EN

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COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels,
COM(2008) 815
2008/xxxx (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
laying down minimum standards for the reception of asylum seekers
(Recast)
{SEC(2008) 2944}
{SEC(2008) 2945}

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EXPLANATORY MEMORANDUM
1.

Context of the Proposal

• Grounds for and objectives of the proposal
This proposal is a recasting of Council Directive 2003/9/EC of 27 January 2003 laying down
minimum standards for the reception of asylum seekers1 (hereafter – the Reception
Conditions Directive).
The Commission's Evaluation Report on the application of the Reception Conditions
Directive in Member States issued on 26 November 20072 as well as contributions received
by various stakeholders in response to the Green Paper consultation process3 have identified a
number of deficiencies regarding the level of reception conditions for asylum seekers which
mainly results from the fact that the Directive currently allows Member States a wide margin
of discretion concerning the establishment of reception conditions at national level.
As announced in the Policy Plan on Asylum,4 this proposal is part of a first package of
proposals which aim to ensure a higher degree of harmonisation and better standards of
protection for the Common European Asylum System (CEAS). It is adopted at the same time
of the recast of the Dublin5 and Eurodac6 Regulations. In 2009, the Commission will propose
to amend the Qualification Directive7 and the Asylum Procedures Directive.8 In addition, in
the first quarter of 2009 the Commission will propose the establishment of a European
Asylum Support Office, which will aim to provide practical assistance to Member States in
taking decisions on asylum claims. The Support Office will also provide assistance to
Member States who are faced with particular pressures on their national asylum system,
notably because of their geographical position, to comply with requirement of Community
legislation, by providing specific expertise and practical support.
• General context
1
2

3
4

5

6

7

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OJ L 31, 6.2.2003, p. 18.
Report from the Commission to the Council and to the European Parliament on the application of
directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum
seekers, COM (2007) 745
Green Paper on the future of the Common European Asylum System, COM (2007) 301.
Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of Regions on the 'Policy Plan on Asylum an
Integrated Approach to Protection Across the EU' of 17 June 2008, COM (2008) 360.
Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and
mechanisms for determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country national or a stateless
person COM (2008) 820.
Proposal for a Regulation of the European Parliament and of the Council concerning the establishment
of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No
[…/…] [establishing the criteria and mechanisms for determining the Member State responsible for
examining an application for international protection lodged in one of the Member States by a thirdcountry national or a stateless person, COM (2008) 825.
Council Directive 2004/83/EC on minimum standards for the qualification and status of third-country
nationals and stateless persons as refugees or as persons who otherwise need international protection,
OJ L 304, 30.9.2004, p.12
Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and
withdrawing refugee status, OJ L 326, 13.12.2005, p.13

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Work on the creation of a CEAS started immediately after the entry into force of the Treaty of
Amsterdam in May 1999, on the basis of the orientations given by the Tampere European
Council. During the first phase of the CEAS (1999-2005), the goal was to harmonise Member
States' legal frameworks on the basis of common minimum standards. The Reception
Conditions Directive was the first of the five pieces of EU asylum legislation flowing from
the Tampere Conclusions. It aims to establish reception conditions that will normally suffice
to ensure asylum seekers a 'dignified standard of living and comparable living conditions in
all Member States'.
The Hague Programme invited the Commission to conclude the evaluation of the first-phase
legal instruments and to submit proposals for the second-phase instruments and measures to
the Council and the European Parliament with a view to their adoption before the end of 2010.
This proposal responds to that call; it aims to address adequately the deficiencies identified
during the first-phase of the asylum legislation.
Detailed analysis of the problems identified in relation to this directive and concerning the
preparation carried out for its adoption, the identification and assessment of policy options
and the identification and assessment of the preferred policy option are included in the Impact
Assessment, annexed to this proposal.
• Consistency with other policies and objectives of the Union
This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the
Hague programme of 2004 in relation to the establishment of the CEAS.
2.

Consultation of Interested Parties.

The Commission considered that before proposing any new initiative, an in-depth reflection
and debate with all the relevant stakeholders on the future architecture of the CEAS was
necessary. It therefore presented a Green Paper in June 2007, which aimed to identify possible
options for shaping the second phase of the CEAS. The response to the public consultation
included 89 contributions from a wide range of stakeholders.9 The issues raised and the
suggestions put forward during the consultation have provided the basis for the Policy Plan
that defines a road-map for the coming years and lists the measures that the Commission
intends to propose in order to complete the second phase of the CEAS, including the proposal
to amend the Reception Conditions Directive. The Policy Plan also identifies a number of
objectives to be met during the second phase of the asylum legislation concerning the
reception of asylum seekers.
The Commission's Evaluation Report was prepared on the basis of two studies on the state of
application of the Directive.10 These studies provided the Commission with valuable
information regarding the areas to be addressed in the present amending proposal.
On 5 March 2008 the Commission informally discussed the broad outline of this proposal
with the Member States in the Committee on Immigration and Asylum (CIA). Meetings were
9

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Available at:
http://ec.europa.eu/justice_home/news/consulting_public/gp_asylum_system/news_contributions_asylu
m_systm_en.htm
EMN "Reception Systems, their Capacities and the Social Situation of Asylum Applicants within the
Reception System in the EU Member States", May 2006 - study contracted to the Academic Network
for Legal Studies on Immigration and Asylum in Europe "Odysseus".

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also organised between December 2007 and March 2008 with academic experts, Member
States, NGOs, UNHCR and Members of the European Parliament in order to seek their
opinion on the further improvement of reception condition standards. Finally, a meeting was
held on 29 April 2008 with UNHCR and NGOs in view of addressing specific issues in
relation to the treatment of persons with special needs.
Parties consulted expressed a general consensus to achieving further harmonisation of
reception conditions in the second phase of the asylum legislation. Some Member States
however underlined the need to retain a certain degree of flexibility regarding access to the
labour market and material reception conditions, whereas others expressed a preference to
address deficiencies regarding the treatment of vulnerable asylum seekers via practical
cooperation measures rather than via a legislative intervention.
The Commission's proposal takes into account to a certain extent these concerns in particular
regarding access to the labour market and the modalities established at national level to ensure
adequate material reception conditions for asylum seekers. However, taking into
consideration the serious gaps detected in relation to the identification of special needs and
access to treatment, the Commission decided also to address this issue within the framework
of the present proposal.
3.

Legal Elements of the Proposal

• Summary of the proposed action
The main objective of this proposal is, as part of the second phase of the asylum legislation, to
ensure higher standards of treatment for asylum seekers with regard to reception conditions
that would guarantee a dignified standard of living, in line with international law. Further
harmonisation of national rules on reception conditions is also required in order to limit the
phenomenon of secondary movements of asylum seekers amongst Member States, to the
degree that such movements are generated from diverge national reception polices.
In this respect the proposal addresses the following issues:
1. scope of the directive:
The proposal extends the scope of the directive in order to include applicants for subsidiary
protection. This modification is considered necessary with a view to ensure consistency with
the current EU acquis, namely with the Qualification Directive that introduces the legal notion
of subsidiary protection. Moreover in view of adequately clarifying the rationae materiae of
the directive, the proposal stipulates that it is applicable to all types of asylum procedures and
to all geographic areas and facilities hosting asylum seekers.
2. access to the labour market:
Access to employment is beneficial both for the asylum seeker and the hosting Member State.
Facilitated access to employment for asylum seekers could prevent exclusion from the host
society, and therefore facilitate integration. It would also promote self-sufficiency among
asylum seekers. Mandatory unemployment on the other hand imposes costs on the State
through the payment of additional social welfare payments. It should be noted in this respect

