Definícia
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 78(2)(e) thereof,
Having regard to the proposal from the European Commission,
Having regard to the opinion of the European Economic and
Social Committee
Having regard to the opinion of the Committee of the
Regions,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) A number of substantive changes are to be made to
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 (4). In the interests of clarity,
that Regulation should be recast.
(2) A common policy on asylum, including a Common
European Asylum System (CEAS), 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 Union.
(3) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, agreed to work towards
establishing the CEAS, 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 (‘the
Geneva Convention’), thus ensuring that nobody is sent
back to persecution, i.e. maintaining the principle of nonrefoulement.
In this respect, and without the responsibility
criteria laid down in this Regulation being affected,
Member States, all respecting the principle of nonrefoulement,
are considered as safe countries for thirdcountry
nationals.
(4) The Tampere conclusions also stated that the CEAS
should include, in the short-term, a clear and workable
method for determining the Member State responsible
for the examination of an asylum application.
(5) Such a method should be based on objective, fair criteria
both for the Member States and for the persons
concerned. It should, in particular, make it possible to
determine rapidly the Member State responsible, so as to
guarantee effective access to the procedures for granting
international protection and not to compromise the
objective of the rapid processing of applications for international
protection.
(6) The first phase in the creation of a CEAS that should
lead, in the longer term, to a common procedure and a
uniform status, valid throughout the Union, for those
granted international protection, has now been
completed. The European Council of 4 November
2004 adopted The Hague Programme which set 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 firstphase
legal instruments and to submit the second-phase
instruments and measures to the European Parliament
and to the Council with a view to their adoption
before 2010.
(7) In the Stockholm Programme, the European Council
reiterated its commitment to the objective of establishing
a common area of protection and solidarity in
accordance with Article 78 of the Treaty on the Functioning
of the European Union (TFEU), for those granted
29.6.2013 Official Journal of the European Union L 180/31 EN
(
1) OJ C 317, 23.12.2009, p. 115.
(
2) OJ C 79, 27.3.2010, p. 58.
(
3) Position of the European Parliament of 7 May 2009 (OJ C 212 E,
5.8.2010, p. 370) and position of the Council at first reading of
6 June 2013 (not yet published in the Official Journal). Position of
the European Parliament of 10 June 2013 (not yet published in the
Official Journal).
(
4) OJ L 50, 25.2.2003, p. 1.
international protection, by 2012 at the latest.
Furthermore it emphasised that the Dublin system
remains a cornerstone in building the CEAS, as it
clearly allocates responsibility among Member States for
the examination of applications for international
protection.
(8) The resources of the European Asylum Support Office
(EASO), established by Regulation (EU) No 439/2010 of
the European Parliament and of the Council (1), should
be available to provide adequate support to the relevant
services of the Member States responsible for implementing
this Regulation. In particular, EASO should
provide solidarity measures, such as the Asylum Intervention
Pool with asylum support teams, to assist
those Member States which are faced with particular
pressure and where applicants for international
protection (‘applicants’) cannot benefit from adequate
standards, in particular as regards reception and
protection.
(9) In the light of the results of the evaluations undertaken
of the implementation of the first-phase instruments, it is
appropriate, at this stage, to confirm the principles
underlying Regulation (EC) No 343/2003, while
making the necessary improvements, in the light of
experience, to the effectiveness of the Dublin system
and the protection granted to applicants under that
system. Given that a well-functioning Dublin system is
essential for the CEAS, its principles and functioning
should be reviewed as other components of the CEAS
and Union solidarity tools are built up. A comprehensive
‘fitness check’ should be foreseen by conducting an
evidence-based review covering the legal, economic and
social effects of the Dublin system, including its effects
on fundamental rights.
(10) In order to ensure equal treatment for all applicants and
beneficiaries of international protection, and consistency
with the current Union asylum acquis, in particular with
Directive 2011/95/EU of the European Parliament and of
the Council of 13 December 2011 on standards for the
qualification of third-country nationals or stateless
persons as beneficiaries of international protection, for
a uniform status for refugees or for persons eligible for
subsidiary protection, and for the content of the
protection granted (2), the scope of this Regulation
encompasses applicants for subsidiary protection and
persons eligible for subsidiary protection.
(11) Directive 2013/33/EU of the European Parliament and of
the Council of 26 June 2013 laying down standards for
the reception of applicants for international protection (3)
should apply to the procedure for the determination of
the Member State responsible as regulated under this
Regulation, subject to the limitations in the application
of that Directive.
