Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common procedures for granting and withdrawing international protection status (Recast) Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common procedures for granting and withdrawing international protection status (Recast)
Date: 2011-06-01
Institutions: European Commission
Subjects: EU migration policy, administrative procedure, children's rights, external border of the EU, refugee, right of asylum, right to justice

EUROPEAN COMMISSION 

Brussels, 1.6.2011 
COM(2011) 319 final ANNEX 

ANNEX  

Detailed Explanation of the Amended Proposal 

Accompanying the document 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on common procedures for granting and withdrawing international protection status 

(Recast) 

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The  detailed  explanation  of  the  amended  proposal  is  presented  in  comparison  to  the 
2009 Commission proposal amending Directive 2005/85/EC. 

Article 1 

There are no changes compared to the proposal of 2009. 

Article 2 

The Article has been changed compared to the 2009 proposal in respect to: 

(d) 

The definition of applicants in need of special procedural guarantees: 

(i) 

(ii) 

introduces a more precise term, namely "applicant in need of special procedural 
guarantees",  which  reflects  better  that  special  needs  have  to  be  taken  into 
account for the purposes of the Asylum Procedures Directive,  

introduces  sexual  orientation  and  gender  identity  cases  where  applicants  may 
need  special  procedural  guarantees  given  that  in  these  cases,  inter  alia,  the 
examination  of  the  application  and  especially  the  personal  interview  has  to 
ensure that the applicant is able to present his/her case, and 

(iii)  clarifies  the  nature  of  certain  grounds  by  replacing  the  term  "mental  health 
problems"  with  "serious  physical  illness,  mental  illness  or  post  traumatic 
disorders". 

(n) 

(q) 

The modified proposal extends the scope of the term of "representative" in order to 
clarify  that,  depending  on  the  given  national  system,  not  only  a  person  but  also  an 
organisation can legally represent an unaccompanied minor.  

This  new  definition  for  subsequent  applications  is  necessary  to  support  the 
clarification of the rules on subsequent applications throughout the text. 

Article 3 

There are no changes compared to the proposal of 2009. 

Article 4 

The  modified  proposal  introduces  significant  changes  in  order  to  simplify  the  rules  and 
facilitate their implementation. 

It  is  clarified  that  the  determining  authority  should  be  provided  with  appropriate  means, 
including sufficient competent personnel, to carry out its tasks, and that the personnel of the 
determining authority shall be properly trained. In order to simplify the rules on the training 
activities that need to be provided for the personnel, the modified proposal has been aligned 
with the relevant rules of the European Asylum Support Office Regulation (Regulation (EU) 
439/2010) by a reference to Article 6(4)(a) to (e) thereof. This requirement on training thus 
covers now the following elements: 

(a) 

international  human  rights  and  the  asylum  acquis  of  the  Union,  including  specific 
legal and case-law issues; 

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(b) 

(c) 

(d) 

(e) 

(f) 

issues  related  to  the  handling  of  asylum  applications  from  minors  and  vulnerable 
persons with specific needs; 

interview techniques; 

the use of expert medical and legal reports in asylum procedures; 

issues relating to the production and use of information on countries of origin; 

reception  conditions,  including  special  attention  given  to  vulnerable  groups  and 
victims of torture. 

As regards the exceptions from the principle of single determining authority, a new point (b) 
has  been  introduced  for  cases  where  another  authority  (e.g.  border  guards)  grant  or  refuse 
permission to enter to the territory in case of a border procedure. It has been clarified that in 
these cases, the decision on the permission must be based on the opinion of the determining 
authority.  This  change  aims  to  align  the  rules  of  the  Directive  with  the  variety  of 
arrangements on border control in Member States. 

Article 5 

There are no changes compared to the proposal of 2009. 

Article 6  

In order to provide a clearer structure, Article 6  of the  2009 proposal has been divided  into 
two Articles: Article 6 of the modified proposal lays down rules on the general principle of 
easy  and  timely  access,  while  the  new  Article  7  deals  with  applications  made  on  behalf  of 
dependant or minors. 

