DON’T ROCK THE BOAT: EU LEADERS DO AS LITTLE AS POSSIBLE TO ADDRESS THE MIGRANT CRISIS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS  Thursday, 23 April 2015

by Steve Peers

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

Detailed comments

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option – discussed further here – in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

Conclusions

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

Will the Syrian crisis (at least!) trigger a true EU “common” migration policy ?

by Isabella MERCONE (FREE Group Trainee)

The ‘Syrian refugee crisis’ or ‘Syrian humanitarian crisis’, originated by a civil war in 2011, has been going on for more than 4 years now, causing millions of people in need of protection to flee from Syria to neighbouring countries (Jordan, Lebanon, Turkey, Iraq, Egypt), in seek of safety. Moreover, the situation has aggravated in the last year, after the establishment of the ISIS State between Syria and Iraq. [1] Due to its gravity, the issue is at the moment in the spotlight of media and public opinion. Concerns about the issue has already been expressed by all European institutions.[2]

THE EUROPEAN PARLIAMENT

Notably, in a resolution adopted already in the last legislature ( October 2013), the European Parliament was already calling for ‘safe entry and fair asylum procedures’, ‘temporary admission to the EU’, and resettlement as ‘an essential tool to address acute needs’, reiterating the ‘need for more solidarity with member states facing particular pressure to receive refugees.’
Moreover, the resolution encouraged EU countries ‘to make full use of money to be made available from the Asylum and Migration Fund and the Preparatory Action to “Enable the resettlement of refugees during emergency situations”.

THE EUROPEAN COMMISSION

In a recent decision , the European Commission has underlined the importance of ‘sharing responsibility between Member States and strengthening cooperation with third countries’, and suggested that the Union Actions should ‘focus on EU-wide measures promoting the consolidation of the CEAS, including its possible deepening, promotion of resettlement and transfer, and capacity building and strengthening of asylum systems of third countries’.
However, in fact not much has been so far put in practice by EU institutions to respond to Syrian refugee crisis, especially in respect with the support to third countries most affected by the flow. Nowadays, with 3,9 million Syrians refugees displaced among Turkey, Lebanon, Jordan, Iraq and Egypt[3], the European Union has to take action and adopt a real common EU approach to respond to Syrian refugee crisis. In order to do so, it needs:

  • A regulation that establishes a strengthened common asylum and migration system;
  • Adequate funding to implement such common actions to respond to the emergency.

The “Asylum, Migration and Integration Fund” (AMIF)

The AMIF (Asylum, Migration and Integration Fund) is the EU Funding Programme concerning asylum and migration for the period 2014-2020. It was established with Regulation (EU) No 516/2014[4]. With a total budget of EUR 3.137 billion for the whole period (2014-2020), it is aimed at ‘promoting the efficient management of migration flows’ and at the ‘implementation, strenghtening and development of a common EU approach to asylum and migration’.[5] It replaces the three separate funding programmes created for the period 2007-2013 (ERF, European Refugee Fund; EIF, European Fund for the Integration of third-country nationals; RF, European Return Fund), in the attempt to create a common financial framework for EU asylum, immigration and external border control policies.

Should art. 80 on solidarity complement the legal basis ?

EU Member States cooperation in the policy area of migration and asylum has been developing in the last twenty years, starting from the Schengen intergovernmental cooperation paving the way to the suppression of internal border controls. The 1999 Amsterdam Treaty embodied the former intergovernamental Schengen cooperation by splitting it in a new title of the Treaty establishing the European Community (TEC) dedicated to “visas, asylum, immigration and other policies related to free movement of persons” and by dealing with security related policies in the so called “third pillar” (police and judicial cooperation in crimial matters). 

Ten years later the Lisbon Treaty has progressively overcome this dual regime by  merging all these policies in the Title V TFEU (Treaty on the Functioning of the EU), which deals with freedom, security and justice, and which explicitly calls for the adoption of a common policy on asylum, immigration and external borders, based on solidarity between EU countries and fairness to non-EU nationals (article 67(2)TFEU). In particular, article 80 TFEU (Principle of solidarity) specifically states that, in the implementation of this EU policy on migration and asylum, Member States should respect the principle of “solidarity and fair sharing of responsibility”, ‘including its financial implications’.  With the entry into force of the Lisbon Treaty, entered into force also the EU Charter of Fundamental Rights whose articles 18 and 19 strengthen the right of asylum (also covered by art. 78 TFEU) and the principle of non-refoulement [6] at level of  EU primary law. This has been the basic legal framework in which the European Parliament and the Council adopted the Regulation (EU) 516/2014[7], establishing the Asylum, Migration and Integration Fund (AMIF).[8] However it is worth noting that Regulation formal legal basis  are articles 78(2) and 79(2) and (4) TFEU but the Council of  European Union did’nt accept the EP proposal to add also article 80 TFEU as complementary legal basis.  This divergence of view between the three institutions is clearly stressed in the declarations adopted at the time of the EP vote [9] In fact, the EP had advocated for the explicit inclusion of article 80 TFEU in the legal basis of the regulation, but finally surrendered to national parliaments will and adopted the final text without any reference to this article, in order to allow the Fund to start functioning.
Finally, concerning States that are allowed to opt-out in Title V related issues, all EU Member States, with the exception of Denmark, are part in the AMIF.

