Proposal for a COUNCIL IMPLEMENTING DECISION on the temporary suspension of the relocation of 30% of applicants allocated to Austria under Council Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece
Date: 2016-02-10
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Austria, EU migration policy, Greece, Italy, aid to refugees, foreign national, illegal migration, refugee, right of asylum, transfer of population

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   EUROPEAN COMMISSION  Brussels, 10.2.2016  COM(2016) 80 final 2016/0045 (NLE)   Proposal for a COUNCIL IMPLEMENTING DECISION on the temporary suspension of the relocation of 30% of applicants allocated to Austria under 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)  2015/1601,  3 551  persons  are  allocated  to  Austria  for 
relocation from Italy and Greece.  

According  to  Article  4(5)  of  the  Decision  2015/1601,  a  Member  State  may,  in  exceptional 
circumstances,  by  26  December  2015,  notify  the  Council  and  the  Commission  that  it  is 
temporarily unable to take part in the relocation process of up to 30 % of applicants allocated 
to  it  in  accordance  with  paragraph  1,  giving  duly  justified  reasons  compatible  with  the 
fundamental values of the Union enshrined in Article 2 of the Treaty on European Union. The 
Commission should assess the reasons given and submit proposals to the Council regarding a 
temporary suspension of the relocation of up to 30 % of applicants allocated to the Member 
State  concerned  in  accordance  with  paragraph  1.  Where  justified,  the  Commission  may 
propose to extend the time limit for relocating the applicants in the remaining allocation by up 
to 12 months beyond the date referred to in Article 13(2). 

By  letter  of  16  December  2015,  Austria  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 reasons and requesting an 
adaptation of the relocation mechanism for the benefit of Austria. By letter  of 22 December 
2015, Austria requested, pursuant to Article 4(5) in the Council Decision (EU) 2015/1601, to 
benefit from a temporary suspension of the relocation of up to 30 % of applicants allocated to 
Austria under Council Decision (EU) 2015/1601 and from an extension of the time limit for 

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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relocating the applicants in the remaining allocation by 12 months beyond the date referred to 
in Article 13(2) of Council Decision (EU) 2015/1601. 

1.2.  Triggering  the  application  of  Article  4(5)  of  the  Council  Decision  2015/1601  in 

respect of Austria 

Austria  faces  exceptional  circumstances  with  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 Austria of the number of applicants 
for international protection.  

Eurostat  figures  confirm  a  sharp  increase  of  asylum  applicants  in  Austria.  The  number  of 
applicants  for  international protection increased by more than 230%  from 23 835  applicants 
for the period from 1 January to 30 November 2014 to 80 880 applicants for the period from 1 
January  to  30  November  2015),  with  monthly  number  of  applicants  for  international 
protection  reaching  level  at  more  than  10 000  applicants  per  month  since  September. 
Available  data  from  EASO  for  December  2015  and  January  2016  shows  a  decrease  of  the 
number  of  applicants  for  international  protection,  like  in  several  other  Member  States,  with 
respectively 8 392 and 5 887 applicants. The figures for these two months are however higher 
than the corresponding monthly figures for the previous year. 

Austria has in 2015 the second highest number of applicants for international protection per 
capita in the EU after Sweden (9 421 applicants per million inhabitants based on Eurostat data 
available). 

The above situation has put a significant strain on the Austrian 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 Austria 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  a  temporary  suspension  of  the 
relocation  of  up  to  30 %  of  applicants  allocated  to  Austria  under  Council  Decision  (EU) 
2015/1601.  30 %  of  the  allocation  of  Austria  under  Council  Decision  (EU)  2015/1601 
represent 1 065 persons.  

In  order  to  help  alleviate  the  significant  pressure  that  Austria  is  confronted  with,  the 
temporary suspension for a period of one year of relocation of 30% of applicants allocated to 
Austria as a Member State of relocation under Council Decision (EU) 2015/1601 should be 
granted.  