The terminology of the article has been clarified compared to both the 2009 proposal and to 
the  current  Directive.  A  clearer  distinction  is  introduced  between  the  terms  "make"  and 
"lodge" relating to an application for international protection. In line with the definition of an 
application of Article 2(b), an  application is  deemed  to  be "made" as soon  as a person who 
can be understood to seek refugee status or subsidiary protection status makes a request for 
protection  from  a  Member  State.  This  act  does  not  require  any  administrative  formalities. 
Relevant administrative formalities are accomplished when an application is "lodged". In line 
with paragraph 2, Member States shall give an effective opportunity to lodge an application as 
soon  as  possible,  notwithstanding  any  practical  restrictions  in  line  with  paragraph  1,  to  any 
person who wishes to make an application.  

In  paragraph  3,  it  has  been  clarified  that  only  the  fact  that  a  person  who  has  made  an 
application  is  an  applicant  needs  to  be  registered  within  72  hours,  not  that  the  complete 
registration  of  the  application  must  be  done  within  this  time  limit.  This  rule  is  clearer  and 
more compatible with the specificities of national asylum systems.  

The  requirement  to  facilitate  access  to  asylum  procedures  by  authorities  other  than  the 
determining authority has been simplified. It is now a general principle that the personnel of 
authorities likely to receive applications shall have the relevant instructions and the necessary 
training  to  comply  with  the  obligation  to  facilitate  access  to  procedure.  A  reference  to  the 
guidelines  developed  by  the  European  Asylum  Support  Office  aims  to  ensure  further 
harmonisation through operational means. 

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In order to allow Member States to deal efficiently with applications in case a large number of 
third country nationals or stateless persons applies simultaneously, the proposal provides for 
the possibility to extend the 72 hour deadline to 7 working days.  

Article 7  

The  modified  proposal  clarifies  the  conditions  when  a  minor  can  make  an  application  on 
his/her own behalf. This includes the condition that the minor has the legal capacity to act in 
procedures  according  to  national  law  of  the  Member  State  concerned  or  through  his/her 
parents or other adult family members.  

Article 8 (corresponds to Article 7 of the 2009 proposal) 

This  Article  simplifies  the  rules  of  the  corresponding  Article  7  of  the  2009  proposal.  The 
simplification aims to give more flexibility to Member States in the implementation of these 
rules.  Especially  concerning  interpretation  arrangements,  it  has  been  clarified  that  such 
arrangements need to be provided only to the very basic extent that is necessary to facilitate 
access  to  procedure.  In  essence,  the  objective  is  to  enable  the  persons  who  wish  to  request 
international protection to do so. The term "arrangement" indicates that Member States have a 
wide discretion to find the appropriate modalities.  

Article 9 (corresponds to Article 8 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 10 (corresponds to Article 9 of the 2009 proposal) 

In order to reflect the establishment of the European Asylum Support Office and its specific 
important role in the EU in supporting Member States with regard to reliable country of origin 
information  in  asylum  procedures,  the  sequence  between  the  Office  and  UNCHR  has  been 
reversed. 

Under paragraph 3(b), the reference to the right of the applicant and the legal adviser to access 
country-of-origin information has been deleted from this Article. It has been moved to Article 
12(1) as a new point (d) to improve coherence of the text. 

An  additional  element  has  been  added  to  point  (d)  under  paragraph  3  to  ensure  that  the 
personnel examining applications and taking decisions have also the possibility to seek advice 
on religious matters which may be relevant in cases where refugees are persecuted for reasons 
relating to religion. 

Article 11 (corresponds to Article 10 of the 2009 proposal) 

Two additional grounds have been added to paragraph 3 taking into account that disclosure of 
particular  information  on  sexual  orientation  or  gender  identity  could  also  jeopardize  an 
applicant's interest in case of a single decision that covers all dependants. 

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Article 12 (corresponds to Article 11 of the 2009 proposal) 

Paragraph 1(a) and (f) has been amended. The proposal stipulates that the language to be used 
to inform the applicant on the procedure should be a language that the applicant understands 
or  is  reasonably  supposed  to  understand.  Furthermore,  under  (a),  in  order  to  increase  the 
applicants'  awareness  of  the  consequences  of  withdrawal,  Member  States  are  required  to 
inform  applicants  about  these  rules  at  the  beginning  of  the  procedure.  This  safeguard  is 
necessary due to changes in the rules on withdrawal. 

In paragraph (1)(b), it has been clarified that it is not only the determining authority that can 
call upon the applicant to be interviewed, but also other competent authorities in case of an 
admissibility interview.  

