Agreement

between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland

THE EUROPEAN COMMUNITY

and

THE SWISS CONFEDERATION,

hereinafter referred to as the "Contracting Parties",

WHEREAS the Council of the European Union has adopted Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [1] (hereinafter referred to as the Dublin Regulation), which replaced the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed in Dublin on 15 June 1990 [2] (hereinafter referred to as the Dublin Convention), and whereas the Commission of the European Communities has adopted Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, [3] hereinafter referred to as the "Dublin implementing Regulation";

WHEREAS the Council of the European Union has adopted Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention with a view to helping to determine the Contracting Party responsible for examining an asylum application in accordance with the Dublin Convention [4] (hereinafter referred to as the Eurodac Regulation) and Council Regulation (EC) No 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention [5] (hereinafter referred to as the Eurodac implementing Regulation);

WHEREAS Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [6] (hereinafter referred to as the protection of personal data Directive) is to be applied by the Swiss Confederation as applied by the Member States of the European Union when processing data for the purposes of this Agreement;

CONSIDERING the geographical position of the Swiss Confederation;

WHEREAS the participation of the Swiss Confederation in the Community acquis covered by the Dublin and Eurodac Regulations (hereinafter referred to as the Dublin/Eurodac acquis) will help to strengthen cooperation between the European Community and the Swiss Confederation;

WHEREAS the European Community has concluded an Agreement with the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway [7] based on the Dublin Convention;

WHEREAS it is desirable that the Swiss Confederation be associated on an equal footing with Iceland and Norway in the implementation, application and development of the Dublin/Eurodac acquis;

WHEREAS an Agreement should be concluded between the European Community and the Swiss Confederation containing rights and obligations similar to those agreed between the European Community, of the one part, and Iceland and Norway, of the other part;

CONVINCED of the need to organise cooperation between the European Community and the Swiss Confederation as regards the implementation, practical application and further development of the Dublin/Eurodac acquis;

WHEREAS it is necessary, in order to associate the Swiss Confederation with the activities of the European Community in the fields covered by this Agreement and to enable it to participate in those activities, to set up a committee in accordance with the institutional model established for the association of Iceland and Norway;

WHEREAS cooperation in the areas covered by the Dublin and Eurodac regulations is based on the principles of freedom, democracy, the rule of law and respect for human rights, as guaranteed in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;

WHEREAS the provisions of Title IV of the Treaty establishing the European Community and the acts adopted on the basis of that Title do not apply to the Kingdom of Denmark pursuant to the Protocol on the position of Denmark annexed by the Treaty of Amsterdam to the Treaty on European Union and to the Treaty establishing the European Community, but it should be made possible for the Swiss Confederation and Denmark to apply the substantive provisions of this Agreement in their relations with each other;

WHEREAS it is necessary to ensure that the States with which the European Union has established an association for the purpose of implementing, applying and developing the Dublin/Eurodac acquis also apply this acquis in their relations with each other;

WHEREAS the smooth operation of the Dublin/Eurodac acquis requires that this Agreement be applied simultaneously with the Agreements between the various parties associated with or participating in the implementation and development of the Dublin/Eurodac acquis governing their mutual relations;

CONSIDERING the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis;

BEARING IN MIND the link between the Schengen acquis and the Dublin/Eurodac acquis;

WHEREAS this link requires that the Dublin/Eurodac acquis be applied simultaneously with the Schengen acquis,

HAVE AGREED AS FOLLOWS:

Article 1

1. The provisions of the

- Dublin Regulation;

- Eurodac Regulation;

- Eurodac implementing Regulation; and,

- the Dublin implementing Regulation

shall be implemented by the Swiss Confederation, hereinafter referred to as "Switzerland", and applied in its relations with the Member States of the European Union, hereinafter referred to as "the Member States".

2. The Member States shall apply the Regulations referred to in paragraph 1 to Switzerland.

3. The acts and measures taken by the European Community amending or building upon the provisions referred to in paragraph 1 and the decisions taken in accordance with the procedures set out in those provisions shall also, without prejudice to Article 4, be accepted, implemented and applied by Switzerland.

4. The provisions of the protection of personal data Directive as applicable to the Member States with regard to data processed for the purposes of implementing and applying the provisions referred to in paragraph 1 shall be implemented and applied, mutatis mutandis, by Switzerland.

5. For the purposes of paragraphs 1 and 2, references to the "Member States" in the provisions referred to in paragraph 1 shall be deemed to include Switzerland.

