EXPLANATORY MEMORANDUM

1. Context of the Proposal 1.1. Grounds for and objectives of the proposal

As announced in the Policy Plan on Asylum[1], on 21 October 2009, the Commission presented a proposal amending Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status[2] (hereafter – the Asylum Procedures Directive).

The proposal was prepared on the basis of the evaluation of the application of the current Directive in Member States. It also incorporated the results of a wide consultation process with Member States, the United Nations High Commissioner for Refugees, non-governmental organisations and other relevant stakeholders. The information about the implementation of the current Directive was subsequently consolidated as an Evaluation Report[3], published in September 2009, whose conclusions further reinforced the case behind the proposal.

On 6 April 2011, the European Parliament adopted a first reading position on the Commission proposal which generally supported the proposed amendments.

The proposal was also discussed in the Council, mainly under the Spanish Presidency of 2010. Discussions were however difficult and the Council was unable to reach a position.

By presenting the modified proposal, the Commission intends to use its right of initiative to boost the work to achieve a true Common European Asylum System which will benefit Member States and refugees alike. The Commission has a political responsibility to provide real opportunities so that the Union respects its commitment set out in the Stockholm Programme to achieve the Common European Asylum System by 2012. The adoption of the amended Long Term Residence Directive which covers beneficiaries of international protection gave a strong impetus towards this direction.

A common asylum procedure should be fast and fair. To achieve these objectives, the Commission has continued to gather knowledge on how to consolidate the best national practices and assemble them into a system that is coherent and easy to implement across the Union. The modified proposal brings together the additional knowledge and experience built up during the discussions on the previous proposal.

The system proposed in the modified proposal is both efficient and protective. It is cost-effective and helps tackle potential abusive claims. It guarantees that applications will be treated similarly in all Member States. It fully respects fundamental rights and the related developing case-law, thus also helping ensure it can withstand challenge before the courts. At the same time, it is flexible enough to accommodate the particularities of national legal systems. The rules that compose it are clarified and simplified to ensure effective implementation.

The modified proposal should be viewed together with the modified proposal on the Reception Conditions Directive. That proposal inter alia aims to ensure better and more harmonised reception standards for asylum seekers across the Union.

The modified proposal also relates to the Regulation establishing the European Asylum Support Office (EASO) adopted on 19 May 2010. Now that the EASO has started its activities, a more specific role can be foreseen for it to support Member States in a more efficient implementation of common rules.

1.2. General context

The 2009 proposal and the present modified proposal are part of a legislative package aiming to establish a Common European Asylum System (CEAS).

In particular, in 2008, together with the proposal amending the Reception Conditions Directive, the Commission also adopted proposals amending the Dublin and EURODAC Regulations. In 2009, the Commission adopted proposals amending the Asylum Procedures and the Qualification Directives. Finally, the European Asylum Support Office was established by a Regulation of 19 May 2010 in order to increase coordination of operational cooperation between Member States so that common rules in the area of asylum are implemented effectively.

This legislative package is in line with the 2008 European Pact on Immigration and Asylum[4], which reconfirmed the objectives of The Hague Programme, and called on the Commission to present proposals for establishing, in 2012 at the latest, a single asylum procedure comprising common guarantees. In the same framework, the Stockholm programme adopted by the European Council at its meeting of 10–11 December 2009 underlined the need to establish "a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection", based on "high protection standards" and "fair and effective procedures", by 2012. In particular, the Stockholm Programme affirmed that people in need of international protection must be ensured access to legally safe and efficient asylum procedures. In accordance with the Stockholm Programme, individuals, regardless of the Member State in which their application for asylum is lodged, should be offered the same level of treatment as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.

An Impact Assessment was conducted as part of the preparation of the previous proposal. The modified proposal is based on the same principles as the previous proposal. In addition, it aims to reduce costs and administrative burden while simplifying and clarifying certain provisions to make their implementation easier. For this reason, the Impact Assessment conducted for the previous proposal continues to apply to the modified proposal.

1.3. Consistency with other policies and objectives of the Union

This proposal is fully in line with the Tampere European Council Conclusions of 1999, The Hague Programme of 2004, the European Pact on Immigration and Asylum, adopted by the European Council on 17 October 2008 and the Stockholm Programme of 2009 which requires the achievement of the CEAS by 2012.

The proposal is also consistent with the objectives of the Europe 2020 strategy, in particular regarding better integration of legal migrants. By promoting faster and more robust asylum procedures, it fosters employability of refugees and persons in need of subsidiary protection as their skills would suffer less from a long period without full access to labour market. It also seeks to reduce Member States' reception costs, thus promoting the sustainability of public finances.

2. Consultation of Interested Parties

As part of the preparatory work for the previous proposal, the Commission presented a Green Paper, conducted several experts' meetings, including with the UNHCR and civil society partners, commissioned an external study, and collected data in response to several detailed questionnaires. The Commission adopted the Evaluation Report on the implementation of the current Directive on 8 September 2010. Its conclusions further reinforced the findings of the preparatory work.

Following the presentation of the previous proposal in October 2009, discussions were conducted at the technical level in the Council, mainly under the Spanish Presidency. During the discussions, several Member States opposed specific provisions of the proposal because of the particularities of their asylum and/or legal systems. However, the Council was unable to find satisfactory solutions.

It became apparent that, in order to avoid incorporating multiple exceptions for specific Member States and thus jeopardising the overall coherence of the proposed system, there was an opportunity for the Commission to revisit the proposal to propose a more comprehensive solution to the issues voiced, while safeguarding the added value of the text. Clarifying and simplifying the proposed provisions to make their implementation easier for Member States should give a renewed impetus to the discussions. Therefore, the Commission announced in the Justice and Home Affairs Council that it would present a modified proposal for this Directive before the start of the 2011 Polish Council Presidency.

As part of the preparatory work for this modified proposal, the Commission conducted a series of technical consultation meetings in January–April 2010. The modified proposal also takes into account the discussions in the framework of the Ministerial Conference on the quality and efficiency in the asylum process, organised by the Belgian Presidency on 13–14 September 2010. The conference inter alia focused on the issues of interviews, training, country-of-origin information, priority procedures and repeated applications.

The European Parliament adopted its first reading position on 6 April 2011. The resolution generally supported the Commission's proposal. Most of the proposed amendments aimed at strengthening the guarantees for applicants. Some aimed to provide more flexibility for Member States or to improve the overall coherence of the text. The substance of the resolution was taken into account in the preparation of the modified proposal, which thus incorporates many amendments either in text or in substance.

The Parliament's position also contains an important set of amendments which would lead to significant changes regarding the various safe third country notions. The Commission carefully assessed this amendment and concluded that the idea of deletion of national lists of safe countries and the adoption of common EU lists could be considered in the future. However, it will be realistic only once the EASO has the capacity to support in a sustainable manner the replacement of national lists by drafting reports on countries of origin based on relevant, reliable, accurate and up-to-date country of origin information gathered in a transparent and impartial manner, by the development of a common format and a common methodology for presenting, verifying and using information on countries of origin, and analysis of the information on countries of origin.

Although the Parliament's amendments on the various safe third country notions have not been incorporated in the modified proposal, the Commission recognises the need to further harmonise these rules. To that end, the Commission commits to organise, in an appropriate manner, a regular review of the use of these notions with the Member States and the involvement of the Parliament. This regular review process should help prepare further harmonisation in the future.

The modified proposal aims to be a balanced solution to facilitate the negotiations between the two co-legislators.

3. Legal Elements of the Proposal 3.1. Summary of the proposed action

The main aim of this modified proposal is to simplify and clarify rules, in order to make them more compatible with the variety of national legal systems and to help Member States to apply them in a way that is more cost-effective in their particular situations.

As with the previous proposal, the overall objective remains to achieve procedures that are efficient and fair. The proposal continues to ensure full respect of fundamental rights as it is informed by developing case law of the Court of Justice of the European Union and the European Court of Human Rights, especially concerning the right to an effective remedy. Compared to the current Directive, procedural guarantees ensuring fair and efficient procedures have been revised in order to lead to more consistent application of procedural principles. The proposal also introduces more consistent and simplified procedural notions and devices, thus providing asylum authorities with necessary procedural tools to prevent abuse and quickly process clearly unfounded applications.

With a view to facilitating consistent application of the asylum acquis and simplifying applicable arrangements, the proposal provides for a single procedure, thus making it clear that applications should be considered in the light of both forms of international protection set out in the Qualification Directive. The proposal enhances the consistency with the modified proposal on the Reception Conditions Directive and the EASO Regulation.

3.1.1. Making implementation easier for Member States

A number of changes were made to ensure the proposal is more compatible with the variety of legal systems and other arrangements in different Member States. This concerns, for example, rules on decisions on the right to enter the territory, the possibility to postpone the taking of a decision where the situation in the country of origin is temporarily uncertain, and grounds for examining applications at the border. Several provisions have also been made more flexible to ensure easier implementation.

In order to enable Member States to deal appropriately with a large number of simultaneous asylum claims, rules have been revised as regards access to procedure, conducting personal interviews, and standard maximum duration of asylum procedures.

Finally, all provisions have been thoroughly revised throughout the text to clarify and simplify the rules in order to facilitate discussions and ensure effective implementation.

3.1.2. Better addressing potential abuse

The modified proposal enhances the ability of Member States to address potential abuse of the asylum system. New rules provide that Member States may accelerate procedures and examine at the border claims where the applicant has made clearly false or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making the claim clearly unconvincing. The same applies to applicants who are a danger to national security or public order.

To better deal with applicants who abscond or fail to comply with their obligations, rules on implicit withdrawal of an application have also been amended. According to these rules, Member States can reject an application based on implicit withdrawal if the authorities already have sufficient elements to adequately examine the claim. In order to increase the applicants' awareness of the consequences of withdrawal, Member States are required to inform applicants about these rules at the beginning of the procedure.

3.1.3. 'Frontloading': fast, fair and efficient procedures

Frontloading means putting the adequate resources into the quality of decision-making at first instance to make procedures fairer and more efficient. A standard asylum procedure of no more than six months remains a major objective of the proposal. At the same time, the modified proposal makes a number of clarifications to enable an easier implementation of this concept taking into account the particularities of different Member States.

A key element of frontloading is early access to support to help an applicant understand the procedure. The modified proposal clarifies the substance of this basic support to distinguish it from the free legal assistance available in appeals procedures. Member States are free to find the appropriate modalities to provide the support, including through non-governmental organisations, government officials, or specialised services of the state. The amendments should make the implementation of this key provision more cost-effective and dispel misunderstandings which could lead to conflicts between these rules and the general administrative law of several Member States.

The proposal also simplifies the rules on the training that Member States have to provide to the personnel examining and taking decisions on applications. While a high level of competence of this personnel remains the objective, as it is the only way to ensure robust and defendable decisions by the asylum authorities, the modalities are simplified and made more coherent in relation to other parts of the asylum acquis.

Finally, provisions on applicants in need of special procedural guarantees are simplified. The new rules are less prescriptive to give Member States more latitude and flexibility to take into account in the appropriate way the variety of potential specific situations of applicants. At the same time, the rules continue to provide for a high level of guarantees for these persons.

3.1.4. Guaranteeing access to protection

To ensure that a person who expresses a wish to request international protection has an effective opportunity to apply, the modified proposal improves the rules on the initial steps to take in the asylum procedure.

In particular, it removes the potential confusion between the receipt of a complete asylum application and the basic act of registering the fact that a person is an applicant. It thus makes it easier for Member States to comply with the proposed deadline of 72 hours to register an applicant as such after his/her expression of wish to apply, which can be prolonged if respecting it is practically impossible.

Moreover, it provides for simple rules on the training and instructions to be given to border guards and any other authorities likely to enter into contact with potential applicants. The new rules should help Member States implement them taking into account the diversity of their national situations.

3.1.5. Clear rules on repeated applications

Even after an application for international protection has been rejected, a person must be able to reapply if his/her circumstances have changed, in order to take into account the possibility of "sur place" claims in line with the Qualification Directive. The modified proposal clarifies the rules regarding such applications to prevent their potential abuse.

According to these rules, a subsequent application is subject to a rapid and efficient preliminary examination to determine whether there are any new elements that justify further examination. If there are new elements, the subsequent application has to be examined in conformity with the general rules. If there are not, the application is declared inadmissible. To prevent abuse, Member States may then make an exception from the right to remain in the territory even if the person makes further applications for international protection.

3.1.6. Increased coherence with other instruments of the EU asylum acquis

The modified proposal revises a number of devices to make them more coherent with other EU asylum instruments, in particular with the modified proposal for the Reception Conditions Directive. This concerns in particular provisions on special needs and vulnerable persons and border procedures.

The modified proposal also aligns provisions on training on the equivalent provisions of the EASO Regulation. It also foresees a more concrete role for the EASO in the provisions regarding training and access to procedure. The objective is to give Member States flexibility but also support. The involvement of the EASO should also foster coherence in implementation across the Union.

With a view to facilitating consistent application of the acquis and simplifying applicable arrangements, the proposal provides for a single procedure, thus making it clear that applications should be considered in the light of both forms of international protection set out in the Qualification Directive.

3.2. Legal basis

The modified proposal amends Directive 2005/85/EC and uses Article 78(2)(d) of the Treaty on the Functioning of the European Union (TFEU) as a legal basis which foresees the adoption of measures for common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.

3.3. Territorial application

The proposed Directive will be addressed to the Member States. Application of the Directive to the United Kingdom and Ireland will be determined in accordance with the provisions of Protocol No 21 annexed to the TFEU.

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TFEU, Denmark is not bound by the Directive nor is subject to its application.

3.4. Subsidiarity principle

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the Union.

The legal base for Union action is established in Article 78 TFEU. This provision states that the Union is to "develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties".

Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the CEAS, in particular with regard to issues concerning procedures for granting and withdrawing international protection, in particular to avoid secondary movements. Although an important level of harmonization was reached by the adoption of the directive in 2005, further EU action is necessary in order to attain higher and more harmonised standards on asylum procedures and to take further steps towards common asylum procedures. These standards are also considered indispensible with a view to ensuring that applicants for international protection who are the subject to the Dublin procedures have their applications examined under equivalent conditions in different Member States.

3.5. Proportionality principle

The impact assessment on the amendment of the Asylum Procedures Directive[5], conducted as part of the preparatory work for the previous proposal, assessed each option with regard to the problems identified so as to represent an ideal proportion between practical value and efforts needed and concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems. The present modified proposal retains the guiding principles of the previous proposal, while introducing additional flexibility for Member States, thus further contributing to the respect of the principle of proportionality.

3.6. Impact on fundamental rights

This proposal was subject to an in-depth scrutiny with a view to ensuring that its provisions are fully compatible with:

– fundamental rights enshrined in the Charter of Fundamental Rights of the EU, and

– obligations stemming from international law, in particular from the Geneva Convention, the European Convention on Human Rights, and from the UN Convention on the Rights of the Child.

Ensuring higher standards on asylum procedures as well as their consistent application across the Union will have an overall positive impact for asylum seekers and will render the fundamental right to asylum of Article 18 of the Charter more effective. In particular, the proposal will reduce room for administrative error in asylum procedures thus ensuring better respect for the principle of non-refoulement enshrined in Article 19 of the Charter and improving access to protection and justice with the guarantee that every applicant should have in the case of a negative decision the right to an effective remedy before a court or a tribunal according to Article 47 of the Charter. The proposal will also enhance gender equality prescribed by Article 23 of the Charter, promote the best interests of the child principle in the asylum procedures, in line with Article 24 of the Charter, and reinforce the principle of non-discrimination as provided in Article 21 of the Charter.

2009/0165 (COD)

Amended proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on common procedures for granting and withdrawing international protection status (Recast)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 78(2)(d) thereof,

Having regard to the proposal from the European Commission,

Having regard to the opinion of the European Economic and Social Committee[6],

Having regard to the opinion of the Committee of the Regions[7],

Acting in accordance with the ordinary legislative procedure,

Whereas:

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(1) A number of substantive changes are to be made to Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status[8]. In the interest of clarity, that Directive should be recast.

ê 2005/85/EC recital 1 (adapted)

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(2) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Ö Union Õ Community. ð It should be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. ï

ê 2005/85/EC recital 2

(3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967 (Geneva Convention), thus affirming the principle of non‑refoulement and ensuring that nobody is sent back to persecution.

ê 2005/85/EC recital 3 (adapted)

(4) The Tampere Conclusions provide that a Common European Asylum System should include, in the short term, common standards for fair and efficient asylum procedures in the Member States and, in the longer term, Ö Union Õ Community rules leading to a common asylum procedure in the European Ö Union Õ Community.

ê 2005/85/EC recital 4

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(5) ð The first phase of a Common European Asylum System was achieved through the adoption of relevant legal instruments foreseen in the Treaties, including Directive 2005/85/EC which was ï The minimum standards laid down in this Directive on procedures in Member States for granting or withdrawing refugee status are therefore a first measure on asylum procedures.

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(6) The European Council, at its meeting of 4 November 2004, adopted the Hague Programme, which set the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010. In this respect, the Hague Programme invited the European Commission to conclude the evaluation of the first phase legal instruments and to submit the second phase instruments and measures to the Council and the European Parliament. In accordance with the Hague Programme, the objective to be pursued for the creation of the Common European Asylum System is the establishment of a common asylum procedure and a uniform status valid throughout the Union.

(7) In the European Pact on Immigration and Asylum, adopted on 16 October 2008, the European Council noted that considerable disparities remain between one Member State and another concerning the grant of protection and called for new initiatives, including a proposal for establishing a single asylum procedure comprising common guarantees, to complete the establishment of a Common European Asylum System, provided for in the Hague Programme.

