 

The  Directive  allows  Member  States  to  make  subsequent  claims  subject  to  a  preliminary 
procedure, so as to assess whether they contain new elements or findings which significantly 
add to the likelihood of qualifying as a refugee. This procedure is in place in BE, DE, EL, LU, 
MT,  NL,  PT,  RO,  SE,  and  SI.  In  CZ,  ES,  HU,  LV,  similar  criteria  are  integrated  into  an 
admissibility  procedure  and  in  FR  they  are  part  of  an  accelerated  procedure.  The 
interpretation  of  the  Directive's  test  regarding  what  constitute  new  elements  varies 
significantly.  In  EL  and  LU,  legislation  follows  the  directive  literally,  DE  relies  on  general 
grounds for review of administrative acts, NL requires new circumstances which may not be 
prima facie excluded as reasons to review a previous decision, BE examines whether the new 
circumstances contain  significant indications of a well  founded fear of persecution or a real 
risk of serious harm, CZ requires a connection with the reasons for granting protection, while 
SI,  HU,  LV  and  SK  put  an  emphasis  on  a  change  of  circumstances.  SE  requires  new 
circumstances which constitute a lasting impediment  to expulsion. Member  States generally 
require applicants to submit elements which were not known or could not have been known at 
the time of the previous examination.  

54 
55 
56 
57 
58 

It stems from the principle of respect for the right to be heard. See, in particular case C-349/07, CJ.  
Case 133/06, Judgement of 6 May 2008.  
These Member States, however, have transposed the SCO notion linked with a common list. 
DE has designated 2 non-EU countries, FR – 18 and the UK – 26. 
With reference to the UNHCR study on the application of the Asylum Procedures Directive. 

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BE,  CZ,  PT,  RO,  SE  apply  the  preliminary  procedure  only  to  applications  made  after  a 
decision has been taken on a previous application, while SI also does so for claims made after 
the explicit withdrawal of the application, and DE, ES, EL, HU, LU, MT and NL apply the 
Directive's  rules  on  the  preliminary  procedure  to  claims  made  after  either  a  decision  or  the 
explicit or implicit withdrawal of the previous application. Only DE applies the preliminary 
procedure to persons who fail to go to a reception centre or appear before the authorities at a 
specified time, pursuant to Article 33 APD.  

In  CZ,  DE,  EL,  LU,  MT  and  RO  rules  covering  subsequent  claims  allow  for  omitting  a 
personal interview, and, in DE, LU, NL, MT and RO the persons concerned are required to 
indicate  facts  and  submit  evidence  which  justify  a  new  procedure.  DE,  LU,  PT59  and  MT 
require applicants to submit the new information within a specified time limit.  

The directive's rules on subsequent claims have not been transposed in IE, the UK operates a 
system of 'fresh claims' which differs from the Directive's standards, while in SK legislation 
merely  requires  the  authorities  to  terminate  the  procedure  where  the  facts  of  the  cases  have 
not substantially changed after a decision taken on the previous application.  

5.2.7.  Border procedures (Article 35) 

Border procedures are foreseen in AT, BE, CZ, EE, ES, FR, DE, EL, HU, NL, PT, RO, SK 
and SI, and vary significantly in terms of personal scope, grounds and types of decisions, and 
procedural  time  limits  and  guarantees.  They  apply  to  applicants  who  lack  entry  documents 
(BE,  DE,  FR,  NL,  PT),  are  from  a  safe  country  of  origin  (DE),  produce  forged  documents 
(CZ),  pose  a  threat  to  national  security  or  public  order  (CZ),  or  whose  identity  is  not 
established  (CZ).  AT,  EE,  ES,  EL,  HU,  PT,  RO,  SI60  apply  a  border  procedure  to  all 
applicants  who  request  asylum  either  at  the  border  in  general  or  in  specific  locations  (e.g. 
airports).  