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that labour market restrictions could encourage illegal working.11 This is particularly relevant
for those Member States which create obstacles on access to the labour market and which
grant very low welfare assistance to asylum seekers at the same time.
The proposal therefore aims to facilitate access to the labour market. In particular, two
measures are envisaged. First and foremost, the proposal provides that asylum seekers will be
able to access employment after a period of maximum 6 months after lodging an application
for international protection; the Commission considers that on the basis of Member States'
current practices12 and taking into consideration stakeholders' contributions to the Green
Paper this is an appropriate time period.
Secondly, the proposal stipulates that the imposition of national labour market conditions
shall not unduly restrict access to employment for asylum seekers. The rationale behind this
amendment is to better underline the objective of the current Article which is to ensure that
asylum seekers are provided with fair opportunities to access employment in Member States.
3. access to material reception conditions:
With a view to guarantying that access to material reception conditions ensures 'a standard of
living adequate for the health of the asylum seeker and capable of ensuring his/her
subsistence', the proposal obliges Member States when granting financial support to asylum
seekers to take into consideration the level of social assistance provided to nationals.
Moreover, in order to ensure appropriate accommodation for specific categories of asylum
seekers, the directive introduces an obligation for Member States when allocating housing
facilities to take on board considerations of gender and age, and the situation of persons with
special needs.
The provisions for reducing or withdrawing access to reception conditions, already envisaged
under the current directive, are meant to ensure that the reception system is not abused.
However, as the reduction or withdrawal of reception conditions can affect to a great extent
the standard of living of applicants, the Commission considers it important to ensure that
asylum seekers are never left destitute under such circumstances and that fundamental rights
are respected. In this respect and also taking into consideration current case-law, the proposal
limits the circumstances under which reception conditions could be fully withdrawn and
ensures that asylum seekers will continue to benefit from access to necessary treatment of
illness or mental disorders in relevant cases. The Commission equally considers that it is of
outmost importance that decisions on these issues are subject to review before a national
court.
Finally, the proposal limits the circumstances, currently prescribed under the directive, where
Member States could exceptionally set up modalities for material reception conditions
different from those provided under the Directive.
4. detention:

11

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Communication from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions 'Study on the links between legal
and illegal migration', COM(2004) 412
Immediate access to employment is allowed in Greece, whereas the limitation period is 20 days in
Portugal, 3 months in Austria and Finland, 4 months in Sweden, 6 months in Italy, Spain, Netherlands,
Cyprus and 9 months in Luxembourg.

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Taking into consideration the wide use of detention in the area of asylum by Member States
and the developing case-law of the European Court of Human Rights (hereafter – the ECtHR)
the Commission considers it necessary to address this issue in a holistic way in this directive
with a view to ensure that detention is not arbitrary and that fundamental rights are respected
in all cases. The proposal takes as its underlying principle that a person should not be held in
detention for the sole reason that he/she is seeking international protection. This principle
confirms the EU acquis on detention, in particular the Asylum Procedures Directive, and is in
line with the Charter of Fundamental Rights and with international human rights instruments
such as the European Convention for the Protection of Human Rights and Fundamental
Freedoms and the UN Convention against Torture and other Cruel Inhuman or Degrading
Treatment or Punishment.
The proposal ensures that detention could be allowed only in exceptional grounds prescribed
under the Directive based on the Recommendation of the Committee of Ministers of the
Council of Europe "on measures of detention of asylum seekers" and UNHCR’s Guidelines
on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers of
February 1999. Moreover it is foreseen that detention shall be in line with the principle of
necessity and proportionality. It is furthermore foreseen that detention should be subject to an
individual assessment of each case.
The proposal also guarantees that detained asylum seekers are treated in a humane and
dignified manner with respect for their fundamental rights and in compliance with
international and national law. Particular attention is given in this respect to cases where
vulnerable asylum seekers are detained; with regard to children the proposal is in line with the
1989 UN Convention on the Rights of the Child. As unaccompanied minors are concerned, it
is stipulated that they shall never be detained. Moreover, a number of legal and procedural
safeguards are provided with a view to ensure that detention is legitimate.
5. persons with special needs:
The Commission has identified deficiencies in addressing special needs as being the most
serious concern in the area of reception of asylum seekers. Identifying special needs not only
has a bearing on access to appropriate treatment, but could also affect the quality of the
decision-making process in relation to the asylum application, especially with regard to
traumatised persons. In this respect the proposal ensures that national measures are put in
place in order to immediately identify such needs.
Moreover, the proposal incorporates numerous safeguards in order to ensure that reception
conditions are specifically designed to meet asylum seekers' special needs. These amendments
reflect several aspects of reception conditions such as access to health care, housing facilities,
and education of minors.
6. implementation and improvement of national systems:
The current text of the Reception Conditions Directive contains several rules to ensure the
complete implementation as well as the improvement of national systems. If the final aims of
the new directive are to be achieved, it is important to ensure the continuity of such
monitoring and to strengthen the Commission's role as the guardian of EU legislation. In this
respect, at Community level, the reporting system already provided in the directive should be
maintained. At national level it is important to guarantee that national mechanisms are
established in order to ensure adequate monitoring and control of the national reception
system. Moreover, the proposal extends the current reporting requirement imposed on

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Member States, in order to include those provisions in relation to which the Commission's
evaluation report underlined a number of deficiencies regarding their implementation.
• Legal basis
This proposal amends Directive 2003/9/EC and uses the same legal base as that act, namely
point (1) (b) of the first subparagraph of Article 63 of the EC Treaty.
Article 1 of the Protocol on the position of the United Kingdom and Ireland, annexed to the
Treaty on European Union and to the Treaty establishing the European Community, states
that Ireland and the UK may ‘opt in’ to measures establishing a Common European Asylum
System.
In accordance with Article 3 of the Protocol on the position of the United Kingdom and
Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European
Community, the United Kingdom gave notice, by letter of 18 August 2001, of its wish to take
part in the adoption and application of the current Directive.
In accordance with Article 1 of the said Protocol, Ireland decided not to participate in the
adoption of the current Directive. Consequently, and without prejudice to Article 4 of the
aforementioned Protocol, the provisions of the current Directive do not apply to Ireland.
The position of the above mentioned Member States with regard to the current directive do
not affect their possible participation with regard to the new directive once it comes into
force.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to
the Treaty on European Union and to the Treaty establishing the European Community,
Denmark is not bound by the directive nor is subject to its application.
• Subsidiarity Principle
Title IV of the EC Treaty ('TEC') on visas, asylum, immigration and other policies related to
free movement of persons confers certain powers on these matters on the European
Community. These powers must be exercised in accordance with Article 5 TEC, 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 Community.
The current legal base for Community action in the area of reception of asylum seekers is
established in Article 63(1) TEC. This provision states that the Council is to adopt “measures
on asylum, in accordance with the Geneva Convention relating to the Status of Refugees of 28
July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other
relevant treaties” in areas such as minimum standards on the reception of asylum seekers in
Member States.
Due to the transnational nature of the problems related to asylum and refugee protection, the
EU is well placed to propose solutions in the framework of the Common European Asylum
System (CEAS) in particular with regard to issues concerning the reception of asylum
seekers. Although an important level of harmonization was reached by the adoption of the
directive in 2003 there is still room for EU action in view of ensuring higher and more
harmonised standards of treatment in relation to the reception of asylum seekers.

