COMMUNICATION FROM THE COMMISSIONTO THE EUROPEAN PARLIAMENTpursuant to Article 294(6) of the Treaty on the Functioning of the European Unionconcerning the position of the Council on the adoption of a proposal for a Decision of the European Parliament and of the Council of amending Decision no 573/2007/EC establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme &quot;Solidarity and Management of Migration Flows&quot; and repealing Council Decision 2004/904/EC (“establishment of a Joint EU Resettlement Programme”)
Date: 2012-03-09
Institutions: European Commission
Subjects: EU Member State, EU programme, admission of aliens, aid to refugees, fund (EU), integration of migrants, refugee

EUROPEAN COMMISSION 

Brussels, 9.3.2012  
COM(2012) 110 final 

2009/0127 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a proposal for a Decision of the European 
Parliament and of the Council of amending Decision no 573/2007/EC establishing the 
European Refugee Fund for the period 2008 to 2013 as part of the General programme 
"Solidarity and Management of Migration Flows" and repealing Council Decision 
2004/904/EC (“establishment of a Joint EU Resettlement Programme”) 

 
 
 
 
  
 
 
 
2009/0127 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a proposal for a Decision of the European 
Parliament and of the Council of amending Decision no 573/2007/EC establishing the 
European Refugee Fund for the period 2008 to 2013 as part of the General programme 
"Solidarity and Management of Migration Flows" and repealing Council Decision 
2004/904/EC (“establishment of a Joint EU Resettlement Programme”) 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2009)456 final – 2009/0127 COD): 

3 September 2009 

Date of the position of the European Parliament, first reading: 

18 May 2010 

Foreseen date of adoption of the position of the Council: 

8 March 2012 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The  objective  of  the  Commission  proposal  is  twofold,  on  one  hand  to  increase  the 
resettlement of refugees to the European Union – both in absolute numbers and in the number 
of Member States that have national resettlement schemes – and on the other hand to send a 
strong political signal about the importance the EU attaches to providing durable solutions to 
refugees,  in  particular  the  most  vulnerable  ones.  In  order  to  achieve  this,  a  Joint  EU 
Resettlement  Programme  is  to  be  set  up.  Its  creation  is  to  result  in  a  better  coordinated  EU 
approach to resettlement.  

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

The  Council's  position  is  a  result  of  a  long  negotiation  process.  Following  the  first  reading 
position of the European Parliament (issued on 18 May 2010), the co-legislators did not reach 
a compromise due to the institutional issue of the choice of procedure for the establishment of 
annual resettlement priorities at European level (delegated vs. implementing acts procedure). 
The stalemate in negotiations was overcome with the proposal submitted by the Presidency in 
late December 2011. The compromise proposal is based on the fact that the European Refugee 
Fund runs only up to the end of 2013. This means that the pledging exercise to take place in 
2012  is  the  last  one  under  the  present  Fund.  This,  in  turn,  implies  that  there  is  no  need  to 
establish a procedure for setting annual resettlement priorities, as such priorities will only be 
defined  once  before  the  present  Fund  ceases  to  exist.  The  solution  found  is  to  insert  the 
specific EU resettlement priorities for 2013 as an integral part of the Decision in Annex I.  

Further to the first reading position of the European Parliament (adopted on 18 May 2010), an 

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agreement on the substance of the proposal was finally reached between the co-legislators on 
the outstanding issues in a Trilogue on 9 February 2012. The only open point concerned the 
legal basis for this proposal. 

On 10 February the Chairman of the LIBE Committee sent a letter to the Council Presidency 
confirming  the  agreement  of  the  rapporteurs  and  the  Shadow-rapporteurs  on  the  text 
supported  by  the  Council,  and  stating  that  if  that  text  was  to  be  transmitted  formally  to  the 
European  Parliament  during  a  forthcoming  plenary  session  as  the  Council's  First  Reading 
Position  for  this  legislative  proposal,  he  would  recommend  that  the  Members  of  the  LIBE 
committee and subsequently the plenary session accept it without amendments. Coreper met 
on 15 February to discuss the legal basis of the proposal. Coreper on 22 February confirmed 
the agreement on the text to be submitted to the Council for adoption. 

The  main  differences  between  the  Common  Position  and  the  original  Commission  proposal 
are set out below. 

Establishment of common EU priorities (Article 1(1)(a)) 

The Common Position lists the resettlement priorities in the Decision as opposed to the initial 
proposal by the Commission according to which the common EU resettlement priorities were 
to be established in the comitology procedure on an annual basis. Since the current European 
Refugee Fund covers the period until the end of 2013, the Decision establishes resettlement 
priorities  for  one  year  only.  It  is,  therefore,  in  line  with  Commission's  proposal  to  list  the 
priorities  for  that  year  in  this  Decision.  A  mechanism  for  the  establishment  of  the  common 
EU  resettlement  priorities  is  provided  for  in  the  instrument  creating  a  new  Asylum  and 
Migration Fund for the period 2014-2020.  

