The Bratislava Declaration on migration: European irresponsibility instead of solidarity

ORIGINAL PUBLISHED ON OMNIA (Odysseus Network) SITE (27 Sep 2016)

By Phillippe De Bruycker (ULB/EUI) Evangelia (Lilian) Tsourdi (Max Weber Fellow, EUI)

The Bratislava Declaration refers on two occasions to “the principles of responsibility and solidarity”. The basic idea is to “broaden EU consensus” by devising a “long term migration policy” on the basis of the two principles.

At first look, this seems logical and even advisable. Since 2015, the EU has been unable to respond effectively to the ‘refugee crisis’. It is only the fragile ‘deal’ with Turkey that brought the illusion of a solution by externalising asylum provision to a third country. The EU remains profoundly divided about possible internal solutions. A European East-West divide has appeared, in addition to the well-known North-South division about the principles evoked in the Bratislava Declaration. Member States in the South have been complaining for years about the lack of solidarity measures, while many Member States in the Northwest have castigated them about their inability to implement their responsibilities. More recently, Member States in the Central/Eastern part of the EU (more precisely the Visegrad group consisting of Hungary, the Czech Republic, Slovakia and Poland) are refusing, ostensibly in the name of responsibility, to engage in the type of solidarity requested by no longer only the Member States in the South, but also those in the Northwest.

The objective to heal the wounds and reunify EU Member States around the same principles of solidarity and responsibility appears reasonable and even attractive in this setting. If all Member States (including those in the South) are fully responsible, the others (in particular those in the East) will demonstrate greater solidarity, so that the problem may be solved in a balanced way. This presentation based on an opposition between responsibility and solidarity is, however, simplistic and even incorrect from a legal point of view. If there is indeed in EU law a precise legal provision that can be considered to embody responsibility, applicable in the same manner throughout EU law, the same does not hold true for solidarity (1). Moreover, effective solidarity and fair sharing are a prerequisite to responsibility in EU migration and asylum policies, rather than the other way round  (2).

1. More responsibility than solidarity in EU law in general

When searching in the EU treaties for the word “responsibility”, Article 165(1) TFEU provides an excellent example of the kind of answer that appears: following this provision, “The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting theresponsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity”.Responsibility refers in this sense simply to competence.

Responsibility understood as competence can be envisaged as a power as well as a duty. It is not so surprising that this notion has been linked in the case law of the Court of Justice with the principle of loyalty, now referred to as the principle of sincere co-operation under Article 4(3) TEU. The principle embodies, respectively, a positive obligation (taking measures to ensure fulfilment of obligations), and a negative obligation (abstaining from measures that could jeopardize this fulfilment). It is this first part that is often evoked by Member State governments; with ‘responsibility’ they refer to Member States’ duty to fulfil their obligations and honour their commitments under EU law.

Loyalty has been made explicit under Article 4(3) of the TEU. The principles of loyalty and solidarity are sometimes used interchangeably in legal scholarship, with loyalty considered a facet of solidarity. Under this understanding, the responsibility of Member States to implement their obligations under EU law is a sign of solidarity to each other. This is, however, a narrow understanding of solidarity, which is a notion different from responsibility.

When searching in EU treaties for the word ‘solidarity’, one finds, in particular since the Lisbon Treaty, more results than a similar search for ‘responsibility’. In some instances, solidarity fulfils an aspirational role, providing political orientation, rather than forming the basis of legally binding duties.  For example, following article 3(5) TEU, “In its relations with the wider world, the Union shall (…) contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples…”

However, in other areas solidarity forms the basis of concrete actions and legally binding duties as in article 222(1) TFEU, following which “The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:

(a)       – prevent the terrorist threat in the territory of the Member States;

– protect democratic institutions and the civilian population from any terrorist attack;

– assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;

(b)       assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster”.

These latter provision shows that solidarity is not linked with the fulfilment of responsibilities but rather with providing assistance to other Member States in order to allow them to implement their obligations.

Interestingly, solidarity understood in this sense does not have the same status as responsibility understood as loyalty. There is indeed no legal provision of solidarity applicable throughout different policies that would create a general duty to support, but rather different and more or less strong expressions of solidarity. As a consequence, one has to examine each particular policy and the provisions in the EU treaties pertaining to it in order to ascertain whether there are concrete solidarity duties and what the extent of these may be. This leads us to the meaning of solidarity in policies on border checks, asylum and immigration as governed by Articles 77 to 80 TFEU.

2. More solidarity than responsibility in EU migration and asylum policies

When searching for the word ‘responsibility’ or ‘responsible’ in those provisions, there are four hits. Firstly, Article 72 states that the EU competences regarding border checks, asylum and immigration do not affect the “responsibilitiesincumbent upon Member States with regard to the maintenance of law and order and the safeguard of internal security” and, secondly, in Article 73, following which “it shall be open to Member States to organise between themselves and under their responsibility forms of cooperation and coordination as they deem appropriate between the competent departments of their administrationsresponsible for safeguarding national security”. Responsibility in those provisions refers to the notion of competence, i.e. that the Member States remain competent for the maintenance of law and order and internal security, and even exclusively competent for national security.

Another ‘hit’ is found in Article 78(2), requesting the European Union to adopt measures for a common European asylum system comprising, under point (e), “criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection”. This is the legal basis of the famous “Dublin System”, based on Regulation 604/2013, determining the responsible Member State for examining an application lodged in the EU. As the flaws of this system have already been analysed in numerous publications,including in this blog, it is not necessary to explain them once more.

Let us just remind ourselves that the origin of this regulation goes back to aConvention signed in Dublin on 15 June 1990 (this explains why specialists of EU asylum continue to speak about ‘Dublin’ in relation to this system). The aim of this system is to indicate which Member State is competent when an asylum application is introduced in the EU on the basis of a certain number of criteria. In practice, the responsible Member State will more often than not be the one of the legal or illegal first entry of the third-country national to the EU.

Responsibility in this regulation refers to the idea of competence regarding the examination of asylum applications, so that all Member States have to deal with the asylum applications for which they are responsible. The problem is that the Dublin system was not devised on the basis of solidarity. On the contrary, apart from exceptions based on the right to family unity, or the rights of the child, it is premised on the idea that each Member State should deal with the applications of asylum seekers whose presence is attributable to actions of that Member State. This could be either because it let them enter the EU voluntarily by issuing a visa or residence permit, or involuntarily by not controlling its external borders effectively. It is not a coincidence that the Dublin system was conceived by the North-Western Member States who drafted the Schengen Convention (France, Germany, Belgium, the Netherlands and Luxembourg) which is at the origin of the Dublin Convention. Solidarity was not an issue at that time in such a small and coherent space. Moreover, Dublin was devised in a purely intergovernmental framework, a decade before the beginning of the implementation of the supranational method with regard to asylum policy, as introduced by the Treaty of Amsterdam, without any actor such as the European Commission looking out for the general interest rather than the national interest of each State. It is an excellent example of the kind of measure that Northern governments managed to impose on other Member States of the European Union, who can try to amend it subsequently, although only with the support of those governments, which explains why this has not been possible regarding the core of the system with the regulations Dublin II in 2003 and Dublin III in 2013.

This is crucial as this policy is, like the area of external borders, characterised by asymmetric burdens between the Member States due to the fate of geography. Following this logic, Greece should have examined all the asylum applications that could have been introduced by the hundreds of thousands of third-country nationals who entered the EU through its borders during the year 2015. It should also have intercepted the persons trying to enter the EU through the Greek borders without the requested documents (a passport with very often at least a short-term visa), as well as taken their fingerprints in order to store them inEurodac, a database helping to determine in practice the responsible Member State. In this particular case, it would mean that Greek authorities should have assumed responsibility of one million third-country nationals just because they entered the EU through the Greek territory.

Does it mean that the Southern Member States are legally wrong when they ask for solidarity from the other Member States, and that they should instead, or at least firstly, fulfil their responsibilities deriving from EU law? The answer is actually much more complicated due to Article 80 TFEU, which reads as follows:The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle”.

This provision is one of those detailing the idea of solidarity in the policies for border checks, asylum and immigration. A quick reading may give the impression that this provision is precisely about two principles that have to be balanced, much like in the Bratislava Declaration. Under this reading, Member States should first fulfil their responsibilities by applying the Dublin Regulation and assuming responsibility for the asylum seekers arriving on their territory before they can expect solidarity. In the event of a failure to take up their responsibilities, they should not expect solidarity, or rather they should be found ‘undeserving’ of it.

However, this provision is about one and not two principles and, more importantly, about the principle of “solidarity and fair sharing of responsibility”.It is interesting to note that the words “fair sharing of” have simply been omitted from the Bratislava Declaration, while they completely change the meaning and content of what is at stake. Instead of an opposition between responsibility and solidarity that should be balanced against each other, the idea of fair sharing of responsibility actually reinforces that of solidarity. The policies of the Union on border checks, asylum and immigration are governed by the principle of solidarity, and responsibilities between the Member States in these areas must be shared in a fair way. If one will agree that fairness leaves some margin of discretion to the European Union, this notion refers to the ideas of equity and justice and thus provides an indication about how the EU policy on borders, immigration and asylum must be conceived and implemented.

It therefore appears that the legal obligation of the EU is not to balance the two principles of solidarity and responsibility, but rather to realise solidarity through a fair sharing of responsibilities. This means also that the concerned Member States should not be expected to implement Dublin as pre-condition for solidarity, but should instead benefit from a system aiming at a fair sharing of responsibility between all EU Member States. Some will say that Dublin is as such not contrary to EU law and that the system could be accompanied by “appropriate measures to give effect to the principle of solidarity and fair sharing of responsibility”, following the wording of Article 80 TFEU. The problem is that Dublin is the source of the asymmetric burdens between Member States, so that it seems difficult to amend or revise it without reversing the basic principle on which it is based.

Conclusion: responsibility or irresponsibility?

