Proposal for a COUNCIL DECISION establishing provisional measures in the area of international protection for the benefit of Sweden in accordance with Article 9 of Council Decision (EU) 2015/1523 and Article 9 of Council Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece
Date: 2015-12-15
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, Sweden, aid to refugees, external border of the EU, foreign national, migratory movement, refugee, right of asylum, third country, transfer of population

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   EUROPEAN COMMISSION  Strasbourg, 15.12.2015  COM(2015) 677 final 2015/0314 (NLE)   Proposal for a COUNCIL DECISION establishing provisional measures in the area of international protection for the benefit of Sweden in accordance with Article 9 of Council Decision (EU) 2015/1523 and Article 9  of Council Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. Article 78(3) of the Treaty and the current temporary relocation schemes   

As part of the common policy on asylum, Article 78(3) of the Treaty on the Functioning of 
the EU (TFEU) provides a specific legal basis to deal with emergency situations. Based on a 
proposal by the European Commission, it enables the Council, after consulting the European 
Parliament, to adopt provisional measures for the benefit of Member State(s) confronted with 
an emergency situation characterised by a sudden inflow of nationals of third countries into 
one or more Member State(s). The provisional measures envisaged by Article 78(3) TFEU are 
exceptional  in  nature.  They  can  only  be  triggered  when  a  certain  threshold  of  urgency  and 
severity of the problems created in the Member State(s)' asylum system(s) by a sudden inflow 
of third country nationals is met.  

On  the  basis  of  Article  78(3)  TFEU,  the  Council  adopted  two  Decisions  establishing 
provisional measures in the area of international protection for the benefit of Italy and Greece. 
Under Council Decision (EU) 2015/15231, 40 000 applicants for international protection are 
to  be  relocated  from  Italy  and  Greece  to  the  other  Member  States.  Under  Council  decision 
(EU)  2015/16012,  120  000  applicants  for  international  protection  are  to  be  relocated  from 
Italy  and  Greece  and  from  other  Member  States  if  they  are  confronted  to  an  emergency 
situation. 

Under the Council Decision (EU) 2015/1523, 1 369 persons and under the Council Decision 
(EU) 2015/1601, 4 358 persons are allocated to Sweden for relocation from Italy and Greece.  

A  Member  State  may,  according  to  Article  4(3)(2)  of  the  Decision  2015/1601,  notify  the 
Commission and the Council that it is confronted with an emergency situation characterised 
by  a  sudden  inflow  of  nationals  of  third  countries  due  to  a  sharp  shift  of  migration  flows, 
giving duly justified reasons. The Commission shall assess the reasons given and submit, as 
appropriate, proposals to the Council.  

Pursuant  to  Article  9  of  Council  Decision  (EU)  2015/1523  and  Article  9  of  the  Council 
Decision (EU) 2015/1601, in the event of an emergency situation characterised by a sudden 
inflow of nationals of third countries in a Member State, the Council, on a proposal from the 
Commission  and after consulting the European Parliament,  may  adopt  provisional measures 
for  the  benefit  of  the  Member  State  concerned,  pursuant  to  Article  78(3)  TFEU.  Such 
measures  may  include,  where  appropriate,  a  suspension  of  the  participation  of  that  Member 
State in  the relocation as  provided for  in  those Decisions, as well as  possible compensatory 
measures for Italy and for Greece. 

By  letter  of  5  November  2015,  Sweden  notified  the  Commission  and  the  Council  that  it  is 
confronted  with  a  situation  as  referred  to  in  Article  4(3)  in  the  Council  Decision  (EU) 
2015/1601  of  22  September  2015  establishing  provisional  measures  in  the  area  of 
international protection for the benefit of Italy and Greece, giving duly justified reasons and 
requesting an adaptation of the relocation mechanism for the benefit of Sweden. By letter of 8 

1  Council  Decision  (EU)  2015/  1523 of  14  September  2015  establishing provisional  measures  in  the  area  of 

international protection for the benefit of Italy and of Greece, OJ L 239, 15.9.2015, p. 146. 

2  Council  Decision  (EU)  2015/1601  of  22  September  2015  establishing  provisional  measures  in  the  area  of 

international protection for the benefit of Italy and Greece, OJ L 248, 24.9.2015, p. 80. 

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December 2015, Sweden formally requested the suspension of its obligations under Council 
Decisions (EU) 2015/1523 and (EU) 2015/1601. 

