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 Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person
Date: 2013-06-10
Institutions: European Commission
Subjects: EU migration policy, diplomatic protection, foreign national, right of asylum, right to justice, stateless person, third country

EUROPEAN 
COMMISSION 

Brussels, 10.6.2013  
COM(2013) 416 final 

2008/0243 (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 Regulation of the European 
Parliament and of the Council establishing the criteria and mechanisms for determining 
the Member State responsible for examining an application for international protection 
lodged in one of the Member States by a third-country national or a stateless person 

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2008/0243 (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 Regulation of the European 
Parliament and of the Council establishing the criteria and mechanisms for determining 
the Member State responsible for examining an application for international protection 
lodged in one of the Member States by a third-country national or a stateless person 

1. 

Background 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2008) 820 final/2 - 2008/0243 (COD))  

6 December 2008 

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

June, October 2009, 
respectively 

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

6 May 2009 

Foreseen date of adoption of the position of the Council: 

7 June 2013 

(document COM(2008) 820 final/2 - 2008/0243 (COD)) 

2. 

Objective of the proposal from the Commission 

The  proposal  amends  the  2003  Dublin  Regulation  establishing  the  criteria  and  mechanisms 
for determining the Member State responsible for examining an asylum application lodged in 
one  of  the  Member  States  by  a  third-country  national,  and  aims  to  enhance  the  system's 
efficiency  and,  to  ensure  that  the  needs  of  applicants  for  international  protection  are 
comprehensively  addressed  under  the  responsibility  determination  procedure.  In  addition,  it 
aimed  at  addressing  situations  of  particular  pressure  on  Member  States'  reception  capacities 
and asylum systems, as well as situations where there is an inadequate level of protection for 
applicants for international protection.  

3. 

Comments on the position of the Council 

Following  the  Commission's  amended  proposal  in  December  2008,  a  common  position  was 
reached at political level by the co-legislators on the substantive parts of the draft regulation 
in July 2012. COREPER informally endorsed the common position on 18 July 2012 and the 
LIBE  committee  on  19  September  2012  via  an  orientation  vote.  As  regards  the  issue  of 
delegated and implemented acts in the Dublin Regulation, political agreement was reached on 
14  November,  endorsed  by  the  LIBE  committee  via  an  orientation  vote  on  27  November 
2012.  

COREPER endorsed the common position on the entire Dublin Regulation on 27 November.  

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On 30 November, the LIBE Chairman sent a letter to the Council PRES indicating that if the 
Council  is  to  transmit  formally  the  text  as  agreed,  during  a  forthcoming  session  of  the  EP's 
plenary, he will recommend to the Members of the LIBE committee and subsequently to the 
Plenary to adopt the common position without amendments. 

The main differences between the common position and the Commission 2008 proposal are as 
set out below. 

I. Enhancing the system's efficiency 

The  Commission  proposal  preserved  the  same  general  principle  that  responsibility  for 
examining an application for international protection lies with the Member State which played 
the  greatest  part  in  the  applicant's  entry  into  or  residence  on  the  territories  of  the  Member 
States,  subject  to  exceptions  designed  to  protect  family  unity.  In  particular  the  proposal 
introduced deadlines for submitting take-back requests and reduced the deadline for replying 
to requests for information. A deadline for replying to requests on humanitarian grounds was 
introduced and it was clarified that such requests can be made at any time. The cessation of 
responsibility  clauses  have  been  clarified  as  regards  in  particular  the  circumstances  under 
which the cessation clauses should apply. Rules on erroneous transfers and costs for transfers 
have been added. 

The common position limits the possibility to make a request on humanitarian grounds to the 
period previous to the first decision in substance. The Commission understands this change as 
preventing abuse in the form of a repeated application in case the first decision on substance 
is  negative.  The  deadlines  for  submitting  requests,  replying  to  requests  and  carrying  out 
transfers have been reduced in case of people detained under the specific ground of the Dublin 
procedure (see below under point c).)  

II. Enhancing the protection of applicants under the Dublin procedure 

Suspension of transfers/early warning system 

The  Commission  proposal  aimed  at  establishing  an  exceptional  procedure  for  suspending 
Dublin transfers towards a particular Member State, during a temporary period, in two distinct 
situations:  in  case  of  particular  pressure  and  to  ensure  that  all  applicants  for  international 
protection receive an adequate level of protection in all Member States. 

The common position does not endorse the introduction of such a mechanism in the Dublin 
Regulation for fears it could result in a pull factor for irregular migration, an encouragement 
for Member States not to respect their obligations under EU law. 