Nothing about this constitutional requirement is mentioned in the Bratislava Declaration. On the contrary, the issue of the relocation of asylum seekers, as a concrete solidarity measure at the core of the debate since 2015, has simply disappeared from the agenda, despite the call of the first summit of the Mediterranean countries of the EU organized in Athens on 9 September. This is the case despite the fact that the relocation measures were based on mandatory EU rules, which most Member States do not apply, while some of them openly challenge them, for instance Hungary through the organisation of a referendumcalling the population to vote against them.

What remains is a kind of “flexible solidarity”, following the words of the joint statement of the Heads of Governments of the V4 Countries (the Visegrad group) defined as a concept that “should enable Member State to decide on specific forms of contribution talking into account their experience and potential”, knowing that “any distribution mechanism should be voluntary”. Some observers have already tried to imagine what this could entail. This will become clearer when the Council of Ministers takes a position on the Commission proposal reforming the Dublin system (Dublin IV), which contains a relocation mechanism that appears ambitious but that would in fact be dysfunctional, as underlined by Francesco Maiani in his report for the European Parliament. The European legislator should keep in mind that, despite the discretion left by this provision, Article 80 TFEU requires a strong solidarity mechanism aiming at “fair sharing of responsibility” between the Member States.

The retreat of the EU regarding the issue of solidarity had actually been announced by the President of the Commission himself in his State of the Union speech, where he stated that “Solidarity must be given voluntarily. It must come from the heart. It cannot be forced”. This clearly contradicts the mandatory character of the relocation decision, which was imposed on 22 September 2015 by a qualified majority in the Council against the opposition of Hungary, Slovakia, Romania and the Czech Republic.

The Bratislava Declaration announces a double evolution. First, a so-called principle of responsibility is prioritised over the principle of solidarity and fair sharing, the latter reduced to a “commitment by a number of Member States to offer immediate assistance to strengthen the protection of Bulgaria’s border with Turkey and continue support to other frontline States”. Secondly, “the objective to ensure full control of external borders” is prioritised over the asylum policy, which is not even mentioned in the text.

The so-called “responsibility to ensure full border controls” is nothing else than a rhetoric contrary to the Treaties, ignoring that the Schengen Borders Code is without prejudice to the rights of asylum seekers (see in particular Articles 3 and 4 of Regulation 2016/399 codifying the Schengen Borders Code). Trying to convince public opinion that asylum seekers can simply be rejected at the border without any further examination of their claim is not only illegal but also populistic. This has proven to be impossible, even in the case of a safe third-country, for example Turkey on the basis of the EU/Turkey agreement of 18 March 2016 (see in this blog Henri Labayle’sThe EU-Turkey Agreement on migration and asylum: False pretences or a fool’s bargain?).

The President of the European Council, Donald Tusk wrote in his letter of invitation to the Bratislava Summit that “Europeans all too often heard politically correct statements that Europe cannot become a fortress and that it must remain open”. This is indeed not the case of the Bratislava Declaration where the Heads of State and government want to improve the communication with citizens through the “use of clear and honest language (…) with strong courage to challenge simplistic solutions of extreme or populist political forces”. The problem is that they do exactly this by pretending to build a Fortress Europe, that is de jure impossible. They probably want to prove that this is possible de facto. This is nothing less than European irresponsibility instead of solidarity.

Solidarity beyond the state: towards a model of solidarity centred on the refugee



The increase in the flows of asylum seekers towards the European Union in recent years has re-awakened the discussion over the meaning, extent and limits of the principle of solidarity in European asylum law.

In view of this politically sensitive and ongoing discussion, this contribution aims to assess the legal meaning of solidarity in the Common European Asylum System. I will attempt to demonstrate that the evolution and content of the principle of solidarity in both EU primary and secondary law is predominantly state-centred, with claims of solidarity being advanced primarily with states as reference points and as beneficiaries.

I will aim to demonstrate the limits of this state-centred approach to solidarity both in terms of ensuring effective protection of the rights of asylum seekers and refugees and in terms of achieving an efficient and well-functioning European asylum system. I will advocate in this contribution a paradigm change: moving from a concept of state-centred solidarity to a concept of solidarity centred on the individual.

I will demonstrate how the application of the principle of mutual recognition in the field of positive asylum decisions can play a key part in achieving this paradigm change. I will argue in particular that positive mutual recognition- if accompanied by full equality and access to the labour market for refugees across the European Union- is key towards addressing the lack of effectiveness in the current system.

I will end this contribution by looking boldly in the future, and exploring how refugee-centred solidarity can be achieved by moving from a system of inter-state cooperation based on national asylum determination to a common, EU asylum procedure and status.

State-centred solidarity in European asylum law – a constitutional perspective

An examination of European constitutional law reveals a concept of asylum solidarity which is state-centred, securitised and exclusionary. (Mitsilegas 2014). The emphasis on state-centred state is confirmed by the provisions of the Lisbon Treaty on solidarity in the Area of Freedom, Security and Justice.

According to Article 67(2) TFEU, the Union shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. Article 80 TFEU further states that the policies of the Union on borders, asylum and immigration will be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.

Solidarity is also securitised: as with other areas of European Union law, solidarity in European asylum law reflects a crisis mentality and has led to the concept being used with the aim of alleviating perceived urgent pressures on Member States. This view of solidarity as an emergency management tool is found elsewhere in the Treaty, in the solidarity clause established in Article 222 TFEU according to which the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural man-made disaster.

The concept of solidarity here echoes the political construction of solidarity in European asylum law, in responding to perceived urgent threats. This view is confirmed by the growing trend towards the securitsation of migration and asylum in EU law and policy Placed within a state-centric and securitised framework, solidarity is also exclusionary.

The way in which the concept of solidarity has been presented in EU constitutional law leaves little, if any space for the application of the principle of solidarity beyond EU citizens or those ‘within’ the EU and its extension to third-country nationals or those on the outside.

One of the few provisions of the Treaty which may be seen as leaving the door open towards a more human-centred concept of solidarity, Article 2 TEU on the values of the European Union, states that these values are common to the Member States in a society in which…solidarity… [must]prevail. The inclusion of asylum seekers and refugees in this concept of solidarity is unclear. Although asylum law is centred on assessing the protection needs of third-country nationals, and in this capacity they must constitute the primary ‘recipients’ of solidarity in European asylum law, the application of the principle of solidarity in this field appears thus to follow the exclusionary paradigm of solidarity in other fields of EU law where issues of distributive justice arise prominently.

Dublin as the embodiment of state-centred solidarity, and the failure of negative mutual recognition

Continue reading “Solidarity beyond the state: towards a model of solidarity centred on the refugee”


The text below is the final version of the EU Regulation on the European Border and Coast Guard as revised by the Jurist Linguists of the EU institutions. Formally adopted this week as a “corrigendum” by the European Parliament and by written procedure by the Council it will be published on the Official Journal in the coming weeks. Presented, negotiated and adopted in extremely short time ([1]) under the pressure of the European Council the new EU Regulation on the European Border and Coast Guard could be seen at the same time a main evolutionary step and a revolutionary one in the relation between the EU and its Member States in the freedom security and justice area. 

Even if the main subject of the text is the border management it covers also directly and indirectly other EU policies such as refugee law, international protection, migration and even internal and external security. Not surprisingly  such an ambitious objective was difficult if not impossible to achieve in such a short time and several commentators and representatives of the civil society have already considered (see Peers , Carrera [1], Rijpma [2], and, more recently, De Bruycker [3])  that the text on one side does not deliver what it announces and on the other side is still rooted in an old intergovernamental model. Maybe from a legistic point of view instead of bringing all these objectives in a single legislative text it would had been more elegant to focus its content only on the organisational and operational aspect of the “new” Frontex  and deal with the general framework of the integrated EU border management in the Schengen Border Code where general rules on the definition, negotiation adoption and implementation would had been better placed together with the rules on its evaluation and on the adoption of extraordinary measures in case of emergency. However these have probably been considered by the Commission legal niceties to be dealt with in times with less political pressure.. 

With so many objectives it is not surprising that the final result is far from the expectations and the text is somewhere still elusive and somewhere too detailed. It can then be interesting to  compare the negotiation position of the three institutions as it result from a very interesting Multicolumn document leaked by Statewatch during the “confidential” legislative trilogies. It shows that the European Parliament has tried to improve the original Commission proposal and has obtained some concessions from the Council but regrettably, it had lost the main targets such as the definition in codecision of the European Border Strategy (instead of a simple decision of the Agency’s Management Board) and even on the procedure to appoint of the Agency Director where its position will be to express an opinion …which can be disregarded.

Further comments will follow. EDC


[1] See the CEPS study of Sergio Carrera and Leonhard den Hertog “A European Border and Coast Guard: What’s in a name?”

[2] See Jorrit RIJPMA study for the Civil Liberties Committee of the EP “The proposal for a European Border and Coast Guard: evolution or revolution in external border management?”

[3] See Philippe DE BRUYCKER “The European Border and Coast Guard: A New Model Built on an Old Logic


It is the latest (and quite likely not the last) of a chain of legal texts by which the EU has tried in the recent years to legally frame the issue of human mobility and human security in the EU by taking in account the new legal framework after the entry into force of the Lisbon Treaty and of the EU Charter of fundamental rights.

[1] A rather detailed and updated collection of the legislative preparatory works can be found here :

[2] As as verified by the Jurist Linguist and endorsed by the EP according to art 231 of its Rules of procedure)


REGULATION (EU) 2016/…OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC


Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 77(2)(b) and (d) and Article 79(2)(c) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee1,

Acting in accordance with the ordinary legislative procedure2,

Whereas: Continue reading “WORTH READING : the final text of the EUROPEAN BORDER AND COAST GUARD REGULATION”

EU Referendum Briefing 4: Immigration


Steve Peers


What impact does the UK’s membership of the European Union (EU) have on immigration and asylum? This post examines that controversial issue, looking in turn at migration to the UK by non-EU and EU citizens.

