CELEX: 22006A0308(03)
Language: en
Date: 2005-03-10 00:00:00
Title: Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and  Eurodac  for the comparison of fingerprints for the effective application of the Dublin Convention

L 66/38          EN                              Official Journal of the European Union                                              8.3.2006
                                                              AGREEMENT
        between the European Community and the Kingdom of Denmark on the criteria and mechanisms
        for establishing the State responsible for examining a request for asylum lodged in Denmark or any
        other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the
                                          effective application of the Dublin Convention
        THE EUROPEAN COMMUNITY, hereinafter referred to as ‘the Community’,
        of the one part, and
        THE KINGDOM OF DENMARK, hereinafter referred to as ‘Denmark’,
        of the other part,
        REFERRING to Denmark’s participation in the Convention determining the State responsible for examining applications
        for asylum lodged in one of the Member States of the European Communities, signed in Dublin on 15 June 1990,
        hereinafter referred to as the ‘Dublin Convention’;
        REFERRING to Article 12 of the Agreement between the European Community and the Republic of Iceland and the
        Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a
        request for asylum lodged in a Member State or Iceland or Norway;
        TAKING INTO ACCOUNT that the Council Regulation (EC) No 343/2003 of 18 February 2003 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, hereinafter referred to as the ‘Dublin II Regulation’, replaces the ‘Dublin
        Convention’;
        NOTING that the Commission Regulation (EC) No 1560/2003 laying down detailed rules for the application of Council
        Regulation (EC) No 343/2003 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 was adopted on 2
        September 2003;
        CONSIDERING the importance of the Council Regulation (EC) No 2725/2000 of 11 December 2000 regarding the
        establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention,
        hereinafter referred to as the ‘Eurodac Regulation’. The ‘Eurodac Regulation’ and the ‘Dublin II Regulation’ are hereinafter
        referred to as the ‘Regulations’;
        NOTING that the Council on 28 February 2002 adopted the Regulation (EC) No 407/2002 regarding certain rules to
        implement the Eurodac Regulation;
        REFERRING to the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty
        establishing the European Community (the Protocol on the position of Denmark) pursuant to which the Dublin II
        Regulation and the Eurodac Regulation shall not be binding upon or applicable in Denmark;
        DESIRING that the provisions of the Regulations, future amendments thereto and the implementing measures relating to
        them should under international law apply to the relations between the Community and Denmark being a Member State
        with a special position with respect to Title IV of the Treaty establishing the European Community;
        STRESSING the importance of proper coordination between the Community and Denmark with regard to the negotiation
        and conclusion of international agreements that may affect or alter the scope of the Regulations;
 ---pagebreak--- 8.3.2006          EN                              Official Journal of the European Union                                           L 66/39
         STRESSING that Denmark should seek to join international agreements entered into by the Community where Danish
         participation in such agreements is relevant for the coherent application of the Regulations and this Agreement;
         STATING that the Court of Justice of the European Communities should have jurisdiction in order to secure the uniform
         application and interpretation of this Agreement including the provisions of the Regulations and any implementing
         Community measures forming part of this Agreement;
         REFERRING to the jurisdiction conferred to the Court of Justice of the European Communities pursuant to Article 68(1)
         of the Treaty establishing the European Community to give rulings on preliminary questions relating to the validity and
         interpretation of acts of the institutions of the Community based on Title IV of the Treaty, including the validity and
         interpretation of this Agreement, and to the circumstance that this provision shall not be binding upon or applicable in
         Denmark, as results from the Protocol on the position of Denmark;
         CONSIDERING that the Court of Justice of the European Communities should have jurisdiction under the same
         conditions to give preliminary rulings on questions concerning the validity and interpretation of this Agreement
         which are raised by a Danish court or tribunal, and that Danish courts and tribunals should therefore request preliminary
         rulings under the same conditions as courts and tribunals of other Member States in respect of the interpretation of the
         Regulations and their implementing measures;
         REFERRING to the provision that, pursuant to Article 68(3) of the Treaty establishing the European Community, the
         Council of the European Union, the European Commission and the Member States may request the Court of Justice of the