(12) Directive 2013/32/EU of the European Parliament and of
the Council of 26 June 2013 on common procedures for
granting and withdrawing international protection (4)
should apply in addition and without prejudice to the
provisions concerning the procedural safeguards
regulated under this Regulation, subject to the limitations
in the application of that Directive.
(13) In accordance with the 1989 United Nations Convention
on the Rights of the Child and with the Charter of
Fundamental Rights of the European Union, the best
interests of the child should be a primary consideration
of Member States when applying this Regulation. In
assessing the best interests of the child, Member States
should, in particular, take due account of the minor’s
well-being and social development, safety and security
considerations and the views of the minor in accordance
with his or her age and maturity, including his or her
background. In addition, specific procedural guarantees
for unaccompanied minors should be laid down on
account of their particular vulnerability.
(14) In accordance with the European Convention for the
Protection of Human Rights and Fundamental Freedoms
and with the Charter of Fundamental Rights of the
European Union, respect for family life should be a
primary consideration of Member States when applying
this Regulation.
(15) The processing together of the applications for international
protection of the members of one family by a
single Member State makes it possible to ensure that the
applications are examined thoroughly, the decisions
taken in respect of them are consistent and the
members of one family are not separated.
(16) In order to ensure full respect for the principle of family
unity and for the best interests of the child, the existence
of a relationship of dependency between an applicant
and his or her child, sibling or parent on account of
the applicant’s pregnancy or maternity, state of health
or old age, should become a binding responsibility
criterion. When the applicant is an unaccompanied
minor, the presence of a family member or relative on
the territory of another Member State who can take care
of him or her should also become a binding responsibility
criterion.
L 180/32 Official Journal of the European Union 29.6.2013 EN
(
1) OJ L 132, 29.5.2010, p. 11.
(
2) OJ L 337, 20.12.2011, p. 9.
(
3) See page 96 of this Official Journal. (4) See page 60 of this Official Journal.
(17) Any Member State should be able to derogate from the
responsibility criteria, in particular on humanitarian and
compassionate grounds, in order to bring together family
members, relatives or any other family relations and
examine an application for international protection
lodged with it or with another Member State, even if
such examination is not its responsibility under the
binding criteria laid down in this Regulation.
(18) A personal interview with the applicant should be
organised in order to facilitate the determination of the
Member State responsible for examining an application
for international protection. As soon as the application
for international protection is lodged, the applicant
should be informed of the application of this Regulation
and of the possibility, during the interview, of providing
information regarding the presence of family members,
relatives or any other family relations in the Member
States, in order to facilitate the procedure for determining
the Member State responsible.
(19) In order to guarantee effective protection of the rights of
the persons concerned, legal safeguards and the right to
an effective remedy in respect of decisions regarding
transfers to the Member State responsible should be
established, in accordance, in particular, with Article 47
of the Charter of Fundamental Rights of the European
Union. In order to ensure that international law is
respected, an effective remedy against such decisions
should cover both the examination of the application
of this Regulation and of the legal and factual situation
in the Member State to which the applicant is transferred.
(20) The detention of applicants should be applied in
accordance with the underlying principle that a person
should not be held in detention for the sole reason that
he or she is seeking international protection. Detention
should be for as short a period as possible and subject to
the principles of necessity and proportionality. In
particular, the detention of applicants must be in
accordance with Article 31 of the Geneva Convention.
The procedures provided for under this Regulation in
respect of a detained person should be applied as a
matter of priority, within the shortest possible deadlines.
As regards the general guarantees governing detention, as
well as detention conditions, where appropriate, Member
States should apply the provisions of Directive
2013/33/EU also to persons detained on the basis of
this Regulation.
(21) Deficiencies in, or the collapse of, asylum systems, often
aggravated or contributed to by particular pressures on
them, can jeopardise the smooth functioning of the
system put in place under this Regulation, which could
lead to a risk of a violation of the rights of applicants as
set out in the Union asylum acquis and the Charter of
Fundamental Rights of the European Union, other international
human rights and refugee rights.