Non-EU migration

It’s central to distinguish between non-EU and EU migration in the referendum debate for two reasons. First of all, because while EU migration is obviously closely connected to the UK’s membership of the EU, non-EU migration is not. That’s simply because the UK has negotiated and used opt outs from EU laws on non-EU migration and asylum, particularly from the EU’s borderless Schengen zone. This means that the UK can control its borders with the rest of the EU as regards non-EU citizens, applying its own law to admit them or to refuse them entry. So it’s false to say that the UK has ‘lost control of its borders’ as far as non-EU migration is concerned.

As I noted in the first EU Referendum Briefing, these opt-outs could only be removed by a Treaty amendment which the UK government and parliament agreed to. Moreover, the Schengen opt-out can only be removed by a public referendum.

Secondly, the distinction is important because non-EU migration actually accounts for agreater share of net migration to the UK than EU migration does, as demonstrated here:

Moreover, for those who would like to see net migration to the UK reduced to the level of (say) 50,000 or below 100,000, it is self-evident from this graph that leaving the EU will not, by itself, accomplish this. Even with no EU migration, non-EU migration alone would still be well above the 100,000 level, as we can clearly see. Conversely, some would like to see more non-EU migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s entirely the government’s decision not to. But doing so would clearly move the UK further away from a target of 100,000 migrants, even if the UK leaves the EU.

A small minority of non-EU citizens in the UK are covered by EU law. First of all, non-EU family members of EU citizens are covered by EU free movement law. However, the UK’s renegotiation deal (as discussed here) would allow it to restrict their numbers considerably, by tightening the rules on their entry.

Secondly, the UK opted into the ‘first phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over asylum law proposals, and used it to insist that the EU rules would not change UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s asylum system’, in fact the only British asylum cases which the EU court has decided concern the ‘Dublin’ system of allocating responsibility for asylum applications between EU countries.

This system allows the UK to insist that other Member States take back asylum-seekers who have entered their territory before they got to the UK. If the UK left the EU, it would no longer be subject to these Dublin rules, unless the EU agreed to sign a treaty with the UK to that effect. This is pretty unlikely, since the EU has only signed such treaties with countries like Norway and Switzerland, for the sole reason that those countries also signed up to be part of the Schengen area at the same time.

Let’s think about what all this means in practice. Some non-EU migrants who have travelled through the rest of the EU do attempt illegal entry into the UK, or would probably like to do so (those in Calais and Dunkirk, for instance). But why would that change if the UK left the EU? The people concerned wouldn’t suddenly lose all desire to come to the UK. Their intended illegal entry would not become harder in any way. It would be against the law – but it already is now. Brexit would not actually move the UK further away from the continent geographically. People do attempt illegal entry into non-EU countries, like the USA; and refugees flee to and stay in non-EU countries (like Turkey, Kenya or Lebanon) too.

Some on the Leave side have suggested that the UK is vulnerable to sexual assault from non-EU migrants on the continent. Let’s unpack that. None of the non-EU migrants concerned have the right of entry into the UK. The UK can simply refuse them entry at the border. In contrast, the Orlando killer was a US citizen, who could have come to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that non-EU migrants in the rest of the EU will all gain EU citizenship and come to the UK shortly afterward. But as shown in three separate analyses – by Full Fact, BBC Reality Check, and Open Europe – gaining EU citizenship is very difficult for non-EU citizens. It requires a long wait, a clean criminal record and satisfaction of many other criteria. If non-EU citizens don’t have legal residence status, or their asylum application fails, they can be deported. Nearly 200,000 non-EU citizens are in fact expelledfrom the EU every year.

Finally, let’s apply this analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any right to enter the UK. All of them can be refused at the border. Brexit would change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for asylum. The prospect that many of them would gain EU citizenship and move to the UK is remote.

So the poster is essentially unrelated to the referendum. As such, it is not an attempt at rational argument – but rather an appeal to irrational fear.

EU migration

In contrast, as noted already, the migration of EU citizens is indeed relevant to the referendum debate. Much of this debate is about the economic impact of EU migration, including its impact on public services. I’ll leave that side of the debate to the economists. But there are some important legal issues that should be clarified, related to access to benefits and exclusion on grounds of criminality. The key point is that the free movement of EU citizens, while generous compared to ordinary immigration laws, is not unlimited.

What are these limits? First of all, EU citizens have to meet the criteria to stay. The main legislation on the free movement of EU citizens – known as the ‘Citizens’ Directive’ – provides that EU citizens and their family members can move to another member state initially for a period of three months. But it also says explicitly that the EU citizen has no right to any social assistance benefits during this time. Indeed, the UK has removed EU job-seekers’ access to job-seekers’ allowance during the first three months of their stay.

After three months, the Citizens’ Directive says that EU citizens and their family members can stay subject to further conditions: they are either workers or self-employed; or have ‘sufficient resources’ not to burden the social assistance system, along with health insurance; or are students in a post-secondary institution, if they have health insurance and declare that they will not be a burden to the social assistance system. The EU court hasconfirmed that there is no right to stay just to obtain social assistance without ever working in the host country. Recently it also confirmed the UK government’s refusal to pay child benefit or child tax credit to those who did not qualify to stay.

It’s sometimes suggested that ‘500 million people can move to the UK’ under EU free movement law. Yes – if there were 500 million jobs for them to come and do. Or 500 million university places available. Or if all of those 500 million people had a small fortune stashed away. Obviously nothing like those numbers of jobs, university places or self-sufficient people exist.

What about EU migrants who come to the UK and look for work? David Cameron has suggested they can be automatically removed after six months if they don’t find work. This isn’t correct: the Citizens’ Directive says that they can stay if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. But as mentioned already, they are not entitled to any benefits from the UK while looking for work. Also, they must meet the criteria of self-sufficiency, otherwise they would not be entitled to stay after three months anyway.

What if an EU migrant works in the UK for a time, then becomes unemployed? It is possible that they can retain status as a (former) worker, and therefore keep access to social assistance benefits. There are limits to this, however.  In particular, if the EU worker has been employed for less than one year in the UK, he or she would only retain ‘worker’ status for six months after becoming unemployed. At that point the UK can cut off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal treatment as regards benefits, including top-up benefits paid to those in work, which are a large part of the UK tax and benefit system. However, thedeal on the renegotiation of the UK’s EU membership specifies that if the UK votes to stay in the EU, the current EU rules will be changed so that the UK can apply a four-year ban for workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will be able to limit on the child benefit exported to EU workers with children in other member states, fixing the rate of that child benefit to the cost of living in the country of the children’s residence.

After five years’ legal stay on the basis of the Citizens’ Directive, EU citizens and their family members can obtain permanent residence status, meaning that they no longer have restricted access to social benefits.

As for criminality, it is sometimes suggested or inferred that the UK cannot refuse entry or expel EU migrants on criminal law grounds at all. This is clearly false. The Citizens’ Directive allows for expulsion, entry bans or refusal of entry for those who are a threat to ‘public policy, public security or public health’. There are limits, however. Restrictions must be proportionate and ‘based exclusively on the personal conduct of the individual concerned’. People cannot be excluded on general preventive grounds, but on ‘personal conduct’ which ‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

British authorities can check on an individual’s police record after entry, and can also issue an entry ban preventing that person from coming to the UK in the first place. For those who are on the territory, there is greater protection against expulsion over time, but there is never any absolute ban on expulsion.

It has been suggested that the EU court has prevented 50 EU criminals from being removed from the UK. This is false. Any such judgments were made by UK courts or the European Court of Human Rights.

To prove that point, let’s look at a list of all the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases, and only five of them concern expulsion or exit bans of EU citizens due to criminality. Of those five cases, just three concern the UK.

In those five cases, the Court decided that:

  1. a) time spent in prison in the UK  by an EU citizen’s family member did not count toward getting permanent residence under EU law (Onuekwere);
  1. b) an EU citizen convicted of child cruelty could not count prison time toward a ten-year threshold giving extra protection against expulsion (G case);
  1. c) the UK does not have to give an EU citizen information which could compromise national security during an expulsion proceeding (ZZ case);
  1. d) people with a drug trafficking conviction can be banned from leaving the country (Gaydorov); and
  1. e) child abusers can be expelled on grounds of ‘public security’ even if they have been resident for over ten years (I case).

So in every single relevant judgment in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another supposed EU court ruling, about the daughter-in-law of a terrorist in the UK. In fact there is no ruling in that case yet – only the non-bindingopinion of an ‘Advocate-General’. And according to that opinion, the person concerned can indeed be expelled, if a British court believes that she is a risk to public security.

It is also possible to expel EU citizens on grounds that they rely on social assistance.

One final point about the free movement of EU citizens. The Leave side has referred several times to the possibility of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous Referendum Briefing, that: a) every Member State has a veto on this; Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and there would also be a lengthy period after Turkish accession before the free movement of persons applied.

Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency


Comments on the Dublin recast proposal  (COM (2016) 197)

  1. General observations

The Meijers Committee would like to take this opportunity to comment on the proposed reform of the Dublin Regulation, as set forth in the 6 April 2016 EC communication to the EP and Council (COM (2016) 197) and the 4 May 2016 proposal for a regulation of the EP and Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (COM (2016) 270). The later proposal will be further referred to here as Dublin III recast.

On page 4 of the 6 April 2016 communication, the Commission succinctly lists the shortcomings of the Dublin regulation: “difficulties in obtaining and agreeing on evidence proving a Member State’s responsibility for examining the asylum application, leading therefore to an increase in the number of rejections of requests to accept the transfer of applicants. Even where Member States accept transfer requests, only about a quarter of such cases result in effective transfers, and, after completion of a transfer, there are frequent cases of secondary movements back to the transferring Member State. The effectiveness of the system is further undermined by the current rules which provide for a shift of responsibility between Member States after a given time. […] A further impediment to the effective functioning of the Dublin system results from the difficulty in transferring applicants to Member States with systemic flaws in critical aspects of their asylum procedure or reception conditions. The effective suspension of Dublin transfers to Greece since 2011 has proved a particularly critical weakness in the system. […] The Common European Asylum System is also characterized by differing treatments of asylum seekers, including in terms of the length of asylum procedures or reception conditions across Member States, a situation which in turn encourages secondary movements.”