Austria  is  still  bound  to  relocate  swiftly  and  regularly  the  remaining  allocation  (2 486 
applicants)  by  26  September  2017,  date  until  which  the  Council  Decision  (EU)  2015/1601 
applies.  

The suspension of relocation of 30% of applicants for 12 months constitutes a sufficient and 
proportionate measure in reaction to the situation in  Austria. An extension  of the time limit 
for  relocating  the  applicants  in  the  remaining  allocation  beyond  the  date  referred  to  in 
Article 13(2)  of  Council  Decision  (EU)  2015/1601  would  not  be  justified.  It  is  essential 

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relocation from Italy and Greece takes place swiftly and regularly until 26 September 2017, in 
order to effectively relieve Italy and Greece of the ongoing emergency situation. 

2. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

2.1. Summary of the proposed action 

In view of assisting Austria in better coping with an emergency situation characterised by a 
sudden  inflow  of  nationals  of  third  countries  in  its  territory  the  proposed  Council 
Implementing Decision provides for a temporary suspension of the relocation of up to 30 % of 
applicants  allocated  to  Austria  under  Council  Decision  (EU)  2015/1601  for  a  period  of  one 
year.  

Austria  is  still  bound  to  relocate  to  its  territory  3  551  persons  under  the  Council  Decision 
(EU)  2015/1601  from  Italy  and  Greece  by  the  deadline  set  by  Article  13(2)  of  Council 
Decision (EU) 2015/1601. 

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

2.2. Legal basis and choice of instrument 

The legal basis for the proposed Council Implementing Decision is Article 4(5) of the Council 
Decision (EU) 2015/1601.  

In accordance with Article 4(7) of Council Decision (EU) 2015/1601, the instrument proposed 
in a Council Implementing Decision. 

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) 
2015/1601.  The  current  action  consists  in  suspending  some  obligations  of  a  Member  State 
under that Decision due to exceptional circumstances 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 
partial  suspension of currently  ongoing  EU action in  respect of Austria does  not  go beyond 
what  is  necessary  to  achieve  the  objective  of  addressing  the  situation  effectively.  The 
suspension relates only to Austria and is partial and temporary and does not affect the rights 
of  applicants  for  international  protection  who  might  be  relocated  to  Austria  before  the 
adoption of this proposal. 

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 

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Decision (EU) 2015/1601 are not affected. The partial suspension of obligations as a Member 
State  of  relocation  relates  only  to  Austria,  is  temporary  and  does  not  affect  applicants  who 
might have been relocated to Austria before the adoption of this proposal. 

3. 

BUDGETARY IMPLICATIONS 

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

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2016/0045 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

on the temporary suspension of the relocation of 30% of applicants allocated to Austria 
under 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,  

Having  regard  to  Council  Decision  (EU)  2015/1601  of  22  September  2015  establishing 
provisional  measures  in  the  area  of  international  protection  for  the  benefit  of  Italy  and 
Greece3, and in particular Article 4(5) and 4(7) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

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) 2015/1601, 120 000 applicants for international protection are 
to be relocated from Italy and Greece to other Member States. 

The  Council  Decision  (EU)  2015/1601  was  based  on  Article  78(3)  TFEU,  due  to  an 
emergency  situation  characterised  by  a  sudden  inflow  of  nationals  of  third  countries 
into  Italy  and  Greece  and  because  of  an  urgent  necessity  to  provide  these  Member 
States with swift relief, in accordance with the principle of solidarity and fair sharing 
of  responsibility  between  Member  States.  It  follows  that  each  Member  State  of 
relocation should  ensure that  relocation takes  place regularly, without delay and at a 
sufficient level. 

