Proposal for a COUNCIL DECISION amending 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
Date: 2016-03-21
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, Greece, Italy, Türkiye, aid to refugees, external border of the EU, foreign national, illegal migration, right of asylum, transfer of population

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   EUROPEAN COMMISSION  Brussels, 21.3.2016  COM(2016) 171 final 2016/0089 (NLE)   Proposal for a COUNCIL DECISION amending 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  
 
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  with  an  emergency 
situation.  

Under Article 4(2) of Council Decision (EU) 2015/1601 as of 26 September 2016, 54 000 out 
of  120 000  applicants  should  be  relocated  from  Italy  and  Greece,  to  the  territory  of  other 
Member  States  unless  by  that  date,  pursuant  to  Article  4(3),  the  Commission  makes  a 
proposal  to  allocate  them  to  another  beneficiary  Member  State(s)  confronted  with  an 
emergency situation characterised by a sudden inflow of persons.  

According  to  Article  1(2)  the  Commission  shall  keep  under  constant  review  the  situation 
regarding  massive  inflows  of  third  country  nationals  into  Member  States  and  submit  as 
appropriate proposals to amend Decision 2015/1601 in order to take account of the evolution 
of  the  situation  on  the  ground  and  its  impact  on  the  relocation  mechanism  as  well  as  the 
evolving pressure on Member States, in particular frontline Member States.  

The situation remains critical. According to Frontex data, during the first months of 2016, an 
average  of  2  000  to  3  000  persons  have  entered  irregularly  Greece  from  Turkey  on  a  daily 
basis. The restrictions imposed at the Greece/former Yugoslav Republic of Macedonia border 
have  put  additional  strain  on  Greece3  and  have  increased  the  risk  of  new  migratory  routes 
developing through other EU Member States as the weather conditions improve. These new 
migratory routes are likely to affect frontline Member States. 

The Commission adopted the First report on relocation and resettlement on 16 March, in line 
with  the  obligation  under  Article  12  of  the  two  Council  Decisions.4  The  Communication 

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. 

With  the flows  continuing, more  than  100,000  migrants could  be  stranded  in Greece within  a  month, 
according to the UNHCR. 
COM(2016) 165 final. 

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summarises  the  challenges  identified  and  lessons  learned  in  these  first  months  of 
implementation  of  the  relocation  and  resettlement  schemes  and  proposes  recommendations 
and actions in the short term to improve the implementation rate. 

The EU Heads of State and Government agreed on 7 March a series of principles as the basis 
for an agreement  with Turkey  which  included "to resettle, for every Syrian readmitted by 
Turkey from Greek islands, another Syrian from Turkey to the EU Member States, within the 
framework of the existing commitments".  

The implementation of the various schemes to allow for resettlement, humanitarian admission 
or other forms of legal admission would alleviate the migratory pressure on frontline Member 
States, and Greece in particular, by substituting dangerous and irregular migration flows to the 
the  EU  of  Syrian  nationals/person  displaced  by  the  conflict  in  Syria  with  safe  and  legal 
pathways.  

In  this  context,  the  Commission's  Communication  on  next  operational  steps  in  EU-Turkey 
cooperation in the field of migration5 called for taking the necessary steps to transfer some of 
the commitments under the existing relocation decisions, notably all or part of the currently 
unallocated  54  000  places,  to  the  so  called  1:1  scheme.  The  resettlement  or  other  legal 
pathways  for  the  admission  of  persons  in  clear  need  of  international  protection  can  be 
considered  equivalent  to  relocation,  as  all  are  concrete  expressions  of  solidarity  with  other 
Member States or third countries experiencing mass influx of migrants. 

1.2. Other solidarity instruments  

In addition to the obligations under the relocation scheme and with a view to addressing the 
global migratory crisis comprehensively and to showing solidarity with third countries equally 
affected,  the  Commission  recommended  an  EU  resettlement  scheme  for  20 000  people  in 
need  of  international  protection.  Following  the  Commission  Recommendation  of  8  June 
2015  on  a  European  resettlement  scheme6,  27  Member  States7  together  with  Dublin 
Associated  States  agreed  on  20  July  20158  to  resettle  through  multilateral  and  national 
schemes 22 504 displaced persons from outside the EU who are in clear need of international 
protection.  The  resettling  states  agreed  to  take  account  of  priority  regions  for  resettlement, 
including North Africa, the Middle East, and the Horn of Africa. The resettlement places were 
distributed between Member States and Dublin Associated States according to the commitments 
set out in the Annex to the Conclusions. 

