Explanatory Memorandum to COM(2024)253 - - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2024)253 - . |
|---|---|
| source | COM(2024)253 |
| date | 11-06-2024 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
On 4 March 2022, the Council adopted implementing Decision 2022/3821 and activated Council Directive 2001/55/EC of 20 July 2001 (the “Temporary Protection Directive”)2 for certain categories3 of people displaced on or after 24 February 2022, as a result of the military invasion of Ukraine by Russian armed forces that began on that date. Pursuant to Article 4(1) of the Temporary Protection Directive, the initial duration of temporary protection is one year, which may be extended automatically by six monthly periods for a maximum of one year. Temporary protection was automatically extended by one year, until 4 March 2024.
Pursuant to Article 4 i of the Temporary Protection Directive, where reasons for temporary protection persist, the Council may decide to extend temporary protection by up to one year, by qualified majority and on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council. Temporary protection was extended by a further period of one year, until 4 March 20254.
The objective of this proposal is to extend further by a period of one year temporary protection as introduced by Council Implementing Decision 2022/382. This will have the effect of continuing temporary protection in respect of the categories of persons identified in Council Implementing Decision 2022/382, for the period from 5 March 2025 to 4 March 2026.
Currently, over 4.19 million persons displaced from Ukraine, of whom one third are chidren, enjoy temporary protection in the EU. The number of active registrations, indicating the number of persons benefitting from temporary protection in the EU Member States, has remained stable at around 4 million, with a slight constant upward trend (from 4 million in September 2023 to 4.19 million in May 2024)5. Germany, Poland and Czechia remain the Member States hosting the highest number of beneficiaries of temporary protection (over 1.2 million in Germany, almost 1 million in Poland, and almost 400 000 in Czechia)6. Since September 2023, the number of decisions providing temporary protection has remained stable at around 65 000 decisions per month, albeit showing a slight decreasing trend.
Since the activation of the Temporary Protection Directive, Member States have made significant efforts to support people displaced from Ukraine to facilitate their integration into host society and the labour market. They have also continued efforts to increase reception capacity and contingency planning. The EU’s response to the Russian aggression against Ukraine remains characterised by a strong solidarity component, firstly towards Ukraine and its people as reflected in the efforts of Member States and their citizens hosting displaced persons, and secondly among Member States, as reflected in their decision to waive the application of Article 11 of the Temporary Protection Directive.
The Temporary Protection Registration Platform has been operative since 31 May 2022 with the purpose to allow the parties to exchange information to ensure that people enjoying temporary protection or adequate protection under national law can effectively benefit from their rights in all Member States while limiting possible abuse. To ensure its proper functioning, it is important to regularly upload data and to carry out a swift follow up, where needed, in case of double registrations. It will continue to perform its operations as long as temporary protection is in place. In this regard, no change to its functioning is required for the prolongation of temporary protection.
In addition, given that a person can benefit from the rights attached to temporary protection only in one Member State at a time, beneficiaries of temporary protection who move to another Member State to enjoy temporary protection should not benefit from the social assistance in two Member States simultaneously.
The need to continue providing protection, coupled with the possibility for beneficiaries of temporary protection to enjoy temporary protection in the Member State of their choice, has impacted the reception system of some Member States, notably those hosting large numbers of persons benefitting from temporary protection, combined also with the impact of having to cope simultaneously with a large number of applicants for international protection or with housing shortages. In this regard, going forward, it is important to continue working towards ensuring a greater balance of efforts among Member States. The Commission will continue to closely monitor the impact of future new arrivals on the reception capacity of Member States. The Commission also stands ready to facilitate necessary discussions on this matter and the appropriate follow-up. Ensuring the self-reliance of displaced persons and their transition to long-term accommodation remain a priority.
Alongside providing beneficiaries of temporary protection access to a set of harmonised rights, the activation of the Temporary Protection Directive continues to mitigate the risk that the asylum systems would be unable to process the inflow without adverse effects for their efficient operation.