Article 2

1. When new legislation is drafted amending or building upon the provisions of Article 1, the Commission of the European Communities, hereinafter referred to as the "Commission", shall informally consult the Swiss experts in the same way as it consults the experts of the Member States when drafting its proposals.

2. When transmitting its proposals referred to in paragraph 1 to the European Parliament and the Council of the European Union, hereinafter referred to as the "Council", the Commission shall transmit copies thereof to Switzerland.

At the request of one of the Contracting Parties, a preliminary exchange of views may be held in the Mixed Committee set up pursuant to Article 3.

3. The Contracting Parties shall consult each other again, at the request of one of their number, in the Mixed Committee, at important points in the stage prior to adoption of the legislation referred to in paragraph 1, in a continuous process of information provision and consultation.

4. The Contracting Parties shall work together in good faith during the information provision and consultation stage with a view to facilitating the activities of the Mixed Committee at the end of the process, in accordance with this Agreement.

5. The Swiss Government's representatives shall have the right to put forward suggestions in the Mixed Committee as regards the matters referred to in paragraph 1.

6. The Commission shall ensure that the Swiss experts participate as widely as possible, depending on the areas concerned, in preparing draft measures to be submitted subsequently to the committees which assist the Commission in the exercise of its executive powers. Accordingly, when drawing up its proposals, the Commission shall consult the Swiss experts on the same basis as the experts from the Member States.

7. Where the matter is referred to the Council in accordance with the procedure applying to the type of committee in question, the Commission shall transmit to the Council the views of the Swiss experts.

Article 3

1. A Mixed Committee shall be established consisting of representatives of the Contracting Parties.

2. The Mixed Committee shall adopt its own Rules of Procedure by consensus.

3. The Mixed Committee shall meet at the initiative of its President or at the request of any of its members.

4. The Mixed Committee shall meet at the appropriate level, depending on needs, with a view to examining the implementation and practical application of the provisions referred to in Article 1 and to holding an exchange of views on drawing up acts and measures amending or building upon the provisions referred to in Article 1.

All exchanges of information concerning this Agreement shall be deemed to have taken place in accordance with the Mixed Committee's terms of reference.

5. The office of President of the Mixed Committee shall be held alternately, for a period of six months, by the representative of the European Community and by the representative of the Swiss Government.

Article 4

1. Subject to paragraph 2, when the Council adopts acts or measures amending or building upon the provisions of Article 1 and when acts or measures are adopted in accordance with the procedures set out in those provisions, those acts or measures shall be applied simultaneously by the Member States and Switzerland, except where express provisions exist to the contrary.

2. The Commission shall notify Switzerland without delay of the adoption of the acts or measures referred to in paragraph 1. Switzerland shall decide whether to accept their contents and to implement them in its internal legal order. This decision shall be notified to the Commission within thirty days of the adoption of the acts or measures concerned.

3. If the contents of such acts or measures can become binding on Switzerland only after the fulfilment of constitutional requirements, Switzerland shall inform the Commission of this at the time of its notification. Switzerland shall promptly inform the Commission in writing upon fulfilment of all constitutional requirements. Where a referendum is not required, notification shall take place as soon as the referendum deadline expires. If a referendum is required, Switzerland shall have a maximum of two years from the date of the Commission's notification in which to effect notification. From the date laid down for the entry into force of the act or measure for Switzerland and until it has given notification that the constitutional requirements have been met, Switzerland shall, where possible, implement the act or measure in question on a provisional basis.

4. If Switzerland cannot implement the act or measure at issue on a provisional basis, and if this causes difficulties that disrupt the operation of Dublin/Eurodac cooperation, the situation shall be examined by the Mixed Committee. The European Community may take proportionate, necessary measures against Switzerland to ensure that Dublin/Eurodac cooperation operates smoothly.

5. Acceptance by Switzerland of the acts and measures referred to in paragraph 1 shall create rights and obligations between Switzerland and the Member States of the European Union.

6. If:

(a) Switzerland notifies its decision not to accept the contents of an act or measure referred to in paragraph 1 and to which the procedures set out in this Agreement have been applied; or if

(b) Switzerland does not carry out notification within the thirty-day time limit referred to in paragraph 2, or if

(c) Switzerland does not carry out notification after the referendum deadline has expired or, in the case of a referendum, within the two-year time limit set out in paragraph 3, or does not provide for provisional implementation as envisaged in the same subparagraph from the date laid down for the entry into force of the act or measure concerned;

this Agreement shall be suspended.

