European Parliament resolution of 7 May 2009 on gender mainstreaming in EU external relations and peace-building/nation-building (2008/2198(INI))

P6_TA(2009)0372 A6-0225/2009

The European Parliament,

–   having regard to the principles laid down in Articles 2, 3(2), 13, 137(1)(i) and 141 of the EC Treaty,

–   having regard to the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000,

–   having regard to the Lisbon Treaty, signed on 13 December 2007 in Lisbon,

–   having regard to the United Nations Convention of 18 December 1979 on the Elimination of All Forms of Discrimination against Women,

–   having regard to the Fourth World Conference on Women held in Beijing in September 1995, the Declaration and Platform for Action adopted in Beijing and the subsequent outcome documents adopted at the United Nations Beijing +5 and Beijing +10 Special Sessions on further actions and initiatives to implement the Beijing Declaration and Platform for Action, adopted on 9 June 2000 and 11 March 2005 respectively,

–   having regard to the EU Agenda for Action on Millennium Development Goals, adopted by the Council on 18 June 2008,

–   having regard to United Nations Security Council Resolutions (UNSCR) S/RES/1325 (2000), adopted on 31 October 2000, and S/RES/1820 (2008), adopted on 19 June 2008, on women and peace and security,

–   having regard to the Conclusions of the General Affairs and External Relations Council of 23 and 24 May 2005 on European Security,

–   having regard to the Council document of 8 December 2008 entitled "Implementation of UNSCR 1325 as reinforced by UNSCR 1820 in the context of ESDP",

–   having regard to the Conclusions of the General Affairs Council of 13 November 2006 on promoting gender equality and gender mainstreaming in crisis management,

–   having regard to the Conclusions of the General Affairs Council of 8 December 2008 on combating violence against women, particularly in the European Security and Defence Policy (ESDP) framework, and all forms of discrimination against them,

–   having regard to the "Comprehensive approach to the EU implementation of the United Nations Security Council Resolutions 1325 and 1820 on women, peace and security" approved by the General Affairs Council on 8 December 2008,

–   having regard to the ongoing work on a Commission Staff Working Paper entitled "Towards an EU Action Plan on Gender Equality and Women's Empowerment in EU External Action",

–   having regard to the development of the European Neighbourhood Policy (ENP) since 2004, and in particular the Commission's progress reports on its implementation, and to the action plans adopted jointly with Armenia, Azerbaijan, Egypt, Georgia, Israel, Jordan, Lebanon, Moldova, Morocco, the Palestinian Authority, Tunisia and Ukraine,

–   having regard to the enlargement process and to the Commission's progress reports,

–   having regard to its previous resolutions on women's empowerment in international and development policy and their role in security and peace, in particular that of 1 June 2006(1), that of 16 November 2006(2) and that of 13 March 2008(3),

–   having regard to its resolutions on the ENP, on the EU's enlargement strategy and on the neighbouring countries and regions of the EU,

–   having regard to its resolutions on external assistance instruments,

–   having regard to its resolution of 18 December 2008 on development perspectives for peace-building and nation building in post-conflict situations(4),

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Foreign Affairs and the opinion of the Committee on Women's Rights and Gender Equality (A6-0225/2009),

A.   whereas the realisation of women's human rights, women's empowerment and agency is not only important for addressing gender inequality and implementing a true gender dimension in the EU's external relations but essential to the successful implementation of the EU's external policies, including in the areas of aid, development, enlargement, neighbourhood policy, conflict resolution, security and peace-building and international trade,

B.   whereas although the Member States are party to all major international frameworks on gender equality and women's rights, and although a number of policy documents exist at the EU level, the practical commitment to furthering gender mainstreaming and women's empowerment in external policies is still weak, the implementation of the existing policy documents is modest and the budgetary resources earmarked specifically for gender issues are insufficient,

C.   whereas despite considerable improvements in the promotion of gender equality over the recent years, the main EU institutions – that is to say, Parliament, the Council and the Commission – do not have enough staff appointed specifically to implement the declared gender objectives in the areas of external policy and enlargement, and most of the existing staff responsible for gender issues have to combine that activity with at least one, and sometimes two, other sets of duties,

D.   whereas the EU needs a holistic and coherent approach to gender mainstreaming,

General remarks

1.  Recognises that the EU institutions have attached increasing importance to gender mainstreaming and women's empowerment but underlines that much remains to be done to put the political commitments into practice, and stresses the importance of adequate funding and of adequate staff responsible for implementing gender objectives;

2.  Recalls that gender mainstreaming requires not only high-level policy statements but also the political will of the EU and the Member States' leadership, prioritisation of objectives and monitoring of the progress made;

3.  Welcomes the adoption of the above-mentioned "Comprehensive approach to the EU implementation of the UNSCR 1325 (2000) and 1820 (2008) on women, peace and security", as well as the adoption by the General Affairs Council of 8 December 2008 of the guidelines on violence against women and girls and combating all forms of discrimination against them; calls on those Member States which have not yet adopted their national action plans on UNSCR 1325 to comply as a matter of urgency with the request by the Security Council that the States do so; invites the Commission to provide technical assistance and aid to third countries willing to develop national strategies for the implementation of the above-mentioned Security Council resolutions;

4.  Is pleased that the revised text of the European Security Strategy includes a reference to the above-mentioned Security Council Resolutions S/RES/1325 (2000) and S/RES/1820 (2008), as well as Resolution S/RES/1612(2005);

5.  Calls on the Commission to speed up its work and to propose by July 2009, in close cooperation with the Member States and the Council Secretariat, an "EU Action Plan on Gender Equality and Women's Empowerment in EU External Action", to be applied in the 27 Member States and in negotiations with third countries, together with a set of effective monitoring instruments;

6.  Calls on the Council and the Commission to systematically include gender equality and women's empowerment in the EU's political dialogue and policy discussions with partner countries;

7.  Asks Parliament's delegations to address the issues related to gender equality and women's empowerment in its relations with third-country parliaments; underlines the importance of providing support and assistance to national parliaments of third countries, with a view to strengthening their capacity to introduce the gender perspective into their legislative work;

8.  Underlines the importance of civil society organisations in women's empowerment; calls on the Commission to channel adequate financial support to them and to promote the participation of women's non-governmental organisations in political dialogue processes with partner countries, as well as in peace negotiations around the world;

9.  Calls on the Commission and the Member States to promote coherence in their policy approach relating to gender mainstreaming and women's empowerment; asks that the existing diverse policy frameworks in this field be collated into an EU Consensus on Gender, covering both internal and external policies;

10.  Encourages the regular holding of conferences to debate issues relating to equal opportunities for women and men, with the participation of delegations at the national parliament level, made up of both women and men, together with the establishment of common strategies to implement projects relating to this topic;

11.  Asks the Commission to address and prioritise, in a more consistent and systematic manner, gender inequalities in the programming and implementation of the external assistance instruments, in particular as regards the provision of assistance for the reform of the security sector; insists that gender-specific objectives, activities and funding must be included in country strategy papers and that mainstreaming of gender issues through those strategy papers must be improved; underlines the need for a holistic approach in the use of external assistance instruments, including the Instrument for Pre-Accession Assistance, the European Neighbourhood Policy Instrument, the European Instrument for Democracy and Human Rights, the Instrument for Stability and thematic programmes such as "Investing in People", in order optimally to achieve the goals of gender equality and women's empowerment;

12.  Considers that the resources allocated to the health sector, and consequently to girls' and women's health, are insufficient in view of the EU's development policy commitments; underlines the need to earmark further financial resources under the external assistance instruments for women's health programmes; points out that, according to the Court of Auditors' Special Report on EC Development Assistance to Health Services in sub-Saharan Africa, published in January 2009, allocations to the health sector for that region have not increased since 2000 as a proportion of total EC assistance for health, while the Millennium Development Goals 2007 Progress Chart still identifies very high levels of maternal mortality there;

13.  Points out that effective gender mainstreaming requires enhanced coordination between donors and actors, accountability mechanisms and increased ownership of the development process by national governments; highlights in this regard the added value of the EC/UN Partnership on Gender Equality for Development and Peace, and of gender-responsive budgeting initiatives; welcomes the setting-up of a task force on women, peace and security as provided for in the above-mentioned comprehensive approach to the EU implementation of Security Council Resolutions S/RES1325 (2000) and S/RES/1820 (2008);

14.  Reiterates the need to focus not only on women but also on gender relations between men and women that generate and perpetuate gender inequalities; believes that, as a consequence, projects should take into consideration both men and women;

15.  Stresses that the EU should pay special attention to the needs of the most vulnerable and socially excluded women, in particular disabled women, refugees and women from minority groups;

16.  Calls on the Commission to further develop procedures, benchmarks and indicators in order to ensure that it fulfils its commitments with regard to gender equality in its external policy;

17.  Considers that the European Institute on Gender Equality, established in 2006, should become operational as soon as possible and that its mandate should be extended to external policies;

18.  Calls on the Commission and the Member States to implement the "Brussels Call for Action to Address Sexual Violence in Conflict and Beyond";

19.  Calls on the Commission and the Member States to take action to prevent and combat trafficking in human beings;

20.  Underlines that rape and sexual violence are used as a weapon of war; stresses that they should be punished as war crimes and crimes against humanity; calls for more support programmes for victims of these crimes;

21.  Underlines the need to capitalise on the EU's partnership with the UN, drawing on the latter's global expertise in advancing gender equality and empowerment of women, with a view to enhancing the effectiveness and impact of EU policies and aid, and to ensure coherence of external support for partner countries to help them fulfil their relevant obligations;

Gender mainstreaming in the EU's decision-making

22.  Considers that the number of personnel currently working on gender issues within the Council and the Commission is inadequate; calls on those institutions to allocate more staff to the structures in charge of the EU's external action with specific responsibility for gender mainstreaming and women's empowerment;

23.  Notes the continued lack of women in high-level posts within the Council and the Commission, and calls, in particular, for greater efforts to boost the number of women among the heads of EU delegations and the EU Special Representatives; stresses that the future External Action Service should have a better balance of men and women, particularly as regards high-level posts, and that it should include more staff responsible for gender issues;

24.  Calls on the Member States to include more women in ESDP missions and operations, and asks that the participation of women at all levels and in all phases of the planning and implementation be increased; underlines the need to include gender expertise from the very start of the planning of a mission or operation, as well as the importance of systematic and substantial gender training prior to the deployment of staff in missions and operations;

25.  Notes that a great deal of effort is currently being made to mainstream a gender-sensitive approach into the culture of the ESDP, inter alia by developing the quantitative dimension of gender mainstreaming within that policy (e.g. through questionnaires, the development of check-lists, counting the number of men and women in ESDP operations, etc); however, stresses the need to develop the qualitative conceptual framework required in order to understand the socio-economic context in which ESDP missions are deployed (i.e. areas of conflict) and gender-sensitive concerns in the implementation of operations and programmes;

26.  Welcomes the appointment of a gender adviser to nearly all ESDP missions, in line with the above-mentioned Council conclusions of November 2006; nevertheless emphasises that the work of such gender advisers may be undermined by the lack of a concrete EU gender policy – in particular, a lack of gender awareness and/or an unwillingness to consider its importance – and the lack of gender-specific budget lines in the financing of ESDP missions;

27.  Commends the initiatives to provide gender-related training to staff deployed on ESDP missions and in the corresponding headquarters, and the considerable effort made by the Commission to train its staff, particularly within delegations; reiterates that all staff at every level of the planning, programming and implementation of the EU's external policies should be adequately trained; asks the Commission and the Member States to ensure that compulsory training is provided for all staff in missions and delegations, including the management, and that they are given guidance on gender issues and women's empowerment;

28.  Is convinced that ESDP mission planning should take account of the inclusion of local women's organisations in the peace process, so as to build on the specific contribution which they can make and to recognise the particular ways in which women are affected by conflicts;

29.  Stresses that, currently, quotas are an indispensable means of ensuring gender equality in peace and security missions and in decision-making in national and international reconstruction processes, and of guaranteeing the political presence of women at the negotiating table;

30.  Underlines the importance of gender-sensitive budgeting; points out that gender should be developed as a thematic issue in major external assistance instruments, that special appropriations should be earmarked for gender issues and that benchmarks should be defined in order to measure how efficiently the funds provided are being used;

o
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31.  Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.

(1) OJ C 298 E, 8.12.2006, p. 287. (2) OJ C 314 E, 21.12.2006, p. 347. (3) Texts adopted, P6_TA(2008)0103. (4) Texts adopted, P6_TA(2008)0639.

European Parliament resolution of 7 May 2009 on Parliament's new role and responsibilities in implementing the Treaty of Lisbon (2008/2063(INI))

P6_TA(2009)0373 A6-0145/2009

The European Parliament,

–   having regard to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed on 13 December 2007,

–   having regard to the Treaty on the European Union and the Treaty establishing the European Community as amended by the Single European Act and the Treaties of Maastricht, Amsterdam and Nice,

–   having regard to the Charter of Fundamental Rights of 12 December 2007,

–   having regard to the Laeken Declaration of 15 December 2001 on the Future of the European Union,

–   having regard to the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004,

–   having regard to its resolution of 7 June 2007 on the roadmap for the Union's Constitutional Process(1),

–   having regard to its resolution of 11 July 2007 on the convening of the Intergovernmental Conference (IGC): the European Parliament's opinion (Article 48 of the EU Treaty)(2),

–   having regard to its resolution of 20 February 2008 on the Treaty of Lisbon(3),

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Constitutional Affairs and the opinions of the Committee on Foreign Affairs, the Committee on Development, the Committee on International Trade, the Committee on Budgetary Control, the Committee on Economic and Monetary Affairs, the Committee on Employment and Social Affairs, the Committee on the Environment, Public Health and Food Safety, the Committee on Industry, Research and Energy, the Committee on the Internal Market and Consumer Protection, the Committee on Transport and Tourism, the Committee on Regional Development, the Committee on Agriculture and Rural Development, the Committee on Fisheries, the Committee on Culture and Education, the Committee on Legal Affairs, the Committee on Civil Liberties, Justice and Home Affairs, the Committee on Women's Rights and Gender Equality and the Committee on Petitions (A6-0145/2009),

New policies
New objectives and horizontal clauses

1.  Welcomes the binding character that the Treaty of Lisbon gives to the Charter of Fundamental Rights and welcomes the recognition of the rights, freedoms and principles set out for all EU citizens and residents; underlines that Parliament will be committed to ensuring full respect of the Charter;

2.  Welcomes the strengthening of representative and participatory democracy arising from the introduction of, inter alia, the so-called "citizens' initiative" (Article 11 of the EU Treaty as amended by the Treaty of Lisbon (TEU)), whereby not less than one million citizens from a significant number of Member States may ask the Commission to submit a proposal for a legal act;

3.  Welcomes the fact that environmental protection has been given a prominent position in all EU policies and that an explicit reference is made in Article 191 of the Treaty on the Functioning of the European Union (TFEU) to combating climate change at the international level; stresses that Parliament should continue to push the European Union to take a leading role in all policies relating to fighting climate change and global warming;

4.  Welcomes the fact that the new TFEU links the building of an area of freedom, security and justice to the protection of fundamental rights and the legal order of the European Union and of its Member States (Article 67 of the TFEU);

5.  Takes particular note of the objective of establishing a "highly competitive social market economy, aiming at full employment and social progress and a high level of protection and improvement of the quality of the environment" (Article 3(3) of the TEU), thereby linking the aim of completing the internal market with other objectives;

6.  Notes with satisfaction that equality between women and men has been included among the Union's values (Article 2 of the TEU) and aims (Article 3(3) of the TEU);

7.  Welcomes the fact that, according to Article 208(1) of the TFEU, the "Union's development cooperation policy and that of the Member States complement and reinforce each other", whereas, according to the current Article 177(1) of the Treaty establishing the European Community, "Community policy in the sphere of development cooperation [...] shall be complementary to the policies pursued by the Member States"; stresses the increased responsibility of Parliament, given that the Union will have a greater role to play in terms of initiative in policy-setting, which should lead to improved donor coordination and division of labour and to greater aid effectiveness for the "reduction and, in the long term, the eradication of poverty" in the context of the Millennium Development Goals;