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• Proportionality Principle
The impact assessment on the amendment of the Reception Conditions Directive assessed
each option to the problems identified so as to represent an ideal proportion between practical
value and efforts needed and concluded that opting for EU action does not go beyond what is
necessary to achieve the objective of solving those problems.
• Impact on fundamental rights
This proposal was made subject of an in-depth scrutiny to make sure that its provisions are in
full compatibility with fundamental rights as general principles of Community law, as
provided in the EU Charter of Fundamental Rights, as well as obligations stemming from
international law. As a result, particular emphasis was put on the provisions dealing with
detention and procedural safeguards, treatment of persons with special needs notably minors,
unaccompanied minors and victims of torture, and access to material reception conditions.
Ensuring higher and more equal standards of reception will have an overall strong positive
impact for asylum seekers from a fundamental rights point of view. In particular, the right to
liberty and freedom of movement will be reinforced by underlining that a person shall not be
detained for the sole reason that he/she has registered an application for international
protection; similarly, the proposal also provides that detention should only be allowed in
exceptional cases prescribed under the Directive and only if it is in line with the principles of
necessity and proportionality.
The rights of minors will be better reflected in the text by ensuring that they cannot be
detained unless it is in their best interest, whereas detention of unaccompanied minors is
prohibited in all cases. Moreover, the specific situations of vulnerable groups will be more
adequately addressed by ensuring that their needs are timely identified and access to
appropriate treatment is available. Facilitating access to the labour market could assist asylum
seekers in becoming more self-sufficient and will facilitate their integration to the hosting
Member State. Furthermore, the principle of non-discrimination will be reinforced by the
imposition of the obligation on Member States to ensure that asylum seekers are not
unjustifiably treated in comparison to nationals concerning the level of material reception
conditions to be provided under the Directive. Finally, the imposition of a reporting
requirement on essential provisions of the Directive linked with fundamental rights principles
will ensure better monitoring of their implementation at Community level. In this respect it
should be underlined that Member States are obliged to implement and apply the provisions
of
this
Directive
in
line
with
Fundamental
Rights.

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2003/9/EC
2008/xxxx (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
laying down minimum standards for the reception of asylum seekers

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular point (1)
(b) of the first subparagraph of Article 63 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee13,
Having regard to the opinion of the Committee of the Regions14,
Acting in accordance with the procedure laid down in Article 251 of the Treaty15,
Whereas:

new
(1)

A number of substantive changes are to be made to Council Directive 2003/9/EC of 27
January 2003 laying down minimum standards for the reception of asylum seekers16.
In the interests of clarity, that Directive should be recast.

2003/9/EC recital 1
(2)

A common policy on asylum, including a Common European Asylum System, is a
constituent part of the European Union's objective of progressively establishing an
area of freedom, security and justice open to those who, forced by circumstances,
legitimately seek protection in the Community.

13

OJ C […], […], p. […].
OJ C […], […], p. […].
OJ C […], […], p. […].
OJ L 31, 6.2.2003, p. 18.

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15
16

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2003/9/EC recital 2
(3)

At its special meeting in Tampere on 15 and 16 October 1999, the European Council
agreed to work towards establishing a Common European Asylum System, based on
the full and inclusive application of the Geneva Convention relating to the Status of
Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January
1967, thus maintaining the principle of non-refoulement.

2003/9/EC recital 3
(4)

The Tampere Conclusions provide that a Common European Asylum System should
include, in the short term, common minimum conditions of reception of asylum
seekers.

2003/9/EC recital 4
(5)

The establishment of minimum standards for the reception of asylum seekers is a
further step towards a European asylum policy.

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EN

(6)

The first phase in the creation of a Common European Asylum System that should
lead, in the longer term, to a common procedure and a uniform status, valid throughout
the Union, for those granted asylum, has now been achieved. The European Council of
4 November 2004 adopted The Hague Programme which sets the objectives to be
implemented in the area of freedom, security and justice in the period 2005-2010. In
this respect The Hague Programme invited the European Commission to conclude the
evaluation of the first phase legal instruments and to submit the second-phase
instruments and measures to the Council and the European Parliament with a view to
their adoption before 2010.

(7)

In the light of the results of the evaluations undertaken, it is appropriate, at this stage,
to confirm the principles underlying Directive 2003/9/EC with a view to ensuring
improved reception conditions for asylum seekers.

(8)

In order to ensure equal treatment of asylum seekers throughout the Union, this
Directive should apply during all stages and types of procedures concerning
applications for international protection and in all locations and facilities hosting
asylum seekers.

(9)

Member States should seek to ensure full compliance with the principles of the best
interests of the child and the importance of family unity, in the application of this
Directive, in line with the 1989 United Nations Convention on the Rights of the Child
and the European Convention for the Protection of Human Rights and Fundamental
Freedoms respectively.

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2003/9/EC recital 6
(10)

With respect to the treatment of persons falling within the scope of this Directive,
Member States are bound by obligations under instruments of international law to
which they are party and which prohibit discrimination.

2003/9/EC recital 7
new
(11)

Minimum standards for the reception of asylum seekers that will normally suffice to
ensure them a dignified standard of living and comparable living conditions in all
Member States taking into consideration the level of social assistance available for
nationals in the hosting Member State, should be laid down,.

2003/9/EC recital 8
(12)

The harmonisation of conditions for the reception of asylum seekers should help to
limit the secondary movements of asylum seekers influenced by the variety of
conditions for their reception.

new
(13)

In view of ensuring equal treatment amongst all applicants for international protection
as well as in order to guarantee consistency with current EU asylum acquis, in
particular with Council Directive 2004/83/EC of 29 April 2004 on minimum standards
for the qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the content of
the protection granted17, it is appropriate to extend the scope of this Directive in order
to include applicants for subsidiary protection.

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(14)

In order to promote asylum-seekers' self-sufficiency and to limit wide discrepancies
between Member States, it is essential to provide clear rules on the access of asylum
seekers to the labour market.

17

OJ L 304, 30.9.2004, p. 12.

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2003/9/EC recital 9 (adapted)
new
(15)

The immediate identification and monitoring of persons Reception of groups with
special needs should be should be a primary concern of national authorities in order
to ensure that their reception is  specifically designed to meet those ⌦ their
special ⌫ needs.

new
(16)

Detention of asylum seekers should be applied in line with the underlying principle
that a person should not be held in detention for the sole reason that he/she is seeking
international protection, notably in accordance with Article 31 of the Geneva
Convention relating to the Status of Refugees of 28 July 1951. In particular Member
States should not impose penalties on asylum seekers on account of illegal entry or
presence and any restrictions to movement should be necessary. In this respect,
detention of asylum seekers should only be possible under very clearly defined
exceptional circumstances laid down in this Directive and subject to the principle of
necessity and proportionality with regard both to the manner and to the purpose of
such detention.Where an asylum seeker is held in detention he/she should have a right
to a judicial remedy before national court.

2003/9/EC recital 10 (adapted)
new
(17)

Reception of applicants ⌦ Applicants ⌫ who are in detention
should be treated
with full respect of human dignity and their reception  should be specifically
designed to meet their needs in that situation.
In particular, Member States should
ensure that Article 37 of the 1989 UN Convention on the Rights of the Child is
applied.

2003/9/EC recital 11
(18)

In order to ensure compliance with the minimum procedural guarantees consisting in
the opportunity to contact organisations or groups of persons that provide legal
assistance, information should be provided on such organisations and groups of
persons.

2003/9/EC recital 12 (adapted)
new
(19)

EN

The possibility of abuse of the reception system should be restricted by laying down
cases ⌦ specifying the circumstances in which ⌫ for the reduction or withdrawal of

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reception conditions for asylum seekers ⌦ may be reduced or such reception
withdrawn ⌫ while at the same time ensuring a dignified standard of living for all
asylum seekers.

2003/9/EC recital 13
(20)

The efficiency of national reception systems and cooperation among Member States in
the field of reception of asylum seekers should be secured.

2003/9/EC recital 14
(21)

Appropriate coordination should be encouraged between the competent authorities as
regards the reception of asylum seekers, and harmonious relationships between local
communities and accommodation centres should therefore be promoted.

2003/9/EC recital 15
(22)

It is in the very nature of minimum standards that Member States have the power to
introduce or maintain more favourable provisions for third-country nationals and
stateless persons who ask for international protection from a Member State.

2003/9/EC recital 16
new
(23)

In this spirit, Member States are also invited to apply the provisions of this Directive
in connection with procedures for deciding on applications for forms of protection
other than that emanating from the Geneva Convention for third country nationals and
stateless persons Directive 2004/83/EC.

