(Legislative Alert) Data Protection : the draft Directive covering public security policies

ORIGINAL TEXT ACCESSIBLE IN ALL EU LANGUAGES ON THE EU COUNCIL SITE 

Nota bene : the text below is the Council “position” which will be adopted in the coming hours by written procedure by the Coreper and sent to the EP for the second reading (currently foreseen for the APRIL  session plenary together with the EU  General Regulation on data protection and the draft Directive on the so called “EU PNR”). For the time being these passages foreseen by art. 294 TFEU are seen by the institutions as mere formalities as an “informal” agreement on the draft Council Position has already been reached on December 17/18 with an “informal” vote of the relevant Parliamentary committee (LIBE).

Following the “informal” practice of interinstitutional “early agreements” the Chairman of the Parliamentary Committee has already informed the Council that no amendments will be submitted by LIBE when the text of the Council position will be formally submitted to the EP. Therefore since last December the text  below has already been revised from the Jurist linguistsso that it can be published on the official Journal maybe already in May or June after the formal vote of the EP and the  final adoption by the Council as well as the signature of the EP and Council Presidents.

Below the text of the Council Position as well as of the Statement of reasons which according to the Treaty  should explain to the EP why the text is different from the one voted by the latter. Again this has become a pure formality as the EP has already negotiated with the Council the amendments to the original Commission Proposal. One can guess if the loser of this “informal” way of proceeding where a “Position” of an institution is already a consolidated compromise is the ordinary European citizen who has no real means to understand who between the EP and the Council should be taken accountable for the different choices made to reach the “compromise”. 

Comments on the content of the “Council Position” below will follow

EDC 

(Draft) Statement of the Council’s reasons on the  Position of the Council on DIRECTIVE (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA

INTRODUCTION Continue reading

(Legislative Alert) Data Protection :the new EU general Regulation

ORIGINAL TEXT ACCESSIBLE IN ALL EU LANGUAGES ON THE EU COUNCIL SITE 

Nota bene : the text below is the Council “position” which will be adopted in the coming hours by written procedure by the Coreper and sent to the EP for the second reading (currently foreseen for the APRIL  session plenary together with the EU Directive on data protection in the security sector and the draft Directive on the so called “EU PNR”). For the time being these passages foreseen by art. 294 TFEU are seen by the institutions as mere formalities as an “informal” agreement on the draft Council Position has already been reached on December 17 with an “informal” vote of the relevant Parliamentary committee (LIBE).

Following the “informal” practice of interinstitutional “early agreements” the Chairman of the Parliamentary Committee has already informed the Council that no amendments will be submitted by LIBE when the text of the Council position will be formally submitted to the EP. Therefore since last December the text  below has already been revised from the Jurist linguists so that it can be published on the official Journal maybe already in May or June after the formal vote of the EP and the  final adoption by the Council as well as the signature of the EP and Council Presidents.

Below the text of the Council Position as well as of the Statement of reasons which according to the Treaty  should explain to the EP why the text is different from the one voted by the latter. Again this has become a pure formality as the EP has already negotiated with the Council the amendments to the original Commission Proposal. One can guess if the loser of this “informal” way of proceeding where a “Position” of an institution is already a consolidated compromise is the ordinary European citizen who has no real means to understand who between the EP and the Council should be taken accountable for the different choices made to reach the “compromise”. 

Comments on the content of the “Council Position” below will follow

EDC 

(Draft) Statement of the Council’s reasons on the 

Position of the Council at first reading with a view to the adoption of a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 

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‘Wisdom and goodness to the vile seem vile’: Towards a third phase of the Common European Asylum System?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

(NB : emphasis are added)
by Steve Peers*

How to fix the EU’s troubled Common European Asylum Policy? The Commission has given its views today in the form of a discussion paper, with plans for further legislation. Will this fix the problems?

The first phase of the EU’s Common European Asylum Policy was set in place in the form of legislation adopted over 2003-05. The second phase is based on legislation adopted between 2011-13. (For more details, see volume 3 of the Commentary on EU Immigration and Asylum Law, which I co-authored). Today’s communication effectively outlines the plans for a third phase – without actually using that phrase. It examines many facets of EU asylum policy, and also mentions immigration policy. I’ll look at the announced plans in turn.

It’s worth making two general points at the outset. First, the UK is bound by the first-phase asylum laws, but not by the second-phase laws, other than the Dublin rules, Eurodac, and the law setting up the European Asylum Support Agency. It can opt out of any of the third-phase laws, but if it opts out of new laws amending those laws which it’s already bound by, the EU Council could decide to end the UK’s participation in those laws, on condition that operating a different system for the UK is effectively impossible. (Ireland is in broadly the same position).

While it’s sometimes asserted that ‘the EU court controls UK asylum laws’, the UK chose to opt into those first-phase laws, and used its veto to ensure that they were consistent with existing UK law. The only British cases on asylum which have ever reached the EU court have been about the Dublin system. And eventual access to citizenship of a Member State by asylum-seekers is far harder to obtain than some imagine it to be.

Secondly, any proposals the Commission makes will have to be approved by a qualified majority of participating Member States (in the EU Council) and by the European Parliament. Obviously there’s no guarantee of obtaining either in this controversial area.

The Dublin system

The discussion paper devotes the most space to the plans to reform the EU’s Dublin system, currently set out in the Dublin III Regulation. The principal problem with this Regulation is its allocation of responsibility in most cases to the first EU state which the asylum-seeker entered. With its declining economy and a sharp increase in the number of asylum-seekers, Greece cannot handle this burden. Although the EU has already tried to address this problem, in the form of two Decisions relocating some asylum-seekers away from Italy and Greece (discussed here), this has not worked well in the absence of Member State willingness to apply the system: barely 1,000 of the promised 160,000 have been relocated. In addition, the second Decision has been challenged by two cases in the EU Court (see discussion here of one of these cases).

How to address this? The Commission suggests two options: a sort of compensation system that would kick in once a Member State had particular burdens, or a quota system reallocating all asylum-seekers across the EU. The former option is based on the current relocation decisions; it should be noted that the Commission already proposed amendments to the Dublin rules along these lines last September, but there seems to be little interest in this proposal. There could be adjustments to the current Dublin rules (so that responsibility would no longer cease due to lapse of time), and the relocation rules (so that more categories of asylum-seekers were covered, not just those with a 75%+ acceptance rate).

The second option would allocate all asylum-seekers in principle between Member States based on standard rules, with exceptions where there are family links for instance. Where the EU has designated a ‘safe’ country, though, the first Member State of entry would remain responsible, for the sake of efficiency. Obviously the intention here is to keep in place the new rules which aim to return people from Greece to Turkey quickly.

Either way, the Commission suggests possibly repealing the EU’s temporary protection Directive, a law designed to deal with mass influxes that has never actually been invoked to deal with any of them. (On its possible use to deal with the current crisis, see discussion here).

Eurodac

The Commission plans changes to the Eurodac Regulation, which currently requires taking and storing fingerprints of all asylum-seekers and irregular border crossers, mainly for the purpose of checking at a later stage if they have already applied for asylum or where they originally entered (for the purpose of applying the Dublin rules). Currently the database allows police access as well as checking of irregular migrants (separately from the asylum procedure). The Commission plans to make proposals for changes to match the changes to the Dublin rules as well as to make much more use of the system for migration control. This will parallel the smart borders proposals for an entry-exit system (also made today).

