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 Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection
Date: 2013-06-10
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, 10.6.2013  
COM(2013) 411 final 

2009/0165 (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 Directive of the European 
Parliament and of the Council on common procedures for granting and withdrawing 
international protection 

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   EN 

 
 
 
 
  
 
 
 
2009/0165 (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 Directive of the European 
Parliament and of the Council on common procedures for granting and withdrawing 
international protection 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(documents COM(2009) 554 final and COM(2011) 319 final – 
2009/0165 COD): 

22.10.2009; amended 
proposal: 6.6.2011. 

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

28.4.2010, 26.10.2011. 

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

6.4.2011. 

Date of adoption of the position of the Council: 

7.6.2013. 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The Stockholm Programme adopted by the European Council at its meeting of 10–11 
December 2009 underlined the need to establish "a common area of protection and 
solidarity  based  on  a  common  asylum  procedure  and  a  uniform  status  for  those 
granted international protection", based on "high protection standards" and "fair and 
effective  procedures",  by  2012.  It  affirmed  in  particular  that  people  in  need  of 
international protection must be ensured access to legally safe and efficient asylum 
procedures.  In  accordance  with  the  programme,  individuals,  regardless  of  the 
Member State in which their application for asylum is lodged, should be offered the 
same level of treatment as regards procedural arrangements and status determination. 
The  objective  should  be  that  similar  cases  should  be  treated  alike  and  result  in  the 
same outcome. 
In  this  context,  and  as  announced  in  the  2008  Policy  Plan  on  Asylum1,  the 
Commission's  proposal  to  amend  Directive  2005/85/EC2  aimed  to  achieve  asylum 
procedures  that  are  efficient  and  fair.  The  proposal  ensures  full  respect  of 
fundamental rights as it is informed by developing case law of the Court of Justice of 

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2 

Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  Regions,  "Policy  plan  on  asylum  -  An 
integrated approach to protection across the EU" - COM(2008) 360, 17.6.2008.  
Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member 
States for granting and withdrawing refugee status, OJ L 326, 13.12.2005, p. 13–34. 

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the European Union and the European Court of Human Rights, especially concerning 
the  right  to  an  effective  remedy.  Compared  to  Directive  2005/85/EC,  procedural 
guarantees  have  been  revised  in  order  to  lead  to  more  consistent  application  of 
procedural principles and to ensure fair and efficient procedures. The proposal also 
introduces  more  consistent  and  simplified  procedural  notions  and  devices,  thus 
providing  asylum  authorities  with  necessary  procedural  tools  to  prevent  abuse  and 
quickly process clearly unfounded applications.  

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

The Council's position reflects a compromise reached in informal trilogues between 
the European Parliament and the Council, facilitated by the Commission.  

The  position  preserved  the  key  objectives  of  the  Commission's  proposal  and  is  a 
significant improvement compared to Directive 2005/85/EC. While the Commission 
regrets a small number of changes, it can nevertheless endorse the compromise and 
recommend its adoption by the Parliament. 

3.1. 

'Frontloading':  reinforced  procedural  guarantees  to  improve  the  quality  of 
asylum procedures 

The  Council's  position  conforms  to  the  principle  of  'frontloading'  and  provides  a 
strong set of guarantees for all asylum seekers.  

It  ensures  fast  and  easy  access  to  the  asylum  procedure.  Even  before  a  person 
expresses  a  wish  to  request  protection,  Member  States  will  need  to  proactively 
inform  third-country  nationals  present  at  border  crossing  points  and  in  detention 
facilities  of  the  possibility  to  apply  for  international  protection,  wherever  there  are 
indications that they may wish to apply. Basic interpretation arrangements will also 
have  to  be  provided  to  ensure  access  to  the  asylum  procedure  in  those  areas. 
Although  the  time  limits  to  register  an  asylum  application  (even  expressed  very 
informally) have been extended compared to the Commission's proposal, it has been 
clarified that a person who has expressed a wish to request international  protection 
immediately becomes an applicant and is entitled to all relevant rights, regardless of 
formal registration or lodging of the application.  

Subject  to  drafting  or  other  minor  changes,  the  text  preserves  the  substance  of  the 
Commission’s proposal on most guarantees for applicants including the principle of 
single determining authority; the content of the personal interview; provision of legal 
and  procedural  information  at  first  instance;  report  from  personal  interview;  free 
legal  assistance  in  appeals;  deletion  of  all  standstill  clauses  and  derogations  from 
basic principles and guarantees. 

