Rs 0.142.392.68 26 October 2004 Agreement Between The Swiss Confederation And The European Community Concerning The Criteria And Mechanisms For Establishing The State Responsible For Examining A Request For Asylum Lodged In A Member State Or S

Original Language Title: RS 0.142.392.68 Accord du 26 octobre 2004 entre la Confédération suisse et la Communauté européenne relatif aux critères et aux mécanismes permettant de déterminer l’Etat responsable de l’examen d’une demande d’asile introduite dans un Etat membre ou en S

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0.142.392.68 original text agreement between the Swiss Confederation and the Community European criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland concluded on 26 October 2004 and approved by the Federal Assembly on December 17, 2004 Instrument of Swiss ratification deposited on 20 March 2006, entered into force March 1, 2008 (status March 1, 2008) the Swiss Confederation and the Community European hereinafter referred to as "the Contracting Parties", whereas the Council of the European Union adopted 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 (hereinafter referred to as the 'Dublin regulation'), which replaced the Dublin convention determining the State responsible for examining an asylum application lodged in one of the States members of the European communities, signed in Dublin on 15 June 1990 (hereinafter referred to as the 'Dublin convention'), and the Commission of the European communities adopted Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of 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 (hereinafter referred to as "regulation implementing of") Dublin');
whereas the Council of the European Union adopted Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ' Eurodac ' for the comparison of fingerprints for the purposes of the effective application of the Dublin convention to help determine the contracting party who is responsible for the review of an application for asylum in accordance with the Dublin convention (hereinafter referred to as the "Eurodac regulation") and Regulation (EC) no 407/2002 of 28 February 2002 laying down certain detailed rules for the application of Regulation No 2725/2000 concerning the establishment of ' Eurodac ' for the comparison of fingerprints for the purposes of the effective application of the Dublin convention (hereinafter referred to as 'regulation implementing Eurodac');
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 data personal and on the free movement of such data (hereinafter "directive on the protection of the personal data") shall be applied by the Swiss Confederation as it is applied by the Member States of the European Union when dealing with data for the purposes of this agreement;
having regard to the geographical position of the Swiss Confederation;
Whereas participation by the Swiss Confederation in the Community acquis covered by the regulations 'Dublin' and 'Eurodac' (hereinafter "the Dublin/Eurodac acquis") will 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 on the basis of the Dublin convention;
Whereas it is desirable that the Swiss Confederation is associated on an equal footing with the Iceland and the Norway to the implementation, application and development of the Dublin/Eurodac ';
Whereas it is appropriate to conclude between the European Community and the Swiss Confederation an agreement which contains rights and obligations similar to those agreed between the European Community of the one part, and the Iceland and Norway, on the other hand;
convinced that it is necessary to organize cooperation between the European Community and the Swiss Confederation with regard to the implementation, practical application and the later development of the Dublin/Eurodac ';
Whereas it is necessary, in order to associate the Swiss Confederation to the activities of the European Community in the fields covered by this agreement and to allow its participation in those activities, according to the institutional model to set up a Committee in place for the association of the Iceland and Norway;
whereas that cooperation in the fields covered by the regulations 'Dublin' and 'Eurodac' is based on the principles of freedom, democracy, rule of law and respect for human rights, as guaranteed in particular by the European Convention for the protection of the rights of man 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 title does 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 the Union European and to the Treaty establishing the Community European, but that should create the possibility for the Swiss Confederation and the Denmark to apply , in their mutual relations, the substantive provisions of this agreement;
Whereas it is necessary to ensure that the States with which the European Community has created an association to the implementation, application and development of the ' Dublin/Eurodac' acquis, apply this acquis also in their mutual relations;
whereas the proper functioning of the acquis ' Dublin/Eurodac' demand simultaneous application of this agreement with the agreements between the various Parties associated with the implementation and development of the "Dublin/Eurodac acquis" regulating their mutual relations;
having regard to the association of the Swiss Confederation to the implementation, application and development of the Schengen acquis;
whereas the link between the Schengen acquis and acquis "Dublin/Eurodac ';
Whereas this link demand a simultaneous implementation of the ' Dublin/Eurodac' acquis with the Schengen acquis, have agreed to the following provisions: art. 1 1. The provisions: - of the regulation 'Dublin' - 'Eurodac' regulation - the 'modalities of implementation of Eurodac' regulation and - of regulation "modalities for the application of Dublin" are 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 'Member States '.
2. Member States shall apply the regulations referred to the by. 1 in respect of the Switzerland.
3. without prejudice to art. 4, acts and measures taken by the European Community amending or supplementing the provisions in the by. 1 as well as the decisions taken according to the procedures laid down in these provisions are also accepted, implemented and applied by the Switzerland.
4. the provisions of the directive on the protection of the personal data, as they apply to the Member States with regard to the data processed for the purpose of the implementation and the application of the provisions referred to the by. 1, are implemented and applied, mutatis mutandis, by the Switzerland.
5. for the purposes of by. 1 and 2, references to "Member States" contained in the provisions referred to the by. 1 are deemed encompass the Switzerland.