The Meijers Committee wishes to add that Dublin’s ineffectiveness not only results from the difficulty of effectuating transfers but also from a general failure to initiate Dublin procedures, because asylum seekers have not been registered upon entering the EU. It is well known, not only that asylum seekers may seek to avoid registration, but that some Member States also disregard their obligation to register asylum seekers – some even on a large scale. It has been estimated, for example, that only half the persons entering Italy and applying for asylum somewhere in the EU were registered in that country1 In 2014, the proportion of physical Dublin transfers to the number of applicants for international protection in the EU was about 4 %, which suggests that Dublin is applied in far fewer cases than all those to which it is in fact applicable.2

To remedy these shortcomings, the Commission proposes two options:

  1. Supplementing the present system with a corrective fairness mechanism, or
  2. A new system for allocating asylum applications in the EU based on a distribution key.

Because the second option would be difficult to envisage in the short or medium term, the Commission has chosen to pursue the first one.

The Meijers Committee would first of all like to point out that none of the shortcomings listed by the Commission will be remedied by the first option, since it is essentially a continuation of the present Dublin system, which is demonstrably a failure. Why continue with a broken system instead of fixing the shortcomings, even though this may not produce significant results in the short term? Additionally, the Meijers Committee points to the fact that the Dublin regulation was only very recently recast (19 July 2013), so this recast has been undertaken within 3 years of the entry into force of the last recast regulation, while that recast came 10 years after the entry into force of the Dublin II regulation.

The Meijers Committee points out that at present there are two infringement procedures ongoing with regard to the Dublin regulation (in respect of Italy and Hungary), as well as four infringement procedures regarding the closely related Eurodac regulation (in respect of Croatia, Greece, Italy and Cyprus). Additionally, the Commission has recently sent a second supplementary letter to Greece expressing concerns over the persistence of serious deficiencies in the Greek asylum system, as well as a 10 February 2016 recommendation.

The belief that the Dublin system allocates responsibility unsustainably is widely held and is mentioned on page 3 of the explanatory memorandum to the Dublin III recast proposal. It is no coincidence that the infringement procedures mentioned above concern Member States on the EU’s external borders. These Member States have for a long time complained that they cannot process the large numbers of asylum seekers entering the EU through their territories. While the suggested corrective fairness mechanism can go some way to remedy this situation, it will not change the fact that it is these Member States who will bear the brunt of new arrivals. The corrective fairness mechanism will not be triggered until a Member State has received 150% of the maximum allocated number of applications deemed fair on the basis of that State’s GDP and population size. This only partly corrects disproportionate burden sharing, without addressing the fundamental shortcomings of the Dublin system, namely that this system wrongly presupposes that the asylum procedures are adequate and up to standard in all Member States. On the contrary, Member States still continue to display systemic deficiencies, which make Dublin transfers impossible. As has been accepted by the ECtHR in several recent judgments, there are significant national differences in the quality of reception and asylum systems, which continue to exist and which encourage secondary movements.3 Additionally, the Commission must take stock of the fact that its similar attempt of September 2015 at such a mechanism has so far not been successful: of the 160,000 asylum-seekers who should have been relocated, only 1,500 (909 from Greece and 591 from Italy) have been relocated.

The proposals under Dublin III recast do very little to address this unsustainable burden sharing, focusing instead on the risk of abuse of the rules laid down in the Dublin III regulation by individual asylum seekers, including their absconding.

  1. Detailed observations

Continue reading “Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency”

Accord politique ou juridique : Quelle est la nature du “machin” conclu entre l’UE et la Turquie en matière d’asile?

ORIGINAL PUBLISHED HERE  on 10 Friday Jun 2016

Par Olivier Cortenet Marianne Dony, Professeurs ordinaires à l’Université libre de Bruxelles,

Alors que trois demandeurs demandeurs d’asile – apparemment deux Pakistanais et un Afghan dans les affaires T-192/16, 193/16 et 257/26 – ont demandé au Tribunal de l’Union Européenne l’annulation de l’accord conclu le 18 mars 2016 entre l’UE et la Turquie, il est permis de s’interroger sur la nature exacte de ce “machin” considéré par le service juridique du Parlement Européen comme un simple accord politique, sachant cependant que la recevabilité du recours sera tout d’abord au coeur des débats…

Les autorités européennes affirment à l’unisson que la « déclaration UE-Turquie », dont le contenu a été détaillé dans un communiqué de presse du Conseil européen du 18 mars dernier, n’est pas un accord international mais une simple déclaration d’intention. Qu’en est-il vraiment, au regard des règles du droit de l’Union européenne et du droit international public ?

Si l’on s’en réfère au droit de l’Union européenne, il est permis d’en douter au vu de la jurisprudence de la Cour de justice (de l’Union européenne).

Ainsi, dans un arrêt du 23 mars 2004, C-233/02, France c. Commission (points 42 à 45), la Cour s’est interrogée sur le point de savoir si des « lignes directrices » finalisées en février 2002 par communication entre les négociateurs des services de la Commission et leurs homologues américains et sur lesquelles aucune signature n’avait été apposée pouvaient être considérées comme un accord international. La Cour a indiqué que le critère décisif était de savoir si ces lignes directrices avaient, ou non, force obligatoire et qu’à cette fin, il fallait s’en référer à l’intention des parties. En l’espèce, la Cour a alors constaté qu’il résulte explicitement du texte de ces lignes directrices que les parties avaient l’intention de les appliquer sur une base volontaire et que de surcroît l’intention des parties de ne pas contracter d’engagements obligatoires avait été à maintes reprises expressément réitérée durant la phase de négociations des lignes directrices. C’est sur cette base que la Cour conclut que ces lignes directrices ne constituent pas un accord international et ne sont donc pas visées par l’article 300 CE, devenu article 218 TFUE.

Par ailleurs, dans l’arrêt du 26 novembre 2014, C-103/12 et C-165/12, Parlement et Commission c. Conseil (points 60 à 74) la Cour a analysé le contenu et le but d’une déclaration relative à l’attribution de possibilités de pêche dans les eaux de l’Union européenne à des navires de pêche battant pavillon » de la République du Venezuela pour considérer qu’elle devait s’analyser comme une offre adressée à cette dernière, subordonnée au respect de certaines conditions précises et que la République du Venezuela  en transmettant des demandes d’autorisation de pêche dans les eaux concernées avait consenti à cette offre. Elle a dès lors conclu qu’un accord avait bien été conclu entre ces dernières, en ajoutant que « le fait qu’un tel accord est formalisé dans un seul document commun ou dans deux ou plusieurs instruments écrits connexes est dépourvu de pertinence ».

Il résulte donc clairement de ces arrêts que la forme n’importe pas. Ce n’est pas parce que le choix d’une déclaration, ou d’un communiqué de presse, a été fait qu’il ne peut s’agir d’un accord international. Au contraire, il faut analyser le but et le contenu de cette déclaration pour déterminer si elle contient des engagements ayant force obligatoire.

Et, en passant à l’analyse de la déclaration UE-Turquie, une lecture même rapide permet de relever que l’UE et la Turquie « sont convenues » d’un certain nombre d’actions pour atteindre un objectif commun. Au nombre de ces actions:

  • il est d’abord prévu que « tous les nouveaux migrants en situation irrégulière qui partent de la Turquie pour gagner les îles grecques à partir du 20 mars 2016 seront renvoyés en Turquie », étant entendu que tous les « coûts des opérations de retour des migrants en situation irrégulière seront pris en charge par l’UE » ;
  • ensuite, « pour chaque Syrien renvoyé en Turquie au départ des îles grecques, un autre Syrien sera réinstallé de la Turquie vers l’UE », un mécanisme devant, à cette fin, être « mis en place, avec le soutien de la Commission, des agences de l’UE et d’autres États membres » ;
  • de plus, la Turquie « prendra toutes les mesures nécessaires pour éviter que de nouvelles routes de migration irrégulière, maritimes ou terrestres, ne s’ouvrent au départ de son territoire en direction de l’UE »  et l’UE « accélèrera (…) le versement du montant de trois milliards d’euros initialement alloué au titre de la facilité en faveur des réfugiés en Turquie ».
  • Finalement la déclaration affirme que tous « ces éléments progresseront en parallèle et feront l’objet d’un suivi mensuel mené conjointement ».
  • A titre accessoire, on mentionnera que le considérant 4 de la proposition de décision modifiant la décision du Conseil du 22 septembre 2015 instituant des mesures provisoires en matière de protection internationale au profit de l’Italie et de la Grèce, déposée par la Commission le 21 mars 2016, indique que « les chefs d’État ou de gouvernement sont convenus, le 7 mars, d’une série de principes devant constituer la base d’un accord avec la Turquie … », que la proposition entend partiellement mettre en œuvre. Nous noterons que c’est la Commission elle-même qui a souligné ces termes dans la présentation de sa proposition.

L’ensemble de ces éléments est de nature à indiquer que la déclaration ne contient pas simplement un certain nombre d’actions que les parties entendent appliquer sur une base volontaire mais bien des engagements à caractère obligatoire. On peut donc conclure que cette déclaration constitue bien en réalité un accord international.

Conséquences en droit européen

La conséquence en est que cette déclaration relève de l’article 218 TFUE. En effet, ainsi que l’a indiqué expressément la Cour dans son arrêt du 26 novembre 2014 (point 83), cet article « régit la négociation et la conclusion des accords entre l’Union et des pays tiers », étant entendu que le terme « accord » utilisé à cet article « doit être compris dans un sens général, pour désigner tout engagement pris par des sujets de droit international et ayant une force obligatoire, quelle qu’en soit la qualification formelle ».

En outre, comme l’a souligné la Cour de justice dans un arrêt du 16 juillet 2015C-425/13, Commission c. Conseil (point 62), cette disposition « constitue une norme autonome et générale de portée constitutionnelle, en ce qu’elle attribue aux institutions de l’Union des compétences déterminées », en « visant à établir un équilibre entre ces dernières ».