1.2. Triggering the application of Article 9 of the Council Decisions (EU) 2015/1523 and 

(EU) 2015/1601 in respect of Sweden 

Sweden faces an emergency situation characterised by a sudden inflow of nationals of third 
countries in its territory.  

The  considerable  increase  of  irregular  border  crossing  into  the  EU  and  of  secondary 
movements across Europe has led to a sharp increase in Sweden of the number of applicants 
for international protection.  

Eurostat  figures  confirm  a  sharp  increase  of  asylum  applicants  in  Sweden.  The  number  of 
applicants for international protection increased by more than 60% from 68 245 applicants for 
the  period  from  1  January  to  31  October  2014  to  112.040  applicants  for  the  period  from  1 
January to 31 October 2015). 

In  addition,  the  monthly  number  of  applicants  for  international  protection  has  reached  even 
higher  level  recently:  the  number  of  applicants  doubled  between  August  (11  735)  and 
September (24 261) and reached 39 055 in October 2015 (61% increase from September).  

Sweden has in 2015 by far the highest number of applicants for international protection per 
capita in the EU (11.503 applicants per million inhabitants). 

Sweden  is  also  facing  a  difficult  situation  because  of  the  significant  recent  increase  in  the 
number  of  unaccompanied  minors,  with  one  out  of  four  applicants  claiming  to  be  an 
unaccompanied minor.  

The  above  situation  has  put  a  very  significant  strain  on  the  Swedish  asylum  system,  with 
serious practical consequences on the ground as regards the reception conditions and ability of 
the asylum system to deal with the applications.  

Therefore, the current migratory situation in Sweden is unique in the EU and the strain on its 
capacity to process applications for international protection and to provide adequate reception 
conditions to persons in clear need of international protection requires temporary suspension 
of the obligations of Sweden under the relocation mechanism and providing it, as appropriate, 
with operational support.  

2. LEGAL ELEMENTS OF THE PROPOSAL  

2.1. Summary of the proposed action 

In view of assisting Sweden in better coping with an emergency situation characterised by a 
sudden inflow of nationals of third countries in its territory the proposed Decision suspends 
the  obligations  of  Sweden  as  a  Member  State  of  relocation  under  Council  Decisions  (EU) 
2015/1523 and Council Decision (EU) 2015/1601 for the period of one year.  

It  also  provides  for  operational  support  to  be  granted  to  Sweden,  as  appropriate,  through 
relevant activities coordinated by EASO and, if required, by other relevant Agencies. 

Sweden  is  still  bound  to  relocate  to  its  territory  1  369  persons  under  the  Council  Decision 
(EU)  2015/1523  and  4  358  persons  under  the  Council  Decision  (EU)  2015/1601  from  Italy 

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and  Greece  once  the  present  Decision  has  expired.  It  should  provide  the  Council  and  the 
Commission  with  a  roadmap  setting  out  concrete  steps  that  it  will  take  in  order  to  ensure 
effectiveness of its asylum and migration systems and resume relocation once the suspension 
ceases to have effect.  

The  present  Decision  does  not  affect  the  situation  of  the  third  countries  nationals  that  have 
already  been  relocated  to  Sweden  under  Council  Decision  (EU)  2015/1523  and  Council 
Decision (EU) 2015/1601.  

2.2. Legal basis  

The  legal  basis  for  the  proposed  Council  Decision  is  Article  78(3)  of  the  Treaty  on  the 
Functioning of the European Union.  

2.3. Subsidiarity  

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on 
these  matters  to  the  European  Union.  These  powers  must  be  exercised  in  accordance  with 
Article  5  of  the  Treaty  on  the  European  Union,  i.e.  if  and  in  so  far  as  the  objectives  of  the 
proposed action cannot be sufficiently achieved by the Member States and can, therefore, by 
reason  of  the  scale  or  effects  of  the  proposed  action,  be  better  achieved  by  the  European 
Union. 

In this field the European Union exercised these powers by enacting Council Decision (EU) 
2015/1523 and Council Decision (EU) 2015/1601. The current action consists in suspending 
obligations  of  a  Member  State  under  those  Decisions  due  to  emergency  circumstances,  and 
additional operational support coordinated by EU Agencies, and can therefore only be taken 
by the European Union.  