New  point  (d)  contains  the  right  of  the  applicants  and,  if  applicable,  their  legal  advisers  to 
access  to  information  referred  to  in  Article  10(3)(b).  This  change  does  not  introduce  new 
obligations;  it  has  been  moved  from  Article  10  since  the  inclusion  of  the  access  to  the 
information  referred  to  in  Article  10(1)(b)  ensures  more  coherence  in  this  Article  12  with 
regard to the structure of the text. 

Article 13 (corresponds to Article 12 of the 2009 proposal) 

The modified proposal makes the wording of paragraph 1 more precise and coherent without 
changing its content. 

Article 14 (corresponds to Article 13 of the 2009 proposal) 

Rules on personal interviews have been made more flexible. While it remains a general rule 
that interviews on the substance of an application shall be conducted by the personnel of the 
determining authority, in case a large number of third country nationals or stateless persons 
apply simultaneously, Member States may provide that the personnel of another authority be 
involved in conducting such interviews. Nevertheless, in this case, the personnel shall receive 
the same training that is provided for the personnel of the determining authority. This practice 
may be applied only temporarily, as long as the conditions last. 

The third subparagraph of paragraph 1 has been simplified and clarified without changing the 
obligation that dependant adults shall be given the opportunity of a personal interview. 

In  paragraph  2(b),  the  term  "competent  authority"  has  been  changed  to  "determining 
authority"  in  order  to  ensure  that  it  is  always  the  determining  authority  that  decides  if  the 
personal interview can be omitted in case the applicant is unfit or unable to be interviewed. 

Article 15 (corresponds to Article 14 of the 2009 proposal) 

In  paragraph  3(a),  it  has  been  clarified  that  the  person  who  conducts  the  interview  must  be 
competent  to  take  account  of  the  personal  and  (instead  of  "or")  general  circumstances 
surrounding  the  applications  in  order  to  make  a  proper  decision.  These  are  conjunctive 
elements and not alternative ones; both have to be met. Sexual orientation and gender identity 
have been added to the list of examples of circumstances that have to be taken into account 
since these are also elements that may need to be considered during the interview. 

In  paragraph  3(c),  the  wording  has  been  simplified  without  changing  the  content  of  the 
provisions.  

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In paragraph 3(d), the rule that the interviewer shall not wear a uniform has been made more 
precise, excluding only military or law enforcement uniform. 

In paragraph 3(e), the wording has been made more accurate. 

Article 16 (corresponds to Article 15 of the 2009 proposal) 

This  Article  has  been  simplified  to  facilitate  its  implementation  by  Member  States.  The 
requirement  that  the  questions  addressed  to  the  applicant  are  relevant  to  the  assessment  has 
been removed since this is implicitly covered by the requirement to provide the applicant with 
an adequate opportunity to present the elements of the case. 

Article 17 (corresponds to Article 16 of the 2009 proposal) 

This  Article  has  been  significantly  changed  compared  to  the  2009  proposal.  Member  States 
are not required to make a transcript of every personal interview. According to the proposed 
rules,  a  thorough  report  has  to  be  made  which  contains  all  substantial  elements  of  the 
interview.  Member  States  may  also  provide  that  the  interview  is  audio  or  audio-visually 
recorded.  Nevertheless,  even  in  these  cases,  a  thorough  report  has  to  be  made  and  the 
recording has to be annexed to the report. 

The applicant has to have the opportunity to make comments on the report. To that end, the 
applicant  has  to  be  informed  about  the  content  of  the  report  at  the  end  of  the  personal 
interview  or  within  a  specified  time-limit  before  the  determining  authority  takes  a  decision. 
The term "fully" indicates that that this information has to include all elements of the content 
of the report in a holistic way and, if necessary, with the assistance of an interpreter.  

The proposal requires Member States to request the approval of the applicant on the content 
of  the  report.  There  is  an  exception  from  this  rule,  namely  where  the  interview  is  audio  or 
audio-visually recorded. In this case, the applicant has to have the possibility to refer to the 
recording as evidence in appeals procedures that has been attached to the report as evidence.  

If the applicant refuses to approve the report, this shall be indicated in the file. However, this 
refusal does not prevent the determining authority from taking a decision. 