(8) The European Council, at its meeting of 10-11 December 2009, adopted the Stockholm Programme which reconfirmed the commitment to establishing a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection based on high protection standards and fair and effective procedures by 2012. The Stockholm Programme affirmed that people in need of international protection must be ensured access to legally safe and efficient asylum procedures. In accordance with the Stockholm Programme, individuals, regardless of the Member State in which their application for asylum is lodged, should be offered the same level of treatment as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.

(9) The resources of the European Refugee Fund and of the European Asylum Support Office, established by Regulation (EU) No 439/2010 of the European Parliament and of the Council[9], should be mobilised to provide adequate support to the Member States' efforts relating to the implementation of the standards set in the second phase of the Common European Asylum System, in particular to those Member States which are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation.

(10) In order to ensure a comprehensive and efficient evaluation of the international protection needs of applicants within the meaning of Directive […/.../EU] [on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (the Qualification Directive)], the Union framework on procedures for granting international protection should be based on the concept of a single asylum procedure.

ê 2005/85/EC recital 5

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(11) The main objective of this Directive is to ð further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Union ï introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.

ê 2005/85/EC recital 6

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(12) The approximation of rules on the procedures for granting and withdrawing ð international protection ï refugee status should help to limit the secondary movements of applicants for ð international protection ï asylum between Member States, where such movement would be caused by differences in legal frameworks ð , and create equivalent conditions for the application of Directive […/…/EU] [the Qualification Directive] in Member States ï.

ê 2005/85/EC recital 7

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(13) It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions for third country nationals or stateless persons who ask for international protection from a Member State, where such a request is understood to be on the grounds that the person concerned is ð in need of international protection ï a refugee within the meaning of ð Directive […/…/EU] [the Qualification Directive] ï Article 1(A) of the Geneva Convention.

ê 2005/85/EC recital 9

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(14) With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination.

ê 2005/85/EC recital 10

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(15) It is essential that decisions on all applications for ð international protection ï asylum be taken on the basis of the facts and, in the first instance, by authorities whose personnel has the appropriate knowledge or has receiveds the necessary training in the field of asylum and ð international protection ï refugee matters.

ê 2005/85/EC recital 11 (adapted)

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(16) It is in the interest of both Member States and applicants for ð international protection ï asylum Ö that a decision is made Õ to make a decision as soon as possible on applications for ð international protection ï asylum, ð without prejudice to an adequate and complete examination ï. The organisation of the processing of applications for asylum should be left to the discretion of Member States, so that they may, in accordance with their national needs, prioritise or accelerate the processing of any application, taking into account the standards in this Directive.

(17) It is also in the interest of both Member States and applicants to ensure a correct recognition of international protection needs already at first instance. To that end, applicants should be provided at first instance, free of charge, with legal and procedural information, taking into account their particular circumstances. The provision of such information should inter alia enable the applicants to better understand the procedure, thus helping them to comply with the relevant obligations. It would be disproportionate to require Member States to provide such information only through the services of qualified lawyers. Member States should therefore have the possibility to find the most appropriate modalities for the provision of such information, such as through non-governmental organisations, government officials or specialised services of the State.

(18) In appeals procedures, subject to certain conditions, applicants should be granted free legal assistance and representation provided by persons competent to do so under national law. Furthermore, at all stages of the procedure, applicants should have the right to consult, at their own cost, legal advisers or counsellors permitted as such under national law.

ê 2005/85/EC recital 12

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(19) The notion of public order may ð inter alia ï cover a conviction for committing a serious crime.

ê 2005/85/EC recital 13 (adapted)

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(20) In the interests of a correct recognition of those persons in need of protection as refugees within the meaning of Article 1 of the Geneva Convention ð or as persons eligible for subsidiary protection ï, every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure. Moreover, the procedure in which an application for ð international protection ï asylum is examined should normally provide an applicant at least with the right to stay pending a decision by the determining authority, access to the services of an interpreter for submitting his/her case if interviewed by the authorities, the opportunity to communicate with a representative of the United Nations High Commissioner for Refugees (UNHCR) ð and with organisations providing advice or counselling to applicants for international protection ï or with any organisation working on its behalf, the right to appropriate notification of a decision, a motivation of that decision in fact and in law, the opportunity to consult a legal adviser or other counsellor, and the right to be informed of his/her legal position at decisive moments in the course of the procedure, in a language he/she ð understands or ï Ö is Õ can reasonably be supposed to understand ð and, in the case of a negative decision, the right to an effective remedy before a court of a tribunal ï.

ê 2005/85/EC recital 14

In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their vulnerability. In this context, the best interests of the child should be a primary consideration of Member States.

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(21) With a view to ensuring an effective access to the examination procedure, officials who first come into contact with persons seeking international protection, in particular those carrying out surveillance of land or maritime borders or conducting border checks, should receive instructions and necessary training on how to recognise and deal with requests for international protection. They should be able to provide third country nationals or stateless persons who are present in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and wish to request international protection, with all relevant information as to where and how applications for international protection may be lodged. Where those persons are present in the territorial waters of a Member State, they should be disembarked on land and have their applications examined in accordance with this Directive.

(22) In order to facilitate access to the examination procedure at border crossing points and in detention facilities, information should be made available on the possibility to request international protection. Basic communication necessary to enable the competent authorities to understand if persons declare their wish to apply for international protection should be ensured through interpretation arrangements.

(23) In addition, applicants in need of special procedural guarantees, such as minors, unaccompanied minors, persons who have been subjected to torture, rape or other serious acts of violence or disabled persons, should be provided with adequate support in order to create the conditions necessary for their effective access to procedures and presenting the elements needed to substantiate the application for international protection.

(24) National measures dealing with identification and documentation of symptoms and signs of torture or other serious acts of physical or mental violence, including acts of sexual violence, in procedures covered by this Directive should inter alia be based on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).

(25) With a view to ensuring substantive equality between female and male applicants, examination procedures should be gender sensitive. In particular, personal interviews should be organised in a way which makes its possible for both female and male applicants to speak about their past experiences in cases involving gender based persecution. The complexity of gender related claims should be properly taken into account in procedures based on the safe third country concept, the safe country of origin concept or the notion of subsequent applications.

(26) The best interests of the child should be a primary consideration of Member States when implementing this Directive, in line with the Charter of Fundamental Rights of the European Union and the 1989 United Nations Convention on the Rights of the Child.

(27) Procedures for examining international protection needs should be organised in a way that makes it possible for the competent authorities to conduct a rigorous examination of applications for international protection.

ê 2005/85/EC recital 15

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(28) Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure. In these cases, Member States should ð be able to dismiss an application as inadmissible in accordance with the res judicata principle ï have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant.

ê 2005/85/EC recital 16

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(29) Many asylum applications ð for international protection ï are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to ð provide for admissibility and/or substantive examination procedures which make it possible to decide on applications made at the border or in transit zones at those locations in well-defined circumstances ï keep existing procedures adapted to the specific situation of these applicants at the border. Common rules should be defined on possible exceptions made in these circumstances to the guarantees normally enjoyed by applicants. Border procedures should mainly apply to those applicants who do not meet the conditions for entry into the territory of the Member States.

ê 2005/85/EC recital 17

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(30) A key consideration for the well‑foundedness of an asylum application ð for international protection ï is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter‑indications.

ê 2005/85/EC recital 18

(31) Given the level of harmonisation achieved on the qualification of third country nationals and stateless persons as refugees, common criteria for designating third countries as safe countries of origin should be established.

ê 2005/85/EC recital 19

Where the Council has satisfied itself that those criteria are met in relation to a particular country of origin, and has consequently included it in the minimum common list of safe countries of origin to be adopted pursuant to this Directive, Member States should be obliged to consider applications of persons with the nationality of that country, or of stateless persons formerly habitually resident in that country, on the basis of the rebuttable presumption of the safety of that country. In the light of the political importance of the designation of safe countries of origin, in particular in view of the implications of an assessment of the human rights situation in a country of origin and its implications for the policies of the European Union in the field of external relations, the Council should take any decisions on the establishment or amendment of the list, after consultation of the European Parliament.

ê 2005/85/EC recital 20 (adapted)

(32) It results from the status of Bulgaria and Romania as candidate countries for accession to the European Union and the progress made by these countries towards membership that they should be regarded as constituting safe countries of origin for the purposes of this Directive until the date of their accession to the European Union.

ê 2005/85/EC recital 21

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(33) The designation of a third country as a safe country of origin for the purposes of this Directive cannot establish an absolute guarantee of safety for nationals of that country. By its very nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in the country concerned. For this reason, it is important that, where an applicant shows that there are ð valid ï serious reasons to consider the country not to be safe in his/her particular circumstances, the designation of the country as safe can no longer be considered relevant for him/her.

ê 2005/85/EC recital 22 (adapted)

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(34) Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies Ö for international protection Õ as a refugee in accordance with Directive […/…/EU] [the Qualification Directive] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, except where the present Directive provides otherwise, in particular where it can be reasonably assumed that another country would do the examination or provide sufficient protection. In particular, Member States should not be obliged to assess the substance of an asylum application ð for international protection ï where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to this country.

ê 2005/85/EC recital 23

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(35) Member States should also not be obliged to assess the substance of an an asylum application ð for international protection ï where the applicant, due to a ð sufficient ï connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country ð, and there are grounds for considering that the applicant will be admitted or re-admitted to that country ï. Member States should only proceed on this basis where this particular applicant would be safe in the third country concerned. In order to avoid secondary movements of applicants, common principles for the consideration or designation by Member States of third countries as safe should be established.

ê 2005/85/EC recital 24

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(36) Furthermore, with respect to certain European third countries, which observe particularly high human rights and refugee protection standards, Member States should be allowed to not carry out, or not to carry out full examination of asylum applications ð for international protection ï regarding applicants who enter their territory from such European third countries. Given the potential consequences for the applicant of a restricted or omitted examination, this application of the safe third country concept should be restricted to cases involving third countries with respect to which the Council has satisfied itself that the high standards for the safety of the third country concerned, as set out in this Directive, are fulfilled. The Council should take decisions in this matter after consultation of the European Parliament.

ê 2005/85/EC recital 25

It follows from the nature of the common standards concerning both safe third country concepts as set out in this Directive, that the practical effect of the concepts depends on whether the third country in question permits the applicant in question to enter its territory.

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(37) In order to facilitate regular exchange of information about the national application of the safe country of origin, safe third country and European safe third country concepts and to prepare possible further harmonisation in the future, Member States should notify or periodically inform the Commission about the third countries to which these concepts are applied.

ê 2005/85/EC recital 26

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(38) With respect to the withdrawal of refugee ð or subsidiary protection ï status, Member States should ensure that persons benefiting from ð international protection ï refugee status are duly informed of a possible reconsideration of their status and have the opportunity to submit their point of view before the authorities can take a motivated decision to withdraw their status. However, dispensing with these guarantees should be allowed where the reasons for the cessation of the refugee status is not related to a change of the conditions on which the recognition was based.

ê 2005/85/EC recital 27 (adapted)

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(39) It reflects a basic principle of Ö Union Õ Community law that the decisions taken on an application for asylum ð international protection, the decisions concerning a refusal to re-open the examination of an application after its discontinuation, ï and Ö the decisions Õ on the withdrawal of refugee ð or subsidiary protection ï status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole.

ê 2005/85/EC recital 28

(40) In accordance with Article 72 64 of the Treaty on the Functioning of the European Union, this Directive 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.

ê 2005/85/EC recital 29

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(41) This Directive does not deal with procedures ð between Member States ï governed by Council Regulation (EC) No 343/2003 of 18 February 2003 Regulation (EU) No […/…] [establishing the criteria and mechanisms for determining the Member state responsible for examining an asylum application ð for international protection ï lodged in one of the Member States by a third‑country national ð or a stateless person ï] (the Dublin Regulation).

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(42) Applicants with regard to whom Regulation (EU) No […/…] [the Dublin Regulation] applies should enjoy access to the basic principles and guarantees set out in this Directive and to the special guarantees pursuant to Regulation (EU) No […/…] [the Dublin Regulation].

ê 2005/85/EC recital 30

(43) The implementation of this Directive should be evaluated at regular intervals not exceeding two years.

ê 2005/85/EC recital 31 (adapted)

(44) Since the objectives of this Directive, namely to establish minimum standards on procedures in Member States for granting and withdrawing refugee status cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Ö Union Õ Community level, the Ö Union Õ Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

ê 2005/85/EC recital 32

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 24 January 2001, its wish to take part in the adoption and application of this Directive.

ê 2005/85/EC recital 33

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland has notified, by letter of 14 February 2001, its wish to take part in the adoption and application of this Directive.

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(45) In accordance with Article 4a(1) of Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, and without prejudice to paragraph 2 of that Article, so long as the United Kingdom and Ireland have not notified their wish to accept this measure, in accordance with Article 4 of that Protocol, they are not bound by it and continue to be bound by Directive 2005/85/EC.

ê 2005/85/EC recital 34

(46) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union establishing the European Community, Denmark does not take part in the adoption of this Directive and is not bound by it or subject to its application.

ê 2005/85/EC recital 8

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(47) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. ð In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 18, 19, 21, 23, 24, and 47 of the Charter and has to be implemented accordingly. ï

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(48) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.

(49) This Directive should be without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex II, Part B.

ê 2005/85/EC

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HAVE ADOPTED THIS DIRECTIVE,

CHAPTER I

General provisions

Article 1

Purpose

The purpose of this Directive is to establish ð common ï minimum standards on procedures in Member States for granting and withdrawing ð international protection status by virtue of Directive […/…/EU] [the Qualification Directive] ï refugee status.

Article 2

Definitions

For the purposes of this Directive:

(a)          "Geneva Convention" means the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;

(b)          "application" or "application for asylum" means an application made by a third country national or stateless person which can be understood as a request for international protection from a Member State under the Geneva Convention. Any application for international protection is presumed to be an application for asylum, unless the person concerned explicitly requests another kind of protection that can be applied for separately;

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(b)          "application" or "application for international protection" means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection outside the scope of Directive […/…/EU] [the Qualification Directive], that can be applied for separately;

ê 2005/85/EC

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(c)          "applicant" or "applicant for ð international protection ï asylum" means a third country national or stateless person who has made an application for ð international protection ï asylum in respect of which a final decision has not yet been taken;

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(d)          "applicant in need of special procedural guarantees" means an applicant who due to age, gender, sexual orientation, gender identity, disability, serious physical illness, mental illness, post traumatic disorders or consequences of torture, rape or other serious forms of psychological, physical or sexual violence is in need of special guarantees in order to benefit from the rights and comply with the obligations provided for in this Directive;

ê 2005/85/EC

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(e d)       "final decision" means a decision on whether the third country national or stateless person be granted refugee ð or subsidiary protection ï status by virtue of Directive […/…/EU] [the Qualification Directive] 2004/83/EC and which is no longer subject to a remedy within the framework of Chapter V of this Directive irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome, subject to Annex III of this Directive;

(f e)        "determining authority" means any quasi‑judicial or administrative body in a Member State responsible for examining applications for ð international protection ï asylum competent to take decisions at first instance in such cases, subject to Annex I;

(g f)        "refugee" means a third country national or a stateless person who fulfils the requirements of Article 2(d) of Directive […/…/EU] [the Qualification Directive] 1 of the Geneva Convention as set out in Directive 2004/83/EC;

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(h)          "person eligible for subsidiary protection" means a third country national or a stateless person who fulfils the requirements of Article 2(f) of Directive […/…/EU] [the Qualification Directive];

(i)           "international protection status" means the recognition by a Member State of a third country national or a stateless person as a refugee or a person eligible for subsidiary protection;

ê 2005/85/EC (adapted)

(j g)        "refugee status" means the recognition by a Member State of a third country national or Ö a Õ stateless person as a refugee;

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(k)          "subsidiary protection status" means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection;

(l)           "minor" means a third country national or a stateless person below the age of 18 years;

ê 2005/85/EC (adapted)

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(m h)      "unaccompanied minor" means ð a minor as defined in Article 2(l) of Directive […/…/EU] [the Qualification Directive] ï a person below the age of eighteen who arrives in the territory of the Member States unaccompanied by an adult responsible for him/her whether by law or by custom, and for as long as he/she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he/she has entered the territory of the Member States;

(n i)        "representative" means a ð person or an organisation appointed by the competent bodies to act as a legal guardian in order to assist and represent an unaccompanied minor in procedures provided for in this Directive with a view to ensuring the child's best interests and exercising legal capacity for the minor where necessary. Where an organisation acts as a representative, it shall appoint a person responsible for carrying out the duties of the legal guardian in respect of the minor, in accordance with this Directive ï person acting on behalf of an organisation representing an unaccompanied minor as legal guardian, a person acting on behalf of a national organisation which is responsible for the care and well‑being of minors, or any other appropriate representation appointed to ensure his/her best interests;

(o j)        "withdrawal of ð international protection ï refugee status" means the decision by a competent authority to revoke, end or refuse to renew the refugee ð or subsidiary protection ï status of a person in accordance with Directive […/…/EU] [the Qualification Directive] 2004/83/EC;

(p k)       "remain in the Member State" means to remain in the territory, including at the border or in transit zones, of the Member State in which the application for ð international protection ï asylum has been made or is being examined;.

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(q)          "subsequent application" means a further application made after a final decision has been taken on a previous application, including cases where the applicant has explicitly withdrawn his/her application and cases where the determining authority has rejected an application following its implicit withdrawal in accordance with Article 28(1).

