Reasoned request by a Member State
1. Where a Member State considers itself to be in a situation of crisis or force majeure , it may, given those exceptional circumstances, submit a reasoned request to the Commission, in order to benefit from solidarity measures allowing for the proper management of that situation and to allow for possible derogations from the relevant rules on the asylum procedure, while ensuring that the applicants’ fundamental rights are respected.
2. A reasoned request as referred to in paragraph 1 shall include:
(a)
a description of:
(i)
how, as a result of a situation of crisis as referred to in Article 1(4), point (a), the Member State’s asylum and reception system, including child-protection services, has become non-functional, as well as the measures taken so far to address the situation and a justification proving that that system, although well-prepared and notwithstanding the measures already taken, is unable to address the situation; or
(ii)
how the Member State is faced with a situation of instrumentalisation as referred to in Article 1(4), point (b), that is putting its essential functions at risk, including the maintenance of law and order or the safeguard of its national security; or
(iii)
how the Member State is faced with abnormal and unforeseeable circumstances outside its control, the consequences of which could not be avoided notwithstanding the exercise of all due care, and how that situation of force majeure prevents it from fulfilling its obligations laid down in Article 27, Article 45(1) and Article 51(2) of Regulation (EU) 2024/1348 and in Articles 39, 40, 41 and 46 of the Regulation (EU) 2024/1351;
(b)
where relevant, the type and level of solidarity measures provided for in Article 8(1) that it considers necessary;
(c)
where relevant, the derogations provided for in Articles 10 to 13 that it considers necessary; and
(d)
if the Member State requests to apply the derogation provided for in Article 11(6), whether it intends to provide for the exclusion of specific categories of applicants as referred to in paragraph 7, point (a), or paragraph 7, point (b) of that Article or the cessation of the border procedure for specific categories of applicants following an individual assessment as provided for in paragraph 9 of that Article.
Commission implementing decision establishing a situation of crisis or force majeure
1. Following the submission of a reasoned request as referred to in Article 2, the Commission, in close cooperation with the requesting Member State and in consultation with relevant Union agencies and international organisations, in particular UNHCR and IOM, shall expeditiously assess the situation and, where the conditions set out in Article 1 are met, adopt an implementing decision as referred to in paragraph 8 of this Article.
2. The Commission may also adopt a recommendation on the application of an expedited procedure for granting international protection to certain categories of applicants as referred to in Article 14.
3. The Commission shall immediately notify the European Parliament, the Council and the Member States that it is undertaking an assessment as referred to in paragraph 1.
4. When assessing whether the Member State is facing a situation of instrumentalisation as referred to in Article 1(4), point (b), of this Regulation, the Commission shall assess inter alia the following:
(a)
whether a third country or a hostile non-state actor is facilitating the movement of third-country nationals or stateless persons into the Union;
(b)
whether the information provided by the Member State adequately demonstrates that any actions falling under point (a) have the aim of destabilising the Union or the Member State concerned;
(c)
whether there is an unexpected significant increase in the caseload of applications for international protection at the external borders or in the Member State concerned compared to the average number of applications;
(d)
whether the response to the implications of the situation of instrumentalisation on the migration and asylum system of the Member State concerned cannot be sufficiently addressed by means of the measures contained in the Toolbox in accordance with Article 6(3) of Regulation (EU)2024/1351.
5. The Commission shall determine whether the conditions with regard to the situation faced by the Member State as set out in Article 1 are met, taking into account the reasoned request as referred to in Article 2, and in the light of the information provided and the indicators relating to the Member State concerned referred to in Article 9 of Regulation (EU) 2024/1351. The Commission shall assess the information provided in the reasoned request against the situation in the Member State concerned during the preceding two months and as compared to the overall situation in the Union.
6. The Commission shall determine in particular:
(a)
whether the requesting Member State’s asylum, reception, including child-protection services, or migration system, although well-prepared, and notwithstanding the measures already taken, has become non-functional as a result of a situation of mass arrivals of third-country nationals or stateless persons rendering that Member State unable to address the situation and whether there might be serious consequences for the functioning of the Common European Asylum System;
(b)
whether the Member State is faced with a situation of instrumentalisation as referred to in Article 1(4), point (b), to be addressed with the necessary and proportionate use of the measures set out in this Regulation;
(c)
whether the Member State is faced with abnormal and unforeseeable circumstances outside its control, the consequences of which could not be avoided notwithstanding of the exercise of all due care, and how such situation of force majeure prevents it from fulfilling its obligations set out in Article 27, Article 51(2) and Article 60(1) of Regulation (EU) 2024/1348 and in Articles 39, 40, 41 and 46 of the Regulation (EU) 2024/1351.