Procedures Directive

The intention is to replace the current Directive with a Regulation, setting out ‘comprehensive harmonisation’ and a genuinely ‘common procedure’, which would ‘reduce incentives to move to and within the EU’. There would be new rules on ‘key aspects of the asylum procedure’ which are currently optional, as regards admissibility (ie whether the asylum-seeker had, or should have sought, protection in a non-EU country), ‘the use of border and accelerated procedures’, the treatment of repeat applications, ‘and the right to remain in the territory’ during applications and appeals. This would harmonise the length of the initial application process and the appeals (the second-phase Directive already has common rules on the former issue, although not for the fast-track version of it).

On this point the Commission is particularly keen to harmonise ‘safe country’ rules, both as regards ‘safe country of origin’ (ie is the asylum-seeker safe in her own country?) and ‘safe third country’ rules (should he have applied for asylum elsewhere?). On the first aspect, the Commission wants the EP and Council to agree the proposal it made back in September 2015 for a partly common list (designating the Western Balkans and Turkey as ‘safe’: discussed here). But neither institution has rushed to adopt the Commission proposal. The intention is for more harmonisation relating to countries where many applicants come from. But as I pointed out in my previous analysis this proposal wrongly includes Turkey – despite its dubious human rights record – for cynical political reasons, and does not provide enough safeguards for those who claim may be genuine.

The Commission also wants to harmonise the use of the ‘safe third’ country concept, and set up a process of defining a common list in future. This would avoid awkward problems where differences between Member States divert flows of asylum-seekers or cause a ‘protection lottery’ with divergent decisions for similar cases. But it remains to be seen how these standards are applied. Given that (as discussed here) the Commission and Member States support the absurd designation of  Turkey as a ‘safe third country’ – despite its non-application of the Geneva Convention to most asylum-seekers and evidence of refoulement, unsafe treatment, and low standards – the prospect of further moves in this direction are unappealing.

Qualification Directive

The Commission has been carrying out an evaluation of the qualification Directive (which defines the concept of ‘refugee’ and ‘subsidiary protection’ status, and the rights which each group receive, but there is no mention of that here. The main concerns of the paper are twofold: further harmonisation of the rights received, including ‘differentiation’ of the two types of status, as subsidiary protection is ‘inherently more temporary’. This contradicts the second-phase Directive, which accepted that subsidiary protection was often not temporary and harmonised the two forms of status in most respects: see discussion of the first EU court judgment here. Secondly, protection will be granted ‘only for so long as they need it’.

This means that the Directive will be replaced by a Regulation, and the intention seems to be harmonisation downwards: ‘to reduce both undue pull factors and secondary movements’. There will be a ‘regular check’ to see if protection can justifiably be taken away, although this is consistent with the Geneva Convention, which refers to ‘cessation’ of refugee status when circumstances change in the country of origin. There will be standard rules on identity documents (although note that the Geneva Convention has already provided for a standard travel document for refugees). In the long term, there could be mutual recognition of decisions and a transfer of protection (on the latter issue, see my earlier paper). This reflects the Treaty obligation to create a status ‘valid through the Union’ – although the Commission cannot bring itself to refer to this concept.

Reception conditions

The Commission plans ‘targeted’ amendments to the reception conditions Directive, which governs the day-to-day life of asylum-seekers outside the procedural aspects of their asylum claim.  There’s no detail of these plans but the intention is to ‘reduce incentives to move to Europe’ and within the EU, while still ensuring ‘humane’ treatment.

Reducing ‘secondary movements’

As evident already, a main purpose of the paper is to stop asylum-seekers moving within the EU – a reversal of the usual logic of EU legislation. The paper elaborates further on this, referring to ‘proportionate sanctions’ for those who leave the responsible Member State. This will entail an obligation to send back the asylum-seeker to the responsible State (does that mean the options to consider the application in the Dublin Reg will be dropped?), a fast-track examination procedure without an automatic right to remain during the appeal, detention or restriction of movement, removal of benefits (overturning the judgment in CIMADE and GISTI on this point), and reduced credibility of the claim, on the basis of ‘existing provisions in the acquis’ dealing with last-minute applications. There will also be punishments for those who move without authorisation after obtaining refugee or subsidiary protection status, including a ‘status review’, and the five-year waiting period to obtain long-term residence status will be restarted every time they do so. There will be a common document issued to asylum-seekers, making clear that they cannot leave the responsible Member State except for ‘serious humanitarian reasons’.

The European Asylum Support Office

Currently this EU agency has a modest role supporting national asylum decision-makers. The Commission wants to enlarge its role, allowing it to evaluate Member States’ compliance with asylum standards, and suggesting changes they should make in national practice. If there were no compliance, the Agency could provide ‘enhanced support’, and there would be ‘measures’ to prevent ‘any incentive for Member States or asylum seekers not to respect the rules’. In particular, the Commission would have the power to decide on ‘operational measures’ to be taken by a Member State where the Agency found a breach of asylum standards, as regards case-handling and reception support, linked to the parallel actions by the EU Border Guard. (Obviously the drafters of the paper are thinking of Greece here).

The Agency would also have the power to offer detailed guidance (as it does occasionally already) on the substance of asylum law, with a reporting mechanism and case-auditing. The Agency would also have a key role assessing whether third countries are ‘safe’, giving its opinions to the Commission on this point.  It will also operate the revised Dublin system, on the basis of criteria not leaving it any discretion (it’s not possible to give EU agencies discretionary policy-making powers, according to the EU court).

Finally, the agency would have a reserve of national experts it could call on, and extra financial resources, linked to the new money for humanitarian assistance within the EU. In the longer term, the Agency could be given the role of making first-instance decisions in place of national authorities, although the Commission realistically acknowledges that this prospect is on the far horizon. Indeed, that horizon is darkened by flocks of low-flying pigs.

Safe routes for entry

While much of the paper is focused on getting the Dublin system to work, this is balanced somewhat by discussion of safe routes for entry. First of all, this refers to existing ‘soft law’: a general recommendation on resettlement (which means the movement of people from non-EU countries to the EU), and the controversial 1:1 deal between Turkey and the EU, in effect ‘trading’ resettlement places for readmission of non-Turkish refugees from the EU (discussed here).

The Commission will build on this to propose (as promised before) EU legislation on resettlement, which will set out a ‘common approach to safe and legal arrival in the EU’ for people who need protection. There will be general rules, addressing admission and distribution, the status of resettled persons, financial support, and punishment for secondary movements between Member States.  These general rules will then be applied in individual cases as regards specific countries or groups of people. For specific countries, resettlement might only be offered on a quid pro quo basis, related to readmission: this echoes the controversial 1:1 deal with Turkey. It should be noted that readmission treaty negotiations are about to start between the EU and Jordan, which is another major host country for Syrian refugees.

The paper also talks about other safe legal routes for entry. Existing laws on admission of workers, students and researchers should be made accessible to refugees, although the Commission makes no commitment as regards EU legislation dealing with that issue. Private sponsorship should be encouraged by developing EU ‘best practice’. The Commission also promises to look at the issue of humanitarian permits. The most obvious way to do this in the near future is by including provisions in the EU visa code, which is currently being amended – as I have previously advocated and as supported by the European Parliament.

