Explanatory Memorandum to COM(2016)80 - Temporary suspension of the relocation of 30% of applicants allocated to Austria under Council Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece

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dossier COM(2016)80 - Temporary suspension of the relocation of 30% of applicants allocated to Austria under Council Decision (EU) 2015/1601 ...
source COM(2016)80 EN
date 10-02-2016


1. CONTEXT OF THE PROPOSAL

1.1. Article 78(3) of the Treaty and the current temporary relocation schemes

As part of the common policy on asylum, Article 78(3) of the Treaty on the Functioning of the EU (TFEU) provides a specific legal basis to deal with emergency situations. Based on a proposal by the European Commission, it enables the Council, after consulting the European Parliament, to adopt provisional measures for the benefit of Member State(s) confronted with an emergency situation characterised by a sudden inflow of nationals of third countries into one or more Member State(s). The provisional measures envisaged by Article 78(3) TFEU are exceptional in nature. They can only be triggered when a certain threshold of urgency and severity of the problems created in the Member State(s)' asylum system(s) by a sudden inflow of third country nationals is met.

On the basis of Article 78(3) TFEU, the Council adopted two Decisions establishing provisional measures in the area of international protection for the benefit of Italy and Greece. Under Council Decision (EU) 2015/1523 1 , 40 000 applicants for international protection are to be relocated from Italy and Greece to the other Member States. Under Council decision (EU) 2015/1601 2 , 120 000 applicants for international protection are to be relocated from Italy and Greece and from other Member States if they are confronted to an emergency situation.

Under the Council Decision (EU) 2015/1601, 3 551 persons are allocated to Austria for relocation from Italy and Greece.

According to Article 4(5) of the Decision 2015/1601, a Member State may, in exceptional circumstances, by 26 December 2015, notify the Council and the Commission that it is temporarily unable to take part in the relocation process of up to 30 % of applicants allocated to it in accordance with paragraph 1, giving duly justified reasons compatible with the fundamental values of the Union enshrined in Article 2 of the Treaty on European Union. The Commission should assess the reasons given and submit proposals to the Council regarding a temporary suspension of the relocation of up to 30 % of applicants allocated to the Member State concerned in accordance with paragraph 1. Where justified, the Commission may propose to extend the time limit for relocating the applicants in the remaining allocation by up to 12 months beyond the date referred to in Article 13(2).

By letter of 16 December 2015, Austria notified the Commission and the Council that it is confronted with a situation as referred to in Article 4(3) in the Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, giving reasons and requesting an adaptation of the relocation mechanism for the benefit of Austria. By letter of 22 December 2015, Austria requested, pursuant to Article 4(5) in the Council Decision (EU) 2015/1601, to benefit from a temporary suspension of the relocation of up to 30 % of applicants allocated to Austria under Council Decision (EU) 2015/1601 and from an extension of the time limit for relocating the applicants in the remaining allocation by 12 months beyond the date referred to in Article 13(2) of Council Decision (EU) 2015/1601.

1.2. Triggering the application of Article 4(5) of the Council Decision 2015/1601 in respect of Austria

Austria faces exceptional circumstances with an emergency situation characterised by a sudden inflow of nationals of third countries in its territory.

The considerable increase of irregular border crossing into the EU and of secondary movements across Europe has led to a sharp increase in Austria of the number of applicants for international protection.

Eurostat figures confirm a sharp increase of asylum applicants in Austria. The number of applicants for international protection increased by more than 230% from 23 835 applicants for the period from 1 January to 30 November 2014 to 80 880 applicants for the period from 1 January to 30 November 2015), with monthly number of applicants for international protection reaching level at more than 10 000 applicants per month since September. Available data from EASO for December 2015 and January 2016 shows a decrease of the number of applicants for international protection, like in several other Member States, with respectively 8 392 and 5 887 applicants. The figures for these two months are however higher than the corresponding monthly figures for the previous year.

Austria has in 2015 the second highest number of applicants for international protection per capita in the EU after Sweden (9 421 applicants per million inhabitants based on Eurostat data available).

The above situation has put a significant strain on the Austrian asylum system, with serious practical consequences on the ground as regards the reception conditions and ability of the asylum system to deal with the applications.

Therefore, the current migratory situation in Austria and the strain on its capacity to process applications for international protection and to provide adequate reception conditions to persons in clear need of international protection requires a temporary suspension of the relocation of up to 30 % of applicants allocated to Austria under Council Decision (EU) 2015/1601. 30 % of the allocation of Austria under Council Decision (EU) 2015/1601 represent 1 065 persons.

In order to help alleviate the significant pressure that Austria is confronted with, the temporary suspension for a period of one year of relocation of 30% of applicants allocated to Austria as a Member State of relocation under Council Decision (EU) 2015/1601 should be granted.

Austria is still bound to relocate swiftly and regularly the remaining allocation (2 486 applicants) by 26 September 2017, date until which the Council Decision (EU) 2015/1601 applies.

The suspension of relocation of 30% of applicants for 12 months constitutes a sufficient and proportionate measure in reaction to the situation in Austria. An extension of the time limit for relocating the applicants in the remaining allocation beyond the date referred to in Article 13(2) of Council Decision (EU) 2015/1601 would not be justified. It is essential relocation from Italy and Greece takes place swiftly and regularly until 26 September 2017, in order to effectively relieve Italy and Greece of the ongoing emergency situation.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

2.1. Summary of the proposed action

In view of assisting Austria in better coping with an emergency situation characterised by a sudden inflow of nationals of third countries in its territory the proposed Council Implementing Decision provides for a temporary suspension of the relocation of up to 30 % of applicants allocated to Austria under Council Decision (EU) 2015/1601 for a period of one year.

Austria is still bound to relocate to its territory 3 551 persons under the Council Decision (EU) 2015/1601 from Italy and Greece by the deadline set by Article 13(2) of Council Decision (EU) 2015/1601.

The present Council Implementing Decision does not affect the situation of the third countries nationals that have already been relocated to Austria under Council Decision (EU) 2015/1601.

2.2. Legal basis and choice of instrument

The legal basis for the proposed Council Implementing Decision is Article 4(5) of the Council Decision (EU) 2015/1601.

In accordance with Article 4(7) of Council Decision (EU) 2015/1601, the instrument proposed in a Council Implementing Decision.

2.3. Subsidiarity

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on the European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union.

In this field the European Union exercised these powers by enacting Council Decision (EU) 2015/1601. The current action consists in suspending some obligations of a Member State under that Decision due to exceptional circumstances and can therefore only be taken by the European Union.

2.4. Proportionality

Given the urgency and the severity of the situation created by the influx described above, the partial suspension of currently ongoing EU action in respect of Austria does not go beyond what is necessary to achieve the objective of addressing the situation effectively. The suspension relates only to Austria and is partial and temporary and does not affect the rights of applicants for international protection who might be relocated to Austria before the adoption of this proposal.

2.5. Impact on fundamental rights

The fundamental rights as provided for in the EU Charter of Fundamental Rights ("the Charter") of the applicants for international protection who are within the scope of Council Decision (EU) 2015/1601 are not affected. The partial suspension of obligations as a Member State of relocation relates only to Austria, is temporary and does not affect applicants who might have been relocated to Austria before the adoption of this proposal.

3. BUDGETARY IMPLICATIONS

This proposal does not entail additional costs for the EU budget.