2003/9/EC recital 17
(24)

The implementation of this Directive should be evaluated at regular intervals.

2003/9/EC recital 18
(25)

EN

Since the objectives of the proposed action, namely to establish minimum standards on
the reception of asylum seekers in Member States, cannot be sufficiently achieved by
the Member States and can therefore, by reason of the scale and effects of the
proposed action, be better achieved by the Community, the Community may adopt
measures in accordance with the principles of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality, as set out in that Article,

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this Directive does not go beyond what is necessary in order to achieve those
objectives.

2003/9/EC recital 19 (adapted)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and
Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European
Community, the United Kingdom gave notice, by letter of 18 August 2001, of its wish to take
part in the adoption and application of this Directive.

2003/9/EC recital 20 (adapted)
In accordance with Article 1 of the said Protocol Ireland, is not participating in the adoption
of this Directive. Consequently, and without prejudice to Article 4 of the aforementioned
Protocol, the provisions of this Directive do not apply to Ireland.

2003/9/EC recital 21 (adapted)
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to
the Treaty on European Union and to the Treaty establishing the European Community,
Denmark is not participating in the adoption of this Directive and is therefore neither bound
by it nor subject to its application.

2003/9/EC recital 5
new
(26)

This Directive respects the fundamental rights and observes the principles recognised
in particular by the Charter of Fundamental Rights of the European Union. In
particular, this Directive seeks to ensure full respect for human dignity and to promote
the application of Articles 1 , 6, 7,  and 18 , 24 and 47  of the said Charter
and has to be implemented accordingly.

new

EN

(27)

The obligation to transpose this Directive into national law should be confined to those
provisions which represent a substantive change as compared with the earlier
Directive. The obligation to transpose the provisions which are unchanged arises under
the earlier Directive.

(28)

This Directive should be without prejudice to the obligations of the Member States
relating to the time-limit for transposition into national law of the Directive set out in
Annex II, Part B,

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2003/9/EC
HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I
PURPOSE, DEFINITIONS AND SCOPE
Article 1
Purpose
The purpose of this Directive is to lay down minimum standards for the reception of asylum
seekers in Member States.
Article 2
Definitions
For the purposes of this Directive:
(a)

"Geneva Convention" shall mean the Convention of 28 July 1951 relating to the
status of refugees, as amended by the New York Protocol of 31 January 1967;

(b)

"application for asylum" shall mean the application made by a third-country national
or a stateless person which can be understood as a request for international protection
from a Member State, under the Geneva Convention. Any application for
international protection is presumed to be an application for asylum unless a thirdcountry national or a stateless person explicitly requests another kind of protection
that can be applied for separately;

new
(a)

"application for international protection" means an application for international
protection as defined in Directive 2004/83/EC;

2003/9/EC
new

EN

(b)(c)

"applicant" or "asylum seeker" shall means a third country national or a stateless
person who has made an application for asylum international protection in
respect of which a final decision has not yet been taken;

(c)(d)

"family members" shall means, in so far as the family already existed in the country
of origin, the following members of the applicant's family who are present in the
same Member State in relation to the application for asylum international
protection :

15

EN

(i)

the spouse of the asylum seeker or his or her unmarried partner in a stable
relationship, where the legislation or practice of the Member State concerned
treats unmarried couples in a way comparable to married couples under its law
relating to aliens;

(ii)

the minor children of the couples referred to in point (i) or of the applicant, on
condition that they are unmarried and dependent and regardless of whether
they were born in or out of wedlock or adopted as defined under the national
law;

new
(iii) the married minor children of couples referred to in point (i) or of the
applicant, regardless of whether they were born in or out of wedlock or adopted
as defined under the national law, where it is in their best interests to reside
with the applicant;
(iv) the father, mother or guardian of the applicant, when the latter is a minor and
unmarried, or when he/she is a minor and married but it is in his/her best
interests to reside with his/her father, mother or guardian;
(v)

the minor unmarried siblings of the applicant, when the latter is a minor and
unmarried, or when the applicant or his/her siblings are minors and married but
it is in the best interests of one or more of them that they reside together;

2003/9/EC
(e)"refugee" shall mean a person who fulfils the requirements of Article 1(A) of the Geneva
Convention;
(f)"refugee status" shall mean the status granted by a Member State to a person who is a
refugee and is admitted as such to the territory of that Member State;
(d)(g)

"procedures" and "appeals", shall means the procedures and appeals established by
Member States in their national law;

new
(e)

"minor" means a third-country national or stateless person below the age of 18 years;

2003/9/EC (adapted)
new
(f)(h)

EN

"unaccompanied minors" shall means persons below the age of eighteen
a
minor  who arrives in the territory of the Member States unaccompanied by an

16

EN

adult responsible for them him/her whether by law or by custom, and for as long as
they are he/she is not effectively taken into the care of such a person; it shall includes
a minors who is are left unaccompanied after they he/she has have entered the
territory of Member States;
(g)(i)

"reception conditions" shall means the full set of measures that Member States grant
to asylum seeker in accordance with this Directive;

(h)(j)

"material reception conditions" shall means the reception conditions that include
housing, food and clothing provided in kind, or as financial allowances or in
vouchers, or a combination of the three , and a daily expenses allowance;

(i)(k)

"detention" shall means confinement of an asylum seeker by a Member State within
a particular place, where the applicant is deprived of his or her freedom of
movement;

(j)(l)

"accommodation centre" shall means any place used for collective housing of asylum
seekers.
Article 3
Scope

1.

This Directive shall apply to all third country nationals and stateless persons who
make an application for asylum international protection at the border, or in the
territory, ⌦ including at the border ⌫
or in the transit zones,  of a Member
State, as long as they are allowed to remain on the territory as asylum seekers, as
well as to family members, if they are covered by such application for
asylum international protection  according to the national law.

2.

This Directive shall not apply in cases of requests for diplomatic or territorial asylum
submitted to representations of Member States.

3.

This Directive shall not apply when the provisions of Council Directive 2001/55/EC
of 20 July 2001 on minimum standards for giving temporary protection in the event
of a mass influx of displaced persons and on measures promoting a balance of efforts
between Member States in receiving such persons and bearing the consequences
thereof18 are applied.

2003/9/EC
new
4.

18

EN

Member States may decide to apply this Directive in connection with procedures for
deciding on applications for kinds of protection other than that emanating from the
Geneva Convention for third-country nationals or stateless persons who are found
not to be refugees Directive 2004/83/EC. 

OJ L 212, 7.8.2001, p. 12

17

EN

2003/9/EC
new
Article 4
More favourable provisions
Member States may introduce or retain more favourable provisions in the field of
reception conditions for asylum seekers and other close relatives of the applicant
who are present in the same Member State when they are dependent on him or for
humanitarian reasons insofar as these provisions are compatible with this Directive.

CHAPTER II
GENERAL PROVISIONS ON RECEPTION CONDITIONS
Article 5
Information
1.

Member States shall inform asylum seekers, within a reasonable time not exceeding
fifteen days after they have lodged their application for asylum international
protection  with the competent authority, of at least any established benefits and of
the obligations with which they must comply relating to reception conditions.
Member States shall ensure that applicants are provided with information on
organisations or groups of persons that provide specific legal assistance and
organisations that might be able to help or inform them concerning the available
reception conditions, including health care.

2003/9/EC (adapted)
new
2.

Member States shall ensure that the information referred to in paragraph 1 is in
writing and, as far as possible, in a language that the applicants may
⌦ are ⌫ reasonably be supposed to understand. Where appropriate, this
information may also be supplied orally.

2003/9/EC
Article 6
Documentation
1.

EN

Member States shall ensure that, within three days after an application is lodged with
the competent authority, the applicant is provided with a document issued in his or
her own name certifying his or her status as an asylum seeker or testifying that he or

18

EN

she is allowed to stay in the territory of the Member State while his or her application
is pending or being examined.

new
The holder of the document shall be granted access to the rights and benefits
conferred on asylum seekers under this Directive.