On  15  December  2015,  the  Commission  adopted  a  Recommendation  for  a  Voluntary 
Humanitarian  Admission  Scheme  with  Turkey,  proposing  that  participating  States  would 
admit  persons  displaced  by  the  conflict  in  Syria  who  are  in  need  of  international  protection 
and  were  registered  by  the  Turkish  authorities  prior  to  29  November  2015.  Such  a  scheme 
would be a flanking measure to the mutual commitments contained in the Joint Action Plan 
between the EU and Turkey of 29 November 2015. 

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COM(2016) 166 final.  
C(2015) 3560 final. 
Hungary does not participate.  
11130/15;  "Conclusions  of  the  Representatives  of  the  Governments  of  the  Member  States  meeting 
within the Council on resettling through multilateral and national schemes 20 000 persons in clear need 
of international protection". 

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2. LEGAL ELEMENTS OF THE PROPOSAL  

2.1. Summary of the proposed action 

The present amendment consists in counting the efforts made by Member States by admitting 
Syrians  present  in  Turkey  through  resettlement,  humanitarian  admission  or  other  forms  of 
legal admission towards the number of applicants for international protection to be relocated 
to  their  territory  under  Council  Decision  2015/1601.  In  relation  to  the  54 000  applicants 
referred  to  in  Article  4(1)(c)  of  Council  Decision  2015/1601,  this  amendment  enables 
Member States to subtract from their allocated number of relocated applicants the number of 
Syrians  present  in  Turkey  admitted  to  their  territory  through  resettlement,  humanitarian 
admission or other forms of legal admission under national or multilateral schemes other than 
the  resettlement  scheme  established  under  the  Conclusions  of  the  Representatives  of  the 
Governments of the Member States meeting within the Council of 20 July 2015. Article 10 of 
Council  Decision  (EU)  2015/1601  applies,  which  means  the  Member  States  which  use  this 
facility will receive the sum of EUR 6 500. 

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) 
2015/1601.  The current  action  consists  in  in  allowing Member  States to partially meet their 
obligations under that Decision by participating in other solidarity efforts.  

2.4. Proportionality  

Given the urgency and the severity of the situation created by the current refugee crisis, the 
measures  provided  for  in  this  proposal  do  not  go  beyond  what  is  necessary  to  achieve  the 
objective of addressing the situation effectively. 

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 Decision 
(EU) 2015/1601 are not affected. 

2.6 Variable geometry 

Under  the  provisions  of  Protocol  (No. 21),  Ireland  and  the  UK  are  not  participating  in  this 
proposal, except if they opt into it within three months after the proposal or after the adoption. 

Despite  the  fact  that  Ireland  has  opted  into  Decision  2015/1601,  the  previous  sentence  also 
applies to Ireland in accordance with Article 4a of Protocol 21.  

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In view of the fact that the UK has not yet opted into Decision (EU) 2015/1601, it would need 
to opt into the latter, too, if it wanted to opt into this measure, as it is not possible to opt into 
an amendment of a measure without being bound by the measure itself. 

3. 

BUDGETARY IMPLICATIONS 

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

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2016/0089 (NLE) 

Proposal for a 

COUNCIL DECISION 

amending 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 

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 Parliament9, 

Whereas: 

 (1)  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) 2015/152310, 40 000 applicants for international 
protection are to be relocated from Italy and Greece to the other Member States. Under 
Council  Decision  (EU)  2015/160111,  120 000  applicants  for  international  protection 
are to be relocated from Italy and Greece to other Member States. 

(2)   Under  Article  4(2)  of  Decision  (EU)  2015/1601,  as  of  26  September  2016,  54 000 
applicants should be relocated from Italy and Greece to the territory of other Member 
States unless by that date, pursuant to Article 4(3), the Commission makes a proposal 
to allocate them to another beneficiary Member States confronted with an emergency 
situation characterised by a sudden inflow of persons.  

(3)   Article  1(2)  of  Decision  (EU)  2015/1601  provides  that  the  Commission  is  to  keep 
under  constant  review  the  situation  regarding  massive  inflows  of  third  country 
nationals  into  Member  States.  The  Commission  should  submit,  as  appropriate, 
proposals  to  amend  that  Decision  in  order  to  take  into  account  the  evolution  of  the 
situation on the ground and its impact upon the relocation mechanism, as well as the 
evolving pressure on Member States, in particular frontline Member States. 