ê 2005/85/EC (adapted)

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Article 3

Scope

1.           This Directive shall apply to all applications for ð international protection ï asylum made in the territory, including at the border ð , in the territorial waters ï or in the transit zones of the Member States, and to the withdrawal of ð international protection ï refugee status.

2.           This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States.

3.           Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout their procedure.

3. 4.       Moreover, Member States may decide to apply this Directive in procedures for deciding on applications for any kind of international protection ð falling outside of the scope of Directive […/…/EU] [the Qualification Directive] ï.

Article 4

Responsible authorities

1.           Member States shall designate for all procedures a determining authority which will be responsible for an appropriate examination of the applications in accordance with this Directive, in particular Articles 8(2) and 9. ð Member States shall ensure that that authority is provided with appropriate means, including sufficient competent personnel, to carry out its tasks in accordance with this Directive. ï

In accordance with Article 4(4) of Regulation (EC) No 343/2003, applications for asylum made in a Member State to the authorities of another Member State carrying out immigration controls there shall be dealt with by the Member State in whose territory the application is made.

2.           However, Member States may provide that Ö an Õ another authority Ö other than that referred to in paragraph 1 Õ is responsible for the purposes of:

(a)     ð processing cases pursuant to Regulation (EU) No […/…] [the Dublin Regulation], and ï processing cases in which it is considered to transfer the applicant to another State according to the rules establishing criteria and mechanisms for determining which State is responsible for considering an application for asylum, until the transfer takes place or the requested State has refused to take charge of or take back the applicant;

(b)     taking a decision on the application in the light of national security provisions, provided the determining authority is consulted prior to this decision as to whether the applicant qualifies as a refugee by virtue of Directive 2004/83/EC;

(c)     conducting a preliminary examination pursuant to Article 32, provided this authority has access to the applicant's file regarding the previous application;

(d)     processing cases in the framework of the procedures provided for in Article 35(1);

(b e)  ð granting or ï refusing permission to enter in the framework of the procedure provided for in Article ð 43 ï 35(2) to (5), subject to the conditions and as set out therein ð and on the basis of the opinion of the determining authority. ï ;

(f)      establishing that an applicant is seeking to enter or has entered into the Member State from a safe third country pursuant to Article 36, subject to the conditions and as set out in that Article.

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3.           Member States shall ensure that the personnel of the determining authority are properly trained. To that end, Member States shall provide for initial and, where relevant, follow-up training which shall include the elements listed in Article 6(4) (a) to (e) of Regulation (EU) No 439/2010. Member States shall also take into account the training established and developed by the European Asylum Support Office.

ê 2005/85/EC (adapted)

4. 3.       Where Ö an authority is Õ authorities are designated in accordance with paragraph 2, Member States shall ensure that the personnel of Ö that authority Õ such authorities have the appropriate knowledge or receive the necessary training to fulfil their obligations when implementing this Directive.

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5.           Applications for international protection made in a Member State to the authorities of another Member State carrying out border or immigration controls there shall be dealt with by the Member State in whose territory the application is made.

ê 2005/85/EC

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Article 5

More favourable provisions

Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing ð international protection ï refugee status, insofar as those standards are compatible with this Directive.

CHAPTER II

Basic principles and guarantees

Article 6

Access to the procedure

1.           Member States may require that applications for ð international protection ï asylum be ð lodged ï made in person and/or at a designated place ð, without prejudice to paragraphs 2, 3, and 4 ï.

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2.           Member States shall ensure that a person who wishes to make an application for international protection has an effective opportunity to lodge the application as soon as possible.

3.           When a person declares his/her wish to make an application for international protection, Member States shall ensure that the fact that that person is an applicant is registered as soon as possible and no later than 72 hours after such declaration.

To that end, Member States shall ensure that the personnel of authorities likely to receive such declarations has relevant instructions and receives the necessary training.

In the implementation of this paragraph, Member States shall take into account relevant guidelines developed by the European Asylum Support Office.

4.           Where a large number of third country nationals or stateless persons simultaneously request international protection, which makes it impossible in practice to respect the 72-hour time limit laid down in paragraph 3, Member States may provide for that time limit to be extended to 7 working days.

ê 2005/85/EC (adapted)

2.           Member States shall ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf.

3.           Member States may provide that an application may be made by an applicant on behalf of his/her dependants. In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf.

Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with the dependant adult is conducted.

4.           Member States may determine in national legislation

(a)     the cases in which a minor can make an application on his/her own behalf;

(b)     the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 17(1)(a);

(c)     the cases in which the lodging of an application for asylum is deemed to constitute also the lodging of an application for asylum for any unmarried minor.

5.           Member States shall ensure that authorities likely to be addressed by someone who wishes to make an application for asylum are able to advise that person how and where he/she may make such an application and/or may require these authorities to forward the application to the competent authority.

ê 2005/85/EC article 6

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Article 7

Applications made on behalf of dependants or minors

1. 2.       Member States shall ensure that each adult having legal capacity has the right to make an application for ð international protection ï asylum on his/her own behalf.

2. 3.       Member States may provide that an application may be made by an applicant on behalf of his/her dependants. In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf.

Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with the dependant adult is conducted. ð Before consent is requested, each adult among these persons shall be informed in private of relevant procedural consequences and of his or her right to make a separate application for international protection. ï

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3.           Member States shall ensure that a minor has the right to make an application for international protection either on his/her own behalf, if he/she has the legal capacity to act in procedures according to the national law of the Member State concerned, or through his/her parents or other adult family members, or an adult responsible for him/her, whether by law or by national practice of the Member State concerned, or a representative.

4.           Member States shall ensure that the appropriate bodies referred to in Article 10 of Directive 2008/115/EC of the European Parliament and of the Council[10] have the right to lodge an application for international protection on behalf of an unaccompanied minor if, on the basis of an individual assessment of his/her personal situation, those bodies are of the opinion that the minor may have protection needs pursuant to Directive […/…/EU] [the Qualification Directive].

ê 2005/85/EC article 6

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5. 4.       Member States may determine in national legislation:

(a)     the cases in which a minor can make an application on his/her own behalf;

(b)     the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 25 17 (1)(a);

(c)     the cases in which the lodging of an application for ð international protection ï asylum is deemed to constitute also the lodging of an application for ð international protection ï asylum for any unmarried minor.

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Article 8

Information and counselling at border crossing points and in detention facilities

1. Member States shall ensure that information on the possibility to request international protection is available in detention facilities and at border crossing points, including transit zones, at external borders. Member States shall provide interpretation arrangements to the extent necessary to facilitate access to procedure in these areas.

2.           Member States shall ensure that organisations providing advice and counselling to applicants for international protection have access to the border crossing points, including transit zones, at external borders. Member States may provide for rules covering the presence of such organizations in these areas and that such access is subject to an agreement with the competent authorities of the Member State.

ê 2005/85/EC

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Article 9 7

Right to remain in the Member State pending the examination of the application

1.           Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit.

2.           Member States can make an exception only where , in accordance with Articles 32 and 34, ð a person makes ï a subsequent application ð referred to in Article 41ï will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant[11] or otherwise, or to a third country, ð with the exception of the country of origin of the applicant concerned, ï or to international criminal courts or tribunals.

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3.           A Member State may extradite an applicant to a third country pursuant to paragraph 2 only where the competent authorities are satisfied that an extradition decision will not result in direct or indirect refoulement in violation of international obligations of the Member State.

ê 2005/85/EC

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Article 10 8

Requirements for the examination of applications

1.           Without prejudice to Article 23(4)(i), Member States shall ensure that applications for ð international protection ï asylum are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible.

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2.           When examining applications for international protection, the determining authority shall first determine whether the applicants qualify as refugees and, if not, determine whether the applicants are eligible for subsidiary protection.

ê 2005/85/EC

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3. 2.       Member States shall ensure that decisions by the determining authority on applications for ð international protection ï asylum are taken after an appropriate examination. To that end, Member States shall ensure that:

(a)     applications are examined and decisions are taken individually, objectively and impartially;

(b)     precise and up‑to‑date information is obtained from various sources, such as the ð European Asylum Support Office and the ï United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;

(c)     the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law; .

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(d)     the personnel examining applications and taking decisions are instructed and have the possibility to seek advice, whenever necessary, from experts on particular issues, such as medical, cultural, religious, child-related or gender issues.

ê 2005/85/EC (adapted)

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4. 3.       The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 3 2(b), necessary for the fulfilment of their task.

5. 4.       Member States ð shall ï may provide for rules concerning the translation of documents relevant for the examination of applications.

Article 11 9

Requirements for a decision by the determining authority

1.           Member States shall ensure that decisions on applications for ð international protection ï asylum are given in writing.

2.           Member States shall also ensure that, where an application is rejected ð with regard to refugee status and/or subsidiary protection status ï, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing.

Member States need not state the reasons for not granting refugee status in a decision where the applicant is granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC. In these cases, Member States shall ensure that the reasons for not granting refugee status are stated in the applicant's file and that the applicant has, upon request, access to his/her file.

Moreover, Member States need not provide information on how to challenge a negative decision in writing in conjunction with a decision where the applicant has been provided with this information at an earlier stage either in writing or by electronic means accessible to the applicant.

3.           For the purposes of Article 7(2) 6(3), and whenever the application is based on the same grounds, Member States may take one single decision, covering all dependants ð , unless this would lead to the disclosure of particular circumstances of an applicant which could jeopardize his/her interests, in particular in cases involving gender, sexual orientation, gender identity and/or age based persecution ï.

Article 12 10

Guarantees for applicants for ð international protection ï asylum

1.           With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for ð international protection ï asylum enjoy the following guarantees:

(a)     they shall be informed in a language which they ð understand or ï Ö are Õ may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time‑frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive […/…/EU] [the Qualification Directive] 2004/83/EC ð , as well as of the consequences of an explicit or implicit withdrawal of the application ï. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 13 11;

(b)     they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to give these services at least when the determining authority calls upon the applicant Ö is Õ to be interviewed as referred to in Articles 14, 15, 12 and 13 ð 16, 17 and 34 ï and appropriate communication cannot be ensured without such services. In this case and in other cases where the competent authorities call upon the applicant, these services shall be paid for out of public funds;

(c)     they shall not be denied the opportunity to communicate with the UNHCR or with any other organisation ð providing legal advice or counselling to applicants for international protection in accordance with the national law of ï working on behalf of the UNHCR in the territory of the Member State pursuant to an agreement with that Member State;

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(d)     they and, if applicable, their legal advisers shall not be denied access to the information referred to in Article 10(3)(b), where the determining authority takes that information into consideration for the purpose of taking a decision on their application;

ê 2005/85/EC (adapted)

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(e d)  they shall be given notice in reasonable time of the decision by the determining authority on their application for ð international protection ï asylum. If a legal adviser or other counsellor is legally representing the applicant, Member States may choose to give notice of the decision to him/her instead of to the applicant for ð international protection ï asylum;

(f e)   they shall be informed of the result of the decision by the determining authority in a language that they ð understand or ï Ö are Õ may reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other counsellor and when free legal assistance is not available. The information provided shall include information on how to challenge a negative decision in accordance with the provisions of Article 11(2) 9(2).

2.           With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants for asylum enjoy equivalent guarantees to the ones referred to in paragraph 1(b), (c) ð , (d) ï and (e d) of this Article.

Article 13 11

Obligations of the applicants for ð international protection ï asylum

1.           ð Member States shall impose upon applicants for international protection the obligation to cooperate with the competent authorities with a view to establishing their identity and other elements referred to in Article 4(2) of Directive […/…/EU] [the Qualification Directive]. ï Member States may impose upon applicants for asylum ð other ï obligations to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application.

2.           In particular, Member States may provide that:

(a)     applicants for asylum are required to report to the competent authorities or to appear before them in person, either without delay or at a specified time;

(b)     applicants for asylum have to hand over documents in their possession relevant to the examination of the application, such as their passports;

(c)     applicants for asylum are required to inform the competent authorities of their current place of residence or address and of any changes thereof as soon as possible. Member States may provide that the applicant shall have to accept any communication at the most recent place of residence or address which he/she indicated accordingly;

(d)     the competent authorities may search the applicant and the items he/she carries with him/her ð , provided the search is carried out by a person of the same sex ï ;

(e)     the competent authorities may take a photograph of the applicant; and

(f)      the competent authorities may record the applicant's oral statements, provided he/she has previously been informed thereof.

Article 14 12

Personal interview

1.           Before a decision is taken by the determining authority, the applicant for asylum shall be given the opportunity of a personal interview on his/her application for ð international protection ï asylum with a person competent under national law to conduct such an interview. ð Interviews on the substance of the application for international protection shall be conducted by the personnel of the determining authority. ï

Member States may also give the opportunity of a personal interview to each dependant adult referred to in Article 6(3).

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Where a large number of third country nationals or stateless persons simultaneously request international protection, which makes it impossible in practice for the determining authority to conduct timely interviews on the substance of an application, Member States may provide that the personnel of another authority be temporarily involved in conducting such interviews. In such cases, the personnel of that authority shall receive in advance the necessary training which shall include the elements listed in Article 6(4)(a) to (e) of Regulation (EU) No 439/2010 and in Article 18(5) of this Directive.

Where a person has made an application for international protection on behalf of his/her dependants, each adult concerned shall be given the opportunity of a personal interview.

ê 2005/85/EC (adapted)

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Member States may determine in national legislation the cases in which a minor shall be given the opportunity of a personal interview.

2.           The personal interview on the substance of the application may be omitted where:

(a)     the determining authority is able to take a positive decision ð with regard to refugee status ï on the basis of evidence available; or

(b)     the competent authority has already had a meeting with the applicant for the purpose of assisting him/her with completing his/her application and submitting the essential information regarding the application, in terms of Article 4(2) of Directive 2004/83/EC; or

(c)     the determining authority, on the basis of a complete examination of information provided by the applicant, considers the application to be unfounded in cases where the circumstances mentioned in Article 23(4)(a), (c), (g), (h) and (j) apply.

3.      The personal interview may also be omitted where

(b)     it is not reasonably practicable, in particular where the ð determining ï competent authority is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his/her control. When in doubt, ð the determining authority shall consult a medical expert to establish whether the condition that makes the applicant unfit or unable to be interviewed is temporary or permanent ï Member States may require a medical or psychological certificate.

Where Ö a personal interview is not conducted Õ the Member State does not provide the applicant with the opportunity for a personal interview pursuant to point (b) this paragraph, or where applicable, Ö with Õ to the dependant, reasonable efforts shall be made to allow the applicant or the dependant to submit further information.

3. 4.       The absence of a personal interview in accordance with this Article shall not prevent the determining authority from taking a decision on an application for ð international protection ï asylum.

4. 5..      The absence of a personal interview pursuant to paragraph 2(b) and (c) and paragraph 3 shall not adversely affect the decision of the determining authority.

5. 6.       Irrespective of Article 28(1) 20(1), Member States, when deciding on the application for ð international protection ï asylum, may take into account the fact that the applicant failed to appear for the personal interview, unless he/she had good reasons for the failure to appear.

Article 15 13

Requirements for a personal interview

1.           A personal interview shall normally take place without the presence of family members unless the determining authority considers it necessary for an appropriate examination to have other family members present.

2.           A personal interview shall take place under conditions which ensure appropriate confidentiality.

3.           Member States shall take appropriate steps to ensure that personal interviews are conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner. To that end, Member States shall:

(a)     ensure that the person who conducts the interview is sufficiently competent to take account of the personal ð and ï or general circumstances surrounding the application, including the applicant's cultural origin ð , gender, sexual orientation, gender identity ï or vulnerability ð within the meaning of Article 22 of Directive […/…/EU] [the Reception Conditions Directive] ï , insofar as it is possible to do so; and

ò new

(b)     wherever possible, provide for the interview with the applicant to be conducted by a person of the same sex if the applicant concerned so requests;

ê 2005/85/EC (adapted)

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(c b)  select an ð competent ï interpreter who is able to ensure appropriate communication between the applicant and the person who conducts the interview. The communication Ö shall Õ need not necessarily take place in the language preferred by the applicant for asylum Ö unless Õ if there is another language which he/she may reasonably be supposed to understands and in which he/she is able to communicate ð clearly ï. ð Wherever possible, Member States shall provide an interpreter of the same sex if the applicant so requests ï;

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(d)     ensure that the person who conducts an interview on the substance of an application for international protection does not wear a military or law enforcement uniform;

(e)     ensure that interviews with minors are conducted in a child appropriate manner.

ê 2005/85/EC

4.           Member States may provide for rules concerning the presence of third parties at a personal interview.

5.           This Article is also applicable to the meeting referred to in Article 12(2)(b).

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Article 16

Content of a personal interview

When conducting a personal interview on the substance of an application for international protection, the determining authority shall ensure that the applicant is given an adequate opportunity to present elements needed to substantiate the application in accordance with Article 4 of Directive […/…/EU] [the Qualification Directive] as completely as possible. This shall include the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in his/her statements.

ê 2005/85/EC

Article 14

Status of the report of a personal interview in the procedure

1.           Member States shall ensure that a written report is made of every personal interview, containing at least the essential information regarding the application, as presented by the applicant, in terms of Article 4(2) of Directive 2004/83/EC.

2.           Member States shall ensure that applicants have timely access to the report of the personal interview. Where access is only granted after the decision of the determining authority, Member States shall ensure that access is possible as soon as necessary for allowing an appeal to be prepared and lodged in due time.