Article 18 (corresponds to Article 17 of the 2009 proposal) 

The proposal aims to significantly revise the rules on medical reports. The title of the Article 
has  been  changed  by  removing  the  term  "legal"  to  better  reflect  the  actual  content  of  this 
Article. 

The first sentence of paragraph 1 lays down the general principle that the applicant should be 
allowed  to  have  a  medical  examination  in  order  to  submit  a  medical  certificate  to  the 
determining  authority  in  support  of  his/her  claim.  The  scope  of  this  medical  certificate  is 
limited; its aim is to support the applicant's claim as regards past persecution or serious harm. 
This is to clarify that the medical certificate does not in itself constitute proof of persecution. 
Member States may set a reasonable time limit for the certificate's submission in order not to 
delay the examination and the decision. With a view to make procedures more efficient and 
avoid  abuse  or  unnecessary  delay,  the  provision  provides  for  the  possibility  to  make  a 
decision  without  taking  into  account  the  certificate  if  it  was  not  submitted  in  time  without 
good reason. 

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A medical examination may be particularly relevant to the examination of the claim where the 
applicant is unable to fully articulate the elements needed to substantiate his/her application. 
For this reason, paragraph 2 requires the determining authority to carry out by its own motion, 
with the consent of the applicant, a medical examination, if it considers that there is a reason 
to believe that the applicant suffers from post-traumatic stress disorder or past persecution or 
serious harm which would make him/her unable to be interviewed. If the applicant refuses to 
undergo  the  medical  examination,  this  does  not  prevent  the  determining  authority  from 
making a decision. 

The new paragraph 5 clarifies the content of the training to be provided by the Member States 
to the persons interviewing the applicants. The term "awareness" indicates that the aim of the 
training must be to ensure that the interviewers know and are able to recognise the symptoms 
which could indicate previous torture other medical problems that could hinder the applicant's 
ability to be interviewed. 

Articles 19–22 (correspond to Article 18 of the 2009 proposal) 

New  Articles  19–22  aim  to  adjust  and  clarify  rules  on  the  right  to  legal  assistance  and 
representation with a view to make these rules more flexible while ensuring that the provision 
of  legal  and  procedural  information  free  of  charge  is  available  to  those  who  request  it  and 
have no sufficient resources. This is one of the key elements of "frontloading". The choice for 
this  approach  was  fully  supported  by  the  findings  of  a  project  in  the  UK,  the  so-called 
"Solihull pilot", presented at the Ministerial Conference on Asylum in September 2010. This 
project  confirmed  the  hypothesis  that  "frontloading"  the  asylum  process,  in  particular  by 
providing access to competent legal advice for asylum applicants at the start of the procedure, 
leads to significant improvements in the quality of first instance decisions.  

Compared to the 2009 proposal, the terminology has been changed in order to avoid possible 
confusion  between  three  different  notions:  1.  the  minimum  level  of  provision  of  legal  and 
procedural information at first instance, 2. free legal assistance to ensure effective access to 
justice  in  appeals  proceedings,  and  3.  the  right  of  applicants  to  contact  a  legal  adviser  or 
counsellor at their own cost. In order to provide clearer rules and structure, Article 18 of the 
2009  proposal  has  been  split  into  four  Articles.  The  split  of  these  Articles  makes  the 
distinction between these various notions at different stages of the procedure clearer. 

Article 19 

This  Article  lays  down  the  rules  on  provision  of  legal  and  procedural  information  free  of 
charge  in  procedures  at  first  instance.  The  title  of  the  Article  aims  to  clarify  that  Member 
States  are  obliged  to  provide,  on  request,  applicants  with  legal  and  procedural  information 
free  of  charge  in  first  instance  procedures  and  that  this  is  not  to  be  considered  as  "legal 
assistance  and  representation".  Thus,  in  line  with  several  Member  States'  national  legal 
systems,  to  comply  with  this  obligation,  it  is  not  necessary  to  appoint  a  lawyer  to  every 
applicant.  

