Operational and technical assistance by the Agency
1. The Agency shall provide operational and technical assistance to a Member State in accordance with this Chapter:
(a)
at the request of the Member State with regard to the implementation of its obligations under the CEAS;
(b)
at the request of the Member State where its asylum or reception system is subject to disproportionate pressure;
(c)
where the Member State faces disproportionate migratory challenges and requests operational and technical reinforcement through the deployment of migration management support teams in accordance with Article 21;
(d)
on its own initiative with the agreement of the Member State where the Member State’s asylum or reception system is subject to disproportionate pressure;
(e)
where it provides operational and technical assistance in accordance with Article 22.
2. The Agency shall organise and coordinate the appropriate operational and technical assistance, which may entail taking one or more of the following operational and technical measures in a manner that fully respects fundamental rights:
(a)
assist Member States with the identification and registration of third-country nationals, as appropriate, in close cooperation with other Union bodies, offices and agencies;
(b)
assist Member States with receiving and registering applications for international protection;
(c)
facilitate the examination by the competent national authorities of applications for international protection or provide those authorities with the necessary assistance in the procedure for international protection;
(d)
facilitate joint initiatives of Member States for the processing of applications for international protection;
(e)
assist with the provision of information on the procedure for international protection;
(f)
advise on, assist with or coordinate the setting up or the provision of reception facilities by Member States, in particular emergency accommodation, transport and medical assistance;
(g)
provide adequate support to Member States in carrying out their tasks and obligations under Regulation (EU) No 604/2013;
(h)
assist with the relocation or transfer of applicants for or beneficiaries of international protection within the Union;
(i)
provide interpretation services;
(j)
assist Member States in ensuring that all the necessary safeguards with respect to the rights of the child and child protection are in place, in particular as regards unaccompanied minors;
(k)
assist Member States in identifying applicants in need of special procedural guarantees or applicants with special reception needs, or other persons in a vulnerable situation, including minors, in referring those persons to the competent national authorities for appropriate assistance on the basis of national measures and in ensuring that all the necessary safeguards for those persons are in place;
(l)
form part of the migration management support teams at hotspot areas referred to in Regulation (EU) 2019/1896 in close cooperation with other relevant Union bodies, offices and agencies;
(m)
deploy asylum support teams;
(n)
deploy technical equipment for asylum support teams, as appropriate.
3. The Agency shall finance or co-finance the operational and technical measures set out in paragraph 2 from its budget in accordance with the financial rules applicable to the Agency.
4. The Executive Director shall evaluate the result of the operational and technical measures set out in paragraph 2 of this Article. Within 60 days of the end of the provision of those measures, the Executive Director shall transmit to the Management Board detailed evaluation reports, together with the observations of the fundamental rights officer, in accordance with the reporting and evaluation scheme provided for in operational plans as referred to in Article 18(2), point (k). The Agency shall make a comprehensive comparative analysis of those results, which shall be included in the annual report on the situation of asylum in the Union referred to in Article 69.
Procedure for providing operational and technical assistance
1. Member States shall address requests for assistance under Article 16(1), point (a), (b) or (c), to the Executive Director. Such requests shall describe the situation and the purpose of the request and shall be accompanied by a detailed assessment of needs and, as appropriate, a description of the measures already taken at national level.
2. Where a Member State agrees to the assistance proposed on the initiative of the Agency under Article 16(1), point (d), the Member State concerned shall submit to the Agency a detailed assessment of needs and, as appropriate, a description of the measures already taken at national level.
3. The Executive Director shall evaluate, approve and coordinate requests for assistance, including the deployment of asylum support teams. The Executive Director shall immediately notify the Management Board of the receipt of a request for assistance under Article 16(1), point (a), (b) or (c), or of a proposal by the Agency to provide assistance on its own initiative under Article 16(1), point (d). The Executive Director shall examine the detailed assessment of needs submitted by the Member State concerned under paragraph 1 or 2 of this Article.
4. The Agency shall subject each request for assistance under Article 16(1), point (a), (b) or (c), and proposal to provide assistance on its own initiative under Article 16(1), point (d), to a thorough and reliable assessment, enabling it to identify and propose one or more of the measures referred to in Article 16(2) in order to meet the needs of the Member State concerned. Where necessary, the Executive Director may send experts from the Agency to assess the situation of the Member State requiring assistance.