         European Communities to give a ruling on the interpretation of acts of the institutions of the Community based on Title
         IV of the Treaty, including the interpretation of this Agreement, and the circumstance that this provision shall not be
         binding upon or applicable in Denmark, according to the Protocol on the position of Denmark;
         CONSIDERING that Denmark should, under the same conditions as other Member States in respect of the Regulations
         and their implementing measures, be accorded the possibility to request the Court of Justice of the European Commu-
         nities to give rulings on questions relating to the interpretation of this Agreement;
         STRESSING that under Danish law the courts in Denmark should — when interpreting this Agreement including the
         provisions of the Regulations and any implementing Community measures forming part of this Agreement — take due
         account of the rulings contained in the case-law of the Court of Justice of the European Communities and of the courts of
         the Member States of the European Communities in respect of provisions of the Regulations and any implementing
         Community measures;
         CONSIDERING that it should be possible to request the Court of Justice of the European Communities to rule on
         questions relating to compliance with obligations under this Agreement pursuant to the provisions of the Treaty
         establishing the European Community governing proceedings before the Court;
         WHEREAS, by virtue of Article 300(7) of the Treaty establishing the European Community, this Agreement binds
         Member States; it is therefore appropriate that Denmark, in the case of non-compliance by a Member State, should
         be able to bring a complaint to the Commission as guardian of the Treaty;
         CONSIDERING that Denmark according to Article 3 of the Protocol on the position of Denmark does not bear financial
         consequences of measures which are not binding upon or applicable in Denmark other than administrative costs, and that
         Denmark’s contribution to the operational costs linked to the establishment and operation of the Central Unit according
         to Article 3 of the Eurodac Regulation therefore must be determined;
         STRESSING that a Protocol according to Article 12 of the Agreement between European Community and Iceland and
         Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum
         lodged in a Member State or Iceland or Norway shall ensure the relations between Iceland and Norway on the one hand
         and Denmark on the other hand regarding the provisions of the Dublin II Regulation and the Eurodac Regulation;
 ---pagebreak--- L 66/40                 EN                            Official Journal of the European Union                                           8.3.2006
               DESIRING that the content of this Protocol is determined by the European Community and Iceland and Norway in
               parallel with this Agreement, acting with the consent of Denmark,
               HAVE AGREED AS FOLLOWS:
                                Article 1                                                                   Article 3
                                  Aim                                         Amendments to the Dublin II Regulation and to the
                                                                                                      Eurodac Regulation
1.    The aim of this Agreement is to apply the provisions of
Council Regulation (EC) No 343/2003 of 18 February 2003 on                    1.     Denmark shall not take part in the adoption of
the criteria and mechanisms for establishing the Member State                 amendments to the Dublin II Regulation and the Eurodac Regu-
responsible for examining a request for asylum lodged in                      lation and no such amendments shall be binding upon or
Denmark or any other Member State of the European Union                       applicable in Denmark.
(Dublin II Regulation), Council Regulation (EC) No 2725/2000
of 11 December 2000 concerning the establishment of Eurodac
for the comparison of fingerprints for the effective application
of the Dublin Convention (Eurodac Regulation) and their imple-                2.     Whenever amendments to the Regulations are adopted
menting measures to the relation between the Community and                    Denmark shall notify the Commission of its decision whether
Denmark, in accordance with Article 2(1) and 2(2).                            or not to implement the content of such amendments. Notifi-
                                                                              cation shall be given at the time of the adoption of the
                                                                              amendments or within 30 days hereafter.
2.    It is the objective of the Contracting Parties to arrive at a
uniform application and interpretation of the provisions of the
Regulations and their implementing measures in all Member                     3.     If Denmark decides that it will implement the content of
States.                                                                       the amendments the notification shall indicate whether imple-
                                                                              mentation can take place administratively or requires parlia-
                                                                              mentary approval.