8.  Believes that the inclusion of territorial cohesion as an objective of the Union (Article 3 of the TEU) complements the objectives of economic and social cohesion and that the introduction of legal bases in those respective areas will increase the competence of Parliament to assess the territorial impact of key Union policies; is pleased to note that the special status of the outermost regions is confirmed by Articles 349 and 355 of the TFEU;

9.  Welcomes the introduction of horizontal provisions on a high level of employment, social protection, the fight against social exclusion, a high level of education, training and protection of human health, combating discrimination, and environmental protection, which will act as general principles underlying the European Union's policy-making (Articles 9, 10 and 11 of the TFEU);

10.  Also welcomes the fact that consumer protection has been strengthened to the extent that it is to be mainstreamed into the other Union policies to be laid down and implemented, and, as a cross-cutting task, now occupies a much more prominent place by virtue of Article 12 of the TFEU;

11.  Welcomes the solidarity provision expressly contained in Article 122 of the TFEU, whereby the Council may decide on appropriate measures if severe difficulties arise in the supply of certain products, notably in the area of energy;

12.  Welcomes the fact that Article 214 of the TFEU recognises humanitarian aid as a fully-fledged Union policy; takes the view that Part Five, Title III, Chapter 1 (Development cooperation) and Chapter 3 (Humanitarian aid) of the TFEU provide a clear legal basis for development and humanitarian assistance to which the ordinary legislative procedure applies;

13.  Welcomes, moreover, the reinforcement of the European Union's power, in the area of civil protection, to provide ad hoc assistance and disaster relief in third countries (Article 214 of the TFEU);

New legal bases

14.  Underlines that the broadening of the Union's external action under the Lisbon Treaty, including the provision of new legal bases and instruments affecting areas related to foreign policy (external action and the Common Foreign and Security Policy (CFSP)/European Security and Defence Policy), necessitates a new interinstitutional balance guaranteeing adequate democratic scrutiny by Parliament;

15.  Welcomes the fact that energy matters will now be covered by a separate Title XXI in Part Three of the TFEU and that action in that field will thus have a legal basis (Article 194 of the TFEU); notes, however, that, while the ordinary legislative procedure will be followed as a general rule, decisions on the energy mix will remain within the competence of the Member States, while fiscal measures in that field will continue to require only consultation of Parliament;

16.  Notes positively the shared values of the Union as regards services of general economic interest and welcomes the legal basis allowing for the definition of principles and conditions governing the provision of services of general economic interest under the ordinary legislative procedure (Article 14 of the TFEU and Protocol No 26 on services of general interest);

17.  Considers that the changes introduced by the Treaty of Lisbon in the area of the common commercial policy (CCP) (Articles 206 and 207 of the TFEU) contribute overall to the enhancement of its democratic legitimacy and its efficiency, in particular by introducing the ordinary legislative procedure and the requirement that consent be obtained for all agreements; notes that all matters falling under the CCP will come within the exclusive competence of the Union, with the effect that there will no longer be any mixed trade agreements concluded by both the Union and the Member States;

18.  Expresses its satisfaction at the insertion of a provision on a European space policy (Article 189 of the TFEU) and welcomes the opportunity given to Parliament and to the Council to adopt, under the ordinary legislative procedure, the necessary measures establishing a European space programme; considers, however, that the words "excluding any harmonisation of the laws and regulations of the Member States in this field" which appear in that article may pose certain obstacles to the implementation of a common European space policy;

19.  Points out that the Treaty of Lisbon includes a new legal basis providing for codecision in respect of intellectual property rights (Article 118 of the TFEU);

20.  Welcomes the extension of the scope of EU action in the field of youth policy, encouraging the participation of young people in democratic life in Europe (Article 165 of the TFEU);

21.  Welcomes the new legal basis laid down in Article 298 of the TFEU, which provides that "in carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration", since this provides the basis for a regulation governing the Union's administrative procedure;

22.  Welcomes the strengthening of the legal basis for the adoption of European Union measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union (Article 325 of the TFEU); highlights the fact that the Treaty of Lisbon removes the qualification, contained in the current Article 280 of the EC Treaty, that such measures "shall not concern the application of national criminal law or the national administration of justice";

23.  Points out that the new Treaty provisions concerning judicial cooperation in civil and criminal matters include a legal basis for the adoption of measures to support the training of the judiciary and judicial staff (Articles 81 and 82 of the TFEU);

24.  Emphasises that the Treaty of Lisbon also provides for the possible establishment of a European Public Prosecutor's Office in order to combat crimes affecting the financial interests of the Union (Article 86 of the TFEU);

25.  Welcomes the fact that the Treaty of Lisbon introduces binding provisions for the protection of the rights of the child in the internal and external objectives of the European Union (Article 3(3), second subparagraph, and Article 3(5) of the TEU);

26.  Welcomes the inclusion of tourism as a new title in the Lisbon Treaty (Article 195 of the TFEU), which provides that the Union is to complement the action of the Member States; further welcomes the provision that the ordinary legislative procedure will govern the adoption of legislative proposals falling under that title;

27.  Welcomes the fact that the Treaty of Lisbon has included sport amongst the areas in respect of which a legal basis is laid down (Article 165 of the TFEU); stresses in particular that the Union can at last take action for the development of sport and its European dimension and can take due account of the specific nature of sport when applying other European policies;

New powers for Parliament
New codecision powers

28.  Welcomes the fact that the Treaty of Lisbon will strengthen the democratic legitimacy of the European Union considerably by extending Parliament's codecision powers;

29.  Welcomes the fact that the area of freedom, security and justice is fully integrated into the TFEU (Articles 67 to 89), formally putting an end to the third pillar; welcomes the fact that most decisions in the area of civil justice, asylum, immigration and visa policies, as well as justice and police cooperation in criminal matters, will be covered by the ordinary legislative procedure;

30.  Believes that the introduction of the ordinary legislative procedure in the field of the common agricultural policy (CAP) improves the democratic accountability of the European Union, inasmuch as Parliament will be co-legislating on an equal footing with the Council; emphasises that codecision will apply to all legislation in the field of agriculture under Article 43(2) of the TFEU, and that this will notably be the case in respect of the four main horizontal texts in the field of agriculture (the single common market organisation, the direct payments regulation, the rural development regulation and financing of the CAP); points out, moreover, that legislation on quality, organic farming and promotion will also fall within the scope of Article 43(2) of the TFEU;

31.  Stresses that any power of the Council to adopt measures pursuant to Article 43(3) of the TFEU is subject to the prior adoption, in accordance with the ordinary legislative procedure, of a legislative act pursuant to Article 43(2) of the TFEU, which prescribes the conditions and limitations attaching to the powers conferred on the Council; takes the view that Article 43(3) of the TFEU does not provide for a legal basis or for any autonomous power which would allow the adoption or amendment of any of the Council acts presently in force in the field of the CAP; calls on the Council to refrain from adopting any of the measures referred to in Article 43(3) of the TFEU without prior consultation of Parliament;

32.  Notes that the Treaty of Lisbon introduces far-reaching changes in the decision-making system for the common fisheries policy (CFP) and will also increase its democratic accountability; welcomes the fact that Parliament and the Council will establish, under the ordinary legislative procedure, the necessary rules for achieving the objectives of the CFP (Article 43(2) of the TFEU); considers, in this respect, that any subject formally included in the annual regulation other than the setting of catch possibilities and the distribution of quotas, such as technical measures or fishing effort, or the incorporation of agreements adopted within the regional fisheries organisations, which have their own legal basis, should be subject to the ordinary legislative procedure;

33.  Welcomes the introduction of the ordinary legislative procedure for the adoption of detailed rules on the multilateral surveillance procedure (Article 121(6) of the TFEU), which should strengthen economic coordination;

34.  Believes that the responsibility of the European Central Bank (ECB) to report on monetary policy is now greater, since the ECB is recognised as an institution of the European Union; welcomes the fact that several provisions of the Statute of the European System of Central Banks (ESCB) and of the ECB can be modified after consulting Parliament in accordance with Article 40.2 of that Statute; affirms that this does not constitute an encroachment on the independence of the ECB in the field of monetary policy or the priorities set out in the Treaty;

35.  Considers Article 182 of the TFEU to be an improvement because the multiannual framework programme and the implementation of a European research area, referred to therein, will be covered by the ordinary legislative procedure; notes, however, that the specific programmes mentioned in that article will be adopted via a special legislative procedure, implying mere consultation of Parliament (Article 182(4) of the TFEU);

36.  Welcomes the fact that, as regards the implementation of the Structural Funds, the Lisbon Treaty places Parliament on an equal footing with the Council by replacing the current assent procedure by the ordinary legislative procedure; considers that this is especially significant as regards the Structural Funds in the period after 2013, in that it enhances transparency and increases accountability in respect of those funds vis-à-vis citizens;

37.  Notes that legislation prohibiting discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation will become subject to a special legislative procedure and will require Parliament's consent (Article 19 of the TFEU);

38.  Welcomes the fact that the ordinary legislative procedure will cover measures to combat trafficking in human beings, in particular women and children, and sexual exploitation (Articles 79(2) and 83(1) of the TFEU);

39.  Welcomes the extension of qualified majority decision-making to the field of education, including sport (Article 165(4) of the TFEU);

40.  Welcomes the fact that codecision will henceforth apply to the Staff Regulations of Officials of the European Union (Article 336 of the TFEU), inasmuch as this will allow Parliament to take part on an equal footing with the Council in the adjustment of those regulations;

New budgetary powers

41.  Notes that the Treaty of Lisbon makes sweeping changes in the area of the Union's finances, particularly as regards interinstitutional relations and decision-making procedures;

42.  Points out that the Council and Parliament must agree, within the limits of own resources, on the programming of expenditure which becomes legally binding (Article 312 of the TFEU); welcomes the fact that the budget as a whole must be adopted jointly by Parliament and the Council, in compliance with the multiannual financial framework; welcomes the abolition of the distinction between compulsory and non-compulsory expenditure (Article 314 of the TFEU); welcomes the fact that the adoption of the financial regulation will be subject to the ordinary legislative procedure (Article 322 of the TFEU);

43.  Refers to its resolution of 7 May 2009 on the financial aspects of the Treaty of Lisbon(4);

New consent procedure

44.  Welcomes the fact that the simplified revision procedure with regard to the introduction of qualified majority voting and the introduction of the ordinary legislative procedure in a given area under Title V of the TEU or under the TFEU requires the consent of Parliament;

45.  Notes the introduction of an "exit clause" for the Member States (Article 50 of the TEU); underlines that the agreement laying down the arrangements for the withdrawal of a Member State from the Union may not be concluded until after Parliament has given its consent;

46.  Welcomes the fact that Parliament's consent will be required for a wide range of international agreements signed by the Union; underlines its intention to request the Council, where appropriate, not to open negotiations on international agreements until Parliament has stated its position, and to allow Parliament, on the basis of a report from the committee responsible, to adopt at any stage in the negotiations recommendations which are to be taken into account before the conclusion of negotiations;

47.  Urges that any future "mixed" agreement combining non-CFSP and CFSP elements must normally be dealt with under a single legal basis, which should be the one directly related to the main subject-matter of the agreement; notes that Parliament will have the right to be consulted, except where the agreement relates exclusively to the CFSP;

New powers of scrutiny

48.  Welcomes the fact that the President of the Commission will be elected by Parliament, on a proposal of the European Council, taking into account the elections to the European Parliament; refers to its resolution of 7 May 2009 on the impact of the Treaty of Lisbon on the development of the institutional balance of the European Union(5);

49.  Welcomes the fact that the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy, together with the other members of the Commission, as a body, will be subject to a vote of consent by Parliament, as well as to a vote of censure, and will therefore be accountable to Parliament;

50.  Welcomes the new procedure for the appointment of Judges and Advocates-General of the Court of Justice and the General Court as provided for in Article 255 of the TFEU, under which the national governments' decision is to be preceded by an opinion on candidates' suitability to perform their duties given by a panel of seven experts, one of whom is to be proposed by Parliament;

51.  Underlines the need for transparency and democratic scrutiny concerning the setting-up of the European External Action Service (EEAS) in accordance with Article 27(3) of the TEU, and recalls its right to be consulted on its establishment; is of the opinion that, administratively, the EEAS should be attached to the Commission;

52.  Expects clarifications with regard to the criteria for, and the appointment and evaluation of, EU Special Representatives, including the definition and purpose of their tasks, the length of their mandate, and coordination and complementarity with the Union's future delegations;

53.  Underlines the need for transparency and democratic scrutiny concerning the European Defence Agency (EDA) and the activities undertaken it, namely by ensuring a regular exchange of information between the Chief Executive of the EDA and Parliament's committee responsible;

54.  Welcomes the new consultation role it will have under Article 40.2 of the Statute of the ESCB and of the ECB with regard to changing the composition of the ECB Governing Council;

55.  Welcomes the fact that agencies, notably Europol and Eurojust, will be subject to greater parliamentary scrutiny (Articles 85 and 88 of the TFEU); believes, therefore, that the retention of the consultation procedure for the setting-up of joint undertakings in the area of research and technological development (Articles 187 and 188 of the TFEU) may not conform to the spirit of the legal acts of the Union establishing agencies;

New rights to be informed

56.  Calls on the President of the European Council to keep Parliament fully informed about the preparations for European Council meetings and to give a report on the results of meetings, where possible within two working days (if necessary to a special sitting of Parliament);

57.  Calls on the President of the rotating Council Presidency to inform Parliament about the Presidency programmes and about the results achieved;

58.  Urges the future Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy to agree, with Parliament, upon adequate methods of keeping Parliament fully informed of, and consulted on, the Union's external action, duly involving all committees of Parliament which are responsible for areas falling under the remit of the High Representative;

59.  Stresses that, as regards the negotiation and conclusion of international agreements, the Commission will be under a legal obligation to inform Parliament of the progress of negotiations in the same way as the special committee designated by the Council as referred to in Article 218 of the TFEU; calls for this information to be provided to the same extent, and at the same time, as it is supplied to the relevant Council committee under that article;

New rights of initiative

60.  Welcomes Parliament's new role in initiating amendments to the Treaties; will make use of this right and put forward new ideas for the future of Europe, when new challenges make this necessary;

61.  Welcomes the fact that Parliament will have the right of initiative as regards proposals concerning its own composition, respecting the principles laid down in the Treaties (Article 14 of the TEU);

62.  Notes that the Treaty of Lisbon introduces a special legislative procedure for the adoption of provisions laying down the modalities and powers of temporary committees of inquiry (Article 226 of the TFEU);

New procedures
Scrutiny by national parliaments

63.  Welcomes the new rights conferred on national parliaments with regard to prior scrutiny of application of the principle of subsidiarity in all legislation of the Union; takes the view that strengthening the scrutiny of European policies by national parliaments will also raise public awareness of the Union's activities;

64.  Stresses that the national parliaments' new prerogatives have to be fully respected as from the entry into force of the Treaty of Lisbon;

65.  Welcomes the requirement for local and regional authorities to respect the principle of subsidiarity; notes the right of the Committee of the Regions to bring actions before the Court of Justice when it considers that the principle of subsidiarity has been infringed (second paragraph of Article 8 of Protocol No 2);

Delegated acts

66.  Appreciates the improvements flowing from the new provisions on legal acts and the hierarchy of norms, in particular the creation of the delegated act (Article 290 of the TFEU), which makes it possible to delegate to the Commission the power to adopt non-legislative acts of general application or to amend non-essential elements of a legislative act; points out that the objectives, content, scope and duration of any such delegation must be clearly defined by Parliament and by the Council in the legislative act;

67.  Welcomes in particular the provisions of Article 290(2) of the TFEU, which envisages Parliament (and the Council) having the right both to revoke the delegation of powers and to object to individual delegated acts;

