COUNCIL DECISION

of 24 October 2008

on the conclusion of a Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland

(2009/487/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63(1)(a) thereof, in conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Parliament (1),

Whereas:

(1) On 27 February 2006 the Council authorised the Commission to open negotiations, on behalf of the Community, with the Swiss Confederation and the Principality of Liechtenstein to conclude a Protocol on the participation of Denmark in the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (hereinafter referred to as the Protocol). These negotiations have been finalised.

(2) In accordance with the Decision of the Council of 28 February 2008, and subject to its final conclusion at a later date, this Protocol was signed, on behalf of the European Community, on 28 February 2008.

(3) The Protocol should be approved.

(4) The entry into force of the Protocol with respect to Switzerland is linked to the putting into effect of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen

acquis

(2) and of the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (3).

(5) The entry into force of the Protocol with respect to Liechtenstein is linked to the putting into effect of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen

acquis

(hereinafter referred to as Protocol on the association of Liechtenstein with the Schengen

acquis

) and of the Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (hereinafter referred to as Protocol on the association of Liechtenstein with the Dublin

acquis

). Consequently, the deposit of the instrument of approval as regards Liechtenstein should not take place before the approval by the Council of the Protocol on the association of Liechtenstein with the Schengen

acquis

and of the Protocol on the association of Liechtenstein with the Dublin

acquis

(6) The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and the Treaty establishing the European Community, are taking part in the adoption and application of this Decision.

(7) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on the European Union and the Treaty establishing the European Community, Denmark is not participating to the adoption of this decision and is not bound by or subject to its application,

HAS DECIDED AS FOLLOWS:

Article 1

The Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland is hereby approved on behalf of the Community.

The text of the Protocol is attached to this Decision.

Article 2

1. The President of the Council is hereby authorised to designate the person(s) empowered to deposit on behalf of the Community the instrument of approval provided for in Article 5 of the Protocol, in order to express the consent of the Community to be bound in its relations to Switzerland.

2. The President of the Council is hereby authorised to designate the person(s) empowered to deposit on behalf of the Community the instrument of approval provided for in Article 5 of the Protocol, in order to express the consent of the Community to be bound in its relations with Liechtenstein. The deposit of this instrument shall not take place before the Council has approved, on behalf of the European Community and on behalf of the European Union, the Protocol on the association of Liechtenstein with the Schengen

acquis

and, on behalf of the European Community, the Protocol on the association of Liechtenstein with the Dublin

acquis

Article 3

This Decision shall be published in the

Official Journal of the European Union

Done at Luxembourg, 24 October 2008.

For the Council

The President

M. ALLIOT-MARIE

(1) Opinion of 8 July 2008 (not yet published in the Official Journal).

(2)

OJ L 53, 27.2.2008, p. 52

(3)

OJ L 53, 27.2.2008, p. 5

PROTOCOL

between the European Community, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community, and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland

THE EUROPEAN COMMUNITY (hereinafter referred to as the Community),

of the one part,

and

THE SWISS CONFEDERATION (hereinafter referred to as Switzerland),

and

THE PRINCIPALITY OF LIECHTENSTEIN (hereinafter referred to as Liechtenstein),

of the other part,

hereinafter referred to as the Contracting Parties,

BEARING IN MIND that the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, provides that none of the measures of Title IV of the Treaty establishing the European Community shall be binding upon, or applicable in, Denmark;

REFERRING to the provision of the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (1) (hereinafter referred to as the Agreement between the European Community and Switzerland), on the possibility for the Kingdom of Denmark (hereinafter referred to as Denmark) to request to participate in that Agreement;

CONSIDERING the Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein to the same Agreement between the European Community and Switzerland on the accession of the Principality of Liechtenstein to that Agreement, in accordance with its Article 15;

NOTING that the Kingdom of Denmark, by letter dated 8 November 2004, requested to participate in the same Agreement between the European Community and Switzerland;

RECALLING that according to the Agreement between the European Community and Switzerland to which the Principality of Liechtenstein has acceded, the conditions for such participation by the Kingdom of Denmark shall be determined by the Contracting Parties, acting with the consent of Denmark, in a Protocol to that Agreement;

CONSIDERING that it was appropriate, in the first place, for Denmark and the Community to conclude an Agreement in order to settle, in particular, matters relating to the jurisdiction of the Court of Justice and to the coordination between the Community and Denmark regarding international agreements;