3.    The provisions of Articles 3(1), 4(1) and 5(1) of this
Agreement result from the Protocol on the position of                         4.     If the notification indicates that implementation can take
Denmark.                                                                      place administratively the notification shall, moreover, state that
                                                                              all necessary administrative measures enter into force on the
                                                                              date of entry into force of the amendments to the Regulations
                                                                              or have entered into force on the date of the notification,
                                Article 2                                     whichever date is the latest.
   The Dublin II Regulation and the Eurodac Regulation
1.    The provisions of the Dublin II Regulation which is
annexed to this Agreement and forms part thereof, together                    5.     If the notification indicates that implementation requires
with its implementing measures adopted pursuant to Article                    parliamentary approval in Denmark the following rules shall
27(2) of the Dublin II Regulation and — in respect of imple-                  apply:
menting measures adopted after the entry into force of this
Agreement — implemented by Denmark as referred to in
Article 4 of this Agreement, shall under international law
                                                                              (a) legislative measures in Denmark shall enter into force on
apply to the relations between the Community and Denmark.
                                                                                   the date of entry into force of the amendments to the
                                                                                   Regulations or within 6 months after the notification,
                                                                                   whichever date is the latest;
2.    The provisions of the Eurodac Regulation which is
annexed to this Agreement and forms part thereof, together
with its implementing measures adopted pursuant to Article                    (b) if legislative measures in Denmark have not entered into
22 or 23(2) of the Eurodac Regulation and — in respect of                          force on the date the amendments to the Regulations
implementing measures adopted after the entry into force of                        enter into force, Denmark shall to the extent compatible
this Agreement — implemented by Denmark as referred to in                          with national law apply the substance of the amendments
Article 4 of this Agreement, shall under international law apply                   provisionally;
to the relations between the Community and Denmark.
                                                                              (c) Denmark shall notify the Commission of the date upon
3.    The date of entry into force of this Agreement shall apply                   which the implementing legislative measures enter into
instead of the date referred to in Article 29 of the Dublin II                     force and of any particular measures taken with respect to
Regulation, and Article 27 of the Eurodac Regulation.                              provisional application.
 ---pagebreak--- 8.3.2006              EN                          Official Journal of the European Union                                            L 66/41
6.     A Danish notification that the content of the amendments           or not to implement the content of the implementing measures.
have been implemented in Denmark, according to paragraph 4                Notification shall be given upon receipt of the implementing
or 5, creates mutual obligations under international law                  measures or within 30 days thereafter.
between Denmark and the Community. The amendments to
the Regulations shall then constitute amendments to this
Agreement and shall be considered annexed hereto.
                                                                          3.    The notification shall state that all necessary administrative
                                                                          measures in Denmark enter into force on the date of entry into
                                                                          force of the implementing measures or have entered into force
7.     In case:                                                           on the date of the notification, whichever date is the latest.
(a) Denmark notifies its decision not to implement the content            4.    A Danish notification that the content of the imple-
     of the amendments, or                                                menting measures have been implemented in Denmark,
                                                                          creates mutual obligations under international law between
                                                                          Denmark and the Community. The implementing measures
                                                                          will then form part of this Agreement.
(b) Denmark does not make a notification within the 30 days
     time limit set out in paragraph 2; or
                                                                          5.    In case:
(c) legislative measures in Denmark do not enter into force
     within the time limits set out in paragraph 5,
                                                                          (a) Denmark notifies its decision not to implement the content
                                                                              of the implementing measures, or
this Agreement shall be considered terminated unless within 90
days the parties decide otherwise or, in the situation referred to
under (c), legislative measures in Denmark enter into force               (b) Denmark does not make a notification within the 30-day
within the same period. Termination shall take effect three                   time limit set out in paragraph 2;
months after the expiry of the 90-day period.