2003/9/EC
new
If the holder is not free to move within all or a part of the territory of the Member
State, the document shall also certify this fact.
2.

Member States may exclude application of this Article when the asylum seeker is in
detention and during the examination of an application for asylum
international
protection  made at the border or within the context of a procedure to decide on the
right of the applicant legally to enter the territory of a Member State. In specific
cases, during the examination of an application for asylum international
protection , Member States may provide applicants with other evidence equivalent
to the document referred to in paragraph 1.

3.

The document referred to in paragraph 1 need not certify the identity of the asylum
seeker.

4.

Member States shall adopt the necessary measures to provide asylum seekers with
the document referred to in paragraph 1, which must be valid for as long as they are
authorised to remain in the territory of the Member State concerned or at the border
thereof.

5.

Member States may provide asylum seekers with a travel document when serious
humanitarian reasons arise that require their presence in another State.
Article 7
Residence and freedom of movement

1.

Asylum seekers may move freely within the territory of the host Member State or
within an area assigned to them by that Member State. The assigned area shall not
affect the unalienable sphere of private life and shall allow sufficient scope for
guaranteeing access to all benefits under this Directive.

2.

Member States may decide on the residence of the asylum seeker for reasons of
public interest, public order or, when necessary, for the swift processing and
effective monitoring of his or her application.
3. When it proves necessary, for example for legal reasons or reasons of public order,
Member States may confine an applicant to a particular place in accordance with
their national law.

EN

19

EN

43.

Member States may make provision of the material reception conditions subject to
actual residence by the applicants in a specific place, to be determined by the
Member States. Such a decision, which may be of a general nature, shall be taken
individually and established by national legislation.

54.

Member States shall provide for the possibility of granting applicants temporary
permission to leave the place of residence mentioned in paragraphs 2 and 43 and/or
the assigned area mentioned in paragraph 1. Decisions shall be taken individually,
objectively and impartially and reasons shall be given if they are negative.
The applicant shall not require permission to keep appointments with authorities and
courts if his or her appearance is necessary.

65.

Member States shall require applicants to inform the competent authorities of their
current address and notify any change of address to such authorities as soon as
possible.

new
Article 8
Detention
1.

Member States shall not hold a person in detention for the sole reason that he/she is
an applicant for international protection in accordance with Council Directive
2005/85/EC.19

2.

When it proves necessary and on the basis of an individual assessment of each case,
Member States may detain an applicant to a particular place in accordance with
national legislation, if other less coercive measures cannot be applied effectively. An
applicant may only be detained to a particular place:
(a)

in order to determine, ascertain or verify his identity or nationality;

(b)

in order to determine the elements on which his application for asylum
is based which in other circumstances could be lost;

(c)

in the context of a procedure, to decide on his right to enter the
territory;

(d)

when protection of national security and public order so requires.

This paragraph is without prejudice to Article 11.
3.

19

EN

Member States shall ensure that rules dealing with alternatives to detention, such as
regular reporting to the authorities, the deposit of a financial guarantee, or an
obligation to stay at a designated place, are laid down in national legislation.

OJ L 326, 13.12.2005, p.13

20

EN

Article 9
Guarantees for detained asylum seekers
1.

Detention shall be ordered for the shortest period possible. In particular detention
pursuant to Article 8 (2) (a), (b) and (c) shall not exceed the time reasonably needed
to fulfil the administrative procedures required in order to obtain information on the
asylum seeker's nationality or on the elements on which his application is based or to
carry out the relevant procedure with a view to deciding on his/her right to enter the
territory.
Delays in the administrative procedure that cannot be attributed to the asylum seeker
shall not justify a continuation of detention.

2.

Detention shall be ordered by judicial authorities. In urgent cases it may be ordered
by administrative authorities, in which case the detention order shall be confirmed by
judicial authorities within 72 hours from the beginning of the detention. Where the
judicial authority finds detention to be unlawful, or if there is no decision within 72
hours, the asylum seeker concerned shall be released immediately.

3.

Detention shall be ordered in writing. The detention order shall state the reasons in
fact and in law on which it is based and shall specify the maximum period of
detention.

4.

Detained asylum seekers shall immediately be informed of the reasons for detention,
the maximum duration of the detention and the procedures laid down in national law
for challenging the detention order, in a language they are reasonably supposed to
understand.

5.

The continued detention shall be reviewed by a judicial authority at reasonable
intervals of time either on request by the asylum seeker concerned or ex officio.
Detention shall never be unduly prolonged.

6.

Member States shall ensure access to legal assistance and/or representation in cases
of detention that shall be free of charge where the asylum seeker cannot afford the
costs involved.
Procedures for access to legal assistance and/or representation in such cases shall be
laid down in national law.
Article 10
Conditions of detention

1.

Member States shall not detain asylum seekers in prison accommodation. Detention
shall only be carried out in specialised detention facilities.
Asylum seekers in detention shall be kept separately from other third country
nationals who have not lodged an application for international protection unless it is
necessary to ensure family unity and the applicant consents thereto.

EN

21

EN

2.

Member States shall ensure that asylum seekers in detention have the opportunity to
establish contact, including visitation rights, with legal representatives and family
members. UNHCR and other relevant and competent national, international and nongovernmental organisations and bodies shall also have the opportunity to
communicate with and to visit applicants in detention areas.

3.

Member States shall ensure that asylum seekers in detention are immediately
provided with updated information on the rules which apply in the facility and set out
their rights and obligations in a language they are reasonably supposed to understand.
Article 11
Detention of vulnerable groups and persons with special needs

1.

Minors shall not be detained unless it is in their best interest, as prescribed in Article
22(2) and only after taking into consideration the findings of the individual
examination of their situation in accordance with paragraph 5 of Article 11.
Unaccompanied minors shall never be detained.

2.

Where minors are detained they shall have the possibility to engage in leisureactivities, including play and recreational activities appropriate to their age.

3.

Detained families shall be provided with separate accommodation guaranteeing
adequate privacy.

4.

Where female asylum seekers are detained Member States shall ensure that they are
accommodated separately from male asylum seekers, unless these are family
members and all concerned individuals consent thereto.

5.

Persons with special needs shall not be detained unless an individual examination of
their situation by a qualified professional certifies that their health, including their
mental health, and well-being, will not significantly deteriorate as a result of the
detention.
Where persons with special needs are detained Member States shall ensure regular
monitoring and adequate support.

2003/9/EC
new
Article 812
Families
Member States shall take appropriate measures to maintain as far as possible family
unity as present within their territory, if applicants are provided with housing by the
Member State concerned. Such measures shall be implemented with the asylum
seeker's agreement.

EN

22

EN

Article 913
Medical screening
Member States may require medical screening for applicants on public health
grounds.
Article 1014
Schooling and education of minors
1.

Member States shall grant to minor children of asylum seekers and to asylum seekers
who are minors access to the education system under similar conditions as nationals
of the host Member State for so long as an expulsion measure against them or their
parents is not actually enforced. Such education may be provided in accommodation
centres.
The Member State concerned may stipulate that such access must be confined to the
State education system.
Minors shall be younger than the age of legal majority in the Member State in which
the application for asylum was lodged or is being examined. Member States shall not
withdraw secondary education for the sole reason that the minor has reached the age
of majority.

2.

Access to the education system shall not be postponed for more than three months
from the date the application for asylum international protection  was lodged by
the minor or the minor's parents. This period may be extended to one year where
specific education is provided in order to facilitate access to the education system.

new
Preparatory classes, including language classes, aimed at facilitating the access of
minors to the national education system, and/or specific education designed to assist
their integration into that system, shall be provided where necessary.

2003/9/EC
new
3.