Legal migration

The Commission argues in general that the EU needs more legal migration for economic and demographic reasons. It suggests several means to this end. First of all, it plans to amend the EU’s Blue Card Directive on highly skilled workers, to encourage admission and make this law (which has had limited success) more attractive. (On the Directive in practice, and possible reforms, see my discussion here).

Secondly, the Commission might make a proposal for an EU law on admission of entrepreneurs. Next, it will consider a proposal on admission of service providers from non-EU countries. It will also review the effectiveness of other existing EU legislation on labour migration, in particular in order to prevent exploitation of workers. Finally, the paper includes some general words about cooperation with third countries.

Comments

Today’s paper seems entirely focused on the feasibility of the Dublin system, with all other aspects of asylum law subsumed to supporting that objective. Never in the course of human history has such a small tail wagged such a big dog. The implication (only hinted at once) is that Dublin must be saved so that Schengen can be saved. At no point does the Commission ask itself whether Dublin can be saved – or whether Schengen should be.

The problem is that it is hard to see how Dublin could be made to work, especially now that large increases in migration flows have made its malfunctioning a huge political issue. Allowing asylum-seekers to leave Greece and Italy in large numbers for other Member States is politically unacceptable for those other Member States, and has led to internal border checks being reimposed and the construction of new walls across the continent. Insisting that Greece – its economy impoverished by a combination of poor domestic and Eurozone governance – should bear the burden alone is untenable, and both the EU court and European Human Rights court ruled that Greek asylum standards were insufficient even before the twin economic and migration crises took full effect. The reasonable attempt to reduce the Greek burden a little by means of the relocation Decisions has been ineffective.

It’s hard to see how a slightly different version of the relocation system can be made to work either. And why would the Member States collaborate in a fully-fledged quota system, which they are likely to find even less attractive than the relocation rules?

All this explains the recent EU turn towards a ‘Plan B’: simply returning most or all those who reach Greece straight back to Turkey. Time will tell soon enough how workable this alternative is: it may also prove unfeasible if people switch to different routes, are not deterred from arriving, or successfully challenge the legality of the deal. Certainly, the Commission’s assumption is that enough people will still arrive to cause a political problem. So the most important elements of today’s paper are the twofold intention to punish secondary movements and to deter people from coming at all. (I won’t comment on the legal migration part, which simply reiterates existing plans).

It’s clearer how the Commission would like to punish secondary movements. The plans here resemble nothing more closely than a liberal parent who has finally lost his patience with his misbehaving children, resulting in a disproportionate authoritarian overreaction. Some of the plans are legally questionable: for instance, the CIMADE and GISTI judgment (ruling that asylum-seekers should retain benefits even if they are the responsibility of another Member State under the Dublin system) was based partly on the EU Charter. A legislative amendment overturning it might therefore be challenged as a breach of the Charter. So might new rules on detention (cf the recent CJEU judgment on challenges to existing detention rules).

Sensible parents use carrots as well as sticks. Why not offer asylum-seekers a modest cash bonus in kind if they accept allocation to a Member State under the relocation rules? Or let them have earlier access to work if they stick to the rules? Or simplified and quicker long-term residence status?

Returning to the analogy of the angry parent, the Commission has clearly found, like King Lear:
How sharper than a serpent’s tooth it is
To have a thankless child

Yet its response is, in its own way, as irrational as his.
As for new rules to deter people from coming to the EU in the first place, the Commission threatens much, but is silent on most of the details. One is reminded of Lear again:
I will do such things,—
What they are, yet I know not: but they shall be
The terrors of the earth

But Lear did not have to contemplate convincing the European Parliament, EU Member States or the courts of his unformed plans. So there are political, legal and practical limits to what the Commission can successfully propose. Member States will be reluctant, as ever, to curtail much of their significant remaining discretion over asylum procedures. The European Parliament will probably not rush to roll back the improved standards which it spent five years fighting for. Anyway, the underlying logic of the Commission’s argument is doubtful. If high asylum standards in the EU are such a pull factor, why are there so many more refugees in Turkey, Jordan, Lebanon, and East Africa? Won’t a sharper difference between refugee and subsidiary protection status encourage more appeals and secondary movements too?

The only semblance of balance in the Commission’s paper is its focus on safe passage. But it’s spent two years resisting safe passage in the context of the reform of the EU visa code, using the weak argument that humanitarian visas are not meant for short-term entry. But they fall within the scope of the rules on visas with ‘limited territorial validity’, where the normal rules on visas (such as the time limit) are expressly disapplied. The mention of humanitarian permits in this paper now looks like an excuse to defer dealing with the issue. Similarly, the EU could and should have developed a proper resettlement policy years ago. There’s still no mention of any numbers in this context: compare to the recent suggestions from the UNHCR. And expecting a quid pro quo for the humanitarian gesture of resettlement doesn’t get any less cynical with repetition.

Overall, this is a very disappointing paper from the Commission. There are certainly abuses of the asylum system, but EU legislation already has many possibilities to address them, as regards fast-tracking decisions and appeals, reduced benefits and detention. There’s little evidence here of a balanced, rational and coherent response to the crisis. In fact, this looks rather more like panic.

Of course EU asylum law does not develop in a political vacuum. Member States had a key role agreeing these laws, and the main role implementing them and driving the reaction to the crisis. No criticism of the ‘EU response to the crisis’ should ignore what is ultimately driving that response: the neo-nationalist political parties which are in government in several Member States and form the main opposition in several more. But is endless concessions to these parties really the right strategy? They will always be able to outflank the political mainstream when it comes to anger, fear and ignorance. It’s always better to stand and fight for what you really believe in than to pretend to agree with your opponents’ fundamentally different views.

*Disclaimer: I have been an independent consultant on the impact assessment relating to the reform of the Dublin system and the Blue Card Directive, and the evaluation of the qualification Directive. This does not restrict me from giving my own views on the Commission’s plans. 

“EU-US Privacy Shield” : Towards a new Schrems 2.0 Case ? 

NOTA BENE : This is not a final version (San Francisco, April 3rd 2016)

By Max SCHREMS

INTRO

In the past weeks I was repeatedly asked by policy makers, MEPs, DPAs and interested lawyers and individuals about a written summary of my assessment of the proposed “Privacy Shield” system. This document is a quick response to these requests. Due to the limited time it may contain some typos and minor errors.

The debate on “Privacy Shield” is ongoing and a full proper academic review of the more than 120 page draft Commission decision, in context of the European and US laws and decisions, is a substantive project outside of the scope of this document, which was written as a citizen over the course of a weekend. This document can therefore only highlight some potential issues identified in summarize an initial examination of the proposed “Privacy Shield” and does not constitute a final or deep review.

The European Commission and the US government, as well as some lobby groups, have extensively promoted the positive sides of “Privacy Shield” and the improvements compared to the previous “Safe Harbor” system. I will not repeat these points in this document. Instead this document focuses on possible problems, shortcomings and issues of the proposed system, to allow overall balanced view.

The level of knowledge varies between persons requesting this document. Unfortunately this means that some elements may be irrelevant, too generalized or explained in very simple terms for experts in the field of data protection and/or EU law.

In the following comments I am primarily (but not exclusively) focusing on a legal analysis. As an initial political comment, I would therefore like to highlight that I am of the view that the EU and the US should reach an agreement that replaces “Safe Harbor”. The aim of case C-362/14 was to create a situation where the political leaders on both sides of the Atlantic have to work towards a new deal that remedies the obvious problems disclosed by Snowden. I unfortunately feel that the current policy makers within the European Commission have not seen this situation as an opportunity to work towards an improved framework that would protect the fundamental right to privacy, but instead as a problem, that shall now be swept under the rug.

