Explanatory Memorandum to COM(2001)55 - Conclusion of an agreement with Iceland and Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or Iceland or Norway - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2001)55 - Conclusion of an agreement with Iceland and Norway concerning the criteria and mechanisms for establishing the State ... |
|---|---|
| source | COM(2001)55  |
| date | 29-01-2001 |
After a recommendation the Commission made to the Council in September 1999, the Council authorised the Commission in May 2000 to negotiate an Agreement with Norway and Iceland which basically reproduces the obligations and rights contained in the Dublin Convention and the EURODAC regulation which facilitates the application of the Dublin Convention.
Formal and informal negotiations started on 4 July 2000 and ended on 28 November. Member States have regularly been informed and consulted while negotiations were ongoing.
The legal basis for the Agreement is Article 63, paragraph 1, in conjunction with Article 300 TEC.
The scope of the Agreement are rights and obligations under
a) the Dublin Convention of 15 June 1990, determining the State responsible for examining applications for asylum lodged in one of the Member States, with the exception of Articles 16 to 22
b) the decisions of the Committee established under Art. 18 of the Dublin Convention
c) Council Regulation (EC) No 2725/2000 of 11 December concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention
Given that the Agreement is not based on the Protocol (No.
2) integrating the Schengen acquis into the framework of the European Union, the ' Mixed Committee ' model provided for in the Schengen framework Agreement could not be copied and was replaced by a classical bilateral (or in this case ' tripartite ') Committee to be found in all Community Agreements (in this Agreement, called ' Joint Committee '). The Joint Committee will be chaired, alternately for a period of six months, by the Commission and either Iceland or Norway.
The Committee's structure is based on the approach that whereas Norway and Iceland shall be given the right to be involved in ' decision shaping ', they will not be involved in ' decision making '.
As far as the Dublin Convention is concerned (a Public International Law Agreement concluded by the Member States), the Community cannot, in an Agreement with Third Parties, formally amend procedures and obligations for the parties under the Dublin Convention. It was therefore also not possible to ' link ' Norway and Iceland to the Committee established under Art. 18 of the Dublin Convention. A solution could only be found by agreeing on a number of declarations that purport the general idea that although this is a classical Community Agreement committee structure, Member States are involved to a certain extent.
Any future decisions by the Committee established under Art. 18 of the Dublin Convention can be discussed in the Joint Committee before being taken in the Art. 18 Committee but once decisions have been taken, they have to be implemented by Norway and Iceland. Non-acceptance triggers the same procedure as provided for under the Schengen framework agreement (suspension and eventual termination). A coherent application of all decisions related to the Dublin Convention is thus assured.
As for the future ' communitarization ' of the Dublin Convention, a similar mechanism exists. Norway and Iceland may contribute to the decision-shaping phase but will have to accept the final decision as adopted by the Council (otherwise, the Agreement will be suspended and later terminated). Similarly, new provisions related to EURODAC will also have to be accepted in the same fashion.
The objective of a coherent jurisprudence could be reached by ' copying ' the respective provisions in the Schengen acquis Agreement (Art.
6).
The Data Protection Directive will be applied by Iceland and Norway in the same way as it is applied by the Member States (Art. 1, para.
3)
The clause on the territorial application will, on the EU side, ensure parallelism with the Dublin Convention and in particular takes into account the issue of Gibraltar (Art. 13).
The specific situation of Denmark is considered in Article 12.
The budgetary clause (Article 9) is mostly based on a similar provision in the Schengen framework Agreement.
The Commission considers negotiations have been successful and that the draft Agreement is acceptable to the Community.
For internal legal reasons, Iceland insisted on a formal signature of the Agreement. Thus, this Decision has been preceded by a Council Decision on the signing of the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or Iceland or Norway, which decision was adopted on January 19th.
Apart from authorising the conclusion of the Agreement, the present decision sets out a number of arrangements for the practical application of the Agreement. In particular, it specifies that the Commission represents the Community within the Joint Committee set up by Article 3 of the Agreement. Further, given that the Joint Committee has certain decision-making powers, it was necessary to provide for a derived legal base laying down a procedure for the adoption of Community positions within the Joint Committee.
In this respect, the decision provides that as regards the adoption of the rules of procedure of the Joint Committee, this will be done by the Commission in consultation with a special committee designated by the Council. As regards other decisions to be taken by the Joint Committee, the decision proposes that the Community position will be adopted by the Council, acting by qualified majority, on a proposal by the Commission.
According to Art. 300, paragraph 3 TEC, the European Parliament will have to be consulted on the decision about the conclusion of the Agreement.