Grounds  for  rejecting  an  asylum  claim  include  the  safe  country  of  origin  notion  (AT,  DE, 
EE),  admissibility  grounds  (EE,  ES,  HU,  SI,  PT),  poorly  substantiated  claims  (AT), 
manifestly  unfounded  claims  (DE,  ES,  FR,  RO,  PT,  SI),  and  claims  involving  false 
information regarding identity, nationality or authenticity of documents (AT). In EL, NL and 
CZ, applications are decided upon at the border on general grounds. The time limit for taking 
a decision varies from 2 days (DE), to 3 days (RO), to 4 days (ES, FR), to 7 days (PT), to 8 
days (HU), to 15 days (BE), to 30 days (EL, CZ), and to 42 days (NL). National provisions on 
border procedures generally  reflect  basic principles and guarantees or, in the case of border 
procedures  based  on  a  stand-still  clause61,  minimum  guarantees  listed  in  Article  35  (3).  In 
particular,  persons  who  are  subject  to  the  border  procedure  are  generally  given  the 
opportunity  of  a  personal  interview.  National  rules  allows  for  the  omission  of  a  personal 
interview in a border procedure in EE only.  

5.2.8.  Withdrawal of refugee status (Articles 37 and 38) 

The  Directive's  provisions  on  the  withdrawal  of  refugee  status  are  generally  reflected  in 
national law. DE avails of an optional clause making it possible to decide that refugee status 
lapses by law where the cessation clauses apply. In 2008 and 2009, in EE, EL, ES, LT, LV, 

59 
60 
61 

In PT, the application of a time limit is left to the discretion of the determining authority. 
In SI, provisions on border procedures have not been applied in practice. 
Pursuant to Article 35 (2) APD, Member State may maintain procedures in accordance with the laws in 
force on 1 December 2005 which derogate from the basic principle and guarantees.  

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MT, PT and RO, no refugee status was withdrawn, while some Member States (IE, LU, HU, 
PL, SI, SK and SE) reported numbers not exceeding 25 cases per year. In 2008 and 2009, this 
notion was applied more frequently in AT (105 cases), DE (10 755), FR (220) and IT (95).  

5.3. 

Appeals Procedures  

5.3.1.  Access to effective remedy (Article 39) 

The directive requires Member States to ensure access to an effective remedy before a court 
or  tribunal,  to  lay  down  relevant  procedural  rules  and  time  limits,  and  to  provide  for 
arrangements regarding the right to remain pending the outcome of the appeal. In the majority 
of Member States, a court acts as the first tier appellate body. These may be specialist courts 
(AT, FR and SE), administrative courts (BG, EE, EL, ES, FI, FR62, DE, LV, LT, LU, SI), or 
courts of general competence (CZ, IT, HU, NL, RO, SK and the UK63). Specialised tribunals 
are in place in BE, CY, IE, MT, PL and the UK. In the UK, the Special Immigration Appeals 
Commission hears appeals in national security cases. EL is the only Member State where the 
Supreme Administrative Court (the Council of State) acts as the only appeal instance against 
asylum decisions taken by the determining authority. 

Time  limits  for  lodging  appeals  vary  significantly,  and  many  Member  States  have  reduced 
them  for  decisions  falling  under  Articles  23  (4),  28  (2),  32  and/or  35  APD  and  decisions 
concerning applicants in detention. The general time limit varies from 8 days (PT), to 10 days 
(EE, LV and the UK), 14 days (AT, BG, DE, LT, PL), 15 days (CZ, HU, IE64, SI), 20 days 
(CY), 21 day (SE), 28 days (NL65), 30 days (BE, FI, FR, EL, IT, SK), and 60 days (EL, ES). 
The reduced time limits are 2 days (FR, RO, the UK), 3 days (SI, DE66, PT), 5 days (PL, the 
UK67), 7 days (BG, CZ, DE, NL68), 10 days (CY), 15 days (BE, IT), and 20 days (SK). The 
same time limit applies for all asylum decisions in EE, FI, EL, LT, LV, PL and SE.  