7. The Mixed Committee shall examine the matter which gave rise to suspension and shall endeavour to deal with the causes of non-acceptance or non-ratification within 90 days. After examining all other options with a view to ensuring that the Agreement continues to operate smoothly, including the possibility of noting that the Contracting Parties' laws and regulations are equivalent, it may decide, on a unanimous basis, to reinstate this Agreement. If this Agreement is still suspended after 90 days, it shall cease to be applicable.

Article 5

1. In order to achieve the Contracting Parties' objective of ensuring the most uniform possible application and interpretation of the provisions referred to in Article 1, the Mixed Committee shall keep under constant review developments in the case-law of the Court of Justice of the European Communities, hereinafter referred to as the "Court of Justice", and in the case-law relating to such provisions of the competent Swiss courts. To that end the Contracting Parties shall ensure the prompt mutual transmission of such case-law.

2. Switzerland shall have the right to submit statements of case or written observations to the Court of Justice in cases where a court in a Member State has applied to the Court of Justice for a preliminary ruling concerning the interpretation of the provisions referred to in Article 1.

Article 6

1. Each year Switzerland shall report to the Mixed Committee on the way in which its administrative authorities and courts have applied and interpreted the provisions referred to in Article 1, as interpreted, where relevant, by the Court of Justice.

2. If, within two months of being notified of a substantial divergence between Court of Justice case-law and that of Switzerland's courts or of a substantial divergence between the authorities of the Member States concerned and the Swiss authorities in their application of the provisions referred to in Article 1, the Mixed Committee is unable to ensure a uniform application and interpretation, the procedure provided for in Article 7 shall be initiated.

Article 7

1. In the event of a dispute about the application or interpretation of this Agreement or where the situation provided for in Article 6(2) occurs, the matter shall be officially entered as a matter of dispute on the agenda of the Mixed Committee.

2. The Mixed Committee shall have 90 days to settle the dispute, counting from the date of adoption of the agenda on which the dispute has been placed.

3. Where the dispute cannot be settled by the Mixed Committee within the 90-day deadline provided for in paragraph 2, this deadline shall be extended by a further 90 days with a view to reaching a final settlement. If, at the end of that period, the Mixed Committee has not taken a decision, this Agreement shall cease to be applicable at the end of the last day of the period in question.

Article 8

1. With regard to the administrative and operating costs associated with the setting-up and operation of the Eurodac central unit, Switzerland shall make a contribution to the general budget of the European Communities amounting to 7,286 % of an initial reference amount of EUR 11675000 and, from the 2004 financial year, an annual contribution amounting to 7,286 % of the corresponding budgetary appropriations for the financial year in question.

As for the other administrative and operating costs associated with implementing this Agreement, Switzerland shall contribute to the general budget of the European Communities an annual sum calculated in accordance with its gross domestic product as a percentage of the gross domestic product of all the participating States.

2. Switzerland shall have the right to receive documents pertaining to this Agreement and, at meetings of the Mixed Committee, to request interpreting into an official language of the institutions of the European Communities of its choosing.

Article 9

The Swiss national supervisory body entrusted with data protection and the independent supervisory body established pursuant to Article 286(2) of the Treaty establishing the European Community shall cooperate to the extent necessary to carry out their duties and, in particular, shall exchange any relevant information. The two bodies shall determine arrangements governing their mutual cooperation by joint agreement.

Article 10

1. This Agreement shall not affect in any respect the other agreements concluded between the European Community and Switzerland.

2. This Agreement shall not affect in any respect any future agreements concluded with Switzerland by the European Community.

Article 11

1. The Kingdom of Denmark may request to participate in this Agreement. The Contracting Parties, acting with the consent of the Kingdom of Denmark, shall lay down the conditions governing such participation in a protocol to this Agreement.

2. Switzerland shall conclude an agreement with the Republic of Iceland and the Kingdom of Norway on the creation of reciprocal rights and obligations pursuant to their respective associations with the implementation, application and development of the Dublin/Eurodac acquis.

Article 12

1. This Agreement shall be ratified or approved by the Contracting Parties. Instruments of ratification or approval shall be deposited with the Secretary General of the Council, who shall be the depositary.

2. This Agreement shall enter into force on the first day of the month following notification by the depositary to the Contracting Parties that the final instrument of ratification or approval has been deposited.

3. Articles 2, 3 and the first sentence of Article 4(2) shall apply provisionally as of the date on which this Agreement is signed.

Article 13

With respect to acts or measures adopted after this Agreement has been signed but before it enters into force, the thirty-day period referred to in the last sentence of Article 4(2) shall start to run from the day of entry into force of this Agreement.