CONSIDERING the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (2);

CONSIDERING that it is therefore necessary to fix the conditions whereby Denmark participates in the Agreement between the European Community and Switzerland, to which Liechtenstein has acceded, and that in particular it is necessary to establish rights and obligations between Switzerland, Liechtenstein and Denmark;

NOTING that the entry into force of this Protocol is based on the consent of Denmark, in accordance with its constitutional requirements,

HAVE AGREED AS FOLLOWS:

Article 1

The Kingdom of Denmark shall participate in the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (hereinafter referred to as the Agreement between the European Community and Switzerland) to which the Principality of Liechtenstein has acceded by a Protocol to that Agreement (hereinafter referred to as the Liechtenstein Protocol) in accordance with Article 15 of the Agreement, under the conditions set out in the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (hereinafter referred to as the Agreement between the European Community and Denmark) and the present Protocol.

Article 2

1. The provisions of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (3) (Dublin Regulation), which is annexed to this Protocol and forms part thereof, together with its implementing measures adopted pursuant to Article 27(2) of the ‘Dublin Regulation’ shall, under international law, apply to the relations between Denmark on the one hand, and Switzerland and Liechtenstein on the other hand.

2. The provisions of Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (4) (Eurodac Regulation), which is annexed to this Protocol and forms part thereof, together with its implementing measures adopted pursuant to Articles 22 or 23(2) of the ‘Eurodac Regulation’ shall, under international law, apply to the relations between Denmark on the one hand, and Switzerland and Liechtenstein on the other hand.

3. Amendments to the Acts referred to in paragraphs 1 and 2 which are notified by Denmark to the Commission in accordance with Article 3 of the Agreement between the European Community and Denmark and which are notified by Switzerland and Liechtenstein to the Commission in accordance respectively with Article 4 of the Agreement between the European Community and Switzerland, and Article 5 of the Liechtenstein Protocol shall, under international law, apply to the relations between Denmark on the one hand, and Switzerland and Liechtenstein on the other hand.

4. Implementing measures adopted pursuant to Article 27(2) of the ‘Dublin Regulation’ and implementing measures adopted pursuant to Article 22 or 23(2) of the ‘Eurodac Regulation’ which are notified by Denmark to the Commission in accordance with Article 4 of the Agreement between the European Community and Denmark and which are notified by Switzerland and Liechtenstein to the Commission in accordance respectively with Article 4 of the Agreement between the European Community and Switzerland and Article 5 of the Liechtenstein Protocol shall, under international law, apply to the relations between Denmark on the one hand, and Switzerland and Liechtenstein on the other hand.

Article 3

Switzerland and Liechtenstein shall be entitled to submit statements of case or written observations to the Court of Justice in cases where a question has been referred to it by a Danish court or tribunal for a preliminary ruling, in accordance with Article 6(1) of the Agreement between the European Community and Denmark.

Article 4

1. In the case of a complaint by Switzerland or Liechtenstein concerning the application or the interpretation by Denmark of this Protocol, Switzerland or Liechtenstein may ask that the matter be officially entered as a matter of dispute on the agenda of the Mixed Committee.

2. In the case of a complaint by Denmark concerning the application or the interpretation by Switzerland or Liechtenstein of this Protocol, Denmark shall be entitled to ask the Commission to enter officially the matter as a matter of dispute on the agenda of the Mixed Committee. The matter shall be placed on the agenda by the Commission.

3. The Mixed Committee shall have 90 days, from the date of the adoption of the agenda on which the dispute has been entered, to settle the dispute. For this purpose, Denmark shall be entitled to make observations to the Mixed Committee.

4. In case a dispute is settled by the Mixed Committee in a manner that requires implementation in Denmark, Denmark shall, within the period referred to in paragraph 3, notify the Parties of its implementation or non-implementation of the settlement.

If Denmark notifies its decision not to implement the content of the settlement, paragraph 5 shall apply.

5. If the dispute cannot be settled by the Mixed Committee within the period referred to in paragraph 3, a further period of 90 days shall be allowed, with the purpose of reaching a final settlement. If the Mixed Committee has not taken a decision at the end of the period, this Protocol shall be considered terminated at the end of the last day of that period.

Article 5

This Protocol is subject to ratification or approval by the Contracting Parties.