EN

Where access to the education system as set out in paragraph 1 is not possible due to
the specific situation of the minor, the Member State
shall  may offer other
education arrangements in accordance with national law and practices .

23

EN

Article 1115
Employment
1.Member States shall determine a period of time, starting from the date on which an
application for asylum was lodged during which an applicant shall not have access to
the labour market.

new
1.

Member States shall ensure that applicants have access to the labour market no later
than 6 months following the date when the application for international protection
was lodged.

2003/9/EC
new
2.

If a decision at first instance has not been taken within one year of the presentation of
an application for asylum and this delay cannot be attributed to the applicant,
Member States shall decide the conditions for granting access to the labour market
for the applicant,
in accordance with their national legislation, without unduly
restricting asylum seekers' access to the labour market. 

3.

Access to the labour market shall not be withdrawn during appeals procedures, where
an appeal against a negative decision in a regular procedure has suspensive effect,
until such time as a negative decision on the appeal is notified.
Article 1216
Vocational training
Member States may allow asylum seekers access to vocational training irrespective
of whether they have access to the labour market.
Access to vocational training relating to an employment contract shall depend on the
extent to which the applicant has access to the labour market in accordance with
Article 1115.
Article 1317
General rules on material reception conditions and health care

1.

EN

Member States shall ensure that material reception conditions are available to
applicants when they make their application for asylum international protection 

24

EN

2003/9/EC (adapted)
new
2.

Member States shall ⌦ ensure that ⌫ make provisions on material reception
conditions to ensure a ⌦ provide an adequate ⌫ standard of living ⌦ for
applicants for international protection, which guarantees their subsistence and
protects their physical and mental health ⌫ adequate for the health of applicants and
capable of ensuring their subsistence.

2003/9/EC
Member States shall ensure that that standard of living is met in the specific situation
of persons who have special needs, in accordance with Article 1721, as well as in
relation to the situation of persons who are in detention.
3.

Member States may make the provision of all or some of the material reception
conditions and health care subject to the condition that applicants do not have
sufficient means to have a standard of living adequate for their health and to enable
their subsistence.

4.

Member States may require applicants to cover or contribute to the cost of the
material reception conditions and of the health care provided for in this Directive,
pursuant to the provision of paragraph 3, if the applicants have sufficient resources,
for example if they have been working for a reasonable period of time.
If it transpires that an applicant had sufficient means to cover material reception
conditions and health care at the time when these basic needs were being covered,
Member States may ask the asylum seeker for a refund.
5. Material reception conditions may be provided in kind, or in the form of financial
allowances or vouchers or in a combination of these provisions
Where Member States provide material reception conditions in the form of financial
allowances or vouchers, the amount thereof shall be determined in accordance with
the principles set out in this Article.

new
5.

EN

In calculating the amount of assistance to be granted to asylum seekers Member
States shall ensure that the total value of material reception conditions to be made
available to asylum seekers is equivalent to the amount of social assistance granted to
nationals requiring such assistance. Any differences in this respect shall be duly
justified.

25

EN

2003/9/EC
new
Article 1418
Modalities for material reception conditions
1.

2.

Where housing is provided in kind, it should take one or a combination of the
following forms:
(a)

premises used for the purpose of housing applicants during the
examination of an application for asylum
international
protection  lodged at the border;

(b)

accommodation centres which guarantee an adequate standard of
living;

(c)

private houses, flats, hotels or other premises adapted for housing
applicants.

Member States shall ensure that applicants provided with the housing referred to in
paragraph 1(a), (b) and (c) are assured:
(a)

protection of their family life;

(b)

the possibility of communicating with relatives, legal advisers and
representatives of the United Nations High Commissioner for
Refugees (UNHCR) and non governmental organisations (NGOs)
recognised by Member States.

new
Member States shall take into consideration gender and age specific concerns and the
situation of persons with special needs in relation to applicants within the premises
and accommodation centers referred to in paragraph 1(a) and (b).

2003/9/EC (adapted)
new
Member States shall ⌦ take appropriate measures to prevent ⌫ pay particular
attention to the prevention of assault
and gender based violence including sexual
assault,  within the premises and accommodation centres referred to in paragraph
1(a) and (b).

EN

26

EN

2003/9/EC
new
3.

Member States shall ensure, if appropriate, that minor children of applicants or
applicants who are minors are lodged with their parents or with the adult family
member responsible for them whether by law or by custom provided this is in the
best interests of the minors concerned .

4.

Member States shall ensure that transfers of applicants from one housing facility to
another take place only when necessary. Member States shall provide for the
possibility for applicants to inform their legal advisers of the transfer and of their
new address.

5.

Persons working in accommodation centres shall be adequately trained and shall be
bound by the confidentiality principle as defined in the national law in relation to any
information they obtain in the course of their work.

6.

Member States may involve applicants in managing the material resources and nonmaterial aspects of life in the centre through an advisory board or council
representing residents.

7.

Legal advisors or counsellors of asylum seekers and representatives of the United
Nations High Commissioner for Refugees or non-governmental organisations
designated by the latter and recognised by the Member State concerned shall be
granted access to accommodation centres and other housing facilities in order to
assist the said asylum seekers. Limits on such access may be imposed only on
grounds relating to the security of the centres and facilities and of the asylum
seekers.

8.

In duly justified cases,  Member States may exceptionally set modalities for
material reception conditions different from those provided for in this Article, for a
reasonable period which shall be as short as possible, when:
(a)

-an initial assessment of the specific needs of the applicant is required,

- material reception conditions, as provided for in this Article, are not available in a certain
geographical area,
(b)

-housing capacities normally available are temporarily exhausted,

(c)

-the asylum seeker is in detention or confined to border posts.

These different conditions shall cover in any case basic needs.
Article 1519
Health care
1.

EN

Member States shall ensure that applicants receive the necessary health care which
shall include, at least, emergency care and essential treatment of illness or mental
disorders .

27

EN

2.

Member States shall provide necessary medical or other assistance to applicants who
have special needs, including appropriate mental health care when needed, under
the same conditions as nationals .

2003/9/EC (adapted)

CHAPTER III
REDUCTION OR WITHDRAWAL OF ⌦ MATERIAL ⌫
RECEPTION CONDITIONS
Article 16 20
Reduction or withdrawal of ⌦ material ⌫ reception conditions
1.

Member States may reduce or withdraw ⌦ material ⌫ reception conditions in the
following cases:
(a)where an asylum seeker:

2003/9/EC
(a)

-abandons the place of residence determined by the competent authority
without informing it or, if requested, without permission, or

(b)

-does not comply with reporting duties or with requests to provide
information or to appear for personal interviews concerning the asylum
procedure during a reasonable period laid down in national law, or

(c)

-has already lodged an application in the same Member State.

2003/9/EC (adapted)
new
When the applicant is traced or voluntarily reports to the competent authority, a duly
motivated decision, based on the reasons for the disappearance, shall be taken on the
reinstallation of the grant of some or all of the ⌦ material ⌫ reception conditions
⌦ reduced ⌫ ;
(b) where an applicant has concealed financial resources and has therefore unduly
benefited from material reception conditions.

EN

28

EN

new
2.

Member States may reduce or withdraw material reception conditions where an
applicant has concealed financial resources, and has therefore unduly benefited from
material reception conditions.

2003/9/EC
If it transpires that an applicant had sufficient means to cover material reception
conditions and health care at the time when these basic needs were being covered,
Member States may ask the asylum seeker for a refund.
2. Member States may refuse conditions in cases where an asylum seeker has failed
to demonstrate that the asylum claim was made as soon as reasonably practicable
after arrival in that Member State.

2003/9/EC
3.

Member States may determine sanctions applicable to serious breaching of the rules
of the accommodation centres as well as to seriously violent behaviour.

2003/9/EC (adapted)
new
4.