(4) 

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The EU Heads of State or Government agreed on 7 March to work on the basis of a 
series  of  principles  for  an  agreement  with  Turkey,  including  to  resettle,  for  every 
Syrian readmitted by Turkey from  Greek  islands,  another Syrian from Turkey  to  the 
Member States, within the framework of the existing commitments. Those principles 
were further developed in the Commission's Communication on next operational steps 

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

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

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(5)  

in  EU-Turkey  cooperation  in  the  field  of  migration12  which  called  for  taking  the 
necessary  steps  to  transfer  some  of  the  commitments  under  the  existing  relocation 
decisions,  notably  all  or  part  of  the  currently  unallocated  54  000  places,  to  the  so 
called 1:1 scheme.  

 Resettlement, humanitarian admission, or other forms of legal admission from Turkey 
under  national  and  multilateral  schemes  can  be  expected  to  relieve  the  migratory 
pressure on Member States which are beneficiaries of relocation under Decision (EU) 
2015/1601  by  providing  a  legal  and  safe  pathway  to  enter  the  Union  and  by 
discouraging  irregular  entries.  Therefore,  the  solidarity  efforts  of  Member  States 
consisting in admitting to their territory Syrian nationals present in Turkey who are in 
clear  need  of  international  protection  should  be  taken  into  account  in  relation  to  the 
54 000  applicants  for  international  protection  referred  to  above.  The  number  of 
persons  so  admitted  from  Turkey  by  a  Member  State  should  be  deducted  from  the 
number of persons to be relocated to that Member State under Decision 2015/1601 in 
relation to those 54 000 applicants.   

(6)  Mechanisms for admission may include resettlement, humanitarian admission or other 
legal pathways for admission of persons in clear need of international protection, such 
as  humanitarian  visa  programmes,  humanitarian  transfer,  family  reunification 
programmes,  private  sponsorship  projects,  scholarship  programmes,  labour  mobility 
schemes, and others.  

(7) 

(8)  

(9) 

The  commitments  that  Member  States  undertook  as  part  of  the  resettlement  scheme 
agreed in the Conclusions of the Representatives of the Governments of the Member 
States  meeting  within  the  Council  of  20  July  2015  should  not  be  affected  by  this 
Decision  and  should  not  count  towards  meeting  the  obligations  under  Decision 
2015/1601.  Therefore,  a  Member  State  which  chooses  to  meet  its  obligations  under 
through 
Decision  (EU)  2015/1601  by  admitting  Syrians  present 
resettlement, cannot count this effort as constituting part of its commitment under the 
20 July 2015 resettlement scheme. 

in  Turkey 

To  ensure  a  proper  monitoring  of  the  situation,  Member  States  should  report  on  a 
monthly  basis  to  the  Commission  on  Syrians  present  in  Turkey  admitted  to  their 
territory  under  the  option  provided  for  in  this  amendement  specifying  under  which 
scheme,  national  or  multilateral,  the  person  has  been  admitted  and  the  form  of  legal 
admission.   

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. 

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

by the Charter of Fundamental Rights of the European Union.  

(11) 

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 

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COM(2016)166 final.  

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United Kingdom is not taking part in the adoption of this Decision and is not bound by 
it or subject to its application. 

(12) 

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  Articles  4  and  4a  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.  

(13) 

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.  

(14) 

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:  

In Article 4 of Decision (EU) 2015/1601 the following paragraph 3a is inserted: 

Article 1 

"3a. In relation to the relocation of applicants referred to in point (c) of paragraph 1, 
the admission by Member States to their territory of Syrian nationals present in Turkey 
under  national  or  multilateral  legal  admission  schemes  for  persons  in  clear  need  of 
international  protection  other  than  the  resettlement  scheme  which  was  the  subject  of 
the  Conclusions  of  the  Representatives  of  the  Governments  of  the  Member  States 
meeting within the Council of 20 July 2015 shall lead to a corresponding reduction of 
the obligation of the respective Member State. 

Article  10  shall  apply  mutatis  mutandis  for  every  such  legal  admission  leading  to  a 
reduction of the relocation obligation. 

Every month Member States shall report to the Commission on the number of persons 
legally  admitted  for  the  purposes  of  this  paragraph,  indicating  the  type  of  scheme 
under which the admission has taken place and the form of legal admission used." 

 Article 2 
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 Brussels, 

For the Council 
The President 

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