S. 2 1. When developing new legislation amending or supplementing the provisions of art. 1, the Commission of the European communities, hereinafter referred to as 'The Commission' shall consult informally the Swiss experts in the same way that it consults with experts from the Member States for drawing up its proposals.
2. the Commission, when it transmits its mentioned proposals to the by. 1 the European Parliament and the Council of the European Union, hereinafter referred to as 'Council', address copy to the Switzerland.
At the request of one of the Contracting Parties, a preliminary exchange of views may take place within the Joint Committee established under art. 3 3. The Contracting Parties shall consult, at the request of one of them, the Joint Committee at significant moments of the phase preceding the adoption of legislative provisions mentioned in the by. 1, in a continuous information and consultation process.
4. the Contracting Parties shall cooperate in good faith during the information and consultation phase to facilitate, at the end of the process, the activities of the Joint Committee, in accordance with this agreement.
5. representatives of the Government of Switzerland have the right to make suggestions in the Joint Committee with regard to the issues mentioned in the by. 1 6. The Commission shall in the Swiss experts as wide a participation as possible, according to the areas concerned, in the preparation of draft measures to be submitted subsequently to the committees which assist the Commission in the exercise of its executive powers. Thus, the drafting of measures, the Commission shall consult Swiss experts in the same way that experts from the Member States.
7. where the Council is seized in accordance with the procedure applicable to the type of Committee concerned, the Commission shall transmit to the Council the views of the Swiss experts.

S. 3 1. A Joint Committee composed of representatives of the Contracting Parties is hereby established.
2. the Joint Committee shall adopt its rules of procedure by consensus.
3. the Joint Committee shall meet at the initiative of its Chairman / President or at the request of one of its members.

4. the Joint Committee meets at the appropriate level, as appropriate, to consider the implementation and enforcement practices provisions referred to art. 1 and proceed to exchanges of views on the preparation of acts and measures amending or supplementing the provisions referred to in art. 1. all exchanges of information relating to this Agreement shall be considered have taken place under the mandate of the Joint Committee.
5. the Chair of the Joint Committee is exercised, in turn, for a period of six months, by the representative of the European Community and the representative of the Government of Switzerland.

