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 Directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers
Date: 2013-06-10
Institutions: European Commission
Subjects: EU Charter of Fundamental Rights, EU migration policy, basic needs, external border of the EU, freedom of movement, job access, right of asylum, right to justice, schooling

EUROPEAN 
COMMISSION 

Brussels, 10.6.2013  
COM(2013) 415 final 

2008/0244 (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 Directive of the European Parliament and of 
the Council laying down standards for the reception of asylum seekers  

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2008/0244 (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 Directive of the European Parliament and of 
the Council laying down standards for the reception of asylum seekers  

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2008) 815 final/2 - 2008/0244 (COD)  

9 December 2008 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

16 July 2009 

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

7 May 2009 

Date of transmission of the amended proposal:  

6 June 2011 

Foreseen date of adoption of the position of the Council: 

7 June 2013 

(document COM(2011) 320 final -2008/0244 COD) 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The  proposal  amends  the  2003  Reception  Conditions  Directive  laying  down  minimum 
standards for the reception of asylum seekers, and aims to ensure better and more harmonised 
standards  of  treatment.  In  particular,  it  addresses  the  issue  of  grounds  for  detention  and 
includes  an  extensive  list  of  rules  and  guarantees.  It  strengthens  access  to  employment, 
material  support,  health  care,  and  legal  assistance,  provision  of  representation  for 
unaccompanied  minors,  the  identification  of  special  needs  as  well  as  facilitating  the 
Commission's role in monitoring implementation.  

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

Following the Commission's amended proposal in June 2011, which aimed at taking stock of 
the progress made in the negotiations until then, a common position was reached at political 
level between co-legislators on 28 June 2012. COREPER unanimously endorsed the common 
position on 11 July 2012. The LIBE committee also informally endorsed it on 19 September 
2012 via an orientation vote [51 votes for, 4 against and 3 abstentions]. On 20 September, the 
LIBE  Chairman  sent  a  letter  to  the  Council  PRES  indicating  that  if  the  Council  adopts  the 
common  position  without  changes,  he  will  recommend  to  the  Members  of  the  LIBE 
committee  and  subsequently  to  the  Plenary  to  adopt  the  common  position  without 
amendments.  

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The  main  differences  between  the  common  position  and  the  Commission  2011  amended 
proposal are as set below. 

Definition of family members - Article 2 (c) 

The Commission proposal extended the definition of family members as far as minors were 
concerned. In particular it includes married minor children of the applicant, the minor siblings 
of the minor applicant, and the parents or other adult responsible for the minor. In all cases, it 
covers both married and unmarried minors.  

The common position does not endorse this definition, but the more restrictive one as agreed 
in the Qualification Directive amended proposal.  

However,  the  definition  of  family  members  in  the  Reception  Conditions  Directive  only 
concerns accommodation arrangements, and in particular  the  right  of  family  members  to  be 
lodged  together.  Since  the  common  position  also  includes  safeguards  in  other  provisions 
which  ensure  the  rights  of  minors,  whether  married  or  unmarried,  in  relation  to  their 
accommodation rights, the objectives of the Commission proposal are fully met.  

Identification of the special reception needs of vulnerable persons, Article 22, Recital 14  

The  common  position  retains  the  objectives  of  the  Commission  proposal  concerning  the 
treatment  of  this  category  of  applicants.  Although  the  wording  has  been  substantially 
amended in negotiations, the obligation to assess the individual needs of all applicants with a 
view  to  identifying  who  is  a  vulnerable  person  and  thus  may  need  special  reception 
guarantees is retained.  

The amendments introduced to the Commission proposal mainly aim to address concerns that 
the identification procedure may create disproportionate administrative costs and unnecessary 
administrative  procedures.  They  thus  clarify  the  scope  of  application  of  the  identification 
process but they do not restrict it.  

Material reception conditions - Article 17(5), Recital 20 

The common position retains the obligation included in the Commission proposal for Member 
States  to  apply  a  national  point  of  reference  when  calculating  the  required  level  of  material 
assistance for asylum applicants. As an example of such a point of reference, the Commission 
proposal  stipulated  the  minimum  social  welfare  assistance  provided  to  nationals.  This 
example  was  not  retained  in  the  common  position  due  to  concerns  that  this  may, 
automatically, lead to equal treatment between asylum seekers and nationals in this respect. 
Since this reference was only included as an example in the concerned provision, its deletion 
has no effect to the obligation set therein.  