Que prévoit cette disposition? (voy. à ce sujet, M. Dony,   Droit de l’Union européenne, points 358 à 368). Il résulte de l’article 218, paragraphe 6, TFUE, que c’est le Conseil, sur proposition du négociateur (qui est normalement la Commission), qui adopte, en principe à la majorité qualifiée, une décision portant conclusion de l’accord, et ce après approbation du Parlement européen, lorsque cet accord couvre un domaine auxquels s’applique la procédure législative ordinaire, ce qui est le cas pour la politique d’asile (article 78, paragraphe 2, TFUE) et d’immigration (article 79, paragraphe 2, TFUE).

Il est patent qu’en l’espèce, cette procédure n’a absolument pas été respectée : en effet, il n’y a pas trace d’une quelconque proposition de la Commission ; la « déclaration UE-Turquie » a fait l’objet d’un communiqué du Conseil européen et non d’une décision du Conseil et enfin, last but not least, le Parlement européen, non seulement n’a pas approuvé l’accord, mais n’a tout simplement pas été impliqué du tout. Il est même permis de penser que le terme « déclaration » a été consciemment choisi pour notamment éluder l’application de la procédure de l’article 218 TFUE.

En vertu d’une jurisprudence constante, le non-respect de la procédure de l’article 218 TFUE est de nature à affecter la légalité de la décision de conclusion d’un accord. C’est ainsi que la Cour, dans son arrêt précité du 26 novembre 2014, a annulé la décision adoptant la déclaration en cause au motif que le Parlement avait été simplement consulté et n’avait pas donné son approbation à l’accord. De même, dans un arrêt du 9 août 1994, C-327/91, Conseil c. Commission, la Cour a annulé l’acte par lequel la Commission avait entendu conclure un accord avec les Etats-Unis concernant l’application de leur droit de la concurrence, après avoir jugé que l’accord aurait dû être conclu par le Conseil, qui seul détient la compétence de conclusion des accords internationaux.

Cela étant, deux difficultés se présentent dans le cadre du droit de l’Union européenne:

D’abord, la question se pose de savoir comment il est possible de contester la validité du communiqué de presse contenant la « déclaration UE-Turquie », qui doit être considérée comme « la décision de conclusion » de cet accord.

La voie à laquelle chacun pense spontanément est l’action en annulation prévue par l’article 263 TFUE. La forme qu’a prise cette « décision » n’est pas un obstacle, car il est de jurisprudence constante que « recours en annulation doit être ouvert à l’égard de toutes les dispositions prises par les institutions de l’Union, indépendamment de leur nature ou de leur forme, à condition qu’elles visent à produire des effets de droit », comme l’a rappelé la Cour de justice dans son arrêt précité du 16 juillet 2015 (point 26).

Ce recours est ouvert sans conditions aux Etats membres, au Parlement européen, au Conseil ou à la Commission. En revanche, les personnes physiques ou morales doivent quant à elle établir que l’acte dont elles demandent l’annulation les concerne « directement et individuellement » et il paraît très difficile voire téméraire de soutenir que tel pourrait être le cas d’un tel acte. Elles devraient donc s’en remettre à une action introduite par un des requérants dits privilégiés, ou plus précisément au Parlement européen ou un Etat membre.

Une voie plus indirecte, et plus incertaine, pourrait être envisagée, qui consisterait, en application de l’article 267 TFUE, à saisir une juridiction nationale et de lui demander de poser à la Cour de justice une question préjudicielle en appréciation de validité de cette « décision ».

Ensuite, il résulte d’une jurisprudence constante que la Cour de justice peut seulement annuler ou invalider la décision de conclusion d’un accord international mais non l’accord lui-même. Ainsi, dans l’arrêt précité du 9 août 1994, la Cour a interprété le recours en annulation de l’accord introduit par la France comme étant dirigé contre l’acte par lequel la Commission a entendu conclure cet accord. La question de la conséquence d’une telle annulation sur la validité de l’accord international doit être abordée au seul regard du droit international public, vers lequel il importe donc de se tourner.

Conséquences en droit international

A cet égard, en droit international public, la notion de traité est entendue assez largement, comme en témoigne cette définition codifiant le droit coutumier reprise dans la Convention de Vienne de 1986 sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales : « […] l’expression ‘traité’ s’entend d’un accord international régi par le droit international et conclu par écrit […] que cet accord soit consigné dans un instrument unique ou dans deux ou plusieurs instruments connexes, et quelle que soit sa dénomination particulière » (voy. les commentaires de cet article et des autres dispositions pertinentes des conventions de Vienne sur le droit des traités dans O. Corten et P. Klein (dir.), Les Conventions de Vienne sur le droit des traités. Commentaire article par article).

La dénomination, ou plus généralement la forme de l’accord, n’importe donc pas. Ont ainsi été considérés comme des traités entre Etats (mais on peut sans aucun doute transposer ces enseignements aux traités entre Etats et organisations internationales) : un échange de lettres (C.I.J., Affaire du Différend territorial (Libye/Tchad), Recueil 1994, not., § 31) , un simple procès-verbal de réunion (C.I.J., Affaire de la Délimitation maritime et des questions territoriales entre le Qatar et Bahreïn, Recueil 1994, § 23.), un communiqué conjoint (C.I.J., Affaire du Plateau continental de la Mer Egée, Recueil 1978, §§ 95-98) ou encore … une déclaration commune (C.I.J., Affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria, Recueil 2002, § 263). Le caractère informel de la « déclaration UE-Turquie » ne constitue donc aucunement un obstacle à sa qualification de traité. Le droit international et le droit européen se rejoignent sur ce point.

La seule condition potentiellement problématique en l’espèce est celle selon laquelle l’accord doit être « régi par le droit international », ce qui suppose une volonté des parties de produire des engagements juridiques relevant du droit international public. Ici aussi, les critères du droit international sont très similaires à ceux dégagés par la Cour de justice qui d’ailleurs s’y réfère explicitement.

En l’espèce, et comme indiqué ci-dessus (point 4), la « déclaration UE-Turquie » a pour objet la circulation des personnes et le statut de réfugié, un domaine qui relève indéniablement de l’ordre juridique international. La terminologie utilisée témoigne d’ailleurs d’une volonté de s’engager, comme en témoignent les extraits suivants : « l’UE et la Turquie ont décidé ce jour de … »,  « sontconvenues des points d’action complémentaires suivants… »… « La Turquieprendra toutes les mesures nécessaires pour éviter que… » ; … « un programme d’admission humanitaire volontaire sera activé. Les États membres de l’UE ycontribueront… ». Les termes ainsi soulignés ont une portée qui, loin d’être simplement exhortative ou indicative, est normative et prescriptive. De manière tout à fait explicite, les parties précisent encore que : « Cela se fera en totale conformité avec le droit de l’UE et le droit international » ou encore « conformément aux normes internationales applicables ».

Bref, au vu des termes mêmes de cette déclaration, il paraît difficile de lui dénier la qualité de « traité », au sens du droit international public. Cela étant, le non-respect des procédures internes de l’UE lors de la conclusion de ce traité pourrait avoir des conséquences non sur l’existence, mais sur la validité de ce dernier. Le droit coutumier en la matière est exprimé dans deux dispositions de la Convention précitée de Vienne de 1986 :

« Article 27 […]

2. Une organisation internationale partie à un traité ne peut invoquer les règles de l’organisation comme justifiant la non-exécution du traité.

3. Les règles énoncées dans les paragraphes précédents sont sans préjudice de l’article 46 ».

« Article 46 […]

2. Le fait que le consentement d’une organisation internationale à être liée par un traité a été exprimé en violation des règles de l’organisation concernant la compétence pour conclure des traités ne peut être invoqué par cette organisation comme viciant son consentement, à moins que cette violation n’ait été manifeste et ne concerne une règle d’importance fondamentale.

3. Une violation est manifeste si elle est objectivement évidente pour tout Etat ou toute organisation internationale se comportant en la matière conformément à la pratique habituelle des Etats et, le cas échéant, des organisations internationales et de bonne foi ».

Il en découle que, si, en principe, l’UE ne pourrait se prévaloir de la violation de ses propres règles pour justifier la non-exécution du traité, une exception est cependant réservée aux cas de violation « manifeste » concernant une règle d’une « importance fondamentale ».

Pour ce qui est de la deuxième condition,  l’accord a été conclu  en violation totale du prescrit de l’article 218 TFUE (point 7). Or cette disposition doit indéniablement être considérée comme une règle d’une importance fondamentale. La Cour internationale de justice a ainsi indiqué que  « les règles relatives au pouvoir de signer des traités au nom d’un Etat sont des règles constitutionnelles d’une importance fondamentale » (Affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria, précitée, § 265) et cette affirmation peut assurément être transposée au droit d’une organisation internationale comme l’UE, d’autant que, comme déjà indiqué, la Cour de justice de l’Union européenne lui a expressément accordé ce statut. On peut d’ailleurs penser que c’est ce qui explique que le Conseil européen ait préféré dénier la qualité d’accord à la déclaration commune avec la Turquie : par le biais de cette qualification, sans doute espérait-il échapper à l’obligation de respecter l’article 218 TFUE…

Peut-on également considérer que cette violation était « manifeste » et donc « objectivement évidente » pour la Turquie ? Dans l’affaire que l’on vient de citer, la Cour internationale de justice est restée très prudente sur cette question, puisqu’elle estime que la connaissance par un Etat d’une règle constitutionnelle de droit interne d’un autre Etat suppose que ce dernier l’ait « rendu[e] publique de manière appropriée ».

Dans notre cas, on n’est cependant pas devant une règle de droit interne, mais devant des règles conventionnelles qui sont par définition publiques, les traités européens faisant l’objet de diverses publications, écrites et électroniques. Plus précisément, il est difficile d’imaginer que la Turquie, candidate à l’adhésion et engagée dans des négociations à cet effet depuis des années, n’ait pas connaissance des principes régissant la conclusion des accords internationaux de l’Union et en particulier des principes selon lesquels le Parlement européen doit être impliqué dans la procédure de conclusion de ces accords et que le Conseil européen n’est  en revanche pas habilité à y intervenir.

