report parliamentary committee draft, 11 September 2023
On the proposal for a regulation of the European Parliament and of the Council addressing situations of instrumentalisation in the field of migration and asylum
Document LIBE-PR-752890 · (COM2021/0890 – C90474/2021 – 2021/0427(COD))
Committee on Civil Liberties, Justice and Home Affairs · Rapporteur: Patryk Jaki
AI:In short
This is the rapporteur's draft report on the Commission proposal for a regulation addressing instrumentalisation in migration and asylum. It amends the proposal's recitals and articles to define instrumentalisation, set an emergency asylum procedure, and allow Member States to request derogations. The draft adds a definition covering third countries and non-state actors, and excludes organised crime and humanitarian aid from the definition where there is no aim to destabilise the Union or a Member State. It sets an emergency asylum procedure with a maximum duration of twenty weeks including appeal, and allows Member States to decide on applications at the border or in transit zones. A Member State facing instrumentalisation may request authorisation to apply derogations; the Commission proposes and the Council adopts an implementing decision setting the date, duration and personal scope. The draft provides for support and solidarity measures from other Member States on a voluntary basis, and requires cooperation with UNHCR and other partner organisations.
Position. The rapporteur proposes to amend the Commission proposal by adding a definition of instrumentalisation, excluding organised crime and humanitarian aid, setting a twenty-week emergency asylum procedure, and requiring a Council implementing decision to authorise derogations.
Key points
- Defines instrumentalisation as a third country or non-state actor encouraging or facilitating movement of third-country nationals or stateless persons to destabilise the Union or a Member State.
- States that organised crime, in particular migrant smuggling, and humanitarian aid operations are not instrumentalisation where there is no aim to destabilise the Union or a Member State.
- Allows a Member State facing instrumentalisation to register applications only at designated points near the border and to decide on admissibility and merits at the border or in transit zones.
- Sets the emergency asylum procedure duration at a maximum of twenty weeks including appeal, running from the date of registration of an application.
- Permits omitting the personal interview where the determining authority can take a positive decision on subsidiary protection based on available evidence.
- Requires prioritising registration and examination of applications from persons with special reception or procedural needs, unaccompanied minors, minors and their family members.
- Allows a Member State to decide not to apply the border procedure and instead apply national law while applying Article 4(4) of the Return Directive recast mutatis mutandis.
- Allows a Member State facing instrumentalisation to request support and solidarity measures from other Member States, which are voluntary.
- Requires a Member State to submit evidence of instrumentalisation to the Commission, which shall propose a Council implementing decision authorising derogations.
- Requires the Council implementing decision to state its grounds, set the date and duration of derogations, not exceeding an initial six months, and specify the persons subject to instrumentalisation.
- Allows extension or amendment of derogations for an additional period not exceeding six months, and requires the Commission and Council to monitor and review the situation.
- Requires the Member State to maintain close cooperation with UNHCR and other partner organisations entrusted with specific tasks.
Who is affected
- Member States facing instrumentalisation, which may apply derogations and request support.
- Third-country nationals and stateless persons subject to instrumentalisation, who face border procedures and possible return.
- Unaccompanied minors, minors and their family members, and persons with special reception or procedural needs, whose applications are prioritised.
- The Commission and the Council, which propose and adopt implementing decisions authorising derogations.
- UNHCR and other partner organisations, which are to have access and cooperate with the Member State.
Figures and deadlines
- Maximum duration of the emergency asylum procedure: twenty weeks including appeal.
- Initial period for application of derogations: six months.
- Additional period for extension of derogations: six months.
Legal basis. Article 294(2) and Article xx of the Treaty on the Functioning of the European Union.
Written by AI from the full text · every figure comes from the text · ¶ opens the paragraph · 25 Sept 2026 · Report a problem
Full text
Jump to an amendment (33)
- Amendment 1
- Amendment 2
- Amendment 3
- Amendment 4
- Amendment 5
- Amendment 6
- Amendment 7
- Amendment 8
- Amendment 9
- Amendment 10
- Amendment 11
- Amendment 12
- Amendment 13
- Amendment 14
- Amendment 15
- Amendment 16
- Amendment 17
- Amendment 18
- Amendment 19
- Amendment 20
- Amendment 21
- Amendment 22
- Amendment 23
- Amendment 24
- Amendment 25
- Amendment 26
- Amendment 27
- Amendment 28
- Amendment 29
- Amendment 30
- Amendment 31
- Amendment 32
- Amendment 33
Draft european parliament legislative resolution 175 paragraphs
on the proposal for a regulation of the European Parliament and of the Council addressing situations of instrumentalisation in the field of migration and asylum
(COM2021/0890 – C90474/2021 – 2021/0427(COD))
(Ordinary legislative procedure: first reading)
The European Parliament,
–having regard to the Commission proposal to Parliament and the Council (COM2021/0890),
–having regard to Article 294(2) and Article xx of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90474/2021),
–having regard to Article 294(3) of the Treaty on the Functioning of the European Union,
–having regard to Rule 59 of its Rules of Procedure,
–having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A90000/2023),
1.Adopts its position at first reading hereinafter set out;
Amendment 1
Proposal for a regulation
Read the rest (163 paragraphs)
Recital 1
| Text proposed by the Commission | Amendment |
|---|---|
| (1) A situation of instrumentalisation of migrants may arise where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders, onto or from within its territory and then onwards to those external borders, where such actions are indicative of an intention of a third country to destabilise the Union or a Member State, where the nature of such actions is liable to put at risk essential State functions, including its territorial integrity, the maintenance of law and order or the safeguard of its national security. | (1) A situation of instrumentalisation of migrants may arise where a third country or non-state actor instigates irregular migration into the Union by actively encouraging or facilitating, or even forcing the movement of third country nationals or stateless persons to the external borders, onto or from within the territory of a third country and then onwards to those external borders or to the territory of one or more Member States, where such actions are indicative of an intention of a third country or a non-state actor to destabilise the Union or a Member State, where the nature of such actions is liable to put at risk essential State functions, including its territorial integrity, the maintenance of law and order or the safeguard of its national security. It is appropriate to align the legal definition of instrumentalisation in this Regulation with the definition used in the Regulation (EU) 2016/399 of the European Parliament and of the Council1a. |
| 1a Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 77, 23.3.2016, p. 1). |
Or. en
Amendment 2
Proposal for a regulation
Recital 1 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (1 a) Situations in which non-state actors are involved in organised crime, in particular the smuggling of migrants, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State. Furthermore, humanitarian aid operations should not be considered as a situation of instrumentalisation of migrants where there is no aim to destabilise the Union or a Member State. |
Or. en
Amendment 3
Proposal for a regulation
Recital 2
| Text proposed by the Commission | Amendment |
|---|---|
| (2) This Regulation follows the invitation of the European Council to the Commission in its conclusions of 22 October 2021 to propose any necessary changes to the Union’s legal framework and concrete measures to ensure an immediate and appropriate response to the hybrid threat in line with Union law and international obligations. Furthermore, it contributes to establishing a comprehensive and permanent framework to equip the Member States concerned with the necessary tools to respond effectively and swiftly to an instrumentalisation situation in full respect of fundamental rights and international obligations. | (2) This Regulation follows the invitation of the European Council to the Commission in its conclusions of 22 October 2021 to propose any necessary changes to the Union’s legal framework and concrete measures to ensure an immediate and appropriate response to the hybrid threat in line with Union law and international obligations. Furthermore, it contributes to establishing a comprehensive and permanent framework to equip the Member States concerned with the necessary tools to respond effectively and swiftly in accordance with the procedure laid down in this Regulation to a situation of instrumentalisation in full respect of fundamental rights and international obligations. |
Or. en
Amendment 4
Proposal for a regulation
Recital 3
| Text proposed by the Commission | Amendment |
|---|---|
| (3) One of those tools in this Regulation is the introduction of an emergency migration and asylum management procedure providing the possibility for Member States to have recourse to legal tools to face future situations of instrumentalisation of migrants. | (3) One of those tools in this Regulation is the introduction of an emergency asylum and return procedure providing the possibility for Member States to have recourse to legal tools to face future situations of instrumentalisation of migrants. |
Or. en
Amendment 5
Proposal for a regulation
Recital 4
| Text proposed by the Commission | Amendment |
|---|---|