5. The Executive Director shall take a decision on the provision of operational and technical assistance, including on the deployment of asylum support teams:
(a)
within 3 working days of the date of receipt of a request under Article 16(1), point (a), (b) or (c); or
(b)
within 3 working days of the date on which the Member State concerned provides its agreement to a proposal of the Agency to provide assistance on its own initiative under Article 16(1), point (d).
Where the Executive Director sends experts to the Member State concerned under paragraph 4, the Executive Director shall take a decision as referred to in the first subparagraph within 5 working days of the date referred to in point (a) or (b), as appropriate.
At the same time as taking a decision under the first subparagraph, the Executive Director shall notify the Member State concerned and the Management Board of his or her decision in writing stating the main reasons on which the decision is based.
Operational plan
1. Where operational and technical assistance is to be provided, the Executive Director shall draw up an operational plan in cooperation with the host Member State. The Executive Director and the host Member State shall agree on the operational plan:
(a)
within 10 working days of the date on which a decision as referred to in Article 17(5) is taken in the case of a request for assistance under Article 16(1), point (a);
(b)
within 5 working days of the date on which a decision as referred to in Article 17(5) is taken in the case of a request for assistance under Article 16(1), point (b); or
(c)
within 5 working days of the date on which the Member State provides its agreement to a proposal by the Agency to provide assistance on its own initiative under Article 16(1), point (d).
The Agency shall consult participating Member States, where necessary, on the operational plan through the national contact points referred to in Article 24.
2. An operational plan shall be binding on the Agency, the host Member State and the participating Member States. It shall set out in detail the conditions for the deployment of asylum support teams within the framework of the operational and technical assistance to be provided and organisational aspects, including the following:
(a)
a description of the situation, and the modus operandi and objectives of the deployment of the asylum support teams, including the operational objective;
(b)
the foreseeable duration of the deployment of the asylum support teams;
(c)
the location in the host Member State to which the asylum support teams are to be deployed;
(d)
logistical arrangements, including information on working conditions, for the asylum support teams;
(e)
a detailed and clear description of the tasks and responsibilities of the asylum support teams, including with regard to fundamental rights;
(f)
instructions for the asylum support teams, including as regards the national and European databases that they are authorised to consult and the equipment that they may use or carry in the host Member State;
(g)
the composition of the asylum support teams in terms of profiles and number of experts;
(h)
technical equipment, including specific provisions such as conditions of use, transport and other logistics and financial provisions;
(i)
capacity-building activities related to the operational and technical assistance being provided;
(j)
regarding assistance with applications for international protection, including regarding the examination of such applications, and without prejudice to the competence of Member States to decide on individual applications for international protection, specific information on the tasks that the asylum support teams may perform and a clear description of their responsibilities and of the applicable Union, national and international law, including the liability regime;
(k)
a reporting and evaluation scheme containing benchmarks for an evaluation report and the date of submission of the final evaluation report;
(l)
where appropriate, the conditions for cooperation with third countries, other Union bodies, offices and agencies, or international organisations within their respective mandates;
(m)
measures for referring persons in need of international protection, victims of trafficking in human beings, minors and any other persons in a vulnerable situation to the competent national authorities for appropriate assistance;
(n)
practical arrangements related to the complaints mechanism referred to in Article 51.
3. In Member States where the UNHCR operates and has the capacity to contribute to responding to a request for operational and technical assistance under Article 16(1), the Agency shall coordinate with the UNHCR as regards the implementation of the operational plan, where appropriate and with the agreement of the Member State concerned.
4. As regards paragraph 2, point (f), the host Member State shall authorise experts participating in asylum support teams to consult European databases, and it may authorise them to consult its national databases in accordance with relevant Union and national law on access to and consultation of those databases and as necessary to achieve the objectives and perform the tasks outlined in the operational plan.
5. Any amendments to or adaptations of an operational plan shall require the agreement of the Executive Director and the host Member State, after consulting the participating Member States, where necessary. The Agency shall immediately send a copy of the amended or adapted operational plan to the national contact points of the participating Member States referred to in Article 24.
6. The Executive Director shall, after informing the host Member State, suspend or terminate, in whole or in part, the deployment of asylum support teams where:
(a)
the conditions for taking operational and technical measures as referred to in Article 16(2) are no longer fulfilled;
(b)
the host Member State does not respect the operational plan;
(c)
after consulting the fundamental rights officer, the Executive Director considers that there are violations of fundamental rights or international protection obligations by the host Member State that are of a serious nature or are likely to persist.