Standards  are  slightly  higher  than  the  Commission’s  proposal  on  training  of 
personnel  involved  in  the  procedure.  The  Council's  compromise  specifies  that 
authorities other than the determining authorities conducting personal interviews on 
the admissibility of an application should have basic training in asylum issues.  

A  key  element  of  'frontloading'  as  proposed  by  the  Commission  was  the  general 
deadline  of  six  months,  extensible  to  twelve,  to  complete  the  examination  of  an 
application.  This  key  element  has  been  preserved,  although  the  maximum  duration 
has  been  extended.  However,  compared  to  the  proposal,  the  Council's  position 
frames  better  the  possibility  to  postpone  the  procedure  if  there  is  an  uncertain 
situation in the country of origin which means it is not reasonable to take a decision 
within the normal deadlines.  

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3.2. 

Applicants with special procedural needs, including unaccompanied minors 

While the Commission regrets that the level of guarantees for unaccompanied minors 
has been lowered in the Council's position, the Commission can nevertheless accept 
this compromise since it provides an adequate level of protection. 

The  Commission  proposed  to  exempt  unaccompanied  minors  from  accelerated  and 
border  procedures,  as  well  as  from  non-automatic  suspensive  effect  of  appeals 
because  these  procedural  devices  significantly  reduce  the  time  available  to  prove 
one's  claim,  while  minors  require  special  support  to  help  them  fully  express  their 
international  protection  needs.  As  for  border  procedures,  they  involve  detention 
which  the  Commission  believe  should  generally  not  be  applied  to  unaccompanied 
minors. Finally, non-automatic suspensive effect could jeopardise an unaccompanied 
minor's access to an effective remedy, guaranteed by the Charter.  

The  Council's  position  makes  it  possible  to  apply  accelerated  procedures  to 
unaccompanied minors, but only in a small number of circumstances. Among those, 
the  nationality  of  a  safe  country  of  origin  is  an  objective  indication  that  the 
application  is  likely  to  be  unfounded;  an  accelerated  examination  of  a  subsequent 
application can be justified by a full examination of the previous application; and the 
third ground is a legitimate national security or public order concern.  

There are six grounds allowing Member States to use border procedures. In addition 
to  the  three  grounds  for  accelerated  procedures,  two  circumstances  related  to 
admissibility are added (subsequent applications and possible application of the safe 
third  country  concept).  Two  more  substantial  additions  are  situations  where  the 
applicant  misleads  the  authorities  by  presenting  false  documents,  or  destroys  or 
disposes of an identity or travel document in bad faith. As such, those grounds would 
not  have  been  acceptable  to  the  Commission  since  unaccompanied  minors  cannot 
generally be expected to fully understand the necessity to cooperate with the asylum 
authorities. However, in the Council's position, these grounds can be used only where 
there  are  serious  grounds  to  consider  that  the  applicant  is  attempting  to  conceal 
relevant elements which would likely lead to a negative decision, and with additional 
procedural safeguards. As such, the Council's position is acceptable since it ensures 
that only applications where there are strong, objective indications of unfoundedness 
or  other  legitimate  reasons  (national  security  or  subsequent  application)  can  be 
processed  in  the  border  procedure.  Moreover,  contrary  to  accelerated  procedures, 
border  procedures  can  be  used  only  in  exceptional  circumstances,  since  they  imply 
detention  and  unaccompanied  minors  can  be  detained  only  in  exceptional 
circumstances, according to the new Reception Conditions Directive.  

As  concerns  appeals  rules,  while  there  is  a  possibility  of  non-automatic  suspensive 
effect,  this  is  only  possible  with  significant  additional  guarantees.  In  particular,  the 
applicant  will  have  at  least  one  week  and  the  necessary  legal  assistance  and 
interpretation  to  prepare  the  request  to  remain  on  the  territory.  Importantly,  in  the 
framework of this request, the court or tribunal will have to re-examine, in fact and in 
law, the negative decision, which means that the examination will have to go beyond 
the mere threshold of compliance with non-refoulement. In the Commission's view, 
these safeguards, together with high-quality first instance examination, can ensure an 
effective remedy even without full automatic suspensive effect in cases of manifestly 
unfounded applications by unaccompanied minors.  