The common position replaced the provisions on suspension of transfers with the setup of an 
early warning, preparedness and crisis management system. This system focuses on detecting 
and  addressing  the  root  causes  of  problems  that  might  develop  into  asylum  crises.  It  also 
reinforces  language  on  solidarity  and  protection  of  fundamental  rights.  Moreover,  in 
conjunction with the new Art 3(2)bis, it ensures the same level of protection for the applicants 
as  intended  under  the  Commission  proposal  for  a  suspension  of  transfers  and  thus  the 
objectives of the Commission proposal are met. 

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Effective remedy against transfer decision 

No provisions exist in the current Dublin Regulation on effective remedy.  The Commission 
proposal brought three main innovations to the current system: 1. It established the right to an 
effective judicial remedy against a transfer decision, 2. It introduced the rule that authorities 
should examine ex-officio the necessity of suspending the enforcement of a transfer decision 
and that the person concerned has to remain on the territory until a decision on the necessity 
to suspend the transfer is taken, and 3. It provided that legal assistance and/or representation 
should be free if the person concerned cannot afford the entailed costs. 

As regards the suspensive effect, the common position foresees the following option-based 
system: 

(1) 

(2) 

(3) 

An  automatic  suspensive  effect  (where  an  appeal  is  lodged,  the  person  is  always 
granted the right to remain on the territory until the appeal is judged);  

An automatic suspensive effect for a limited period of time (the same as first, only 
that  a  court  or  tribunal  is  asked  to  pronounce  on  whether  the  applicant  needs  to 
remain on the territory pending the appeal, within a pre-determined period of time; 
that period should be sufficient to allow for a rigorous scrutiny of the request);  

Suspensive  effect  on  request  (whereby  the  suspension  of  the  transfer  is  not 
automatically applied to all applicants appealing a transfer decision, but only to those 
asking  for  it;  the  transfer  is  consequently  suspended  for  the  period  of  time  during 
which the court or tribunal is expected to pronounce on the matter). 

In addition, a new provision was introduced, foreseeing that an applicant cannot be transferred 
to  a  Member  State  where  there  is  a  risk  of  violation  of  fundamental  rights.  On  the  overall, 
Commission's objectives were preserved by ensuring that in each case a court or tribunal will 
examine  whether  or  not  the  person  may  be  transferred,  while  the  person  remains  on  the 
territory.  

As  regards  free  legal  assistance,  the  common  position  foresees  a  merits  test  made  by  an 
administrative authority, accompanied by additional safeguards for the applicants, essentially 
guaranteeing their right to appeal against the refusal for free legal assistance in front of a court 
or tribunal.  

The Commission considers that these safeguards are sufficient to ensure an adequate level of 
effective remedy for the applicant, even where free legal assistance is considered on request, 
as  the  applicant  may  always  appeal  a  court  or  tribunal  on  the  decision  not  to  grant  legal 
assistance free of charge. Moreover, the merits test is an important factor in helping Member 
States to avoid abuse by unfounded applications for assistance free of cost. 

Detention  

No  specific  provisions  currently  exist  on  the  detention  of  persons  found  under  a  Dublin 
procedure. The Commission proposal aimed at ensuring that detention of persons during the 
Dublin  procedure  is  not  arbitrary,  by  introducing  the  following  main  conditions  and 
guarantees:  a  person  cannot  be  held  in  detention  for  the  sole  reason  to  be  an  applicant  for 
international  protection;  a  person  subject  to  a  transfer  decision  can  also  be  detained  when 
there is a significant risk of absconding (defined in the text); detention cannot last longer than 
what  is  reasonably  necessary  to  fulfil  the  administrative  procedures  for  carrying  out  the 
transfer;  the  guarantees  and  detention  conditions  as  foreseen  in  the  Reception  Conditions 
Directive were repeated in the Dublin Regulation. 

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During negotiations the approach was taken that, for reasons of legal coherence, it is better to 
have all the necessary provisions regarding the guarantees applicable to persons in detention 
and detention conditions together in only one asylum instrument – the Reception Conditions 
Directive. Only the Dublin specific ground and conditions need to be defined in the Dublin 
Regulation itself. 

The common position reflects this point and foresees: 

– 

– 

– 

reference  to  the  Reception  Conditions  Directive,  whose  guarantees  and  detention 
conditions  apply  to  persons  detained  during  the  Dublin  procedure,  along  with  the 
clarification  that  a  person  under  Dublin  procedure  can  only  be  detained  for  the 
Dublin-related ground; 

introduction of the principle that a person cannot be detained only for the reason that 
is subject to the Dublin procedure (thus extending the scope of protection to former 
applicants  for  international  protection,  previously  under  the  scope  of  Return 
Directive, who can now benefit from greater protection); 

introduction of clear time limits for each leg of the Dublin procedure, ensuring that a 
person  cannot  be  detained  in  total  for  longer  than  3  months  (otherwise  the  entire 
Dublin  procedure  can  last  up  to  11  months),  or  else  the  person  is  released.  The 
detention  time  takes  into  account  the  different  timelines  under  suspensive  effect, 
which can now be shorter than the duration of the appeal, thus ensuring that a person 
is not abusively kept in detention for longer than the suspensive effect. 