(22) A process for early warning, preparedness and
management of asylum crises serving to prevent a
deterioration in, or the collapse of, asylum systems,
with EASO playing a key role using its powers under
Regulation (EU) No 439/2010, should be established in
order to ensure robust cooperation within the framework
of this Regulation and to develop mutual trust among
Member States with respect to asylum policy. Such a
process should ensure that the Union is alerted as soon
as possible when there is a concern that the smooth
functioning of the system set up by this Regulation is
being jeopardised as a result of particular pressure on,
and/or deficiencies in, the asylum systems of one or
more Member States. Such a process would allow the
Union to promote preventive measures at an early
stage and pay the appropriate political attention to
such situations. Solidarity, which is a pivotal element in
the CEAS, goes hand in hand with mutual trust. By
enhancing such trust, the process for early warning,
preparedness and management of asylum crises could
improve the steering of concrete measures of genuine
and practical solidarity towards Member States, in order
to assist the affected Member States in general and the
applicants in particular. In accordance with Article 80
TFEU, Union acts should, whenever necessary, contain
appropriate measures to give effect to the principle of
solidarity, and the process should be accompanied by
such measures. The conclusions on a Common
Framework for genuine and practical solidarity towards
Member States facing particular pressures on their asylum
systems, including through mixed migration flows,
adopted by the Council on 8 March 2012, provide for
a ‘tool box’ of existing and potential new measures,
which should be taken into account in the context of a
mechanism for early warning, preparedness and crisis
management.
(23) Member States should collaborate with EASO in the
gathering of information concerning their ability to
manage particular pressure on their asylum and
reception systems, in particular within the framework
of the application of this Regulation. EASO should
regularly report on the information gathered in
accordance with Regulation (EU) No 439/2010.
(24) In accordance with Commission Regulation (EC) No
1560/2003 (1), transfers to the Member State responsible
for examining an application for international protection
may be carried out on a voluntary basis, by supervised
departure or under escort. Member States should
promote voluntary transfers by providing adequate
information to the applicant and should ensure that
supervised or escorted transfers are undertaken in a
humane manner, in full compliance with fundamental
rights and respect for human dignity, as well as the best interests of the child and taking utmost account of
developments in the relevant case law, in particular as
regards transfers on humanitarian grounds.
(25) The progressive creation of an area without internal
frontiers in which free movement of persons is guaranteed
in accordance with the TFEU and the establishment
of Union policies regarding the conditions of
entry and stay of third-country nationals, including
common efforts towards the management of external
borders, makes it necessary to strike a balance between
responsibility criteria in a spirit of solidarity.
(26) Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data
and on the free movement of such data (1) applies to the
processing of personal data by the Member States under
this Regulation.
(27) The exchange of an applicant’s personal data, including
sensitive data on his or her health, prior to a transfer,
will ensure that the competent asylum authorities are in a
position to provide applicants with adequate assistance
and to ensure continuity in the protection and rights
afforded to them. Special provisions should be made to
ensure the protection of data relating to applicants
involved in that situation, in accordance with Directive
95/46/EC.
(28) The application of this Regulation can be facilitated, and
its effectiveness increased, by bilateral arrangements
between Member States for improving communication
between competent departments, reducing time limits
for procedures or simplifying the processing of requests
to take charge or take back, or establishing procedures
for the performance of transfers.
(29) Continuity between the system for determining the
Member State responsible established by Regulation
(EC) No 343/2003 and the system established by this
Regulation should be ensured. Similarly, consistency
should be ensured between this Regulation and Regulation
(EU) No 603/2013 of the European Parliament
and of the Council of 26 June 2013 on the establishment
of ‘Eurodac’ for the comparison of fingerprints for the
effective application of Regulation (EU) No 604/2013
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 and on requests for the comparisons with
Eurodac data by Member States’ law enforcement authorities
and Europol for law enforcement purposes (2).
(30) The operation of the Eurodac system, as established by
Regulation (EU) No 603/2013, should facilitate the application
of this Regulation.
(31) The operation of the Visa Information System, as established
by Regulation (EC) No 767/2008 of the European
Parliament and of the Council of 9 July 2008 concerning
the Visa Information System (VIS) and the exchange of
data between Member States on short-stay visas (3), and
in particular the implementation of Articles 21 and 22
thereof, should facilitate the application of this Regulation.
(32) With respect to the treatment of persons falling within
the scope of this Regulation, Member States are bound
by their obligations under instruments of international
law, including the relevant case-law of the European
Court of Human Rights.
(33) In order to ensure uniform conditions for the implementation
of this Regulation, implementing powers should be
conferred on the Commission. Those powers should be
exercised in accordance with Regulation (EU) No
182/2011 of the European Parliament and of the
Council of 16 February 2011 laying down the rules
and general principles concerning mechanisms for
control by the Member States of the Commission’s
exercise of implementing powers (4).
