Belarus Crisis : Should also the European Parliament ask the Commission to withdraw its art.78.3 TFEU Proposal ?

by Emilio DE CAPITANI

On Wednesday 15th following Council and Commission statements a Plenary debate is foreseen on a  Legislative proposal by the European Commission for a “COUNCIL DECISION on provisional emergency measures for the benefit of Latvia, Lithuania and Poland” (2021/0401(CNS) COM(2021) 752). The proposal has been referred to the Civil Liberties Committee (LIBE) and the legal basis is the art.78.3 of the TFEU according to which: «In the event of one or more Member States being confronted by an emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned.”

  1. On the choice of art. 78.3 as legal basis 

The first point to be evaluated by the EP is if the chosen legal basis is appropriate and justified bearing in mind that the so called “sudden inflow of third Country nationals” started five months ago and has substantially decreased in the recent weeks (also because of the EU diplomatic and political pressure exerted on Belarusian authorities). Are still today Poland Lithuania, and Latvia in an emergency situation? This is apparently no more the case even for the Members of the  European Commission who some days ago didn’t qualify it as a migration crisis, declared that the situation was easing, and even that the influx of migrants to Minsk “has more or less stopped totally.”

If so, the chosen legal basis of art.78.3 which under exceptional  circumstances unsettles on a temporary basis the institutional balance and the principle of “separation of powers” in the EU is no more appropriate. Choosing art.78.3 should remain the Ultima Ratio and the EP should continue playing fully his Constitutional responsibilities and a co-decisive role in a domain where the EU intervention is deemed to give specific expression fundamental rights such as the right to asylum or the non-refoulement obligation. Furthermore excluding the European Parliament by maintaining the current art.78.3 legal basis will also be extremely prejudicial to the EP credibility also because the draft Decision intend to amend even if on a temporary basis some pieces of EU legislation hardly negotiated and adopted by the EP.

Under these circumstances it could be wise for the EP to decide on the position to be taken if maintaining or not art.78.3 as a legal basis only after having verified on the ground and with the EU Member States concerned what is the current state of things.

  • Can an “Hybrid war” justify the violation of fundamental rights ?

For the EU and its Member States this may look as a rhetorical question but in the case of the Belarus crisis is not. As recently  stated by several ONGs, “while the people in the middle of the crisis are being used as parties in the conflict between the EU and Belarus which has a security dimension, the people themselves are not a security threat, and should neither be referred to nor be treated by either side as though they were a weapon.” Migrants not being themselves a security threat it is important that , at least the EU and Its Member States respect the EU and international law according to which everyone seeking asylum at the borders, irrespective of the manner of their arrival, has the right to make an asylum application. As a consequence access to asylum in Poland, Lithuania and Latvia should be restored both in law and in practice.

The state of emergency declared by the EU Member States blocking  the arrival of civilian and vulnerable people may become an overreaction as it is preventing people from reaching the EU’s territory. Seeking asylum is a fundamental right and non-refoulement is a non-derogable principle that must be observed even in times of emergency.

The use of force, conducting push-backs, prohibiting asylum applications from being lodged through limiting effective access to the procedure via geographical restrictions on where claims can be lodged, are practices incompatible with international and EU law.

As denounced by Human Rights Watch these clear violations of the law by Belarus could not justify a similar behavior by the EU Member States on the other side of the border.

This is notably the case of Poland whose Parliament has decided that migrants can be « pushed back » to the Border and that their asylum requests can be ignored.

Morevoer the fact that the ECHR has adopted not less than 47 Interim Measures in conformity with art.39 of the ECHR to block several refoulements (now  called “push backs”) as it is the silence of the European Commission (so called “Guardian of the Treaties”) on the same facts.

  • How EU Solidarity may be decisive to overcome the Belarus crisis ?

Unfortunately migratory and Asylum Crisis are not new in the EU History. Since the fall of the Berlin Wall and the adoption of the Treaties of Maastricht and Amsterdam the EU has played a growing role in helping its member states in moment of emergency and crisis. Already in 2001 an EU Directive (still into force) has been adopted to face situations where a mass influx of people could push under pressure the Member States Asylum services. In these cases a temporary humanitarian protection may be granted for the time necessary to examine the request for asylum,  and a relocation mechanism is foreseen to share the burden with the other EU Member States. This very notion of EU solidarity is now mirrored in art. 80 of the TFEU and has been the background of the relocations measures adopted in 2015 to help Italy and Greece which were under the pressure of the migrants escaping the Syrian War.

