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|
Recast Qualification Directive
Recast Asylum Procedures Directive
Recast Reception Conditions Directive
|Art 20(5)||Art 55^1 Asylum Decree||According to article 20(5) decisions for reduction or withdrawal of material reception conditions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 21, taking into account the principle of proportionality. Member States shall ensure a dignified standard of living for all applicants. These provisions were not transposed in the Asylum Act and Decree.|
|Regulation (EU) No 604/2013
Dublin III Regulation
|18(2)||94^1 Asylum Act||For persons whose applications are considered to have been tacitly withdrawn, i.e. persons who have left Romania and moved on to another EU Member State, and the asylum procedure has been discontinued, the asylum procedure may be continued if the person makes an asylum claim within 9 months of the decision to close the file, issued in case of implicit withdrawal. If the time limit has expired, the asylum claim is considered a Subsequent Application.
Therefore, persons who withdraw their asylum applications and have not left the territory of the EU for at least 3 months or have not been returned to a third country or to the country of origincannot continue their asylum procedure in case they return to Romania. As a consequence, they will have to lodge a subsequent application.
This is not in line with the second paragraph of the article 18(2), which clearly states that when the Member State responsible had discontinued the examination of an application following its withdrawal by the applicant before a decision on the substance has been taken at first instance, that Member State shall ensure that the applicant is entitled to request that the examination of his or her application be completed or to lodge a new application for international protection, which shall not be treated as a subsequent application. Moreover, the Dublin III Regulation does not foresee a time limit for the possibility to continue the asylum procedure.
The Romanian Asylum Act does not prescribe the possibility to continue the asylum procedure if the previous application of the returned person has been rejected at first instance. In this case the person returned has to submit a subsequent application. According to Article 18(2), Member States responsible shall ensure that the person whose application was rejected only at first instance has or has had the opportunity to seek an effective remedy.