68.  Notes that the Treaty of Lisbon and, through it, the TFEU, do not provide a legal basis for a framework measure for delegated acts, but proposes that the institutions could agree on a standard formula for such delegations that would be regularly inserted by the Commission in the draft legislative act itself; stresses that this would preserve the freedom of the legislator;

69.  Asks the Commission to clarify how it intends to interpret Declaration 39 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, concerning the consultation of experts in the area of financial services, and how it intends to apply that interpretation, beyond the provisions on delegated acts contained in the TFEU;

Implementing acts

70.  Notes that the Treaty of Lisbon repeals the current Article 202 of the EC Treaty concerning implementing powers and introduces in Article 291 of the TFEU a new procedure – "implementing acts" – that provides for the possibility of conferring implementing powers on the Commission in cases where "uniform conditions for implementing legally binding Union acts" are needed;

71.  Notes that Article 291(3) of the TFEU requires Parliament and the Council to adopt, in advance, general rules and principles concerning mechanisms for "control by Member States" of the exercise of implementing powers by the Commission;

72.  Notes that the Treaty of Lisbon no longer provides a basis for the present comitology procedures and that pending legislative proposals which are not adopted before its entry into force must be modified in order to satisfy the requirements of Articles 290 and 291 of the TFEU;

73.  Is of the opinion that an interim solution could be negotiated with the Council for the initial period, so that no obstacle would occur as a result of a possible legal lacuna and the new regulation could be adopted by the legislator after due consideration of the Commission proposals;

Priorities for the transition period

74.  Asks the Commission to transmit to the co-legislators all pending proposals in respect of which new legal bases and changes in the legislative procedures apply;

75.  Points out that Parliament will decide what position it takes regarding opinions that have already been adopted in consultation procedures on matters which henceforth are to be dealt with under the ordinary legislative procedure, whether this involves confirmation of its previous position or the adoption of a new one; stresses that any confirmation of opinions as Parliament's position at first reading can be voted on by Parliament only after the Lisbon Treaty has entered into force;

76.  Insists on the conclusion of an interinstitutional agreement precluding the adoption of pending "third pillar" legislative proposals having a fundamental rights dimension until the entry into force of the Treaty of Lisbon, so that full judicial scrutiny will be possible in respect of such matters, while measures having no impact, or only a limited impact, on fundamental rights can still be adopted prior to its entry into force;

Proposals

77.  Calls on the other institutions to enter into negotiations for an interinstitutional agreement covering:

78.  Requests an update of the interinstitutional agreement between Parliament and the Council defining their working relations concerning foreign policy, including the sharing of confidential information on the basis of Articles 14 and 36 of the TEU and Article 295 of the TFEU;

79.  Calls on the Council and the Commission to consider the negotiation with Parliament of a new interinstitutional agreement providing Parliament with a substantive definition of its involvement in every stage leading to the conclusion of an international agreement;

80.  Calls, as a consequence of the new provisions on the multiannual financial framework (Article 312 of the TFEU) and on the financial regulation (Article 322 of the TFEU), for the Interinstitutional Agreement on budgetary discipline and sound financial management to be reviewed;

81.  Considers that all necessary steps should be taken to create a European information and communication policy, and regards the joint political declaration given by the three institutions on communication as a useful first step towards the attainment of that objective;

82.  Calls on the Commission to rapidly present an initiative for implementation of the "citizens' initiative", laying down clear, simple and user-friendly conditions for the exercise of this citizens' right; refers to its resolution of 7 May 2009 requesting the Commission to submit a proposal for a regulation of the European Parliament and of the Council on the implementation of the citizens" initiative(6);

83.  Calls on the Commission to adopt regulations implementing Article 298 of the TFEU on good administration, which will answer a long-standing call by Parliament and by the European Ombudsman for a common system of administrative law governing the European administration;

84.  Notes that the Treaty of Lisbon allows for the inclusion of the European Development Fund in the budget of the Union, which will enhance the democratic legitimacy of an important part of the EU's development policy; calls on the Council and the Commission to take the necessary steps for the budget of the European Union at the 2008/2009 mid-term review;

85.  Recommends urgent re-examination and reinforcement of the Union's status in international organisations once the Treaty of Lisbon is in force and the Union has succeeded the European Communities;

86.  Calls on the Council and the Commission to agree with Parliament on a strategy aimed at ensuring coherence between legislation adopted and the Charter of Fundamental Rights as well as the rules contained in the Treaties on policies such as preventing discrimination, protecting asylum seekers, improving transparency, data protection, the rights of minorities and the rights of victims and suspects;

87.  Asks the Council and the Commission to contribute to the improvement of relations between European and national authorities, especially in the legislative and judicial fields;

88.  Calls on the Council and the Commission to provide for the establishment of an effective common energy policy with the objective of efficiently coordinating the energy markets of the EU Member States and the development of those markets, whilst integrating external aspects focusing on the sources and routes of energy supply;

89.  Calls on the Council to consider, together with Parliament, what use should be made of the provisions of Article 127(6) of the TFEU, which allow the Council to confer specific tasks upon the European Central Bank "relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings";

90.  Pledges to adapt its internal organisation with a view to optimising and rationalising the exercise of the new powers conferred on it by the Treaty;

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91.  Instructs its President to forward this resolution to the Council, the Commission and the parliaments of the Member States.

(1) OJ C 125 E, 22.5.2008, p. 215. (2) OJ C 175 E, 10.7.2008, p. 347. (3) Texts adopted, P6_TA(2008)0055. (4) Texts adopted, P6_TA(2009)0374. (5) Texts adopted, P6_TA(2009)0387. (6) Texts adopted, P6_TA(2009)0389.

European Parliament resolution of 7 May 2009 on the financial aspects of the Lisbon Treaty (2008/2054(INI))

P6_TA(2009)0374 A6-0183/2009

The European Parliament,

–   having regard to the Lisbon Treaty amending the Treaty on European Union and the Treaty establishing the European Community, signed on 13 December 2007 ("the Lisbon Treaty"),

–   having regard to the Treaty on European Union and the Treaty establishing the European Community, as amended by the Single European Act and the Maastricht, Amsterdam and Nice Treaties,

–   having regard to the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management(1),

–   having regard to its resolution of 11 March 2003 on reform of the budgetary procedure: possible options in view of the revision of the treaties(2),

–   having regard to its resolution of 29 March 2007 on the future of the European Union's own resources(3),

–   having regard to its resolution of 8 June 2005 on Policy Challenges and Budgetary Means of the enlarged Union 2007-2013(4),

–   having regard to the conclusions of the European Council of 11 and 12 December 2008 on the approach to resuming work on the Treaty of Lisbon,

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Budgets and the opinions of the Committee on Foreign Affairs and the Committee on Agriculture and Rural Development (A6-0183/2009),

A.   whereas the Lisbon Treaty introduces major changes in the area of the Union's finances, in particular as regards interinstitutional relations and decision-making procedures,

B.   whereas it establishes a clear hierarchy among the basic acts governing the financial and budgetary life of the Union, thereby bringing about a much-needed clarification of the decision-making system,

C.   whereas the multiannual financial framework (MFF), which translates the Union's political priorities into expenditure programmed over a number of years and places a ceiling on Union expenditure over a given period, becomes in the Lisbon Treaty a legally binding act based on a new specific legal basis for the adoption of the regulation setting out the MFF,

D.   whereas the fact that the MFFs, on the one hand, and Parliament's parliamentary term and the Commission's term of office, on the other, do not coincide has thus far served to deprive Parliament of part of its budgetary powers, because it is often bound by a financial framework negotiated and adopted during the previous parliamentary term,

E.   whereas, if no change is made to the timetable, some Parliaments will never be able to take fundamental budgetary decisions, since the financial framework adopted by their predecessors covers the entire parliamentary term in question,

F.   whereas the current small margins available under each heading and the paltry sums allocated to the flexibility mechanisms which can be employed make it very difficult for the Union to respond appropriately to unexpected political events and may deprive the annual budgetary procedure of its substance,

G.   whereas the entry into force of the Lisbon Treaty makes it essential that the institutions responsible for the Union's financial and budgetary decision-making should reach an agreement on an optimum transition to the arrangements introduced by the new legal acts and the new decision-making procedures,

H.   whereas, in the interests of the smooth functioning of the Economic and Monetary Union, the EU budget must be taken into account when coordinating Member States" budgetary strategies,

I.   whereas the European Council of 11 and 12 December 2008 reaffirmed that the Lisbon Treaty is necessary in order to help the enlarged Union to function more efficiently, more democratically and more effectively, including in international affairs, and whereas it defined an approach and legal guarantees which meet the concerns expressed by the Irish electorate, with a view to enabling the Treaty to enter into force before the end of 2009, while respecting the aims and objectives of the Treaties,

Overall appraisal

1.  Welcomes the advances brought about by the Lisbon Treaty in the area of the democratic scrutiny and transparency of the Union's finances; draws attention to the need to enhance and adapt interinstitutional conciliation mechanisms and internal cooperation procedures in order to enable Parliament to exercise its new powers to the full;

Own resources

2.  Regrets that, as regards the Union's own resources, the Member States have failed to take the opportunity to establish a system of genuine own resources that is fairer, more transparent, more readily understandable to the public and subject to a more democratic decision-making procedure;

3.  Regrets, in particular, that no progress has been made in involving Parliament in the process of determining the limits to and the nature of the own resources available to the Union; points out that decision making on revenue and decision making on expenditure remain separate;

4.  Welcomes, however, the efforts made to ensure that measures implementing the decision on own resources can be adopted by means of a special legislative procedure under which the Council acts by a qualified majority only after securing Parliament's consent;

5.  Calls on the Council to employ that arrangement wherever possible in order to make the decision-making procedure more flexible;

Multiannual financial framework

6.  Welcomes the formal status granted in the Lisbon Treaty to the MFF, which becomes a legally binding act; points out that the MFF programmes EU expenditure and places a ceiling on Union spending over a given period, thereby helping to strengthen budgetary discipline;

7.  Welcomes the fact that the regulation laying down the MFF will have to be jointly approved by Parliament and the Council, under a special procedure;

8.  Regrets, however, that the Lisbon Treaty has retained the requirement that the Council should act unanimously when adopting the MFF, rendering the decision-making procedure very difficult and encouraging negotiations on the basis of the "lowest common denominator"; urges the European Council, therefore, to make use as soon as possible of the provision which enables it, by means of a unanimous decision, to impose a switch to qualified-majority voting for the adoption of the MFF;

9.  Regrets, further, that under the new procedure Parliament has only a right of approval and no genuine power of codecision; however, emphasises the fact that the Lisbon Treaty stipulates that the institutions must take any measure necessary, throughout the procedure, to ensure that is ultimately successful; calls on the Council, therefore, to demonstrate its willingness, from the start of the procedure, to develop a structured political dialogue with Parliament in order to take full account of the latter's priorities;

10.  Notes that the Lisbon Treaty stipulates that the MFF will determine not only the "amounts" of the "annual ceilings on commitment appropriations by category of expenditure and of the annual ceiling on payment appropriations", but will also lay down "any other provisions required for the annual budgetary procedure to run smoothly'(5);

Duration of the MFF

11.  Welcomes the fact that the Lisbon Treaty provides for the possibility of financial programming over five years, so that, if the necessary changes are introduced, the MFF can be made to match, as far as possible, Parliament's parliamentary term and the Commission's term of office, as democratic logic requires; emphasises that particular arrangements to cope with the needs of specific policies for longer-term financial periods could be required;

12.  Supports, therefore, the switch to a five-year MFF, but is aware that a full coincidence between the MFF and the term of the European Parliament and the term of Office of the Commission might be difficult, as it considers that a negotiating period of at least one year may be necessary to allow each new Parliament and each new Commission to take fundamental financial policy decisions during their terms of office;

13.  Takes a very favourable view of the incorporation of the MFF into a comprehensive approach to interinstitutional strategic programming - one which, moreover, is consolidated in the Lisbon Treaty - as suggested in the report by the Committee on Constitutional Affairs on the institutional balance(6);

14.  Endorses the proposal made in that report that the new College of Commissioners, when presenting its "programme for its term of office", should submit proposals concerning the guidelines for the financial framework which it regards as necessary to achieve political priorities for its term of office - priorities which, once the programme for the parliamentary term has been agreed between the institutions, would be developed through its proposals in the MFF;

15.  Takes the view, moreover, that at debates in plenary and hearings before the parliamentary committees the nominee for the post of President of the Commission should already be in a position to provide an outline of the likely financial implications of the political objectives the new Commission intends to pursue;

16.  Emphasises that the switch to five-year financial programming, as referred to above, could necessitate the prolongation and adjustment of the current MFF to 2016 inclusive, so that the next five-year MFF can enter into force, at the latest, in early 2017(7); recommends that the negotiations for the next MFF be in any case concluded by the end of the first trimester of 2016, in order to allow for the budgetary procedure for 2017 to run already within the parameters of the framework that will be in force in 2017;

17.  Stresses that the negotiations should be conducted in such a way as to allow the institutions to envisage the entry into force of a new MFF already in 2016;

18.  Considers that the prolongation and adjustment of the current MFF should be considered when the next mid-term review is carried out in 2010;

Flexibility

19.  Emphasises that the legally binding nature of the MFF necessitates, even more than before, the introduction of more flexible implementing arrangements so that the Union can respond sufficiently flexibly and effectively to unforeseen challenges, both within and outside the Union;

20.  Draws attention to the fact that the Lisbon Treaty stipulates that the ceilings corresponding to the last year of the existing MFF and other provisions will be extended if the new MFF has not been adopted before the preceding MFF expires; regards this as a further argument in favour of increased flexibility;

21.  Emphasises, in that connection, the importance of strengthening flexibility mechanisms operating within and between each heading and through specific flexibility instruments which can be mobilised outside the margins;

22.  Points out that the Committee on Budgets will give its views on these matters when adopting its report on the mid-term review of the 2007-2013 MFF;

Transition from the interinstitutional agreement to the MFF

23.  Draws attention to the need, in good time prior to the entry into force of the Lisbon Treaty, for the institutions to reach agreement on the arrangements for making the transition from the current interinstitutional agreement to an MFF contained in a legislative act, as provided for by the Lisbon Treaty; recalls that a period of eight weeks is required for scrutiny by national parliaments of draft legislative acts;

24.  Takes the view, in that connection, that agreement will have to be reached as to which of the provisions that currently form part of the interinstitutional agreement should be switched to the MFF, which should be incorporated into the future Financial Regulation and which might justify the retention of an interinstitutional agreement - possibly incorporating new provisions - on budgetary cooperation; points out that this process of dividing up the provisions of the current interinstitutional agreement will have to take account of the criteria laid down in the Lisbon Treaty itself;

Annual budgetary procedure

25.  Warmly welcomes the abolition of the distinction between compulsory expenditure (CE) and non-compulsory expenditure (NCE), as a result of which Parliament now has the right to take decisions concerning all Union expenditure on an equal footing with the Council;

26.  Emphasises that the abolition of the distinction between CE and NCE is not at odds with the Union's obligation to honour its financial commitments, and welcomes the fact that the Lisbon Treaty acknowledges that it is for Parliament, the Council and the Commission to ensure "that the financial means are made available to allow the Union to fulfil its legal obligations in respect of third parties"(8);

27.  Notes that the changes to the annual budgetary procedure should serve to make it more simple by laying down the principle of a single reading for each institution and by introducing a number of mechanisms designed to help the two arms of the budgetary authority reach agreement; emphasises that these changes should lead to less bureaucracy;

Role of the Commission

28.  Emphasises the strengthening of the role conferred on the Commission, which acquires a right of initiative in the budgetary sphere and may amend its draft budget until such time as the Conciliation Committee is convened;

