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Crisis and force majeure Regulation

In “Promoting our European Way of Life”

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On 16 September 2020 Commission President von der Leyen announced in her State of the Union Address a New Pact on Asylum and Migration. As part of the Pact, the Commission unveiled on 23 September 2020 a proposal for a Regulation addressing situations of crisis and force majeure in the area of migration and asylum, related to the application of the Solidarity Mechanism, set up in the proposal for a Regulation on Asylum and Migration Management (AMR) in exceptional situations of third-country nationals or stateless persons’ mass influx and irregular arrival in a Member State, which create a risk for the CEAS’ functioning and addressing force majeure situations in the field of asylum and migration within the EU.  

Within the Solidarity Mechanism, the Crisis and force majeure Regulation proposal sets specific rules for its application in crisis situations, i.e. the exceptional mass influx of third-country nationals/stateless persons arriving irregularly in a Member State and threatening the functioning of a Member State’s asylum, reception or return system, or the risk of such a mass influx. It widens the scope of affected third-country nationals’ relocation to include international protection beneficiaries, irregular migrants, and vulnerable persons being granted immediate protection for up to one year, until the Member State has been determined that is responsible for examining the application under the AMR. The proposal also contains shorter deadlines in comparison to usual procedures under the AMR, when applicable in a crisis situation. These concern the Commission assessment of Member States’ crisis situation with serious consequences for the CEAS’ functioning, for presenting its report to the Council and the EP, the deadline for presenting the solidarity Response plan by Member States after the Commission assessment, and for adopting a Commission implementing act on solidarity measures for each Member State referring to the number of persons to be relocated and/or subject to return sponsorship from the Member State in a crisis situation, and their distribution between Member States.

Concerning the asylum and return procedures the proposed regulation provides for a number of derogations following the adoption of a Commission implementing decision. Member States may thus suspend examination of third country nationals’ international protection applications when facing risk of violence upon a return to the country of origin and grant them immediate protection, unless they are a danger to national security or public order. On the asylum crisis management procedure Member States may derogate from the Asylum Procedure Regulation by taking positive decisions on third country nationals’ asylum applications from countries for which the proportion of positive decisions on international protection is 75% or lower and prolong the maximum duration of the border procedure for examining applications by an additional 8 weeks, before the applicant is allowed to enter a Member State’s territory to complete the procedure for granting international protection. On return crisis management procedure, Member States may prolong the detention of third country nationals/stateless persons with rejected applications under the asylum crisis management procedure by an additional 8 weeks. Besides, on registration of international protection applications in crisis situations, affected Member States are allowed to postpone registration at the latest for four weeks from when these were made. Extended deadlines also apply for Member States submitting take charge requests (up to 4 months after the application’s registration), Member States replying to such a request (up to 2 months of the request’s receipt), take back notifications (1 month of receiving Eurodac confirmation), and the transfer to Member State responsible from the notifying Member State (within a year of acceptance of a take charge request/take back confirmation from another Member State). Provisions also include a freeze of transfers to Member States which are in force majeure situations and the suspension of their obligation to undertake solidarity measures for up to six months.

The European Economic and Social Committee (EESC) and the European Committee of the Regions (CoR) issued their opinions in April and May 2021, respectively. 

On 9 November 2020, Juan Fernando López Aguilar (S&D, Spain) was appointed as rapporteur. He presented his draft report to the Civil Liberties, Justice and Home Affairs Committee (LIBE Committee) on 30 November 2021. The rapporteur insisted on the need to stay as close as possible to the provisions of the Temporary Protection Directive, which the Crisis and force majeure Regulation will repeal, and to have solidarity between Member States as a rule instead of as an exception.

On 20 April 2023, the Parliament decided to start negotiations on the crisis and force majeure regulation with 419 votes in favour, 129 against and 30 abstentions.

The examination of the proposal in the Council’s Asylum Working Party started on 20 December 2022. An opinion of the Council Legal Service of February 2021 put into question the structure of the new pact on migration and asylum, including of which provisions of the crisis and force majeure Regulation are part of the Schengen, the Dublin or the asylum acquis. The Commission, in its Communication from 12 January 2023 invited Parliament and Council to examine the crisis and force majeure proposal alongside the proposed Regulation to address situations of instrumentalisation in the field of migration, as both 'would end the need to resort to ad hoc measures'.

On 16 June 2023, the Council examined the regulation, which will also include provisions for responding to situations of instrumentalisation. The 14 June working document from the Swedish Presidency does not yet specify the arrangements for solidarity in the event of a mass influx of people, and leaves these elements in square brackets.

References:

Author: Anita Orav, Members' Research Service, legislative-train@europarl.europa.eu

As of 20/08/2023.