The  principle  of  automatic  suspensive  effect  applies  to  all  appeals  lodged  with  the  first  tier 
appellate body in BG, HU, IE, LT, LU and PT. In other Member States, applicable exceptions 
are  widely  divergent  and  concern  decisions  not  to  further  examine  a  subsequent  application 
(BE, DE, ES, LV, MT, NL, SI, RO, and the UK), a refusal to reopen the examination (CZ, 
DE, SI), decisions taken in border procedures (CZ, DE), inadmissibility decisions (AT, CZ, 
FI, DE, IT, PL, SK, the UK), decisions falling under Articles 23 (4) and/or 28 (2) APD (AT, 
CY,  CZ,  FI,  FR,  DE,  IT,  SE,  SI,  SK,  the  UK),  decisions  falling  under  Article  23  (3)  APD 
(NL),  and  decisions  concerning  applicants  in  detention  (IT,  NL).  In  EL  and  ES,  no  appeal 
automatically  suspends  removal.  Where  an  appeal  does  not  have  suspensive  effect,  interim 
measures  are  generally  available.  However,  the  right  to  remain  pending  the  outcome  of  the 
procedure for interim measures is not guaranteed by law in CZ, EL and SK. In several other 
Member  States,  removal  may  immediately  be  enforced  with  respect  to  decisions  on 
subsequent  claims  (FI,  NL)  or  where  a  person  poses  a  danger  to  public  order  or  national 
security (NL). In the UK, where an in–country right of appeal does not apply, a decision may 

62 
63 
64 
65 
66 
67 
68 

With reference to decisions to refuse entry and decisions to apply an accelerated procedure. 
With reference to decisions which can only be subject to judicial review.  
In IE, the time limit is 15 working days.  
With reference to the extended procedure. Legislation sets a time limit of 4 weeks.  
With reference to the border procedure. 
With reference to applicants in detention. In the fast track procedure the time limit is 2 days.  
With reference to the procedure in an application centre.  

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only  be  either  challenged  by  seeking  a  leave  for  judicial  review  or  appealed  against  from 
abroad.  

In the majority of Member States, the first tier appeal authority has jurisdiction to review both 
facts and points of law. However, in EL and SI, the court reviews the legality of first instance 
decisions only. In the UK, judicial review does not fully examine the merits of the decision, 
and  in  NL  only  limited  scrutiny  applies  to  the  facts  as  established  by  the  determining 
authority. While  in BE69,  BG,  ES,  FI,  FR,  DE70, IT  and the  UK, a court or tribunal has the 
power to conduct an ex nunc assessment of the case, others (e.g. CZ, SI and NL) tend to place 
restrictions with respect to the possibility to consider new evidence.  

The Court of Justice of the European Union has dealt with only one request for a preliminary 
ruling with respect to this Directive71. This situation may change given the entry into force of 
the  Lisbon  Treaty  which  enables  national  courts  of  all  instances  to  seek  interpretative 
guidelines from the Court, hence contributing to more consistent application of the Directive.  

6. 

CONCLUSION 

This  evaluation  confirms  that  some  of  the  Directive's  optional  provisions  and  derogation 
clauses  have  contributed  to  the  proliferation  of  divergent  arrangements  across  the  EU,  and 
that procedural guarantees vary considerably between Member States. This is notably the case 
with  respect  to  the  provisions  on  accelerated  procedures,  'safe  country  of  origin',  'safe  third 
country',  personal  interviews,  legal  assistance,  and  access  to  an  effective  remedy.  Thus, 
important disparities subsist. A number of cases of incomplete and/or incorrect transposition 
and  flaws  in  the  implementation  of  the  Directive  have  also  been  identified.  The  cumulative 
effect  of  these  deficiencies  may  make  procedures  susceptible  to  administrative  error.  It  is 
noteworthy, in this regard, that a significant share of first instance decisions is overturned on 
appeal.  

The present report shows that the objective of creating a level playing field with respect to fair 
and efficient asylum procedures has not been fully achieved. The Commission will continue 
to examine and pursue all cases where problems of transposition and/or implementation have 
been identified, so as to facilitate the correct and consistent application of the Directive, and 
to ensure full respect for the principle of non-refoulement and other rights enshrined in the EU 
Charter.  Procedural  divergences  caused  by  the  often  vague  and  ambiguous  standards  could 
only  be  addressed  by  legislative  amendment.  Accordingly,  and  on  the  basis  of  a  thorough 
evaluation  of  the  implementation  of  the  Directive,  the  Commission  adopted  on  21  October 
2009 a proposal to recast the Directive in order to remedy the deficiencies identified. 

69 
70 
71 

In BE, the submission of new elements is, however, subject to certain conditions.  
With the exception of cases rejected as manifestly unfounded.  
Case C – 69/10. The Luxemburg Administrative Tribunal has essentially asked whether the Directive 
requires a remedy against a decision to decide on the application in an accelerated procedure. 

EN 

15 

   EN