3.           Member States may request the applicant's approval of the contents of the report of the personal interview.

Where an applicant refuses to approve the contents of the report, the reasons for this refusal shall be entered into the applicant's file.

The refusal of an applicant to approve the contents of the report shall not prevent the determining authority from taking a decision on his/her application.

4.           This Article is also applicable to the meeting referred to in Article 12(2)(b).

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Article 17

Report and recording of personal interviews

1.           Member States shall ensure that a thorough report containing all substantial elements is made of every personal interview.

2.           Member States may provide for audio or audio-visual recording of the personal interview. In this case, Member States shall ensure that the recording of the personal interview is annexed to the report.

3.           Member States shall ensure that the applicant has the opportunity to make comments and/or provide clarifications with regard to any mistranslations or misconceptions appearing in the report, at the end of the personal interview or within a specified time limit before the determining authority takes a decision. To that end, Member States shall ensure that the applicant is fully informed of the content of the report, with the assistance of an interpreter if necessary. Member States shall then request the approval of the applicant on the content of the report.

Member States need not request the applicant's approval on the content of the report if the interview is recorded in accordance with paragraph 2 and if the recording is admissible as evidence in procedures referred to in Chapter V.

4.           Where an applicant refuses to approve the content of the report, the reasons for this refusal shall be entered into the applicant's file.

The refusal of an applicant to approve the content of the report shall not prevent the determining authority from taking a decision on the application.

5.           Applicants shall not be denied access to the report and, where applicable, the recording, before the determining authority takes a decision.

Article 18

Medical reports

1.           Member States shall allow an applicant to have a medical examination carried out in order to submit a medical certificate to the determining authority in support of his/her statements regarding past persecution or serious harm. Member States may require the applicant to submit the results of the medical examination to the determining authority within a reasonable time limit after he/she has been informed about his/her rights pursuant to this Article. If the applicant fails to submit the results of the medical examination within that time limit without good reasons, it shall not prevent the determining authority from taking a decision on the application for international protection.

2.           Without prejudice to paragraph 1, in cases where the determining authority considers that there is reason to believe that the applicant's ability to be interviewed and/or to give accurate and coherent statements does not exist or is limited as a results of post-traumatic stress disorder, past persecution or serious harm, it shall ensure that a medical examination is carried out with the applicant's consent. The applicant's refusal to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for international protection.

3.           Member States shall provide for relevant arrangements in order to ensure that impartial and qualified medical expertise is made available for the purpose of medical examinations referred to in paragraph 2.

4.           Member States shall provide for further rules and arrangements for identification and documentation of symptoms of torture and other forms of physical, sexual or psychological violence, relevant to the application of this Article.

5.           Member States shall ensure that the persons interviewing applicants pursuant to this Directive receive training with regard to the awareness of symptoms of torture and of medical problems which could adversely affect the applicant's ability to be interviewed.

6.           The results of medical examinations referred to in paragraphs 1 and 2 shall be assessed by the determining authority along with other elements of the application.

Article 19

Provision of legal and procedural information free of charge in procedures at first instance

1.           Member States shall ensure that legal and procedural information is provided free of charge to applicants, on request, in procedures at first instance provided for in Chapter III. This shall include, at least, the provision of information on the procedure in the light of the applicant's particular circumstances and explanations of reasons in fact and in law in the event of a negative decision.

2.           The provision of legal and procedural information free of charge shall be subject to the conditions laid down in Article 21.

Article 20

Free legal assistance and representation in appeals procedures

ê 2005/85/EC article 15(2)

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1.           In the event of a negative decision by the determining authority, Member States shall ensure that free legal assistance and/or representation is granted on request subject to the provisions of paragraph 3 ð in appeals procedures provided for in Chapter V. This shall include, at least, the preparation of the required procedural documents and participation in the hearing before the court or tribunal of first instance on behalf of the applicant. ï

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2.           Member States may also provide free legal assistance and/or representation in procedures at first instance provided for in Chapter III. In such cases, Article 19 shall not apply.

3.           Member States may provide that free legal assistance and representation not be granted if the applicant's appeal is considered by a court or tribunal to have no tangible prospect of success.

In such a case, Member States shall ensure that legal assistance and representation is not arbitrarily restricted and that the applicant's effective access to justice is not hindered.

4.           Free legal assistance and representation shall be subject to the conditions laid down in Article 21.

Article 21

Conditions for the provision of legal and procedural information free of charge and free legal assistance and representation

1.           Member States may provide that the legal and procedural information referred to in Article 19 and the legal assistance and representation referred to in Article 20 are provided by non-governmental organisations, government officials, or specialised services of the State.

ê 2005/85/EC article 15 (adapted)

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1.           Member States shall allow applicants for asylum the opportunity, at their own cost, to consult in an effective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their asylum applications.

2. 3.       Member States may provide in their national legislation that ð the provision of legal and procedural information free of charge referred to in Article 19 and ï free legal assistance and/or representation Ö referred to in Article 20 Õ Ö are Õ is granted:

(a)     only for procedures before a court or tribunal in accordance with Chapter V and not for any onward appeals or reviews provided for under national law, including a rehearing of an appeal following an onward appeal or review; and/or

(a b)  only to those who lack sufficient resources; and/or

(b c)  only Ö through the services provided by Õ to legal advisers or other counsellors specifically designated by national law to assist and/or represent applicants for ð international protection ï asylum. and/or

(d)     only if the appeal or review is likely to succeed.

Member States shall ensure that legal assistance and/or representation granted under point (d) is not arbitrarily restricted.

3. 4.       Rules concerning the modalities for filing and processing requests for ð legal and procedural information under Article 19 and ï legal assistance and/or representation Ö under Article 20 Õ may be provided by Member States.

4. 5.       Member States may also:

(a)     impose monetary and/or time limits on the ð provision of legal and procedural information free of charge referred to in Article 19 and the ï provision of free legal assistance and/or representation Ö referred to in Article 20 Õ , provided that such limits do not arbitrarily restrict access to ð the provision of legal and procedural information and ï legal assistance and/or representation;

(b)     provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.

5. 6.       Member States may demand to be reimbursed wholly or partially for any expenses granted if and when the applicant's financial situation has improved considerably or if the decision to grant such benefits was taken on the basis of false information supplied by the applicant.

ê 2005/85/EC article 15(1) (adapted)

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Article 22

Right to legal assistance and representation at all stages of the procedure

1.           Member States shall allow Applicants applicants for asylum Ö shall be given Õ the opportunity, at their own cost, to consult Ö, at their own cost, Õ in an effective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their asylum applications ð for international protection, at all stages of the procedure, including following a negative decision ï .

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2.           Member States may allow non-governmental organisations to provide legal assistance and/or representation to applicants for international protection in procedures provided for in Chapter III and Chapter V.

ê 2005/85/EC (adapted)

ð new

Article 23 16

Scope of legal assistance and representation

1.           Member States shall ensure that a legal adviser or other counsellor admitted or permitted as such under national law, and who assists or represents an applicant for ð international protection ï asylum under the terms of national law, shall enjoy access to Ö the Õ such information in the applicant's file ð upon which a decision is or will be made ï as is liable to be examined by the authorities referred to in Chapter V, insofar as the information is relevant to the examination of the application.

Member States may make an exception where disclosure of information or sources would jeopardise national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for of ð international protection ï asylum by the competent authorities of the Member States or the international relations of the Member States would be compromised. In these cases, Ö Member States shall: Õ

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(a)     grant access to the information or sources in question to a legal adviser or counsellor who has undergone a security check or, at least, to specialised services of the State that are allowed under national law to represent the applicant for this specific purpose, insofar as the information is relevant to the examination of the application or taking a decision to withdraw international protection;

ê 2005/85/EC (adapted)

ð new

(b)     Ö make Õ access to the information or sources in question shall be available to the authorities referred to in Chapter V, except where such access is precluded in cases of national security.

2.           Member States shall ensure that the legal adviser or other counsellor who assists or represents an applicant for asylum has access to closed areas, such as detention facilities and transit zones, for the purpose of consulting that applicant ð , in accordance with Article 10(4) and Article 18(2)(b) and (c) of Directive […/…/EU] [the Reception Conditions Directive] ï. Member States may only limit the possibility of visiting applicants in closed areas where such limitation is, by virtue of national legislation, objectively necessary for the security, public order or administrative management of the area, or in order to ensure an efficient examination of the application, provided that access by the legal adviser or other counsellor is not thereby severely limited or rendered impossible.

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3.           Member States shall allow the applicant to bring to the personal interview a legal adviser or other counsellor admitted or permitted as such under national law.

ê 2005/85/EC

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4. 3.       Member States may provide rules covering the presence of legal advisers or other counsellors at all interviews in the procedure, without prejudice to this Article or to Article 25(1)(b) 17(1)(b).

4.           Member States may provide that the applicant is allowed to bring with him/her to the personal interview a legal adviser or other counsellor admitted or permitted as such under national law.

Member States may require the presence of the applicant at the personal interview, even if he/she is represented under the terms of national law by such a legal adviser or counsellor, and may require the applicant to respond in person to the questions asked.

The absence of a legal adviser or other counsellor shall not prevent the competent authority from conducting the personal interview with the applicant ð , without prejudice to Article 25(1)(b) ï.

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Article 24

Applicants in need of special procedural guarantees

1. Member States shall ensure that applicants in need of special procedural guarantees are identified in due time. To that end, Member States may use the mechanism provided for in Article 22 of Directive […/…/EU] [the Reception Conditions Directive].

Member States shall ensure that this Article also applies if it becomes apparent at a later stage in the procedure that an applicant is in need of special procedural guarantees.

2. Member States shall take appropriate measures to ensure that applicants in need of special procedural guarantees are granted sufficient time and relevant support to present the elements of their application as completely as possible and with all available evidence.

In cases where the determining authority considers that an applicant has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, Article 31(6) and Article 32(2) shall not apply.

ê 2005/85/EC (adapted)

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Article 25 17

Guarantees for unaccompanied minors

1.           With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 14 ð , 15, 16, ï and 17 12 and 14, Member States shall:

(a)     Ö take measures Õ as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor ð to enable him/her to benefit from the rights and comply with the obligations provided for in this Directive ï with respect to the examination of the application. ð The representative shall have the necessary expertise in the field of childcare and shall perform his/her duties in accordance with the principle of the best interests of the child. ï Ö The Õ This representative can also be the representative referred to in Directive […/…/EU] [the Reception Conditions Directive] Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers[12];

(b)     ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for the personal interview. Member States shall ð ensure that ï allow Ö a Õ the representative ð and/or a legal adviser or other counsellor admitted as such under national law are ï to be present at that interview and ð have an opportunity ï to ask questions or make comments, within the framework set by the person who conducts the interview.

Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present.

2.           Member States may refrain from appointing a representative where the unaccompanied minor:

(a)     will in all likelihood reach the age of ð 18 years ï maturity before a decision at first instance is taken; or

(b)     can avail himself, free of charge, of a legal adviser or other counsellor, admitted as such under national law to fulfil the tasks assigned above to the representative; or

(c)     is married or has been married.

3.           Member States may, in accordance with the laws and regulations in force on 1 December 2005, also refrain from appointing a representative where the unaccompanied minor is 16 years old or older, unless he/she is unable to pursue his/her application without a representative.

3. 4.       Member States shall ensure that:

(a)     if an unaccompanied minor has a personal interview on his/her application for ð international protection ï asylum as referred to in Articles 14, 15, ð 16, ï 17, and ð 34 ï 12, 13 and 14, that interview is conducted by a person who has the necessary knowledge of the special needs of minors;

(b)     an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor.

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4.           Unaccompanied minors, together with the representative, shall be provided, free of charge, with legal and procedural information as referred to in Article 19 also for the procedures for the withdrawal of international protection status provided for in Chapter IV.

ê 2005/85/EC

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5.           Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for ð international protection ï asylum ð where, following general statements or other relevant evidence, Member States still have doubts concerning the applicant's age. If those doubts persist after the medical examination, Member States shall assume that the applicant is a minor ï.

ò new

Any medical examination shall be performed in full respect of the individual's dignity, selecting the less invasive examinations.

ê 2005/85/EC (adapted)

ð new

In cases where medical examinations are used, Member States shall ensure that:

(a)     unaccompanied minors are informed prior to the examination of their application for ð international protection ï asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for ð international protection ï asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination;

(b)     unaccompanied minors and/or their representatives consent to carry out an examination Ö being carried out Õ to determine the age of the minors concerned; and

(c)     the decision to reject an application for ð international protection ï asylum from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal.

The fact that an unaccompanied minor has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for ð international protection ï asylum.

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6.           Article 20(3), Article 31(6), Article 32(2), Article 33(2)(c), Article 38, and Article 43 shall not apply to unaccompanied minors.

ê 2005/85/EC

7. 6.       The best interests of the child shall be a primary consideration for Member States when implementing this Article.

ê 2005/85/EC (adapted)

ð new

Article 26 18

Detention

1.           Member States shall not hold a person in detention for the sole reason that he/she is an applicant for ð international protection ï asylum. ð Grounds and conditions of detention as well as guarantees available to detained applicants for international protection shall be in accordance with Directive […/…/EU] [the Reception Conditions Directive] ï.

2.           Where an applicant for ð international protection ï asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review ð in accordance with Directive […/…/EU] [the Reception Conditions Directive] ï.

Article 27 19

Procedure in Ö the Õ case of withdrawal of the application

1.           Insofar as Member States provide for the possibility of explicit withdrawal of the application under national law, when an applicant for asylum explicitly withdraws his/her application for ð international protection ï asylum, Member States shall ensure that the determining authority takes a decision to either discontinue the examination or reject the application.

2.           Member States may also decide that the determining authority can decide to discontinue the examination without taking a decision. In this case, Member States shall ensure that the determining authority enters a notice in the applicant's file.

Article 28 20

Procedure in the case of implicit withdrawal or abandonment of the application

1.           When there is reasonable cause to consider that an applicant for ð international protection ï asylum has implicitly withdrawn or abandoned his/her application for asylum, Member States shall ensure that the determining authority takes a decision to either discontinue the examination or ð, provided that the determining authority considers the application to be unfounded on the basis of an adequate examination of its substance in line with Article 4 of Directive […/…/EU] [the Qualification Directive] and further to a personal interview, ï reject the application on the basis that the applicant has not established an entitlement to refugee status in accordance with Directive 2004/83/EC.

Member States may assume that the applicant has implicitly withdrawn or abandoned his/her application for ð international protection ï asylum in particular when it is ascertained that:

(a)     he/she has failed to respond to requests to provide information essential to his/her application in terms of Article 4 of Directive […/…/EU] [the Qualification Directive] 2004/83/EC or has not appeared for an personal interview as provided for in Articles 14, 15, ð 16 ï and 17 12, 13 and 14 Ö of this Directive Õ , unless the applicant demonstrates within a reasonable time that his/her failure was due to circumstances beyond his/her control;

(b)     he/she has absconded or left without authorisation the place where he/she lived or was held, without contacting the competent authority within a reasonable time, or he/she has not within a reasonable time complied with reporting duties or other obligations to communicate.

For the purposes of implementing these provisions, Member States may lay down time limits or guidelines.

2.           Member States shall ensure that the applicant who reports again to the competent authority after a decision to discontinue as referred to in paragraph 1 of this Article is taken, is entitled to request that his/her case be reopened ð or entitled to make a new application which shall not be subject to the procedure referred to in Articles 40 and 41 ï , unless the request is examined in accordance with Articles 32 and 34.

Member States may provide for a time limit ð of at least one year ï after which the applicant's case can no longer be re‑opened ð or the new application may be treated as a subsequent application and subject to the procedure referred to in Articles 40 and 41 ï.

Member States shall ensure that such a person is not removed contrary to the principle of non‑refoulement.

Member States may allow the determining authority to take up the examination at the stage where the it was discontinued.

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3.           This Article shall be without prejudice to Regulation (EU) No […/…] [the Dublin Regulation].

ê 2005/85/EC (adapted)

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Article 29 21

The role of UNHCR

1.           Member States shall allow the UNHCR:

(a)     to have access to applicants for ð international protection ï asylum, including those in detention ð , at the border and ï Ö in the Õ and in airport or port transit zones;

(b)     to have access to information on individual applications for ð international protection ï asylum, on the course of the procedure and on the decisions taken, provided that the applicant for asylum agrees thereto;

(c)     to present its views, in the exercise of its supervisory responsibilities under Article 35 of the Geneva Convention, to any competent authorities regarding individual applications for ð international protection ï asylum at any stage of the procedure.

2.           Paragraph 1 shall also apply to an organisation which is working in the territory of the Member State concerned on behalf of the UNHCR pursuant to an agreement with that Member State.

Article 30 22

Collection of information on individual cases

For the purposes of examining individual cases, Member States shall not:

(a)          directly disclose information regarding individual applications for ð international protection ï asylum, or the fact that an application has been made, to the alleged actor(s) of persecution ð or serious harm ï of the applicant for asylum;

(b)          obtain any information from the alleged actor(s) of persecution ð or serious harm ï in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.

CHAPTER III

Procedures at first instance

Section I

Article 31 23

Examination procedure

1.           Member States shall process applications for ð international protection ï asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II.

2.           Member States shall ensure that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.

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3.           Member States shall ensure that a procedure is concluded within six months after the application is lodged.

Member States may extend that time limit for a period not exceeding a further six months, where:

(a)     complex issues of fact and law are involved;

(b)     a large number of third country nationals or stateless persons simultaneously request international protection which makes it impossible in practice to conclude the procedure within the six-month time-limit;

(c)     where the delay can clearly be attributed to the failure of the applicant to comply with his/her obligations under Article 13.