Decisions for reduction, ⌦ or ⌫ withdrawal or refusal of ⌦ material ⌫ reception
conditions or sanctions referred to in paragraphs 1, 2 and 3 shall be taken
individually, objectively and impartially and reasons shall be given. Decisions shall
be based on the particular situation of the person concerned, especially with regard to
persons covered by Article 1721, taking into account the principle of proportionality.
Member States shall under all circumstances ensure
subsistence,  access to
emergency health care and essential treatment of illness or mental disorder .

2003/9/EC
5.

EN

Member States shall ensure that material reception conditions are not withdrawn or
reduced before a negative decision is taken.

29

EN

CHAPTER IV
PROVISIONS FOR PERSONS WITH SPECIAL NEEDS

2003/9/EC (adapted)
new
Article 1721
General principle
1.

Member States shall take into account the specific situation of
persons with
special needs in the national legislation implementing this Directive.  Vvulnerable
persons such as minors, unaccompanied minors, disabled people, elderly people,
pregnant women, single parents with minor children , victims of trafficking,
persons with mental health problems  and persons who have been subjected to
torture, rape or other serious forms of psychological, physical or sexual violence,
shall always be considered as persons with special needs . in the national
legislation implementing the provisions of Chapter II relating to material reception
conditions and health care

new
2.

Member States shall establish procedures in national legislation with a view to
identifying, as soon as an application for international protection is lodged, whether
the applicant has special needs and indicating the nature of such needs. Member
States shall ensure support for persons with special needs throughout the asylum
procedure and shall provide for appropriate monitoring of their situation.

2003/9/EC
new
2.Paragraph 1 shall apply only to persons found to have special needs after an
individual evaluation of their situation.
Article 1822
Minors
1.

EN

The best interests of the child shall be a primary consideration for Member States
when implementing the provisions of this Directive that involve minors. Member
States shall ensure a standard of living adequate for the child's physical, mental,
spiritual, moral and social development. 

30

EN

new
2.

3.

In assessing the best interests of the child, Member States shall in particular take due
account of the following factors:
(a)

family reunification possibilities;

(b)

the minor’s well-being and social development, taking into particular
consideration the minor’s ethnic, religious, cultural and linguistic
background;

(c)

safety and security considerations, in particular where there is a risk of
the child being a victim of trafficking;

(d)

the views of the minor in accordance with his/her age and maturity.

Member States shall ensure that minors have access to leisure-activities, including
play and recreational activities appropriate to their age within the premises and
accommodation centres referred to in Article 18 1(a) and (b).

2003/9/EC
new
42

Member States shall ensure access to rehabilitation services for minors who have
been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman
and degrading treatment, or who have suffered from armed conflicts, and ensure that
appropriate mental health care is developed and qualified counselling is provided
when needed.
Article 1923
Unaccompanied minors

EN

1.

Member States shall as soon as possible take measures to ensure the necessary
representation of unaccompanied minors by legal guardianship or, where necessary,
representation by an organisation which is responsible for the care and well-being of
minors, or by any other appropriate representation. Regular assessments shall be
made by the appropriate authorities.

2.

Unaccompanied minors who make an application for asylum international
protection shall, from the moment they are admitted to the territory to the moment
they are obliged to leave the host Member State in which the application for asylum
international protection  was made or is being examined, be placed:
(a)

with adult relatives;

(b)

with a foster-family;

(c)

in accommodation centres with special provisions for minors;

31

EN

(d)

in other accommodation suitable for minors.

Member States may place unaccompanied minors aged 16 or over in accommodation
centres for adult asylum seekers.
As far as possible, siblings shall be kept together, taking into account the best
interests of the minor concerned and, in particular, his or her age and degree of
maturity. Changes of residence of unaccompanied minors shall be limited to a
minimum.

2003/9/EC (adapted)
new
3.

Member States shall establish procedures in national legislation for tracing the
family members of unaccompanied minor.  They Member States protecting the
unaccompanied minor's best interest shall endeavour start  to trace the members
of his or her ⌦ the unaccompanied minor's ⌫ family as soon as possible after an
application for international protection is lodged whilst protecting his/her best
interest . In cases where there may be a threat to the life or integrity of the minor or
his or her close relatives, particularly if they have remained in the country of origin,
care must be taken to ensure that the collection, processing and circulation of
information concerning those persons is undertaken on a confidential basis, so as to
avoid jeopardizing their safety.

2003/9/EC
new
4.

Those working with unaccompanied minors shall have had and continue to  or
receive appropriate training concerning their needs, and shall be bound by the
confidentiality principle as defined in the national law, in relation to any information
they obtain in the course of their work.
Article 2024
Victims of torture and violence

1.

Member States shall ensure that, if necessary, persons who have been subjected to
torture, rape or other serious acts of violence receive the necessary treatment of
damages caused by the aforementioned acts , in particular access to rehabilitation
services that should allow for obtaining medical and psychological treatment .

new
2.

EN

Those working with victims of torture shall have had and continue to receive
appropriate training concerning their needs, and shall be bound by the confidentiality
rules provided for in the relevant national law, in relation to any information they
obtain in the course of their work.

32

EN

2003/9/EC (adapted)
new

CHAPTER V
APPEALS
Article 2125
Appeals
1.

Member States shall ensure that negative decisions relating to the granting,
withdrawal or reduction  of benefits under this Directive or decisions taken
under Article 7 which individually affect asylum seekers may be the subject of an
appeal within the procedures laid down in the national law. At least in the last
instance the possibility of an appeal or a review , in fact and in law,  before a
judicial body, shall be granted.

new
2.

Member States shall ensure access to legal assistance and/or representation in the
cases referred to in paragraph 1. Such legal assistance and/or representation shall be
free of charge where the asylum seeker cannot afford the costs involved.

2003/9/EC
new
2.Procedures for access to legal assistance
shall be laid down in national law.

and/or representation  in such cases

CHAPTER VI
ACTIONS TO IMPROVE THE EFFICIENCY OF THE
RECEPTION SYSTEM
Article 22
Cooperation
Member States shall regularly inform the Commission on the data concerning the
number of persons, broken down by sex and age, covered by reception conditions

EN

33

EN

and provide full information on the type, name and format of the documents
provided for by Article 6.

new
Article 26
Competent authorities
Each Member State shall notify the Commission of the identity of the authorities
responsible for fulfilling the obligations arising under this Directive. Member States
shall inform the Commission of any changes in the identity of such authorities.

2003/9/EC
new
Article 2327
Guidance, monitoring and control system
1.

Member States shall, with due respect to their constitutional structure, put in place
relevant mechanisms in order to  ensure that appropriate guidance, monitoring and
control of the level of reception conditions are established.

new
2.

Member States shall submit relevant information to the Commission in the form set
out in Annex I on a yearly basis, starting from […]:

2003/9/EC
new
Article 2428
Staff and resources

EN

1.

Member States shall take appropriate measures to ensure that authorities and other
organisations implementing this Directive have received the necessary basic training
with respect to the needs of both male and female applicants.

2.

Member States shall allocate the necessary resources in connection with the national
provisions enacted to implement this Directive.

34

EN

CHAPTER VII
FINAL PROVISIONS
Article 2529
Reports
By 6 August 2006
[…] at the latest , the Commission shall report to the
European Parliament and the Council on the application of this Directive and shall
propose any amendments that are necessary.
Member States shall send the Commission all the information that is appropriate for
drawing up the report, including the statistical data provided for by Article 27(2) 22
by 6 February 2006 […] .
After presenting the report, the Commission shall report to the European Parliament
and the Council on the application of this Directive at least every five years.
Article 26 30
Transposition

2003/9/EC (adapted)
1.

Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by 6 February 2005⌦ Articles
[…] [The articles which have been changed as to the substance by comparison with
the earlier Directive] and Annex I by […] at the latest ⌫. They shall forthwith
inform ⌦ communicate to ⌫ the Commission thereof⌦ the text of those
provisions and a correlation table between those provisions and this Directive ⌫.
When the Member States adopt these measures ⌦ those provisions ⌫ , they shall
contain a reference to this Directive or shall be accompanied by such a reference on
the occasion of their official publication. Member States shall determine how such a
reference is to be made. ⌦ They shall also include a statement that references in
existing laws, regulations and administrative provisions to the directive repealed by
this Directive shall be construed as references to this Directive. Member States shall
determine how such reference is to be made and how that statement is to be
formulated. ⌫

2.

EN

Member States shall communicate to the Commission the text of the ⌦ main ⌫
provisions of national law which they adopt in the field relating to the enforcement
of ⌦ covered by ⌫ this Directive.

35

EN

Article 31
Repeal
Directive 2003/9/EC is repealed with effect from [day after the date set out in the first
subparagraph of Article 30(1) of this Directive], without prejudice to the obligations of the
Member States relating to the time-limit for transposition into national law of the Directive set
out in Annex II, Part B.
References to the repealed Directive shall be construed as references to this Directive and
shall be read in accordance with the correlation table in Annex III.

2003/9/EC (adapted)
Article 2732
Entry into force
This Directive shall enter into force on the ⌦ twentieth ⌫ day ⌦ following that ⌫ of its
publication in the Official Journal of the European Union.
⌦ Articles [...] [The articles which are unchanged by comparison with the earlier Directive]
and Annex I shall apply from [day after the date set out in the first subparagraph of Article
30(1)]. ⌫
Article 2833
Addressees
This Directive is addressed to the Member States in accordance with the Treaty establishing
the European Union.
Done at [...]

For the European Parliament
The President
[…]

For the Council
The President
[…]

EN

36

EN

new
ANNEX I
Reporting form on the information to be submitted by Member States on an annual
basis, as required under Article 27(2) of Directive […/…/EC]
1.
Indicate the total number of persons in your Member State currently covered by
reception conditions as stipulated in Article 3(1) of Directive [.../…EC], broken down by sex
and age. For each such person, indicate whether he or she is an applicant for asylum or a
family member as defined in Article 2(c) of Directive […/…/EC].

2.
On the basis of Article 21 of Directive [.../.../EC] please provide statistical data on the
number of asylum seekers with special needs identified divided into the following groups of
persons with special needs:
• unaccompanied minors
• disabled people
• elderly people
• pregnant women
• single parents with minor children
• persons who have been subjected to torture, rape or other serious forms of psychological,
physical or sexual violence
• victims of trafficking
• persons with mental health problems
• other (please explain)

3.
Provide detailed information concerning the documents provided for in Article 6 of
Directive [.../.../EC], including in particular the type, name and format of these documents.

EN

37

EN

4.
With reference to Article 15 Directive [.../.../EC], indicate the total number of
applicants for asylum in your Member State who have access to the labour market, as well as
the total number who are currently employed, broken down by economic sector. To the extent
that any particular conditions are attached to labour market access for asylum seekers,
describe in detail such restrictions.

5.
With reference to Article 17(5) Directive [.../…/EC], describe in detail the nature of
material reception conditions, including their monetary value, and how they are provided (i.e.
which material reception conditions are provided in kind, in money, in vouchers or in a
combination of these elements) and indicate the level of the daily expenses allowance
provided to asylum seekers.

6. With reference to Article 17(5) Directive [.../.../EC], indicate the types and amounts of
social assistance available for asylum seekers; include in your reply points of reference with
the minimum amount of social assistance made available by Member States for nationals
requiring such assistance. To the extent that the social assistance available to asylum seekers
differs from those available to nationals, explain the reasons for these differences.

EN

38

EN

ANNEX II
Part A
Repealed Directive
(referred to in Article 31)
Council Directive 2003/9/EC

(OJ L 31, 6.2.2003, p. 18)
Part B

Time-limit for transposition into national law
(referred to in Article 30)
Directive

Time-limit for transposition

2003/9/EC

6 February 2005
_____________

EN

39

EN

ANNEX III
CORRELATION TABLE
Directive 2003/9/EC

EN

This Directive

Article 1

Article 1

Article 2, introductory words

Article 2, introductory words

Article 2(a) to (c)

Article 2(a) to (c)

Article 2(d) introductory wording and points
(i) and (ii)

Article 2(d) introductory wording and points
(i) and (ii)

-

Article 2(c) points (iii), (iv) and (v)

Article 2 (e) and (f)

-

Article 2 (g)

Article 2 (g)

-

Article 2(h)

Article 2(h)

Article 2(i)

Article 2(i)

Article 2(j)

Article 2(j)

Article 2(k)

Article 2(k)

Article 2(l)

Article 2(l)

Article 2(m)

Article 3

Article 3

Article 4

Article 4

Article 5

Article 5

Article 6 (1) first subparagraph

Article 6 (1) first subparagraph

Article 6 (1) second subparagraph

Article 6 (1) third subparagraph

Article 6 (2) to (5)

Article 6 (2) to 6 (5)

Article 7(1) and (2)

Article 7(1) and (2)

Article 7(3)

-

Article 7(4) to (6)

Article 7(3) to (5)

-

Article 8

40

EN

EN

-

Article 9

-

Article 10

-

Article 11

Article 8

Article 12

Article 9

Article 13

Article 10 (1)

Article 14 (1)

Article 10 (2)

Article 14 (2) first subparagraph

-

Article 14 (2) second subparagraph

Article 10 (3)

Article 14 (3)

Article 11 (1)

-

-

Article 15 (1)

Article 11 (2)

Article 15 (2)

Article 11 (3) and (4)

Article 15 (3) and (4)

Article 12

Article 16

Article 13 (1) to (4)

Article 17 (1) to (4)

Article 13 (5)

-

-

Article 17 (5)

Article 14 (1)

Article 18 (1)

Article 14 (2) introductory wording and first
subparagraph

Article 18 (2) introductory wording and first
subparagraph

-

Article 18 (2) second subparagraph

Article 14 (2) second subparagraph

Article 18 (2) third subparagraph

Article 14 (3) to (7)

Article 18 (3) to (7)

Article 14 (8) introductory wording

Article 18 (8) introductory wording

Article 14 (8) first subparagraph first indent

Article 18 (8) first subparagraph point (a)

Article 14 (8) first subparagraph second
indent

-

Article 14 (8) first subparagraph third and

Article 18 (8) first subparagraph point (b) and

41

EN

fourth intend

(c)

Article 14 (8) second subparagraph

Article 18 (8) second subparagraph

Article 15

Article 19

Article 16 (1) introductory wording

Article 20 (1) introductory wording

Article 16 (1) (a)

-

Article 16 (1) (a) first, second and third
indent

Article 20 (1) point a, b and c

Article 16 (1) (b) first subparagraph

-

-

Article 20 (2) first subparagraph

Article 16 (1) (b) second subparagraph

Article 20 (2) second subparagraph

Article 16 (2)

-

Article 16 (3) to (5)

Article 20 (3) to (5)

Article 17 (1)

Article 21 (1) first subparagraph
Article 21 (1) second subparagraph

EN

Article 17 (2)

-

-

Article 21 (2)

Article 18 (1)

Article 22 (1)

-

Article 22 (2) and (3)

Article 18 (2)

Article 22 (4)

Article 19

Article 23

Article 20

Article 24 (1)

-

Article 24 (2)

Article 21 (1)

Article 25 (1)

-

Article 25 (2) first subparagraph

Article 21 (2)

Article 25 (2) second subparagraph

Article 22

-

-

Article 26

42

EN

EN

Article 23

Article 27 (1)

-

Article 27 (2)

Article 24

Article28

Article 25

Article 29

Article 26

Article 30

-

Article 31

Article 27

Article 32 first subparagraph

-

Article 32 second subparagraph

Article 28

Article 33

–

Annex I

–

Annex II

-

Annex III

43

EN