S. 4 1. Subject of by. 2, when the Council adopts acts or measures amending or supplementing the provisions of art. 1 and when acts or measures are adopted in accordance with the procedures laid down by those provisions, such acts or measures are applied simultaneously by the Member States and Switzerland unless otherwise explicit these.
2. the Commission shall notify without delay to the Switzerland the adoption of the acts or measures referred to the by. 1. the Switzerland to decide on acceptance of their content and their implementation in its domestic legal order. This decision is notified to the Commission within a period of 30 days after the adoption of the acts or measures concerned.
3. If the content of the acts or measures referred to above cannot bind the Switzerland that after the fulfilment of constitutional requirements, the Switzerland shall inform the Commission in its notification. The Switzerland shall inform without delay and in writing the Commission of the fulfilment of all constitutional requirements. In the event that a referendum is not requested, the notification takes place immediately at the end of the referendum deadline. If a referendum is required, the Switzerland has to make the notification, a period of two years up to the date of notification of the Commission. From the date set for the entry into force of the Act or of the measure with regard to the Switzerland and until it shall notify the fulfilment of constitutional requirements, the Switzerland apply provisionally, to the extent possible, the content of the Act or measure in question.
4. If the Switzerland cannot apply provisionally the Act or measure in question and that State of fact creates problems disrupting the functioning of the Dublin/Eurodac cooperation, the situation will be discussed by the Joint Committee. The European Community may take measures proportionate and necessary to ensure the proper functioning of the Dublin/Eurodac cooperation the Switzerland.
5. the acceptance by the Switzerland of acts and measures referred to the by. 1 creates rights and obligations between the Switzerland and the Member States of the European Union.
(6. If: a) the Switzerland notifies its decision not to accept the content of an act or measure referred to the by. 1, to which the procedures set out in this agreement have been applied, or sib) the Switzerland does not carry out notification within the thirty days period referred to the by. 2, or sic) the Switzerland does not carry out the notification after the deadline of the referendum deadline or in case of referendum, within the period of two years referred to the by. 3, or be involved in the provisional application laid down in the same paragraph from the date set for the entry into force of the Act or of the extent, the agreement is suspended.
7. the Joint Committee considers the issue which led to the suspension and undertook to remedy the causes of the non-acceptance or non-ratification within a period of 90 days. After considering all other possibilities to maintain the good functioning of this agreement, including the ability to take note of the equivalence of legislation, it may decide, unanimously, to reinstate the agreement. In the event that this agreement continues to be suspended after 90 days, it ceases to be applicable.

S. 5 1. In order to achieve the objective of the Contracting Parties to achieve an application and interpretation as uniform as possible of the provisions referred to in art. 1, the Joint Committee constantly monitors the evolution of the case law of the Court of justice of the European communities, hereinafter referred to as the 'Court of justice', as well as the evolution of the jurisprudence of the competent Swiss courts on these provisions. To this end, the Contracting Parties agree to ensure mutual transmission of this case law, without delay.
2. the Switzerland has the right to submit briefs or written observations to the Court of justice when a Court of a Member State enters the Court of justice for a preliminary ruling concerning the interpretation of any provision referred to in art. 1 s. 6 1. Each year, the Switzerland presents a report to the Joint Committee on the manner in which its administrative authorities and their courts have applied and interpreted the provisions referred to in art. 1, as interpreted, where necessary, by the Court of justice.
2. If, within a period of two months after being notified of a substantial difference between the case law of the Court of justice and that of the Swiss courts or a substantial difference in the application of the provisions referred to in art. 1 between the authorities of the Member States concerned and those of Switzerland, the Joint Committee has not been able to ensure application and uniform interpretation, the procedure in art. 7 is applicable.

S. 7 1. In case of dispute on the application or interpretation of this agreement or when the situation foreseen in art. 6, by. 2, arises, the issue is registered officially as a matter of dispute on the agenda of the Joint Committee.
2. the Joint Committee has 90 days from the date of the adoption of the agenda to which case has been registered to adjust it.
3. If the dispute cannot be settled by the mixed Committee within the period of 90 days referred to the by. 2, this time is extended again for 90 days to reach a final settlement. If, at the end of this period, the Joint Committee has not taken decision, this agreement ceases to be applicable at the end of the last day of that period.

S. 8 1. With regard to the administrative and operational costs linked to the installation and operation of the Eurodac Central Unit, the Switzerland brings to the general budget of the European communities a contribution amounting to 7,286% of a reference amount initial EUR 11 675 000 and, from FY 2004, an annual contribution of 7,286% from the budgetary appropriations for the fiscal year under consideration.
As to other administrative or operational costs related to the application of this agreement, the Switzerland brings to this effect to the general budget of the European communities an annual contribution in accordance with its gross domestic product compared with domestic product gross of all the participating States.
2. the Switzerland has the right to receive documents concerning this agreement and, at meetings of the Joint Committee, to request interpretation into an official language of the institutions of the European communities of their choice.

S. 9. the national Swiss supervisory authority responsible for the protection of data and the independent supervisory authority established under art. 286, by. 2, of the Treaty establishing the European Community shall cooperate to the extent necessary for the exercise of their functions and, in particular, exchange all relevant information. These two authorities shall lay down the modalities of their cooperation by mutual agreement.

S. 10 1. This agreement does not affect other agreements concluded between the European Community and the Switzerland.
2. this agreement does not affect agreements which may be concluded in the future by the European Community with the Switzerland.

S. 11 1. The Kingdom of the Denmark may request to participate in this agreement. The Contracting Parties, acting with the consent of the Kingdom of the Denmark, lay down the conditions for such participation, in a protocol to this agreement.
2. the Switzerland will conclude an agreement with the Republic of Iceland and the Kingdom of Norway on the establishment of rights and reciprocal obligations under their respective associations to the implementation, application and development of the Dublin/Eurodac acquis.

RS 0.362.32 s. 12 1. This agreement is subject to ratification or approval by the Contracting Parties. The instruments of ratification or approval shall be deposited with the Secretary-General of the Council, which is custodian.
2. this Agreement shall enter into force the first day of the month following the notification of the deposit of the last instrument of ratification or approval by the depositary to the Contracting Parties.
3. the art. 2, 3 and art. 4, by. 2, first sentence, shall apply provisionally from the date of signature of this agreement.

S. 13 with respect to acts or measures adopted after the signature of this agreement but before its entry into force, the period of thirty days referred to in art. 4, by. 2, last sentence, beginning on the date of the entry into force of this agreement.

S. 14 1. This agreement is applied only if the agreements referred to in art. 11 are also implemented.
2. in addition, this agreement is applied if the agreement between the European Union, the European Community and Switzerland on the association of the latter State to the implementation, application and development of the Schengen acquis is also implemented.

S. 15 1. The Liechtenstein may accede to this agreement.

2. the accession of the Liechtenstein will be the subject of a protocol to the agreement establishing the consequences of such an accession, including the establishment of rights and obligations between the Liechtenstein and Switzerland, as well as between Liechtenstein, on the one hand, and the community and the Member States bound by this agreement, on the other hand.

S. 16 1. Each Contracting Party may terminate this agreement by sending a written declaration to the depositary. This declaration shall take effect six months after its filing.
2. the present agreement is considered terminated if the Switzerland denounced one of the agreements referred to in art. 11 or the agreement referred to in art. 14, by. 2 s. 17 1. This agreement is drawn up in duplicate in the languages German, English, Danish, Spanish, Estonian, Finnish, French, Greek, Hungarian, Italian, Latvian, Lithuanian, Dutch, Polish, Portuguese, Slovak, Slovenian, Swedish and Czech, each of these texts being equally authentic.
2. the Maltese-language version of this agreement will be authenticated by the Contracting Parties on the basis of an exchange of letters. It will also be faith, in the same way that languages referred to the by. 1. in faith whereof, the undersigned Plenipotentiaries have affixed their signature at the bottom of this agreement.
Done at Luxembourg, 26 October 2004.

Final act the Plenipotentiaries have adopted the joint declarations mentioned below and attached to this final act: 1. Joint Declaration by the Contracting Parties on a close dialogue; 2. Joint Declaration of the Contracting Parties on directive 95/46/EC of the European Parliament and of the Council on the protection of data.

The Plenipotentiaries have also taken note of the declarations mentioned below and attached to the present final act: 1. Declaration of the Switzerland relating to the art. 4, by. 3, on the period for acceptance of the new developments of the Dublin/Eurodac acquis; 2. Statement by the European Commission on the committees which assist the European Commission in the exercise of its executive powers.