2.4. Proportionality  

Given the urgency and the severity of the situation created by the influx described above, the 
suspension  of  currently  ongoing  EU  action  in  respect  of  Sweden  and  additional  operational 
support  do  not  go  beyond  what  is  necessary  to  achieve  the  objective  of  addressing  the 
situation effectively. The suspension relates only to Sweden, is temporary and does not affect 
the  rights  of  applicants  for  international  protection  who  have  already  been  relocated  to 
Sweden. 

2.5. Impact on fundamental rights  

The  fundamental  rights  as  provided  for  in  the  EU  Charter  of  Fundamental  Rights  ("the 
Charter")  of  the  applicants  for  international  protection  who  are  within  the  scope  of  Council 
Decisions  (EU)  2015/1523  and  (EU)  2015/1601  are  not  affected.  The  suspension  of 
obligations of Sweden as a Member State of relocation relates only to Sweden, is temporary 
and does not affect applicants already relocated to Sweden. 

3. 

BUDGETARY IMPLICATIONS 

This proposal does not entail additional costs for the EU budget. 

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2015/0314 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing provisional measures in the area of international protection for the benefit 
of Sweden in accordance with Article 9 of Council Decision (EU) 2015/1523 and Article 9  
of Council Decision (EU) 2015/1601 establishing provisional measures in the area of 
international protection for the benefit of Italy and Greece 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 78(3) thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the opinion of the European Parliament3, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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According  to  Article  78(3)  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU),  in  the  event  of  one  or  more  Member  States  being  confronted  by  an 
emergency situation characterised by a sudden inflow of nationals of third countries, 
the  Council,  on  a  proposal  from  the  Commission  and  after  consulting  the  European 
Parliament,  may  adopt  provisional  measures  for  the  benefit  of  the  Member  State(s) 
concerned. 

According to Article 80 TFEU, the policies of the Union in the area of border checks, 
asylum and immigration and their implementation are to be governed by the principle 
of solidarity and fair sharing of responsibility between the Member States, and Union 
acts  adopted  in  this  area  are  to  contain  appropriate  measures  to  give  effect  to  this 
principle. 

On the basis of Article 78(3) TFEU, the Council adopted two Decisions establishing 
provisional measures in the area of international protection for the benefit of Italy and 
Greece. Under Council Decision (EU) 2015/15234, 40 000 applicants for international 
protection are to be relocated from Italy and Greece to the other Member States. Under 
Council Decision (EU) 2015/16015, 120 000 applicants for international protection are 
to be relocated from Italy and Greece to other Member States. 

Article 9 of Council Decision (EU) 2015/1523 and Article 9 of Council Decision (EU) 
2015/1601  provide  that  in  the  event  of  an  emergency  situation  characterised  by  a 
sudden  inflow  of  nationals  of  third  countries  in  a  Member  State,  the  Council,  on  a 

OJ C , , p. . 
Council Decision (EU) 2015/ 1523 of 14 September 2015 establishing provisional measures in the area 
of international protection for the benefit of Italy and of Greece, OJ L 239, 15.9.2015, p. 146. 

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Council  Decision  (EU)  2015/1601  of  22  September  2015  establishing  provisional 
measures in the area of international protection for the benefit of Italy and Greece, OJ L 248, 
24.9.2015, p. 80. 

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proposal  from  the  Commission  and  after  consulting  the  European  Parliament,  may 
adopt provisional measures for the benefit of the Member State concerned, pursuant to 
Article 78(3) TFEU. Such measures may include, where appropriate, a suspension of 
the  participation  of  that  Member  State  in  the  relocation  as  provided  for  in  those 
Decisions, as well as possible compensatory measures for Italy and for Greece. 

Sweden faces an emergency situation characterised by a sudden inflow of nationals of 
third countries in its territory due to a sharp shift of migratory flows. On 8 December 
Sweden formally requested the suspension of its obligations under Council Decisions 
(EU) 2015/1523 and (EU) 2015/1601. 

The  considerable  increase  of  irregular  border  crossing  into  the  EU  and  of  secondary 
movements  across  Europe  has  led  to  a  sharp  increase  in  Sweden  of  the  number  of 
applicants  for  international  protection,  who  mainly  entered  the  EU  via  Italy  and 
Greece.  