Member States may postpone concluding the procedure where the determining authority cannot reasonably be expected to decide within the time limits laid down in this paragraph due to an uncertain situation in the country of origin which is expected to be temporary.

ê 2005/85/EC

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4.           Member States shall ensure that, where a decision cannot be taken within six months, the applicant concerned shall either:

(a)     be informed of the delay; ð and ï or

(b)     receive, upon his/her request, information on the ð reasons for the delay and the ï time‑frame within which the decision on his/her application is to be expected. Such information shall not constitute an obligation for the Member State towards the applicant concerned to take a decision within that time‑frame.

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The consequences of failure to adopt a decision within the time limits laid down in paragraph 3 shall be determined in accordance with national law.

ê 2005/85/EC

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5. 3.       Member States may prioritise or accelerate any an examination ð of an application for international protection ï in accordance with the basic principles and guarantees of Chapter II, including where the application is likely to be well founded or where the applicant has special needs:

ò new

(a)     where the application is likely to be well founded;

(b)     where the applicant is vulnerable within the meaning of Article 22 of Directive […/…/EU] [the Reception Conditions Directive], or is in need of special procedural guarantees, in particular unaccompanied minors;

(c)     in other cases with the exception of applications referred to in paragraph 6.

ê 2005/85/EC (adapted)

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6. 4.       Member States may also provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be prioritised or accelerated ð and/or conducted at the border in accordance with Article 43 ï if:

(a)     the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee ð or a person eligible for subsidiary protection ï by virtue of Directive […/…/EU] [the Qualification Directive] 2004/83/EC; or

(b)     the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or

(c)     the application for asylum is considered to be unfounded:

(b i)   because the applicant is from a safe country of origin within the meaning of this Directive Articles 29, 30 and 31, or

(ii)      because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1); or

(c d)  the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or

(e)     the applicant has filed another application for asylum stating other personal data; or

(d f)   the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, Ö the applicant Õ he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or

(e g)  the applicant has made inconsistent, contradictory, ð clearly false or obviously ï improbable or insufficient representations ð which contradict sufficiently verified country-of-origin information, ï Ö thus making Õ which make his/her claim clearly unconvincing in relation to ð whether he/she qualifies as a refugee or a person eligible for subsidiary protection by virtue of ï his/her having being the object of persecution referred to in Directive […/…/EU] [the Qualification Directive] Directive 2004/83/EC; or

(h)     the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or

(i)      the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or

(f j)    the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or

(k)     the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles11(2)(a) and (b) and 20(1) of this Directive; or

(l)      the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or

(g m) the applicant ð may for serious reasons be considered ï is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security Ö or Õ and public order under national law.; or

(n)     the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or

(o)     the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin.

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7.           Member States shall lay down reasonable time limits for the adoption of a decision in the procedure at first instance pursuant to paragraph 6 which ensure adequate and complete examination.

8.           The fact that an application for international protection was submitted after an irregular entry into the territory or at the border, including in transit zones, as well as the lack of documents or use of forged documents, shall not per se entail an automatic recourse to the procedure at first instance pursuant to paragraph 6.

ê 2005/85/EC

Article 24

Specific procedures

1.           Member States may provide for the following specific procedures derogating from the basic principles and guarantees of Chapter II:

(a)     a preliminary examination for the purposes of processing cases considered within the framework set out in Section IV;

(b)     procedures for the purposes of processing cases considered within the framework set out in Section V.

2.           Member States may also provide a derogation in respect of Section VI.

ê 2005/85/EC article 28

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Article 32

Unfounded applications

1.           Without prejudice to Articles 27 19 and 20, Member States may only consider an application for asylum as unfounded if the determining authority has established that the applicant does not qualify for ð international protection ï refugee status pursuant to Directive […/…/EU] [the Qualification Directive] 2004/83/EC.

2.           In the cases mentioned in Article 23(4)(b) and In in cases of unfounded applications for asylum in which any of the circumstances listed in Article 31(6) ð (a) to (f) ï 23(4)(a) and (c) to (o) apply, Member States may also consider an application as manifestly unfounded, where it is defined as such in the national legislation.

ê 2005/85/EC

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Section II

Article 33 25

Inadmissible applications

1.           In addition to cases in which an application is not examined in accordance with Regulation (EU) No […/…] [the Dublin Regulation] (EC) No 343/2003, Member States are not required to examine whether the applicant qualifies ð for international protection ï as a refugee in accordance with Directive […/…/EU] [the Qualification Directive] 2004/83/EC where an application is considered inadmissible pursuant to this Article.

2.           Member States may consider an application for ð international protection ï asylum as inadmissible ð only ï pursuant to this Article if:

(a)     another Member State has granted refugee status;

(b)     a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 35 26;

(c)     a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 38 27;

(d)     the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC;

(e)     the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d);

(d f)   ð the application is a subsequent application, where no new elements or findings relating to the examination of whether the applicant qualifies as a refugee or a person eligible for subsidiary protection by virtue of Directive […/…/EU] [the Qualification Directive] have arisen or have been presented by the applicant ï the applicant has lodged an identical application after a final decision;

(e g)  a dependant of the applicant lodges an application, after he/she has in accordance with Article 7(2) 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant's situation, which justify a separate application.

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Article 34

Special rules on an admissibility interview

1.           Member States shall allow applicants to present their views with regard to the application of the grounds referred to in Article 33 in their particular circumstances before a decision to consider an application inadmissible is taken. To that end, Member States shall conduct a personal interview on the admissibility of the application. Member States may make an exception only in accordance with Article 42 in the case of a subsequent application.

2.           Paragraph 1 shall be without prejudice to Article 5 of Regulation (EU) No […/…] [the Dublin Regulation].

3.           Member States shall ensure that the person who conducts the interview on the admissibility of the application does not wear a military or law enforcement uniform.

ê 2005/85/EC

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Section III

Article 35 26

The concept of first country of asylum

A country can be considered to be a first country of asylum for a particular applicant for ð international protection ï asylum if:

(a)          he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection, or

(b)          he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non‑refoulement,

provided that he/she will be re‑admitted to that country.

In applying the concept of first country of asylum to the particular circumstances of an applicant for ð international protection ï asylum, Member States may take into account Article 38(1) 27(1). ð The applicant shall be allowed to challenge the application of the first country of asylum concept in his/her particular circumstances. ï

ê 2005/85/EC (adapted)

Article 27

The safe third country concept

1.           Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:

(a)     life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

(b)     the principle of non‑refoulement in accordance with the Geneva Convention is respected;

(c)     the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

(d)     the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

2.           The application of the safe third country concept shall be subject to rules laid down in national legislation, including:

(a)     rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

(b)     rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case‑by‑case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;

(c)     rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

3.           When implementing a decision solely based on this Article, Member States shall:

(a)     inform the applicant accordingly; and

(b)     provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

4.           Where the third country does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.

5.           Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with the provisions of this Article.

Article 28

Unfounded applications

1.           Without prejudice to Articles 19 and 20, Member States may only consider an application for asylum as unfounded if the determining authority has established that the applicant does not qualify for refugee status pursuant to Directive 2004/83/EC.

2.           In the cases mentioned in Article 23(4)(b) and in cases of unfounded applications for asylum in which any of the circumstances listed in Article 23(4)(a) and (c) to (o) apply, Member States may also consider an application as manifestly unfounded, where it is defined as such in the national legislation.

ê 2005/85/EC

Article 29

Minimum common list of third countries regarded as safe countries of origin

1.           The Council shall, acting by a qualified majority on a proposal from the Commission and after consultation of the European Parliament, adopt a minimum common list of third countries which shall be regarded by Member States as safe countries of origin in accordance with Annex II.

2.           The Council may, acting by a qualified majority on a proposal from the Commission and after consultation of the European Parliament, amend the minimum common list by adding or removing third countries, in accordance with Annex II. The Commission shall examine any request made by the Council or by a Member State to submit a proposal to amend the minimum common list.

3.           When making its proposal under paragraphs 1 or 2, the Commission shall make use of information from the Member States, its own information and, where necessary, information from UNHCR, the Council of Europe and other relevant international organisations.

4.           Where the Council requests the Commission to submit a proposal for removing a third country from the minimum common list, the obligation of Member States pursuant to Article 31(2) shall be suspended with regard to this third country as of the day following the Council decision requesting such a submission.

5.           Where a Member State requests the Commission to submit a proposal to the Council for removing a third country from the minimum common list, that Member State shall notify the Council in writing of the request made to the Commission. The obligation of this Member State pursuant to Article 31(2) shall be suspended with regard to the third country as of the day following the notification to the Council.

6.           The European Parliament shall be informed of the suspensions under paragraphs 4 and 5.

7.           The suspensions under paragraphs 4 and 5 shall end after three months, unless the Commission makes a proposal before the end of this period, to withdraw the third country from the minimum common list. The suspensions shall in any case end where the Council rejects a proposal by the Commission to withdraw the third country from the list.

8.           Upon request by the Council, the Commission shall report to the European Parliament and the Council on whether the situation of a country on the minimum common list is still in conformity with Annex II. When presenting its report, the Commission may make such recommendations or proposals as it deems appropriate.

ê 2005/85/EC (adapted)

Article 30

National designation of third countries as safe countries of origin

1.           Without prejudice to Article 29, Member States may retain or introduce legislation that allows, in accordance with Annex II, for the national designation of third countries other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for asylum. This may include designation of part of a country as safe where the conditions in Annex II are fulfilled in relation to that part.

2.           By derogation from paragraph 1, Member States may retain legislation in force on 1 December 2005 that allows for the national designation of third countries, other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for asylum where they are satisfied that persons in the third countries concerned are generally neither subject to:

(a)     persecution as defined in Article 9 of Directive 2004/83/EC; nor

(b)     torture or inhuman or degrading treatment or punishment.

3.           Member States may also retain legislation in force on 1 December 2005 that allows for the national designation of part of a country as safe, or a country or part of a country as safe for a specified group of persons in that country, where the conditions in paragraph 2 are fulfilled in relation to that part or group.

4.           In assessing whether a country is a safe country of origin in accordance with paragraphs 2 and 3, Member States shall have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned.

5.           The assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, the UNHCR, the Council of Europe and other relevant international organisations.

6.           Member States shall notify to the Commission the countries that are designated as safe countries of origin in accordance with this Article.

ê 2005/85/EC (adapted)

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Article 36 31

The safe country of origin concept

1.           A third country designated as a safe country of origin in accordance with Ö this Directive Õ either Article 29 or 30 may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant for asylum only if:

(a)     he/she has the nationality of that country; or

(b)     he/she is a stateless person and was formerly habitually resident in that country;

and he/she has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee ð or a person eligible for subsidiary protection ï in accordance with Directive […/…/EU] [the Qualification Directive] 2004/83/EC.

2.           Member States shall, in accordance with paragraph 1, consider the application for asylum as unfounded where the third country is designated as safe pursuant to Article 29.

2. 3.       Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.

ê 2005/85/EC article 30

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Article 37

National designation of third countries as safe countries of origin

1.           Without prejudice to Article 29, Member States may retain or introduce legislation that allows, in accordance with Annex I II, for the national designation of third countries other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for ð international protection ï asylum. This may include designation of part of a country as safe where the conditions in Annex II are fulfilled in relation to that part.

2.           By derogation from paragraph 1, Member States may retain legislation in force on 1 December 2005 that allows for the national designation of third countries, other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for asylum where they are satisfied that persons in the third countries concerned are generally neither subject to:

(a)     persecution as defined in Article 9 of Directive 2004/83/EC; nor

(b)     torture or inhuman or degrading treatment or punishment.

3.           Member States may also retain legislation in force on 1 December 2005 that allows for the national designation of part of a country as safe, or a country or part of a country as safe for a specified group of persons in that country, where the conditions in paragraph 2 are fulfilled in relation to that part or group.

4.           In assessing whether a country is a safe country of origin in accordance with paragraphs 2 and 3, Member States shall have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned.

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2.           Member States shall ensure a regular review of the situation in third countries designated as safe in accordance with this Article.

ê 2005/85/EC article 30

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3. 5.       The assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, ð the European Asylum Support Office, ï the UNHCR, the Council of Europe and other relevant international organisations.

4. 6.       Member States shall notify to the Commission the countries that are designated as safe countries of origin in accordance with this Article.

ê 2005/85/EC article 27

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Article 38

The safe third country concept

1.           Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking ð international protection ï asylum will be treated in accordance with the following principles in the third country concerned:

(a)     life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

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(b)     there is no risk of serious harm as defined in Directive […/…/EU] [the Qualification Directive];

ê 2005/85/EC article 27

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(c b)  the principle of non‑refoulement in accordance with the Geneva Convention is respected;

(d c)  the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

(e d)  the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

2.           The application of the safe third country concept shall be subject to rules laid down in national legislation, including:

(a)     rules requiring a connection between the person seeking ð international protection ï asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

(b)     rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case‑by‑case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;

(c)     rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that ð that the third country is not safe in his/her particular circumstances ï he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment. ð The applicant shall also be allowed to challenge the existence of a connection between him/her and the third country in accordance with point (a). ï

3.           When implementing a decision solely based on this Article, Member States shall:

(a)     inform the applicant accordingly; and

(b)     provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

4.           Where the third country does not permit the applicant for ð international protection ï asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.

5.           Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with the provisions of this Article.

ê 2005/85/EC article 36

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Article 39

The European safe third country countries concept

1.           Member States may provide that no, or no full, examination of the asylum application for ð international protection ï and of the safety of the applicant in his/her particular circumstances as described in Chapter II, shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant for asylum ð international protection ï is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2.

2.           A third country can only be considered as a safe third country for the purposes of paragraph 1 where:

(a)     it has ratified and observes the provisions of the Geneva Convention without any geographical limitations;

(b)     it has in place an asylum procedure prescribed by law; and

(c)     it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies; and

(d)     it has been so designated by the Council in accordance with paragraph 3.

3.           The Council shall, acting by qualified majority on a proposal from the Commission and after consultation of the European Parliament, adopt or amend a common list of third countries that shall be regarded as safe third countries for the purposes of paragraph 1.

43.         The Member States concerned shall lay down in national law the modalities for implementing the provisions of paragraph 1 and the consequences of decisions pursuant to those provisions in accordance with the principle of non-refoulement under the Geneva Convention, including providing for exceptions from the application of this Article for humanitarian or political reasons or for reasons of public international law.

54.         When implementing a decision solely based on this Article, the Member States concerned shall:

(a)     inform the applicant accordingly; and

(b)     provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

65.         Where the safe third country does not re-admit the applicant for asylum, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.

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6.           Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with the provisions of this Article.

ê 2005/85/EC article 36

7.           Member States which have designated third countries as safe countries in accordance with national legislation in force on 1 December 2005 and on the basis of the criteria in paragraph 2(a), (b) and (c), may apply paragraph 1 to these third countries until the Council has adopted the common list pursuant to paragraph 3.

ê 2005/85/EC (adapted)

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Section IV

Article 40 32

Subsequent application

1.           Where a person who has applied for ð international protection ï asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State ð shall ï may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework.

2.           Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum:

(a)     after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20;

(b)     after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken.

2. 3.       ð For the purpose of taking a decision on the admissibility of an application for international protection pursuant to Article 33(2)(d), ï a A subsequent application for ð international protection ï asylum shall be subject first to a preliminary examination as to whether , after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings Ö have arisen or have been presented by the applicant which relate Õ relating to the examination of whether Ö the applicant Õ he/she qualifies as a refugee ð or a person eligible for subsidiary protection ï by virtue of Directive […/…/EU] [the Qualification Directive] 2004/83/EC have arisen or have been presented by the applicant.

3. 4.       If, following the preliminary examination referred to in paragraph 2 3 of this Article Ö concludes that Õ new elements or findings Ö have Õ arisen or Ö been Õ are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee ð or a person eligible for subsidiary protection ï by virtue of Directive Ö […/…/EU] [the Qualification Directive] Õ 2004/83/EC, the application shall be further examined in conformity with Chapter II. Ö Member States may also provide for other reasons for a subsequent application to be further examined. Õ

5.           Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re‑opened.

4. 6.       Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations set forth in paragraphs 2 and 3 3, 4 and 5 of this Article in the previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article 46 39.

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5.           When a subsequent application is not further examined pursuant to this Article, it shall be considered inadmissible, in accordance with Article 33(2)(d).

ê 2005/85/EC (adapted)

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6. 7.       The procedure referred to in this Article may also be applicable in the case of:

(a)     a dependant who lodges an application after he/she has, in accordance with Article 7(2) 6(3), consented to have his/her case be part of an application made on his/her behalf ð , and/or ï

(b)     ð an unmarried minor who lodges an application after an application has been made on his/her behalf pursuant to Article 7(5)(c) ï .

In ð those cases ï this case, the preliminary examination referred to in paragraph 2 3 of this Article will consist of examining whether there are facts relating to the dependant's ð or the unmarried minor's ï situation which justify a separate application.

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7.           Where a person with regard to whom a transfer decision has to be enforced pursuant to Regulation (EU) […/…] [the Dublin Regulation] makes further representations or a subsequent application in the transferring Member State, those representations or subsequent applications shall be examined by the responsible Member State, as defined in Regulation (EU) […/…] [the Dublin Regulation], in accordance with this Directive.