7. When adopting an implementing decision as referred to in paragraph 8 of this Article, the Commission shall indicate why the response to the situation of instrumentalisation cannot be sufficiently addressed by means of the measures set out in the Toolbox in accordance with Article 6(3) of Regulation (EU) 2024/1351.
8. Where the Commission determines pursuant to paragraph 5 of this Article that the assessment referred to in paragraph 1 demonstrates the existence of the conditions set out in Article 1, taking into account the reasoned request as referred to in Article 2, and in the light of the information provided and the indicators relating to the Member State concerned referred to in Article 9 of Regulation (EU) 2024/1351, the Commission shall adopt, without delay and in any case no later than two weeks from the submission of the reasoned request referred to in Article 2 of this Regulation, an implementing decision determining whether the requesting Member State is in a situation of crisis referred to in Article 1(4), point (a) or (b), of this Regulation, or force majeure . The Commission shall transmit the implementing decision to the European Parliament and the Council.
Commission proposal and Council implementing decision authorising derogations and establishing solidarity measures
1. Simultaneously with the adoption of the Commission implementing decision referred to in Article 3, the Commission shall, where appropriate, make a proposal for a Council implementing decision. The Commission shall immediately inform the European Parliament of that proposal.
2. The Commission’s proposal for a Council implementing decision referred to in paragraph 1 shall ensure that the principles of necessity and proportionality are respected and shall include:
(a)
where appropriate, the specific derogations as referred to in Articles 10 to 13 that the Member State should be authorised to apply;
(b)
where appropriate, where the Member State is facing a situation of crisis, a draft Solidarity Response Plan, after consultation with the Member State, that ensures the full discretion of contributing Member States in choosing between the types of solidarity measures, and that includes:
(i)
where appropriate, the total amount of relocation contributions needed to address the situation of crisis;
(ii)
where appropriate, the other relevant solidarity measures referred to in Article 8(1), points (b) and (c), and the level of such measures needed to address the specific situation of crisis;
(iii)
where applicable, the total amount of solidarity measures to be taken from the available pledges in the Annual Solidarity Pool;
(iv)
where the available pledges in the Annual Solidarity Pool do not cover the needs identified in subpoints (i) and (ii) of this point, the Solidarity Response Plan shall also establish the additional pledges needed to cover such needs; and
(v)
the indicative contributions of each Member State to contribute their fair share, calculated in accordance with the reference key set out in Article 66 of Regulation (EU) 2024/1351; and
(c)
where the Member State is facing a situation of crisis as referred to in Article 1(4), point (b), the identification of the third-country nationals or stateless persons subject to that situation.
When setting up the solidarity needs of the Member State, the Commission shall take into account whether the Member State is already a benefitting Member State pursuant to Articles 58 and 59 of Regulation (EU) 2024/1351.
Where, in the reasoned request as referred to in Article 2, the Member State considers that relocation is the primary or only solidarity measure to address the situation, the Commission shall take that into account in its proposal for a Council implementing decision, without prejudice to the discretion of the contributing Member States to choose between the types of solidarity measures.
3. The Council shall assess the Commission’s proposal for a Council implementing decision as referred to in paragraph 1 and adopt an implementing decision within two weeks of receipt of that proposal, authorising the Member State to apply the derogations provided for in Articles 10 to 13 and establishing a Solidarity Response Plan as referred to in paragraph 2, point (b), of this Article, including the solidarity measures that the Member State can benefit from in order to address the situation.
4. Where appropriate, when adopting the proposal for a Council implementing decision as referred to in paragraph 1, the Commission may adopt a recommendation on the application of an expedited procedure for granting international protection to certain categories of applicants as referred to in Article 14.
