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Derogations from the obligation to take back an applicant in a situation of extraordinary mass arrivals

1. By way of derogation from Article 36(1), point (b), and Article 38(4) of Regulation (EU) 2024/1351, in a situation of crisis as referred to in Article 1(4), point (a), of this Regulation where the mass arrivals of third-country nationals or stateless persons are of such extraordinary scale and intensity that it could create a serious risk of serious deficiencies in the treatment of applicants, thereby creating a serious risk that the Common European Asylum System is rendered non-functional, the Member State facing that situation may be relieved of its obligation to:

(a) take back an applicant, a third-country national or stateless person in relation to whom that Member State has been indicated as the Member State responsible under Article 16(1) of Regulation (EU) 2024/1358 where that responsibility was determined pursuant to Article 16(2) of Regulation (EU) 2024/1351; or (b) take back an applicant pursuant to Article 38(4) of Regulation (EU) 2024/1351. This paragraph shall only apply where the application was registered in the Member State facing that situation within the period set out in the Council implementing decision referred to in Article 4(3) of this Regulation which shall not exceed four months before the date of adoption of that Council implementing decision.

2. Where paragraph 1 of this Article is applied, and the Member State facing that situation was determined as responsible pursuant to Article 16(2) of Regulation (EU) 2024/1351, that Member State shall be relieved of its obligation to take back the person concerned and responsibility shall be transferred to the Member State where the second application was registered. The Member State that becomes responsible pursuant to the first subparagraph of this paragraph shall indicate in Eurodac that it has become the Member State responsible in accordance with Article 16(3) of Regulation (EU) 2024/1358.

3. By way of derogation from paragraphs 2 and 4 of Article 38 of Regulation (EU) 2024/1351, where paragraph 1 of this Article is applied and the Member State facing that situation is obliged to take back an applicant pursuant to Article 38(4) of Regulation (EU) 2024/1351, the Member State where the second application is registered shall apply the procedures set out in Part III of that Regulation, with the exception of Article 16(2), Article 17(1) and (2), Article 25(5) and Article 33(1) and (2), and the obligation to take back an applicant pursuant to Article 38(4) shall be transferred to that Member State. Where no Member State responsible can be determined under the first subparagraph of this paragraph, the Member State where the second application was registered shall be responsible for examining the application for international protection. Applications for international protection for which a Member State has sent a take back notification pursuant to Article 41 of Regulation (EU) 2024/1351 before the date of adoption of the Council implementing decision referred to in Article 4(3) of this Regulation shall not be affected by this subparagraph. The Member State that becomes responsible pursuant to the second subparagraph of this paragraph shall indicate in Eurodac that it has become the Member State responsible in accordance with Article 16(1) of Regulation (EU) 2024/1358.