Health care – Article 19 

The  common  position  retains  the  objective  of  the  COM  proposal  in  this  respect,  since  it 
ensures  better  standards  on  healthcare  for  all  applicants,  including  vulnerable  persons.  The 

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common position merely substitutes the reference of "post-traumatic disorders" with "serious 
mental disorders"; this change does not restrict the scope of this provision. 

Reduction or withdrawal of material reception conditions: Article 20, Recital 21 

The common position is more restrictive than the Commission proposal on this issue, in one 
aspect;  in  particular,  it  re-introduces  the  ground  included  in  the  current  Directive  which 
allows the reduction/withdrawal of support under all grounds envisaged in Article 20 of the 
Directive when the asylum application was unjustifiably made too late. 

However,  the  re-introduced  ground  is  also  re-worded  in  order  to  be  less  ambitious  than  the 
one currently in force.  In  particular,  it only allows the reduction of support and not the  full 
withdrawal  and  it  obliges  Member  States  to  first  "establish"  that  the  delay  was  without 
"justifiable  reasons".  It  also  states  that  in  all  cases,  applicants  must  be  ensured  "dignified 
standards of living". Finally, the common position retains the obligation to ensure access to 
appeals  against  decision  to  withdraw/reduce  support,  accompanied  by  access  to  request  for 
free legal assistance, as set out in the Commission proposal.  

Access to the labour market- Article 15, Recital 19 

The  common  position  is  more  restrictive  than  the  Commission  proposal  concerning  the 
maximum period of time after which access to employment shall be granted [9 months instead 
of 6, as proposed by the Commission, and only if a first instance decision is not issued within 
that  period].  It  also  re-introduces  the  possibility  to  apply  the  labour  market  test,  which  was 
deleted by the Commission proposal.  

At the same time, it ensures higher standards of protection than the current Directive which 
only  allows  access  after  a  period  of  12  months.  Moreover,  the  common  position  retains  the 
obligation  included  in  the  commission  proposal  for  Member  States  to  ensure  that  while 
conditions  on  access  to  employment  may  be  imposed,  in  practice  they  shall  not  be  so 
restrictive as to effectively prevent access to employment. 

Detention 

To be noted that, with the exception of a few general principles, the Directive in force does 
not include rules on detention. Therefore, the common position, which to a great extent retains 
the  Commission  proposal's  objectives,  achieves  a  high  added  value  compared  to  current 
standards. 

a. Grounds for detention - Article 8(3) 

The  common  position  adds  one  more  ground  for  detention  to  the  4  proposed  by  the 
Commission.  The  additional  ground  allows  the  detention  of  an  asylum  seeker  if  national 
authorities can substantiate, on the basis of objective criteria, including that the person had the 
opportunity to apply for asylum sooner but did not, that the intention was merely to frustrate 
the return procedure. 

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The  common  position  retains  the  list  of  grounds  exhaustive.  It  also  includes  all  the  general 
safeguards introduced in the Commission proposal [detention may only apply if proportional, 
necessary, if alternatives considered etc.]. 

b. Guarantees for detention – Article 9  

The common position retains, to a large extent, the guarantees proposed by the Commission, 
namely  on  access  to  free  legal  assistance,  information  on  grounds  for  detention  and 
possibilities  to  appeal.  However,  it  does  not  foresee  for  an  automatic  judicial  review  of  the 
detention  order  if  it  is  issued  by  the  administrative  authorities.  At  the  same  time,  in  such 
cases, the common position obliges Member States to at least inform the applicant in writing 
about his rights to lodge an appeal against the detention order, and if such an appeal is lodged, 
to ensure that it is processed speedily. 

c. Detention of persons with special reception needs - Article 11 

Article 11(1) of the Commission amended proposal which prohibits Member States to detain 
vulnerable persons unless it is established that their health, including their mental health, and 
well-being, will not significantly deteriorate as a result of the detention has been deleted in the 
common  position.  Instead,  the  common  position  states  that  "the  health,  including  mental 
health, of applicants in detention who are vulnerable persons shall be of primary concern to 
national  authorities"  and  that  Member States  shall  ensure  regular  monitoring  and  adequate 
support taking into account their particular situation, including their health. 