The  provision  also  sets  a  minimum  level  of  provision  of  legal  and  procedural  information. 
First, it includes the explanation of the procedural steps, devices, rights and obligations likely 
to be relevant to the applicant's case, including the obligations to cooperate and to submit the 
elements  referred  to  in  Article  4  of  the  Qualification  Directive.  Second,  it  includes,  in  the 
event  of  a  negative  decision,  the  explanation  of  the  factual,  substantive  law  and  procedural 
reasons  for  the  rejection,  in  order  to  enable  the  applicant  to  take  a  more  informed  decision 

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about whether to exercise his/her right to an effective remedy. This clarification proved to be 
necessary further to the experiences throughout the discussions on the previous proposal.  

Note  that  Article  20(2)  clarifies  that  if  Member  States  provide  free  legal  assistance  and/or 
representation  in  procedures  at  first  instance,  this  is  presumed  to  include  the  elements 
foreseen under the provision of legal and procedural information free of charge.  

Paragraph 2 refers to further conditions to be applied which are described below under Article 
21. 

Article 20  

The title of this new Article indicates that Member States shall ensure the availability of free 
legal  assistance  and  representation  in  case  of  appeals  procedures.  In  the  terminology  of  the 
modified proposal, free legal assistance and representation means that the applicant is assisted 
and  represented  by  a  competent  person;  in  several  Member  States'  national  systems  this 
means  a  qualified  lawyer.  Minimum  requirements  have  been  laid  down  here  as  well  which 
include  the  preparation  of  procedural  documents  and  participation  in  the  hearing  before  the 
court  or  tribunal.  The  latter  is  limited  to  first-tier  appeal  procedures.  In  further  instances 
Member  States  are  not  bound  by  this  Directive  to  provide  any  free  legal  assistance  and 
representation.  Given  that  the  minimum  requirements  under  this  provision  include  both 
assistance (preparation of documents) and representation (participation in the hearing), it has 
been  clarified  that  this  provision  covers  both  legal  assistance  "and"  (instead  of  "and/or") 
representation. 

Paragraph  2  refers  to  the  practice  of  several  Member  States  where  already  in  first  instance 
procedures  (i.e.  administrative  procedures  before  the  determining  authority),  free  legal 
assistance  and/or  representation  (provided  by  lawyers)  is  available.  This  paragraph 
accommodates their systems by clarifying that in this case these Member States do not have to 
provide the legal and procedural information foreseen under Article 19 in addition, since the 
legal assistance and representation by a lawyer already covers these needs.  

Paragraph 3 describes the possibility of the so-called "merits test". This means that Member 
States  may  provide  that  free  legal  assistance  and  representation  may  not  be  available  for 
applicants  whose  appeal  has  no  tangible  prospect  of  success.  Nevertheless,  this  needs  to  be 
assessed  by  the  court  or  tribunal  and  not  by  the  determining  authority.  The  second 
subparagraph limits the application of merits test by referring to Article 47 of the Charter of 
Fundamental  Rights  of  the  EU  which  stipulates  that  those  who  lack  sufficient  resources 
should receive legal aid in so far as it is necessary to ensure effective access to justice. This 
subparagraph thus should be read in conjunction with Article 21(2)(c) of the Directive which 
lays down the general rule that free legal and procedural information at first instance and free 
legal assistance and representation at appeals procedures may be provided only for those who 
lack sufficient resources. 

Article 21  

This Article lays down the general conditions that are applicable in cases of the provision of 
legal and procedural information free of charge and free legal assistance and representation. 
The new paragraph 1 aims to give wide discretion to Member States on how to comply with 
these  obligations.  The  appointment  of  a  lawyer  is  considered  as  a  standard  solution, 
nevertheless,  Member  States  may  fulfil  the  obligations  under  Articles  19  and  20  through 

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NGOs  or  state  officials  or  specialised  services  of  the  state.  This  provision  accommodates 
several Member States' existing systems. 

Article 22  

This Article retains the right of the applicant to consult a lawyer at all stages of the procedure. 
The main distinction between the provisions of this Article and those of Articles 19–21 is that 
this covers only the right to contact a lawyer on the applicant's own cost. It is also stipulated 
that Member States may allow non-governmental organisations to provide such services. 

Article 23 (corresponds to Article 19 of the 2009 proposal) 

The  modified  proposal  introduces  a  change  with  regard  to  access  to  information  in 
proceedings  that  concern  national  security  considerations.  With  a  view  to  respecting  the 
principle of equality of arms and established case law, it provides for the possibility to allow 
Member  States  to  grant  access  to  files  only  for  specialised  services  of  the  state  (advocates) 
where  national  security  is  concerned.  This  provision  aims  to  ensure  that  the  applicant  is 
represented  properly  while  no  sensitive  or  confidential  information  is  disclosed.  The  rules 
allow the representative (State official, advocate) not to have any contacts with the applicant.  