Article 41

Specific rules following the rejection or inadmissibility of a subsequent application

Where a person makes a new application for international protection in the same Member State after a final decision to consider an application inadmissible pursuant to Article 40(5) or after a final decision to reject a previous subsequent application as unfounded, Member States may do any of the following:

(a)          make an exception to the right to remain in the territory, provided the determining authority is satisfied that a return decision will not lead to direct or indirect refoulement in violation of international and Union obligations of that Member State,

(b)          provide that the examination procedure be accelerated in accordance with Article 31(6)(f); in such case, Member States may also derogate from the time limits normally applicable in accelerated procedures, in accordance with national legislation,

(c)          derogate from the time limits normally applicable to admissibility procedures provided for in Articles 33 and 34, in accordance with national legislation.

ê 2005/85/EC

Article 33

Failure to appear

Member States may retain or adopt the procedure provided for in Article 32 in the case of an application for asylum filed at a later date by an applicant who, either intentionally or owing to gross negligence, fails to go to a reception centre or appear before the competent authorities at a specified time.

ê 2005/85/EC (adapted)

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Article 42 34

Procedural rules

1.           Member States shall ensure that applicants for ð international protection ï asylum whose application is subject to a preliminary examination pursuant to Article 40 32 enjoy the guarantees provided for in Article 12(1) 10(1).

2.           Member States may lay down in national law rules on the preliminary examination pursuant to Article 40 32. Those rules may, inter alia:

(a)     oblige the applicant concerned to indicate facts and substantiate evidence which justify a new procedure;

(b)     require submission of the new information by the applicant concerned within a time limit after he/she obtained such information;

(b c)  permit the preliminary examination to be conducted on the sole basis of written submissions without a personal interview ð , with the exception of cases referred to in Article 40(6) ï.

Ö Those rules Õ The conditions shall not render impossible the access of applicants for asylum to a new procedure or result in the effective annulment or severe curtailment of such access.

3.           Member States shall ensure that:

(a)     the applicant is informed in an appropriate manner of the outcome of the preliminary examination and, in case the application will not be further examined, of the reasons for this and the possibilities for seeking an appeal or review of the decision.;

(b)     if one of the situations referred to in Article 32(2) applies, the determining authority shall further examine the subsequent application in conformity with the provisions of Chapter II as soon as possible.

Section V

Article 43 35

Border procedures

1.           Member States may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the Member State on:

(a)     ð the admissibility of an ï applications ð , pursuant to Article 33, ï made at such locations; ð and/or ï

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(b)     the substance of an application in a procedure pursuant to Article 31(6).

ê 2005/85/EC (adapted)

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2.           However, when procedures as set out in paragraph 1 do not exist, Member States may maintain, subject to the provisions of this Article and in accordance with the laws or regulations in force on 1 December 2005, procedures derogating from the basic principles and guarantees described in Chapter II, in order to decide at the border or in transit zones as to whether applicants for asylum who have arrived and made an application for asylum at such locations, may enter their territory.

3.           The procedures referred to in paragraph 2 shall ensure in particular that the persons concerned:

(a)     are allowed to remain at the border or transit zones of the Member State, without prejudice to Article 7;

(b)     are be immediately informed of their rights and obligations, as described in Article 10(1) (a);

(c)     have access, if necessary, to the services of an interpreter, as described in Article 10(1)(b);

(d)     are interviewed, before the competent authority takes a decision in such procedures, in relation to their application for asylum by persons with appropriate knowledge of the relevant standards applicable in the field of asylum and refugee law, as described in Articles 12, 13 and 14;

(e)     can consult a legal adviser or counsellor admitted or permitted as such under national law, as described in Article 15(1); and

(f)      have a representative appointed in the case of unaccompanied minors, as described in Article 17(1), unless Article 17(2) or (3) applies.

Moreover, in case permission to enter is refused by a competent authority, this competent authority shall state the reasons in fact and in law why the application for asylum is considered as unfounded or as inadmissible.

2. 4.       Member States shall ensure that a decision in the framework of the procedures provided for in paragraph 1 2 is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant for asylum shall be granted entry to the territory of the Member State in order for his/her application to be processed in accordance with the other provisions of this Directive.

3. 5.       In the event of particular types of arrivals, or arrivals involving a large number of third country nationals or stateless persons lodging applications for ð international protection ï asylum at the border or in a transit zone, which makes it practically impossible Ö in practice Õ to apply there the provisions of paragraph 1 or the specific procedure set out in paragraphs 2 and 3, those procedures may also be applied where and for as long as these third country nationals or stateless persons are accommodated normally at locations in proximity to the border or transit zone.

ê 2005/85/EC

Article 36

The European safe third countries concept

1.           Member States may provide that no, or no full, examination of the asylum application and of the safety of the applicant in his/her particular circumstances as described in Chapter II, shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant for asylum is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2.

2.           A third country can only be considered as a safe third country for the purposes of paragraph 1 where:

(a)     it has ratified and observes the provisions of the Geneva Convention without any geographical limitations;

(b)     it has in place an asylum procedure prescribed by law;

(c)     it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies; and

(d)     it has been so designated by the Council in accordance with paragraph 3.

3.           The Council shall, acting by qualified majority on a proposal from the Commission and after consultation of the European Parliament, adopt or amend a common list of third countries that shall be regarded as safe third countries for the purposes of paragraph 1.

4.           The Member States concerned shall lay down in national law the modalities for implementing the provisions of paragraph 1 and the consequences of decisions pursuant to those provisions in accordance with the principle of non‑refoulement under the Geneva Convention, including providing for exceptions from the application of this Article for humanitarian or political reasons or for reasons of public international law.

5.           When implementing a decision solely based on this Article, the Member States concerned shall:

(a)     inform the applicant accordingly; and

(b)     provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

6.           Where the safe third country does not readmit the applicant for asylum, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.

7.           Member States which have designated third countries as safe countries in accordance with national legislation in force on 1 December 2005 and on the basis of the criteria in paragraph 2(a), (b) and (c), may apply paragraph 1 to these third countries until the Council has adopted the common list pursuant to paragraph 3.

ê 2005/85/EC

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CHAPTER IV

Procedures for the withdrawal of ð international protection ï refugee status

Article 44 37

Withdrawal of ð international protection ï refugee status

Member States shall ensure that an examination to withdraw the ð international protection ï refugee status of a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his/her ð international protection ï refugee status.

Article 45 38

Procedural rules

1.           Member States shall ensure that, where the competent authority is considering withdrawing the ð international protection ï refugee status of a third country national or stateless person in accordance with Article 14 ð or Article 19 ï of Directive […/…/EU] [the Qualification Directive] 2004/83/EC, the person concerned shall enjoys the following guarantees:

(a)     to be informed in writing that the competent authority is reconsidering his or her qualification for ð international protection ï refugee status and the reasons for such a reconsideration; and

(b)     to be given the opportunity to submit, in a personal interview in accordance with Article 12(1)(b) 10(1)(b) and Articles 14, 15, ð 16 ï and 17 12, 13 and 14 or in a written statement, reasons as to why his/her ð international protection ï refugee status should not be withdrawn.

In addition, Member States shall ensure that within the framework of such a procedure:

(a)     the competent authority is able to obtain precise and up‑to‑date information from various sources, such as, where appropriate, from ð the European Asylum Support Office and ï the UNHCR, as to the general situation prevailing in the countries of origin of the persons concerned; and

(b)     where information on an individual case is collected for the purposes of reconsidering the ð international protection ï refugee status, it is not obtained from the actor(s) of persecution ð or serious harm ï in a manner that would result in such actor(s) being directly informed of the fact that the person concerned is a ð beneficiary of international protection ï refugee whose status is under reconsideration, nor jeopardise the physical integrity of the person and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.

2.           Member States shall ensure that the decision of the competent authority to withdraw the ð international protection ï refugee status is given in writing. The reasons in fact and in law shall be stated in the decision and information on how to challenge the decision shall be given in writing.

3.           Once the competent authority has taken the decision to withdraw the ð international protection ï refugee status, Article 20 15, paragraph 2, ð Article 22 ï , Article 23(1) 16, paragraph 1 and Article 29 21 are equally applicable.

4.           By derogation to paragraphs 1, 2 and 3 of this Article, Member States may decide that the ð international protection ï refugee status shall lapse by law in case of cessation in accordance with Article 11(1)(a) to (d) of Directive 2004/83/EC or if the ð beneficiary of international protection ï refugee has unequivocally renounced his/her recognition as a ð beneficiary of international protection ï refugee. ð Member States may also provide that the international protection status shall lapse by law where the beneficiary of international protection has become a citizen of that Member State. ï

CHAPTER V

Appeals procedures

Article 46 39

The right to an effective remedy

1.           Member States shall ensure that applicants for ð international protection ï asylum have the right to an effective remedy before a court or tribunal, against the following:

(a)     a decision taken on their application for ð international protection ï , including a decision:

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(i)      to consider an application unfounded in relation to refugee status and/or subsidiary protection status,

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(ii i)    to consider an application inadmissible pursuant to Article 33 25 (2),

(iii ii)  taken at the border or in the transit zones of a Member State as described in Article 43(1) 35(1),

(iii)     not to conduct an examination pursuant to Article 36;

(b)     a refusal to re‑open the examination of an application after its discontinuation pursuant to Articles 27 and 28 19 and 20;

(c)     a decision not to further examine the subsequent application pursuant to Articles 32 and 34;

(d)     a decision refusing entry within the framework of the procedures provided for under Article 35(2);

(c e)  a decision to withdraw ð international protection ï refugee status pursuant to Article 45 38.

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2.           Member States shall ensure that persons recognised by the determining authority as eligible for subsidiary protection have the right to an effective remedy as referred to in paragraph 1 against a decision to consider an application unfounded in relation to refugee status.

The person concerned shall be entitled to the rights and benefits guaranteed to beneficiaries of subsidiary protection pursuant to Directive […/…/EU] [the Qualification Directive] pending the outcome of the appeal procedures.

3.           Member States shall ensure that the effective remedy referred to in paragraph 1 provides for a full examination of both facts and points of law, including an ex nunc examination of the international protection needs pursuant to Directive […/…/EU] [the Qualification Directive], at least in appeal procedures before a court or tribunal of first instance.

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4. 2.       Member States shall provide for ð reasonable ï time limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1.

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The time limits shall not render impossible or excessively difficult the access of applicants to an effective remedy pursuant to paragraph 1.

Member States may also provide for an ex officio review of decisions taken pursuant to Article 43.

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3.           Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with:

(a)     the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome;

(b)     the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may also provide for an ex officio remedy; and

(c)     the grounds for challenging a decision under Article 25(2)(c) in accordance with the methodology applied under Article 27(2)(b) and (c).

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5.           Without prejudice to paragraph 6, Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired or, when this right has been exercised within the time limit, pending the outcome of the remedy.

6.           In the case of a decision to consider an application unfounded where any of the circumstances listed in Article 31(6)(a) to (g) apply or of a decision to consider an application inadmissible pursuant to Article 33(2)(a) or (d), and where, in such cases, the right to remain in the Member State pending the outcome of the remedy is not foreseen under national legislation, a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon request of the concerned applicant or acting on its own motion.

This paragraph shall not apply to procedures referred to in Article 43.

7.           Member States shall allow the applicant to remain in the territory pending the outcome of the procedure to rule whether or not the applicant may remain on the territory, laid down in paragraph 6.

8.           Paragraphs 5, 6 and 7 shall be without prejudice to Article 26 of Regulation (EU) No […/…] [the Dublin Regulation].

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9. 4.       Member States may lay down time‑limits for the court or tribunal pursuant to paragraph 1 to examine the decision of the determining authority.

5.           Where an applicant has been granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC, the applicant may be considered as having an effective remedy where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis of insufficient interest on the part of the applicant in maintaining the proceedings.

10. 6.     Member States may also lay down in national legislation the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned his/her remedy pursuant to paragraph 1, together with the rules on the procedure to be followed.

CHAPTER VI

General and final provisions

Article 47 40

Challenge by public authorities

This Directive does not affect the possibility for public authorities of challenging the administrative and/or judicial decisions as provided for in national legislation.

Article 48 41

Confidentiality

Member States shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work.

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Article 49

Cooperation

Member States shall each appoint a national contact point and communicate its address to the Commission. The Commission shall communicate that information to the other Member States.

Member States shall, in liaison with the Commission, take all appropriate measures to establish direct cooperation and an exchange of information between the competent authorities.

ê 2005/85/EC (adapted)

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Article 50 42

Report

No later than 1 December 2009 ð .........[13] ï, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose any amendments that are necessary. Member States shall send the Commission all the information that is appropriate for drawing up this report. After presenting the report, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States at least every ð five ï two years.

Article 51 43

Transposition

1.           Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 December 2007 Ö Articles […] [the Articles that have been changed as to the substance by comparison with the earlier Directive] by […] at the latest Õ. Concerning Article 15, Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 December 2008. They shall forthwith Ö communicate to Õ inform the Commission thereof Ö the text of those provisions and a correlation table between those provisions and this Directive Õ.

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2.           Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Article 31(3) by [3 years from the date of the transposition deadline]. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

ê 2005/85/EC (adapted)

3.           When Member States adopt Ö the Õ those provisions Ö referred to in paragraphs 1 and 2 Õ, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Ö Member States shall determine how such reference is to be made. Õ The methods of making such reference shall be laid down by Member States. Ö They shall also include a statement that references in existing laws, regulations and administrative provisions to the directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated. Õ

4.           Member States shall communicate to the Commission the text of the Ö main Õ provisions of national law which they adopt in the field covered by this Directive Ö and a correlation table between those provisions and this Directive Õ.

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Article 52 44

Transitional provisions

Member States shall apply the laws, regulations and administrative provisions Ö referred to Õ set out in Article 51(1) 43 to applications for ð international protection ï asylum lodged after ð […] ï 1 December 2007 and to procedures for the withdrawal of ð international protection ï refugee status started after ð […] ï 1 December 2007. ð Applications submitted before […] and procedures for the withdrawal of refugee status initiated before […] shall be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85/EC. ï

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Member States shall apply the laws, regulations and administrative provisions referred to in Article 51(2) to applications for international protection lodged after […]. Applications submitted before […] shall be governed by the laws, regulations and administrative provisions in accordance with Directive 2005/85/EC.

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Article 53

Repeal

Directive 2005/85/EC is repealed for the Member States bound by this Directive with effect from [day after the date set out in Article 51(1) of this Directive], without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex II, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III.

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Article 54 45

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

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Articles […] shall apply from [day after the date set out in Article 51(1)].

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Article 55 46

Addressees

This Directive is addressed to the Member States in conformity with the Treaty establishing the European Community Ö accordance with the Treaties Õ.

Done at Brussels,

For the European Parliament                       For the Council

The President                                                 The President

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ANNEX I

Definition of "determining authority"

When implementing the provision of this Directive, Ireland may, insofar as the provisions of section 17(1) of the Refugee Act 1996 (as amended) continue to apply, consider that:

- "determining authority" provided for in Article 2 (e) (f) of this Directive shall, insofar as the examination of whether an applicant should or, as the case may be, should not be declared to be a refugee is concerned, mean the Office of the Refugee Applications Commissioner; and

- "decisions at first instance" provided for in Article 2 (e) (f) of this Directive shall include recommendations of the Refugee Applications Commissioner as to whether an applicant should or, as the case may be, should not be declared to be a refugee.

Ireland will notify the Commission of any amendments to the provisions of section 17(1) of the Refugee Act 1996 (as amended).

ANNEX I II

Designation of safe countries of origin for the purposes of Articles 29 and 30 37(1)

A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive […/…/EU] [the Qualification Directive] Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by:

(a) the relevant laws and regulations of the country and the manner in which they are applied;

(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;

(c) respect of the non-refoulement principle according to the Geneva Convention;

(d) provision for a system of effective remedies against violations of these rights and freedoms.

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ANNEX III

Definition of "applicant" or "applicant for asylum"

When implementing the provisions of this Directive Spain may, insofar as the provisions of "Ley 30/1992 de Régimen jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común" of 26 November 1992 and "Ley 29/1998 reguladora de la Jurisdicción Contencioso-Administrativa" of 13 July 1998 continue to apply, consider that, for the purposes of Chapter V, the definition of "applicant" or "applicant for asylum" in Article 2(c) of this Directive shall include "recurrente" as established in the abovementioned Acts.

A "recurrente" shall be entitled to the same guarantees as an "applicant" or an "applicant for asylum" as set out in this Directive for the purposes of exercising his/her right to an effective remedy in Chapter V.

Spain will notify the Commission of any relevant amendments to the abovementioned Act.