En conclusion

Dans ces conditions, et toujours si l’on s’en tient au droit international public, il apparaît que la « déclaration UE-Turquie » peut a priori être qualifiée de traité, mais un traité dont il est sérieusement permis de douter de la validité. Rien ne devrait dès lors sérieusement empêcher de remettre en cause les effets juridiques de cette déclaration, que ce soit en droit européen ou en droit international public.

WIKI-LEX : The “new” EU Border Guard proposal

FOREWORD The aim of a wiki-lex exercise launched by Statewatch and FREE Group is to make easier monitoring the legislative preparatory work at EU level notably when so called “trilogues” start and it is not clear who is proposing what in view of a possible early compromise already when the European Parliament adopt its formal position (so called “first reading agreement”) or later when the Council in turn adopt its own position and the EP do not submit new amendments (“early second reading agreements”). NOTA BENE : THIS POST IS ALSO PUBLISHED AS AN INDEPENDENT PAGE ON THIS BLOG


The idea of establishing an European System of Border Guards (ESBG) has to be seen in the context of the long-term quest/search for an appropriate governance structure to ensure the management of EU external borders. The process had started with the new competences granted to the EU by the Amsterdam Treaty of 1997 as re-indorsed by the Tampere Conclusions of 1999 pushed forward into the limelight of public attention by the events of 9/11 and debated during the negotiations of the draft Constitutional Treaty [1] and thereafter mirrored in the Lisbon Treaty.

Since then, Article 77 (1)(c) TFEU codified at Treaty level the objective of “..the gradual introduction of an integrated management system for external borders.“ Article 80 of the same Treaty made clear that: “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States”.

It is worth noting that until now the notion of “integrated management system for external borders” (IBM) has not yet been translated in the EU legislation even if the Council has already in its 2006 Conclusions highlighted some of its possible composing elements [2].  Yet still – despite the need unanimously recognized by the European institutions to create a “mechanism or common services to control external borders” – subsequent studies undertaken by Commission and Council were not able to conclusively resolve the question of whether there should be more of an “integrated force model” or rather a “network of national border forces”[3].

The issue came back on the Institutions agenda in 2013 when the new governance framework of Schengen  as been adopted and a closer interaction between national Border Guards and Frontex has been established in the framework of the Rapid Border Intervention Team  in specific sections of the borders and overall in the framework of EUROSUR.

Already at that time the need of more coordinated interventions and procedure in case of emergency in case of extraordinary pressure on specific sections of the Schengen external borders was debated and a first set of amendments was adopted in the Schengen Border Code by charging FRONTEX  of regularly monitor the EU external borders as well as detecting the possible external threats. In parallel with this security-led evolution the EU has also adopted, notwithstanding the reservations of some Member States (FR, Malta, …)  the first set of rules for search and rescue in international waters in the framework of joint operations coordinated by Frontex (EU Regulation 656/14) by acknowledging the importance of that agency in protecting fundamental rights (such as the right to life).


(A) The COMMISSION PROPOSAL  Continue reading “WIKI-LEX : The “new” EU Border Guard proposal”

Is the European Council responsible for the so-called “EU-Turkey Agreement” ? The issue is on the Court of Justice table…


Until now the legal nature of so called “EU-Turkey Agreement” has been debated at academic level (see the posts here and here ) and briefly presented and debated before the Civil Liberties Committee of the European Parliament following a presentation by the legal service of that institution (see the transcript here). The latter has considered that the so called EU-Turkey “deal” is not legally binding but is just a political catalog of measures  adopted (or to be adopted) on their own specific legal basis (no matter if in their recitals reference is made to the EU-Turkey deal).

Other scholars and even Institution representatives (such as the European Council President Tusk and the President of Turkey Erdogan) have presented the “deal” as a binding measure what means that it has to be “implemented” in all its parts in compliance with the bona fide principle which should govern international relations.

On its side the European Parliament has until now followed its legal service approach by considering that, no matter of what had been “negotiated” at head of state level, it remain free to adopt or not the legislative budgetary and operational measures implementing the agreement. It has then decided, as budgetary authority, to finance the first three billions transfer to Turkey but, as legislative authority  has still to decide what to do with the amendment to the Visa legislation granting the visa waiver to the Turkish nationals and on the implementation of the so called “1 per 1 “principle. The impression is that on this issue the EP prefers more barking than biting by endorsing the Machiavellian project (launched at the end of 2015 by Germany, the Dutch Presidency, the Commission Vice President Timmermans) to ask Turkey support to  overcome the opposition to the EU migration and asylum policies inside the EU of the Visegrad Countries.

Now a new event could possibly create some movement.  The European Council has been notified on 31 May and 2 June 2016 of three similar applications for annulment lodged under Article 263 TFEU with the General of the EU Court of Justice.[1]

The three applications are directed against the European Council and request the Court to annul the “EU-Turkey statement” which was issued following the meeting of 18 March 2016 of the Members of the European Council and their Turkish counterpart (See press release 114/16 of 18 March 2016).

The applications in Cases T-192/16 and T-257/16 state that they are brought on behalf of individuals who are nationals of Pakistan and who are currently staying at the “No Borders Refugee Camp”, in Lesbos, Greece. The application in Case T-193/16 states that it is brought on behalf of an individual who is a national of Afghanistan and who is currently staying at the “Onofiyta Refugee Camp”, in Athens, Greece.  All three applicants have applied for anonymity to the Court, requesting that their names should not be rendered public.

The applicants challenge the “EU-Turkey statement” of 18 March 2016.

They consider that the “EU-Turkey statement” constitutes an agreement entered into by the European Council with Turkey and  claim that it is an act that produces legal effects adversely affecting the applicants’ rights and interests. The applicants argue, inter alia, that this act  rendered them at risk of refoulement to Turkey or ‘chain refoulement‘ to Pakistan or Afghanistan and hence compelled them to make their applications for international protection in Greece, against their will.

In support of their request for annulment of the “EU-Turkey statement” the applicants raise a number of pleas, among which:

  • failure to comply with the procedures set out in Article 218 TFEU and/or 78(3) TFEU;
  • failure to apply Council Directive 2001/55/EC of 20 July 2001;[2]
  • incompatibility with EU fundamental rights, notably with Articles 1, 18 and 19 of the Charter of the Fundamental Rights,
  • invalidity on the grounds that the case law of the European Court of Human Rights[3] and the Court of Justice[4] shows that there are serious flaws in the present Greek asylum system at all levels, including absence of an effective remedy and deficient reception facilities;
  • incompatibility with the prohibition of direct and indirect refoulement;
  • invalidity on the grounds of being based on the unlawful conclusive assumption that Turkey is a safe country;
  • invalidity on the grounds of breach of the prohibition of collective expulsion.

The applicants have requested that the case be adjudicated under an expedited procedure, in accordance with Article 152 of the General Court’s rules of procedure. The European Council will therefore have to lodge its defence within one month of the service of the applications unless the General Court decides to reject the application for expedition. In that latter case the Court may extend the deadline by one month.

So let’s see if there is Judge in Berlin…


[1]           Cases T-192 and T-193 were notified on 31 May 2016 and Case T-257/16 was notified on 2 June 2016.

[2]           Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, O.J., 7.8.2001, L 212/12.

[3]           M.S.SS v Belgium and Greece (application no. 30696/09) Judgment of the ECtHR Grand Chamber, dated 21 January 2011.

[4]           Joined Cases C-411/10 and C-493/10, N. S. and Others, Judgment of the CJEU (Grand Chamber) of 21 December 2011 ECLI:EU:C:2011:865

Dublin is dead ! Long live Dublin ! The 4 May 2016 proposal of the European Commission

Original published on CDRE Site on May 20th,2016

by Dr. Constantin Hruschka,

(Lecturer at the University of Bielefeld )

The Dublin system has been declared dead on numerous occasions over the past decade. It has proven to be highly dysfunctional from the beginning, as the allocation of responsibility did not have the intended effects (i.e. the prevention of “refugees in orbit” and of “asylum shopping”).

Nevertheless, Dublin procedures and Dublin transfers are still taking place and the system is still operating. It will continue as the Commission proposal released on 4 May 2016 is a change in the continuity rather than the reform necessary for a more workable and efficient system.

In its 2007 evaluation of the Dublin system, the EU Commission already described these effects and suggested a reform of the system, which then consisted of the Regulation (EC) No. 343/2003 (“Dublin-II-Regulation”) and the Regulation (EC) No. 2725/2000 (“Eurodac-Regulation”) as well as the related Implementing Regulations (Regulation (EC) No. 1560/2003 and Regulation (EC) No. 407/2002). The suggested reform was debated between 2008 and 2013 and led to the adoption of recast Regulations for Dublin (Regulation (EU) No. 604/2013(“Dublin-III-Regulation”)) and Eurodac (Regulation (EU) No. 603/2013) in 2013 and to changes to the Dublin Implementing Regulation (Regulation (EU) 118/2014). The main aims of the recast were to enhance the efficiency of the system and to provide for higher standards of protection for asylum seekers.

The practical challenges for the system remained obvious – ranging from the cooperation difficulties between the different Member States in the responsibility allocation procedures to practical questions on the implementation of transfers and the actual access of asylum seekers to procedures for international protection. Depending on the analysts’ perspective, the scapegoats for these apparent dysfunctions were either the Member States, the national administrations, the courts, the asylum seekers or the system as such.

Under the pressure of the so-called “migratory crisis” in 2015, the Commission launched on 4 May 2016 – as a first step of a full revision of the CEAS –  a recast Dublin Regulation (“Dublin IV”), a recast Eurodac-Regulation as well as a proposal for the establishing of a European Union Agency for Asylum. The latter two proposals are less relevant for the responsibility allocation mechanism as such as they would only be used as tools to enhance the efficiency of the whole CEAS in a broader migratory context and will therefore not be analysed in this blog entry. The latter aims at explaining and analysing the new proposals from a two-fold perspective that is derived from the aims of the 2013 recast: is the new proposal firstly likely to enhance efficiency and secondly, are the human rights obligations adhered to?