Regarding  other  categories  of  persons  with  special  needs,  the  Council's  position 
contains  an  unequivocal  obligation  to  create  an  effective  identification  mechanism 

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and to provide adequate support in the procedure. Moreover, persons whose special 
needs  mean  they  cannot  participate  in  special  rapid  procedures  are  excluded  from 
accelerated and from border procedures and receive additional guarantees in appeals 
in  case  of  non-suspensive  effect,  which  are  the  same  as  those  for  unaccompanied 
minors. Asylum procedures also continue to be gender-sensitive with the possibility 
for  applicants  to  request  and  obtain  same-sex  interpreters  and  interviewers,  and 
gender-specific  violence  being  taken  into  account  in  assessment  of  special  needs. 
The provisions on special needs thus preserve the Commission's key objectives.  

The  question  of  special  needs  is  closely  linked  with  the  use  of  medical  reports  or 
examinations in the asylum procedure. Also here, the Council's position preserves the 
main objectives of the proposal (obligation for Member States to conduct a medical 
examination  if  relevant  and  possibility  for  applicants  to  conduct  an  examination 
themselves). However, the Commission regrets that the use of the Istanbul Protocol 
on  identification  and  documentation  of  symptoms  of  torture  has  been  rendered 
facultative,  even  though  the  Union  encourages  third  countries  to  promote  the 
systematic application of the Protocol for documentation of torture cases3.  

3.3. 

Accelerated and border procedures and effective remedy 

The  harmonisation  of  the  use  of  accelerated  and  border  procedures,  allowed  in  all 
cases  under  Directive  2005/85/EC,  was  one  of  the  key  objectives  of  the  proposal. 
This  objective  has  been  preserved  as  the  Council's  position  contains  an  exhaustive 
list of grounds for the use of these procedures. 

The  compromise  adds  three  more  grounds  to  the  Commission’s  list:  subsequent 
applications  which  are  not  inadmissible;  applicants  who  refuse  to  have  their 
fingerprints taken for the use in the Eurodac system; and applicants who entered the 
territory  or  prolonged  their  stay  unlawfully  and,  without  good  reason,  have  not 
presented themselves to the authorities and/or filed an application for asylum as soon 
as possible given their circumstances of their entry.  

The  additional  ground  with  most  substantial  impact  is  the  last  one.  However,  it 
contains  important  safeguards  which  ensure  adequate  protection  for  the  applicant. 
First,  Member  States  will  be  able  to  apply  this  ground  only  in  case  of  abusive 
applications.  Applicants  who  can  provide  reasons  for  not  presenting  themselves  to 
the  authorities  given  the  circumstances  of  their  entry  (demonstrate  why  their 
application  is  not  abusive)  will  not  be  subject  to  an  accelerated/border  procedure. 
Second, contrary to all other acceleration/border grounds, when Member States apply 
it, they must always provide at the appeal stage an automatic right to remain on the 
territory (full automatic suspensive effect).  

The proposal also aimed to strengthen the right to an effective remedy before a court 
or  tribunal  by  setting  out  the  principle  of  automatic  suspensive  effect  of  appeal, 
subject  to  limited  exceptions.  This  principle  remains  in  the  Council's  position. 
However,  there  are  more  exceptions:  in  addition  to  the  two  of  the  grounds  for 
acceleration  of  the  procedure  as  explained  below,  cases  of  implicit  withdrawal  and 
the application of the European safe third country concept are added to the list.  

Regarding  implicit  withdrawal,  relevant  safeguards  have  been  included  before  the 
appeal stage; in particular, the person has the possibility to request the re-opening of 
his  case  and  there  is  always  a  possibility  to  examine  the  claim  as  a  subsequent 

3 

Guidelines  to  EU  Policy  towards  third  countries  on  torture  and  other  cruel,  inhuman  or  degrading 
treatment or punishment, Council document 6129/12, 15 March 2012.  

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application. The risk of infringing the non-refoulement principle when the European 
safe third country concept is used is also minimal, given the strict requirements for a 
third country to be considered a European safe third country.  

