This report concerns the application of Council Directive 2004/83/EC 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 Directive is one of the building blocks of the first phase of the Common European Asylum System, called for by the European Council in its 1999 Tampere Conclusions. It is applicable to all Member States except Denmark.

The report meets the Commission's obligation under Article 37 of the Directive. It gives an overview of the transposition and implementation of the Directive by Member States and identifies possible problematic issues.

For those Member States which had not adopted the necessary transposing legislation at the time of preparation of the report, relevant information was gathered on the basis of draft legislation available at that time and fragmentary information obtained since the adoption of the transposing legislation.

Monitoring and state of transposition : Member States had to transpose the Directive by 10 October 2006. The Commission assisted the Member States in the process by holding regular meetings with national experts. Following expiry of the deadline for transposition, infringement procedures were opened against all Member States which failed to communicate or to fully communicate their transposition measures. Subsequently, in accordance with Article 226 of the Treaty, the Commission addressed 19 letters of formal notice and 13 reasoned opinions . The decision to bring the cases before the Court of Justice was taken against 9 Member States. Five cases were withdrawn and judgments were given for 4. At present, the Directive has been transposed by all Member States .

Conclusion : several issues of incomplete and/or incorrect transposition of the Directive have been identified. This includes the implementation of standards lower than those established by the Directive. Deficiencies were identified in the provisions of the directive themselves, the vagueness and ambiguity of several concepts such as actors of protection, internal protection, membership of a particular social group leaving room for widely divergent interpretations by the Member States. Thus, important disparities subsist among Member States in the granting of protection and the form of the protection granted . Furthermore, an important share of decisions at first instance based on criteria which are insufficiently clear and precise are overturned on appeal.

The evaluation of the implementation of the Directive shows that in practice few Member States make use of the possibility to differentiate between refugees and beneficiaries of subsidiary protection in terms of the content of the protection granted. On the other hand, the level of protection granted in different Member States differs, which affects asylum flows and is a cause of secondary movements.

The present report shows that the objective of creating a level playing field with respect to the qualification and status of beneficiaries of international protection and to the content of the protection granted has not been fully achieved during the first phase of harmonization.

The Commission will continue to examine and pursue all cases where problems of transposition and/or implementation were identified, so as to ensure the correct application of the common standards set by the Directive in particular with regard to the full respect of the rights laid down in the EU Charter of Fundamental Rights as well as to reduce the scope for divergences. The divergences in the implementation by Member States of the Directive which are due to the vagueness and the ambiguity of the standards themselves could only be addressed by the legislative amendment of the relevant provisions. On the basis of a thorough evaluation of the implementation of the Directive, the Commission adopted on 21 October 2009 a proposal to recast the Qualification Directive in order to remedy to the deficiencies identified.

COM(2010)0314
EUR-Lex

PURPOSE : to provide a framework for an international protection regime based on minimum standards for qualification as refugees and those in need of subsidiary protection

LEGISLATIVE ACT : Council Directive 2004/83/EC 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.

CONTENT : This Directive comes about as the result of the Tampere conclusions, which provided that a Common European Asylum System must include the approximation of rules on the recognition of refugees and the content of refugee status. The Tampere conclusions also provided that rules regarding refugee status should be complemented by measures on subsidiary forms of protection, offering an appropriate status to any person in need of such protection.

This Directive ensures that Member States apply common criteria for the identification of persons genuinely in need of international protection, and that a minimum level of benefits is available for these persons in all Member States. The main points are as follows:

- minimum standards for the definition and content of refugee status are laid down to guide the competent national bodies of Member States in the application of the Geneva Convention;

- the Directive introduces common concepts of protection needs arising sur place; sources of harm and protection; internal protection; and persecution, including the reasons for persecution;

- when assessing applications from minors for international protection, Member States must have regard to child-specific forms of persecution;

- the best interests of the child will be a primary consideration of Member States when implementing the Directive.

- the Directive introduces a common concept of the persecution ground "membership of a particular social group" ;

- minimum standards for the definition and content of subsidiary protection status are laid down. The directive defines criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection;

- risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm;

- within the limits set out by international obligations, Member States may lay down that the granting of benefits with regard to access to employment, social welfare, health care and access to integration facilities requires the prior issue of a residence permit;

- with regard to social assistance and health care, the modalities and detail of the provision of core benefits to beneficiaries of subsidiary protection status should be determined by national law. The possibility of limiting the benefits for beneficiaries of subsidiary protection status to core benefits is to be understood in the sense that this notion covers at least minimum income support, assistance in case of illness, pregnancy and parental assistance, in so far as they are granted to nationals according to the legislation of the Member State concerned;

- access to health care, including both physical and mental health care, must be ensured to beneficiaries of refugee or subsidiary protection status.

Lastly, it should be noted that Ireland will take part in the adoption of the Directive.

DATE OF TRANSPOSITION : 10/10/2006.

ENTRY INTO FORCE : 20/10/2004.

Directive 2004/83
OJ L 304 30.09.2004, p. 0012-0023

2514

2504

2489

T5-0494/2002
OJ C 300 11.12.2003, p. 0025-0134 E

T5-0494/2002

Debate in Parliament

2455

A5-0333/2002

A5-0333/2002

CES0683/2002
OJ C 221 17.09.2002, p. 0043

CDR0093/2002
OJ C 278 14.11.2002, p. 0044

EUR-Lex
COM(2001)0510
OJ C 051 26.02.2002, p. 0325 E

EUR-Lex
COM(2001)0510