Composition of asylum support teams
1. The Executive Director shall determine the composition of each asylum support team. Asylum support teams shall consist of:
(a)
experts from the Agency’s own staff;
(b)
experts from Member States;
(c)
experts seconded by Member States to the Agency; or
(d)
other experts not employed by the Agency.
When determining the composition of an asylum support team, the Executive Director shall take into account the particular circumstances of the Member State concerned. An asylum support team shall be constituted in accordance with the relevant operational plan.
2. On a proposal of the Executive Director, the Management Board shall decide on the profiles and the overall number of experts to be made available for an asylum support team. The same procedure shall apply to any subsequent changes in the profiles and the overall number of experts.
3. Member States shall contribute to asylum support teams by nominating national experts who correspond to the required profiles as decided upon by the Management Board in accordance with paragraph 2. The number of experts to be made available by each Member State for the following year shall be established on the basis of annual bilateral negotiations and agreements between the Agency and the Member State concerned.
In accordance with the agreements referred to in the first subparagraph, Member States shall make their own experts or experts they have seconded to the Agency available for deployment at the request of the Agency. However, where a Member State is faced with an exceptional situation substantially affecting the discharge of national tasks, it shall not be required to make those experts so available.
4. The Agency shall contribute to asylum support teams with experts from its own staff, including experts employed and trained for field work and interpreters with at least basic training or proven experience who may be recruited in the host Member States, or with other experts not employed by the Agency with demonstrated relevant knowledge and experience in accordance with operational needs.
5. As part of the asylum support teams, the Agency shall set up a list of interpreters. Member States shall assist the Agency in identifying interpreters for the list of interpreters, including individuals who do not form part of the national administration of Member States. Interpretation assistance may be provided through the deployment of interpreters in the Member State concerned or, where appropriate, via video-conferencing.
6. An asylum reserve pool of a minimum of 500 experts shall be set up for the purposes of deploying asylum support teams in the framework of requests for assistance under Article 16(1), point (b), proposals by the Agency to provide assistance on its own initiative under Article 16(1), point (d), and assistance provided by the Agency under Article 22. The asylum reserve pool shall constitute a reserve of experts placed at the immediate disposal of the Agency. For that purpose, each Member State shall make available to the asylum reserve pool the number of experts set out in Annex I. The Management Board shall, on a proposal of the Executive Director, decide by a majority of three-fourths of its members with the right to vote on the profiles of experts to be included in the asylum reserve pool. The same procedure shall apply to any subsequent changes to the profiles of experts.
7. The Executive Director may verify whether the experts made available to the asylum reserve pool by Member States in accordance with paragraph 6 correspond to the profiles decided by the Management Board under that paragraph. In advance of deployment the Executive Director may request that a Member State remove an expert from the asylum reserve pool where that expert does not correspond to the required profile and replace him or her with an expert that corresponds to one of the required profiles.
8. Without prejudice to Article 22(5) and when faced with an exceptional situation substantially affecting the discharge of national tasks as evidenced by the information analysis on the situation of asylum referred to in Article 5, a Member State may request the Management Board in writing to be temporarily exempted from its obligation to make experts available to the asylum reserve pool. Such a request shall provide comprehensive reasons and information on the situation in that Member State. The Management Board shall decide by a majority of three-fourths of its members with the right to vote whether to temporarily exempt that Member State from part of its contribution set out in Annex I.
Deployment of asylum support teams
1. The Agency shall deploy asylum support teams to Member States to provide operational and technical assistance under Article 16(1).
2. As soon as an operational plan is agreed upon in accordance with Article 18(1) or Article 22(2), the Executive Director shall request the Member States to deploy their experts within 10 working days. The request shall be sent, in writing, together with a copy of the operational plan, to the national contact points referred to in Article 24 and shall specify the scheduled date of deployment.
3. The Executive Director shall deploy asylum support teams from the asylum reserve pool in the framework of a request for assistance under Article 16(1), point (b), a proposal by the Agency to provide assistance on its own initiative under Article 16(1), point (d), or assistance provided by the Agency under Article 22. The deployment of experts from the asylum reserve pool shall take place within 7 working days from the date on which the operational plan is agreed in accordance with Article 18(1) or Article 22(2).