Moreover, in case an appeal has no automatic suspensive effect, there is a possibility 
to request suspensive effect and the person must be allowed to remain on the territory 
while  that  request  is  processed.  There  is  therefore  no  risk  of  return  without  any 
judicial remedy. 

in  appeals 

in  border  procedures  for 

Finally,  in  line  with  the  case-law  of  the  European  Court  of  Human  Rights,  the 
Commission  proposed  that  an  appeal  against  a  negative  decision  taken  in  a  border 
procedure  has  an  automatic  suspensive  effect.  The  Council's  position  provides 
instead 
the  same  guarantees  as  for 
unaccompanied minors. In manifestly unfounded cases, these guarantees can mitigate 
the  negative  consequences  of  non-automatic  suspensive  effect.  In  particular,  they 
clarify  that  no  removal  can  take  place  pending  the  outcome  of  the  request  for 
suspensive effect (which, as explained above, is a general principle also applicable to 
other  non-suspensive  appeals);  they  ensure  that  the  applicant  always  benefits  from 
effective  legal  and  linguistic  assistance;  they  establish  a  reasonable  minimum  time 
limit for the preparation of the request; and, importantly, they define the scope of the 
scrutiny  by  the  court  of  tribunal  considering  the  request  for  suspensive  effect  to 
ensure  such  scrutiny  is  close  and  rigorous.  This  should  give  applicants  sufficient 
opportunities  to  establish  the  arguable  nature  of  their  claims  and  therefore  ensure 
compliance  with  fundamental  rights  obligations  as  informed  by  the  case-law  of  the 
European courts.  

3.4. 

Fight against abuse 

In  order  to  ensure  a  balance  between  the  objectives  of  protecting  genuine  asylum 
seekers  and  fighting  abusive  repeated  applications,  the  Commission  proposed  to 
allow  Member  States  to  remove  an  applicant  after  a  second  subsequent  application 
(i.e. third application), provided that the non-refoulement principle is respected. The 
Council's position upheld the objectives of the proposal but added an additional case 
where  the  applicant's  right  to  remain  on  the  territory  can  be  removed:  after  an 
inadmissible  first  subsequent  application  made  merely  in  order  to  frustrate  an 
imminent  return.  The  Council  argued  this  is  required  to  tackle  abusive  last-minute 
subsequent applications.  

The Commission can accept these provisions since the basic safeguards included in 
the  proposal,  namely  to  ensure  that  applicants  making  genuine  subsequent 
applications  are  not  removed  from  the  territory  without  a  careful  consideration  of 
their  claims,  are  maintained.  The  application  of  special  derogatory  rules  for 
subsequent  applications  remains  possible  only  after  a  final  decision  on  the  first 
application and, in addition, only after at least one  subsequent application which is 
either unfounded or contains no new elements compared to the previous one, which 
clearly  points  to  its  abusive  character.  Moreover,  the  Council's  position  clearly 
specifies that the exceptions from the right to remain must be applied in line with the 
principle of non-refoulement.  

The Council's position also amends the Commission proposal as regards the rules on 
implicit withdrawal or abandonment of the application. The proposal's objective was 
to harmonise the rules regarding those situations and in particular prevent the risk of 
an  application  never  been  examined  in  substance  before  being  rejected.  This 
objective  remains  in  the  Council's  position  since  it  specifies  that  an  application 

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cannot  be  rejected  without  an  adequate  examination  of  its  substance.  The 
Commission  regrets  the  inclusion  of  the  provision  that  an  applicant's  case  may  be 
reopened only once if the applicant reports back following  a discontinuation of the 
application.  However,  the  negative  impact  of  this  provision  is  largely  mitigated  by 
additional  safeguards  meaning  that  if  an  applicant  can  demonstrate  that  the 
application  was  considered  implicitly  withdrawn  due  to  circumstances  beyond 
his/her control, the application should not be considered as implicitly withdrawn at 
all.  

4. 

CONCLUSION 

The Council's position upholds the main objectives of the Commission's proposal. It 
makes a step change in the level of harmonisation of procedural guarantees in asylum 
procedures  by  introducing  clear,  detailed  and  compulsory  rules,  and  by  deleting 
derogations and stand-still clauses. It will lead to easily accessible, faster and fairer 
procedures,  based  on  the  cost-efficient  concept  of  'frontloading'.  It  harmonises  the 
use of accelerated and border procedures and ensures the right to an effective remedy 
by  introducing  detailed  EU-level  rules.  While  increasing  the  quality  and  speed  of 
asylum  procedures,  it  also  provides  new  tools  to  tackle  abusive  repetitive 
applications.  It  introduces  strong  provisions  on  special  procedural  needs,  including 
gender-specific  ones.  Finally, 
it  will  provide  for  adequate  protection  of 
unaccompanied  minors,  while  at  the  same  time  taking  into  account  concerns 
regarding potential abuse.  

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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