The Bundesrat

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU

Scrutiny details

Subsidiarity deadline: 20/01/2021
Scrutiny Information

Scrutiny date: 12/02/2021

Subsidiarity Concern:

No Important information to exchange

No Veto

Information on parliamentary scrutiny

Referred to Committees on:

European Union Questions
Family and Senior Citizen Affairs
Internal Affairs

Legal Affairs

Lisbon Treaty procedures
  Political Dialogue

12/02/2021 | Scrutiny results - COM20200611

The Bundesrat welcomes the Commission's intention to make a new start in the area of migration based on a comprehensive approach to migration management. The objective must be to create a fair, functioning and comprehensive system that solves practical challenges, ensures more effective, faster, efficient and crisis-proof asylum procedures, and at the same time both respects the fundamental rights of migrants and takes into account the special need for protection of vulnerable persons, such as unaccompanied minors. In order for the asylum procedure at the border to function, its practicability, tailored and reliable support by EU agencies, sufficient funding, the interests of vulnerable persons worthy of protection, adequate accommodation and care as well as the protection of elementary rights of the persons concerned must be ensured.

The Bundesrat welcomes the fact that Articles 53(7) and 54(5) of the amended proposed Regulation only set minimum deadlines for filing appeals. However, it appears problematic that the minimum time limit for filing the appeal in urgent appeal proceedings has been determined to be five days, whereas that for the parallel main appeal has been determined to be at least one week. The Bundesrat regrets that the previous request to refrain from formulating detailed decision deadlines in Article 55 of the proposed Regulation was not taken up. It reiterates its concern that the unchanged transitional period of six months after the entry into force of the Regulation (Article 62(2) of the proposed Regulation) will lead to considerable difficulties in judicial practice. The transition period is too short.

The Bundesrat takes the view that the concerns of minors and women must be taken into account. It recalls that both the Federal Republic of Germany and the EU itself have signed the Istanbul Convention and have thus made a binding commitment to comply with the goals stated therein.

09/03/2017 | Reply to Bundesrat - COM20160467

04/11/2016 | Scrutiny results - COM20160467

As to the so-called procedure-regulation, the Bundesrat welcomes the aim of treating equally asylum seekers in all member states and therefore setting out a proper common European Asylum system and replacing the current Directive 2013/32/EU on common procedures for granting and withdrawing international protection by the draft Regulation.

Whilst the house welcomes the aim of increasing the effectiveness of procedures for granting and withdrawing international protection by harmonizing them amongst the member states, it expresses its objection against the introduction of area specific law for the judicial procedures of international protection, though. This would interfere into the competences of member states.

In the following, the Bundesrat is expressing its concerns against specific provisions of the draft regulation, namely towards Article 7 para. 4, Article 8 para. 3, Article 13 para. 2, Article 15 para. 1 and Article 16 para. 2 subpara. 2, Article 53 para. 6 subpara. 3, Article 54 and Article 55 para. 1.

Moreover, it expresses its objection against any fixed delay, as set out in article 22 para. 1 of the proposal, which it considers being too short to find all necessary elements on which a judicial decision must be based and which it sees in possible contradiction to the independence and impartiality of the tribunals, protected by article 47 para. 2 of the Charter of Fundamental Rights of the European Union, and the parental rights, protected by constitutional law. Moreover, as the deadline shall start - accordingly to Article 25 para. 1 - in the moment of application for international protection, in most cases the possible non-age of the applicant is not obvious, nor can the competent youth welfare service be contacted. As long as it is not clear, whether a minor can be reunited with members of its family, the choice of a local advisor is impossible. The Bundesrat welcomes in this context that the proposal aims to take into account the interest and the welfare of minors - but points out that this principle also applies for procedures of seeking asylum and on provisions governing the medical determination of age. Furthermore, the Bundesrat considers a legal representation of unaccompanied minors in every moment of the procedures as necessary. Provisions of the proposal entitling the asylum authorities to apply on behalf of the minor without or disregarding the position of the legal representative of the minor are clearly rejected, as well as the possibility to apply accelerated procedures. This would be incompatible with the aim to protect interest and welfare of minors.

Finally, the Bundesrat is against the empowerment to enact implementing acts. It calls for the possibility to scrutinize provisions foreseen in implementing acts in order to make sure that the provisions are not in conflict provisions governing the execution of legal provisions by the Länder. Moreover, the Bundesrat is of the view that the transitional period of six month after entry into force, foreseen by Article 62 para. 2 of the draft regulation, will lead to considerable practical problems in in courts. The implementation of the provisions of the draft will require far-reaching adjustments of national asylum law and asylum procedural law, which are not feasible within six month. Until the national asylum system will have been adjusted accordingly, courts would have to deal with complex and unclear legal situation, requiring a constant comparing of national provisions and directly applicable European law. The consequence would be an increasing complexity of procedures and their extension in time, as well as temporary legal uncertainty. Therefore, the Bundesrat calls for a transitional period of at least one year.

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