Article 14

1. This Agreement shall be applied only if the agreements referred to in Article 11 are also implemented.

2. In addition, this Agreement shall be implemented only if the Agreement concluded between the European Union, the European Community and the Swiss Confederation concerning the Swiss Confederation's association with the implementation, application and development of the Schengen acquis is also implemented.

Article 15

1. Liechtenstein may accede to this Agreement.

2. The accession of Liechtenstein shall be the subject of a protocol to this Agreement setting out all the consequences of accession, including the creation of rights and obligations between Liechtenstein and Switzerland, and between Liechtenstein, of the one part, and the European Community and its Member States, in so far as they are bound by this Agreement, of the other part.

Article 16

1. Each Contracting Party may terminate this Agreement by sending a declaration in writing to the depositary. This declaration shall take effect six months after being deposited.

2. This Agreement shall be considered to have been denounced if Switzerland denounces one of the agreements referred to in Article 11 or the agreement referred to in Article 14(2).

Article 17

1. This Agreement shall be drawn up in duplicate in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Polish, Portuguese, Slovenian, Slovak, Spanish and Swedish languages, each of these texts being equally authentic.

2. The Maltese language version of this Agreement shall be authenticated by the Contracting Parties on the basis of an Exchange of Letters. It shall also be authentic in the same way as for the languages referred to in paragraph 1.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries have hereunto set their hands.

Hecho en Luxemburgo, el veintiséis de octubre de dos mil cuatro.

V Lucemburku dne dvacátého šestého října dva tisíce čtyři.

Udfærdiget i Luxembourg den seksogtyvende oktober to tusind og fire.

Geschehen zu Luxemburg am sechsundzwanzigsten Oktober zweitausendvier.

Kahe tuhande neljanda aasta oktoobrikuu kahekümne kuuendal päeval Luxembourgis.

Έγινε στo Λουξεμβούργο, στις είκοσι έξι Οκτωβρίου δύο χιλιάδες τέσσερα.

Done at Luxembourg on the twenty-sixth day of October in the year two thousand and four.

Fait à Luxembourg, le vingt-six octobre deux mille quatre.

Fatto a Lussemburgo, addì ventisei ottobre duemilaquattro.

Luksemburgā, divi tūkstoši ceturtā gada divdesmit sestajā oktobrī.

Priimta du tūkstančiai ketvirtų metų spalio dvidešimt šeštą dieną Liuksemburge.

Kelt Luxembourgban, a kettőezer-negyedik év október havának huszonhatodik napján.

Magħmula fil-Lussemburgu fis- sitta u għoxrin jum ta' Ottubru tas-sena elfejn u erbgħa.

Gedaan te Luxemburg, de zesentwintigste oktober tweeduizend vier.

Sporządzono w Luksemburgu dnia dwudziestego szóstego października roku dwa tysiące czwartego.

Feito no Luxemburgo, em vinte e seis de Outubro de dois mil e quatro.

V Luxemburgu dvadsiateho šiesteho októbra dvetisícštyri.

V Luxembourgu, dne šestindvajsetega oktobra leta dva tisoč štiri.

Tehty Luxemburgissa kahdentenakymmenentenäkuudentena päivänä lokakuuta vuonna kaksituhattaneljä.

Som skedde i Luxemburg den tjugosjätte oktober tjugohundrafyra.

Por la Comunidad Europea

Za Evropské společenství

For Det Europæiske Fællesskab

Für die Europäische Gemeinschaft

Euroopa Ühenduse nimel

Για την Ευρωπαϊκή Κοινότητα

For the European Community

Pour la Communauté européenne

Per la Comunità europea

Eiropas Kopienas vārdā

Europos bendrijos vardu

az Európai Közösség részéről

Għall-Komunità Ewropea

Voor de Europese Gemeenschap

W imieniu Wspólnoty Europejskiej

Pela Comunidade Europeia

Za Európske spoločenstvo

Za Evropsko skupnost

Euroopan yhteisön puolesta

På Europeiska gemenskapens vägnar

+++++ TIFF +++++

Für die Schweizerische Eidgenossenschaft

Pour la Confédération suisse

Per la Confederazione svizzera

+++++ TIFF +++++

[1] OJ L 50, 25.2.2003, p. 1.

[2] OJ C 254, 19.8.1997, p. 1.

[3] OJ L 222, 5.9.2003, p. 3.

[4] OJ L 316, 15.12.2000, p. 1.

[5] OJ L 62, 5.3.2002, p. 1.

[6] OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 3.10.2003, p. 1).

[7] OJ L 93, 3.4.2001, p. 38.

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