Since the start of Russian war of aggression, compared to the 4.19 million registrations for temporary protection of persons displaced from Ukraine, only some 53 000 applications for international protection7 were lodged by Ukrainian nationals in EU Member States, Norway and Switzerland. While remaining at low levels compared to the initial estimation that between 1.2 and 3.2 million persons potentially would apply for international protection, a relative increase in the number of asylum applications by Ukrainian nationals has been observed in 2024 so far (a 50 % increase compared to the same period last year). Nevertheless, the limited overall numbers continue to show that temporary protection has delivered on its purpose, including preventing Member States’ asylum systems from being overwhelmed.
According to the United Nations High Commissioner for Refugees (UNHCR) intentions survey of February 20248, the proportion of displaced persons planning or hoping to return to Ukraine in the future has decreased compared to one year ago (from 77 % to 64 %), while the share of those who are undecided about returning has increased (18 % to 24 %), as well as those who report no hope to return (5 % to 11 %). The International Organization for Migration (IOM) reports9 a large majority of persons it has surveyed (74 %) intending to return to Ukraine when and if it is safe.
Furthermore, according to the joint study of the European Union Agency for Asylum (EUAA) and the Organisation for Economic Cooperation and Development (OECD)10, 53 % of respondents expressed their intention to return to Ukraine after the war, but a significant proportion (30 %) remain unsure. About 17 % are certain that they will not return, with the safety concern in the country of origin being the main reason.
These surveys confirm that displaced persons from Ukraine are still unable to return to Ukraine in safe and durable conditions.
In Ukraine, Russia continues its war of aggression unabated. Since March 2024, this includes intensified repeated air strikes across the country resulting in heavy casualties and significant damage, and having a considerable impact on the country’s energy infrastructure, leading to widespread power outages and the destruction of power plants.
Russia’s deliberate and indiscriminate attacks directly affect the civilian population across the whole country, with unpredictable air and drone attacks extending beyond established and largely unshifting battle zones.
As of March 2024, the IOM estimates that there are 3.6 million internally displaced persons (IDPs)11 in Ukraine. 80 % of displaced households reported having been displaced for at least one year12. According to the information provided in the Third Rapid Damage and the Needs Assessment (RDNA3) report13, the state programme supporting IDPs has become fiscally unsustainable. In addition, poverty and food insecurity are reported to have increased in 2023. The impacts of war are uneven, and the greatest effects are felt by women, persons with disabilities, children and youth, IDPs, and the elderly.
The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) estimates that, as of December 2023, over 14.6 million people in the country are in need of urgent humanitarian assistance in 202414.
The volatile situation, combined with the difficult humanitarian situation in Ukraine, could also lead to further arrivals at scale into the Union resulting in the need to provide protection to an additional number of displaced persons.
The current uncertainty and volatility in Ukraine show that there is no clear solution in sight for the beneficiaries of temporary protection currently present in the EU Member States. These persons still need to be protected within the Union. By the same token, the risk to the efficient operation of the national asylum systems remains were temporary protection to cease soon and all these persons to request international protection at the same time.
Given the developments above, the Commission considers that the reasons for temporary protection persist and that temporary protection should therefore be prolonged as a necessary and appropriate response to the current situation. The prolongation should be adopted as soon as possible and for another year, i.e. for the period from 5 March 2025 to 4 March 2026, in accordance with Article 4 i of the Temporary Protection Directive. This is to ensure that persons displaced from Ukraine and hosted in the EU Member States are provided with as much stability and prospects as possible under the current circumstances.
Furthermore, Member States should be given the possibility to undertake in a timely manner the necessary administrative and legal steps (such as renewal of residence permits) to prepare for the prolongation of temporary protection.
• Consistency with existing policy provisions in the policy area
This proposal is fully consistent with the EU asylum acquis, as the Temporary Protection Directive forms an integral part of the Common European Asylum System and was foreseen to face an extraordinary situation of mass influx of displaced persons, as is still currently the case due to the full-scale invasion of Ukraine by Russia. It is also fully consistent with the European Union’s objective of establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Union.