29.  Welcomes the fact that the Treaty also acknowledges that it is for the Commission to take all the necessary initiatives with a view to reconciling the positions of Parliament and the Council during the proceedings of the Conciliation Committee, thus inviting it to play to the full its role of mediator between Parliament and the Council with a view to securing an agreement;

A completely new approach

30.  Draws attention to the fact that the new procedure provides for only a single reading of the draft budget by each institution; emphasises that the new procedure and the single reading will no longer make it possible in de facto terms for the institutions to adjust their standpoints at second reading, as they were able to hitherto; is convinced, therefore, that this procedure will require Parliament to fine-tune its political priorities at an earlier stage and adapt accordingly its operational approach and organisational arrangements so as to enable it to achieve all the objectives set;

31.  Points out that this single reading must be used to assert Parliament's political priorities, but must also enable it to reach agreement with the Council by the time the Conciliation Committee has completed its work (or enable it to adopt its amendments again by a large majority, in the event of approval by Parliament and rejection by the Council of the text drawn up by the Conciliation Committee);

32.  Emphasises, in that connection, the importance of retaining a pragmatic timetable similar to the current one, whilst calling for conciliation to be initiated in good time; points out, moreover, that the introduction of informal arrangements for dialogue between the institutions is crucial to facilitating agreement before the procedure starts and then throughout its duration;

33.  Is convinced that the Lisbon Treaty will strengthen Parliament's powers, provided that it equips itself with the means to manage effectively both the tighter timetable and the greater need to plan ahead thoroughly which will result from the introduction of the new procedure;

34.  Takes the view that in future its resolution before the first conciliation meeting will take on increased importance, since it will enable Parliament formally to set out its budgetary priorities for the coming financial year, unencumbered by tactical considerations linked to the Council's position on the draft budget; takes the view that that resolution will thus give the other institutions a clear picture of Parliament's priorities before the interinstitutional negotiations start; adds that this will also provide Parliament with an opportunity to set out some initial guidelines concerning pilot projects and preparatory actions;

35.  Points out that these priorities will also be of great value to Parliament both as guidelines for its reading of the draft budget and as a negotiating mandate for its delegation to the Conciliation Committee;

36.  Stresses the importance of organising a trialogue in July of each year in order to enable each institution to gain a clear insight into the priorities of the other parties and to enable Parliament to apprise the other institutions of the substance of the resolution on the draft budget to be adopted in July;

37.  Highlights the political value of the establishment – in keeping with each body's respective powers – of in-depth dialogue with the counterpart committees from the national parliaments on the draft budget and Parliament's priorities for the annual budgetary procedure;

Conciliation Committee

38.  Emphasises the importance which the Conciliation Committee will have in the future as the body in which political disagreements between the two arms of the budgetary authority are resolved; points out that this committee will have the task of finding, within 21 days, an agreement on a compromise text which will enter into force if it is not rejected by the budgetary authority; takes the view that the members of this committee must be drawn from the very highest political level;

39.  Welcomes the fact that the Lisbon Treaty confers a decisive role on Parliament at the end of the procedure; points out that:

40.  Emphasises that it would be desirable for Parliament's delegation to the Conciliation Committee to be headed by the chair of the Committee on Budgets and for it to incorporate, if required and without prejudice to the political nature of the procedure for the appointment of its members by the political groups, in addition to the members of that committee, members of specialist parliamentary committees in cases where the negotiations concern a specific issue within their policy area;

41.  Calls on the Council to reach agreement with Parliament quickly on the Conciliation Committee's working arrangements;

42.  Takes the view, for its part, that the Conciliation Committee should be able to meet at least twice at the highest political level, if that is necessary for agreement to be reached, its meetings to be preceded by a preparatory political trialogue, in keeping with the traditional arrangement; reiterates the need for the Council's representatives at these meetings to be issued with a political negotiating mandate;

43.  Proposes that these proceedings should be prepared by an interinstitutional preparatory working party comprising the general rapporteur and representatives of the political groups, for Parliament, and the Permanent Representative of the country holding the EU Presidency, who may be accompanied by representatives of the two other Presidencies in the troïka;

44.  Points out, further, that the institutions must reach agreement on the composition of the Conciliation Committee secretariat, which should probably consist of officials from the two arms of the budgetary authority, assisted by the Commission;

Agricultural matters

45.  Draws attention to the fact that the rule stipulating that the Commission may no longer amend its draft budget once the Conciliation Committee has been convened will preclude the use of the traditional autumn letter of amendment to take account of the updated forecasts for agricultural policy and their budgetary implications; takes the view that, if these circumstances arise, the most appropriate procedure would involve the submission by the Commission – if necessary – of a specific draft amending budget (an "agricultural AB") once all the agricultural data have been finalised;

Relations with the legislative authority

46.  Emphasises that the parallelism between the extension of Parliament's budgetary powers to cover all Union expenditure and the widening of the codecision procedure to encompass almost all legislation calls for greater account to be taken of the budgetary dimension to legislative activity; with that aim in view, regards it as essential that cooperation between the Committee on Budgets and the sectoral committees should be stepped up in order to take due account of the financial impact of Parliament's legislative activity, in particular its impact on the MFF and the annual budget; proposes, accordingly, that the legislative conciliation committees on matters with financial implications should include a member of the Committee on Budgets; to that end, draws attention to the work of the Working Party on Parliamentary Reform, not least as regards the specific forms of cooperation between parliamentary committees set out in the third interim report;

47.  Points out, moreover, that the Lisbon Treaty extends to all Union institutions the obligation to enforce budgetary discipline; points out that Parliament's Rules of Procedure already lay down a specific procedure designed to ensure that that principle is observed; takes the view that this procedure will have to be made more workable and effective;

Financial Regulation

48.  Welcomes the fact that the Financial Regulation becomes a regulation adopted under the ordinary legislative procedure (codecision) by Parliament and the Council, after consulting the Court of Auditors;

49.  Points out that the Lisbon Treaty contains the main provisions to be used to identify those provisions of the current interinstitutional agreement which should be retained in the future agreement and those which should instead be incorporated into the MFF;

50.  Notes, however, that the Financial Regulation should incorporate all the provisions needed to define the budgetary procedure, in accordance with the provisions of the Treaty(9); takes the view that such provisions would cover the functioning of the Conciliation Committee, the mechanism triggering conciliation, and, naturally enough, the updating of the provisions of the Financial Regulation directly affected by the changes introduced by the Lisbon Treaty (i.e. the abolition of the distinction between CE and NCE, a new codecision procedure for transfers, etc.);

51.  Regards it as vital that the institutions should reach a political agreement on these matters in due time so that, once the Lisbon Treaty has entered into force, the requisite changes to the Financial Regulation can quickly be made using the new procedure and, if needed, provide for provisional agreements to allow the smooth continuation of the budgetary procedure;

52.  Calls on the Commission to put forward in due time a proposal which enables Parliament and the Council to reach agreement on the application of the identification criteria referred to in paragraph 49 to the substance of the current interinstitutional agreement;

53.  Argues that these changes to the Financial Regulation must be kept strictly separate from the three-yearly review of that document scheduled for 2010;

Budgetary impact of the interinstitutional changes and the Union's new competences

54.  Notes that the entry into force of the Lisbon Treaty will also have an impact on the Union budget through the institutional innovations it contains, in particular the elevation of the European Council to the status of institution, accompanied by the establishment of a fixed Presidency, and the creation of the post of High Representative and of the European External Action Service, whose task will be to support the High Representative in his or her work;

55.  Reiterates, as of now, its intention of exercising its budgetary powers to the full in connection with these institutional innovations and emphasises the importance of reaching a political agreement with the Council in due time on funding arrangements for the European Council, and, in particular, its fixed Presidency, and for the future European External Action Service; emphasises that all aspects of the funding arrangements for that service must remain under the supervision of the budgetary authority;

56.  Points out that in the framework of the CFSP and the common security and defence policy the Lisbon Treaty provides for the establishment of new procedures to grant rapid access to the Union budget and to create a start-up fund of Member State contributions; stresses, however, that all external actions of the Union should as a rule be financed from Community appropriations, and only exceptionally – in the event of an emergency – on the basis of contributions outside the Union budget;

57.  Notes that the Lisbon Treaty will also have a financial impact, however limited, by virtue of the new specific competences conferred on the Union; states its willingness to analyse, at the appropriate juncture, the practical implications of the exercise of these new competences; takes the view that these competences will certainly not be implemented en bloc immediately after the entry into force of the Lisbon Treaty, but rather gradually as the relevant legislative proposals are drawn up; takes the view, however, that they must not be funded to the detriment of the Union's current activities;

Coordination with national budgets

58.  Wishes to invite the national parliaments to take part, each year, in a joint public debate on national and Community budgetary policy guidelines, prior to consideration of the respective draft budgets, in order to establish from the outset a common framework for coordination of Member States" national policies, while also taking into account the Community contribution;

59.  Points out that the decision on the apportionment of EU budget expenditure in the light of the Union's major objectives would be usefully informed by the annual publication, by each Member State, of the appropriations under national and, where applicable, regional budgets that contribute to achieving those objectives;

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60.  Instructs its President to forward this resolution to the Council, the Commission and the parliaments of the Member States.

(1) OJ C 139, 14.6.2006, p. 1. (2) OJ C 61 E, 10.3.2004, p. 143. (3) OJ C 27 E, 31.1.2008, p. 214. (4) OJ C 124 E, 25.5.2006, p. 373. (5) Article 312(3) of the Treaty on the Functioning of the European Union. (6) Dehaene report of 18 March 2009 on the impact of the Lisbon Treaty on the development of the institutional balance of the European Union (A6-0142/2009). (7) In keeping with the model described in the following table taken from the Committee on Budgets" report of 26 February 2009 on the mid-term review of the financial framework 2007-2013 (A6-0110/2009):___________________________________________________________________________________Year 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019budget prep 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020Parliamentary term 2004 / 2009 2009 / 2014 2014 / 2019MFF Review 2007 / 2013 2013 / 2016 2017 / 2021 (8) Article 323 of the Treaty on the Functioning of the European Union. (9) According to Article 322(1)(a) of the Treaty on the Functioning of the European Union, it must include 'the financial rules which determine in particular the procedure to be adopted for establishing and implementing the budget'.

European Parliament legislative resolution of 7 May 2009 on the proposal for a decision of the European Parliament and of the Council amending Decision No 573/2007/EC establishing the European Refugee Fund for the period 2008 to 2013 by removing funding for certain Community actions and altering the limit for funding such actions (COM(2009)0067 – C6-0070/2009 – 2009/0026(COD))

P6_TA(2009)0375 A6-0280/2009

(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2009)0067),

–   having regard to Article 251(2) and Article 63, first paragraph, point 2(b) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0070/2009),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Budgets (A6-0280/2009),

1.  Approves the Commission proposal;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

European Parliament legislative resolution of 7 May 2009 on the proposal for a directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (recast) (COM(2008)0815 – C6-0477/2008 – 2008/0244(COD))

P6_TA(2009)0376 A6-0285/2009

(Codecision procedure – recast)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0815),

–   having regard to Article 251(2) and Article 63(1)(b) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0477/2008),

–   having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(1),

–   having regard to the letter of 4 April 2009 from the Committee on Legal Affairs to the Committee on Civil Liberties, Justice and Home Affairs in accordance with Rule 80a(3) of its Rules of Procedure,

–   having regard to Rules 80a and 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0285/2009),

A.   whereas, according to the Consultative Working Party of the Legal Services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance,

1.  Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission and as amended below;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 7 May 2009 with a view to the adoption of Directive 2009/.../EC of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers(recast)

(Text with EEA relevance)

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 Committee(2),

Having regard to the opinion of the Committee of the Regions(3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),

Whereas:

(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 seekers(5). In the interests of clarity, that Directive should be recast.

(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.

(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.

(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.

(5)  The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy.

(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 concluded. 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 ║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.

(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.

(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 ▌should be laid down.

(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.

(13)  With a view to ensuring equal treatment among all applicants for international protection as well as in order to ensure 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 granted(6), it is appropriate to extend the scope of this Directive in order to include applicants for subsidiary protection.

(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.

(15)  The immediate identification and monitoring of persons with special needs should be a primary concern of national authorities in order to ensure that their reception conditions are specifically designed to meet their special needs.

(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 the international legal obligations of the Member States, and particularly 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 on 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 principles of necessity and proportionality with regard both to the manner and to the purpose of such detention. Where ║ asylum seekers are held in detention they should have a right to a judicial remedy before national court.

(17)  Applicants who are in detention should be treated with full respect for human dignity and their reception conditions should be specifically designed to meet their needs in that situation. In particular, Member States should ensure compliance with Article 37 of the 1989 UN Convention on the Rights of the Child ║.

(18)  In order to ensure compliance with minimum procedural safeguards 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.

(19)  The possibility of abuse of the reception system should be restricted by specifying the circumstances in which 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. 

(20)  The efficiency of national reception systems and cooperation among Member States in the field of reception of asylum seekers should be secured.

(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.

(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.

(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 those applicable under Directive 2004/83/EC.

(24)  In order to cover any improvements in minimum standards for the reception of asylum seekers, there should be a proportionate increase in the funds made available by the European Union in order to cover the costs of such improvements, especially in the case of Member States which are facing specific and disproportionate pressures on their national asylum systems, owing in particular to their geographical or demographic situation.

(25)  The implementation of this Directive should be evaluated at regular intervals.

(26)  Since the objective of this Directive, 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 at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(27)  This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (the Charter). In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 24 and 47 of the ║ Charter and should be implemented accordingly.

(28)  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.

(29)  This Directive should be without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of this Directive set out in Annex II, Part B,

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

Article 3

Scope

1.  This Directive shall apply to all third country nationals and stateless persons who make an application for international protection 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 international protection according to the applicable national law.

2.  This Directive shall not apply to 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 thereof(7) are applied.

4.  Member States may decide to apply this Directive in connection with procedures for deciding on applications for kinds of protection other than those applicable under Directive 2004/83/EC. 

Article 4

More favourable provisions

Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and close relatives of asylum seekers who are present in the same Member State when they are dependent on the asylum seeker or for humanitarian reasons insofar as those 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 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.

2.  Member States shall ensure that the information referred to in paragraph 1 is in writing and in a language that the applicants understand or may reasonably be presumed to understand. Where appropriate, this information may also be supplied orally.

Article 6

Documentation

1.  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 she is allowed to stay in the territory of the Member State while his or her application is pending or being examined.

No additional documents shall be required in order to secure access to the rights and benefits conferred on asylum seekers under this Directive.

If the holder of the document referred to in the first subparagraph 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 an asylum seeker is in detention and during the examination of an application for 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   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 or at the border of the Member State concerned ║.

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 ensuring 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 policy or, when necessary, for the swift processing and effective monitoring of his or her application.

3.  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.

4.   When it proves necessary, for example for legal reasons or reasons of public policy, Member States may confine an applicant to a specific place in accordance with their national law.

5.  Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence referred to in paragraphs 2 and 3 and/or the assigned area referred to 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.

6.  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.

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 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status(8).

2.  When it proves necessary and on the basis of an individual assessment of each case, Member States may confine 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 confined to a particular place:

This paragraph is without prejudice to Article 11.

3.  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.

Article 9

Guarantees for detained asylum seekers

1.  Detention shall be ordered for the shortest period possible. In particular, the period of detention pursuant to Article 8 (2) (a), (b) or (c) shall not exceed the time reasonably needed to complete the administrative procedures required in order to obtain information on the asylum seeker's nationality or identity or on the elements on which his application is based, or to complete the relevant procedure with a view to deciding on his/her right to enter the territory.

Such procedures should be completed with all due dispatch. Delays in the ▌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 that 72 hour period, 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 which they understand or may reasonably be presumed to understand.

5.   ║ Continued detention shall be reviewed by a judicial authority at reasonable intervals of time either at the request of the asylum seeker concerned or ex officio.

Detention shall never be unduly prolonged.

6.  Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with Article 15(3) to (6) of Directive 2005/85/EC.

Procedures for access to legal assistance and/or representation in such cases shall be laid down in national law.

Article 10

Detention conditions ║

1.  Member States shall not detain asylum seekers in prison accommodation. Detention shall only take place in specialised detention facilities.

Asylum seekers in detention shall be held 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.

2.  Member States shall ensure that asylum seekers in detention have the opportunity to establish contact, including visiting rights, with legal representatives, family members, social workers and religious visitors. The United Nations High Commissioner for Refugees (UNHCR) and other relevant and competent national, international and non-governmental 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 held in detention have access to appropriate medical treatment and psychological counselling where appropriate.

4.  Member States shall ensure that asylum seekers in detention are immediately provided with up-to-date information on the rules which apply in the facility and set out their rights and obligations in a language which they understand or may reasonably be presumed 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 interests, as prescribed in Article 23(2) and only after taking into consideration the findings of the individual examination of their situation in accordance with paragraph 5 of this Article ║.

Unaccompanied minors shall never be detained.

2.  Where minors are detained they shall have the possibility to engaging in leisure-activities, including play and recreational activities appropriate to their age, and open-air activities.

3.  Detained families shall be provided with separate accommodation ensuring adequate privacy.

4.  Where female asylum seekers are detained, Member States shall ensure that they are accommodated separately from male asylum seekers, unless they 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 and independent 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.

Article 12

Families

Member States shall take appropriate measures to maintain as far as possible the family unity of asylum seekers present in their territory, if they are provided with housing by the Member State concerned. Such measures shall be implemented with the asylum seeker's agreement.

Article 13

Medical screening

Member States may require medical screening for applicants on public health grounds.

Article 14

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.

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 be ensured as soon as possible once the application for international protection has been lodged by or on behalf of the minor and, in any event, shall not be postponed for more than three months from the date on which the application for international protection was lodged║.

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.

3.  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 offer other educational arrangements in accordance with national law and practice.

Article 15

Employment

1.  Member States shall ensure that applicants have access to the labour market no later than six months following the date when the application for international protection was lodged.

2.  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 an ordinary procedure has suspensive effect, until such time as a negative decision on the appeal is issued.

Article 16

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 15.

Article 17

General rules on material reception conditions and health care

1.  Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection. 

2.  Member States shall ensure that material reception conditions provide an adequate standard of living for applicants ║, which ensures their subsistence and protects their physical and mental health. 

Member States shall ensure that such a standard of living is provided in the specific situation of persons who have special needs, in accordance with Article 22, 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 ensure 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 those basic needs were being met, 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 the three elements.

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 laid down in this Article.

Article 18

Modalities for material reception conditions

1.  Where housing is provided in kind, it should take one or a combination of the following forms:

2.  Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured:

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 centres referred to in paragraph 1(a) and (b).

Member States shall take appropriate measures to prevent assault and gender-based violence, including sexual assault, within the premises and accommodation centres referred to in paragraph 1(a) and (b).

3.  Member States shall ensure, that minor children of applicants or applicants who are minors are housed with their parents or with the adult family member responsible for them whether by law or by custom provided that it 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 which they obtain in the course of their work.

6.  Member States may involve applicants in managing the material resources and non-material 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 UNHCR or non-governmental organisations designated by UNHCR and recognised by the Member State concerned shall be granted access to accommodation centres and other housing facilities in order to assist ║asylum seekers. Restrictions 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 lay down rules for material reception conditions which are different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:

Such different conditions shall cover in any case basic needs.

Article 19

Health care

1.  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.

2.  Member States shall provide the necessary medical or other assistance to applicants who have special needs, including appropriate mental health care when required ▌.

Article 20

Victims of torture

Member States shall ensure that victims of torture are quickly directed to a care centre appropriate to their situation.

CHAPTER III

REDUCTION OR WITHDRAWAL OF MATERIAL RECEPTION CONDITIONS

Article 21

Reduction or withdrawal of material reception conditions

1.  Member States may reduce material reception conditions ║ where an asylum seeker:

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 reintroduction of the grant of some or all of the material reception conditions reduced.

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.

3.  Member States may determine the sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour.

4.  Decisions for the reduction or withdrawal 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 22, 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.

5.  Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative decision is taken.

CHAPTER IV

PROVISIONS FOR PERSONS WITH SPECIAL NEEDS

Article 22

General principle

1.  Member States shall take into account the specific situation of persons with special needs in the national legislation implementing this Directive. Vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of trafficking, victims of female genital mutilation, 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.

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 adequate support for persons with special needs throughout the asylum procedure and shall provide for appropriate monitoring of their situation.

Article 23

Minors

1.  The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive applicable to minors. Member States shall ensure a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

2.  In assessing the best interests of the child, Member States shall in particular take due account of the following factors:

3.  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).

4.  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 or degrading treatment, or who have suffered from armed conflicts, and ensure that appropriate mental health care ║ and qualified counselling are provided when needed.

Article 24

Unaccompanied minors

1.  Member States shall ▌take measures to ensure the necessary representation of unaccompanied minors by legal guardians ▌. A guardian shall be appointed to advise and protect the child and to ensure that all decisions are taken in the child's best interests. A guardian should have the necessary expertise in the field of childcare so as to ensure that the interests of the child are protected and that the child's legal, social, health, psychological, material and educational needs are appropriately met. Agencies or individuals whose interests could potentially conflict with those of the child shall not be eligible to become guardians. Regular assessments shall be made by the appropriate authorities.

2.  Unaccompanied minors who make an application for international protection shall, from the moment when they are admitted to the territory to the moment when they are obliged to leave the territory of the Member State in which the application for  international protection was made or is being examined, be placed:

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.

3.  Member States shall establish procedures in national legislation for tracing the family members of an unaccompanied minor. They shall start to trace the members of the unaccompanied minor's family as soon as possible after an application for international protection is lodged, while protecting his/her best interests. 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 exchange of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardizing their safety.

4.  Persons working with unaccompanied minors shall have received and shall continue to receive appropriate training concerning their needs, and shall be bound by the confidentiality principle as defined in national law, in relation to any information which they obtain in the course of their work.

Article 25

Victims of torture and violence

1.  Member States shall ensure that persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment for the damage caused by such acts, in particular access to rehabilitation services that should include obtaining medical and psychological treatment.

2.  Those working with victims of torture, rape or other serious acts of violence shall have received and shall 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 which they obtain in the course of their work.

CHAPTER V

APPEALS

Article 26

Appeals

1.  Member States shall ensure that decisions relating to the grant, withdrawal of or reduction in 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 national law. At least in the last instance the right to an appeal or a review, in fact and in law, to or by a judicial body, shall be granted.

2.  Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with Article 15(3) to (6) of Directive 2005/85/EC.

Procedures for access to legal assistance and/or representation in such cases shall be laid down in national law.

CHAPTER VI

ACTIONS TO IMPROVE THE EFFICIENCY OF THE RECEPTION SYSTEM

Article 27

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.

Article 28

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.

2.  Member States shall submit relevant information to the Commission in the form set out in Annex I on a yearly basis, starting from […].

Article 29

Staff and resources

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.

CHAPTER VII

FINAL PROVISIONS

Article 30

Reports

By […] 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 28(2) by […].

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 31

Transposition

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with 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 communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

When Member States adopt those provisions, they shall contain a reference to this Directive or 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.  Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 32

Repeal

Directive 2003/9/EC is repealed with effect from [day after the date set out in the first subparagraph of Article 31(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.

Article 33

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 31(1)]. 

Article 34

Addressees

This Directive is addressed to the Member States.

Done at [...]

For the European Parliament For the Council

The President The President

ANNEX I

Reporting form on the information to be submitted by Member States on an annual basis, as required under Article 28(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 ║ asylum seeker or a family member as defined in Article 2(c) of Directive […/…/EC].

2.  On the basis of Article 22 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:

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.

4.  With reference to Article 15 of Directive [.../.../EC], indicate the total number of ║ asylum seekers 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) of 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.

▌

ANNEX II

Part A

Repealed Directive

(referred to in Article 32)

Part B

Time-limit for transposition into national law

(referred to in Article 31)

ANNEX III

Correlation Table

(1) OJ C 77, 28.3.2002, p. 1. (2) OJ C […], […], p. […]. (3) OJ C […], […], p. […]. (4) Position of the European Parliament of 7 May 2009. (5) OJ L 31, 6.2.2003, p. 18. (6) OJ L 304, 30.9.2004, p. 12. (7) OJ L 212, 7.8.2001, p. 12. (8) OJ L 326, 13.12.2005, p. 13.

European Parliament legislative resolution of 7 May 2009 on the 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 (recast) (COM(2008)0820 – C6-0474/2008 – 2008/0243(COD))

P6_TA(2009)0377 A6-0284/2009

(Codecision procedure – recast)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0820),

–   having regard to Article 251(2) and Article 63(1)(a) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0474/2008),

–   having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(1),

–   having regard to the letter of 3 April 2009 from the Committee on Legal Affairs to the Committee on Civil Liberties, Justice and Home Affairs in accordance with Rule 80a(3) of its Rules of Procedure,

–   having regard to Rules 80a and 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0284/2009),

A.   whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance,

1.  Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission and as amended below;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 7 May 2009 with a view to the adoption of Regulation (EC) No .../2009 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(recast)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63, first paragraph, point (1)(a) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee(2),

Having regard to the opinion of the Committee of the Regions(3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),

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(5). In the interests of clarity, that Regulation should be recast.

(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.

(3)  The European Council, at its special meeting in Tampere on 15 and 16 October 1999, 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 ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without affecting the responsibility criteria laid down in this Regulation, Member States, which all respect the principle of non-refoulement, are considered as safe countries for third-country nationals.

(4)  The Tampere conclusions also stated that this system 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 ensure effective access to the procedures for determining international protection status and not to compromise the objective of the rapid processing of applications for international protection.

(6)  As regards the introduction in successive phases 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, it is appropriate at this stage, while making the necessary improvements in the light of experience, to confirm the principles underlying the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed in Dublin on 15 June 1990 (the Dublin Convention), whose implementation has stimulated the process of harmonising asylum policies.

(7)  The first phase in the creation of a Common European Asylum System ║ has now been completed. 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 ║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.

(8)  The services of the Member States responsible for asylum should receive practical aid to meet their day-to-day operational requirements. Here the European Asylum Support Office, established by Regulation (EC) No .../... of ...(6), has a vital role to play.

(9)  In the light of the results of the evaluations undertaken, 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 enhance the effectiveness of the system and the protection granted to applicants for international protection under this procedure.

(10)  With a view to ensuring equal treatment for all applicants and beneficiaries of international protection, as well as in order to ensure 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 granted║(7), it is appropriate to extend the scope of this Regulation in order to include applicants for subsidiary protection and persons enjoying subsidiary protection.

(11)  In order to ensure equal treatment of all asylum seekers, Directive ║ …/…/EC║ of the European Parliament and of the Council of … [laying down minimum standards for the reception of asylum seekers](8) should apply to the procedure regarding the determination of the Member State responsible as prescribed under this Regulation.

(12)  In accordance with the 1989 United Nations Convention on the Rights of the Child and the Charter of Fundamental Rights of the European Union, the best interests of the child should be a primary consideration of Member States in the application of this Regulation. In addition, specific procedural safeguards for unaccompanied minors should be laid down on account of their particular vulnerability.

(13)  In accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union, respect for family unity should be a primary consideration of Member States when applying this Regulation.

(14)  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 and the decisions taken in respect of them are consistent and that the members of one family are not separated.

(15)  In order to ensure full respect for the principle of family unity and of the best interests of the child, the existence of a relationship of dependency between an applicant and his/her extended family on account of pregnancy or maternity, their state of health or great age, should become binding responsibility criteria. When the applicant is an unaccompanied minor, the presence of a relative on the territory of another Member State who can take care of him/her should also become a binding responsibility criterion.

(16)  Any Member State should be able to derogate from the responsibility criteria, in particular for humanitarian and compassionate reasons, 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, provided that the Member State concerned and the applicant agree thereto.

(17)  A personal interview should be organised in order to facilitate the determination of the Member State responsible for examining an application for international protection and ▌to orally inform applicants about the application of this Regulation.

(18)  In accordance in particular with Article 47 of the Charter of Fundamental Rights of the European Union, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established to ensure effective protection of the rights of the individuals concerned.

(19)  In accordance with the case-law of the European Court of Human Rights, an effective remedy 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 in order to ensure that international law is respected.

(20)  For the purposes of this Regulation "detention" should not carry a penal or punitive connotation, but should mean an exclusively administrative and temporary measure equivalent to a holding operation.

(21)  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. In particular, detention of asylum seekers must be applied in line with Article 31 of the Geneva Convention in administrative holding centres distinct from prison facilities and under the clearly defined exceptional circumstances and safeguards prescribed in Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers]. Moreover, the use of detention for the purpose of transfer to the Member State responsible should be limited and subject to the principle of proportionality with regard to the means taken and objective pursued.

(22)  In accordance with Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003(9), transfers to the Member State responsible may be carried out on a voluntary basis, by supervised departure or under escort. Member States should promote voluntary transfers and should ensure that supervised or escorted transfers are undertaken in a humane manner, in full compliance with fundamental rights and human dignity.

(23)  The progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the Treaty ║ and the establishment of Community policies regarding the conditions of entry and stay of third country nationals, including common efforts towards the management of external borders, make it necessary to strike a balance between responsibility criteria in a spirit of solidarity.

(24)  The application of this Regulation may, in certain circumstances, create additional burdens on Member States faced with a particularly urgent situation which places an exceptionally heavy pressure on their reception capacities, asylum system or infrastructure. In such circumstances, it is necessary to lay down an efficient procedure to allow the temporary suspension of transfers towards the Member State concerned and to provide financial assistance, in accordance with existing EU financial instruments. The temporary suspension of Dublin transfers can thus contribute to achieving a higher degree of solidarity towards those Member States facing particular pressures on their asylum systems, due in particular to their geographical or demographic situation.

(25)  The procedure for the suspension of transfers should also be applied when the Commission considers that the level of protection for applicants for international protection in a given Member State is not in conformity with Community legislation on asylum, in particular in terms of reception conditions,qualification for international protection and access to the asylum procedure, with a view to ensuring that all applicants for international protection benefit from an adequate level of protection in all Member States.

(26)  The procedure for the suspension of transfers is an exceptional measure to address issues of particular pressure or ongoing protection concerns.

(27)  The Commission should periodically review progress toward improving the long-term development and harmonisation of the Common European Asylum System, and the degree to which solidarity measures and the availability of a suspension procedure are facilitating that progress, and report on that progress.

In view of the fact that the Dublin system was not intended to be a mechanism for equitably sharing responsibilities with regard to the examination of applications for international protection, and that a number of Member States are particularly exposed to migratory flows, in particular by virtue of their geographical location, it is essential to reflect on and propose legally binding instruments to ensure greater solidarity between Member States and higher standards of protection. Such instruments should especially facilitate the secondment of officials from other Member States to assist those Member States which are faced with specific pressures and where applicants cannot benefit from adequate standards of protection and, where the reception capacities of one Member State are insufficient, facilitate the resettlement of beneficiaries of international protection in other Member States, providing that those concerned consent and that their fundamental rights are respected.

(28)  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(10) applies to the processing of personal data by the Member States in application of this Regulation.

(29)  The exchange of applicant's personal data, including sensitive data concerning health, to be transferred before a transfer is carried out 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 provision should be made to ensure the protection of data relating to applicants involved in this situation, in conformity with Directive 95/46/EC.

(30)  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.

(31)  Continuity between the system for determining the Member State responsible established by the 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 (EC) No ║.../…║ of the European Parliament and of the Council of ... [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 third-country national or a stateless person](11).

(32)  The operation of the Eurodac system, as established by Regulation (EC) No ║…/…║ [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 third-country national or a stateless person] and in particular the implementation of Articles 6 and 10 thereof should facilitate the application of this Regulation.

(33)  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(12), and in particular the implementation of Articles 21 and 22 thereof, should facilitate the application of this Regulation.

(34)  With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party.

(35)  The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(13).

(36)  In particular, the Commission should be empowered to adopt the conditions and procedures for implementing the provisions regarding unaccompanied minors and the reunification of dependent relatives and to adopt the criteria necessary for carrying out transfers. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(37)  The measures necessary for the implementation of Regulation (EC) No 343/2003 have been adopted by Regulation (EC) No 1560/2003. Certain provisions of Regulation (EC) No 1560/2003 should be incorporated into this Regulation, for reasons of clarity or because they can serve a general objective. In particular, it is important both for the Member States and for the asylum seekers 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 whole 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 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 and to promote the application of Articles 1, 4, 7, 24 and 47 of the Charter and should 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, given its scale and effects, can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT-MATTER AND DEFINITIONS

Article 1

Subject-matter

This Regulation lays down 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.

Article 2

Definitions

CHAPTER II

GENERAL PRINCIPLES AND SAFEGUARDS

Article 3

Access to the procedure for examining an application for international protection

1.  Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in a transit zone. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III of this Regulation indicate is responsible.

2.  Where no Member State responsible for examining the application for international protection can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for international protection is lodged shall be responsible for examining it.

3.  Any Member State shall retain the right to send an asylum seeker to a safe third country, subject to the rules and safeguards laid down in Directive 2005/85/EC.

Article 4

Right to information

1.  As soon as an application for international protection is lodged, the competent authorities of Member States shall inform the asylum seeker of the application of this Regulation, and in particular of:

(g)  ▌the right of access to data relating to him/her, and the right to request that inaccurate data relating to him/her be corrected or that unlawfully processed data relating to him/her be deleted, as well as the procedures for exercising those rights, including the contact details of the authorities referred to in Article 34 and of the National Data Protection Authorities which shall hear claims concerning the protection of personal data.

2.  The information referred to in paragraph 1 shall be provided in writing in a language that the applicant understands or may reasonably be presumed to understand. Member States shall use the common leaflet drawn up pursuant to paragraph 3 for that purpose.

For the proper understanding of the applicant, the information shall also be supplied orally, at the interview arranged pursuant to Article 5.

Member States shall provide the information in a manner appropriate to the age of the applicant.

3.  A common leaflet containing at least the information referred to in paragraph 1 shall be drawn up in accordance with the regulatory procedure referred to in Article 41(2).

Article 5

Personal interview

1.  The Member State carrying out the process of determining the Member State responsible under this Regulation shall call the applicants for a personal interview with a qualified person under national law to conduct such an interview.

2.  The personal interview shall have the purpose of facilitating the process of determining the Member State responsible, in particular ▌allowing the applicant to submit the relevant information necessary for the correct identification of the responsible Member State, as well as the purpose of informing the applicant orally about the application of this Regulation.

3.  The personal interview shall take place in a timely manner following the lodging of an application for international protection and, in any event, before any decision is taken to transfer the applicant to the responsible Member State pursuant to Article 25(1).

4.  The personal interview shall take place in a language that the applicant understands or may reasonably be presumed to understand and in which he/she is able to communicate. Where necessary, Member States shall select an interpreter who is able to ensure appropriate communication between the applicant and the person who conducts the personal interview.

5.  The personal interview shall take place under conditions which ensure appropriate confidentiality.

6.  The Member State conducting the personal interview shall make a short written report containing the main information supplied by the applicant at the interview and shall make a copy of that report available to the applicant. The report shall be attached to any transfer decision pursuant to Article 25(1).

Article 6

Guarantees for minors

1.  The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation.

2.  Member States shall ensure that a representative within the meaning of Article 2(i) of Directive 2005/85/EC represents and/or assists the unaccompanied minor with respect to all procedures provided for in this Regulation. This representative may also be the representative referred to in Article 24 of Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers].

3.  In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors:

4.  Member States shall establish procedures ▌for tracing the family members or other relatives present in the Member States of unaccompanied minors, where necessary with the assistance of international or other relevant organisations. They shall start to trace the members of the unaccompanied minor's family or other relatives as soon as possible after the lodging of the application for international protection while protecting his/her best interests.

5.  The competent authorities referred to in Article 34 who deal with requests concerning unaccompanied minors shall receive appropriate training concerning the specific needs of minors.

6.  Within the framework of the application of this Regulation and under the conditions laid down in Article 17 of Directive 2005/85/EC, Member States may use medical examinations to determine the age of unaccompanied minors.

In cases where medical examinations are used, Member States shall ensure that they are conducted in a reasonable and thorough manner, as required by scientific and ethical standards.

CHAPTER III

 CRITERIA FOR DETERMINING THE MEMBER STATE RESPONSIBLE

Article 7

Hierarchy of criteria

1.  The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter.

2.  The Member State responsible in accordance with the criteria set out in this Chapter shall be determined on the basis of the situation existing when the asylum seeker first lodged his/her application for international protection with a Member State.

▌

Article 8

Unaccompanied minors

1.  Where the applicant is an unaccompanied minor, the Member State responsible for examining the application for international protection shall be that where a member of his or her family is legally present, provided that this is in the best interests of the minor.

2.  Where the applicant is an unaccompanied minor who has no family members within the meaning of Article 2(i) legally present in another Member State but who has another relative legally present in another Member State who can take care of him or her, that Member State shall be responsible for examining the application, provided that this is in the best interests of the minor.

3.  Where members of the applicant's family or his/her other relatives are legally present in more than one Member State, the Member State responsible for examining the application shall be decided on the basis of what is in the best interests of the minor.

4.  In the absence of a family member or of another relative, the Member State responsible for examining the application shall be that where the minor has lodged his or her ▌application for international protection, provided that this is in the best interest of the minor. 

5.  The conditions and procedures for implementing paragraphs 2 and 3║ shall be adopted by the Commission. Those measures, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 41(3).

Article 9

Family members who are persons granted international protection

Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a person granted international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.

Article 10

Family members who are applicants for international protection

If the asylum seeker has a family member in a Member State whose application for international protection in that Member State has not yet been the subject of a first decision regarding the substance, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.

Article 11

Dependent relatives

1.  Where the asylum seeker is dependent on the assistance of a relative on account of pregnancy or a new-born child, serious illness, severe disability or old age, or where a relative is dependent on the assistance of the asylum seeker for the same reasons, the Member State responsible for examining the application shall be the one considered the most appropriate for keeping them together or reunifying them, provided that family ties existed in the country of origin and that the persons concerned expressed their desire in writing. In determining the most appropriate Member State, the best interests of the persons concerned shall be taken into account, such as the ability of the dependent person to travel.

2.  The conditions and procedures for implementing paragraph 1 shall be adopted by the Commission. Those measures, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 41(3).

Article 12

Family procedure

Article 13

Issuingof residence documents or visas

1.  Where the asylum seeker is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application for international protection.

2.  Where the asylum seeker is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for international protection, unless the visa was issued on behalf of or on the written authorisation of another Member State. In such a case, that other Member State shall be responsible for examining the application for international protection. Where a Member State first consults the central authority of another Member State, in particular for security reasons, the latter's reply to the consultation shall not constitute written authorisation within the meaning of this provision.

3.  Where the asylum-seeker is in possession of more than one valid residence document or visa issued by different Member States, the responsibility for examining the application for international protection shall be assumed by the Member States in the following order:

4.  Where the asylum seeker is in possession only of one or more residence documents which have expired less than two years previously or one or more visas which have expired less than six months previously and which enabled him/her actually to enter the territory of a Member State, paragraphs 1, 2 and 3 shall apply for such time as the applicant has not left the territory of the Member States.

Where the asylum seeker is in possession of one or more residence documents which have expired more than two years previously or one or more visas which have expired more than six months previously and enabled him/her actually to enter the territory of a Member State and where he/she has not left the territory of the Member States, the Member State in which the application for international protection is lodged shall be responsible.

5.  The fact that the residence document or visa was issued on the basis of a false or assumed identity or on submission of forged, counterfeit or invalid documents shall not prevent responsibility being allocated to the Member State which issued it. However, the Member State issuing the residence document or visa shall not be responsible if it is able to establish that fraud was committed after the document or visa had been issued.

Article 14

Entry and/or stay

1.  Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) of this Regulation, including the data referred to in Chapter III of Regulation (EC) No .../... [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 third-country national or a stateless person], that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection. Such responsibility shall cease 12 months after the date on which the irregular border crossing took place.

2.  When a Member State cannot or can no longer be held responsible in accordance with paragraph 1, and where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 22(3), that the asylum seeker - who has entered the territory of the Member States irregularly or whose circumstances of entry cannot be established - has been living for a continuous period of at least five months in a Member State before lodging the application for international protection, that Member State shall be responsible for examining the application for  international protection.

If the applicant has been living for periods of time of at least five months in several Member States, the Member State where he/she has lived most recently shall be responsible for examining the application for international protection.

Article 15

Visa waived entry

1.  If a third-country national or a stateless person enters into the territory of a Member State in which the need for him or her to have a visa is waived, that Member State shall be responsible for examining his or her application for international protection.

2.  The principle set out in paragraph 1 shall not apply if the third-country national or the stateless person lodges his or her application for international protection in another Member State, in which the need for him or her to have a visa for entry into the territory is also waived. In that case, that other Member State shall be responsible for examining the application for international protection.

Article 16

Application in an international transit area of an airport

Where the application for international protection is made in the international transit area of an airport of a Member State by a third-country national or a stateless person, that Member State shall be responsible for examining the application.

CHAPTER IV

DISCRETIONARY CLAUSES

Article 17

Discretionary clauses

1.  By way of derogation from Article 3║(1)║ each Member State may, in particular for humanitarian and compassionate reasons, decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation, provided that the applicant agrees thereto.

In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where applicable, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant by using the 'DubliNet' electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003.

The Member State becoming responsible in accordance with this paragraph shall also forthwith indicate in Eurodac that it has assumed responsibility pursuant to Article 6(3) of Regulation (EC) No ║.../...║ [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 third-country national or a stateless person].

2.  The Member State in which an application for international protection is made and which is carrying out the process of determining the Member State responsible, or the Member State responsible, may, at any time, request another Member State to take charge of an applicant in order to bring together family members, as well as other relatives, on humanitarian grounds based in particular on family or cultural considerations, even where that other Member State is not responsible under the criteria laid down in Articles 8 to 12║. The persons concerned must express their consent in writing.

The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation.

The requested Member State shall carry out any necessary checks to substantiate the humanitarian reasons cited, and shall give a decision on the request within two months of the date on which the request was received. A decision refusing the request shall state the reasons on which it is based.

Where the requested Member State accepts the request, responsibility for examining the application shall be transferred to it.

CHAPTER V 

OBLIGATIONS OF THE MEMBER STATE RESPONSIBLE

Article 18

Obligations of the Member State responsible

1.  The Member State responsible for examining an application for international protection under this Regulation shall be obliged to:

2.  The Member State responsible shall in all circumstances referred to in paragraph 1(a) to (d) examine or complete the examination of the application for international protection made by the applicant, within the meaning of Article 2(d). When the Member State responsible had discontinued the examination of an application following its withdrawal by the applicant, it shall revoke that decision and complete the examination of the application, within the meaning of Article 2(d).

Article 19

Cessation of responsibilities

1.  Where a Member State issues a residence document to the applicant, the obligations specified in Article 18(1), shall be transferred to that Member State.

2.  The obligations specified in Article 18(1), shall cease where the Member State responsible for examining the application can establish, when requested to take charge or take back an applicant or another person as referred to in Article 18(1)(d), that the person concerned has left the territory of the Member States for at least three months, unless the person concerned is in possession of a valid residence document issued by the Member State responsible.

An application lodged after such an absence shall be regarded as a new application giving rise to a new procedure for the determination of the Member State responsible.

3.  The obligations specified in Article 18(1)(c) and (d), shall cease where the Member State responsible for examining the application can establish, when requested to take back an applicant or another person as referred to in Article 18(1)(d), that the person concerned has left the territory of the Member States in compliance with a return decision or removal order which it issued following the withdrawal or rejection of the application.

An application lodged after an effective removal shall be regarded as a new application giving rise to a new procedure for the determination of the Member State responsible.

CHAPTER VI

PROCEDURES FOR TAKING CHARGE AND TAKING BACK

Section I

Start of the procedure

Article 20

Start of the procedure

1.  The process of determining the Member State responsible under this Regulation shall start as soon as an application for international protection is first lodged with a Member State.

2.  An application for international protection shall be deemed to have been lodged once a form submitted by the applicant or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible.

3.  For the purposes of this Regulation, the situation of a minor who is accompanying the asylum seeker and meets the definition of a family member set out in Article 2║(i) shall be indissociable from that of his/her parent or guardian and shall be a matter for the Member State responsible for examining the application for international protection of that parent or guardian, even if the minor is not individually an asylum seeker, provided that this is in his/her best interests. The same treatment shall be applied to children born after the asylum seeker arrives in the territory of the Member States, without the need to initiate a new procedure for taking charge of them.

4.  Where an application for international protection is lodged with the competent authorities of a Member State by an applicant who is in the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for international protection was lodged.

The applicant shall be informed in writing of this transfer and of the date on which it took place.

5.  An asylum seeker who is present in another Member State where he/she lodges an application for  international protection after withdrawing his/her first application made in a different Member State during the process of determining the Member State responsible shall be taken back, under the conditions laid down in Articles 23, 24 and 28, by the Member State with which that application for  international protection was first lodged, with a view to completing the process of determining the Member State responsible for examining the application for international protection.

This obligation shall cease where the Member State requested to complete the process of determining the responsible Member State is able to establish that the asylum seeker has in the meantime left the territory of the Member States for a period of at least three months or has obtained a residence document from another Member State.

An application lodged after such an absence shall be regarded as a new application giving rise to a new procedure for the determination of the responsible Member State.

Section II

Procedures for take-charge requests

Article 21

Submitting a take charge request

1.  Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any event within three months of the date on which the application was lodged within the meaning of Article 20(2), request the other Member State to take charge of the applicant.

Where the request to take charge of an applicant is not made within that period of three months, responsibility for examining the application for international protection shall lie with the Member State in which the application was lodged.

2.  The requesting Member State may ask for an urgent reply in cases where the application for international protection was lodged after leave to enter or remain was refused, after an arrest for an unlawful stay or after the service or execution of a removal order and/or where the asylum seeker is being held in detention.

The request shall state the reasons warranting an urgent reply and the period within which a reply is expected. That period shall be at least one week.

3.  In both cases, the request that charge be taken by another Member State shall be made using a standard form and including proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) and/or relevant elements from the asylum seeker's statement, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation.

The rules on the preparation of and the procedures for transmitting requests shall be adopted in accordance with theregulatory procedure referred to in Article 41(2).

Article 22

Replying to a take-charge request

1.  The requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two months of the date on which the request was received.

2.  In the procedure for determining the Member State responsible for examining the application for international protection established in this Regulation, elements of proof and circumstantial evidence shall be used.

3.  In accordance with the regulatory procedure referred to in Article 41(2) two lists shall be established and periodically reviewed, indicating the elements of proof and circumstantial evidence in accordance with the following criteria:

(a)  Proof:

(i)  This refers to formal proof which determines responsibility pursuant to this Regulation, as long as it is not refuted by proof to the contrary.

(ii)  The Member States shall provide the Committee provided for in Article 41 with models of the different types of administrative documents, in accordance with the typology established in the list of formal proofs.

(b)  Circumstantial evidence:

(i)  This refers to indicative elements which while being refutable may be sufficient, in certain cases, according to the evidential value attributed to them.

(ii)  Their evidential value, in relation to the responsibility for examining the application for international protection, shall be assessed on a case-by-case basis.

4.  The requirement of proof should not exceed what is necessary for the proper application of this Regulation.

5.  If there is no formal proof, the requested Member State shall acknowledge its responsibility if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility.

6.  Where the requesting Member State has pleaded urgency in accordance with the provisions of Article 21(2), the requested Member State shall make every effort to comply with the time limit requested. In exceptional cases, where it can be demonstrated that the examination of a request for taking charge of an applicant is particularly complex, the requested Member State may give its reply after the time limit requested, but in any event within one month. In such situations the requested Member State shall communicate its decision to postpone a reply to the requesting Member State within the time limit originally requested.

7.  Failure to act within the two-month period mentioned in paragraph 1 and the one-month period mentioned in paragraph 6 shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the obligation to provide for proper reception arrangements ║.

Section III

Procedures for take-back requests

Article 23

Submitting a take-back request

1.  Where a Member State with which a subsequent application for international protection has been lodged or on whose territory an applicant or another person as referred to in Article 18(1)(d) is staying without a residence document, considers that another Member State is responsible in accordance with Article 20(5) and Article 18(1)(b), (c) and (d), it may request that other Member State to take back that person. 

2.  In the event of a subsequent application for international protection, the request to take back the person concerned shall be made as quickly as possible and in any event within one month of receiving the Eurodac hit, pursuant to Article 6(6) of Regulation (EC) No ║.../...║ [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 third-country national or a stateless person].

If the request to take back the applicant who lodged a subsequent application for international protection is based on evidence other than data obtained from the Eurodac system, it shall be sent to the requested Member State within three months of the date on which the application for international protection was lodged within the meaning of Article 20(2).

3.  Where there is no subsequent application for international protection, and if the requesting Member State decides to search the Eurodac system in accordance with Article 13 of Regulation (EC) No ║.../...║ [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 third-country national or a stateless person], the request to take back the person concerned shall be made as quickly as possible and in any event within one month of receiving the Eurodac hit, pursuant to Article 13(4) of that Regulation.

If the request to take back the person concerned is based on evidence other than data obtained from the Eurodac system, it shall be sent to the requested Member State within three months of the date on which the requesting Member State becomes aware that another Member State may be responsible for the person concerned.

4.  Where the request to take back of an applicant or another person as referred to in Article 18(1)(d) is not made within the periods laid down in paragraphs 2 and 3 of this Article, responsibility for examining the application for international protection shall lie with the Member State in which the application was subsequently lodged or on whose territory the person is staying without a residence document.

5.  The request for the applicant or for another person as referred to in Article 18(1)(d) to be taken back shall be made using a standard form and including proof or circumstantial evidence and/or relevant elements from the person's statements, enabling the authorities of the requested Member State to check  whether it is responsible.

The rules of proof and evidence and their interpretation, and on the preparation of and the procedures for transmitting requests, shall be adopted in accordance with the regulatory procedure referred to in Article 41(2).

Article 24

Replying to a take back request

1.  The requested Member State shall make the necessary checks and shall issue a decision on the request to take back the person concerned as quickly as possible and in any event no later than one month from the date on which the request was received. When the request is based on data obtained from the Eurodac system, that time limit shall be reduced to two weeks.

2.  Failure to act within the one month period or the two weeks period mentioned in paragraph ║1║ shall be tantamount to accepting the request, and entail the obligation to take back the person concerned, including the obligation to provide for proper reception arrangements.

Section IV

Procedural safeguards 

Article 25

Notification of a transfer decision

1.  Where the requested Member State agrees to take charge or to take back an applicant or another person as referred to in Article 18(1)(d), the requesting Member State shall notify the person concerned of the decision to transfer him/her to the responsible Member State and, where applicable, that it will not be examining his/her application for international protection. Such notification shall be made in writing, in a language which the applicant understands or may reasonably be presumed to understand and within no more than 15 working days from the date of receipt of the reply from the requested Member State.

2.  The decision referred to in paragraph 1 shall set out the grounds on which it is based, including a description of the main steps in the procedure leading to the decision. It shall contain information on available legal remedies and the time-limits applicable for exercising such remedies, as well as information on persons or entities that may provide specific legal assistance and/or representation to the person. It shall contain details of the time limit for carrying out the transfer and shall, if necessary, contain information on the place where, and the date  on which, the person concerned should appear, if he/she is travelling to the responsible Member State by his/her own means. The time-limits for carrying out the transfer shall be set in order to allow the person a reasonable period of time to exercisea remedy in accordance with Article 26.

Article 26

Remedies

1.  The applicant or another person as referred to in Article 18(1)(d) shall have the right to an effective judicial remedy, in the form of an appeal or a review, in fact and in law, of the transfer decision referred to in Article 25 before a court or tribunal.

2.  Member States shall provide for a reasonable period of time within which the person concerned may exercise his/her right to an effective judicial remedy pursuant to paragraph 1.

That period of time shall not be less than 10 working days as from the date of notification referred to in Article 25(1).

3.  In the event of an appeal or review concerning the transfer decision referred to in Article 25, the authority referred to in paragraph 1 of this Article shall, acting either at the request of the person concerned or, in the absence of such a request, ex-officio, decide, as soon as possible, and in any event no later than five working days from the lodging of an appeal or of an application for review, whether or not the person concerned may remain on the territory of the Member State concerned pending the outcome of his/her appeal or review.

4.  No transfer shall take place before the decision referred to in paragraph 3 is taken. A decision not to allow the person concerned to remain on the territory of the Member State concerned pending the outcome of his/her appeal or review shall state the reasons on which it is based.

5.  Member States shall ensure that the person concerned has access to legal assistance and/or representation and, where necessary, to linguistic assistance.

6.  Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with Article 15(3) to (6) of Directive 2005/85/EC.

Procedures for access to legal assistance and/or representation shall be laid down in national law.

Section V

Detention for the purpose of transfer

Article 27

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 Directive 2005/85/EC.

2.  Without prejudice to Article 8(2) of Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers], when it proves necessary, on the basis of an individual assessment of each case, ▌Member States may detain an asylum-seeker or another person as referred to in Article 18(1)(d) of this Regulation, who is subject to a decision of transfer to the responsible Member State, in a non-detention facility only if other less coercive measures have not been effective and, only if there is a risk of his/her absconding.

3.  When assessing the application of other less coercive measures for the purpose of paragraph 2, Member States shall take into consideration alternatives to detention such as regular reporting to the authorities, the deposit of a financial guarantee, an obligation to stay at a designated place or other measures to prevent the risk of absconding.

4.  Detention pursuant to paragraph 2 may only be applied from the moment a decision of transfer to the responsible Member State has been notified to the person concerned in accordance with Article 25 until that person is transferred to the responsible Member State.

5.  Detention pursuant to paragraph 2 shall be ordered for the shortest period possible. It shall be no longer than the time reasonably necessary to fulfil the required administrative procedures for carrying out a transfer.

6.  Detention pursuant to paragraph 2 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, the person concerned shall be released immediately.

7.  Detention pursuant to paragraph 2 shall be ordered in writing with reasons in fact and in law, in particular specifying the reasons on the basis of which it is considered that there is a ▌risk of the person concerned absconding, as well as the time period of its duration.

Detained persons shall immediately be informed of the reasons for detention, the intended duration of the detention and the procedures laid down in national law for challenging the detention order, in a language which they understand or may reasonably be presumed to understand.

8.  In every case of a detention pursuant to paragraph 2, the ▌detention shall be reviewed by a judicial authority at reasonable intervals of time either on request by the person concerned or ex-officio. Detention shall never be unduly prolonged.

9.  Member States shall ensure access to legal assistance and/or representation in cases of detention pursuant to paragraph 2 that shall be free of charge where the person concerned cannot afford the costs involved. 

Procedures for access to legal assistance and/or representation in such cases shall be laid down in national law.

10.  Minors shall not be detained unless it is in their best interests as prescribed in Article 6(3) of this Regulation and in accordance with an individual examination of their situation in accordance with Article 11(5) of Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers].

11.  Unaccompanied minors shall never be detained.

12.  Member States shall ensure that asylum-seekers detained in accordance with this Article enjoy the same level of reception conditions for detained applicants as those laid down in particular in Articles 10 and 11 of Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers].

Section VI

Transfers

Article 28

Arrangementsand time-limits

1.  The transfer of the applicant or of another person as referred to in Article 18(1)(d) from the requesting Member State to the responsible Member State shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request  by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where a suspensive effect is granted in accordance with Article 26(3).

If necessary, the asylum seeker shall be supplied by the requesting Member State with a laissez passer of the design adopted in accordance with the regulatory procedure referred to in Article 41(2).

The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the person concerned or of the fact that he/she did not appear within the set time limit.

2.  Where the transfer does not take place within the six months' time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. That time limit may be extended up to a maximum of one year if the transfer could not be carried out due to the imprisonment of the person concerned or up to a maximum of 18 months if the person concerned absconds.

3.  If a person has been transferred erroneously or a decision to transfer is overturned on appeal after the transfer has been carried out, the Member State which carried out the transfer shall promptly accept that person back.

4.  The Commission may adopt supplementary rules on carrying out transfers. Those measures, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 41(3).

Article 29

Costs of transfers

1.  The costs necessary to transfer an applicant or another person as referred to in Article 18(1)(d) to the responsible Member State shall be met by the transferring Member State.

2.  Where the person concerned has to be sent back to a Member State as a result of an erroneous transfer or of a transfer decision that has been overturned on appeal after the transfer has been carried out, the Member State which initially carried out the transfer shall be responsible for the costs of transferring the person concerned back to its territory.

3.  Persons to be transferred pursuant to this Regulation shall not be required to meet the costs of such transfers.

4.  Supplementary rules relating to the obligation of the transferring Member State to meet the costs of transfers may be adopted in accordance with the regulatory procedure referred to in Article 41(2).

Article 30

Exchange of relevant information before transfers arecarried out

1.  In all cases of transfers, the transferring Member State shall inform the receiving Member State if the person concerned is fit for the transfer. Only persons who are fit for the transfer shall be transferred.

2.  The Member State carrying out the transfer shall communicate to the responsible Member State such personal data concerning the applicant to be transferred as is appropriate, relevant and non-excessive for the sole purposes of ensuring that the competent asylum authorities in the responsible Member State are in a position to provide the applicant with adequate assistance, including the provision of necessary medical care, and to ensure continuity in the protection and rights afforded by this Regulation and by Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers]. That information shall be communicated at an early stage and at the latest seven working days before a transfer is carried out, except when the Member State becomes aware of it at a later stage.

3.  Member States shall in particular exchange the following information:

4.  For the sole purpose of the provision of care or treatment, in particular with respect to disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence, the transferring Member State shall transmit information about any special needs of the applicant to be transferred, which in specific cases may include information about the physical and mental health of the applicant to be transferred. The responsible Member State shall ensure that those special needs are adequately met, including in particular any essential medical care that may be required.

5.  Any information mentioned in paragraph 4 shall only be transmitted by the transferring Member State to the responsible Member State after the express consent of the applicant and/or of his/her representative has been obtained or when necessary to protect the vital interests of the individual or of another person where he/she is physically or legally incapable of giving his/her consent. Once the transfer has been completed, the information shall be deleted immediately by the transferring Member State.

6.  The processing of personal health data shall only be carried out by a health professional subject under national law or rules established by national competent bodies to the obligation of medical confidentiality or by another person subject to an equivalent obligation of confidentiality. Such health professionals and persons receiving and processing the information shall receive appropriate medical training as well as training regarding the appropriate processing of sensitive personal data relating to health.

7.  The exchange of information under this Article shall only take place between the authorities notified to the Commission in accordance with Article 34 of this Regulation using the 'DubliNet' electronic communication network ║. The authorities notified according to Article 34 of this Regulation shall also specify the health professionals authorized to process the information mentioned in paragraph 4 of this Article. The information exchanged shall be used only for the purposes set out in paragraphs 2 and 4 of this Article.

8.  With a view to facilitating the exchange of information between Member States, a standard form for transferring the data required pursuant to this Article shall be adopted in accordance with the regulatory procedure laid down in Article 41(2).

9.  The rules laid down in Article 33(8) to (12) shall apply to the exchange of information pursuant to this Article.

Article 31

Method of carrying out transfers

1.  The Member State carrying out a transfer shall promote voluntary transfers by providing adequate information to the applicant.

2.  If transfers to the Member State responsible are carried out by supervised departure or under escort, Member States shall ensure that they are carried out in a humane manner and with full respect for fundamental rights and human dignity.

Section VII

Temporary suspension of transfers

Article 32

Temporary suspension of transfers

1.  When a Member State is faced with a particularly urgent situation which places an exceptionally heavy burden on its reception capacities, asylum system or infrastructure, and when the transfer of applicants for international protection in accordance with this Regulation to that Member State could add to that burden, that Member State may request that such transfers be suspended.

2.  When the Commission considers that the circumstances prevailing in a Member State may lead to a level of protection for applicants for international protection which is not in conformity with Community legislation, in particular with Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers], Directive 2005/85/EC and Directive 2004/83/EC, it may decide in accordance with the procedure laid down in paragraph 4 that all transfers of applicants in accordance with this Regulation to the Member State concerned be suspended.

3.  When a Member State is concerned that the circumstances prevailing in another Member State may lead to a level of protection for applicants for international protection which is not in conformity with Community legislation, in particular with Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers], Directive 2005/85/EC and Directive 2004/83/EC, it may request that all transfers of applicants in accordance with this Regulation to the Member State concerned be suspended.

That request shall be addressed to the Commission. It shall indicate the grounds on which it is based and shall in particular include detailed information on the situation in the Member State concerned, indicating a possible lack of conformity with Community legislation, in particular Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers], Directive 2005/85/EC and Directive 2004/83/EC.

4.  Following the receipt of a request pursuant to paragraphs 1 or 3, or on its own initiative pursuant to paragraph 2, the Commission may decide that all transfers of applicants in accordance with this Regulation to the Member State concerned be suspended. Such decision shall be taken as soon as possible and at the latest one month following the receipt of a request. The decision to suspend transfers shall state the reasons on which it is based and shall in particular include:

5.  The Commission shall notify the Council and the Member States of the decision to suspend all transfers of applicants in accordance with this Regulation to the Member State concerned. Any Member State may refer the decision of the Commission to the Council within one month from the receipt of the notification. The Council, acting by qualified majority, may take a different decision in one month from the date of the referral by a Member State.

6.  Following the decision of the Commission to suspend transfers to a Member State, the other Member States in which the applicants whose transfers have been suspended are present shall be responsible for examining the applications for international protection of those persons.

The decision to suspend transfers to a Member State shall take due account of the need to ensure the protection of minors and of family unity.

7.  A decision to suspend transfers to a Member State pursuant to paragraph 1 shall justify the granting of assistance for the emergency measures laid down in Article 5 of Decision No 573/2007/EC of the European Parliament and of the Council(16), following a request for assistance from that Member State.

8.  A Member State as referred to in paragraphs 1 to 3 shall take effective and timely steps to remedy the situation that led to the temporary suspension of transfers.

9.  Transfers may be suspended for a period which may not exceed six months. Where the grounds for the measures still persist after six months, the Commission may decide, on a request from the Member State referred to in paragraph 1 or on its own initiative, to extend their application for a further six months period. The provisions of paragraph 5 shall also be applicable.

10.  Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations arising out of Community legislation on asylum, in particular this Regulation, Directive ║…/…/EC║ [laying down minimum standards for the reception of asylum seekers], and Directive 2005/85/EC.

11.  On a proposal by the Commission to the European Parliament and the Council, and acting in accordance with the procedure referred to in Article 251 of the Treaty, instruments shall be enacted, binding on all Member States, in order to provide effective support to those Member States which are faced with specific and disproportionate pressures on their national systems due, in particular, to their geographical or demographic situation. Those instruments shall enter into force no later than 31 December 2011 and in any event make provision for the following:

12.  This Article shall cease to apply as soon as the instruments referred to in paragraph 11 have entered into force, and in any event on 31 December 2011 at the latest.