1.PRIVATE SECTOR / PRIVACY SHIELD PRINCIPLES Continue reading

Desperately searching for solidarity : the EU asylum saga continues

ORIGINAL PUBLISHED ON CDRE SITE (5 AVRIL 2016)

par Jean-Baptiste Farcy, Eimear O’Neill and David Watt,  (Odysseus Network, OMNIA)

The “refugee crisis” has disappeared from the headlines of European news, of course in part because of the Brussels terror attacks, but also apparently because the agreement between the EU and Turkey concluded on 18th March seems, at least temporarily, to have reached its real goal: preventing migrants, including asylum seekers, from leaving Turkey in the direction of Greece. However, this does not mean that the crisis is over, even if the EU and its Member States want to forget this difficult chapter in their history.

We are therefore returning to the topic of EU solidarity, presenting what we learned at the Odysseus Network conference on 26 and 27 February, including the legal nature of solidarity, the reasons solidarity has failed and our hope for a better implementation of solidarity in the future.

1. The meaning of solidarity in EU law

Searching for solidarity in EU asylum and border policies requires that solidarity, the research subject, be defined. In the popular sense, solidarity refers to the existing relationship between a category of persons or entities which is the source of moral obligations. However, less straightforward is the legal nature and scope of solidarity. Indeed, solidarity is an ambiguous term in the sense that it lacks the precision of ordinary legal norms. Yet, solidarity is embedded in Article 80 of theTreaty on the Functioning of the European Union (TFEU) which is undoubtedly a hard law norm. Here lies the complexity for lawyers: Article 80 is hardly sufficiently concrete to oblige states to do anything particular, but it is material enough to be more than a nullity.

In order to clarify the legal construction of solidarity, it may be helpful to trace back to the Roman law origin of the term. Solidarity, in the Roman law of obligation, was a concept referring to the legal relationship existing between a group of people responsible for a debt. This concept of solidarity still exists in civil law tradition but it is most likely that the drafters of Article 80 distanced themselves from it as the necessary ex ante contract is absent here.

Another reading of Article 80 can arguably be based on the French social tradition. Here solidarity is grounded in the real existence of a social community, and solidarity is what binds individuals together according to Emile Durkheim. While this conception of solidarity was likely to be more influential in the framing of primary EU law, a social organism hardly exists at a pan-European level as the 2004 French and Dutch referenda on the Treaty establishing a Constitution for Europe demonstrated. The use of the term “solidarity” in Article 80, as in other provisions of the TFEU, could then be described as a dubious appropriation of an historical experience unfamiliar to the European construction. As a result, the constitution of an EU-wide solidarity was arguably bound to fail from the beginning as Article 80 remained empty in positivist terms.

Does it mean that the effectiveness of Article 80 ought to be void? The legal character of solidarity, as embodied in this provision, should not be dismissed too quickly, be it for its formal hard law nature. Given the theory of “effet utile”, a provision of EU law ought to be interpreted so as to best guarantee its practical effect. In that sense, Article 80 could be read as entailing both an obligation of means (engaging with others) and of result (reaching a fair result). It follows that it can be invoked in Court. Indeed, on the basis of Article 80 an infringement procedure could be brought either by the Commission (based on Article 258 TFEU) or by a Member State (based on Article 259 TFEU) for another Member State’s  failure to take its fair share of responsibility in the implementation of the EU asylum policy, and a precedent for this does exist (for instance in the common agricultural policy, see Case 39/72 Commission v. Italy of 7 February 1973). However, a functional executive body effectively securing the enforcement of the Common European Asylum System (CEAS) is missing at the EU level which allows for normative dumping or limited normative solidarity, as we have recently witnessed across Europe.

Once we agree that Article 80 is not deprived of any legal effectiveness, the question is: solidarity with whom? According to the wording of Article 80, solidarity is only considered among Member States. As a result, the claim that solidarity has an external dimension in relation with third countries seems difficult to uphold, the extent of solidarity among Member States having yet to be defined, and Article 8 of the Treaty on European Union (TEU) hardly constitutes a sufficient legal basis either. More fundamentally, the fact that solidarity is only conceived in the context of inter-state relations is illustrative of the prevailing narrative. Indeed, the principle of solidarity and fair sharing of responsibility which ought to govern the CEAS is exclusively framed so as to meet the needs of the States, not the individuals. Therefore, a change of paradigm may be needed in order to move towards vertical solidarity, focusing on the effective protection of asylum seekers’ rights. The debate should then be reframed to concentrate on solidarity towards individuals in need of international protection rather than solidarity among Member States.

From that perspective, as long as relocation between Member States does not take into account, at least to some extent, the preferences of asylum seekers it cannot work as it remains synonymous with coercion for them. In a common area of  Freedom, Security and Justice without internal borders, refugees should arguably be allowed to move throughout the Union while maintaining their rights, in a similar fashion, for instance, to the European protection order of Directive 2011/99 of 13 December 2011. This would first require that the European asylum system be more common and systematic than it actually is.

The lack of normative solidarity accompanied by the lack of physical solidarity have arguably paved the way of the current asylum crisis that has also transformed into a governance crisis. Indeed, the asylum acquis was designed for “beautiful weather” but, as the storm approached, the inherent weaknesses of the CEAS have only become more obvious.

2. Lacking solidarity in the EU Asylum Policy 

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TOWARDS A REFORM OF THE COMMON EUROPEAN ASYLUM SYSTEM AND ENHANCING LEGAL AVENUES TO EUROPE

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL (LEAKED  VERSION NOT-FINAL)

Migration has been and will continue to be one of the defining issues for Europe for the coming decades. Underlying trends in economic development, climate change, globalisation in transport and communications, war and instability in neighbouring regions, all mean that people will continue to seek to come here – for refuge, for a better life or following their close family. European countries will continue to stand steadfast in meeting their legal and moral commitment to those who need protection from war and persecution. And, as their own demographics evolve, they will need to take advantage of the opportunities and benefits of attracting foreign talents and skills.

In a continuing response to the ongoing migration and refugee crisis, on 10 February the Commission reported1 on the priority actions taken under the European Agenda on Migration to address the immediate challenge of restoring order on the Eastern Mediterranean/Western Balkans route. Following the European Council meetings of 18-19 February and 17-18 March and the meeting of the Heads of State or Government of 7 March3, the Commission will continue to provide support to Member States to implement all the agreed elements to stem disorderly irregular migration flows, protect our external borders, and safeguard the integrity of the Schengen area, including in particular the decisions on relocation, the hotspots and measures to ensure returns and readmissions, whilst ensuring effective access to asylum procedures for those in need of international protection.

Applying the current rules and improving the functioning of existing tools and mechanisms is key to regaining control of the present situation. But at the same time, as noted in the conclusions of the European Council of 18-19 February and those of 17-18 March4, it is time for progress to be made in reforming the EU’s existing framework so as to ensure a humane and efficient asylum policy. There are significant structural weaknesses and shortcomings in the design and implementation of European asylum and migration policy, which the crisis has exposed. The EU now needs to put in place the tools to better manage migration flows in the medium and long term, in line with the approach set out in the European Agenda on Migration.