4. Member States shall, without undue delay, make the experts from the asylum reserve pool available for deployment as determined by the Executive Director. The host Member State shall not deploy experts forming part of its fixed contribution to the asylum reserve pool. If there is a shortage of experts for deployment in the asylum reserve pool, the Management Board shall, on a proposal of the Executive Director, decide how that shortage is to be filled. The Executive Director shall inform the European Parliament, the Council and the Commission accordingly.
5. The Member State from which the expert is deployed (the ‘home Member State’) shall determine the duration of deployment. The duration of deployment shall not be less than 45 days, unless the operational and technical assistance in question is required for a shorter duration.
6. The Executive Director shall request that a Member State remove an expert from an asylum support team in the event of misconduct or an infringement of the applicable deployment rules. In such cases, the expert concerned shall not be considered for future deployments.
7. The Agency shall inform the European Parliament by means of its annual report on the situation of asylum in the Union referred to in Article 69 of the number of experts committed and deployed to the asylum support teams in accordance with this Article. That report shall list the Member States that have invoked the exceptional situation referred to in Article 19(3) or (8) in the previous year. It shall also include the reasons for invoking the exceptional situation and the information provided by the Member State concerned.
Migration management support teams
1. Where a Member State requests operational and technical reinforcement by migration management support teams under Article 40 of Regulation (EU) 2019/1896 or where migration management support teams are deployed at hotspot areas under Article 42 of that Regulation, the Executive Director shall work closely with the European Border and Coast Guard Agency when, as provided for in Article 40(2) of that Regulation, he or she examines, in coordination with other relevant Union bodies, offices and agencies, a Member State’s request for reinforcement and the assessment of its needs for the purpose of defining a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union bodies, offices and agencies to be agreed upon by the Member State concerned.
2. The Commission shall, in cooperation with the host Member State and the relevant Union bodies, offices and agencies, establish the terms of cooperation at the hotspot area and be responsible for the coordination of the activities of the migration management support teams.
3. The Executive Director shall, in the cases referred to in paragraph 1, launch the procedure for deployment of asylum support teams as part of migration management support teams, including experts from the asylum reserve pool as appropriate. The operational and technical reinforcement provided by the asylum support teams in the framework of the migration management support teams may include:
(a)
assistance in the screening of third-country nationals, including their identification, registration and, where requested by the host Member State, fingerprinting, and the provision of information on the purpose of those procedures;
(b)
the provision of initial information to third-country nationals who wish to make an application for international protection and the referral of those third-country nationals to the competent national authorities;
(c)
the provision of information to applicants for international protection on the procedure for international protection, on reception conditions as appropriate and on relocation, as well as the provision of necessary assistance to applicants or potential applicants that could be subject to relocation;
(d)
the registration of applications for international protection and, where requested by the host Member State, the facilitation of the examination of such applications.
Situation of disproportionate pressure or ineffectiveness of the asylum and reception systems
1. The Council, on the basis of a proposal from the Commission under Article 15(7), may adopt without delay a decision by means of an implementing act, identifying one or more of the measures set out in Article 16(2) to be taken by the Agency to support a Member State and requiring that Member State to cooperate with the Agency in the implementation of those measures, where the asylum or reception system of that Member State is rendered ineffective to the extent of having serious consequences for the functioning of the CEAS and where:
(a)
the asylum or reception system of that Member State is subject to disproportionate pressure that places an exceptionally heavy and urgent demand on that system and that Member State does not take sufficient action to address that pressure, including by not requesting operational and technical assistance under Article 16(1), point (a), (b) or (c), or by not agreeing to a proposal of the Agency to provide such assistance on its own initiative under Article 16(1), point (d); or
(b)
that Member State does not comply with recommendations of the Commission referred to in Article 15(5).
The Council shall transmit decisions as referred to in the first subparagraph to the European Parliament.
2. The Executive Director shall, within 3 working days of the date of adoption of a Council decision as referred to in paragraph 1, determine the details of the practical implementation of that Council decision. In parallel, the Executive Director shall draw up an operational plan and submit it to the Member State concerned. The Executive Director and the Member State concerned shall agree on the operational plan within 3 working days of the date of its submission.
3. The Agency shall deploy the necessary experts from the asylum reserve pool and experts from its own staff in accordance with Article 20(3). The Agency may deploy additional asylum support teams as necessary.