Article  11(1)  needs  to  be  seen  together  with  Article  22,  which  obliges  Member  States  to 
assess  without  delay  the  situation  of  all  applicants  arriving  on  the  territory  with  a  view  to 
identifying their special needs, including in terms of health and psychological status. In this 
respect, Article 22 can also assist to ensure that the objectives of Article 11(1) are met. 

Moreover, Article 11 no longer refers to the obligation to ensure that detention is not applied 
unless it is established that it is in line with the best interests of the child principle. However, 
Article  23  of  the  Directive  states  that  the  best  interests  of  the  child  shall  be  a  primary 
consideration  for  Member States  when  implementing  the  provisions  of  the  law  concerning 
minors, as also stipulated in the UN Convention on the Rights of the Child. In this respect the 
Directive retains the obligation to ensure that the principle of the best interests of the child is 
respected in all cases including detention.  

Finally,  the  common  position  deletes  the  reference  to  "particularly"  from  "particularly 
exceptional".  However,  the  principle  of  ensuring  that  detention  of  minors  is  applied  only 
exceptionally is retained in the text. 

d. Conditions for detention - Article 10  

The common position does not retain the obligation to always ensure the separation of asylum 
applicants  from  other  third  country  nationals  while  in  detention,  as  proposed  by  the 
Commission, but only "as far as possible". However, it is ensured that in such cases applicants 

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are under a different regime from third country nationals and can still benefit from the specific 
reception conditions set out in the Directive.  

Moreover,  the  common  position  allows  Member  States  to  exceptionally  resort  to  prison 
accommodation  if  they  are  "obliged  to"  since  they  "cannot"  use  special  detention  facilities; 
the  Commission  proposal  only  allowed  the  use  of  prison  facilities  when  places  in  special 
facilities are exhausted. The common position ensures however that in such cases, applicants 
shall be detained separately from ordinary prisoners. 

The  remaining  guarantees  included  by  the  Commission  proposal  are  retained,  namely 
ensuring  access  to  recreational  activities,  including  in  the  open-air,  communication  and 
visitation  rights  for  UNHCR,  NGOs,  family  members  and  legal  advisers,  and  access  to 
information on the running of the detention facility.  

Appeals (free legal assistance and representation) - Article 26 

The  common  position  reached  is  more  restrictive  than  the  Commission  proposal  on  two 
points. First it includes a second ground for accessing free legal assistance informed from the 
charter  of  Fundamental  Rights,  namely  when  "it  is  necessary  to  ensure  effective  access  to 
justice". Secondly, it introduces the "merit test" (informed by case-law of the ECtHR) which 
allows judges to refuse access to free legal assistance if they consider that the appeal will have 
no chance of success.  

At  the  same  time,  the  two  elements  added  are  fully  in  line  with  developing  case-law  and 
existing obligations of Member States concerning effective access to justice. In all cases, the 
court will first need to assess the level of difficulty of the legal procedures and the person's 
ability  to  follow  them  and  the  level  of  severity  of  the  sanctions  involved  with  a  view  to 
deciding  whether  free  legal  assistance  is  necessary.  Although  in  the  case  of  applicants  it 
would  be  difficult  to  prove  that  such  assistance  is  not  needed  (unaware  of  the  language, 
national legal proceeding etc.), there could be cases where access to legal assistance may be 
considered by the court to be disproportionate (i.e. minor reduction of pocket money which 
does not affect his fundamental rights).  

4. 

CONCLUSION 

The  common  position  fully  satisfies  the  main  objective  of  the  Commission  proposals.  It 
brings  added  value  to  the  current  standards  of  treatment  and  an  increased  level  of 
harmonisation  on  reception  conditions  for  asylum  seekers.  It  also  introduces  rules  on 
detention and access to free legal assistance, issues which the current asylum instruments do 
not  address.  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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