The common position meets the objectives of the Commission proposal and even goes beyond 
it, by foreseeing a maximum detention period of three months. 

Vulnerable persons - minors and dependants  

The Commission proposal brought various amendments to the current Dublin Regulation in 
order to increase the level of protection for minors, in particular for unaccompanied minors. 
In particular as regards the definition of family members, the Commission proposal extended 
it in three regards: 1. It removed the condition for the minor to be dependent in order to be 
recognised  as  family  member  of  an  applicant;  2.  It  foresaw  the  possibility  for  the  married 
minor  children  to  be  "family  members"  where  it  is  in  their  best  interests  to  reside  with  the 
applicant, and 3. It included the minor unmarried siblings of the applicant, when the latter is a 
minor and unmarried. 

Concerning dependants, the former provisions of the humanitarian clauses were introduced in 
the  hierarchy  of  criteria,  at  the  beginning  of  these  criteria,  together  with  the  family-related 
ones. 

The  common  position  includes  a  new  Recital  making  it  clear  that  the  rights  and  guarantees 
applicable to applicants under the Asylum Procedures Directive also cover the persons under 
a Dublin procedure, subject to limitations of scope applicable to United Kingdom and Ireland. 
It limits the scope of family to the nuclear family, as agreed in the Qualification Directive, but 
introduces references to members of the extended family in the relevant articles. It accepts to 
include married minors in the definition of unaccompanied minors. It introduces a definition 
of the  term "relative",  referring to  the uncle, aunt  or grandparent of a minor. It foresees the 
obligation  for  Member  States  to  be  proactive  and  start  looking  for  the  family  of  an 

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unaccompanied  minor.  It  allows  the  reunification  of  a  married  unaccompanied  minor  with 
family and siblings, when he/she is not accompanied by the spouse. 

As regards the criterion relative to  dependants, it is moved outside the hierarchy of criteria, 
under the norm "shall normally". 

As  regards  the  situation  of  an  unaccompanied  minor  with  no  family  or  relatives  on  EU 
territory, the  common  position foresees that the  Member State responsible is that  where the 
minor has lodged an application for international protection. A Declaration is attached to the 
draft Regulation, providing that the Commission will put forward a new proposal on this issue 
as soon as the Court of Justice of the European Union will have delivered its judgment in the 
preliminary case C-648/11, reflecting the outcome of this judgment: 

The  European  Parliament  and  the  Council  invite the Commission to consider, 
without prejudice to its right of initiative, a revision of Article 8(4) of the Recast of 
the  Dublin  Regulation  once  the  Court  of  Justice  rules  on  case  C-648/11  MA  and 
Others vs. Secretary of State for the Home Department and at the latest by the time 
limits set in Article 41 of the Dublin Regulation. The European Parliament and the 
Council will then both exercise their legislative competences, taking into account the 
best interests of the child. The Commission, in a spirit of compromise and in order to 
ensure  the  immediate  adoption  of  the  proposal,  accepts  to  consider  this  invitation, 
which  it  understands  as  being  limited  to  these  specific  circumstances  and  not 
creating a precedent. 

The Commission considers that the common position ensures the level of protection foreseen 
by  the  Commission  proposal  and  even  brings  welcome  standards  in  certain  respects  (e.g. 
ensures  un-conditional  reunification  of  siblings  of  any  age  or  legal  status  without  any 
additional conditionality). The fact that the notion of relatives of an unaccompanied minor is 
now defined makes it easier to monitor its implementation in practice. 

As  regards  dependants,  the  common  position  could  be  accepted  since,  although  now  this 
criterion  is  left  outside  the  hierarchy,  it  appears  under  a  compulsory  provision,  subject  to 
derogation  only  in  exceptional  situations.  The  current  wording  entails  that,  except  for  more 
favourable provisions, dependants must be kept/put together with family.  

Right to information and personal interview 

The  Commission  proposal  expanded  and  modified  current  provisions  on  information,  to 
specify the information to be provided to the  applicant in  writing, in a language that he/she 
understands  or  is  reasonably  supposed  to  understand,  and  to  foresee  the  opportunity  for  a 
personal  interview  in  order  to  inform  the  applicant  on  this  procedure  and  to  gather 
information necessary to determine the Member State responsible.  