13.  As part of the monitoring and evaluation referred to in Article 42, the Commission shall review the application of this Article and report to the European Parliament and the Council no later than 30 June 2011. In its report, the Commission shall assess whether there is a justified need to extend the application of this Article beyond 31 December 2011. If the Commission considers it appropriate, it shall submit a proposal for such an extension to the European Parliament and the Council in accordance with the procedure laid down in Article 251 of the Treaty.

CHAPTER VII

ADMINISTRATIVE COOPERATION

Article 33

Information sharing

1.  Each Member State shall communicate to any Member State that so requests such personal data concerning the asylum seeker as is appropriate, relevant and non-excessive for:

2.  The information referred to in paragraph 1 may only cover:

3.  Furthermore, provided it is necessary for the examination of the application for international protection, the Member State responsible may request another Member State to let it know on what grounds the asylum seeker bases his/her application and, where applicable, the grounds for any decisions taken concerning the applicant. The Member State may refuse to respond to the request submitted to it, if the communication of such information would be likely to harm the essential interests of the Member State or the protection of the liberties and fundamental rights of the person concerned or of others. In any event, communication of the information requested shall be subject to the written approval of the applicant for international protection obtained by the requested Member State. In such a case, the applicant must know for what information he/she is giving his/her approval.

4.  Any request for information shall ║ be sent only in the context of an individual application for international protection. It shall set out the grounds on which it is based and, where its purpose is to check whether there is a criterion that is likely to entail the responsibility of the requested Member State, shall state on what evidence, including relevant information from reliable sources on the ways and means by which asylum seekers enter the territory of the Member States, or on what specific and verifiable part of the applicant's statements it is based. It is understood that such relevant information from reliable sources is not in itself sufficient to determine the responsibility and the competence of a Member State under this Regulation, but it may contribute to the evaluation of other indications relating to the individual asylum seeker.

5.  The requested Member State shall reply within four weeks. Any delays in the reply shall be duly justified. If the research carried out by the requested Member State which did not respect the maximum time-limit yields information which shows that it is responsible, that Member State may not invoke the expiry of the time-limit provided for in Articles 21 and 23 as a reason for refusing to comply with a request to take charge or take back. 

6.  The exchange of information shall be effected at the request of a Member State and may only take place between authorities whose designation by each Member State has been communicated to the Commission in accordance with Article 34(1).

7.  The information exchanged may be used only for the purposes set out in paragraph 1. In each Member State such information may, depending on its type and the powers of the receiving authority, be communicated only to the authorities and courts and tribunals entrusted with:

8.  The Member State which forwards the information shall ensure that it is accurate and up-to-date. If it transpires that that Member State has forwarded information which is inaccurate or which should not have been forwarded, the receiving Member States shall be informed thereof immediately. They shall be obliged to correct such information or to have it erased.

9.  The asylum seeker shall have the right to be informed, on request, of any data that are processed concerning him/her.

If he/she finds that the data have been processed in breach of this Regulation or of Directive 95/46/EC, in particular because it is incomplete or inaccurate, he/she is entitled to have it corrected or erased.

The authority correcting or erasing the data shall inform, as appropriate, the Member State transmitting or receiving the information.

The asylum seeker shall have the right to bring an action or a complaint before the competent authorities or courts of the Member State which refused the right of access to or the right of correction or deletion of data relating to him/her.

10.  In each Member State concerned, a record shall be kept, in the individual file for the person concerned and/or in a register, of the transmission and receipt of information exchanged.

11.  The data exchanged shall be kept for a period not exceeding that which is necessary for the purposes for which they are exchanged.

12.  Where the data are not processed automatically or are not contained, or intended to be entered, in a file, each Member State shall take appropriate measures to ensure compliance with this Article through effective checks.

Article 34

Competent authorities and resources

1.  Each Member State shall notify the Commission without delay of the specific authorities responsible for fulfilling the obligations arising under this Regulation, and any amendments hereto. They shall ensure that those authorities have the necessary resources for carrying out their tasks and in particular for replying within the prescribed time limits to requests for information, requests to take charge of and requests to take back asylum seekers.

2.  The Commission shall publish a consolidated list of the authorities referred to in paragraph 1 in the Official Journal of the European Union. Where there are amendments thereto, the Commission shall publish once a year an updated consolidated list.

3.  The authorities referred to in paragraph 1 shall receive the necessary training with respect to the application of this Regulation.

4.   Rules relating to the establishment of secure electronic transmission channels between the authorities mentioned in paragraph 1 for transmitting requests, replies and all written correspondence and ensuring that senders automatically receive an electronic proof of delivery shall be established in accordance with theregulatory procedure referred to in Article 41(2).

Article 35

Administrative arrangements

1.  Member States may, on a bilateral basis, establish administrative arrangements between each other concerning the practical details of the implementation of this Regulation in order to facilitate its application and increase its effectiveness. Such arrangements may relate to:

2.  The arrangements referred to in paragraph 1 shall be communicated to the Commission. The Commission shall approve the arrangements referred to in paragraph 1(b), after it has verified that they do not infringe this Regulation.

CHAPTER VIII

Conciliation

Article 36

Conciliation

1.  Where the Member States cannot resolve a dispute on any matter related to the application of this Regulation, they may have recourse to the conciliation procedure provided for in paragraph 2.

2.  The conciliation procedure shall be initiated by a request from one of the Member States in dispute to the Chairman of the Committee set up by Article 41. By agreeing to use the conciliation procedure, the Member States concerned commit themselves to taking the utmost account of the solution proposed.

The Chairman of the Committee shall appoint three members of the Committee representing three Member States not connected with the matter. They shall receive the arguments of the parties either in writing or orally and, after deliberation, shall propose a solution within one month, where necessary after a vote.

The Chair of the Committee, or his/her deputy, shall chair the discussion. He/she may put forward his point of view but he/she may not vote.

Whether it is adopted or rejected by the parties, the solution proposed shall be final and irrevocable.

CHAPTER IX

TRANSITIONAL PROVISIONS AND FINAL PROVISIONS

Article 37

Penalties

Member States shall take the necessary measures to ensure that any misuse of data processed in accordance with this Regulation is punishable by penalties, including administrative and/or criminal penalties in accordance with national law, that are effective, proportionate and dissuasive.

Article 38

Transitional measures

Where an application has been lodged after the date mentioned in the second paragraph of Article 45, the events that are likely to entail the responsibility of a Member State under this Regulation shall be taken into consideration, even if they precede that date, with the exception of the events mentioned in Article 14(2).

Article 39

Calculation of time limits

Article 40

Territorial scope

As far as the French Republic is concerned, this Regulation shall apply only to its European territory.

Article 41

Committee

1.  The Commission shall be assisted by a committee.

2.  Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.  Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Article 42

Monitoring and evaluation

At the latest three years after the date mentioned in the first paragraph of Article 45, and without prejudice to Article 32(13), the Commission shall report to the European Parliament and the Council on the application of this Regulation and, where appropriate, shall propose any necessary amendments. Member States shall forward to the Commission all information appropriate for the preparation of that report, at the latest six months before that time limit expires.

After having submitted that report, the Commission shall report to the European Parliament and the Council on the application of this Regulation at the same time as it submits reports on the implementation of the Eurodac system provided for by Article 28 of Regulation (EC) No ║.../...║ [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 third-country national or a stateless person].

Article 43

Statistics

In accordance with Article 4(4) of Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection(17), Member States shall communicate to the Commission (Eurostat), statistics concerning the application this Regulation and of Regulation (EC) No 1560/2003.

Article 44

Repeal

Regulation (EC) 343/2003 is hereby repealed.

Articles 11(1), 13, 14 and 17 of ║ Regulation (EC) No 1560/2003 are hereby repealed.

References to the repealed Regulation or Articles shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.

Article 45

Entry into force and applicability

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

It shall apply to applications for international protection lodged as from the first day of the sixth month following its entry into force and, from that date, it shall apply to any request to take charge of or take back asylum seekers, irrespective of the date on which the application was made. The Member State responsible for the examination of an application for international protection submitted before that date shall be determined in accordance with the criteria set out in Regulation (EC) No 343/2003.

This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty ║.

Done at ║

For the European Parliament For the Council

The President The President

ANNEX I

Repealed regulation (referred to in Article 44)

Council Regulation (EC) No 343/2003

(OJ L 50, 25.2.2003)

Commission Regulation (EC) No 1560/2003, only Articles 11(1), 13, 14 and 17

(OJ L 222, 5.9.2003)

ANNEX II

Correlation Table

(1) OJ C 77, 28.3.2002, p. 1. (2) OJ C ... (3) OJ C ... (4) Position of the European Parliament of 7 May 2009. (5) OJ L 50, 25.2.2003, p. 1. (6) OJ L ... (7) OJ L 304, 30.9.2004, p. 12. (8) OJ L ... (9) OJ L 222, 5.9.2003, p. 3. (10) OJ L 281, 23.11.1995, p. 31. (11) OJ L ... (12) OJ L 218, 13.8.2008, p. 60. (13) OJ L 184, 17.7.1999, p. 23. (14) OJ L 105, 13.4.2006, p.1. (15) OJ L 326, 13.12.2005, p. 13. (16) OJ L 144, 6.6.2007, p. 1. (17) OJ L 199, 31.7.2007, p. 23.

European Parliament legislative resolution of 7 May 2009 on the 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 third-country national or a stateless person] (recast) (COM(2008)0825 – C6-0475/2008 – 2008/0242(COD))

P6_TA(2009)0378 A6-0283/2009

(Codecision procedure – recast)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0825),

–   having regard to Article 251(2) and Article 63(1)(a) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0475/2008),

–   having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(1),

–   having regard to the letter of 3 April 2009 from the Committee on Legal Affairs to the Committee on Civil Liberties, Justice and Home Affairs in accordance with Rule 80a(3) of its Rules of Procedure,

–   having regard to Rules 80a and 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0283/2009),

A.   whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance;

1.  Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission and as amended below;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 7 May 2009 with a view to the adoption of Regulation (EC) No .../2009 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 third-country national or a stateless person](recast)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63, first paragraph, point (1)(a) thereof,

Having regard to the proposal from the Commission ║,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(2),

Whereas

(1)  A number of substantive changes are to be made to Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention(3) and Council Regulation (EC) No 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No 2725/2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention(4). In the interest of clarity, those Regulations should be recast.

(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 ▌legitimately seek international protection in the Community.

(3)  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 completed. 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 ║ 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.

(4)  For the purposes of applying ║ Regulation (EC) No […/…] of the European Parliament and of the Council of ... 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(5), it is necessary to establish the identity of applicants for international protection and of persons apprehended in connection with the irregular crossing of the external borders of the Community. It is also desirable, in order to effectively apply ║ 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 third-country national or a stateless person], and in particular points (b) and (d) of Article 18(1) thereof, to allow each Member State to check whether a third-country national or stateless person found illegally present on its territory has applied for international protection in another Member State.

(5)  Fingerprints constitute an important element in establishing the exact identity of such persons. It is necessary to set up a system for the comparison of their fingerprint data.

(6)  To this end, it is necessary to set up a system known as Eurodac, consisting of a Central System, which will operate a computerised central database of fingerprint data, as well as of the electronic means of transmission between the Member States and the Central System.

(7)  With a view to ensuring equal treatment for all applicants for and beneficiaries of international protection, as well as in order to ensure consistency with the 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 granted(6) and 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 third-country national or a stateless person], it is appropriate to extend the scope of this Regulation in order to include applicants for subsidiary protection and persons enjoying subsidiary protection.

(8)  It is also necessary to require the Member States promptly to take and transmit fingerprint data of every applicant for international protection and of every third-country national or stateless person who is apprehended in connection with the irregular crossing of an external border of a Member State, if they are at least 14 years of age.

(9)  It is necessary to lay down precise rules on the transmission of such fingerprint data to the Central System, the recording of such fingerprint data and other relevant data in the Central System, their storage, their comparison with other fingerprint data, the transmission of the results of such comparison and the marking and erasure of the recorded data. Such rules may be different for, and should be specifically adapted to, the situation of different categories of third-country nationals or stateless persons.

(10)  Third-country nationals or stateless persons who have requested international protection in one Member State may have the option of requesting international protection in another Member State for many years to come. Therefore, the maximum period during which fingerprint data should be kept by the Central System should be of considerable length. Given that most third-country nationals or stateless persons who have stayed in the Community for several years will have obtained a settled status or even citizenship of a Member State after that period, a period of ten years should be considered a reasonable period for the storage of fingerprint data.

(11)  The storage period should be shorter in certain special situations where there is no need to keep fingerprint data for that length of time. Fingerprint data should be erased immediately once third-country nationals or stateless persons obtain citizenship of a Member State or a long- term residence permit in a Member State in accordance with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents(7).

(12)  It is appropriate to store data relating to those data subjects whose fingerprints were initially recorded in Eurodac on lodging their applications for international protection and who have been granted international protection in a Member State in order to allow data recorded on lodging an application for international protection to be compared with them.

(13)  For a transitional period the Commission should remain responsible for the management of the Central System and for the Communication Infrastructure. In the long term, and following an impact assessment including a substantive analysis of alternatives from a financial, operational and organisational perspective, a Management Authority with responsibility for these tasks should be established.

(14)  It is necessary to lay down clearly the respective responsibilities of the Commission and the Management Authority, in respect of the Central System and the Communication Infrastructure, and of the Member States, as regards data use, data security, access to, and correction of, recorded data.

(15)  While the non-contractual liability of the Community in connection with the operation of the Eurodac system will be governed by the relevant provisions of the Treaty, it is necessary to lay down specific rules for the non-contractual liability of the Member States in connection with the operation of the system.

(16)  Since the objective of this Regulation, namely the creation of a system for the comparison of fingerprint data to assist the implementation of the Community's asylum policy, cannot ║ be sufficiently achieved by the Member States and, given its scale and effects, can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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.

(17)  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(8) applies to the processing of personal data by the Member States carried out in application of this Regulation.

(18)  The principles set out in Directive 95/46/EC regarding the protection of the rights and freedoms of individuals, notably their right to privacy, with regard to the processing of personal data should be supplemented or clarified, in particular as far as certain sectors are concerned.

(19)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(9)applies to the processing of personal data by the Community institutions and bodies carried out pursuant to this Regulation. However, certain points should be clarified in respect of the responsibility for the processing of data and of the supervision of data protection.

(20)  It is appropriate that national supervisory authorities monitor the lawfulness of the processing of personal data by the Member States, while the European Data Protection Supervisor, appointed pursuant to Decision 2004/55/EC of the European Parliament and of the Council ║ (10), should monitor the activities of the Community institutions and bodies in relation to the processing of personal data in view of the limited tasks of the Community institutions and bodies with regard to the data themselves.

(21)  It is appropriate to monitor and evaluate the performance of Eurodac at regular intervals.

(22)  Member States should provide for a system of effective, proportionate and dissuasive penalties to sanction the use of data entered in the Central System contrary to the purpose of Eurodac.

(23)  It is necessary that Member States be informed of the status of particular asylum procedures, with a view to facilitating the adequate 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 third-country national or a stateless person].

(24)  This Regulation respects and should be applied in accordance with the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure full respect for the protection of personal data and the right to asylum and to promote the application of Articles 8 and 18 of the Charter.

(25)  It is appropriate to restrict the territorial scope of this Regulation so as to align it on the territorial scope 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 third-country national or a stateless person],

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose of Eurodac

1.  A system known as Eurodac is hereby established, the purpose of which shall be to assist in determining which Member State is to be responsible pursuant to 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 third-country national or a stateless person] for examining an application for international protection lodged in a Member State by a third-country national or stateless person, and otherwise to facilitate the application of the above Regulation under the conditions set out in this Regulation.

2.  Without prejudice to the use of data intended for Eurodac by the Member State of origin in databases set up under that Member State's national law, fingerprint data and other personal data may be processed in Eurodac only for the purposes set out in Article 33(1) 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 third-country national or a stateless person].

Article 2

Definitions

1.  For the purposes of this Regulation:

(c)  "Member State of origin' means: