Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

For the purposes of this Regulation, a situation of crisis means:

(a) an exceptional situation of mass arrivals of third-country nationals or stateless persons in a Member State by land, air or sea, including of persons that have been disembarked following search and rescue operations, of such a scale and nature, taking into account, inter alia, the population, GDP and geographical specificities of the Member State, including the size of the territory, that it renders the Member State’s well-prepared asylum, reception, including child protection services, or return system non-functional, including as a result of a situation at local or regional level, such that there could be serious consequences for the functioning of the Common European Asylum System; or

(b) a situation of instrumentalisation where a third country or a hostile non-state actor encourages or facilitates the movement of third-country nationals or stateless persons to the external borders 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.

Member States may request the authorisation to apply measures listed in Chapter III and IV in particular where there is an unexpected significant increase in the caseload of applications for international protection at the external borders. Member States may apply the derogations provided for in the Council implementing decision referred to in Article 4(3) in the situation of instrumentalisation only in respect 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, meaning the Member State’s land borders, including river and lake borders, sea borders and its airports, river ports, sea ports and lake ports, provided that they are not internal borders, in connection with 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.

CHAPTER II

GOVERNANCE

Article 2

Reasoned request by a Member State

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.

Article 3

Commission implementing decision establishing a situation of crisis or force majeure

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.

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 45(1) and Article 51(2) of Regulation (EU) 2024/1348 and in Articles 39, 40, 41 and 46 of Regulation (EU) 2024/1351.

Article 4

Commission proposal and Council implementing decision authorising derogations and establishing solidarity measures

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.

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.

Article 5

Duration

Article 6

Monitoring

Article 7

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.

CHAPTER III

SOLIDARITY MEASURES APPLICABLE IN A SITUATION OF CRISIS

Article 8

Solidarity and support measures in a situation of crisis

A Member State facing a situation of crisis may request the following types of contributions in the reasoned request referred to in Article 2:

(a) relocations, to be conducted following the procedures set out in Articles 67 and 68 of Regulation (EU) 2024/1351: (i) of applicants for international protection; (ii) where bilaterally agreed by the contributing and benefitting Member State concerned, of beneficiaries of international protection who have been granted international protection less than three years prior to the adoption of the Council implementing act establishing the Annual Solidarity Pool;

(b) financial contributions aiming at actions that are relevant to address the situation of crisis in the Member State concerned or in relevant third countries, in full respect of human rights, to be provided by other Member States pursuant to Article 64 of Regulation (EU) 2024/1351;

(c) alternative solidarity measures as referred to in Article 56(2), point (c), of Regulation (EU) 2024/1351, specifically needed to address the situation of crisis and in accordance with Article 65(2) and (3) of that Regulation; such measures shall be counted as financial solidarity and their actual value shall be established based on objective criteria.

Article 9

Responsibility offsets

Where the additional relocation pledges set out in the Council implementing decision referred to in Article 4(3) and the pledges available in the Annual Solidarity Pool are below the relocation needs identified in that Council implementing decision:

(a) the contributing Member States shall take responsibility, up to 100 % of the relocation needs identified in the Solidarity Response Plan established in the Council implementing decision, for applications for international protection for which the Member State facing a situation of crisis has been determined as responsible;

(b) when applying point (a) of this subparagraph and where necessary, the contributing Member States shall take responsibility above their fair share by way of derogation from Article 63(7) of Regulation (EU) 2024/1351;

(c) when applying points (a) and (b) of this subparagraph, Article 63(6), (8) and (9) of Regulation (EU) 2024/1351 shall apply mutatis mutandis.

Where Directive 2001/55/EC is activated in relation to the same situation as referred to in Article 1(4), point (a), and Member States agree at the moment of activation not to apply Article 11 of that Directive, mandatory offsets pursuant to this Article shall not apply. Where the Council implementing decision referred to in Article 4(3) authorises the Member State concerned to apply Article 13, mandatory offsets pursuant to this Article shall not apply.

Where a contributing Member State has become responsible for applications above its fair share in accordance with paragraph 1, point (b), of this Article or Article 13, it shall be entitled to:

(a) proportionally reduce from its fair share in relation to future solidarity contributions under the upcoming annual cycles of Regulation (EU) 2024/1351, with the corresponding number of applications for which that Member State contributed above its fair share over a period of five years;

(b) reduce from its fair share in relation to future solidarity contributions set out in a Council implementing decision adopted pursuant to Article 4(3) with the corresponding number of applications for which that Member State contributed above its fair share; such reduction may only be claimed within five years from the date in which the Council implementing decision that led the Member State to go beyond its fair share is no longer in force.

If, on completing its examination of the notification referred to in the first subparagraph, the Commission confirms that the Member State concerned has contributed above its fair share, the Commission shall authorise, by means of an implementing act, the Member State concerned to reduce from its fair share the corresponding number of applications for which that Member State contributed above its fair share under the upcoming annual cycles of Regulation (EU) 2024/1351 or when implementing a Council implementing decision adopted pursuant to Article 4(3) within the period referred to in paragraph 4, point (b), of this Article to support another Member State or where responsibility offsets are required pursuant to paragraph 1, point (b), of this Article.

When assessing the Member State’s reasoned request as referred to in Article 2 of this Regulation, the Commission shall also take into account whether that Member State has taken responsibility for examining applications for international protection above its fair share, in addition to the information set out in Articles 9 and 10 of Regulation 2024/1351.

CHAPTER IV

DEROGATIONS

Article 10

Registration of applications for international protection in situations of crisis, or force majeure

In such a case, the Member State concerned may apply the derogation referred to in paragraph 1 of this Article for a period not exceeding 10 days from the day following the date of the submission of the request, unless the Council implementing decision as referred to in Article 4(3) authorises the Member State concerned to continue to apply that derogation.

Article 11

Measures applicable to the asylum border procedure in a situation of crisis or force majeure

When applying paragraph 6, Member States shall:

(a) exclude from the border procedure minors under the age of 12 and their family members, and persons with special procedural or special reception needs as defined in Directive (EU) 2024/1346 and in Regulation (EU) 2024/1348; or

(b) cease to apply the border procedure in respect of the following categories of applicants where it is determined, on the basis of an individual assessment, that their applications are likely to be well-founded: (i) minors under the age of 12 and their family members; and (ii) vulnerable persons with special procedural or special reception needs as defined in Directive (EU) 2024/1346 and in Regulation (EU) 2024/1348.

This paragraph shall be without prejudice to the mandatory nature of the border procedure as referred to in Article 45 of Regulation (EU) 2024/1348.

Organisations and persons permitted under national law to provide advice and counselling shall have effective access to applicants held in detention facilities or present at border crossing points. Member States may impose limits to such actions where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of a detention facility, provided that access is not thereby severely restricted or rendered impossible.

Article 12

Extension of time limits set out for take charge requests, take back notifications and transfers in a situation of crisis referred to in Article 1(4), point (a), or force majeure