The elements of the proposal are also consistent with the legal acts composing the Pact on Migration and Asylum that were recently adopted. The Parliament and the Council have agreed to preserve the Temporary Protection Directive as part of the toolbox available to the EU for situations of mass arrivals. The Temporary Protection Directive has proven to be an essential instrument to provide immediate protection in the EU. At this stage, it continues to be the most appropriate instrument to address the displacement caused by the Russian war of aggression against Ukraine.
• Consistency with other Union policies
This proposal is fully consistent with the need to allow Member States to process potential applications for international protection in an orderly manner without overwhelming their asylum systems and to continue providing for the necessary measures in case of a mass influx of displaced persons from Ukraine that would avoid the overwhelming of the Member States’ asylum systems. It is also consistent with the Union’s external actions. This proposal is also in line with EU restrictive measures and other actions adopted also in response of the Russian aggression against Ukraine. This proposal is part of a comprehensive set of EU actions responding to the Russian war of aggression against Ukraine.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for the proposal is Article 4 i 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, considering that the reasons for temporary protection persist. This allows for measures that promote a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
• Subsidiarity (for non-exclusive competence)
Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters on 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 alone and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union.
The situation in Ukraine as a result of the Russian war of aggression continues to impact the EU as a whole. It has been met with an unprecedented and unified response by the European Union. This shows that it still requires EU solutions and EU support as well as strong coordination at EU level as there is a continuous need for all Member States to effectively respond to the situation together and to ensure the same standards and a harmonised set of rights are applied across the Union for the 4.19 million people currently hosted in the Union. In addition to the existing mass influx which remains, further arrivals at scale cannot be excluded because of the ongoing volatility of the situation in Ukraine. It is clear that actions taken by individual Member States cannot satisfactorily address the need for a common EU approach to what clearly constitutes a challenge common to the whole of the EU.
Such a common approach cannot be sufficiently achieved by the Member States individually and can, by reason of the scale and effects of this proposed Council Implementing Decision, be better achieved and coordinated at Union level, as also indicated by Member States themselves. The Union must therefore act and may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5(3) of the Treaty on European Union.
• Proportionality
In accordance with the principle of proportionality, as set out in Article 5 i of the Treaty on the European Union, the proposed Council Implementing Decision provides for an extension of temporary protection for a limited period of time, i.e. for one year for the specific group of persons to whom it already applies.
The proposed measure is limited to what is necessary given the scale and gravity of the situation in Ukraine, as a result of which around 4.19 million displaced persons currently present in the EU Member States are not able to return to Ukraine in safe and durable conditions. In addition, this extension also constitutes a proportionate response in view of the current situation, as temporary protection has protected the asylum system of the Member States from being overwhelmed by a significant number of applications from persons arriving to the EU Member States.
• Choice of the instrument
Article 4 i of the Temporary Protection Directive requires a Council Implementing Decision to extend temporary protection by up to one year where reasons for temporary protection persist.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Evidence-based policy making
The EU Migration Preparedness and Crisis Blueprint Network with a focus on Ukraine and the Solidarity Platform Ukraine15 continue their operations with the aim to provide, respectively, a common situational awareness of the migratory implications of the Russian full-scale invasion of Ukraine and the EU’s and Member States’ preparedness and a coordinated response to the crisis through regular exchanges. In this context, increasing the overall preparedness at EU level, including contingency planning, has been discussed in both fora. Information and data on the current situation and on the movements of people are constantly being collected. The Temporary Protection Registration Platform continues discussing on an ad-hoc basis how to better ensure the proper exchange of information on beneficiaries of temporary protection and of adequate protection available under national law among Member States, while detecting double registrations within the same Member State and across EU Member States.
In addition, the European Commission, organisations such as the World Bank and the United Nations, as well as the Government of Ukraine are regularly assessing the situation in Ukraine. The World Bank publishes reports on the Ukraine Rapid Damage and Needs Assessment16.