4. The Member State concerned shall comply with the Council decision referred to in paragraph 1. For that purpose, it shall cooperate with the Agency and immediately take the action necessary to facilitate the implementation of that decision and the practical execution of the measures set out in that decision and in the operational plan, without prejudice to its competence to decide on individual applications for international protection.
5. For the purposes of this Article, the Member States shall make the experts from the asylum reserve pool available for deployment as determined by the Executive Director and shall not invoke the exceptional situation referred to in Article 19(3) or (8). The host Member State shall not deploy experts forming part of its fixed contribution to the asylum reserve pool.
Technical equipment
1. Without prejudice to an obligation of the host Member State to supply the facilities and equipment necessary for the Agency to be able to provide the required operational and technical assistance, the Agency may deploy its own equipment to the host Member State, including at its request, to the extent that such equipment might be needed by asylum support teams and insofar as such equipment might complement equipment already made available by the host Member State or other Union bodies, offices and agencies.
2. The Agency may acquire or lease technical equipment by decision of the Executive Director, in consultation with the Management Board. Any acquisition or leasing of technical equipment shall be preceded by a thorough needs and cost-benefit analysis. Any expenditure in connection with such acquisition or leasing shall be provided for in the Agency’s budget and in accordance with the financial rules applicable to the Agency.
3. The Agency shall ensure the security of its own equipment throughout the life cycle of the equipment.
National contact point
Each Member State shall appoint a national contact point for communication with the Agency on all matters relating to operational and technical assistance as referred to in Articles 16 and 22.
Coordinating officer of the Agency
1. The Agency shall ensure the operational implementation of all organisational aspects, including the presence of staff members of the Agency, related to the deployment of asylum support teams throughout the provision of operational and technical assistance under Article 16 or 22.
2. The Executive Director shall appoint one or more experts from the Agency’s staff to act or to be deployed as a coordinating officer for the purposes of paragraph 1. The Executive Director shall notify the host Member State of such appointments.
3. The coordinating officer shall foster cooperation and coordination between the host Member State and the participating Member States. In particular, the coordinating officer shall:
(a)
act as an interface between the Agency, the host Member State and experts participating in asylum support teams, providing assistance, on behalf of the Agency, on all issues relating to the experts’ conditions of deployment;
(b)
monitor the correct implementation of the operational plan;
(c)
act on behalf of the Agency as regards all aspects of the deployment of asylum support teams and report to the Agency on all those aspects;
(d)
report to the Executive Director where the operational plan is not adequately implemented.
4. The Executive Director may authorise the coordinating officer to assist in resolving any disputes concerning the implementation of the operational plan and the deployment of asylum support teams.
5. In discharging his or her duties, the coordinating officer shall work in close cooperation with the competent national authorities and shall take instructions only from the Executive Director.
Civil liability
1. The host Member State shall be liable in accordance with its national law for any damage caused by experts participating in an asylum support team operating on its territory during their operations.
2. Where such damage is caused by gross negligence or wilful misconduct on the part of experts participating in an asylum support team, the host Member State may request the home Member State or the Agency to reimburse it for any sums that it has paid to injured parties or persons entitled to receive such sums on their behalf.
3. Without prejudice to the exercise of its rights vis-à-vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or wilful misconduct.
4. Any dispute between Member States or between a Member State and the Agency relating to the application of paragraphs 2 and 3 of this Article which cannot be resolved by negotiations between them shall be submitted by them to the CJEU in accordance with Article 273 TFEU.
5. Without prejudice to the exercise of its rights vis-à-vis third parties, the Agency shall bear the costs of damage to its equipment during deployment, except in cases of gross negligence or wilful misconduct.
Criminal liability
During the deployment of an asylum support team, the deployed experts shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them.
Costs
1. The Agency shall bear the costs incurred by experts participating in asylum support teams, in particular:
(a)
costs related to travel from the home Member State to the host Member State, travel from the host Member State to the home Member State and travel within the host Member State for the purposes of deployment;
(b)
costs related to vaccinations;
(c)
costs related to special insurance needs;
(d)
costs related to health care;
(e)
daily subsistence allowances, including accommodation costs;
(f)
costs related to the Agency’s technical equipment;
(g)
experts’ fees;
(h)
transportation costs, including car rental costs and all related costs such as insurance, fuel and tolls;
(i)
telecommunication costs.
2. The Management Board shall establish detailed rules and update them as necessary as regards the payment of costs incurred by experts in accordance with paragraph 1.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