The overall objective is to move from a system which by design or poor implementation places a disproportionate responsibility on certain Member States and encourages uncontrolled and irregular migratory flows to a fairer system which provides orderly and safe pathways to the EU for third country nationals in need of protection or who can contribute to the EU’s economic development. The EU needs a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for third country nationals and countries of origin and transit. For it to work, this system must be comprehensive, and grounded on the principles of responsibility and solidarity.

Over the past months, significant steps have been taken to tackle irregular migration resolutely and manage the EU’s external borders more efficiently. It is essential that the proposed Regulation establishing a European Border and Coast Guard5 is adopted by June at the very latest so that it can start functioning during the summer. Implementation of the Action Plans against migrant smuggling6 and on return7 is also progressing, with all relevant Agencies and Member States having scaled up their work in this area.

But reducing irregular flows to and within Europe, and protecting our external borders, can only happen effectively if we look at the migratory phenomenon in a broad and comprehensive perspective: this means that we need at the same time to enhance legal and safe pathways to Europe, to improve the use and implementation of existing legal migration instruments, to strengthen the Common European Asylum System as well as to continue tackling the root causes of migration. If we want to improve our way of managing migration, we have to become better at attracting the skills and talents that we will need in the future, and at reaping the benefits of migration by ensuring effective integration and participation into the host society of all -refugees or legal migrants.

Together with the other measures following the European Agenda on Migration, this Communication sets out steps to be taken towards a more humane, fair and efficient European asylum policy, as well as a better managed legal migration policy.

  1. TOWARDS A ROBUST AND SUSTAINABLE COMMON ASYLUM POLICY

1.1 Inherent weaknesses of the Common European Asylum System in time of migratory crisis Continue reading

WORTH READING : U.S.-EU Cooperation Against Terrorism

REPORT PUBLISHED BY STATEWATCH

by Kristin Archick 

Summary

The September 11, 2001, terrorist attacks on the United States and the subsequent revelation of Al Qaeda cells in Europe gave new momentum to European Union (EU) initiatives to combat terrorism and improve police, judicial, and intelligence cooperation among its member states. Other deadly incidents in Europe, such as the Madrid and London bombings in 2004 and 2005, respectively, injected further urgency into strengthening EU counterterrorism capabilities.

Among other steps, the EU has established a common definition of terrorism and a common list of terrorist groups, an EU arrest warrant, enhanced tools to stem terrorist financing, and new measures to strengthen external EU border controls and improve transport security.

Over the years, the EU has also encouraged member states to devote resources to countering radicalization and terrorist recruitment; such efforts have received renewed attention in light of concerns about the threats posed by European fighters returning from the conflicts in Syria and Iraq, highlighted most recently by the November 13, 2015, attacks in Paris, France.

Promoting law enforcement and intelligence cooperation with the United States has been another top EU priority since 2001. Washington has largely welcomed enhanced counterterrorism cooperation with the EU. Since 9/11, contacts between U.S. and EU officials on police, judicial, and border control policy matters have increased substantially.

A number of U.S.-EU agreements have been reached; these include information-sharing arrangements between the United States and EU police and judicial bodies, U.S.-EU treaties on extradition and mutual legal assistance, and accords on container security and airline passenger data.
In addition, the United States and the EU have been working together to curb terrorist financing, strengthen transport security, and address the foreign fighter phenomenon.
Nevertheless, some challenges persist in fostering closer U.S.-EU cooperation in these fields.
Among the most prominent and long-standing are data privacy and data protection issues.
The negotiation of several U.S.-EU information-sharing agreements, from those related to tracking terrorist financial data to sharing airline passenger information, has been complicated by EU concerns about whether the United States could guarantee a sufficient level of protection for European citizens’ personal data.
EU worries about U.S. data protection safeguards and practices were further heightened by the unauthorized disclosures of U.S. National Security Agency (NSA) surveillance programs in mid-2013 and subsequent allegations of U.S. collection activities in Europe.
Other issues that have led to periodic tensions include detainee policies, differences in the U.S. and EU terrorist designation lists, and balancing measures to improve border controls and border security with the need to facilitate legitimate transatlantic travel and commerce.
Congressional decisions related to data privacy, intelligence-gathering, border controls, visa policy, and transport security may affect how future U.S.-EU counterterrorism cooperation evolves.
EU officials have welcomed passage of the Judicial Redress Act (P.L. 114-126) to provide EU citizens with a limited right of judicial redress for privacy violations in a law enforcement context, but they have expressed unease with some provisions in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (passed as part of P.L. 114-113 in the wake of the Paris attacks and heightened U.S. concerns about European citizens fighting with terrorist groups abroad).
Given the European Parliament’s growing influence in many of these policy areas, Members of Congress may be able to help shape the Parliament’s views and responses through ongoing contacts and the existing Transatlantic Legislators’ Dialogue (TLD). This report examines the evolution of U.S.-EU counterterrorism cooperation, current issues, and the ongoing challenges that may be of interest in the 114th Congress.

NB Also see CRS Report R44003, European Fighters in Syria and Iraq: Assessments, Responses, and Issues for the United States, coordinated by Kristin Archick.

FULL REPORT : U.S.-EU  Cooperation Against  Terrorism  Continue reading

VERFASSUNGSBLOG :How to protect European Values in the Polish Constitutional Crisis

ORIGINAL PUBLISHED HERE (30/03/2016)

by  

The Polish crisis puts Europe to the test. It raises hard questions and requires fine answers. These are, in a nutshell, the points I made on the panel at the Berlin-Brandenburg Academy of Sciences and Humanities on March 14:

Is the Polish Development ‘Our’ Business?

In her talk before the EU Parliament, the Polish prime minister stressed that Poland is a sovereign country. She called to respect the current government’s democratic mandate. Indeed, sovereignty and democracy are fundamental values. Any interference from outside Poland requires strong grounds. I want to make a normative and a functional argument to state that the Polish development may indeed concern us—us, that is, the European citizens and the European institutions we have set up.

The normative argument is that the European Union organizes a community of states that profess allegiance to a set of fundamental values—among others, democracy, the rule of law, and human rights. These values are open-ended but not indeterminate. The question the Polish legislation raises is whether disrespecting decisions by the constitutional court and dismantling the separation of powers is covered by these values. To me, this cannot be: ‘democracy through law’ is what we stand for; the legal identity of the European project is that of a ‘community of law’. Hence, our own self-understanding is at stake.

The functional reason is that the European legal space presupposes mutual trust. European law operates on the presumption that all institutions are law-abiding. Otherwise, the legal edifice crumbles. When the presumption is rebutted, a systemic deficiency in the rule of law emerges that threatens the very existence of European law and integration. If a country defies its own constitutional court at the cost of constitutional crisis, how can we expect European law to be respected when it does not suit the government?

II. What Are the Instruments?

However, there is no reason to despair. Though there is no silver bullet, many instruments can convince the Polish government to follow European values. These are the Holy See, the United Nations, the OSCE, NATO, the Council of Europe, the European Union, and other states, all of which have their own instruments. Very few have been deployed so far. Currently, the most important are the Council of Europe’s Venice Commission opinion and the European Union’s rule of law framework. They support a dialogue with the Polish government and a European public debate on what went wrong and how to right the problem.