According to Article 4(5) of Council Decision (EU) 2015/1601 a Member State may, 
in  exceptional  circumstances,  by  26  December  2015,  notify  the  Council  and  the 
Commission that it is temporarily unable to take part in the relocation process of up to 
30 % of applicants allocated to it in accordance with paragraph 1, giving duly justified 
reasons compatible with the fundamental values of the Union enshrined in Article 2 of 
the  Treaty  on  European  Union  (TEU).  The  Commission  should  assess  the  reasons 
given  and  submit  proposals  to  the  Council  regarding  a  temporary  suspension  of  the 
relocation  of  up  to  30 %  of  applicants  allocated  to  the  Member  State  concerned  in 
accordance  with  Article 4(1)  of  Council  Decision  (EU)  2015/1601.  Where  justified, 
the Commission may propose to extend the time limit for relocating the applicants in 

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OJ L 248, 24.9.2015, p. 80. 
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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(4) 

(5)  

(6)  

the  remaining  allocation  by  up  to  12  months  beyond  the  date  referred  to  in 
Article 13(2) of Council Decision (EU) 2015/1601. 

Austria faces exceptional circumstances with 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  Austria  of  the  number  of 
applicants for international protection.  

Eurostat figures confirm a sharp increase of asylum applicants in Austria. The number 
of applicants for international  protection  increased by  more than 230 % from 23 835 
applicants for the period from 1 January to 30 November 2014 to 80 880 applicants for 
the period from 1 January to 30 November 2015), with monthly number of applicants 
for  international  protection  reaching  level  at  more  than  10 000  applicants  per  month 
since  September.  Despite  a  decrease  in  the  number  of  applicants  in  December  2015 
and January 2016 compared to the previous months, based on EASO data, the figures 
remain at a high level. 

(7)   Austria  had  in  2015  the  second  highest  number  of  applicants  for  international 
protection per capita in the EU after Sweden (9 421 applicants per million inhabitants 
according to available Eurostat data). 

(8)  

(9)  

The  above  situation  has put  a  significant  strain  on  the  Austrian  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  Austria 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  justifies  a  temporary 
suspension of the relocation of 30 % of applicants allocated to Austria under Council 
Decision (EU) 2015/1601, which corresponds to 1 065 applicants, for a period of one 
year.   

 (10)   During  the  period  of  temporary  suspension,  Austria  remains  obliged  to  continue  to 

relocate swiftly and regularly the remaining allocation of applicants.  

 (11)   The suspension of relocation of 30 % of applicants for one year constitutes a sufficient 
and proportionate measure in response to the situation in Austria. An extension of the 
time  limit  for  relocating  the  applicants  in  the  remaining  allocation  beyond  the  date 
referred  to  in  Article  13(2)  of  Council  Decision  (EU)  2015/1601  would  not  be 
justified.  It  is  essential  that  relocation  from  Italy  and  Greece  takes  place  swiftly  and 
regularly until 26 September 2017, in order to effectively relieve Italy and Greece of 
the ongoing emergency situation. 

(12)  Since  the  objectives  of  this  Council  Implementing  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 TEU. In accordance 
with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this  Council 
Implementing Decision does not go beyond what is necessary in order to achieve those 
objectives.  

(13)  This Council Implementing Decision respects the fundamental rights and observes the 

principles recognised by the Charter of Fundamental Rights of the European Union.  

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(14)  As  the  United  Kingdom  is  not  taking  part  in  Council  Decision  (EU)  2015/1601,  the 
United  Kingdom  is  not  taking  part  in  the  adoption  of  this  Council  Implementing 
Decision and is not bound by it or subject to its application. 

(15)  As Ireland is not taking part in Council Decision (EU) 2015/1601, Ireland is not taking 
part in the adoption of this Council Implementing Decision and is not bound by it or 
subject to its application. 

(16) 

(17) 

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 Council Implementing Decision and is not bound by it or subject to its application.  

In  view  of  the  urgency  of  the  situation,  this  Council  Implementing  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:  

The  relocation  to  Austria  of  1 065  of  the  applicants  allocated  to  that  Member  State  under 
Council Decision (EU) 2015/1601 shall be suspended until … [one year from the date of the 
adoption of the present Council Implementing Decision]  

Article 1 

Article 2 

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

Done at Brussels, 

For the Council 
The President 

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