                                                                          this Agreement shall be considered terminated unless the parties
8.     Requests that have been transmitted in accordance with             decide otherwise within 90 days. Termination shall take effect
the Dublin II Regulation before the date of termination of the            three months after the expiry of the 90-day period.
Agreement as set out in paragraph 7 are not affected hereby.
                                                                          6.    Requests that have been transmitted in accordance with
                             Article 4
                                                                          the ‘Dublin II Regulation’ before the date of termination of the
                     Implementing measures                                Agreement as set out in paragraph 5 are not affected hereby.
1.     Denmark shall not take part in the adoption of opinions
by the Committee referred to Article 27(2) of the Dublin II
Regulation and Article 23(2) of the Eurodac Regulation or in              7.    If in exceptional cases the implementation requires parlia-
the adoption of implementing measures adopted pursuant to                 mentary approval in Denmark, the Danish notification under
Article 22 of the Eurodac Regulation. Implementing measures               paragraph 2 shall indicate this and the provisions of Article 3(5)
adopted pursuant to Article 27(2) of the Dublin II Regulation or          to (8), shall apply.
pursuant to 23(2) of the Eurodac Regulation and implementing
measures adopted pursuant to Article 22 of the Eurodac Regu-
lation shall not be binding upon and shall not be applicable in
Denmark.
                                                                                                        Article 5
                                                                          International agreements which affect the Dublin II Regu-
                                                                                         lation and the Eurodac Regulation
2.     Whenever implementing measures are adopted pursuant
to Article 27(2) of the Dublin II Regulation and pursuant to              1.    International agreements entered into by the Community
Article 22 or 23(2) of the Eurodac Regulation, the imple-                 based on the rules of the Dublin II Regulation and the Eurodac
menting measures shall be communicated to Denmark.                        Regulation shall not be binding upon and shall not be
Denmark shall notify the Commission of its decision whether               applicable in Denmark.
 ---pagebreak--- L 66/42               EN                           Official Journal of the European Union                                          8.3.2006
2.    Denmark will abstain from entering into international                6.     If the provisions of the Treaty establishing the European
agreements which may affect or alter the scope of the Regu-                Community regarding rulings by the Court of Justice are
lations as annexed to this Agreement concerning the determi-               amended with consequences for rulings in respect of the
nation of responsibility for examining an asylum application or            Dublin II Regulation and the Eurodac Regulation, Denmark
measures concerning the comparison of fingerprints of third                may notify the Commission of its decision not to apply the
country nationals covered by the Eurodac Regulation unless it              amendments in respect of this Agreement. Notification shall be
is done with the agreement of the Community and satisfactory               given at the time of the entry into force of the amendments or
arrangements have been made with regard to the relationship                within 60 days hereafter.
between this Agreement and the international agreement in
question.
                                                                           In such a case this Agreement shall be considered terminated.
                                                                           Termination shall take effect three months after the notification.
3.    When negotiating international agreements that may
affect or alter the scope of the Regulations as annexed to this
Agreement, Denmark will coordinate its position with the                   7.     Requests that have been transmitted in accordance with
Community and will abstain from any actions that would                     the Dublin II Regulation before the date of termination of the
jeopardise the objectives of a Community position within its               Agreement as set out in paragraph 6 are not affected hereby.
sphere of competence in such negotiations.
                                                                                                        Article 7
                             Article 6
                                                                           Jurisdiction of the Court of Justice of the European
Jurisdiction of the Court of Justice of the European                       Communities in relation to compliance with the
Communities in relation to the interpretation of the                                                   Agreement
                            Agreement
                                                                           1.     The Commission may bring before the Court of Justice
1.    Where a question on the validity or interpretation of this           cases against Denmark concerning non-compliance with any
Agreement is raised in a case pending before a Danish court or             obligation under this Agreement.
tribunal, that court or tribunal shall request the Court of Justice
to give a ruling thereon whenever under the same circumstances
a court or tribunal of another Member State of the European                2.     Denmark may bring a complaint to the Commission as to
Union would be required to do so in respect of the Dublin II               the non-compliance by a Member State of its obligations by
Regulation and the Eurodac Regulation and their implementing               virtue of this Agreement.
measures referred to in Article 2(1) and 2(2).