These instruments are not for the impatient. Of course, neither an opinion by the Venice Commission nor a recommendation of the EU Commission can force the Polish government to change its stance. Their potential also relies on the possibility of further steps, and much of the discussion is held up here. Many feel helpless because they view the Article 7 TEU mechanisms—including the freezing of payments—as totally impractical. Much of that is due to Manuel Barroso unwisely calling these mechanisms a ‘nuclear option’. That qualification stuck: today, anybody who proposes to use the Article 7 TEU mechanisms appears as irresponsible as someone who proposes to press the nuclear-weapons button. However, a sanction under Article 7 TEU does not devastate entire countries; actually, it supports basic values. It is an instrument like the others, legal and legitimate, an instrument that—as all others—needs to be deployed wisely.

Many also consider the Article 7 TEU mechanism impractical in the Polish case because its para 2 imposes a very high voting threshold. This position, however, overlooks at least two features. The first is that a first sanction falls under Article 7 para 1 TEU: the Council can make the determination by four fifths of its members, i.e., 22 Member States, that a Member State exhibits ‘a clear risk of a serious breach’. This determination is a sanction by itself; and this is why the Polish government wants to avoid it so much.

Moreover, even the threshold Article 7 para 2 TEU requires does not seem unrealistic. Of course, the leader of the Polish governing party is in close contact with the Hungarian prime minister. However, there is a big difference between the Hungarian and the Polish reforms: Hungary respected the formal rule of law, which is currently one of the core issues with Poland. Given the centrality of Europe being ‘a community of law’ and the help that the Hungarian governing party has received from its fellow members in the European People’s Party in the past, I see a realistic chance that even the current Hungarian government does not stand with the PiS government in undoing Europe; a possible abstention would not prevent a decision from being adopted.

III. How to Deploy the Instruments?

There are many instruments and many institutional actors. This can be a handicap because diverging strategies or uncoordinated statements may lead to reciprocal weakening. Here, inspiration can be taken from the 1990s when the Council of Europe and the European Union operated hand-in-hand in order to help the Central and Eastern European countries become constitutional democracies. The general division of labour, which proved successful, was that the Council of Europe (including its Venice Commission) set the substantive standards while the European Union added the compliance-‘pull’ through the prospect of membership. The Council of Europe is much less suspected of bullying, which provides legitimacy when it comes to formulating concrete standards on how to be a constitutional democracy.

For that reason, it seems important in the given case that all actors and in particular the EU rally behind the opinion of the Venice Commission of 11 March 2016. The EU does not need to define what is required from a Member State under Article 2 TEU, a very difficult exercise indeed, but can rely on what the Venice Commission asks for, in particular to respect the rule of law.

When deploying these instruments, it is important to do so in a dialogical way. One element of that is to stress that what is required is nothing other than to stand by Polish identity. The Polish constitution of 1791 is the first modern written constitution in Europe and a beacon of European constitutionalism. Though only 14 months in force, it proved an icon of Polish identity in the 123 years that Poland did not exist as a sovereign country, and was taught all those years by eminent scholars such as F. K. Kasparek or J. B Oczapowski. They embedded constitutionalism deeply into Polish identity. Polish administrative law—the rule of law limiting the executive— was even taught in German prison camps during World War II, for example by J. S. Langrod or F. Longchamps de Bérier. Indeed, few have fought for those European values as much as the Poles have done and certainly will continue to do so in the future.

A German version has been published in the Frankfurter Allgemeine Zeitung on March 31. 2016

(EP Study) The  proposal  for  a  European Border  and Coast  Guard: evolution  or  revolution  in  external border management?

THIS IS AN EXECUTIVE SUMMARY. (ACCESS TO THE FULL STUDY (40 pages) HERE)

by Dr. Jorrit Rijpma

The Commission proposal for a European Border and Coast Guard Authority brings together a reinforced (and renamed) Frontex – the European Border and Coast Guard Agency (EBCGA) – and the Member States’ border guard authorities under the umbrella of a European Border and Coast Guard (EBCG), making them jointly responsible for the management of the external borders. The proposal defines for the first time the notion of European integrated border management. It significantly broadens the scope of the new Agency to include internal security and measures within the area of free movement. The proposal reinforces both Frontex’s regulatory and operational role. In addition, it gives the  Agency  a  supervisory  role,  placing  it  in  charge  of  Vulnerability  Assessments.

As such, the EBCG proposal is an important next step in the progressive Europeanisation of external border management. That said, the proposal is not a revolutionary leap forwards, as it preserves the fundamental premise that the Agency neither has its own border guards nor powers of command and control over national border guards.

Still, a proposal of this complexity, with substantial financial implications and an obvious impact on fundamental rights, deserves careful consideration.

The proposal does not address some key questions as regards accountability for operational activities at the external borders and is rather likely to add to the current unclear division of responsibilities. There is, moreover, a danger of placing unrealistic expectations on the Agency.

It seems contradictory that Member States would be willing to accept more binding obligations under this proposal, while nothing prevents them from furnishing the Agency with the necessary tools now. Likewise, it would be naïve to think that greater powers and a new name for Frontex might suddenly remedy structural   flaws in  some Member  States’ external  border  management   systems.

Although the current crisis may have exposed shortcomings in Frontex’s current legal framework, the proposal does not constitute a genuine emergency measure designed to tackle a short-term problem. Therefore, if this proposal is to stand the test of time as the regulatory framework for external border management, it is important to carefully consider the  structural   implications of  the  rules currently being  considered for  adoption.

With this in mind, this analysis highlights some of the central challenges in the new EBCG framework  and provides  some  recommendations  on  how these  might  be addressed.

Supervisory  role

The Agency’s supervisory role also entails drawing up Vulnerability Assessments to identify operational  weaknesses  in   external  border  management.   In  this  regard, it is  important  to:

– Clarify   the   relationship   between   the   Schengen   Evaluation   Mechanism   and   the Vulnerability  Assessment  model.

– Ensure  that  the   Agency’s  supervisory  role  does not  prejudice  working  relations in the field of operational cooperation.

– Introduce a fundamental rights component into  the  Assessments.

Regulatory  role

Under the proposal, Member States would be obliged to provide the Agency with relevant information  for its  risk  analysis.

– A more specific explanation of what constitutes relevant information could help to  clarify the  extent of this obligation.

– If the Agency were to be given access to European databases, this would have to be under strict conditions, taking into account relevant data protection legislation.

Operational  role

Availability of human  and  technical  resources

The proposal aims to remedy the current lack of human and technical resources. As such, in emergency situations, Member States would be required to provide border guards, with no possibility, as is currently the case, to invoke an emergency situation requiring their deployment at home. Similar, yet weaker provisions have been included as regards the obligation to make available technical equipment.

The Agency will be allowed to acquire its own  equipment.

In addition, the Commission proposal provides for a right to intervene where a Member State does not follow up on the recommendations from the Vulnerability Assessment or in a situation where insufficient external border controls would put the overall functioning of the Schengen area at risk. This latter provision has, however, been amended in the Council text, which provides for a similar mechanism for reinstatement of the internal borders as under article 26 of the  Schengen  Borders  Code.

– The unqualified obligation to make border guards available for rapid border  interventions and the ‘right to intervene’ under the Commission’s proposal arguably contravene the Member States’ ultimate responsibility for internal security  under the Treaties (Article  4(2) TEU and  Article  72 TFEU).

Expansion  of tasks  and  powers  of  guest  officers

Guest officers’ powers may be considerably broadened by the host Member State, allowing these officers to act on its behalf. Guest officers would also have automatic access to European  databases. The proposal  should:

– Clearly state that guest officers act at all times within the scope of EU law and hence  within the  scope of the Charter of Fundamental Rights.

– Clearly state that, to the extent that national powers are delegated to guest officers, these officers should be considered to act as agents of the host Member State for the purpose of  determining  international responsibility.

 Hotspot  approach

The proposal gives the Agency a key role in the hotspot approach.

This is problematic as it seems to contradict the multi-agency purpose and nature of the hotspot approach, risking a one-sided focus on border control.

The Commission is thus much better placed to coordinate the activities  of  the Migration  Management  Support  Teams.

-The hotspot approach and its legal and operational framework require prior definition, preferably in a separate legal framework, before making the Agency responsible for its functioning.

– If the Agency were to take primary responsibility for the hotspots, a reference to international protection should be included in the concept of integrated border  management.

Return  cooperation

The Agency would gain significant operational powers in the area of return with three new on-call lists of Member State officials: forced return monitors, forced return experts and return specialists.

The proposal provides for three types of return operations: return from a combination of Member States organised and carried out by the Member States and coordinated by Frontex; collecting return operations where the means of transport and return escorts are made available by a third country; and mixed return operations, where a number  of returnees  are transported   from  one third  country  to  another.

There are a number of important concerns as regards the provisions on return that need to be  addressed.  It  is  important to:

– Detail the tasks, powers and responsibilities of these officials. Attention should be paid to the specific legal regime  applicable  on board aircrafts.

– Extend reporting obligations to return operations and include a role for the Agency’s Fundamental Rights  Officer.

– Allow for collecting return operations only if the third country concerned is a party to  the European Convention on Human Rights (ECHR).

– Allow for mixed return operations only if there are sufficient guarantees that the            third country’s            return  decision           and            procedures      comply            with     EU fundamental rights standards.

Information  exchange  and  data  protection

The proposal would transform the Agency into the central hub of information exchange of the EBCG, expanding its powers to collect and transmit data not only on people suspected of cross-border crime, but on irregular third country nationals.

This requires sufficient data protection rules. As pointed out by the European Data Protection Supervisor (EDPS), the proposal   has important  flaws  in  this regard  and  requires  clarification.

The proposal  should:

– Clearly distinguish between the different purposes for which data is processed, because migration management and criminal law enforcement are covered by separate legal regimes.

– Exhaustively   list  the purposes for  which  data  may be processed.

– Indicate not only the categories of people whose data may be processed, but also specify which data may be processed.

– Clearly distinguish between the transfer of data to third parties within and outside the European  Union.

Operational  cooperation with  third  countries

The proposal would allow for joint operation activity on the territory of third countries. Cooperation with third countries should not allow the Agency and EU Member States to lower  EU  standards.

As  such:

– Cooperation should be limited to third countries that are party to the ECHR and

the Geneva Convention and  its Additional  Protocol.

– The safeguard whereby liaison officers may only be posted to countries with human  rights-compliant  border practices should be reintroduced.

Coastguard

The provisions on the role of the Agency and the Member States in a European Coast Guard are the least developed part of the proposal and are largely limited to an obligation to exchange information. It is therefore important to clarify the extent to which this may involve  the  processing of  personal  data.  Furthermore, it  is important:

– To clarify the relationship between the military and the Agency in maritime border surveillance operations       and      any      other Member            State    military involvement in integrated  border management.

– To include Search and Rescue provisions to allow the Agency to play a more active SAR role  without affecting the international SAR framework.

Constitutional   considerations

It is submitted that, under the current rules on delegation of powers to Union bodies, it is not possible to delegate genuine executive powers to the EBCGA.

The Commission proposal respects these limits. Nonetheless, the removal of the ‘emergency situation’ exception for the deployment of human and technical resources, as well as the ‘right to intervene’, are at odds with the Treaty principle of ultimate responsibility of the Member States for their own internal  security. Moreover:

– Careful consideration should be given to which decisions are politically sensitive and should be reserved for the Management Board and which are more  technical and  operational  and  should be left to  the Executive Director.

Fundamental  rights considerations

The significant reinforcement of the tasks of the Agency without the transfer of genuine executive powers to the Agency (for the reasons set out above), as well as the explicit affirmation of a shared responsibility for European integrated border management, will only exacerbate  the existing conundrum as  regards shared  accountability.

While the introduction of an individual complaints mechanism is an important positive development, the Commission’s assertion that the mere existence of such a mechanism makes the Agency’s actions fundamental rights-compliant is clearly exaggerated.

Indeed, the  proposed  fundamental   rights mechanisms require  further  refinement:

– The complaints procedure provisions must lay down rules on format, content and deadlines or should empower the  Agency to   set such rules.

– The Executive Director’s obligation to suspend or terminate operations in the event of fundamental rights violations should be further detailed and should provide for a role for the FRO and take into account the results of relevant monitoring mechanisms.

– The obligation for the Agency to set up a fundamental rights monitoring mechanism – with a broad review of fundamental rights at the external border – should  be  reintroduced.

– The FRO’s obligation to report to the Consultative Forum should be reintroduced.

Continue to the FULL STUDY

 

 

 

The EU-Turkey Agreement on migration and asylum: False pretences or a fool’s bargain?

ORIGINAL PUBLISHED HERE (01 FridayApr 2016)

By Henri Labayle, CDRE CDRE and Philippe de Bruycker, IEE/ULB ULB

The agreement concluded on the 18 March between the EU and Turkey deserves attention due to both the severity of the crisis and the largely negative public opinion surrounding the draft of the text which appeared on the 7 March. The serious legal questions which persist feed doubts about not only the viability of the proposed solution, but also its implementation in practice (1). Conversely, doubts no longer remain on the ability of the Union to renounce its fundamental values (2). The market of “subcontracting”, as already mentioned on this blog, has now been finalised and is beginning to be implemented.

1. Persistent legal problems

  • The main question is whether Turkey is a “safe third country” to which asylum seekers can be returned. The initial certainties in one direction or the other have now given way to questions. The opinions of fellow members or close colleagues of the Odysseus Network are divided on this issue: the disputesbetween Daniel Thym and Steve Peers in blog comments, and exchangesbetween Kay Hailbronner and James Hathaway are a testament to this.

The difficulty concerns the interpretation of the fifth requirement of Article 38 §1 of the Asylum Procedures Directive, according to which a third country may be considered safe for the asylum seeker in question if “the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention”.

Given that Turkey provides only temporary protection to non-European asylum seekers due to the fact that it has maintained a geographical limitation to the Geneva Convention, the European Commission considers that protection “equivalent” enough. Others believe instead that it is formal refugee status with all associated rights which must be granted. When preparatory works are invoked in favour of both sides of the argument,  it becomes clear that only the judge can decide. A question for a preliminary ruling on this point would be particularly interesting as it could encourage the Court of Justice to comment on the scope of Article 18 of the Charter of Fundamental Rights of the EU which states that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951”.

  • The implementation of the EU-Turkey declaration should also raise sensitive issues in practice.

First, one can only wonder how the Commission can rely on the readmission agreements that Greece and the EU have with Turkey as the legal basis for returning irregular migrants. This is in conflict with the Return Directive, knowing  that a readmission agreement is only a technical instrument to implement a return decision. A return decision is the only proper legal basis from which a person can be returned.