| (4) This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular Articles 1, 4, 7, 24, 18 and 19(2) and (2) thereof as well as the Geneva Convention of 28 July of 1951. In order to reflect, in particular, the primary consideration that must be given to the best interests of the child, the need to respect family life, and to ensure the protection of the health of the persons concerned, this Regulation provides for specific rules and safeguards applying in respect of unaccompanied minors and minors and their family members, and of applicants whose state of health requires a specific and adequate support. The rules and guarantees set out in Regulation (EU) XXX/XXX19 [Asylum Procedure Regulation] should continue to apply in respect of persons subject to the asylum emergency management procedure, except where this Regulation provides otherwise. The rules set out in Directive XXX/XXX [Reception Conditions Directive recast]20 , including those concerning the detention of applicants for international protection, should continue to apply, from the moment an application for international protection is made, except where this Regulation provides otherwise. | (4) This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular Articles 1, 4, 7, 24, 18 and 19(2) and (2) thereof as well as the Geneva Convention of 28 July of 1951. In order to reflect, in particular, the primary consideration that must be given to the best interests of the child, the need to respect family life, and to ensure the protection of the health of the persons concerned, this Regulation provides for specific rules and safeguards applying in respect of unaccompanied minors and minors and their family members, and of applicants whose state of health requires a specific and adequate support. The rules and guarantees set out in Regulation (EU) XXX/XXX19 [Asylum Procedure Regulation] should continue to apply in respect of persons subject to the emergency asylum procedure, except where this Regulation provides otherwise. The rules set out in Directive XXX/XXX [Reception Conditions Directive recast]20 , including those concerning the detention of applicants for international protection, should continue to apply, from the moment an application for international protection is made, except where this Regulation provides otherwise. |
| 19 OJ C , , p. . | 19 OJ C , , p. . |
| 20 OJ C , , p. . | 20 OJ C , , p. . |
Or. en
Amendment 6
Proposal for a regulation
Recital 5
| Text proposed by the Commission | Amendment |
|---|---|
| (5) To assist the Member State facing an instrumentalisation situation with the orderly management of the flows, under the emergency asylum management procedure, it should be possible for the Member State concerned to decide in relation to third-country nationals or stateless persons that have been apprehended or found in the proximity of the external border with the third country instrumentalising migrants after an unauthorised crossing or who have presented themselves at border crossing points, to register applications for international protection only at specific registration points designated for this purpose situated in the proximity of the border, and provide an effective possibility for lodging an application for international protection only at the specific points that have been designated for such purposes and which should be easily accessible. An effective and genuine access to the international protection procedure must be ensured in accordance with Article 18 of the Charter of Fundamental Rights of the European Union and the Geneva Convention of 28 July of 1951. To this end, the Member State concerned should ensure that sufficient registration points, which may include border crossing points, are designated and open for such purpose. Applicants should be duly informed about the locations where their application will be registered and can be lodged. | (5) In a situation of instrumentalisation, an increased caseload of asylum applications for international protection could be made at the external border or in a transit zone of a Member State, often by persons apprehended in connection with unauthorised crossings of the external border by land, sea or air or who are disembarked following search and rescue operations. To assist the Member State facing a situation of instrumentalisation with the orderly management of the flows, under the emergency asylum procedure, it should be possible for the Member State concerned to decide in relation to third-country nationals or stateless persons that have been apprehended or found in the proximity of the external border with the third country instrumentalising migrants after an unauthorised crossing by land, sea or air, or who are disembarked following search and rescue operations, or who have presented themselves at border crossing points, to register applications for international protection only at specific registration points designated for this purpose situated in the proximity of the border, and provide an effective possibility for lodging an application for international protection only at the specific points that have been designated for such purposes and which should be easily accessible. An effective and genuine access to the international protection procedure must be ensured in accordance with Article 18 of the Charter of Fundamental Rights of the European Union and the Geneva Convention of 28 July of 1951. To this end, the Member State concerned should ensure that sufficient registration points, which may include border crossing points, are designated and open for such purpose. Applicants should be duly informed about the locations where their application will be registered and can be lodged. |
Or. en
Amendment 7
Proposal for a regulation
Recital 6
| Text proposed by the Commission | Amendment |
|---|---|
| (6) In a situation of instrumentalisation of migrants, it is essential to prevent the entry of those who do not fulfil entry conditions, while ensuring the protection of fundamental rights. In order to ensure that the Member State facing such a situation has the necessary flexibility and avoid that a hostile third country targets specific nationalities or specific categories of third-country nationals or stateless persons, it should be possible under the emergency migration and asylum management procedure set out in this Regulation for the Member State concerned to take a decision in the framework of the border procedure, as set out in Article 41 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] on admissibility and the merits of all applications for international protection by third-country nationals or stateless persons apprehended or found in the proximity of the border with the third country after an unauthorised crossing or who presented themselves at border crossing points. The principles and guarantees set out in Regulation (EU) XXX/XXX [Asylum Procedure Regulation] have to be respected. | (6) In a situation of instrumentalisation of migrants, it is essential