(34) The examination procedure should be used for the
adoption of a common leaflet on Dublin/Eurodac, as
well as a specific leaflet for unaccompanied minors; of
a standard form for the exchange of relevant information
on unaccompanied minors; of uniform conditions for the
consultation and exchange of information on minors and
dependent persons; of uniform conditions on the preparation
and submission of take charge and take back
requests; of two lists of relevant elements of proof and
circumstantial evidence, and the periodical revision
thereof; of a laissez passer; of uniform conditions for the
consultation and exchange of information regarding
transfers; of a standard form for the exchange of data
before a transfer; of a common health certificate; of
uniform conditions and practical arrangements for the
exchange of information on a person’s health data
before a transfer, and of secure electronic transmission
channels for the transmission of requests.
L 180/34 Official Journal of the European Union 29.6.2013 EN
(
1) OJ L 281, 23.11.1995, p. 31.
(
2) See page 1 of this Official Journal.
(
3) OJ L 218, 13.8.2008, p. 60.
(
4) OJ L 55, 28.2.2011, p. 13.
(35) In order to provide for supplementary rules, the power to
adopt acts in accordance with Article 290 TFEU should
be delegated to the Commission in respect of the identification
of family members, siblings or relatives of an
unaccompanied minor; the criteria for establishing the
existence of proven family links; the criteria for
assessing the capacity of a relative to take care of an
unaccompanied minor, including where family
members, siblings or relatives of the unaccompanied
minor stay in more than one Member State; the
elements for assessing a dependency link; the criteria
for assessing the capacity of a person to take care of a
dependent person and the elements to be taken into
account in order to assess the inability to travel for a
significant period of time. In exercising its powers to
adopt delegated acts, the Commission shall not exceed
the scope of the best interests of the child as provided for
under Article 6(3) of this Regulation. It is of particular
importance that the Commission carry out appropriate
consultations during its preparatory work, including at
expert level. The Commission, when preparing and
drawing up delegated acts, should ensure a simultaneous,
timely and appropriate transmission of relevant
documents to the European Parliament and to the
Council.
(36) In the application of this Regulation, including the preparation
of delegated acts, the Commission should consult
experts from, among others, all relevant national authorities.
(37) Detailed rules for the application of Regulation (EC) No
343/2003 have been laid down by Regulation (EC) No
1560/2003. Certain provisions of Regulation (EC) No
1560/2003 should be incorporated into this Regulation,
either for reasons of clarity or because they can serve a
general objective. In particular, it is important, both for
the Member States and the applicants concerned, that
there should be a general mechanism for finding a
solution in cases where Member States differ over the
application of a provision of this Regulation. It is
therefore justified to incorporate the mechanism
provided for in Regulation (EC) No 1560/2003 for the
settling of disputes on the humanitarian clause into this
Regulation and to extend its scope to the entirety of this
Regulation.
(38) The effective monitoring of the application of this Regulation
requires that it be evaluated at regular intervals.
(39) This Regulation respects the fundamental rights and
observes the principles which are acknowledged, in
particular, in the Charter of Fundamental Rights of the
European Union. In particular, this Regulation seeks to
ensure full observance of the right to asylum guaranteed
by Article 18 of the Charter as well as the rights
recognised under Articles 1, 4, 7, 24 and 47 thereof.
This Regulation should therefore be applied accordingly.
(40) Since the objective of this Regulation, namely the establishment
of 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,
cannot be sufficiently achieved by the Member States and
can therefore, by reason of the scale and effects of this
Regulation, be better achieved at Union level, the Union
may adopt measures in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on
European Union (TEU). In accordance with the
principle of proportionality, as set out in that Article,
this Regulation does not go beyond what is necessary
in order to achieve that objective.
(41) In accordance with Article 3 and Article 4a(1) of
Protocol No 21 on the position of the United
Kingdom and Ireland in respect of the Area of
Freedom, Security and Justice, annexed to the TEU and
to the TFEU, those Member States have notified their
wish to take part in the adoption and application of
this Regulation.
(42) In accordance with Articles 1 and 2 of Protocol No 22
on the position of Denmark, annexed to the TEU and to
the TFEU, Denmark is not taking part in the adoption of
this Regulation and is not bound by it or subject to its
application,
HAVE ADOPTED THIS REGULATION: