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Thursday, 17 December 2020 - Brussels
Implementation report on the Return Directive

European Parliament resolution of 17 December 2020 on the implementation of the Return Directive (2019/2208(INI))

The European Parliament,

–  having regard to the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948,

–  having regard to the UN Convention on the Rights of the Child,

–  having regard to the European Convention on Human Rights,

–  having regard to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva Convention), and in particular the right to non-refoulement,

–  having regard to the Charter of Fundamental Rights of the European Union and in particular Articles 1, 3, 4, 6, 7, 18, 19, 20 and 47 thereof,

–  having regard to the Global Compact for Safe, Orderly and Regular Migration, adopted by the UN General Assembly on 19 December 2018,

–  having regard to the Twenty Guidelines on Forced Return, adopted by the Committee of Ministers of the Council of Europe on 4 May 2005,

–  having regard to Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals(1) (‘the Return Directive’),

–  having regard to Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of the Schengen Information System for the return of illegally staying third country nationals(2) (‘SIS return’),

–  having regard to Regulation (EU) 2020/851 of the European Parliament and of the Council of 18 June 2020 amending Regulation (EC) No 862/2007 on Community statistics on migration and international protection(3),

–  having regard to the judgments of the Court of Justice of the European Union related to Directive 2008/115/EC, including Cases C‑357/09 Kadzoev(4), C‑61/11 El Dridi(5), C‑534/11 Arslan(6), C-146/14 Mahdi(7), C‑554/13 Z. Zh.(8), C‑47/15 Sélina Affum(9), C-82/16 K.A. and Others(10) and C-181/16 Gnandi(11),

–  having regard to the judgments of the European Court of Human Rights related to Directive 2008/115/EC, including Amie and Others v. Bulgaria (application No 58149/08), N.D. and N.T. v. Spain (application Nos 8675/15 and 8697/15) and Haghilo v. Cyprus (application No 47920/12),

–  having regard to the Commission communication of 28 March 2014 on EU Return Policy (COM(2014)0199),

–  having regard to the Commission communication of 13 May 2015 on a European Agenda on Migration (COM(2015)0240),

–   having regard to the conclusions of the European Council summits of October 2016 and June 2018,

–  having regard to the Council’s non-binding common standards of 11 May 2016 for Assisted Voluntary Return (and Reintegration) Programmes implemented by Member States,

–  having regard to the Commission communication of 2 March 2017 on a more effective return policy in the European Union – a renewed Action Plan (COM(2017)0200),

–  having regard to Commission Recommendation (EU) 2017/432 of 7 March 2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council(12),

–  having regard to Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return related tasks(13),

–  having regard to the 2017 Synthesis Report of the European Migration Network entitled ‘The effectiveness of return in EU Member States: challenges and good practices linked to EU rules and standards’,

–  having regard to the Commission proposal for a directive of the European Parliament and of the Council of 12 September 2018 on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) (COM(2018)0634),

–  having regard to the Commission communication of 4 December 2018 on managing migration in all its aspects: progress under the European agenda on migration (COM(2018)0798),

–  having regard to the Commission communication of 16 April 2020 on COVID-19: Guidance on the implementation of relevant EU provisions in the area of asylum and return procedures and on resettlement (C(2020)2516),

–  having regard to its resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration(14),

–  having regard to its resolution of 5 April 2017 on addressing refugee and migrant movements: the role of EU External Action(15),

–  having regard to its position of 13 March 2019 on the proposal for a regulation of the European Parliament and of the Council establishing the Asylum and Migration Fund(16),

—  having regard to the European Court of Auditors’ Special Report No 24/2019 of November 2019 entitled ‘Asylum, relocation and return of migrants: time to step up action to address disparities between objectives and results’,

–  having regard to the European Parliamentary Research Service’s (EPRS) Substitute Impact Assessment of March 2019 on the proposed recast Return Directive,

–  having regard to the EPRS’ European Assessment of June 2020 providing an evaluation of the implementation of the Return Directive and of the external dimension of the Return Directive,

–  having regard to the Frontex evaluation report 15 June 2020 on return operations in the 2nd semester of 2019,

–  having regard to the 4th Annual Report of Europol’s European Migrant Smuggling Centre of 15 May 2020,

–  having regard to the reports on the application of the Schengen acquis in the field of return produced in accordance with Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen(17),

–  having regard to the Council of Europe’s handbook of 17 September 2019 entitled ‘Practical Guidance on Alternatives to Immigration Detention: Fostering Effective Results’,

–  having regard to the analysis of the Steering Committee for Human Rights (CDDH) of the Council of Europe of 7 December 2017 on Legal and practical aspects of effective alternatives to detention in the context of migration,

–  having regard to the Interinstitutional Agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making(18),

–  having regard to its resolution of 30 May 2018 on the interpretation and implementation of the Interinstitutional Agreement on Better Law-Making(19),

–  having regard to Rule 54 of its Rules of Procedure, as well as Article 1(1)(e) of, and Annex 3 to, the decision of the Conference of Presidents of 12 December 2002 on the procedure for granting authorisation to draw up own-initiative reports,

–  having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0238/2020),

A.  whereas the Commission has only assessed the implementation of the Return Directive once (in 2014), despite the legal obligation under Article 19 of that Directive to report on its application every three years, starting from 2013; whereas in 2015 the Commission published a communication setting out an action plan on returns; whereas in 2017 it issued a recommendation on making returns more effective when implementing the Return Directive and published a Return Handbook; whereas in September 2018, without carrying out an impact assessment, the Commission presented a proposal to recast the Return Directive to achieve a more effective and coherent return policy; whereas the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) mandated the EPRS to provide a substitute impact assessment on the proposed recast; whereas this assessment points to the lack of evidence that the recast proposal would lead to more effective returns;

B.  whereas the twofold objective of the Return Directive is to establish common rules concerning effective return in line with fundamental rights and the principle of proportionality; whereas in its recommendation on making returns more effective, the Commission focuses on the rate of returns as an indicator of the Return Directive’s effectiveness and recommends measures which may have the unwanted effect of limiting certain safeguards of that Directive, such as the right to appeal and to make use of longer detention periods; whereas sustainable returns and successful reintegration are important indicators in the assessment of the effectiveness of returns; whereas post-return monitoring is currently not sufficiently comprehensive and accurate; whereas evidence has emerged that not all returns are sustainable, especially in relation to unaccompanied minors, owing to a lack of a personal reintegration plan or support upon return;

C.  whereas the Commission has noted that Member States face several barriers to effective returns, of a procedural, technical and operational nature, inter alia the level of cooperation among all stakeholders involved, including with third countries; whereas identification of returnees and the need to obtain the necessary documentation from third countries has been identified by the Commission as one of the main reason for non-return;

D.  whereas the lack of harmonisation has a deep impact on return practices among Member States; whereas the evaluations carried out by the Commission when publishing its recommendation on making returns more effective indicated that 'the margins of discretion left to the Member States by the Return Directive led to an inconsistent transposition in national legislations, with a negative impact on the effectiveness of the Union return policy' and that 'a more effective implementation of that directive would reduce possibilities of misuse of procedures and remove inefficiencies, while ensuring the protection of fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union';

E.  whereas the Commission, in its action plan on return published in 2015, expressed the view that voluntary returns were the preferred option whenever possible; whereas - again, as stated by the Commission in its action plan - 'it is estimated that around 40 % of returns were voluntary departures, [up] from just 14 % in 2009'; whereas, according to the Commission's estimates, 300 000 people per year cannot be returned owing to administrative barriers, health issues or the risk of refoulement; whereas their situation should be addressed, including by granting them a legal status on humanitarian grounds;

F.  whereas data relating to the implementation of the Return Directive is publicly available through Eurostat but is not in all cases disaggregated and comparable; whereas more information may be provided with the implementation of Regulation (EU) 2018/1860 on the use of the Schengen Information System for the return of illegally staying third-country nationals (‘SIS return’) and with Regulation (EU) 2020/851 amending Regulation (EC) No 862/2007 on Community statistics on migration and international protection;

G.  whereas between 2014 and 2018 the number of irregular border crossings decreased from 1,82 million to 142 000; whereas Member States issued around 3 million first residence permits in 2019; whereas the number of asylum applications decreased from 1,29 million in 2015 to 698 000 in 2019; whereas in 2018, Member States issued 283 880 return decisions, of which 147 815 people returned;

H.  whereas Member States do not systematically share information on the return decisions or entry bans they issue, meaning that the mutual recognition of return decisions issued by Member States and their enforcement Union-wide is, in practice, impossible; whereas in order to increase the efficiency of readmissions, and in order to ensure the coherence of returns at a European level, formal EU agreements should take preference over bilateral agreements between Member States and third countries;

General observations

1.  Notes the lack of an implementation assessment from the Commission and calls on the Commission to carry out such an assessment, which was due in 2017, in compliance with Article 19 of the Return Directive and in line with the principle of better law-making;

2.  Reiterates the importance of an evidence-based common approach to guide coherent policy-making and well-informed public discourse and calls on the Commission to urge and support Member States to collect and publish qualitative and quantitative data on the implementation of the Return Directive, particularly data on entry bans and detention, as these are the categories currently not collected by Eurostat, and making use in particular of the newly available instruments such as SIS return and Regulation (EU) 2020/851 amending Regulation (EC) No 862/2007 on Community statistics on migration and international protection; invites Member States to collect statistics on this basis of Regulation (EU) 2020/851 as soon as possible and to participate in the associated pilot studies; notes with concern the lack of available data, including data disaggregated by gender and age, concerning the implementation of the Return Directive;

3.  Is concerned that since 2015, the number of return decisions enforced has been decreasing and notes that this number does not necessarily correspond to an increase or decrease in irregular entries; stresses that an effective return policy is one of the key elements of a well-functioning EU asylum and migration policy; notes that, according to the Commission’s statement, the return rate decreased from 46 % in 2016 to 37 % in 2017 and that this may not present the full picture, owing to the inherent margin of discretion that Member States have in the implementation of the Return Directive, notably difficulties in cooperation with third countries, the fact that some Member States issue more than one return decision to one person, that decisions are not withdrawn if the return does not take place owing to humanitarian reasons, that some people are not returnable as their return would violate the principle of non-refoulement, or that some people return voluntarily without their return being registered; underlines that not every return decision is followed by swift return and readmission procedures owing to practical and legal obstacles and notes with concern that this can cause serious strain, not only on local facilities, but on the people involved;

4.  Shares the Commission’s objective of improving the effective implementation of the Return Directive and the effectiveness of return procedures in the Member States; calls on the Commission to launch infringement procedures where justified; highlights that the effectiveness of the Return Directive should be measured by referring to the return rate as well as by the sustainability of returns and implementation of fundamental rights safeguards, the respect for procedural guarantees and the effectiveness of voluntary returns; stresses that the measuring of the effective implementation of the Return Directive should be further enhanced and further streamlined among Member States in order to strengthen the transparency and comparability of data;

5.  Notes that the Commission has stated that the lack of third-country identification and readmission of returnees is one of the main reasons for non-return; stresses the need to improve relations with third countries in a constructive migration dialogue based on equality, in order to ensure mutually beneficial cooperation for effective and sustainable returns;

6.  Takes note of the informalisation of cooperation with third countries; calls on the Member States to urge and enable the Commission to conclude formal EU readmission agreements coupled with EU parliamentary scrutiny and judicial oversight; stresses that incentives should be offered to facilitate cooperation; notes that the bilateral readmission agreements used pursuant to Article 6(3) of the Return Directive do not offer adequate procedural safeguards, including notification to the person concerned of an individual measure and information regarding available and effective remedies and recourse to appeal; notes that Member States face challenges in regularly ensuring the full occupancy of seats available for returnees in return operations using charter flights coordinated by Frontex; notes with concern that in some cases the option to carry out joint Frontex return operations is excluded by bilateral agreements between organising or participating Member States and non-EU countries of destination;