to prevent the entry of those who do not fulfil entry conditions, while ensuring the protection of fundamental rights. In order to ensure that the Member State facing such a situation has the necessary flexibility and avoid that a hostile third country targets specific nationalities or specific categories of third-country nationals or stateless persons, it should be possible under the emergency asylum procedure set out in this Regulation for the Member State concerned to take a decision in the framework of the border procedure, as set out in Article 41 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] on admissibility and the merits of all applications for international protection by third-country nationals or stateless persons apprehended or found in the proximity of the border with the third country after an unauthorised crossing or who presented themselves at border crossing points. The principles and guarantees set out in Regulation (EU) XXX/XXX [Asylum Procedure Regulation] have to be respected. |
Or. en
Amendment 8
Proposal for a regulation
Recital 9
| Text proposed by the Commission | Amendment |
|---|---|
| (9) In a situation of instrumentalisation of migrants, it should be possible for the Member State concerned to register applications for international protection within an extended period of four weeks. In addition, it should be possible to examine applications for international protection at the border for a maximum duration of sixteen weeks. If the decision on the application, including a decision on a possible appeal against a negative decision, which should not have automatic suspensive effect, is not taken within the sixteen weeks, entry to the territory should be granted, unless the person is subject to the return procedure. These procedural timelines are conceived to help the Member State concerned to deal with the situation of instrumentalisation of migrants. When confronted with such a situation, the Member State concerned need to divert resources to manage the third country nationals arriving at its borders or that are already present in its territory. As a result, in such situations, the Member State concerned may need time to reorganise their resources and increase their capacity, including with the support of the EU agencies. Furthermore, the number of applicants under the border procedure will be higher than under normal circumstances, and therefore the Member State facing a situation of instrumentalisation may need more time to be able to take decisions without allowing entry into the territory. However, the Member State concerned should prioritise the registration of applications of well-founded cases and unaccompanied minors and minors and their family members. | (9) Where the emergency asylum procedure is applied, the safeguards for applicants with special procedural or special reception needs, including medical conditions should be a primary consideration for the competent authorities. A Member State facing a situation of instrumentalisation should therefore not apply or should cease to apply the emergency asylum procedure where there are medical reasons for not applying the border procedure in line with Article 41(9), point (c), of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] or where the necessary support cannot be provided to applicants with special procedural needs in line with Article 41(9), point (b), of Regulation (EU) XXX/XXX [Asylum Procedure Regulation]]. The Member State concerned should prioritise the examination of applications from persons with special procedural needs in line with Regulation (EU) XXX/XXX [Asylum Procedure Regulation] and with special reception needs as defined in [Article 2, point (13), of Directive XXX/XXX [Reception Conditions Directive recast], especially unaccompanied minors, minors, and their family members. |
Or. en
Amendment 9
Proposal for a regulation
Recital 10
| Text proposed by the Commission | Amendment |
|---|---|
| (10) Any violent acts at the border must be avoided at all costs, not only to protect the territorial integrity and security of the Member State facing a situation of instrumentalisation but also to ensure the security and safety of the third-country nationals or stateless persons, including families and children that are awaiting their opportunity to apply for asylum in the Union peacefully. Where the Member State concerned is confronted at its external border with violent actions, including in the context of attempts by third country nationals to force entry en masse and using disproportionate violent means, the Member State concerned should be able to take the necessary measures in accordance with their national law to preserve security, law and order, and ensure the effective application of this Regulation. | (10) Any violent acts at the border must be avoided at all costs, not only to protect the territorial integrity and security of the Member State facing a situation of instrumentalisation but also to ensure the security and safety of the third-country nationals or stateless persons, including families and children that are awaiting their opportunity to apply for asylum in the Union peacefully. Where the Member State concerned is confronted at its external border with violent actions, including in the context of attempts by third country nationals to force entry en masse and using violent means, the Member State concerned should be able to take the necessary and proportionate measures in accordance with their national law to preserve security, law and order, and ensure the effective application of this Regulation. |
Or. en
Amendment 10
Proposal for a regulation
Recital 12
| Text proposed by the Commission | Amendment |
|---|---|