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ANNEX II IV

Part A

Repealed Directive (referred to in Article 53)

Council Directive 2005/85/EC || (OJ L 326, 13.12.2005, p. 13)

Part B

Time-limit for transposition into national law (referred to in Article 51)

Directive || Time-limits for transposition

2005/85/EC || First deadline: 1 December 2007 Second deadline: 1 December 2008

ANNEX III

Correlation Table

Directive 2005/85/EC || This directive

Article 1 || Article 1

Article 2 (a) to (c) || Article 2 (a) to (c)

- || Article 2 (d)

Article 2 (d) to (f) || Article 2 (e) to (g)

- || Article 2 (h) and (i)

Article 2 (g) || Article 2 (j)

- || Article 2 (k) and (l)

Article 2 (h) to (k) || Article 2 (m) to (p)

- || Article 2 (q)

Article 3 (1) and (2) || Article 3 (1) and (2)

Article 3 (3) || -

Article 3 (4) || Article 3 (3)

Article 4 (1) first subparagraph || Article 4 (1) first subparagraph

Article 4 (1) second subparagraph || -

Article 4 (2) (a) || Article 4 (2) (a)

Article 4 (2) (b) to (d) || -

Article 4 (2) (e) || Article 4 (2) (b)

Article 4 (2) (f) || -

- || Article 4 (3)

Article 4 (3) || Article 4 (4)

- || Article 4 (5)

Article 5 || Article 5

Article 6 (1) || Article 6 (1)

- || Article 6 (2) to (4)

Article 6 (2) and (3) || Article 7 (1) and (2)

- || Article 7 (3)

- || Article 7 (4)

Article 6 (4) || Article 7 (5)

Article 6 (5) || -

- || Article 8

Article 7 (1) and (2) || Article 9 (1) and (2)

- || Article 9 (3)

Article 8 (1) || Article 10 (1)

- || Article 10 (2)

Article 8 (2) (a) to (c) || Article 10 (3) (a) to (c)

- || Article 10 (3) (d)

Article 8 (3) and (4) || Article 10 (4) and (5)

Article 9 (1) || Article 11 (1)

Article 9 (2), first subparagraph || Article 11 (2), first subparagraph

Article 9 (2), second subparagraph || -

Article 9 (2), third subparagraph || Article 11 (2), second subparagraph

Article 9 (3) || Article 11 (3)

Article 10 (1) (a) to (c) || Article 12 (1) (a) to (c)

- || Article 12 (1) (d)

Article 10 (1) (d) and (e) || Article 12 (1) (e) and (f)

Article 10 (2) || Article 12 (2)

Article 11 || Article 13

Article 12 (1) first subparagraph || Article 14 (1) first subparagraph

Article 12 (2) second subparagraph || -

- || Article 14 (1) second and third subparagraph

Article 12 (2) third subparagraph || Article 14 (1) fourth subparagraph

Article 12 (2) (a) || Article 14 (2) (a)

Article 12 (2) (b) || -

Article 12 (2) (c) || -

Article 12 (3) first subparagraph || Article 14 (2) (b)

Article 12 (3) second subparagraph || Article 14 (2) second subparagraph

Article 12 (4) to (6) || Article 14 (3) to (5)

Article 13 (1) and (2) || Article 15 (1) and (2)

Article 13 (3) (a) || Article 15 (3) (a)

- || Article 15 (3) (b)

Article 13 (3) (b) || Article 15 (3) (c)

- || Article 15 (3) (d)

- || Article 15 (3) (e)

Article 13 (4) || Article 15 (4)

Article 13 (5) || -

- || Article 16

Article 14 || -

- || Article 17

- || Article 18

- || Article 19

Article 15 (1) || Article 22 (1)

Article 15 (2) || Article 20 (1)

- || Article 20 (2) to (4)

- || Article 21 (1)

Article 15 (3) (a) || -

Article 15 (3) (b) and (c) || Article 21 (2) (a) and (b)

Article 15 (3) (d) || -

Article 15 (3) second subparagraph || -

Article 15 (4) to (6) || Article 21 (3) to (5)

- || Article 22 (2)

Article 16 (1) first subparagraph || Article 23 (1) first subparagraph

Article 16 (1) second subparagraph first sentence || Article 23 (1) second subparagraph introductory words

- || Article 23 (1) (a)

Article 16 (1) second subparagraph second sentence || Article 23 (1) (b)

Article 16 (2) first sentence || Article 23 (2)

Article 16 (2) second sentence || -

- || Article 23 (3)

Article 16 (3) || Article 23 (4) first subparagraph

Article 16 (4) first subparagraph || -

Article 16 (4) second and third subparagraphs || Article 23 (4) second and third subparagraphs

- || Article 24

Article 17 (1) || Article 25 (1)

Article 17 (2) (a) || Article 25 (2)

Article 17 (2) (b) and (c) || -

Article 17 (3) || -

Article 17 (4) || Article 25 (3)

- || Article 25 (4)

Article 17 (5) || Article 25 (5)

- || Article 25 (6)

Article 17 (6) || Article 25 (7)

Article 18 || Article 26

Article 19 || Article 27

Article 20 (1) and (2) || Article 28 (1) and (2)

- || Article 28 (3)

Article 21 || Article 29

Article 22 || Article 30

Article 23 (1) || Article 31 (1)

Article 23 (2), first subparagraph || Article 31 (2)

- || Article 31 (3)

Article 23 (2), second subparagraph || Article 31 (4), first subparagraph

- || Article 31 (4), second subparagraph

Article 23 (3) || Article 31 (5) introductory words

- || Article 31 (5) (a) to (c)

Article 23 (4) (a) || Article 31 (6) (a)

Article 23 (4) (b) || -

Article 23 (4) (c) (i) || Article 31 (6) (b)

Article 23 (4) (c) (ii) || -

Article 23 (4) (d) || Article 31 (6) (c)

Article 23 (4) (e) || -

Article 23 (4) (f) || Article 31 (6) (d)

Article 23 (4) (g) || Article 31 (6) (e)

Article 23 (4) (h) and (i) || -

Article 23 (4) (j) || Article 31 (6) (f)

Article 23 (4) (k) and (l) || -

Article 23 (4) (m) || Article 31 (6) (g)

Article 23 (4) (n) and (o) || -

- || Article 31 (7) and (8)

Article 24 || -

- || Article 32 (moved Article 28)

Article 25 || Article 33

Article 25 (1) || Article 33 (1)

Article 25 (2) (a) to (c) || Article 33 (2) (a) to (c)

Article 25 (2) (d) and (e) || -

Article 25 (2) (f) and (g) || Article 33 (2) (d) and (e)

- || Article 34

Article 26 || Article 35

Article 27 (1) (a) || Article 38 (1) (a)

- || Article 38 (1) (b)

Article 27 (1) (b) to (d) || Article 38 (1) (c) to (e)

Article 27 (2) to (5) || Article 38 (2) to (5)

Article 28 || Article 32

Article 29 || -

Article 30 (1) || Article 37 (1)

Article 30 (2) to (4) || -

- || Article 37 (2)

Article 30 (5) and (6) || Article 37 (3) and (4)

Article 31 (1) || Article 36 (1)

Article 31 (2) || -

Article 31 (3) || Article 36 (2)

Article 32 (1) || Article 40 (1)

Article 32 (2) || -

Article 32 (3) || Article 40 (2)

Article 32 (4) || Article 40 (3) first sentence

Article 32 (5) || Article 40 (3) second sentence

Article 32 (6) || Article 40 (4)

- || Article 40 (5)

Article 32 (7), first subparagraph || Article 40 (6) (a)

- || Article 40 (6) (b)

Article 32 (7), second subparagraph || Article 40 (6), second subparagraph

- || Article 40 (7)

- || Article 41

Article 33 || -

Article 34 (1) and (2) (a) || Article 42 (1) and (2) (a)

Article 34 (2) (b) || -

Article 34 (2) (c) || Article 42 (2) (b)

Article 34 (3) (a) || Article 42 (3)

Article 34 (3) (b) || -

Article 35 (1) || Article 43 (1) (a)

- || Article 43 (1) (b)

Article 35 (2) and (3) (a) to (f) || -

Article 35 (4) || Article 43 (2)

Article 35 (5) || Article 43 (3)

Article 36 (1) to (2) (c) || Article 39 (1) to (2) (c)

Article 36 (2) (d) || -

Article 36 (3) || -

Article 36 (4) to (6) || Article 39 (3) to (5)

- || Article 39 (6)

Article 36 (7) || -

Article 37 || Article 44

Article 38 || Article 45

- || Article 46 (1) (a) (i)

Article 39 (1) (a) (i) and (ii) || Article 46 (1) (a) (ii) and (iii)

Article 39 (1) (a) (iii) || -

Article 39 (1) (b) || Article 46 (1) (b)

Article 39 (1) (c) and (d) || -

Article 39 (1) (e) || Article 46 (1) (c)

- || Article 46 (2) and (3)

Article 39 (2) || Article 46 (4) first subparagraph

- || Article 46 (4) second and third subparagraphs

Article 39 (3) || -

- || Article 46 (5) to (8)

Article 39 (4) || Article 46 (9)

Article 39 (5) || -

Article 39 (6) || Article 41 (10)

Article 40 || Article 47

Article 41 || Article 48

- || Article 49

Article 42 || Article 50

Article 43 first subparagraph || Article 51 (1)

- || Article 51 (2)

Article 43 second and third subparagraphs || Article 51 (3) and (4)

Article 44 || Article 52 first subparagraph

- || Article 52 second subparagraph

- || Article 53

Article 45 || Article 54

Article 46 || Article 55

Annex I || -

Annex II || Annex I

Annex III || -

- || Annex II

- || Annex III

[1]               Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, "Policy plan on asylum - An integrated approach to protection across the EU" - COM(2008) 360, 17.6.2008.

[2]               OJ L 326, 13.12.2005, p. 13.

[3]               Report from the Commission to the European Parliament and the Council on the application of Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status - COM(2010) 465, 8.9.2010.

[4]               European Pact on Immigration and Asylum, Council document 13440/08.

[5]               Commission staff working document accompanying the proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection - Impact Assessment - SEC(2009) 1376, 21.10.2009.

[6]               OJ C […], […], p. […].

[7]               OJ C […], […], p. […].

[8]               OJ L 326, 13.12.2005, p. 13.

[9]               OJ L 132, 29.5.2010, p.11.

[10]             OJ L 348, 24.12.2008, p. 98

[11]             Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

[12]             OJ L 31, 6.2.2003, p. 18.

[13]             Four years after the date of adoption of this Directive.

The detailed explanation of the amended proposal is presented in comparison to the 2009 Commission proposal amending Directive 2005/85/EC.

Article 1

There are no changes compared to the proposal of 2009.

Article 2

The Article has been changed compared to the 2009 proposal in respect to:

(d)        The definition of applicants in need of special procedural guarantees:

(i)      introduces a more precise term, namely "applicant in need of special procedural guarantees", which reflects better that special needs have to be taken into account for the purposes of the Asylum Procedures Directive,

(ii)     introduces sexual orientation and gender identity cases where applicants may need special procedural guarantees given that in these cases, inter alia, the examination of the application and especially the personal interview has to ensure that the applicant is able to present his/her case, and

(iii)     clarifies the nature of certain grounds by replacing the term "mental health problems" with "serious physical illness, mental illness or post traumatic disorders".

(n)          The modified proposal extends the scope of the term of "representative" in order to clarify that, depending on the given national system, not only a person but also an organisation can legally represent an unaccompanied minor.

(q)          This new definition for subsequent applications is necessary to support the clarification of the rules on subsequent applications throughout the text.

Article 3

There are no changes compared to the proposal of 2009.

Article 4

The modified proposal introduces significant changes in order to simplify the rules and facilitate their implementation.

It is clarified that the determining authority should be provided with appropriate means, including sufficient competent personnel, to carry out its tasks, and that the personnel of the determining authority shall be properly trained. In order to simplify the rules on the training activities that need to be provided for the personnel, the modified proposal has been aligned with the relevant rules of the European Asylum Support Office Regulation (Regulation (EU) 439/2010) by a reference to Article 6(4)(a) to (e) thereof. This requirement on training thus covers now the following elements:

(a)          international human rights and the asylum acquis of the Union, including specific legal and case-law issues;

(b)          issues related to the handling of asylum applications from minors and vulnerable persons with specific needs;

(c)          interview techniques;

(d)          the use of expert medical and legal reports in asylum procedures;

(e)          issues relating to the production and use of information on countries of origin;

(f)           reception conditions, including special attention given to vulnerable groups and victims of torture.

As regards the exceptions from the principle of single determining authority, a new point (b) has been introduced for cases where another authority (e.g. border guards) grant or refuse permission to enter to the territory in case of a border procedure. It has been clarified that in these cases, the decision on the permission must be based on the opinion of the determining authority. This change aims to align the rules of the Directive with the variety of arrangements on border control in Member States.

Article 5

There are no changes compared to the proposal of 2009.

Article 6

In order to provide a clearer structure, Article 6 of the 2009 proposal has been divided into two Articles: Article 6 of the modified proposal lays down rules on the general principle of easy and timely access, while the new Article 7 deals with applications made on behalf of dependant or minors.

The terminology of the article has been clarified compared to both the 2009 proposal and to the current Directive. A clearer distinction is introduced between the terms "make" and "lodge" relating to an application for international protection. In line with the definition of an application of Article 2(b), an application is deemed to be "made" as soon as a person who can be understood to seek refugee status or subsidiary protection status makes a request for protection from a Member State. This act does not require any administrative formalities. Relevant administrative formalities are accomplished when an application is "lodged". In line with paragraph 2, Member States shall give an effective opportunity to lodge an application as soon as possible, notwithstanding any practical restrictions in line with paragraph 1, to any person who wishes to make an application.

In paragraph 3, it has been clarified that only the fact that a person who has made an application is an applicant needs to be registered within 72 hours, not that the complete registration of the application must be done within this time limit. This rule is clearer and more compatible with the specificities of national asylum systems.

The requirement to facilitate access to asylum procedures by authorities other than the determining authority has been simplified. It is now a general principle that the personnel of authorities likely to receive applications shall have the relevant instructions and the necessary training to comply with the obligation to facilitate access to procedure. A reference to the guidelines developed by the European Asylum Support Office aims to ensure further harmonisation through operational means.

In order to allow Member States to deal efficiently with applications in case a large number of third country nationals or stateless persons applies simultaneously, the proposal provides for the possibility to extend the 72 hour deadline to 7 working days.

Article 7

The modified proposal clarifies the conditions when a minor can make an application on his/her own behalf. This includes the condition that the minor has the legal capacity to act in procedures according to national law of the Member State concerned or through his/her parents or other adult family members.

Article 8 (corresponds to Article 7 of the 2009 proposal)

This Article simplifies the rules of the corresponding Article 7 of the 2009 proposal. The simplification aims to give more flexibility to Member States in the implementation of these rules. Especially concerning interpretation arrangements, it has been clarified that such arrangements need to be provided only to the very basic extent that is necessary to facilitate access to procedure. In essence, the objective is to enable the persons who wish to request international protection to do so. The term "arrangement" indicates that Member States have a wide discretion to find the appropriate modalities.

Article 9 (corresponds to Article 8 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 10 (corresponds to Article 9 of the 2009 proposal)

In order to reflect the establishment of the European Asylum Support Office and its specific important role in the EU in supporting Member States with regard to reliable country of origin information in asylum procedures, the sequence between the Office and UNCHR has been reversed.

Under paragraph 3(b), the reference to the right of the applicant and the legal adviser to access country-of-origin information has been deleted from this Article. It has been moved to Article 12(1) as a new point (d) to improve coherence of the text.

An additional element has been added to point (d) under paragraph 3 to ensure that the personnel examining applications and taking decisions have also the possibility to seek advice on religious matters which may be relevant in cases where refugees are persecuted for reasons relating to religion.

Article 11 (corresponds to Article 10 of the 2009 proposal)

Two additional grounds have been added to paragraph 3 taking into account that disclosure of particular information on sexual orientation or gender identity could also jeopardize an applicant's interest in case of a single decision that covers all dependants.

Article 12 (corresponds to Article 11 of the 2009 proposal)

Paragraph 1(a) and (f) has been amended. The proposal stipulates that the language to be used to inform the applicant on the procedure should be a language that the applicant understands or is reasonably supposed to understand. Furthermore, under (a), in order to increase the applicants' awareness of the consequences of withdrawal, Member States are required to inform applicants about these rules at the beginning of the procedure. This safeguard is necessary due to changes in the rules on withdrawal.

In paragraph (1)(b), it has been clarified that it is not only the determining authority that can call upon the applicant to be interviewed, but also other competent authorities in case of an admissibility interview.

New point (d) contains the right of the applicants and, if applicable, their legal advisers to access to information referred to in Article 10(3)(b). This change does not introduce new obligations; it has been moved from Article 10 since the inclusion of the access to the information referred to in Article 10(1)(b) ensures more coherence in this Article 12 with regard to the structure of the text.

Article 13 (corresponds to Article 12 of the 2009 proposal)

The modified proposal makes the wording of paragraph 1 more precise and coherent without changing its content.

Article 14 (corresponds to Article 13 of the 2009 proposal)

Rules on personal interviews have been made more flexible. While it remains a general rule that interviews on the substance of an application shall be conducted by the personnel of the determining authority, in case a large number of third country nationals or stateless persons apply simultaneously, Member States may provide that the personnel of another authority be involved in conducting such interviews. Nevertheless, in this case, the personnel shall receive the same training that is provided for the personnel of the determining authority. This practice may be applied only temporarily, as long as the conditions last.

The third subparagraph of paragraph 1 has been simplified and clarified without changing the obligation that dependant adults shall be given the opportunity of a personal interview.

In paragraph 2(b), the term "competent authority" has been changed to "determining authority" in order to ensure that it is always the determining authority that decides if the personal interview can be omitted in case the applicant is unfit or unable to be interviewed.

Article 15 (corresponds to Article 14 of the 2009 proposal)

In paragraph 3(a), it has been clarified that the person who conducts the interview must be competent to take account of the personal and (instead of "or") general circumstances surrounding the applications in order to make a proper decision. These are conjunctive elements and not alternative ones; both have to be met. Sexual orientation and gender identity have been added to the list of examples of circumstances that have to be taken into account since these are also elements that may need to be considered during the interview.

In paragraph 3(c), the wording has been simplified without changing the content of the provisions.

In paragraph 3(d), the rule that the interviewer shall not wear a uniform has been made more precise, excluding only military or law enforcement uniform.

In paragraph 3(e), the wording has been made more accurate.