Since the outbreak of the war, the IOM has worked to provide a better understanding of the situation of displaced persons and to track internal displacement in Ukraine and mobility flows, in addition to monitoring through surveys the intentions of those fleeing the war and of those crossing the border back to Ukraine and the assessment of conditions of return. The UNHCR has been regularly publishing information on intentions and perspectives of (also internally) displaced persons from Ukraine. Surveys and papers from the abovementioned international organisations indicate that the current situation is still volatile and uncertain, therefore not allowing for return under safe and durable conditions. As of April 2024, UNHCR estimates that 6.4 million persons fleeing Ukraine are recorded worldwide17.
• Stakeholder consultations and collection and use of expertise
To gather evidence-based information, the Commission regularly consulted through the Migration Preparedness and Crisis Management Network and the Solidarity Platform Member States’ authorities, the European External Action Service, and relevant EU Agencies, Ukrainian authorities and international organisations, while maintaining exchanges with non-governmental and civil society organisations.
The Commission, in cooperation with the rotating presidencies of the Council of the European Union consulted Member States on the future of temporary protection beyond March 2025 at Ministerial level, as well as in the Council’s Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) in November 2023 and in the Asylum Working Party in March 2024, where the Member States underlined the need for temporary protection to be prolonged as soon as possible. Parallel and complementary discussions were held in the Solidarity Platform, where Member States unanimously expressed the need to extend temporary protection for an additional year to maintain a common European response, provide clarity to beneficiaries and enable Member States to undertake the necessary administrative and legal steps at national level (such as renewal of residence permits). In parallel, the Commission held regular contacts with the Ukrainian authorities to gather information on the situation on the ground. At the same time, reflections continue on the need to create the conditions to ensure a smooth transition from temporary protection to alternative national legal statuses. In addition, in accordance with Article 3 of the Temporary Protection Directive, the Commission specifically consulted the UNHCR, which has been assessing the situation and provided relevant input, and conducting surveys on the intentions of displaced persons. In February and March 2024, the European Council for Refugees and Exiles (ECRE) and other 140 civil society organisations have published a report18 and a joint statement19 on the situation of displaced persons from Ukraine respectively, calling, among others, on the Commission to consider proposing the further extension of temporary protection.
• Fundamental rights
This proposal respects fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union, as well as the obligations stemming from international law, including the Geneva Convention of 28 July 1951 on the status of refugees, as amended by the New York Protocol of 31 January 1967.
4. BUDGETARY IMPLICATIONS
Since the start of the Russian war of aggression against Ukraine, funding needs linked to the application of the Temporary Protection Directive have been accommodated within the budget of the existing EU funding instruments under the period 2014-2020 and 2021-2027, in particular under Cohesion Policy.
This allowed the Member States to have access to available unspent funds and to swiftly redirect them under the 2014-2020 programmes towards urgent migration and border management needs arising from the arrival into the EU of large numbers of people fleeing the war in Ukraine. In addition, a targeted reinforcement of EUR 152 million was agreed by the budgetary authority and used as part of the EUR 400 million emergency assistance package to support the most affected Member States with first reception needs linked to the high inflow of displaced people from Ukraine. The 2021-2027 Home Affairs Funds programmes under AMIF, BMVI and ISF also contribute to fulfilling funding Member States’ needs linked to the application of the Temporary Protection Directive. Overall, EUR 9.4 billion were initially allocated to the national programmes, while an additional allocation of EUR 1.9 billion will be allocated in 2025 as a result of the mid-term review of the programmes. Finally, in February 2024 an increase of the resources for Heading 4 by EUR 2 billion for 2025-2027 was agreed in the context of the mid-term revision of the Multiannual Financial Framework (MFF). These additional resources will support Member States in managing urgent challenges and needs related to migration and border management in frontline Member States, as well as in those affected by the war in Ukraine and the Middle East, and for the implementation of the Pact on Migration and Asylum, including new border procedures.
5. OTHER ELEMENTS
• Detailed explanation of the specific provisions of the proposal
Article 1 establishes the extension of temporary protection for one year (from 5 March 2025 to 4 March 2026) for displaced persons referred to in Article 2 of Council Implementing Decision 2022/382.
Article 2 establishes the date of the entry into force of this Decision .