| (12) In order to complement and ensure full coherence with the emergency asylum management procedure at the external border, the competent authorities of the Member State facing a situation of instrumentalisation of migrants should be provided with the necessary flexibility to carry out return procedures, following the application of an emergency asylum management procedure. For this reason, in a situation of instrumentalisation, the Member State concerned should be allowed to derogate from the application of Directive XXX/XXX [Return Directive recast]22 in relation to third-country nationals and stateless persons whose application for international protection was rejected in the context of an emergency asylum management procedure as set out in this Regulation. Where a subsequent application is made merely to delay or frustrate the return, it is possible for Member States to apply the rules set out in Articles 42 and 43 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. The rules set out in this Regulation are without prejudice to the possibility for Member States to derogate from the application of Directive XXX/XXX [Return Directive recast] by virtue of Article 2(2)(a) of that Directive, in relation to illegally staying third-country nationals or stateless persons apprehended in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or right to stay in that Member State. | (12) In order to complement and ensure full coherence with the asylum procedure, the competent authorities of the Member State facing a situation of instrumentalisation of migrants should be provided with the necessary flexibility to carry out return procedures following the asylum procedure, where an application has been rejected with regard to a procedure that came to an end without international protection being granted. For this reason, in a situation of instrumentalisation and without prejudice to existing readmission arrangements between the Union and a third country, the Member State concerned should be allowed to derogate from the application of Article 41a of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], Directive XXX/XXX [the Return Directive recast], and apply national law instead, while applying mutatis mutandis Article 4(4) of Directive XXX/XXX [the Return Directive recast]. Article 4(4) of that Directive contains fundamental guarantees that shall be respected also in these cases. Where a subsequent application is made merely to delay or frustrate the return, it is possible for Member States to apply the rules set out in [Articles 42 and 43 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation]]. |
| 22 OJ C , , p. . | 22 OJ C , , p. . |
Or. en
Amendment 11
Proposal for a regulation
Recital 14 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (14 a) In a situation of instrumentalisation, it is of particular importance that all measures are taken to prevent irregular secondary migration while, at the same time, providing full support to one or more Member States faced with the arrival of third-country nationals or stateless persons as a consequence of such situation. Furthermore, this Regulation does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. |
Or. en
Amendment 12
Proposal for a regulation
Recital 18
| Text proposed by the Commission | Amendment |
|---|---|
| (18) If the application of the relevant derogations set out in this Regulation is requested by the Member State concerned, and taking into account whether the European Council has acknowledged that the Union or one or more of its Member States are facing a situation of instrumentalisation of migrants, the Commission should, where appropriate, bring forward a proposal authorising a Member State to apply the derogatory rules provided for in this Regulation. To ensure a high level of political scrutiny and support and to reinforce the expression of the Union’s solidarity towards the Member State facing an instrumentalisation of migrants, implementing powers should be conferred upon the Council. Therefore, the Implementing Decision authorising the Member States to apply derogatory rules should be adopted by the Council. | (18) If the application of the relevant derogations set out in this Regulation is requested by the Member State concerned on the basis of evidence demonstrating the existence of a situation of instrumentalisation, the Commission should bring forward a proposal authorising a Member State to apply the derogations provided for in this Regulation. The Commission should also be able to make such proposal where it considers it appropriate on the basis of information provided by the requesting Member State. Moreover, to ensure a high level of political scrutiny and support and as an expression of the Union’s solidarity, it is necessary to take into account whether the European Council has acknowledged that the Union or one or more of its Member States are facing a situation of instrumentalisation of migrants. The instrumentalisation of migrants is liable to put at risk the essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security. Therefore, implementing powers should be conferred upon the Council to adopt an implementing decision authorising a Member State to apply the derogations provided for in this Regulation. The Council should also be empowered to repeal, or extend by up to 6 months, the application of derogations provided for in this Regulation on the basis of the Commission proposal depending on whether the circumstances justifying the introduction of the derogations persist or have come to an end. It is possible that a decision to extend includes amendment of the derogations applied. In exercising their powers and carrying out their responsibilities, the Commission and the Council should ensure at all times that the principle of proportionality is respected. |
Or. en
Amendment 13
Proposal for a regulation
Recital 18 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (18 a) A Council implementing decision should be necessary only in specific cases, in particular where the instrumentalisation constitutes an emergency situation characterised by instigated irregular migration into the Union and the nature of it or in combination with other hybrid attacks could consitute a risk to the essential functions of the State, including its territorial integrity, the maintenance of law and order or the safeguard of its national security, or where the instrumentalisation constitutes an emergency situation characterised by an unexpected significantly increased caseload of asylum applications at the external border. |
Or. en
Amendment 14
Proposal for a regulation
Recital 19
| Text proposed by the Commission | Amendment |
|---|---|
| (19) The Council Implementing Decision should include an authorisation of the specific derogations that the Member State facing a situation of instrumentalisation of migrants could apply, and set the date from which they should apply, as well as their duration. | (19) The Council implementing decision should include an authorisation of the specific derogations that the Member State facing a situation of instrumentalisation of migrants could apply, and set the date from which they should apply, as well as their duration. Moreover, that decision should state the grounds on which it is based and the personal scope of the derogations. |