Instruments of ratification or approval shall be deposited with the Secretary-General of the Council, who shall act as depositary.

As far as Liechtenstein is concerned, this Protocol shall enter into force on the first day of the second month following the notification by the Community and Liechtenstein of the completion of their respective procedures.

As far as Switzerland is concerned, this Protocol shall enter into force on the first day of the second month following the notification by the Community and Switzerland of the completion of their respective procedures.

The entry into force of this Protocol for the Community and Liechtenstein on the one hand, and for the Community and the Swiss Confederation, on the other hand, is also subject to the prior receipt by the depositary of a Note from Denmark to the effect that Denmark assents to the provisions contained in the present Protocol and declares that it shall apply the provisions referred to in Article 2 in its mutual relations with Switzerland and Liechtenstein.

Article 6

Each Contracting Party may terminate this Protocol by written declaration addressed to the depositary. Such declaration shall take effect six months after its deposition.

This Protocol shall cease if the Agreement between the Community and Denmark is terminated.

This Protocol shall cease if either the Community or both Switzerland and Liechtenstein have denounced it.

За Европейската общност

Por la Comunidad Europea

Za Evropské společenství

For Det Europæiske Fællesskab

Für die Europäische Gemeinschaft

Euroopa Ühenduse nimel

Για την Ευρωπαϊκή Κοινότητα

For the European Community

Pour la Communauté européenne

Per la Comunità europea

Eiropas Kopienas vārdā

Europos bendrijos vardu

az Európai Közösség részéről

Għall-Komunitá Ewropea

Voor de Europese Gemeenschap

W imieniu Wspólnoty Europejskiej

Pela Comunidade Europeia

Pentru Comunitatea Europeană

Za Európske spoločenstvo

Za Evropsko skupnost

Euroopan yhteisön puolesta

På Europeiska gemenskapens vägnar

[Bild bitte in Originalquelle ansehen]

За Конфедерация Швейцария

Por la Confederación Suiza

Za Švýcarskou konfederaci

For Det Schweiziske Forbund

Für die Schweizerische Eidgenossenschaft

Šveitsi Konföderatsiooni nimel

Για την Ελβετική Συνομοσπονδία

For the Swiss Confederation

Pour la Confédération suisse

Per la Confederazione svizzera

Šveices Konfederācijas vārdā

Šveicarijos Konfederacijos vardu

A Svájci Államszövetség részéről

Għall-Konfederazzjoni Żvizzera

Voor de Zwitserse Bondsstaat

W imieniu Konfederacji Szwajcarskiej

Pela Confederação Suíça

Pentru Confederația Elvețiană

Za Švajčiarsku konfederáciu

Za Švicarsko konfederacijo

Sveitsin valaliiton puolesta

På Schweiziska edsförbundets vägnar

[Bild bitte in Originalquelle ansehen]

За Княжество Лихтенщайн

Por el Principado de Liechtenstein

Za Lichtenštejnské knížectví

For Fyrstendømmet Liechtenstein

Für das Fürstentum Liechtenstein

Liechtensteini Vürstiriigi nimel

Για το Πριγκιπάτο του Λιχτενστάιν

For the Principality of Liechtenstein

Pour la Principauté de Liechtenstein

Per il Principato del Liechtenstein

Lihtenšteinas Firstistes vārdā

Lichtenšteino Kunigaikštystės vardu

A Liechtensteini Hercegség részéről

Għall-Prinċipat ta' Liechtenstein

Voor het Vorstendom Liechtenstein

W imieniu Księstwa Liechtensteinu

Pelo Principado do Liechtenstein

Pentru Principatul Liechtenstein

Za Lichtenštajnské kniežatstvo

Za Kneževino Lihtenštajn

Liechtensleinin ruhtinaskunnan puolesta

För Furstendömet Liechtenstein

[Bild bitte in Originalquelle ansehen]

(1)

OJ L 53, 27.2.2008, p. 5

(2)

OJ L 66, 8.3.2006, p. 38

(3)

OJ L 50, 25.2.2003, p. 1

(4)

OJ L 316, 15.12.2000, p. 1

ANNEX

COUNCIL REGULATION (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (

OJ L 50, 25.2.2003, p. 1

COUNCIL REGULATION (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (

OJ L 316, 15.12.2000, p. 1