The Dublin IV proposal aims at preserving the Dublin system as “the cornerstone” of the CEAS. The proposed changes are supposed to :

  1. streamline the Dublin rules “to enable an effective operation of the system, both in relation to the swifter access of applicants to the procedure for granting international protection and to the capacity of Member States’ administrations to apply the system”;
  2. contribute to the prevention “of secondary movements within the EU, including by discouraging abuses and asylum shopping“;
  3. provide “for tools enabling sufficient responses to situations of disproportionate pressure on Member States’ asylum systems” through a “corrective allocation mechanism” that ensures a “high degree of solidarity and fair sharing of responsibility” among Member States.

The superordinate aim is to provide for a solid basis for a fair and sustainable EU asylum policy.

This blog entry explains and analyses why the new proposal is not likely to enhance practical efficiency of the system and to what extent it is incompatible with fundamental rights and general principles of Community as well as international law.

Streamlining the Dublin rules is bound to fail

The proposal identifies – in line with the communication of 6 April 2016 – the lack of streamlined Dublin rules and secondary movements as the main challenge for the Dublin system. Measures to streamline the rules and to prevent secondary movements therefore form a key part of the proposal. The variety of measures proposed range from mere deletions of obsolete or practically irrelevant provisions to very substantial changes. Examples of the former is the abolition of the illegal stay criterion (Article 13 (2) Dublin-III-Regulation) and the conciliation mechanism (Article 37 Dublin-III-Regulation). The latter are for e.g. the possibility to transfer beneficiaries of international protection under the Dublin rules (Article 18 (1)(e) of the proposal), the changes with regard to the time limits and the new rules for take back procedures (Article 21 of the proposal).

From a practical implementation perspective some proposed changes are bound to fail. This is especially true for the newly proposed “pre-Dublin procedure”. Article 3(3) of the proposal sets out an obligation for the Member State where the first application was lodged to examine the questions of whether there are reasons to conduct an inadmissibility or accelerated (based on) procedures  – as foreseen by the Asylum Procedures Directive – before carrying out the procedure for the determination of responsibility. These procedures shall be conducted if the safe third country, first country of asylum or safe country of origin rules may be applied, or if the applicant may, for serious reasons, be considered a danger to national security or public order. The Member State carrying out such a procedure also stays responsible for the asylum procedure (Article 3 (4) and (5) of the proposal). This consequence will hamper the practical relevance of the inadmissibility and accelerated procedures as Member States – as e.g. highlighted by the 2007 evaluation  – are generally reluctant to assume responsibility outside the order of the criteria.

Most of the proposed changes enter into the category of making it clear to the applicant that the right to apply for international protection does not encompass any choice of the applicant which Member State shall be responsible for examining the application for international protection” (emphasis added). As a first step, the proposal foresees an obligation for the Member State conducting a Dublin procedure to inform the applicant about this setup of the system (Article 6 (1)(a) of the proposal).

Further administrative measures to this end are:

  • The abolition of the time limit of 12 months for the applicability of the illegal entry criterion (Article 15 of the proposal),
  • The introduction of “take back notifications” instead of “take back requests” (Article 26 of the proposal),
  • The abolition of the conditions for a “cessation of responsibility” that are currently contained in Article 19 Dublin-III-Regulation, and
  • The abolition of the binding nature of the time limits in take back procedures and of the time limit for the transfer (Articles 26 and 30 of the proposal).

Article 19 currently comprises a cessation responsibility if the asylum seeking person has either been provided with a residence document outside the asylum scheme or has departed for a certain period or after a return decision or removal order from the territory of the Member States. The changes to the time limits also comprise a significant shortening of the time limits for the procedural steps (Articles 21pp of the proposal).

These proposals essentially lead to a return to the situation of the Dublin Convention with shorter but non-binding time limits. One of the main reasons for the introduction of binding time limits was that the evaluation of the Dublin Convention brought to light that non-binding time limits in practice create “asylum-seekers in orbit” for longer periods of time. Moreover, the time limit for the lodging of take back requests was explicitly introduced by the Dublin-III-Regulation to further counter such situations. It is difficult to imagine that this problem of “asylum-seekers in orbit” will not be further enhanced with the return to a system of short and often non-binding time limits.

As a last but very important point the Commission intends to limit the scope for the application of the discretionary clauses for Member States (Article 19 of the proposal). It is suggested that the discretionary clauses should only be applicable as long as the responsibility determination procedure has not ended and that they should be limited to family reasons. The use of the clause for other humanitarian or cultural grounds shall no longer be possible. This limitation is problematic from different perspectives. From a humanitarian perspective it is foreseeable that the limitation of the scope for the discretionary clauses will also contribute to an increase in the number of “asylum-seekers in orbit.”

Preventing secondary movements by violating human rights

To some extent, the Commission proposal aims at countering the phenomenon of “asylum-seekers in orbit” by introducing an article on obligations of asylum seekers (Article 5 of the proposal) comprising:

  • The obligation of lodging an asylum application in the Member State of first entry,
  • The obligation to speedily provide all elements and information relevant for the Dublin procedure and
  • The obligation to comply with the transfer decision and to be present and available to the authorities in this regard.

Non-compliance shall be sanctioned: According to Article 6 of the proposal, the procedure shall be conducted far more quickly in these situations and the applicant shall “not be entitled to the reception conditions set out in Articles 14 to 19 of Directive 2013/33/EU, with the exception of emergency health care” during the Dublin procedure. Such limited access to social rights is incompatible with human rights standards as set out by the 1951 Convention, the ECHR and the CRC as well as by the Charter of Fundamental Rights. Moreover, the obligatory nature of this provision will also create difficult constitutional and human rights related problems in most Member States as a minimal access to social rights is often guaranteed by the Constitutions of Member States.

Also some of the further restrictions foreseen raise severe human rights issues. Inter alia, it is proposed to limit the scope of the right to appeal. It shall only be guaranteed for situations of systemic deficiencies and for family reasons (Article 28 of the proposal). This proposal was introduced despite the pending CJEU cases on some of the aspects of legality of these limitations to appeals (see e.g.Ghezelbash, Karim and Shiri). From a merely European Law perspective, it is hardly imaginable that the proposed limitation does not violate the standards set out by the jurisprudence since Van Gend and Loos. Additionally, the proposed more extensive use of Eurodac and the related enhanced obligations to collect and enter data in Eurodac (Articles 22 and 23 of the proposal) raise significant doubts regarding its compatibility with established data protection principles.

The Commission proposes the application of rules of the Dublin procedure to beneficiaries of international protection (Article 18 (1)(e) of the proposal). This proposal raises further human rights issues as the system is not designed to be applied to persons that actually have a right to reside in one of the Member States. From a Schengen perspective, the compatibility of this proposal with Article 6(2) of the Returns Directive is at least doubtful. Furthermore, such restrictions for beneficiaries of international protection are at least paradoxical in an area of free movement.

The proposal foresees that in the case of the absence of family members or relatives, the country where the first asylum application was lodged shall be responsible for the examination of an asylum application of an unaccompanied minor (Article 8 (4) and Article 10 of the proposal). This is very problematic from a human rights perspective and the proposed provision also contradicts to some extent the CJEU judgement in M.A. and others. From a practical perspective, it is foreseeable that the necessary “assessment of his/her best interests”prior to a transfer (Article 8(4) of the proposal) will lead to non-uniform application of this rule as Member States have significantly diverging approaches to the protection of the rights of the child in asylum procedures. The situation will most likely be as divergent as it was before the CJEU ruling.

Two changes foreseen are likely to extend the human rights compatibility of the system. The first proposal concerns the extension of the definition of family members to siblings and the abolition of the necessity that the family already existed in the country of origin (Article 2g of the proposal). These changes will not solve all the related practical problems in this area but are important steps towards an enhanced protection of the family unity. The second foresees a maximum duration of Dublin detention of a total of six weeks (Article 29 of the proposal) whereas the current system allows for a maximum of twelve weeks of Dublin detention.

Allocation of responsibility in situations of disproportionate pressure

The Commission proposes the abolition of the early warning, preparedness and crisis management mechanism (Art. 33 Dublin-III-Regulation). And suggests the introduction – as a tool for situations of disproportionate pressure on Member States – of a corrective allocation mechanism. The proposed mechanism (Article 34 of the proposal) seems to be administratively unworkable and politically illusory looking at the on-going discussions since the first attempt to establish such a mechanism as part of the Dublin-III-Proposal (Article 31 of the Dublin-III-Proposal of 2008). The current difficulties in setting up the relocation mechanism that was introduced in 2015 also raise the question of whether it would be actually possible to organise the necessary transfers. Nevertheless, looking at alternative ways to allocate responsibility is inevitable for the setup of a real CEAS that actually does what an asylum system should do: providing protection for the person in need of protection.


The proposal has been essentially influenced by an evaluation of the application of the Dublin-III-Regulation and of the administrative workability of the Dublin system conducted by the Commission. At first sight, this evaluation seems to have been conducted in a hasty, non-thorough way as the recast proposal gives the impression of a certain disorientation regarding political context and historical awareness: many of the “newly” proposed measures and solutions have already been (unsuccessfully) “tested” in earlier “versions” of the Dublin system or have already been (unsuccessfully) already proposed in a more favourable political climate.

Moreover, the proposed measures as a whole seem to be guided by the scientifically not validated idea that the main trigger for onward movements are diverging practices in Member States asylum systems. The CEAS is portrayed in these measures as a self-referential system that triggers push and pull factors. The scientifically validated main reasons for onward movements such as family links or cultural reasons or the economical situation of a specific country are widely ignored by the proposed measures. The proposal focuses on measures that significantly limit the possibility to access the asylum system of any other state than the Member States of arrival. The Commission proposal raises serious questions on the role of the Commission as the guardian of the Treaties in the process of the setting up of the CEAS. The proposal as a whole is fragmentary and is already containing a variety of measures which would further contribute to a dysfunction of the Dublin system. Additionally, the individual rights of asylum seekers would be significantly diminished if the recast proposal would be adopted in its current form.