Or. en
Amendment 15
Proposal for a regulation
Recital 20
| Text proposed by the Commission | Amendment |
|---|---|
| (20) In order to support the Member State concerned in providing the necessary assistance to third country nationals falling under the scope of this Regulation, including by promoting voluntary return activities or by carrying out their humanitarian duties, UN agencies and other relevant partner organisations, in particular the International Organization for Migration and the International Federation of Red Cross and Red Crescent Societies, should have effective access to the border under the conditions set out in the Directive (EU) XXX/XXX [Reception Conditions Directive recast] and Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. In accordance with Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the United Nations High Commissioner for Refugees should be allowed access to applicants, including those at the border. To this end, the Member State concerned should work in close cooperation with UN agencies and relevant partner organisations. | (20) In order to support the Member State concerned in providing the necessary assistance to third country nationals or stateless persons falling under the scope of this Regulation, including by promoting voluntary return activities or by carrying out their humanitarian duties, UN agencies, in particular the Office of the United Nations High Commissioner for Refugees, and other relevant partner organisations entrusted with specific tasks by Member States, in particular the International Organization for Migration and the International Federation of Red Cross and Red Crescent Societies, should have effective access to the border under the conditions set out in the Directive (EU) XXX/XXX [Reception Conditions Directive recast] and Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. High Commissioner for Refugees should be allowed access to applicants, including those at the border. To this end, the Member State concerned should maintain cooperation with these organisations. |
Or. en
Amendment 16
Proposal for a regulation
Article 1 – paragraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| This Regulation provides for specific rules derogating from those set out in Regulation (EU) XXX/XXX [Asylum Procedure Regulation], Directive (EU) XXX/XXX [Reception Conditions Directive recast] and Directive (EU) XXX/XXX [Return Directive recast] that may be applied by a Member State in a situation of instrumentalisation of migrants as defined in [Article 2(27)] of the Schengen Borders Code where necessary for responding to such a situation. It also provides for specific rules on support and solidarity measures that may be taken in such situation. | 1. This Regulation provides for specific rules exceptionally derogating from those set out in Regulation (EU) XXX/XXX [Asylum Procedure Regulation], Directive (EU) XXX/XXX [Reception Conditions Directive recast] and Directive (EU) XXX/XXX [Return Directive recast] that may be applied by a Member State in a situation of instrumentalisation as defined in paragraph 1a where necessary and proportionate for responding to such a situation. It also provides for specific rules on support and solidarity measures that may be taken in such situation. |
Or. en
Amendment 17
Proposal for a regulation
Article 1 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 1a. A situation of instrumentalisation of migrants means a situation where a third country or non-state actor encourages or facilitates the movement of third-country nationals or stateless persons to the external borders, as defined in Article 2, point (2), of Regulation (EU) 2016/0399, or to a Member State, with the aim of destabilising the Union or a Member State and where such actions are liable to put at risk essential functions of a Member State including the maintenance of law and order or the safeguard of its national security. |
Or. en
Amendment 18
Proposal for a regulation
Article 2 – paragraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| 1. In a situation of instrumentalisation of migrants as referred to in Article 1, the Member State faced with the arrival of third-country nationals or stateless persons at its external border as a consequence of such situation may apply, in relation to third-country nationals or stateless persons who are apprehended or found in the proximity of the external border with the third country instrumentalising migrants in connection with an unauthorised crossing or who have presented themselves at border crossing points, one or more of the following derogations, in accordance with the procedure laid down in Article 6: | 1. In a situation of instrumentalisation, the Member State faced with the arrival of third-country nationals or stateless persons who are subject to instrumentalisation and who are either apprehended or found in the proximity of the external border, in connection with an unauthorised crossing by land, sea or air, who are disembarked following search and rescue operations or who have presented themselves at border crossing points, may apply one or more of the following derogations with regard those third-country nationals and stateless persons: |
Or. en
Amendment 19
Proposal for a regulation
Article 2 – paragraph 1 – point a – subparagraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| Where applying this derogation, the Member State concerned shall prioritise the registration of applications likely to be well-founded and those of unaccompanied minors and minors and their family members. | Where applying this derogation, the Member State concerned shall prioritise the registration of the applications of persons with special reception needs as defined in [Reception Conditions Directive recast] and those of unaccompanied minors, minors and their family members. The Member State concerned may also prioritise the registration of applications which are likely to be well founded. |
Or. en
Amendment 20
Proposal for a regulation