Article 16 (corresponds to Article 15 of the 2009 proposal)

This Article has been simplified to facilitate its implementation by Member States. The requirement that the questions addressed to the applicant are relevant to the assessment has been removed since this is implicitly covered by the requirement to provide the applicant with an adequate opportunity to present the elements of the case.

Article 17 (corresponds to Article 16 of the 2009 proposal)

This Article has been significantly changed compared to the 2009 proposal. Member States are not required to make a transcript of every personal interview. According to the proposed rules, a thorough report has to be made which contains all substantial elements of the interview. Member States may also provide that the interview is audio or audio-visually recorded. Nevertheless, even in these cases, a thorough report has to be made and the recording has to be annexed to the report.

The applicant has to have the opportunity to make comments on the report. To that end, the applicant has to be informed about the content of the report at the end of the personal interview or within a specified time-limit before the determining authority takes a decision. The term "fully" indicates that that this information has to include all elements of the content of the report in a holistic way and, if necessary, with the assistance of an interpreter.

The proposal requires Member States to request the approval of the applicant on the content of the report. There is an exception from this rule, namely where the interview is audio or audio-visually recorded. In this case, the applicant has to have the possibility to refer to the recording as evidence in appeals procedures that has been attached to the report as evidence.

If the applicant refuses to approve the report, this shall be indicated in the file. However, this refusal does not prevent the determining authority from taking a decision.

Article 18 (corresponds to Article 17 of the 2009 proposal)

The proposal aims to significantly revise the rules on medical reports. The title of the Article has been changed by removing the term "legal" to better reflect the actual content of this Article.

The first sentence of paragraph 1 lays down the general principle that the applicant should be allowed to have a medical examination in order to submit a medical certificate to the determining authority in support of his/her claim. The scope of this medical certificate is limited; its aim is to support the applicant's claim as regards past persecution or serious harm. This is to clarify that the medical certificate does not in itself constitute proof of persecution. Member States may set a reasonable time limit for the certificate's submission in order not to delay the examination and the decision. With a view to make procedures more efficient and avoid abuse or unnecessary delay, the provision provides for the possibility to make a decision without taking into account the certificate if it was not submitted in time without good reason.

A medical examination may be particularly relevant to the examination of the claim where the applicant is unable to fully articulate the elements needed to substantiate his/her application. For this reason, paragraph 2 requires the determining authority to carry out by its own motion, with the consent of the applicant, a medical examination, if it considers that there is a reason to believe that the applicant suffers from post-traumatic stress disorder or past persecution or serious harm which would make him/her unable to be interviewed. If the applicant refuses to undergo the medical examination, this does not prevent the determining authority from making a decision.

The new paragraph 5 clarifies the content of the training to be provided by the Member States to the persons interviewing the applicants. The term "awareness" indicates that the aim of the training must be to ensure that the interviewers know and are able to recognise the symptoms which could indicate previous torture other medical problems that could hinder the applicant's ability to be interviewed.

Articles 19–22 (correspond to Article 18 of the 2009 proposal)

New Articles 19–22 aim to adjust and clarify rules on the right to legal assistance and representation with a view to make these rules more flexible while ensuring that the provision of legal and procedural information free of charge is available to those who request it and have no sufficient resources. This is one of the key elements of "frontloading". The choice for this approach was fully supported by the findings of a project in the UK, the so-called "Solihull pilot", presented at the Ministerial Conference on Asylum in September 2010. This project confirmed the hypothesis that "frontloading" the asylum process, in particular by providing access to competent legal advice for asylum applicants at the start of the procedure, leads to significant improvements in the quality of first instance decisions.

Compared to the 2009 proposal, the terminology has been changed in order to avoid possible confusion between three different notions: 1. the minimum level of provision of legal and procedural information at first instance, 2. free legal assistance to ensure effective access to justice in appeals proceedings, and 3. the right of applicants to contact a legal adviser or counsellor at their own cost. In order to provide clearer rules and structure, Article 18 of the 2009 proposal has been split into four Articles. The split of these Articles makes the distinction between these various notions at different stages of the procedure clearer.

Article 19

This Article lays down the rules on provision of legal and procedural information free of charge in procedures at first instance. The title of the Article aims to clarify that Member States are obliged to provide, on request, applicants with legal and procedural information free of charge in first instance procedures and that this is not to be considered as "legal assistance and representation". Thus, in line with several Member States' national legal systems, to comply with this obligation, it is not necessary to appoint a lawyer to every applicant.

The provision also sets a minimum level of provision of legal and procedural information. First, it includes the explanation of the procedural steps, devices, rights and obligations likely to be relevant to the applicant's case, including the obligations to cooperate and to submit the elements referred to in Article 4 of the Qualification Directive. Second, it includes, in the event of a negative decision, the explanation of the factual, substantive law and procedural reasons for the rejection, in order to enable the applicant to take a more informed decision about whether to exercise his/her right to an effective remedy. This clarification proved to be necessary further to the experiences throughout the discussions on the previous proposal.

Note that Article 20(2) clarifies that if Member States provide free legal assistance and/or representation in procedures at first instance, this is presumed to include the elements foreseen under the provision of legal and procedural information free of charge.

Paragraph 2 refers to further conditions to be applied which are described below under Article 21.

Article 20

The title of this new Article indicates that Member States shall ensure the availability of free legal assistance and representation in case of appeals procedures. In the terminology of the modified proposal, free legal assistance and representation means that the applicant is assisted and represented by a competent person; in several Member States' national systems this means a qualified lawyer. Minimum requirements have been laid down here as well which include the preparation of procedural documents and participation in the hearing before the court or tribunal. The latter is limited to first-tier appeal procedures. In further instances Member States are not bound by this Directive to provide any free legal assistance and representation. Given that the minimum requirements under this provision include both assistance (preparation of documents) and representation (participation in the hearing), it has been clarified that this provision covers both legal assistance "and" (instead of "and/or") representation.

Paragraph 2 refers to the practice of several Member States where already in first instance procedures (i.e. administrative procedures before the determining authority), free legal assistance and/or representation (provided by lawyers) is available. This paragraph accommodates their systems by clarifying that in this case these Member States do not have to provide the legal and procedural information foreseen under Article 19 in addition, since the legal assistance and representation by a lawyer already covers these needs.

Paragraph 3 describes the possibility of the so-called "merits test". This means that Member States may provide that free legal assistance and representation may not be available for applicants whose appeal has no tangible prospect of success. Nevertheless, this needs to be assessed by the court or tribunal and not by the determining authority. The second subparagraph limits the application of merits test by referring to Article 47 of the Charter of Fundamental Rights of the EU which stipulates that those who lack sufficient resources should receive legal aid in so far as it is necessary to ensure effective access to justice. This subparagraph thus should be read in conjunction with Article 21(2)(c) of the Directive which lays down the general rule that free legal and procedural information at first instance and free legal assistance and representation at appeals procedures may be provided only for those who lack sufficient resources.

Article 21

This Article lays down the general conditions that are applicable in cases of the provision of legal and procedural information free of charge and free legal assistance and representation. The new paragraph 1 aims to give wide discretion to Member States on how to comply with these obligations. The appointment of a lawyer is considered as a standard solution, nevertheless, Member States may fulfil the obligations under Articles 19 and 20 through NGOs or state officials or specialised services of the state. This provision accommodates several Member States' existing systems.

Article 22

This Article retains the right of the applicant to consult a lawyer at all stages of the procedure. The main distinction between the provisions of this Article and those of Articles 19–21 is that this covers only the right to contact a lawyer on the applicant's own cost. It is also stipulated that Member States may allow non-governmental organisations to provide such services.

Article 23 (corresponds to Article 19 of the 2009 proposal)

The modified proposal introduces a change with regard to access to information in proceedings that concern national security considerations. With a view to respecting the principle of equality of arms and established case law, it provides for the possibility to allow Member States to grant access to files only for specialised services of the state (advocates) where national security is concerned. This provision aims to ensure that the applicant is represented properly while no sensitive or confidential information is disclosed. The rules allow the representative (State official, advocate) not to have any contacts with the applicant.

Article 24 (corresponds to Article 20 of the 2009 proposal)

The modified proposal aims to simplify the provisions on persons with special needs. It aims to lay down the principles and allows Member States to find the most appropriate modalities.

First, the title of the Article, in line with the definition in Article 2(d), clarifies that, for the purposes of this Directive, procedures need to take into account the specific situation of applicants in need of special procedural guarantees. This is in particular to clarify that special procedural needs and special reception needs may be different.

The first paragraph stipulates that applicants in need of special procedural guarantees need to be identified in due time. This provision is fully in line with the relevant provisions of the modified proposal on the Reception Conditions Directive; Member States may use the mechanism described in Article 22 of the modified proposal for that Directive.

The proposal provides for a wide discretion for Member States as regards the modalities to identify applicants in need of special procedural guarantees if this becomes apparent during the procedure. This may particularly be the case for certain traumatic disorders that may only be revealed over a period of time.

The second paragraph describes, in general terms, the principle that applicants in need of special procedural guarantees shall be granted sufficient time and relevant support to present the elements of the application. This rule aims to provide maximum flexibility to Member States to find the actual modalities to implement this provision in various cases.

Article 25 (corresponds to Article 21 of the 2009 proposal)

The modified proposal essentially extends the obligation of the representative to assist an unaccompanied minor. The scope of assistance has been clarified and made broader with a view to the special procedural needs of unaccompanied minors. Now the provision requires the representative to assist the minor to enable him/her to benefit from all rights and to comply with all obligations laid down in the Directive. The requirement of impartiality has been removed since the representative shall act in the interest of the unaccompanied minor; however, it has been specified that the representative has to act in accordance with the principle of the best interest of the child.

Paragraph 2(b) has been removed given that the fact that a minor is married or has been married does not mean per se that he/she does not need assistance. This reflects possible cases of forced marriages.

In paragraph 3(a), the requirement that an interview shall be conducted by a person who has the necessary knowledge of the special needs of minors has been extended to include also admissibility interviews.

Paragraph 4 clarifies that not only the unaccompanied minor but also his/her representative shall be provided with legal and procedural information free of charge and that this also applies to the case of withdrawal of a status, thus covering all procedures under the Directive.

Paragraph 5 introduces a change with regard to medical examinations for minors to determine the age stating that if the examination could not reach a clear conclusion in this respect, the applicant shall be considered as a minor.

Paragraph 6 excludes the possibility to apply the "merits test" to the provision of free legal assistance and representation in case of appeals procedures in order to ensure that the interest of these unaccompanied minor applicants are protected.

Article 26 (corresponds to Article 22 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 27 (corresponds to Article 23 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 28 (corresponds to Article 24 of the 2009 proposal)

This Article provides for the possibility to reject an application as unfounded if it is considered implicitly withdrawn on the condition that the application was adequately examined after a personal interview.

Paragraph 2 provides for the possibility for applicants who report again after an implicit withdrawal to make a new application after the case was discontinued. As a general rule, this new application cannot be considered as a subsequent application. As a consequence, it cannot be considered inadmissible on the basis that it does not contain new elements. Nevertheless, if the applicant reports again more than one year after the previous application was considered withdrawn, Member States are not obliged by the Directive to reopen the case and can process the new application as a subsequent application. These provisions aim to provide tools to combat abusive repeat applications.

Article 29 (corresponds to Article 25 of the 2009 proposal)

The wording of paragraph 1(a) has been aligned with other articles of the Directive which does not change the content of the provision.

Article 30 (corresponds to Article 26 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 31 (corresponds to Article 27 of the 2009 proposal)

The modified proposal introduces several changes as regards the examination procedure at first instance and accelerated procedures. The changes aim to accommodate specificities of Member States' national systems and to ensure more flexibility and efficient means to deal with abuse.

Paragraph 3 retains the general six-month deadline for the conclusion of the procedure at first instance. Nevertheless, two additional exceptions have been introduced, namely in case where large number of applicants lodge applications simultaneously and where the determining authority cannot keep the deadline due to the failure of the applicant to comply with his/her obligations.

Member States may also postponeconcluding the procedure in case where the determining authority cannot take a decision due to an uncertain situation in the country of origin which is expected to be temporary. In this case Member States may exceed the six+six month time limit. However, the applicant shall keep his/her applicant status.

The grounds for prioritisation have been amended in order to align the Directive with the modified proposal on Reception Conditions Directive: Member States may prioritise an examination when the applicant is vulnerable. The terminology has also been adjusted to the new term "applicants in need of special procedural guarantees". Unaccompanied minors have been also expressly referred to where the prioritisation may be particularly justified.

Paragraph 6 clarifies that the grounds under this paragraph may be used for both acceleration and examination at the border. This change accommodates the national systems of Member States which apply the general procedure at the border. Nevertheless, the list of cases that can be accelerated or examined at the border remains exhaustive.

Two grounds for acceleration (and border procedure) have been reintroduced:

(e) reintroduces point (g) of the 2005 Directive. This ground aims to provide the possibility to deal efficiently with abusive cases. The wording has been adjusted, stipulating that this ground can be used where the applicant has made clearly false or obviously improbable representations which contradict sufficiently verified country-of-origin information. This change aims to add an objective element to this ground.

(g) reintroduces point (m) of the 2005 Directive which concerns cases of threat to national security or public order. It has been clarified that an application can be accelerated if there are serious reasons to consider an applicant as a danger to national security.

Paragraph 7 of the 2009 proposal has been deleted. The requirement to ensure an adequate and complete examination has been moved to new paragraph 7. Rules on manifestly unfounded applications were deleted since Article 28 of the 2005 Directive has been reintroduced that covers these rules.

Article 32 (corresponds to Article 28 of the 2005 Directive)

This Article corresponds to Article 28 of the 2005 Directive. The change in content concerns national security cases since this is the only acceleration ground that cannot be considered as manifestly unfounded, given that in these cases the reason for acceleration is not based on the consideration that the claim is ill-founded. Article 28 of the 2009 proposal has been removed since it covered the same rules.

Article 33 (corresponds to Article 29 of the 2009 proposal)

Point (d) has been amended because the term "identical" was very restrictive and made the application of this inadmissibility ground impossible in practice and incompatible with the rules on subsequent applications it was meant to serve. The modified proposal clarifies that this inadmissibility ground can be used if there are no new elements in case of a subsequent application. The link to subsequent applications (and their definition) has been made clearer.

Article 34 (corresponds to Article 30 of the 2009 proposal)

The rules have been aligned with the general rules on the personal interview. This concerns the requirement that the interviewer should not wear a military or law enforcement uniform.

Article 35 (corresponds to Article 31 of the 2009 proposal)

The modified proposal foresees the explicit possibility for the applicant to challenge the application of the first country of asylum notion in his/her particular circumstances.

Article 36 (corresponds to Article 34 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 37 (corresponds to Article 33 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 38 (corresponds to Article 32 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 39 (corresponds to Article 38 of the 2009 proposal)

In the interest of coherence, a new paragraph 6 has been added requiring Member States to inform the Commission periodically about the countries to which the European safe third country concept is applied. This corresponds to an equivalent obligation relating to safe third countries.

Article 40 (corresponds to Article 35 (1)-(7) and (9) of the 2009 proposal)

Rules on repeated or subsequent applications have been significantly clarified in order to ensure efficient handling of such claims. A definition of the term "subsequent application" provides a clear scope for these rules. A subsequent application may be considered inadmissible if there are no new elements which would significantly add to the likelihood that the applicant qualifies for international protection status. The existence of new elements has to be verified through a preliminary examination. If there are new elements, the subsequent application has to be examined in conformity with the general rules. It has been clarified that if there are no new elements, the application shall be considered as inadmissible. The rules on subsequent applications can also be applied in case an unmarried minor lodges a separate application.

Article 41 (corresponds to Article 35 (8)-(9) of the 2009 proposal)

The content of these rules has not been changed, but the text has been restructured to ensure more clarity.

Article 42 (corresponds to Article 36 of the 2009 proposal)

Paragraph 3(b) has been deleted since it is superfluous. This rule is covered by Article 40(3).

Article 43 (corresponds to Article 37 of the 2009 proposal)

This Article remains unchanged. Nevertheless, the changes in Article 31 and 33 extend the scope of the applicability of this Article through references. The additional acceleration grounds allow Member States to examine these cases also in border procedure. The change in the rules on inadmissibility of claims that have no new elements also enables wider use of border procedures.

Article 44 (corresponds to Article 39 of the 2009 proposal)

There are no changes compared to the proposal of 2009.

Article 45 (corresponds to Article 40 of the 2009 proposal)

Paragraph 4 has been changed. Member States may provide that the international protection status shall lapse by law if the beneficiary of the international protection status becomes a citizen of the given Member State.

Article 46 (corresponds to Article 41 of the 2009 proposal)

The rules on the right to an effective remedy have been essentially maintained in order to ensure compliance with the established case law of the Court of Justice of the European Union and the European Court of Human Rights.

The changes concern the following elements:

In paragraph 5, it has been clarified that the applicant shall have the right to remain in the Member State's territory until the deadline to make an appeal.

In paragraph 6, an additional ground has been added where no automatic suspensive effect has to be provided: this is the case where the application has been considered inadmissible because another Member State has already granted refugee status. It has been clarified that exceptions can be made from the principle of automatic suspensive only in case where acceleration or inadmissibility grounds apply. As a consequence of the extension of acceleration grounds under Article 31(6), this paragraph has a wider scope than in the 2009 proposal.

In paragraph 9, the obligation to set deadlines for courts to make a decision on the appeal has been removed in order to accommodate specificities of national judicial systems.

Paragraph 5 of the 2005 Directive has been deleted to ensure consistency with paragraph 2 and with the Qualification Directive.