Finally, neither the main practical questions (concerning transfers) nor the main legal questions are successfully addressed by the proposed changes.

In my view, the main legal problem of the responsibility allocation mechanism lies in the fact that it was created before common standards were defined and that there is no central authority that actually has unifying tendency for the practice (i.e. there is neither a first instance authority nor an appeal body on the European level). From a more systemic perspective, the huge divergences of the national asylum systems contributed to the difficulties in operating the system. The Dublin system is currently a system of national asylum systems and not a Common European Asylum System (CEAS). For various reasons that are ultimately dependent on national traditions and the related set-up of the administrative systems, these divergences will remain even if the established common standards for the CEAS that are based on the 1951 Refugee Convention and ECHR have led to a certain degree of harmonisation between the Member States.

In this context, the creation of a European Union Agency for Asylum would be a very important step for the system, although its creation seems currently completely unrealistic and illusory. Meanwhile, the difficult legal and practical questions of the Dublin system will remain a core feature of the debate on the CEAS in general. In this sense Dublin is very much alive.


On the frontline: the hotspot approach to managing migration


by Darren  NEVILLE, Sarah  SY, Amalia  RIGON


The migration and refugee crisis has brought multiple challenges for the European Union’s migration, asylum and border management policy architecture. The sheer number of new arrivals, together with their concentration on certain migration routes (first into Italy and subsequently into Greece and then onwards along the Western Balkan route), have placed the EU and particularly frontline Member States under considerable strain. The crisis has thus exposed shortcomings both in EU policy and its implementation. And – as some Member States resort to national responses, such as internal border checks, and countries along the Western Balkan route effectively close their borders – more and more migrants and  refugees have found  themselves trapped in Greece,  sparking  a humanitarian  crisis.

The unprecedented migration flows have generated substantial policy and legislative activity centred around the European Commission’s May 2015 European Agenda on Migration. The Agenda sets out five priority actions to manage migratory flows, since backed up by a number of initiatives – for example to combat migrant smuggling and enhance border management – with further initiatives to overhaul the asylum system, to improve reception conditions and to bolster resettlement in the pipeline. The Agenda emphasises specifically the need to return those with no right to remain and to relocate some of those in clear need of international protection out of frontline Member States as part of a responsibility-sharing mechanism. Both on return and relocation, initiatives have followed. These include two decisions, adopted by the Council in September 2015, to provide for the relocation of 160,000 people in clear need of protection from Greece and Italy to other EU Member States. In particular the need to cooperate with third countries to bring order to migratory flows, stressed repeatedly by the European Council, led to the EU-Turkey statement of 18 March 2016. The statement, which aimed to drive down the number of irregular and dangerous migrant crossings from Turkey to the Greek islands, established a mechanism governing the return of irregular migrants from Greece to Turkey and  the  resettlement of  Syrians from Turkey  to  the  EU.

As part of the immediate response to assist frontline Member States facing disproportionate migratory pressure, the Commission outlined a new hotspot approach to migration in its European Agenda on Migration. Located at key arrival points in frontline Member States, hotspots are designed to inject greater order into migration management by ensuring that all those arriving are identified, registered and properly processed. Hotspots thus link inextricably both to the relocation programme and to the aim of ensuring effective returns. Hotspots are based on the operational deployment of multiple EU agencies, notably Frontex, EASO and Europol, and are coordinated by a Regional Task Force in each Member State where hotspots are in operation – currently Italy and Greece. Rollout of the hotspots proved initially sluggish, due in part to the need to build them from scratch and to remedy infrastructure shortcomings, but has gathered pace significantly since early 2016. Four of the five planned hotspots in Greece are now operational as are four of the six planned in Italy. There seems to be consensus that hotspots have delivered greater order and substantially improved  registration  and  fingerprinting rates.

And yet criticism of the hotspots has been vehement in certain quarters. Critics point, for example, to a lack of clarity about what happens to those who do not qualify for relocation, but nonetheless wish to apply for international protection. The new mechanism agreed with Turkey has also prompted NGOs formerly providing essential services in the hotspot on Lesvos to pull out in protest at the conversion of the hotspot into a closed facility and at what they regard as a move to collective expulsions. Their withdrawal has reportedly led to a worsening of conditions in the hotspot centres. The Commission itself also acknowledges that the EU-Turkey Statement has shifted the focus in the Greek hotspots from identification  and  registration  to return.

Nevertheless, for all the difficulties to date, the hotspot approach remains fundamentally valid. By providing on-the-ground operational support from EU agencies, it can help to ensure that migration is effectively managed on the frontline. In order to meet this challenge, however, a number of policy recommendations might merit consideration by the European  Parliament:

On hotspots:

The European Parliament could consider the need to regulate hotspots through a stand-alone legal instrument, taking into account its interaction with other relevant instruments, such as the EU Asylum Procedures and Reception Conditions Directives. The loose policy framework surrounding hotspots may provide operational flexibility, but the absence of a stand-alone legal instrument may in turn lead to a lack of legal certainty. Regulating agencies’ roles in hotspots through separate legal instruments – such as a new European Border and Coast Guard Regulation – could undermine  the  multi-agency  foundation.

Members could call for a clearer role for individual agencies and clearer framework for their cooperation within hotspots. While both Frontex and EASO are heavily engaged in the hotspots, there is considerable disparity in terms of their respective staff deployment and budgetary resources. Europol’s on-the-ground deployment appears to be patchy, while the role of Eurojust seems even less well developed. The Fundamental Rights Agency is invited to provide input through existing cooperation agreements, though there  is no mainstreaming of its  role.

Mainstreaming fundamental rights in the hotspots. A clearly designated role for the FRA in the hotspot approach could help to address the obvious fundamental rights challenges in the pressurised environment of the hotspots. This is especially important given the need to protect the fundamental rights of vulnerable groups, such as women and children. Equally, while executive powers may rest with Member States, the enhanced operational support provided by EU agencies in hotspots calls for much clearer rules on the extent  to  which they  can be considered  liable and  accountable for their actions.

Members should insist that proper procedures for all protection seekers are guaranteed in hotspots as enshrined in the EU Asylum Procedures Directive. Swift processing of migrants and refugees within hotspots must not come at the expense of their rights and proper safeguards. Migrants must always be given the opportunity to apply for international protection and applications must be assessed on an individual, objective and impartial basis. Returns can only be carried out subject to a prior non-refoulement and proportionality     check.     Hotspots     cannot     provide     a    binary    choice    between     relocation     and return, but must have clear procedures for those wishing to apply for international protection, but  not qualifying  for  relocation.

Members should insist that efforts to register and identify all migrants arriving in the hotspots continue in order to enhance both relocation and return procedures and to improve overall security. In both Italy and Greece, registration and fingerprinting rates have improved considerably, reaching 100% in both countries. The Commission has also stated that the hotspot workflow and relocation process include systematic security checks. It is important to redouble efforts and ensure that everyone arriving is registered and  checked  against relevant  Interpol   and EU databases.

On  the Dublin  Regulation:

The European Parliament should, in its role as co-legislator, insist on a fundamental   change   to   the   Dublin   Regulation   and   a   binding   distribution   system.

The natural extension of the relocation policy and the deployment of EU agencies in hotspots would seem to be a fundamental overhaul of the Dublin Regulation with a binding system for distributing asylum seekers among the Member States, using a fair, compulsory allocation  key.

Any resumption of transfers to Greece under the existing Dublin Regulation should take into account that Greece still receives a large number of protection seekers on a daily basis. Regardless of the Commission’s proposed Dublin reform, plans to reinstitute Dublin transfers to Greece under the existing Dublin Regulation in June 2016 seem to contradict the idea of an emergency relocation mechanism to transfer those in need of international protection out of Greece. Resumption of Dublin transfers before pressure has been alleviated and adequate reception conditions are guaranteed appears premature.

On a possible new mandate  for EASO:

EASO should be given a stronger mandate and enhanced resources. In parallel with the creation of a European Border and Coast Guard with a reinforced mandate, the Parliament could support the Commission’s proposal to enhance EASO’s mandate in line with its operational role in hotspots and increase parliamentary oversight. If the agency is to play a new policy implementation role and a greater operational role, it will require sufficient  financial  resources  and  adequate legal  means.

On the EU-Turkey statement:

Members should call on the Commission to monitor carefully the implementation of the EU-Turkey statement. The Commission must be vigilant in monitoring implementation of the mechanism and respect for human rights, not least in light of the criticism from NGOs and other international organisations. Reports of illegal detention or deportation must be fully investigated. The Parliament should fulfil its role as co-legislator when  it  comes to  the visa liberalisation  process  and  budgetary  aspects.



Relocation and resettlement programmes
Irregular migration and return
Improving  border management
Creating adequate reception capacity and conditions


3.1.      Reception and asylum in Greece
Reception  capacity  in  Greece
Asylum applications in Greece
3.2.      The situation at the  Greek borders and the Schengen area
The situation  at  the Greece-FYROM border:  the  makeshift  camp  of Idomeni
Greece  and  the  Schengen area
Budgetary support to  Greece
The EU-Turkey statement – the consequences of the new mechanism
The  revised  Greek  law on  asylum
The  Greece-Turkey  Readmission Agreement
Initial  impact  on  migration  flows


4.1.      Hotspots:  the policy framework
Coordination  of the  hotspot  approach
Tasks to  be  performed  in  the hotspots
Hotspots:  the legal framework
Hotspots:  outstanding policy  and legal questions
Ensuring  proper  procedures  for all   asylum  seekers
The absence of a  stand-alone legal  instrument
The  enduring  question of fundamental  rights liability
Mainstreaming  fundamental  rights in  the hotspots
The policy  focus  of  hotspots


5.1.      Hotspots in Greece
Agency presence  in  Greek  hotspots
The legal  and  regulatory framework
The  EU-Turkey  statement:  a  shift in  focus  for  hotspots
Hotspots  in  Greece  –  a  brief assessment
5.2.      Hotspots in Italy
Agency presence  in  Italian  hotspots
The legal  and  regulatory framework
Hotspots  in  Italy – a  brief  assessment