Quite surprisingly the European Commission has not yet foreseen a similar initiative to support Lithuania, Latvia and Poland by relocating in other EU countries, (even on a voluntary basis) the migrants stranded at the Belarus Border.

For the time being the solidarity  has been of financial nature and €360 million have been allocated to these Member States under the Border Management and Visa Instrument (BMVI) for this financial period, and a  further top-up of around €200 million (that will be available for 2021 and 2022) has been granted to support them in managing the inflow of some thousands Third Country Nationals. These financial initiatives should be more than welcome but as in all the other cases of EU financing should be conditioned to the full respect of fundamental rights and of the Rule of Law (as required by the “Common Provisions” Regulation and the Regulation on Budgetary conditionality).

4 On the content of the Commission draft Decision

By choosing the art. 78.3 as legal basis the European Commission had the opportunity on the basis of the CJEU jurisprudence to submit (even if only on a temporary basis) the long awaited revision of the Dublin Regulation (which still after Lisbon ignores the notion of Solidarity in art. 80 of the TFEU) or could have proposed the humanitarian visa at EU level (as repeatedly required by the EP) or even the establishment of humanitarian corridors not to speak of the decriminalization at EU level of ONG intervening for humanitarian reasons.  

Quite the reverse the main derogations proposed by the European Commission have been to some essential EU Directives already adopted in co-decision by the European Parliament such as:

-the Asylum Procedures Directive (Article 6(1) of, Articles 25(6) point (b), Article 31(8) and 43(1) point (b) Article 43(2) Article 46(5) and (6) (see art.2 of the Commission Proposal)

– the Asylum “Reception” Directive 2013/33/EU Article 17 and 18 (see art.3 of the Commission Proposal)

– the “Return” Directive 2008/115/EC. (see art.4 of the Commission Proposal)

The proposed derogations are highly questionable because almost all the measure presented as an expression of the principle of Solidarity are de facto at the expenses of the Migrants fundamental rights. Moreover they create a blurred space which threatens the principles of legal certainty and of the Rule of Law not to speak of the EU mission of placing “…the individual at the heart of its activities, ..” (EU Charter Preamble).

As a result of this proposal fundamental rights could be threatened without relieving the pressure on the EU Member States involved.

It is then not surprising that most of the measures proposed have already been severely criticized by and civil society representatives and legal scholars such as the Meijers Committee, which in its comments on December 14th, criticized:

  • The broad possibilities to apply an accelerated border procedure without consideration of personal circumstances other than particular health issues; Short time limits may make it impossible for the applicant to substantiate his asylum application and for the authorities to conduct an appropriate examination of the application. The obligation to follow an accelerated procedure in these situations may lead the determining authority to refrain from a rigorous examination of the application. The ECtHR has held that the speed of the procedure cannot undermine the effectiveness of the procedural guarantees which aims to protect the applicant against arbitrary refoulement. The CJEU has also recognised in its case law that short time limits may impede the effective exercise of EU procedural rights, such as the right to be heard.
  • The excessively lengthy period granted to Member States for registering an asylum application and granting access to their territory, likely to result in large scale  de facto detention at the external borders. Although the asylum border procedure does not necessarily entail detention, applicants subject to the asylum border procedure are not authorised to enter the Member State’s territory. This will in all probability lead to a considerable increase in the use of detention of applicants for international protection.
  • Withholding automatic suspensive effect of appeals in the ‘emergency migration and asylum management procedure’; and the lowering of reception conditions to the basic minimum, which is not further defined in the proposal, and risks not being able to address the particular needs of asylum seekers as a vulnerable group in need of special protection. It is of importance to note that the ECtHR has held that in view of the importance of Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises in cases in which a State Party decides to remove an alien to a country where there are substantial grounds for believing that he or she faces a risk of that nature Article 13 requires that the person concerned should have access to a remedy with automatic suspensive effect.

Not surprisingly the Meijers Committee ask the Commission to withdraw its Proposal and it is now up to the EP to decide if endorsing the same request by reserving the right to challenge the text before the Court in case of adoption by the Council.

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