Article 24 (corresponds to Article 20 of the 2009 proposal) 

The modified proposal aims to simplify the provisions on persons with special needs. It aims 
to lay down the principles and allows Member States to find the most appropriate modalities.  

First, the title of the Article, in line with the definition in Article 2(d), clarifies that, for the 
purposes  of  this  Directive,  procedures  need  to  take  into  account  the  specific  situation  of 
applicants in need of special procedural guarantees. This is in particular to clarify that special 
procedural needs and special reception needs may be different. 

The first paragraph stipulates that applicants in need of special procedural guarantees need to 
be  identified  in  due  time.  This  provision  is  fully  in  line  with  the  relevant  provisions  of  the 
modified  proposal  on  the  Reception  Conditions  Directive;  Member  States  may  use  the 
mechanism described in Article 22 of the modified proposal for that Directive.  

The  proposal  provides  for  a  wide  discretion  for Member  States  as  regards  the  modalities  to 
identify applicants  in  need  of special procedural guarantees if this becomes apparent during 
the procedure. This may particularly be the case for certain traumatic disorders that may only 
be revealed over a period of time. 

The  second  paragraph  describes,  in  general  terms,  the  principle  that  applicants  in  need  of 
special procedural guarantees shall be granted sufficient time and relevant support to present 
the  elements  of  the  application.  This  rule  aims  to  provide  maximum  flexibility  to  Member 
States to find the actual modalities to implement this provision in various cases. 

Article 25 (corresponds to Article 21 of the 2009 proposal) 

The  modified  proposal  essentially  extends  the  obligation  of  the  representative  to  assist  an 
unaccompanied  minor.  The  scope  of  assistance  has  been  clarified  and  made  broader  with  a 
view  to  the  special  procedural  needs  of  unaccompanied  minors.  Now  the  provision  requires 
the  representative  to  assist  the  minor  to  enable  him/her  to  benefit  from  all  rights  and  to 
comply  with  all  obligations  laid  down  in  the  Directive.  The  requirement  of  impartiality  has 

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been removed  since  the representative shall  act in the interest of the unaccompanied minor; 
however,  it  has  been  specified  that  the  representative  has  to  act  in  accordance  with  the 
principle of the best interest of the child.  

Paragraph  2(b)  has  been  removed  given  that  the  fact  that  a  minor  is  married  or  has  been 
married does not mean per se that he/she does not need assistance. This reflects possible cases 
of forced marriages. 

In paragraph 3(a), the requirement that an interview shall be conducted by a person who has 
the  necessary  knowledge  of  the  special  needs  of  minors  has  been  extended  to  include  also 
admissibility interviews. 

Paragraph  4  clarifies  that  not  only  the  unaccompanied  minor  but  also  his/her  representative 
shall  be  provided  with  legal  and  procedural  information  free  of  charge  and  that  this  also 
applies to the case of withdrawal of a status, thus covering all procedures under the Directive. 

Paragraph 5 introduces a change with regard to medical examinations for minors to determine 
the age stating that if the examination could not reach a clear conclusion in this respect, the 
applicant shall be considered as a minor. 

Paragraph  6  excludes  the  possibility  to  apply  the  "merits  test"  to  the  provision  of  free  legal 
assistance and representation in case of appeals procedures in order to ensure that the interest 
of these unaccompanied minor applicants are protected. 

Article 26 (corresponds to Article 22 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 27 (corresponds to Article 23 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 28 (corresponds to Article 24 of the 2009 proposal) 

This  Article  provides  for  the  possibility  to  reject  an  application  as  unfounded  if  it  is 
considered  implicitly  withdrawn  on  the  condition  that  the  application  was  adequately 
examined after a personal interview. 