Done at Luxembourg, 26 October 2004.

For the Swiss Confederation: for the European Community: Micheline Calmy - Rey Piet Hein Donner Joseph Deiss Antonio Vitorino Joint Declarations of the Contracting Parties Joint Declaration by the Contracting Parties on a close dialogue the Contracting Parties stress the importance of close dialogue and productive among all those involved in the implementation of the provisions listed in art. 1, by. 1, of the agreement.
In compliance with art. 3, by. 1, of the agreement, the Commission invites experts from Member States to meetings of the Joint Committee, to conduct exchanges of views with the Switzerland on all issues referred to in the agreement.
The Contracting Parties took note of the willingness of Member States to accept such invitations and participate in these exchanges of views with the Switzerland on all issues referred to in the agreement.

Joint Declaration by the Contracting Parties on directive 95/46/EC of the European Parliament and of the Council on the protection of data under the agreement, the Contracting Parties agree that, compared with 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 data personal and on the free movement of such data the participation of the representatives of the Swiss Confederation is carried out according to the concept established by the exchange of letters relating to committees which assist the European Commission in the exercise of its powers Executive and annex to the agreement between the European Union, the Community European and the Swiss Confederation on the Swiss Confederation's association in the implementation, application and development of the Schengen acquis.

Other statements relating to the art Switzerland Declaration. 4, by. 3, on the period for acceptance of the new developments in the "Dublin/Eurodac acquis" the maximum period of two years in art. 4, by. 3, covers both the approval that the implementation of the Act or measure. It includes the following phases: the preparatory phase — — parliamentary procedure, - the referendum deadline (100 days of the official publication of the Act) and, where appropriate, - the referendum (organisation and voting).

The federal Council shall inform without delay the Commission and the Commission of the completion of each phase.
The federal Council is committed to implement all means at its disposal to ensure that the above-mentioned phases take place as quickly as possible.

Statement by the European Commission on the committees which assist the European Commission in the exercise of its executive powers A present, the committees which assist the European Commission in the exercise of its executive powers in the field of the implementation, application and development of the acquis ' Dublin/Eurodac' are:-the Committee established by art. 27 of Regulation (EC) No 343/2003 of the Council of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining a request for asylum lodged in one of the Member States by a national of a third country ('Committee Dublin') and - the Committee established by art. 23 of Regulation (EC) No 2725/2000 of the Council of 11 December 2000 concerning the establishment of ' Eurodac ' for the comparison of fingerprints for the purpose of effective application of the Dublin convention ('Committee Eurodac').

Joint Declaration on joint meetings of the joint committees of the European Commission delegation, the delegations representing the Governments of the Republic of Iceland and the Kingdom of Norway, the delegation representing the Government of the Swiss Confederation, - have decided to organise joint meetings of the mixed committees established by the agreement between the European Community and 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, Iceland and Norway, on the one hand, and by the agreement between the Community European and the Confederation Switzerland concerning the criteria and mechanisms for determining the State responsible for examining a request for asylum lodged in a Member State or in Switzerland, on the other hand; - find joint meetings be held asking an arrangement pragmatic with regard to the Presidency of such meetings when this Presidency must be ensured by States associated with by virtue the agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining an asylum application lodged in a State member in Switzerland or the agreement between the European Community and 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 Iceland or Norway;-take note of the wish of the States associated with yield needed their presidency and to exercise it in turn in alphabetical order of their names, from the entry into force of the 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.

RO 2008 515 s. 1 al. let 1. (b) the AF from 17 Dec. 2004 (RO 2008 447) OJ L 50, 25.2.2003, p. 1.
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OJ L 222, 5.9.2003, p. 3.
OJ L 316, 15.12.2000, p. 1.
OJ L 62, 5.3.2002, p. 1.
OJ L 281, 23.11.1995, p. 31.
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RS 0.101 State March 1, 2008

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