Then, how can we guarantee that the return decisions taken by the Greek authorities will be sufficiently individualised under the Article 4 of Protocol No. 4 to the ECHR  which prohibits mass expulsions? The most recent case of Khlaifia et al. v. Italy of the European Court of Human Rights, already commented on this blog, is extremely strict. It raises questions about how to proceed and motivate return decisions in order to be sure to avoid the censure of the judge. We note at this stage – the decision has indeed been referred to the Grand Chamber – that individual identification by the Italian authorities of the concerned persons prior to the return decisions was not enough to convince the judges of Strasbourg, even though vulnerable people had been adequately treated.

Finally, the fate of the people in the asylum and return procedures may now include their detention. The High Commissioner for Refugees has immediatelyexpressed its disapproval and suspended cooperation in harsh terms: “UNHCR has till now been supporting the authorities in the so-called hotspots on the Greek islands, where refugees and migrants were received, assisted, and registered. Under the new provisions, these sites have now become detention facilities. Accordingly, and in line with our policy on opposing mandatory detention, we have suspended some of our activities at all closed centres on the islands. This includes provision of transport to and from these sites. However, UNHCR will maintain a presence to carry out protection monitoring, to ensure that refugee and human rights standards are upheld, and to provide information on the rights and procedures to seek asylum”.

  • There remains a fundamental and curiously ignored question about the “right to leave any country.” The real objective of the EU is that the Turkish authorities prevent migrants from departing from their coast towards Greece; however, Article 2 of Protocol No. 4 to the ECHR declares that “everyone shall be free to leave any country, including his own”.

It is true that the right to leave is not absolute, as is provided in the text, which states “No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The assessment of compliance with this provision is even more difficult as  it requires determining whether Turkey is protecting its own interests or those of Greece and other neighbouring countries. The Court of Justice has already spoken on this point in its Jipa judgment of 10 July 2008 (C-33/07) on the restriction of the right of a Romanian citizen to leave his home country where he had been sent by Belgium for illegal stay in its territory. The Court held in that decision that “measures restricting the exercise of the right to free movement must be taken in light of considerations pertaining to the protection of public order or public security of the Member State adopting this measure. It cannot therefore be based exclusively on reasons advanced by another Member State to justify, as in the present case, a decision to remove a Community national from the territory of that State. Such a consideration does not however exclude the possibility of taking such reasons into account as part of the assessment made by the competent national authorities to adopt the measure restricting freedom of movement.” We see how the assessment is nuanced, so the answer to the question is unclear.

If the case law of the Court of Justice on this point does not obviously apply to Turkey, the question of the right to leave any country can arise from Article 12 of the International Covenant on Civil and Political Rights, with similar wording to the ECHR. The issue of compliance is obviously applicable to Turkey, but the European Union – which claims to respect human rights in its external relations policy – should also be concerned, especially since this right to leave is being challenged more and more by the outsourcing of migration control.

 2. A moral failure

Time will tell what will become of the agreement between the EU and Turkey in the history of international refugee law. It appears at first that it will not join the list of solutions found in the face of past crises of comparable size to the current exodus of refugees from Syria. One calls to mind in particular the Comprehensive Action Plan (CAP) of the 80s which allowed the resettlement of hundreds of thousands of Indochinese refugees from countries of first asylum to the West.

Nothing like today. Far from seeking a comprehensive solution, and rather more concerned with short-term European interests, the EU-Turkey agreement is no more than a last resort before the complete closure of borders, by a continent which does not want to have more refugees than it has been receiving in a most disordered manner for more than a year.

Nobody is fooled by the Declaration whose goal is allegedly to “to break the business model of the smugglers and to offer migrants an alternative to putting their lives at risk”. Instead, the aim of the EU is to get Turkey to hold people trying to reach the European Union on its territory, including asylum seekers travelling with irregular migrants in “mixed flows”.

The proof of this is the method of constructing the resettlement mechanism. After levelling their commitment to 72,000 people, the Declaration provides that if the number of returns from Greece to Turkey exceeds this maximum, the 1 for 1 mechanism (resettling a Syrian refugee from Turkey to the European Union in exchange for the readmission of a Syrian refugee from Greece to Turkey) would cease to function. In other words, the agreement would become void and the European Union would stop relocating refugees, which should logically lead Turkey to stop blocking the departure from its territory and therefore allow smugglers to resume their deadly trade.

We already knew that European countries have failed to agree to relocate asylum seekers arriving on the European continent fairly between them. It is therefore hardly surprising that the Union refuses to show real solidarity with a third country such as Turkey. Capping the resettlement mechanism to 72,000 persons is nothing other than a petty and arbitrary addition of the 19,000 resettlement places planned in 2015 which still remain to be distributed to the 54,000 relocation places allocated to Hungary which it will not use due to its opposition to any form of solidarity. This figure is obviously disproportionate to the challenge that Turkey faces, welcoming about 2.7 million irregular migrants to its territory, the majority of whom are refugees.

Under international refugee law, “solidarity” is only alluded to in the Preamble of the Geneva Convention, not in the body of its text. As a result, it has thus far remained elusive. Which unfortunately raises an opportunity to stress that it is inappropriate to blame the EU when other continents, whether North America or Oceania, show little solidarity in the context of the Syrian refugee crisis, other than giving money at international conferences during which physical solidarity through resettlement is not discussed. Is this because the engine of solidarity at the time – the reception of victims of communism in Vietnam – has disappeared?

Some would argue that Europeans have pledged not 3 billion, but 6 billion Euro to Turkey between now and 2018 to improve asylum capacities of that State. If this substantial assistance can actually be considered a form of financial solidarity, is it fair compensation considering the millions of refugees that Turkey has been hosting since 2011?

Those who succumb to the temptation of defending this idea will ultimately be returned to a squalid haggling which will include the repeal of the visa requirement by the EU in favour of Turkish citizens. It is good to know that for third countries, this is such a fundamental element in their relations with the European Union that some candidate countries present it as a step in the enlargement process, as has been observed in the Balkans. We can see that the Turkish government is exploiting this European concession, and moreover, that the EU still dares to commit to “moving forward in a process of enlargement”, a commitment that no one takes seriously, not even the Turkish government, which pretends that such a promise can be serious even though only those who want to believe it are convinced.

In total, the agreement between the EU and Turkey shows that international refugee law needs to be reformed, now more than ever before. Establishing a legal route for applicants to apply for asylum in the European Union without having to risk their lives could contribute to this development. A resettlement mechanism from Turkey to the European Union concluded in a true spirit of solidarity between two partners concerned about the fate of refugees could have been a step in this direction, even if the limits of physical solidarity of one party were compensated by a form of financial solidarity for the benefit of the other.

The agreement concluded on 18 March is none of that. For the Union, it symbolizes the abandonment of the soft power based on law, ethics and human rights which it claims to embody in its founding treaties. Even the generosity of German Chancellor Angela Merkel has its limitations. These include the ones imposed by the EU, which only extends the right to seek asylum – as laid out in Article 14 of the Universal Declaration of Human Rights – to those who reach its territory, while doing all it can to prevent them from getting there. Curious then to think that in international law, the establishment of a responsibility to protect envisages right to enter the territory of a State in order to access its victims, but does not recognise the right of these victims to leave the territory in order to benefit from the assistance that we claim to offer them.