Article 2 – paragraph 1 – point b – subparagraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| (b) by way of derogation from Article 41(2)(a) and (b) and Article 41(5) of Regulation (EU) XXX/XXX [amended Asylum Procedure Regulation], decide at their borders or transit zones on the admissibility and on the merits of all applications registered within the period during which this point is applied. | (b) by way of derogation from [Article 41(2), points (a) and (b), Article 41(5) and Article 41(9) point (a), of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], and in accordance with Article 41(13) and (14) of that Regulation decide at the locations at the external border, in the proximity of the external border or transit zones or if the Member State concerned cannot accommodate them in those locations, in other designated locations within its territory, on the admissibility and on the merits of all applications made by a third country national or stateless person registered within the period during which this point is applied. |
Or. en
Amendment 21
Proposal for a regulation
Article 2 – paragraph 1 – point b – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| Where applying this derogation, the Member State concerned shall prioritise the examination of applications for international protection likely to be well-founded and those lodged by unaccompanied minors and minors and their family members. | Where applying this derogation, the Member State concerned shall prioritise the examination of the applications for international protection lodged by persons with special procedural or special reception needs as defined in [Reception Conditions Directive recast and in Asylum Procedure Regulation] and those of unaccompanied minors and minors and their family members. The Member State concerned may also prioritise the examination of applications for international protection which are likely to be well founded. |
Or. en
Amendment 22
Proposal for a regulation
Article 2 – paragraph 1 – point c
| Text proposed by the Commission | Amendment |
|---|---|
| (c) by way of derogation from Article 41(11) of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the maximum duration of the emergency asylum management procedure for the examination of applications registered within the period during which this point is applied shall be sixteen weeks. Following that period, provided that the applicant is not subject to the return procedure in accordance with Article 4, the applicant shall be authorised to enter the Member State’s territory for the completion of the procedure for international protection. | (c) by way of derogation from [Article 41(11) of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the duration of the emergency asylum procedure for the examination of applications registered within the period during which the derogation provided for in this point is applied shall be as short as possible and shall not exceed twenty weeks including appeal and shall run from the date of the registration of an application. |
Or. en
Amendment 23
Proposal for a regulation
Article 2 – paragraph 1 – point c a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (c a) by way of derogation from [Article 12(5) of Regulation (EU) XXX/XXX [Asylum Procedure Regulation]] the personal interview may be omitted where the determining authority is able to take a positive decision on the subsidiary protection status on the basis of the evidence available. |
Or. en
Amendment 24
Proposal for a regulation
Article 4 – paragraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| In a situation of instrumentalisation of migrants, and in accordance with the procedure laid down in Article 6, the Member State faced with the arrival of third-country nationals or stateless persons at its external border as a consequence of a situation of instrumentalisation of migrants may, in respect of third-country nationals or stateless persons who do not fulfil the conditions of entry and whose applications were rejected in the context of the emergency asylum management procedure at the border in accordance with Article 2(1) points (b) and (c), and who have no right to remain and are not allowed to remain, decide not to apply 41a of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] and Directive XXX/XXX [Return Directive recast]. Where resorting to this derogation, the Member State concerned shall: | The Member State facing a situation of instrumentalisation with the arrival of third-country nationals or stateless persons at its external border may decide not to apply Article 41a of Regulation (EU) XXX/XXX [Asylum Procedure Regulation, or [the Return Directive recast], and apply national law instead, while applying mutatis mutandis Article 4(4) of Directive XXX/XXX [the Return Directive recast], in relation to those third-country nationals or stateless persons who are subject to instrumentalisation and who are either apprehended or found in the proximity of external border or have presented themselves at border crossing points and who applied for international protection and whose applications were subsequently rejected and who have no right to remain and are not allowed to remain. |
Or. en
Amendment 25
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Where a Member State is facing a situation of instrumentalisation of migrants, it may request support and solidarity measures from other Member States in order to manage that situation. Support and solidarity contributions for the benefit of a Member State facing a situation of instrumentalisation of migrants may include the following types of contributions: | 1. Where a Member State is facing a situation of instrumentalisation, it may request support and solidarity measures from other Member States in order to manage that situation and indicate the nature of the support and solidarity measures needed. Support from the other Member States and solidarity contributions for the benefit of a Member State facing a situation of instrumentalisation is voluntary and may include the following types of contributions: |
Or. en
Amendment 26
Proposal for a regulation
Article 7 – paragraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| 1. A Member State faced with the arrival of third-country nationals or stateless persons at its external border as a consequence of a situation of instrumentalisation of migrants, may request the authorisation to apply the derogations provided for in Articles 2, 3 and 4. | 1. A Member State facing a situation of instrumentalisation, may, given that situation, request the authorisation to apply the derogations provided for in Articles 2, 3 or 4. |