AMIF GENERAL AND SPECIFIC OBJECTIVES Continue reading “Will the Syrian crisis (at least!) trigger a true EU “common” migration policy ?”

Meijers Committee : Legal Protection in EU Criminal Law: Gaps and Inconsistencies

The current body of EU criminal law offers inconsistent and incomplete legal protection to European citizens. The Meijers Committee has researched and found several shortcomings in the procedural safeguards in instruments of mutual recognition, the proposal on a European Public Prosecutor’s Office and the criteria used to decide on criminalization of conduct at the EU level. In light of an expert meeting held at the European Parliament in January 2015 on these inconsistencies, the Meijers Committee has issued three short notes discussing the issues further.

The first note concerns the need to reform current mutual recognition instruments that overlap but contradict each other in their content and to strengthen judicial review in criminal proceedings.

The second note concerns the need ensure that citizens can foresee under which legal regime the EPPO will conduct an investigation against them and the effectiveness of national judicial review in a transnational context.

The third note concerns the use of criteria to determine whether material prohibitions are appropriate at the EU level and the role of the European Parliament therein.

1. Inconsistent legal protection in mutual recognition instruments

Continue reading “Meijers Committee : Legal Protection in EU Criminal Law: Gaps and Inconsistencies”

Member States and the rule of law. Dealing with a breach of EU values

ORIGINAL PUBLISHED IN THE EP THINK TANK SITE

by Eva-Maria Alexandrova POPTCHEVA

SUMMARY

The European Union is founded on values common to all Member States. These are supposed to ensure a level of homogeneity among Member States, while respecting their national identities, so facilitating the development of a European identity and their integration. Article 7 of the Treaty on European Union provides mechanisms to enforce EU values, based on a political decision by the Council with the participation of the Commission and Parliament. Such decisions are exempt from judicial review.

The current mechanism is said to be unusable due to the high thresholds needed to adopt a decision in the Council, as well as Member States’ political unwillingness to use it. Various new approaches have been proposed by academics and by political actors, from a new independent monitoring body — the ‘Copenhagen Commission’, through extending the mandate of the EU Fundamental Rights Agency (FRA), to introducing the possibility for the EU to suspend national measures suspected of infringing EU law.

The European Parliament launched the idea of a ‘European fundamental rights policy cycle’ with the cooperation of EU institutions, Member States and the FRA, as a ‘new Copenhagen mechanism’ to monitor the situation in Member States. This mechanism would incorporate an early-warning system, with ‘formal notices’ to Member States where a breach in the rule of law appears likely, before formal proceedings under Article 7, and a ‘freezing procedure’ for national measures infringing upon EU values.

In 2014, the Commission announced ‘A new EU framework to strengthen the Rule of Law’, with a structured dialogue between the Commission and the Member State concerned and Commission recommendations and follow-up. On an initiative of the Italian Presidency, the Council decided in December 2014 to hold an annual dialogue, in the General Affairs Council, on the ‘rule of law’ in Member States.

A Union of values 

EU values and national identity

The EU ‘values’ were enshrined in the Treaties only with the Treaty of Lisbon, replacing the previous, less extensive ‘principles’. However, it has been clear from the very beginnings of the Communities that, to succeed, the European integration process needs a common basis of values to secure a degree of homogeneity amongst the Member States.The EU values are supposed to be the basis for a common European ‘way of life’, facilitating integration towards a political, not just a ‘market’, Union. They support the development of a European identity, while ensuring the legitimacy of the EU as founded on democratic values. However, when it comes to detailed definitions of each of the values, there are few accepted unreservedly.

The EU values enjoy two-fold protection. First, since the 1993 Copenhagen European Council, they form part of the accession criteria for candidates for EU membership (Article 49(1) TEU). Second, Member States must, following their accession, observe and promote the EU values. Article 7 of the Treaty on European Union (TEU) establishes a procedure to sanction a Member State which does not uphold the values, through the suspension of membership rights. Moreover, the Union exports its values outside its territory, with the EU values underlying the international relations of the EU (Articles 21, 3(5), and 8 TEU).

On the other side of the coin are the national constitutional identities of Member States. According to Article 4(2) TEU, the Union must respect Member States’ national identities. This provision sets out a vision of a Union founded on values common to all Member States but which preserves the diversity of Member States’ political and organisational systems. This so called ‘constitutional individuality’ of the Member States can be reflected inter alia in state-organisational, cultural, including language, and historical heritage aspects.2 Hence, the common EU values represent limits to the diversity of Member States, reflected in their constitutional identities.

Some examples Continue reading “Member States and the rule of law. Dealing with a breach of EU values”