Common EU resettlement priorities for 2013 (Article 1(1)(a)) 

The common EU resettlement priorities for 2013 as set out in the Common Position cover 3 
sets of priorities: 1) persons from a country or region designated for the implementation of a 
Regional  Protection  Programme,  2)  persons  belonging  to  a  specific  vulnerable  group,3) 
refugees from a specific country or region. The first two sets of priorities are formulated as 
general ones and they draw closely on the categories set out in Article 13(3) of Decision No 
573/2007/EC  establishing  the  European  Refugee  Fund  for  the  period  2008  to  2013.  In 
comparison  with  Decision  No  573/2007/EC  the  Common  Position  adds  the  following 
vulnerable groups to the list: survivors of violence and torture as well as persons in need of 
emergency resettlement or urgent resettlement for legal or physical protection needs. 

The third set of priorities is referred to as specific common EU priorities for 2013 and the list 
of these priorities can be found in the Annex to this Decision. This list is established on the 
basis of the UNHCR resettlement criteria and the UNHCR annual resettlement forecast taking 
into  account  where  EU  common  action  would  have  a  significant  impact  in  addressing  the 
protection needs. This is in line with the Commission's proposal. 

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The fixed amount to be received for each resettled person (Article 1(1)(b))  

The Common Position amends the Commission proposal by proposing a higher fixed amount 
for  each  person  resettled  according  to  the  priorities  to  be  received  from  the  Fund  by  those 
Member States that have not used the Fund for this purpose before. Whereas Article 13(3) of 
Decision  No  573/2007/EC  establishing  the  European  Refugee  Fund  for  the  period  2008  to 
2013  provides  that  Member  States  receive  a  fixed  amount  of  4000  EUR  for  each  person 
resettled according to the priorities set out in the Decision, the Common Position foresees an 
amount of 6000 EUR for each resettled person for those Member States which shall receive 
the  fixed  amount  from  the  Fund  for  the  first  time  and  an  amount  of  5000  EUR  for  those 
Member States which have received the fixed amount from the Fund only once before. The 
purpose of this amendment is to encourage those Member States that have not done so until 
now  to  launch  resettlement  programmes.  This  is  in  general  in  line  with  the  aim  of  the 
Commission, namely to ensure increased resettlement to the EU by larger number of Member 
States.  

The legal basis of the proposal 

The  Commission  proposal  of  2009  was  originally  based  on  Article  63  (2)  (b)  TEC  but  the 
Omnibus Communication on consequences of the entry into force of the Treaty of Lisbon for 
ongoing interinstitutional decision-making procedures indicated Articles 78 and 80 TFEU (the 
latter on internal EU solidarity) as the new legal basis. The reference to this article, together 
with article 78 TFEU, aimed at underlining that the purpose of the proposed measures was to 
ensure a "balance of efforts" as mentioned in former article 63 TEC. However, the Council is 
of the opinion that the correct lisbonisation of the legal basis is art. 78 (2) (g) TFEU, and that 
art. 80 TFEU cannot constitute a legal basis, not even a complementary one. 

On  13  February  the  DK  Presidency  issued  a  paper  with  two  options,  one  of  which  was  to 
propose an inclusion of a recital including a reference to Article 80 TFEU. The Coreper on 15 
February decided to keep only art. 78 (2) (g) TFEU as the legal basis for the proposal. This 
position was confirmed by Coreper on 22 February. The text was forwarded for the adoption 
by the Council on March 8.  

Although  not  in  line  with  the  Omnibus  Communication,  the  Commission  may  support  the 
legal basis to be composed solely of art. 78 (2) (g) TFEU as the non-inclusion of Article 80 
TFEU  which  does  not  as  such  constitute  a  legal  basis  does  not  affect  the  substance  of  the 
proposal  and  is  in  line  with  the  equivalence  tables  of  the  Lisbon  Treaty.  Furthermore,  it  is 
consistent with recent MFF proposals in home affairs area which have been adopted with no 
reference to article 80 TFEU. The recital as added can be supported by the Commission as it 
underlines the importance of Solidarity in the Common European Asylum System and makes 
explicitly reference to art. 80 TFEU. 

4. COMMISSION DECLARATION 

Within the framework of the negotiations on the recital referring to article 80 TFEU and the 
principle of solidarity, the European Parliament asked the Commission to issue a Declaration 
on its future right of initiative with regard to the choice of legal bases. 

The  Commission  agreed  to  this  request.  The  text  of  the  Declaration  is  the  following: 

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DECLARATION BY THE COMMISSION 

The Commission, in a spirit of compromise and in order to ensure the immediate adoption of 
the proposal, supports the final text; however it notes that this is without prejudice to its right 
of initiative with regard to the choice of legal bases, in particular in reference to the future 
use of Article 80 TFEU.  

5. 

CONCLUSION 

The  Common  Position  satisfies  the  Commission's  original  objective  to  ensure  more  refugee 
resettlement to the European Union by increasing both the numbers of resettled refugees and 
the number of the Member States having ongoing national resettlement schemes. This allows 
for more strategic resettlement to the EU. The substance of the Council's position is, therefore 
broadly in line with the Commission's proposal and can be supported.  

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