The common position makes the personal interview compulsory subject to limited exceptions, 
and  inserts  the  obligation  to  inform  the  applicant  not  only  on  the  criteria,  but  also  on  its 
hierarchy, including the fact that the application may end up in being examined by a Member 
State  that  is  not  the  one  responsible  under  the  hierarchy  of  criteria  (sovereignty  clause),  as 
well as on the fact that the person may ask for the suspension of the transfer. 

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The Commission considers that the common position ensures a good level of information of 
the applicant, both in writing as well as through the compulsory interview, and thus largely 
meets the Commission's objectives. 

III. Delegated and implementing acts 

The  Commission  proposal  was  tabled  before  the  Lisbon  Treaty  and  thus  did  not  foresee 
empowerments  for  the  Commission  to  adopt  delegated  or  implementing  acts.  Nevertheless, 
the  proposal  foresaw  references  to  the  procedure  established  under  Article  5  of  Decision 
1999/468/EC (regulatory procedure) as regards the adoption of a common leaflet, provisions 
on minors and dependants, the standard form for sending requests for taking charge or taking 
back,  the  lists  of  proof  and  evidence,  the  laissez-passer,  for  the  set-up  of  the  electronic 
communication  network,  as  well  as  under  Article  5(a)  of  the  same  Decision  (regulatory 
procedure  with  scrutiny)  as  regards  supplementary  rules  for  reunification  of  minors  and 
dependents with the family and relatives, on carrying out transfers and on meeting the costs of 
transfers. 

As  compared  to  the  Commission  proposal,  the  common  position  retains  the  possibility  to 
adopt  implementing  acts  for  all  the  issues  for  which  the  Commission  has  proposed 
implementing procedures, to which it added the power to adopt a common health certificate 
and a standard form for exchanging information on family members and relatives of minors.  

including  all  relevant  national  authorities.  The  possibility 

Furthermore,  the  common  position  foresees  an  empowerment  for  the  Commission  to  adopt 
delegated acts containing supplementary rules on the reunification of minors and dependents 
with family and relatives; a recital stresses that the Commission should carry out consultations 
with  experts, 
to  adopt 
supplementary rules  on the  costs  of  transfers was not retained as the  Council considers that 
the  rules  of  the  basic  act  are  sufficient  in  this  respect.  As  regards  transfers,  the  common 
position  foresees  only  the  possibility  to  adopt  uniform  rules  of  implementation,  but  not 
supplementary  rules.  The  period  granted  to  the  Parliament  and  to  the  Council  to  possibly 
object to a delegated act adopted by the Commission has been set at four months, extendable 
at the European Parliament's or Council's initiative by another two. 

As regards the power to adopt implementing acts, the common position foresees a limitation 
to  its  powers,  providing  that  the  Commission  cannot  adopt  an  act  where  the  assisting 
Committee delivers no opinion on the draft proposal. The Commission made a Declaration in 
this respect, to be annexed to the final text: 

The  Commission  underlines  that  it  is  contrary  to  the  letter  and  to  the  spirit  of 
Regulation  182/2011  (OJ  L  55  of  28.2.2011,  p.  13)  to  invoke  Article  5  §  4, 
subparagraph  2,  point  b)  in  a  systematic  manner.  Recourse  to  this  provision  must 
respond  to  a  specific  need  to  depart  from  the  rule  of  principle  which  is  that  the 
Commission may adopt a draft implementing act when no opinion is delivered. Given 
that  it  is  an  exception  to  the  general  rule  established  by  Article  5  §  4  recourse  to 
subparagraph  2,  point  b)  cannot  be  simply  seen  as  a  "discretionary  power"  of  the 
Legislator, but must be interpreted in a restrictive manner and thus must be justified. 

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Finally,  a  Commission  Declaration  clarifies  that,  when  proposing  implementing  acts  in  this 
respect,  the  Commission  will  uphold  the  standards  on  transfers  as  set  out  in  the  Regulation 
1560/2003: 

In  the  application  of  the  present  Regulation,  the  Commission  reiterates  that,  when 
proposing  uniform  conditions  for  implementing  the  provisions  on  transfers  as 
foreseen  under  the  present  Regulation,  it  will  ensure  that  current  standards  on 
transfers,  as  laid  down  in  Articles  7-10  of  Commission  Regulation  1560/2003  of  2 
September 2003 laying down detailed rules for the application of Council Regulation 
(EC) No 343/2003, will be upheld.  

4. 

Conclusion 

The common position satisfies the main objective of the Commission proposal. In particular it 
adds value to the current standards of treatment of applicants found under a Dublin procedure. 
It  guarantees  their  right  to  information  and  access  to  effective  remedy  against  transfer 
decisions and it introduces clear rules on detention and access to free legal assistance, issues 
which the current instrument does not address. It provides a more predictable environment for 
the relations between Member States and more favourable conditions for reuniting vulnerable 
persons, in particular unaccompanied minors, with their family or relatives. 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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