Or. en
Amendment 27
Proposal for a regulation
Article 7 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. Where the Commission considers it appropriate, on the basis of the information provided by the requesting Member State facing a situation of instrumentalisation of migrants, the Commission shall, without delay, make a proposal for a Council Implementing Decision referred to in paragraph 3. | 2. Where the requesting Member State submits to the Commission evidence demonstrating the existence of a situation of instrumentalisation, the Commission shall, on the basis of that evidence and without delay, make a proposal for a Council implementing decision referred to in paragraph 3. The Commission may also make such a proposal where it considers it appropriate on the basis of information provided by the requesting Member State and any other information available to it |
Or. en
Amendment 28
Proposal for a regulation
Article 7 – paragraph 3
| Text proposed by the Commission | Amendment |
|---|---|
| 3. The Council shall assess this proposal as a matter of urgency and adopt an Implementing Decision authorising the Member State concerned to apply the specific derogations provided for in Articles 2, 3 and 4. | 3. As a matter of urgency, the Council shall assess the proposal and depending on the outcome of such assessment adopt an implementing decision authorising the Member State concerned to apply the specific derogations provided for in Articles 2, 3 or 4. |
Or. en
Amendment 29
Proposal for a regulation
Article 7 – paragraph 4
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The Council Implementing Decision referred to in paragraph 3 shall set the date from which the rules laid down in Articles 2, 3 and 4 may be applied, as well as the time period for their application, which shall not exceed an initial period of six months. | 4. The Council implementing decision referred to in paragraph 3 shall state the grounds on which it is based, and shall set the date from which the rules laid down in Articles 2, 3 or 4 may be applied, as well as the time period for their application, which shall not exceed an initial period of six months and shall specify the third-country nationals or stateless persons subject to instrumentalisation. |
Or. en
Amendment 30
Proposal for a regulation
Article 7 – paragraph 5
| Text proposed by the Commission | Amendment |
|---|---|
| 5. The Commission shall keep the situation of instrumentalisation of migrants under constant monitoring and review. Where the Commission considers it appropriate, it may propose the repeal of the Council Implementing Decision referred to in paragraph 3 or the adoption of a new Council Implementing Decision authorising the prolongation of the application of the specific derogations referred to in Articles 2, 3 and 4 for a period, which shall not exceed six months. The Member State concerned shall provide the Commission specific information needed for it to carry out this review and to make the proposal for repeal or prolongation as well as any other information the Commission may request. | 5. The Commission and the Council shall keep the situation of instrumentalisation under constant monitoring and review. Where the Commission considers it appropriate on the basis of relevant information, it may propose the repeal of the Council implementing decision referred to in paragraph 3 or the adoption of a new Council implementing decision authorising the amendment of the specific derogations referred to in Articles 2, 3 or 4, or their extension for a period, which shall not exceed an additional period of six months. Where the requesting Member State submits evidence to the Commission demonstrating the continued existence of instrumentalisation, the Commission shall, on the basis of such evidence, submit a proposal for a new Council implementing decision to amend or extend the specific derogations referred to in Articles 2, 3 or 4 for a period, which shall not exceed an additional period of six months. The Member State concerned shall provide the Commission specific information needed for it to carry out this review and to make the proposal for repeal or extension as well as any other information the Commission may request. |
Or. en
Amendment 31
Proposal for a regulation
Article 7 – paragraph 5 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 5 a. Member States shall continue for the maximum period of time as referred to in Article 2 to apply the procedural derogations set out in the Council implementing decision referred to in paragraph 3 in respect of those applicants whose applications for international protection have been registered within the period during which those derogations may be applied until a final decision is taken on their application or until the third-country nationals or stateless persons concerned are returned in accordance with Article 4. |
Or. en
Amendment 32
Proposal for a regulation
Article 7 – paragraph 5 b (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 5 b. In exercising their powers and carrying out their responsibilities pursuant to this Article, the Commission and the Council shall ensure at all times that the principle of proportionality is respected. |
Or. en
Amendment 33
Proposal for a regulation
Article 8 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. The Member State facing a situation of instrumentalisation of migrants shall ensure close cooperation with the United Nations High Commissioner for Refugees and relevant partner organisations to determine the modalities for support to applicants in the instrumentalisation situation in line with the rules set out in this Chapter and in Regulation (EU) XXX/XXX [Asylum Procedure Regulation] and Directive XXX/XXX [Reception Conditions Directive recast]. | 2. The Member State facing a situation of instrumentalisation shall maintain close cooperation with the United Nations High Commissioner for Refugees and other relevant partner organisations entrusted by the Member State with specific tasks in accordance with this Chapter and Regulation (EU) XXX/XXX [Asylum Procedure Regulation] and Directive XXX/XXX [Reception Conditions Directive recast]. |
Or. en