One of the possible answers is that Directive 2001/55 has been completely forgotten...

It has NEVER been applied. Maybe because, when you look thoroughly at its wording, the notions it contains and the conditions to start a temporary protection, it is very difficult to apply. I finally come to the conclusion that a test question for applying this directive is whether there is a risk that national asylum systems will be unable to proces the mass influx without adverse effects for their efficient operation. Is there such a risk in case of Syrian refugees?

that it an interesting point of view, thank you, i've been thinking a lot about it!

as we know, at least the greek asylum system is inefficient... i agree with you, it is likely that the ones who have been granted temporary protection are going to apply for asylum aswell (and if granted asylum, stay not only temporarily). however, as the temporary protected refugees are granted financial support and as they are also allowed to work in germany (contrarily to asylum seekers!) i suppose there will be delays when processing claims of temporarily protected, but it won't render the system ineffective and won't cause any disadvantage for the temporarily protected.. unfortunately, i don't know about other national asylum systems, though.

i was wondering if maybe technically it is not (yet) a mass influx (into the european union), as it is very difficult for syrian refugees to reach the european union?

i was wondering aswell, if the specific groups of persons to whom the temporary protection will apply would be "too" big in numbers, meaning the description of specific groups can't be too specific to admit "only" a tenthousand of persons (which would not put at stake national asylum systems) and this may be the reason the directive is not being applied?

it's still most likely it simply is a political decision after all... It seems to me the council just needs so determine we do have a mass influx...

The directive considers what to do when a mass influx of refugees either enters the European Union, or is going to enter in the very near future.

The directive applies"in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons" (Article 2(a))

Article 2(d): "mass influx" means arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme;

It does not say that the EU is going to create a means for refugees to enter the EU. Unless a "mass influx" of Syrians comes to the EU or is right on the border, the directive does not apply.

Thank you james for this enlightening contribution! I guess that's the very point of it, that the refugees physically need to be there at the european borders, and not only displaced, wanting to enter.

You are welcome. I have dealt with far more EU directives than the average American attorney.

James is right. In 2011 during the Libyan War the Italian request to apply the Directive was rejected because of the "non-mass flux" argument. Kosovo 1999 (500.000 displaced persons headed towards Germany) is the paradigm of "massive" flux for the EU. Another point: a Member State (or the Commission) has to apply for the activation of the Directive. For the time being, no State (not even Italy, the most affected by Syrian flux) did it. Last point: even if the Directive was applied, there could be no redistribution of displaced persons among the 28 Member States. In fact, the EU could decide to only bring help and comfort to the affected State in loco

Dear Paolo, thank you so much for your further clarifications. May I ask you to specify your last point? Is it that there is no mechanism for redistribution of displaced persons who are already living in an EU member state? This also raises the question if there is a mechanism for distribution of newly arrived dispaced persons. Thank you!

Dear Susanne, if the Directive applies and, therefore, the european temporary protection is activated, it does not necessarily mean that the displaced persons arrived in Italy will be redistributed among the other EU Member States. In fact, the Council decision concerning the existence of a mass influx of displaced persons shall be based, among the others, on "an assessment of the adivsability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground" (art. 5, par. 4, lett. b). It means that EU might choose to bring help and support to the single Member State under pressure "on the ground" instead of redistributing the displaced persons all across Europe.

Moreover: in order to redistribute displaced persons, the consent of the receiving State (within the limits of its reception capacity as freely determined by the receiving State) and of the displaced person is needed. Otherwise, the person will remain in the State where he arrived.

Displaced persons have to stay within the Member State entrusted with their temporary protection. No freedom of movement within the EU is allowed under the european temporary protection regime: no matter whether you are "already living" there or you are "just arrived". Displaced persons are all the same as to the lack of freedom of circulation.

Paolo, thank you for your helpful clarification! This might explain aswell why the directive has never been applied, according to Katarzyna.

It is very interesting to see the gap between theory and the actual situation: The redistribution of "illegal" migrants (among them many refugees from Syria) does take place in a clandestine way, as we know (see link), in my eyes it is not a coincidence that the highest number of asylum claims occur in Sweden and Germany (see Frontex Quarterly). These people are getting to Sweden and Germany somehow, e.g. by authorities neglecting their actual responsabilities as in the most recent case of the refugees, which happened in Italy (might have been Greece aswell). My point is, they want to get there instead of remaining in Greece, for example. In my opinion, only a common European Immigration System with fair and clearly stated standards, same welfare money, same rights, same duties, can solve this problem of people risking their lives to get to Europe.

Paolo, if I may ask for your expert opinion, what do you expect from the Italian presidency regarding a common European Asylum System or even for a European Immigration System? Italy is among the countries affected the most, boat people arriving, others illegaly crossing from Greece by ferry, heading towards Northern Europe. The Greek presidency currently does not seem to push forward the modification of the Dublin System even though they are affected the most. During an event hosted by IEU in Bruxelles, Spyridon Voulgaris, Head of Unit, justice and home affairs, pretty much summed the attitude of the Greek presidency up saying: "There is no solution, there is only control". I appreciate your opinion regarding this matter.

http://www.ibtimes.co.uk/italy-refugees-left-stranded-starving-rome-milan-1452233

Dear Susanne, the Italian Government is willing to amend the Dublin System by changing the primary rule concerning the competence to examine the asylum claim: from the Member State where the asylum seeker enters (the present rule) to the Member State where the asylum seeker does REALLY want to go and live. It is a good attempt for reconciling the "law in the books" and the "law in action", i.e. the reality on the ground. This step might also avoid another effect (that I defined in my latest article "bear competition on human rights"): in fact, due to the European (and also domestic) case-law (N.S. vs. UK, Puid vs. Germany, M.E. vs. Ireland, M.S.S. vs Belgium & Greece, EM vs. UK: UKSC Feb 2014), a Member State CANNOT return the asylum seeker to the Member State that is competent to examine his asylum claim (usually Italy and Greece) if the latter is not a "safe" place for the asylum seeker (safety to be assessed "on the ground"). In this case, the former State will have to examine the asylum claim in lieu of the other State. It means that for States where boat people arrive it is better to be (and remain) "unsafe" in order to avoid the return of asylum seekers from other Member States: that's why I defined this phenomenon as "bear competition on human rights".