Author
The following section contains an overview of incompatibilities in transposition of the CEAS in national legislation:
| Directive | Provision | Domestic law provision | Non-transposition or incorrect transposition |
| Directive 2011/95/EU
Recast Qualification Directive |
– | – | – |
| Directive 2013/32/EU
Recast Asylum Procedures Directive |
28(1) | Article 81(1) IPA | The Directive requires Member States to ensure that the determining authority can either discontinue the procedure or, in case it is satisfied on the basis of available evidence that the claim is unfounded, to issue a rejection decision.
Article 81(1) IPA only provides that, in the case of implicit withdrawal, the determining authority shall reject an application as unfounded after adequate examination. Accordingly, (i) it does not permit the Asylum Service to discontinue the procedure, and (ii) does not clearly condition the issuance of a negative decision on the authority being satisfied on the basis of available evidence that the claim is unfounded. The provision has therefore incorrectly transposed the Directive. NOTE: Article 81 (1) of the IPA has been amended by Article 13(1) of L. 4686/2020, Gov. Gazette Α 96/12 May 2020. The May 2020 amendment provides for the possibility of discontinuing the procedure in case of an implicit withdrawal and if an adequate examination of the substance of the Application is not possible.
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| 31(8) | Article 83(9) IPA | The IPA exceeds the permissible grounds for applying the accelerated procedure, given that it foresees as grounds for using the procedure cases where the applicant (i) refuses to comply with the obligation to be fingerprinted under domestic legislation, or (ii) is a vulnerable person or a person in need of special procedural guarantees who receives adequate support.
Article 31(8) of the Directive does not allow for vulnerability or need of special procedural guarantees to be deemed per se a reason for subjecting an applicant to the accelerated procedure. It should be recalled that the accelerated procedure under the IPA entails shorter deadlines and a derogation from automatic suspensive effect of appeals. NOTE: Article 61 L. 4686/2020, Gov. Gazette Α 96/12 May 2020 abolished the vulnerability/special procedural guarantees as a ground for applying the accelerated procedure. |
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| 32(2) | Article 88(2) IPA
Article 78(9) IPA Article 97 IPA
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Under the Directive, Member States may only consider an application as manifestly unfounded where one of the grounds laid down in Article 31(8) apply. The IPA has transposed this provision in Article 88(2) IPA, which includes all ten of those grounds.
However, Article 78 (9) IPA adds that “failure to comply with the obligation to cooperate with the competent authorities… in particular non-communication with the authorities and non-cooperation in the establishment of the necessary elements of the claim” constitutes a ground for deeming the application manifestly unfounded pursuant to Article 88(2). Moreover, Article 97 IPA provides that in case that the Applicant does not comply with the obligation to present himself/herself before the Appeals Committee on the day of the examination of the Appeal, the Appeal is rejected as manifestly unfounded. Articles 78(9) and 97 IPA introduce additional grounds on which an application can be considered as manifestly unfounded grounds beyond the boundaries set by Article 32(2) of the Directive. NOTE: Article 78(9) IPA has been amended by Article 11(3) L. 4686/2020, Gov. Gazette Α 96/12 May 2020. According to the amendment introduced the “failure of the applicant to comply with the obligation to cooperate with the authorities” is considered as a ground for considering that the application has been implicitly withdrawn. However, according to Article 17(1) L. 4686/2020, added an additional ground for considering an application as manifestly unfounded in Article 88(2) IPA. In accordance with said amendment, an application can be considered as manifestly unfounded in case that “the applicant has grossly not complied with his/her obligation to cooperate with the authorities”. This is also a ground beyond Article 32(2) of the Directive. |
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| 38 (2) | Article 86(1) IPA | Article 86(1)(f) IPA, with regards the safe third country concept, provides that transit through a third country may be considered as such a “connection” in conjunction with specific circumstances, on the basis of which it would be reasonable for that person to go to that country. In LH the CJEU ruled that “the transit of the applicant from a third country cannot constitute as such a valid ground in order to be considered that the applicant could reasonably return in this country”, C‑564/18 (19 March 2020), which sheds doubts on the compatibility of the provision with Article 38(2) of the Directive. Moreover, contrary to Article 38(2) of the Directive, national law does not foresee the methodology to be followed by the authorities in order to assess whether a country qualifies as a “safe third country” for an individual applicant. | |
| 46(6)(a) | 104(2)(c) | The IPA provides that appeals against decisions declaring an application manifestly unfounded are never automatically suspensive, even where they are based on the applicant not applying as soon as possible. This is contrary to the Directive, which states that appeals against manifestly unfounded applications based on Article 32(2) in conjunction with Article 31(8)(h) have automatic suspensive effect.
NOTE: Article 104(2) IPA has been amended by Article 26(2) L. 4686/2020. Subparagraph (c) of Article 104(2) IPA is not included in the amended provision. |
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| Directive 2013/33/EU
Recast Reception Conditions Directive |
20(4) | Article 57(4) IPA | The IPA allows for the withdrawal of material reception conditions where the applicant seriously breaches the house rules of reception centres or demonstrates violent conduct. Such a measure is not permitted by the Directive, as clarified by the CJEU in Haqbin. |