Paragraph  2  provides  for  the  possibility  for  applicants  who  report  again  after  an  implicit 
withdrawal to make a new application after the case was discontinued. As a general rule, this 
new  application  cannot  be  considered  as  a  subsequent  application.  As  a  consequence,  it 
cannot  be  considered  inadmissible  on  the  basis  that  it  does  not  contain  new  elements. 
Nevertheless, if the applicant reports again more than one year after the previous application 
was considered withdrawn, Member States are not obliged by the Directive to reopen the case 
and  can  process  the  new  application  as  a  subsequent  application.  These  provisions  aim  to 
provide tools to combat abusive repeat applications. 

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Article 29 (corresponds to Article 25 of the 2009 proposal) 

The  wording  of  paragraph  1(a)  has  been  aligned  with  other  articles  of  the  Directive  which 
does not change the content of the provision. 

Article 30 (corresponds to Article 26 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 31 (corresponds to Article 27 of the 2009 proposal) 

The  modified  proposal  introduces  several  changes  as  regards  the  examination  procedure  at 
first  instance  and  accelerated  procedures.  The  changes  aim  to  accommodate  specificities  of 
Member  States'  national  systems  and  to  ensure  more  flexibility  and  efficient  means  to  deal 
with abuse. 

Paragraph 3 retains the general six-month deadline for the conclusion of the procedure at first 
instance. Nevertheless, two additional exceptions have been introduced, namely in case where 
large  number  of  applicants  lodge  applications  simultaneously  and  where  the  determining 
authority cannot keep the deadline due to the failure of the applicant to comply with his/her 
obligations. 

Member  States  may  also  postponeconcluding  the  procedure  in  case  where  the  determining 
authority cannot take a decision due to an uncertain situation in the country of origin which is 
expected  to  be  temporary.  In  this  case  Member  States  may  exceed  the  six+six  month  time 
limit. However, the applicant shall keep his/her applicant status. 

The  grounds  for  prioritisation  have  been  amended  in  order  to  align  the  Directive  with  the 
modified  proposal  on  Reception  Conditions  Directive:  Member  States  may  prioritise  an 
examination when the applicant is vulnerable. The terminology has also been adjusted to the 
new term "applicants in need of special procedural guarantees". Unaccompanied minors have 
been also expressly referred to where the prioritisation may be particularly justified. 

Paragraph 6 clarifies that the grounds under this paragraph may be used for both acceleration 
and  examination  at  the  border.  This  change  accommodates  the  national  systems  of  Member 
States which apply the general procedure at the border. Nevertheless, the list of cases that can 
be accelerated or examined at the border remains exhaustive. 

Two grounds for acceleration (and border procedure) have been reintroduced: 

(e) reintroduces point (g) of the 2005 Directive. This ground aims to provide the possibility to 
deal  efficiently  with  abusive  cases.  The  wording  has  been  adjusted,  stipulating  that  this 
ground  can  be  used  where  the  applicant  has  made  clearly  false  or  obviously  improbable 
representations  which  contradict  sufficiently  verified  country-of-origin  information.  This 
change aims to add an objective element to this ground.  

(g)  reintroduces  point  (m)  of  the  2005  Directive  which  concerns  cases  of  threat  to  national 
security or public order. It has been clarified that an application can be accelerated if there are 
serious reasons to consider an applicant as a danger to national security. 

Paragraph  7  of  the  2009  proposal  has  been  deleted.  The  requirement  to  ensure  an  adequate 
and  complete  examination  has  been  moved  to  new  paragraph  7.  Rules  on  manifestly 

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unfounded  applications  were  deleted  since  Article  28  of  the  2005  Directive  has  been 
reintroduced that covers these rules.  

Article 32 (corresponds to Article 28 of the 2005 Directive) 

This Article corresponds to Article 28 of the 2005 Directive. The change in content concerns 
national security cases since this is the only acceleration ground that cannot be considered as 
manifestly unfounded, given that in these cases the reason for acceleration is not based on the 
consideration that the claim is ill-founded. Article 28 of the 2009 proposal has been removed 
since it covered the same rules. 

Article 33 (corresponds to Article 29 of the 2009 proposal) 

Point  (d)  has  been  amended  because  the  term  "identical"  was  very  restrictive  and  made  the 
application  of  this  inadmissibility  ground  impossible  in  practice  and  incompatible  with  the 
rules on subsequent applications it  was  meant  to serve.  The  modified proposal clarifies  that 
this inadmissibility ground can be used if there are no new elements in case of a subsequent 
application. The link to subsequent applications (and their definition) has been made clearer. 