                                                                           3.     The relevant provisions of the Treaty establishing the
2.    Under Danish law, the courts in Denmark shall, when                  European Community governing proceedings before the Court
interpreting this Agreement, take due account of the rulings               of Justice as well as the Protocol on the Statute of the Court of
contained in the case-law of the Court of Justice in respect of            Justice of the European Communities and its Rules of Procedure
provisions of the Dublin II Regulation and the Eurodac Regu-               shall apply.
lation and any implementing Community measures.
                                                                                                        Article 8
3.    Denmark may, like the Council, the Commission and any                                      Territorial application
Member State, request the Court of Justice to give a ruling on a
question of interpretation of this Agreement. The ruling given             This Agreement shall apply to the territories referred to in
by the Court of Justice in response to such a request shall not            Article 299 of the Treaty establishing the European
apply to judgments of courts or tribunals of the Member States             Community and in accordance with Article 26 of the
which have become res judicata.                                            ‘Eurodac Regulation’ and Article 26 of the ‘Dublin II Regulation’.
                                                                                                        Article 9
4.    Denmark shall be entitled to submit observations to the
Court of Justice in cases where a question has been referred to it                    Financial contributions regarding Eurodac
by a court or tribunal of a Member State for a preliminary
ruling concerning the interpretation of any provision referred             As far as administrative and operational costs linked to the
to in Article 2(1) and 2(2).                                               installation and operation of the Central Unit of Eurodac are
                                                                           concerned, Denmark shall contribute to the annual budget of
                                                                           the EU an annual sum, calculated on the basis of the budgetary
                                                                           appropriations allocated for that purpose, in accordance with
5.    The Protocol on the Statute of the Court of Justice of the           the percentage of the Danish gross national product in relation
European Communities and its Rules of Procedure shall apply.               to the overall gross national product of all participating States.
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This provision shall apply from the year of the link-up of                    3.    Requests that have been transmitted before the date of
Denmark to the Central Unit.                                                  termination of the Agreement as set out in paragraph 1 or 2
                                                                              are not affected hereby.
The contribution of Denmark to the initial installation of the                                           Article 11
Central Unit will amount to a lump sum equivalent to the
amount reimbursed on the Danish contribution to the general                                           Entry into force
budget of the European Union, because of its initial non-parti-               1.    The Agreement shall be adopted by the Contracting
cipation to the Eurodac Regulation.                                           Parties in accordance with their respective procedures.
                                                                              2.    The Agreement shall enter into force on the first day of
                             Article 10                                       the second month following the notification by the Contracting
                                                                              Parties of the completion of their respective procedures required
                 Termination of the Agreement                                 for this purpose.
1.    This Agreement shall terminate if Denmark informs the
other Member States that it no longer wishes to avail itself of
the provisions of Part I of the Protocol on the position of                                              Article 12
Denmark, under Article 7 of that Protocol.
                                                                                                   Authenticity of texts
                                                                              This Agreement is drawn up in duplicate in the Czech, Danish,
                                                                              Dutch, English, Estonian, Finnish, French, German, Greek,
2.    This Agreement may be terminated by either Contracting                  Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish,
Party giving notice to the other Contracting Party. Termination               Portuguese, Slovene, Slovak, Spanish and Swedish languages,
shall be effective six months after the date of such notice.                  each of these texts being equally authentic.
                                                                       ANNEX
              COUNCIL REGULATION (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for deter-
              mining the Member State responsible for examining an asylum application lodged in one of the Member States by a
              third-country national.
              COUNCIL REGULATION (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the
              comparison of fingerprints for the effective application of the Dublin Convention.