7.  Stresses the need for more cooperation on returns between the Member States, including information sharing and the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals , in line with fundamental rights guarantees; underlines the need for support, including operational support, by the relevant Union agencies; stresses the need for increased cooperation between the Member States and Frontex;

8.  Calls on the Member States to allocate adequate capacity, including human resources and sufficient training, to authorities responsible for taking and implementing return decisions, and in doing so to invest in the quality of their decision-making and implementation;

9.  Stresses the importance of fair, swift and effective procedures for the return of third-country nationals staying irregularly on Union territory, including those whose applications have been rejected, with respect for the fundamental rights of the persons concerned;

Return decisions and voluntary departure

10.  Points to the importance in the Return Directive of ensuring migrants’ compliance with return decisions and recalls the key principle enshrined in that directive that voluntary returns should be prioritised over forced returns where there are no serious reasons to believe that this would undermine the purpose of a return procedure, as voluntary returns are more sustainable, less costly and cumbersome for states and more apt to respect the fundamental rights of the person concerned; calls on the Commission to continue considering voluntary returns as the preferred option over forced returns and to encourage Member States to develop an effective framework for access to voluntary return programmes;

11.  Calls on the Commission to continue to provide funding for and increase the resources available to assisted voluntary return programmes in order to encourage the use of such programmes with the ultimate aim of ensuring sustainable returns and reintegration;

12.  Highlights that under Article 7 of the Return Directive, a return decision shall, as a general rule, provide for an appropriate period for voluntary departure of between 7 and 30 days, which Member States shall extend where necessary, taking into account the specific circumstances of the individual case; points to the exceptions laid out in Article 7(4) of the Return Directive; notes that Member States’ national programmes to assist voluntary departure are sometimes insufficient in scope and means; recalls that Member States that offer this period for voluntary departure only following an application must inform the third-country nationals concerned of the possibility to submit such an application;

13.  Welcomes the provisions in several Member States which allow for individual circumstances to be duly taken into account and for extensions to a period for voluntary departure to be granted; recalls that, in cases where the Return Directive requires Member States to postpone removal, such as when it would violate the principle of non-refoulement, Article 14(2)of the Return Directive requires Member States to provide the persons concerned with written confirmation that the return decision will temporarily not be enforced;

14.  Stresses that a broad definition of the risk of absconding may lead to Member States refraining from granting a period for voluntary departure; recalls that lifting the voluntary departure period also leads to the imposition of an entry ban, which may further undermine voluntary departure; stresses the need for enhanced implementation of the current legal framework in order to step up successful voluntary returns;

15.  Calls on the Member States and Frontex to share information and best practices on successful and dignified voluntary returns, and to provide operational assistance among Member States, on request, to strengthen and improve the operational effectiveness of voluntary returns;

16.  Highlights the importance of providing individual case management and assistance, tailored to the individual circumstances and prospects of the returnee, with particular attention to unaccompanied minors;

Procedural safeguards

17.  Stresses that the Return Directive requires return and entry-ban decisions and decisions on removal to be individualised, clearly justified with reasons in law and in fact, issued in writing, and complete with information about available remedies and the relevant deadlines; stresses the importance of this information being provided in a language the person understands; expresses concerns regarding the lack of sufficient detail and justification in return decisions;

18.  Takes the view that unaccompanied children should not be returned unless it can be demonstrated that it is in the child's best interests, and that children should be informed in a child-friendly manner and in a language that they understand about their rights and the remedies available to them;

19.  Recalls that the principle of non-refoulement is binding on Member States in all circumstances, including for return procedures not falling within the scope of application of the Return Directive;

20.  Takes note of significant differences between Member States in the right to appeal, particularly regarding the type of appeal body and the appeal time-limits; stresses the need to guarantee the right to effective remedy, including by providing proper and accessible information and legal aid, including appropriate funds for the provision of legal assistance;

21.  Notes that the use of the optional clause in Article 2(2)(a) may lead to diminished implementation of safeguards at borders compared to the regular return procedure; urges Member States, therefore, to ensure procedural safeguards and respect for human rights and to apply the Return Directive to border situations;

22.  Highlights that the Return Directive allows for the temporary suspension of the enforcement of a removal, pending a review of a decision relating to return; underlines the need to ensure such suspensions in cases where there is a risk of refoulement; notes that in most countries, appeal against return is not automatically suspensive, which may diminish protection ; stresses that an automatic suspensive remedy would ensure that people are not returned before a final decision on the return procedure is taken; stresses that the best interests of the child must be the primary consideration for all decisions concerning children, including pending decisions relating to return;

23.  Recalls that Article 6(4) of the Return Directive provides Member States with the possibility to grant an autonomous residence permit on compassionate, humanitarian or other grounds to a third-country national staying irregularly on their territory; stresses the importance of successfully exhausting the options provided in the Return Directive to enforce return decisions, with an emphasis on voluntary return; notes, however, the limited use of Article 6(4) of the Return Directive and encourages Member States to expand the use of this clause; is concerned about the failure of Member States to issue a temporary residence permit where return has proven not to be possible, which often leaves unreturnable migrants unable to access their fundamental rights; underlines the fact that granting residence permits to individuals who cannot return to their country of origin could help to prevent protracted irregular stays and reduce vulnerability to labour exploitation and may facilitate individuals’ social inclusion and contribution to society; notes that this would also help to get people out of administrative limbo where they may be stuck; highlights, at the same time, that coordination within the Union is necessary in order to prevent onward irregular movements of persons subject to a return decision;

Entry bans

24.  Notes with concern the widespread automatic imposition of entry bans, which in some Member States are enforced alongside voluntary departure; stresses that this approach risks reducing incentives for voluntary return; calls on Member States to comply with the obligation of the Return Directive to consider withdrawing or suspending the ban in cases where a third-country national can demonstrate that he or she has left the territory of a Member State;

25.  Notes that the situation of a person may vary during the period imposed by an entry ban and that a person may find themselves at risk of persecution in the country they have been returned to; calls on Member States to lift the entry ban on the basis of humanitarian considerations in such cases; reiterates that an entry ban should not be automatically applied, but should instead be based on an individual assessment; calls on the Member States to have effective procedures in place for requesting the lifting of an entry ban, in which an individual assessment is guaranteed, where the best interests of the child are the primary consideration and the right to family life, the right to family reunification and the principle of proportionality are respected;

26.  Notes that although the threat of imposition of an entry ban may serve as an incentive to leave a country within the time period of voluntary departure, once imposed, entry bans may reduce the incentive to comply with a return decision and may increase the risk of absconding; calls on Member States to consider timing the imposition of entry bans in order to successfully carry out return decisions; stresses that the Return Directive has rules allowing for entry bans to be lifted and calls on Member States to make use of these when necessary;

27.  Stresses that entry bans may have disproportionate consequences in particular for families and children; welcomes the option introduced by some Member States to exempt children from the imposition of an entry ban, but stresses that children’s interests should also be a primary consideration when deciding on the (withdrawal of the) entry ban of their parents; calls on Member States to ensure family reunification and respect for the right to family life, including by applying this as a basis on which to refrain from imposing entry bans;

Detention and the risk of absconding

28.  Recalls that Article 3(7) of the Return Directive states that the 'risk of absconding' means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond; notes differences in the transposition into national legislations of the definition of the ‘risk of absconding’; highlights that in order to comply with Article 3(7) of the Return Directive, due consideration needs to be given to the individual circumstances of the person involved when identifying a risk of absconding to justify detention;

29.  Is concerned that the legislation of several Member States includes extensive and sometimes divergent lists of ‘objective criteria’ for defining the risk of absconding, among which general criteria such as a lack of money; is concerned that varying definitions of objective criteria for the assessment of the risk of absconding in the national legislation of Member States may result in inconsistent use of detention across the Union; regrets that these criteria are often applied in a more or less automatic way, while individual circumstances are of marginal consideration; stresses that this has led to detention being imposed in a systematic manner in many Member States; underlines the need for harmonisation in the definition and implementation of objective criteria to establish the risk of absconding;

30.  Stresses that, in line with international human rights law, detention must remain a measure of last resort and be prescribed by law and be necessary, reasonable and proportional to the objectives to be achieved, that it must last for the shortest time possible and that the decision to impose detention always has to be based on an assessment of the individual circumstances, in which the interests of the individual concerned have been taken into account;

31.  Reiterates that longer detention does not automatically increase the chance of return and is generally more costly than alternatives to detention, and adds that states should not automatically resort to the maximum period permissible under the Return Directive, and, furthermore, that they should ensure that all conditions for lawful detention are fulfilled throughout the detention period;

32.  Notes that the Return Directive establishes under which circumstances returnees may lawfully be detained; notes that detention is only possible if other sufficient but less coercive measures cannot be applied effectively in a specific case; expresses regret that in practice, very few viable alternatives to detention are developed and applied by Member States; calls on Member States, as a matter of urgency, to offer viable community-based alternatives to detention, which have a less negative impact on migrants, especially children and vulnerable people; calls on the Member States to report on the measures they take as an alternative to detention;

33.  Recalls that Member States should respect the mandates of relevant and competent national and international bodies, such as National Human Rights Institutions, ombudsman institutions and national preventive mechanisms, which conduct independent oversight of conditions of detention;

34.  Notes that a significant number of children are still detained in the European Union as part of return procedures, agrees with the UN Committee on the Rights of the Child, which has clarified that children should never be detained for immigration purposes, and detention can never be justified as in a child’s best interests also in line with the New York Declaration for Refugees and Migrants of 19 September 2016; calls on the Member States to provide adequate, humane and non-custodial alternatives to detention;

35.  Calls on the Commission to ensure that Member States and Frontex have monitoring bodies in place that are supported by a proper mandate, capacity and competence, a high level of independence and expertise, and transparent procedures; stresses that return monitoring should encompass all phases of return operations, with adequate resources; calls on the Commission and Member States to make use of existing independent monitoring bodies, such as national and international organisations and National Human Rights Institutions, by cooperating with or designating them as forced return monitoring systems; urges the Commission to ensure the establishment of a post-return monitoring mechanism to understand the fate of returned persons, where legally and practically possible, with particular attention for vulnerable groups, including unaccompanied minors and families; calls on the Member States to carry out proper handovers of child protection services among national authorities to ensure that returned children are taken care of and have access to national child protection services; highlights the need to follow up on the reintegration plans of returnees to ensure their effective implementation; calls on the Commission to facilitate the exchange of good practices between the Member States regarding post-return monitoring and to allocate sufficient funding for this purpose;

36.  Calls on the Member States to ensure the proper implementation of the Return Directive in all its aspects; calls on the Commission to continue monitoring this implementation and take action in the event of non-compliance;

o   o

37.  Instructs its President to forward this resolution to the Council and the Commission.

(1) OJ L 348, 24.12.2008, p. 98.
(2) OJ L 312, 7.12.2018, p. 1.
(3) OJ L 198, 22.6.2020, p. 1.
(4) ECLI:EU:C:2009:741.
(5) ECLI:EU:C:2011:268.
(6) ECLI:EU:C:2013:343.
(7) ECLI:EU:C:2014:1320.
(8) ECLI:EU:C:2015:377.
(9) ECLI:EU:C:2016:408.
(10) ECLI:EU:C:2018:308.
(11) ECLI:EU:C:2018:465.
(12) OJ L 66, 11.3.2017, p. 15.
(13) OJ L 339, 19.12.2017, p. 83.
(14) OJ C 58, 15.2.2018, p. 9.
(15) OJ C 298, 23.8.2018, p. 39.
(16) Texts adopted, P8_TA(2019)0175.
(17) OJ L 295, 6.11.2013, p. 27.
(18) OJ L 123, 12.5.2016, p. 1.
(19) OJ C 76, 9.3.2020, p. 86.

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