Article 34 (corresponds to Article 30 of the 2009 proposal) 

The rules have been aligned with the general rules on the personal interview. This concerns 
the requirement that the interviewer should not wear a military or law enforcement uniform. 

Article 35 (corresponds to Article 31 of the 2009 proposal) 

The  modified  proposal  foresees  the  explicit  possibility  for  the  applicant  to  challenge  the 
application of the first country of asylum notion in his/her particular circumstances.  

Article 36 (corresponds to Article 34 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 37 (corresponds to Article 33 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 38 (corresponds to Article 32 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 39 (corresponds to Article 38 of the 2009 proposal) 

In the interest of coherence, a new paragraph 6 has been added requiring Member States to 
inform  the  Commission  periodically  about  the  countries  to  which  the  European  safe  third 
country concept is applied. This corresponds to an equivalent obligation relating to safe third 
countries. 

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Article 40 (corresponds to Article 35 (1)-(7) and (9) of the 2009 proposal) 

Rules  on  repeated  or  subsequent  applications  have  been  significantly  clarified  in  order  to 
ensure  efficient  handling  of  such  claims.  A  definition  of  the  term  "subsequent  application" 
provides  a  clear  scope  for  these  rules.  A  subsequent  application  may  be  considered 
inadmissible if there are no new elements which would significantly add to the likelihood that 
the applicant qualifies for international protection status. The existence of new elements has 
to be verified through a preliminary examination. If there are new elements,  the subsequent 
application has to be examined in conformity with the general rules. It has been clarified that 
if there are no new elements, the application shall be considered as inadmissible. The rules on 
subsequent  applications  can  also  be  applied  in  case  an  unmarried  minor  lodges  a  separate 
application. 

Article 41 (corresponds to Article 35 (8)-(9) of the 2009 proposal) 

The content of these rules has not been changed, but the text has been restructured to ensure 
more clarity.  

Article 42 (corresponds to Article 36 of the 2009 proposal) 

Paragraph 3(b) has been deleted since it is superfluous. This rule is covered by Article 40(3). 

Article 43 (corresponds to Article 37 of the 2009 proposal) 

This  Article  remains  unchanged.  Nevertheless,  the  changes  in  Article  31  and  33  extend  the 
scope  of  the  applicability  of  this  Article  through  references.  The  additional  acceleration 
grounds allow Member States to examine these cases also in border procedure. The change in 
the  rules  on  inadmissibility  of  claims  that  have  no  new  elements  also  enables  wider  use  of 
border procedures. 

Article 44 (corresponds to Article 39 of the 2009 proposal) 

There are no changes compared to the proposal of 2009. 

Article 45 (corresponds to Article 40 of the 2009 proposal) 

Paragraph 4 has been changed. Member States may provide that the international protection 
status  shall  lapse  by  law  if  the  beneficiary  of  the  international  protection  status  becomes  a 
citizen of the given Member State. 

Article 46 (corresponds to Article 41 of the 2009 proposal) 

The  rules  on  the  right  to  an  effective  remedy  have  been  essentially  maintained  in  order  to 
ensure  compliance  with  the  established  case  law  of  the  Court  of  Justice  of  the  European 
Union and the European Court of Human Rights. 

The changes concern the following elements: 

In  paragraph  5,  it  has  been  clarified  that  the  applicant  shall  have  the  right  to  remain  in  the 
Member State's territory until the deadline to make an appeal.  

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In paragraph 6, an additional ground has been added where no automatic suspensive effect has 
to  be  provided:  this  is  the  case  where  the  application  has  been  considered  inadmissible 
because  another  Member  State  has  already  granted  refugee  status.  It  has  been  clarified  that 
exceptions  can  be  made  from  the  principle  of  automatic  suspensive  only  in  case  where 
acceleration  or  inadmissibility  grounds  apply.  As  a  consequence  of  the  extension  of 
acceleration grounds under Article 31(6), this paragraph has a wider scope than in the 2009 
proposal.  

In paragraph 9, the obligation to set deadlines for courts to make a decision on the appeal has 
been removed in order to accommodate specificities of national judicial systems. 

Paragraph  5  of  the  2005  Directive  has  been  deleted  to  ensure  consistency  with  paragraph  2 
and with the Qualification Directive. 

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