5. The Council implementing decision shall ensure that the principles of necessity and proportionality are respected, shall state the grounds on which it is based and set the date from which the derogations laid down in Articles 10 to 13 may be applied, as well as the time period for their application, in accordance with Article 5. The Council implementing decision shall:
(a)
where appropriate, identify the specific derogations referred to in Articles 10 to 13 that the Member State concerned is authorised to apply;
(b)
where appropriate, establish a Solidarity Response Plan that includes:
(i)
the total amount of relocation contributions needed to address the situation of crisis giving full consideration to the assessment of the Commission;
(ii)
the other relevant solidarity measures referred to in Articles 8(1), points (b) and (c), and the level of such measures needed to address the situation of crisis;
(iii)
the total amount of solidarity measures to be taken from the Annual Solidarity Pool;
(iv)
the additional pledges needed to cover the needs to address the situation of crisis, if the existing pledges in the annual Solidarity Pool are not sufficient;
(v)
the specific contribution by each Member State pledged under the mandatory fair share calculated in accordance with the reference key set out in Article 66 of Regulation (EU) 2024/1351;
(c)
where the Member State concerned is facing a situation of crisis as referred to in Article 1(4), point (b), identify the third-country nationals or stateless persons subject to that situation.
The Council shall transmit the implementing decision immediately to the European Parliament and the Commission.
Duration
1. Without prejudice to paragraph 3 of this Article, the period for the application of the derogations and solidarity measures set out in the Council implementing decision as referred to in Article 4(3) shall be three months. Unless that decision is repealed pursuant to Article 6 (3), that period may be extended once by three months upon confirmation by the Commission that the situation of crisis or force majeure persists.
2. At the end of the period referred to in paragraph 1 and upon request of the Member State concerned, the Commission may submit a proposal for a new Council implementing decision to amend or extend the specific derogations or the Solidarity Response Plan referred to in Article 4(5) for a period not exceeding three months. Unless that decision is repealed pursuant to Article 6(3), that period may be extended once by three months upon confirmation by the Commission of the persistence of the situation of crisis or force majeure . Article 4(3) and (5) shall apply.
3. The Member State facing a situation of crisis or force majeure , shall apply Articles 10 to 13 no longer than what is strictly necessary to address the situation, and, in any case, no longer than the period set out in the Council implementing decision referred to in Article 4(3). The total duration of the application of the measures shall not exceed the duration of the situation of crisis or force majeure and shall be a maximum of 12 months.
Monitoring
1. The Commission and Council shall constantly monitor whether a situation of crisis or force majeure , identified in a Commission implementing decision as referred to in Article 3(8) persists.
2. The Commission shall pay particular attention to the compliance with fundamental rights and humanitarian standards and may request the Asylum Agency to initiate a specific monitoring exercise pursuant to Article 15(2) of Regulation (EU) 2021/2303.
3. Where the Commission considers that the circumstances that led to the establishment of the situation of crisis or force majeure have ceased to exist, it shall propose to repeal the Council implementing decision referred to in Article 4(3). Where the Commission considers it appropriate on the basis of relevant information, it shall propose the adoption of a new Council implementing decision authorising the amendment or extension of the measures as established in accordance with Article 5(2).
4. The Commission shall report to the European Parliament and the Council, every three months after the entry into force of the Council implementing decision as referred to in Article 4(3), on the application of that decision, in particular on the effectiveness of the measures undertaken in resolving the situation of crisis or force majeure and shall determine whether the situation persists and whether the measures continue to be necessary and proportionate.
EU Solidarity coordinator
The EU Solidarity Coordinator, as established by Articles 15 and 60 of Regulation (EU) 2024/1351 shall, in addition to the tasks listed under those Articles:
(a)
support the relocation activities from the Member State concerned to the contributing Member State under this Regulation;
(b)
promote a culture of preparedness, cooperation and resilience among Member States in the field of asylum and migration, including through the sharing of best practices.
For that purpose, the EU Solidarity Coordinator shall be updated by the EU Migration Preparedness and Crisis Management Network in the framework of the relevant stages of the Migration Preparedness and Crisis Blueprint pursuant to Recommendation (EU) 2020/1366 in its original version.
The EU Solidarity Coordinator shall, every two weeks, provide a bulletin on the state of the implementation and functioning of the relocation mechanism. That bulletin shall be transmitted to the European Parliament and to the Council.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