Eurostat figures confirm a sharp increase of asylum applicants present in Sweden. The 
number of applicants for international protection increased by more than 60% from 68 
245 applicants for the period from 1 January to 31 October 2014 to 112.040 applicants 
for the period from 1 January to 31 October 2015. 

In addition, the monthly numbers of applicants for international protection has reached 
an even higher level recently: it has doubled between August (11 735) and September 
(24 261) and reached 39 055 in October 2015 (61% increase from September).  

Sweden  has  in  2015  by  far  the  highest  number  of  applicants  for  international 
protection per capita in the EU (11 503 applicants per million inhabitants). 

(5) 

(6) 

(7) 

(8) 

(9) 

(10)  Sweden is also facing a difficult situation because of the significant recent increase in 
the number of unaccompanied minors, with one out of four applicants claiming to be 
an unaccompanied minor.  

(11)  The  above  situation  has  put  a  very  significant  strain  on  the  Swedish  asylum  system, 
with serious practical consequences on the ground as regards the reception conditions 
and  ability  of  the  asylum  system  to  deal  with  these  applications.  In  order  to  help 
alleviate  the  significant  pressure  that  Sweden  is  confronted  with,  the  obligations  of 
Sweden as a Member State of relocation under Council Decisions (EU) 2015/1523 and 
2015/1601 should be suspended for the period of one year.  

(12)  The  suspension  should  be  complemented,  as  appropriate,  by  additional  support 
measures coordinated by EASO and, where needed, other relevant Agencies.  

(13)  Sweden should submit to the Council and the Commission a roadmap setting out the 
measures  that  it  will  take  in  order  to  ensure  the  effectiveness  of  its  asylum  and 
migration system and to resume its obligations under Decisions (EU) 2015/1523 and 
(EU) 2015/1601.  

(14)  Since the objectives  of this Decision cannot be sufficiently achieved by the Member 
States  but  can  rather,  by  reason  of  the  scale  and  effects  of  the  action,  be  better 
achieved  at  Union  level,  the  Union  may  adopt  measures,  in  accordance  with  the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union 
(TEU). In accordance with the principle of proportionality, as set out in that Article, 
this  Decision  does  not  go  beyond  what  is  necessary  in  order  to  achieve  those 
objectives.  

(15)  This Decision respects the fundamental rights and observes the principles recognised 

by the Charter of Fundamental Rights of the European Union.  

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(16) 

(17) 

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United 
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed 
to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, the 
United Kingdom is not taking part in the adoption of this Decision and is not bound by 
it or subject to its application. 

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United 
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed 
to  the  TEU  and  to  the  TFEU,  and  without  prejudice  to  Article  4  of  that  Protocol, 
Ireland  is  not  taking  part  in  the  adoption  of  this  Decision  and  is  not  bound  by  it  or 
subject to its application. 

(18) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of 
this Decision and is not bound by it or subject to its application.  

(19) 

In  view  of  the  urgency  of  the  situation,  this  Decision  should  enter  into  force  on  the 
date following that of its publication in the Official Journal of the European Union, 

HAS ADOPTED THIS DECISION:  

Article 1 
Subject matter  

This Decision establishes provisional measures in the area of international protection for the 
benefit  of  Sweden,  in  view  of  supporting  it  in  better  coping  with  an  emergency  situation 
characterised by a sudden inflow of nationals of third countries. 

Article 2 
Suspension of obligations under Council Decisions (EU) 2015/1523 and (EU) 2015/1601 

Obligations  of  Sweden  as  a  Member  State  of  relocation  under  Council  Decision  (EU) 
2015/1523 and Council Decision (EU) 2015/1601 shall be suspended until … [one year from 
the date of the adoption of the present Council Decision]  

Article 3 
Operational support to Sweden 

In  order  to  support  Sweden  to  better  cope  with  the  exceptional  pressure  on  its  asylum  and 
migration  systems,  specific  support  shall  be  provided,  as  appropriate,  to  Sweden  through 
relevant activities coordinated by EASO and, if required, by other relevant Agencies. 

Article 4 
Complementary measures to be taken by Sweden 

By [one month from entry into force of this decision] Sweden shall notify to the Council and 
the Commission a roadmap setting out the steps that it will take to ensure the effectiveness of 
its asylum and migration system and to resume its obligations under Council Decisions (EU) 
2015/1523 and (EU) 2015/1601. 

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Article 5 
Entry into force 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Done at Strasbourg, 

For the Council 
The President 

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