Establishing the European Border and Coast Guard: all-new or Frontex reloaded?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (NB emphasis are added)

by Herbert Rosenfeldt, (Research Assistant and PhD candidate, University of Passau)

Introduction

Attending a birthday party at a remote checkpoint at the Bulgarian external border with Turkey does not sound like fun. Unless you are the adventurous type, you would probably hesitate to join in if it was not for someone special. Indeed, last Thursday high ranking EU and Member States’ officials visited Bulgaria’s Kapitan Andreevo Border Checkpoint to inaugurate the new European Border and Coast Guard Agency a.k.a. Frontex.

This is so far the most visible sign of the coming into force of the European Border and Coast Guard Regulation on the same day. Not lacking pathos or high expectations (Donald Tusk: “To save Schengen, we must regain control of our external borders. A new European Border and Coast Guard Agency is being created”), the new EBCG seeks to reinforce external border control against the background of last year’s migratory pressure put on the southern and south-eastern EU Member States with external Schengen borders. According to EU officials’ analyses, national border guards had been unable or unwilling to “protect” the Schengen area effectively by stopping the influx of irregular migrants. Frontex, on the other hand, was held to have been too ill-equipped in terms of powers, personnel and equipment to render sufficient support or remedy the situation. There is a simple, perhaps simplistic, rationale behind the new EBCG – one that gathered broad consensus among Member States and EU institutions resulting in a fast track legislative procedure of less than a year. The stronger EU external border control, the less permeable borders are for migrants; the smaller the number of migrants arriving, the smaller the problems within the Schengen area. Those problems comprise allocating asylum seekers and processing their claims, providing food and shelter, or safeguarding internal security and freedom of movement. The focus on external borders has been accurately criticised, inter alia, here and here.

Is the new EBCG truly a “milestone in the history of European border management”, as suggested by birthday guests but contested by others? Is the new agency something special at all? Hence is it worth joining the congratulants (if belatedly)? What birthday wishes should be made? Surely only time and further in-depth analysis can tell. Steve’s earlier post here gave the broader picture of last year’s legislative proposals on border control and migration. For now, and after two preliminary thoughts, I would like firstly to make some observations on the changing concept of EU external border management. Secondly, I highlight some institutional changes. Thirdly and fourthly, I will focus on two much debated novelties in external border control: emergency interventions and the complaints mechanism in the context of Fundamental Rights accountability.

Towards Securitisation

The drafters of the new regulation were discernibly concerned by the loss of control at Europe’s southern and south-eastern borders. Adapting to the ongoing political discourse, the wording of the Regulation (Article 1, see also Articles 4 and 15) gives top priority to regaining and keeping control of the migration situation and to efficient border management. Migration challenges and potential future threats are mentioned in succession, followed by serious cross-border crimes. The aim to be achieved is a high level of internal security within the Union while safeguarding the free movement of persons within it. In a subtle way, this almost equates migratory pressure through irregular migration with potential threats to internal security and cross-border crime. In further construing Article 1 of the Regulation, it appears that affording international protection and protecting human rights are clearly no objectives of European border management. Rather, they are perceived as restrictions to securing EU borders.

Another feature of this security-orientated approach is new migration management support teams to be deployed in hotspot areas (Article 18). Support in processing asylum claims and returning third country nationals does not help to protect the Schengen area from migrants at first sight. However, if it is done rapidly in hotspot areas, migrants are effectively not entering the Schengen area, hence apparently more security. Along the same line of reasoning, increased capacities to support return operations (Article 18, 28 et seq.) reflect political demand for enforcing third country nationals’ returns.

Legal instruments rearranged

The law of EU external border control is no role model for legal clarity and certainty. Legal acts such as the Frontex Regulation have frequently been amended, and they are intertwined with various other EU legal acts. The new Regulation at least partly smoothes this scattered landscape by merging the Frontex Regulation and the Regulation on Rapid Border Intervention Teams into one. Furthermore, the Schengen Borders Code has been amended (see below). Although based on the same EU competence (Article 77 (2) (d) TFEU), applied at the external Schengen borders and closely related to the work of Frontex and the national external border guards, Regulations on EUROSUR and surveillance of the external sea borders remained untouched. Hence the legislator missed the opportunity to create a single comprehensible piece of legislation apart from the SBC, the latter covering other subject matters such as entry conditions of third country nationals and internal border controls anyway.

New concept of external border controls

Before, States with external Schengen borders were exclusively tasked with policing those borders. Under the Frontex Regulation, border control fell into the sole competence of the Member States. Frontex’s main task then was to render border control more effective by coordinating Member States’ joint activities and providing surveillance data, technical support and expertise. The common conceptual framework informing border controls, called “integrated management system for external borders” (now Article 77 (1) (c) TFEU), only featured in strategy papers and policy recommendations of the Commission and the Council such as the non-binding Updated Schengen Catalogue 2009.

The new EBCG consists of the EBCG Agency and the national border and coast guards. Although Member States retain primary responsibility for border management, there is a clear shift towards responsibility shared with the Agency (Article 5 of the Regulation). On scrutiny, the new system arranges the Agency and the Member States in a hierarchical order. It is the Agency’s task to establish a technical and operational strategy for integrated border management. All national strategies will have to comply with it. Although co-operation outside the Agency’s remit remains possible, this is limited to action compatible with the Agency’s activities. Therefore, there is not just well-known supremacy of EU law at work in this area of shared competences, but supremacy of the Agency’s strategies, broadly phrased tasks and objectives. On paper (see the eighth and eleventh recitals), the political development of integrated border management is left to the EU organs, whereas technical and operational aspects will be clarified by the Agency. The dividing line is of course far from clear. As a result, the Agency will almost inevitably assume a more proactive role.

In my view, shared responsibility serves as a chiffre to justify taking away Member States’ discretionary powers in border control. In practice, the Agency gains greater impact and tools of supervision and coercion, as will be seen below. Still, the new Regulation has to be given credit for legally defining components of European integrated border management for the first time ever.

Institutional changes

In short, Frontex becomes … erm … Frontex! Despite last week’s “all-new” rhetoric, little will change in the constitutional setting of the Agency. As a decentralised (i.e. regulatory) agency it remains an independent EU body with legal personality. Its headquarters will remain in Warsaw. The Agency’s official name, which nobody used before, changes to a shorter name, which probably nobody will use going forwards – and that is alright because it reflects that the Agency is not founded anew but continues all its activities, albeit with expanded tasks and more resources.

To this end, the Agency’s staff grows from 309 in 2015 to 1,000 in 2020. The number of Member States’ border guards deployed in EBCG teams remain subject to annual bilateral negotiations. At the same time, a rapid reaction pool of 1,500 European border guards as a standing corps operational within 5 days has been inscribed in the Regulation. The Agency continues to maintain a technical equipment pool composed of equipment owned by either the Agency itself or by the Member States. With an increase in budget to more than twice the amount of 2015 (€143.3 to €322 million in 2020), the Agency might actually start acquiring equipment on its own in the future.

Of the Agency’s tasks (see the long list in Article 8 (1) of the Regulation), most have been assigned to Frontex before. Characteristic of the new supervisory role are vulnerability assessments carried out by the Agency to evaluate the capability and readiness of Member States’ border guard to act in emergencies. The assessment might lead to binding recommendations by the Executive Director. To disregard them can eventually result in a situation requiring urgent action as described further below. Moreover, Frontex shall deploy liaison officers in the Member States monitoring and reporting on national external border management. It is true that command and control in EBCG operations remains with the host Member State. However, from now on, the host Member State has not only to consider the Frontex coordinating officer’s views, but also to follow them as far as possible.

Another noteworthy development concerns the Agency’s support rendered to Member States coping with migratory pressure at so-called hotspots. The existing provisions on hotspots in EU Decisions on relocation of asylum-seekers have been codified in Article 18 of the Regulation, which now assigns a supportive role to Frontex in migration management. This includes screening, registering and providing information to third country nationals on their right to apply for international protection. It further includes facilitating their return right from the hotspot area.

One might argue that the European Asylum Support Office is better placed to do all that. However, in my opinion the crucial question is to what extent any EU agency involved influences or determines the Member States’ decisions on entry, to afford international protection or to return migrants. Such executive powers have not been granted to EU institutions and therefore – at least by law – they remain firmly within the Member States’ jurisdiction. The provisions provide for tailor-made support teams coordinated by all relevant Union agencies under the auspices of the Commission. Thus, the new Regulation acknowledges the role of agencies and the significance of hotspots without clarifying much. It remains to be seen how the agencies will delineate their respective contributions. If you have always been looking for a legal definition of hotspot area, at least you will find one in the new Regulation (Article 2 (10)).

Situations requiring urgent action – right to intervene?

How to deal with emergency situations at the external borders of Member States unwilling to act – that was the only matter of serious contention during the legislative process. In normal operation and as before, a Member State at first formally requests the Agency’s support and the launch of EBCG operations (Articles 14 (1), 15 (1) and (2), 18 (1) et al). At the second stage, the Member State and the Executive Director agree on the operational plan (Article 16 (2)). Lastly, the host Member State itself retains command for the whole operation (Article 21 (1)). The Commission proposal for the Regulation challenged those safeguards for the Member States’ sovereign right to border protection. The Commission envisaged itself initiating emergency interventions conducted by the Agency and supported by the Member State concerned. Boldly, this was labelled the Agency’s “right to intervene”. Understandably, it stirred criticism among Member States.

The subsequent trilogue put things in order again: Now it is an implementing act of the Council (proposed by the Commission) which substitutes the Member State’s request at the first stage if (a) the State did not follow the recommendations resulting from vulnerability assessments or (b) it faces specific and disproportionate challenges at his external borders without requesting or supporting joint EBCG operations (Article 19 (1)). The implementing act of the Council authorises the Agency to take various measures. It is binding upon the Member State. In turn, it becomes evident that the Member State’s formal request in accordance with the normal procedure might no longer be as voluntary as the wording suggests. Because if joint European action is deemed necessary, there is always the possibility that an emergency intervention will eventually be initiated.

Yet, at the second stage, the Member State still has to agree on the operational plan submitted by the Agency (Article 19 (5)). This might be interpreted as linking emergency interventions to the Member State’s consent after all. However, in the light of the purpose of emergency interventions, I submit that the duty to fully comply with the Council decision and to this end cooperate with the Agency entails the duty to consent to the operational plan. Otherwise, it would always be possible for reluctant Member States to impede the whole procedure depriving it of much of its force.

For the implementation of the measures prescribed by the Council, the Member State concerned still acts as host state. As a consequence, that State retains command and control of the operations and can be held liable as in normal operations. It can be questioned whether an unwilling State should be forced to lead a joint operation in times of emergency. At the same time, however, it is most likely that different entities will be engaged in the process. The decision not to conduct operations or to request assistance is often taken at a high political level, whereas operational command is exercised within the national border guard authorities.

Lastly, Article 19 (10) most remarkably links the Member State’s non-compliance with the Council decision and failure to cooperate with the Agency to prospective national measures taken within the Schengen area. According to newly amended Article 29 of the Schengen Borders Code, the Council upon proposal by the Commission may recommend to Member States the reintroduction of controls at their internal borders if the Member State’s behaviour (a) puts the functioning of the area without internal borders at risk, and (b) leads to a serious threat to public policy or internal security. This mechanism can be triggered only 30 days after the Council takes its (urgent?!) decision. As a result, Member States that do not – for whatever reason – cooperate at their external borders in emergencies can de facto be temporarily excluded from the area of free movement. The much-stressed concept of solidarity (Article 80 TFEU) hence turns into its evil twin: showing solidarity means complying with the EBCG activities à la EU. It becomes the prerogative of the EU institutions to determine who is in solidarity, and the lack thereof entails serious consequences.

In sum, the new Regulation establishes a legal obligation to cooperate in situations requiring urgent action of the Member State concerned. If the State does not comply, there is no way to enforce this duty or to deploy EBCG teams on his territory against his will. The only sanction seems to urge other Member States to close their internal borders instead.

Human Rights complaints mechanism and accountability

When Frontex was established in 2004, the Fundamental Rights (FR) implications of its work had been completely overlooked. The founding Regulation did not contain any specific references to FR. Over the following years through a piecemeal approach, largely affirmative and declaratory FR obligations found their way into the Regulation. More importantly, Frontex drew up an FR strategy (followed by an action plan) in 2011. At the same time, a consultative forum and an FR officer were established to give advice on FR matters and strengthen FR compliance. With the new Regulation, there are minor improvements on the human rights record. Article 1 now mentions FR, they form part of compulsory reporting and evaluation schemes as set out in the operational plan, and there is a single comprehensive provision spelling out FR obligations (Article 34).

The Regulation finally introduces a FR complaints mechanism (Article 72, discussed here) as demanded by European Parliament, EU Ombudsman and Council of Europe since 2013. Any person directly affected by actions of staff during EBCG operations can file a complaint about FR violations with the FR officer. The FR officer is responsible for setting up the complaints mechanism, administering complaints and deciding on their admissibility. He or she then directs them to either the Executive Director or the competent national authority for them to decide on the merits and an appropriate follow-up. The FR officer then again monitors this decision as well as the follow-up.

In my view, the effectiveness of the mechanism depends on two preconditions. Firstly, the FR officer’s resources should increase significantly to stem the Herculean tasks ahead of him. Secondly, his institutional independency within the Agency has to be reinforced, bearing in mind that he is a member of staff and dependent on good working relationships with other members of staff. Several open questions remain. For example, the provision leaves open how the FR officer will enforce the appropriate follow-up by the Agency or the Member States. It does not make clear that the complaints mechanism does not affect other remedies, nor does it foresee an appeals procedure with an independent body. The FR officer and ultimately the Executive Director or the Member States authorities will have to answer difficult legal questions on who is “directly affected” by an action and who is responsible for it (see below). For the development of the law, it would have been better if a court or tribunal had had subsequent jurisdiction. So far, actions for annulment or damages (Articles 263, 268 TFEU) have not generated any EU case law regarding Frontex, and except for its judgment in Hirsi Jamaa, the ECtHR was not able to fill the gap neither.

“The extended tasks and competence of the Agency”, the 14th recital of the Regulation reads, “should be balanced with strengthened fundamental rights safeguards and increased accountability”. But does the new Agency live up to the claim? Apart from the complaints mechanism, the FR framework largely stays the same, and so does the general liability framework: The home Member State takes disciplinary action whereas the domestic laws of the host Member State determine criminal liability. It is also the host Member State incurring civil liability for the EBCG teams. The Agency itself incurs non-contractual liability according to the general principles of EU law (Article 340 (2) TFEU). There are no provisions determining which acts or effects of external border control are attributed to the Agency or to the Member States involved (a problem of multi-actor scenarios, where the 2011 ILC Articles on the Responsibility of International Organizations might be of help). Following recent revelations on the frequent use of firearms in joint operations, MEPs wrote to Executive Director Fabrice Leggeri asking for more information and general guidance on responsibilities in certain operational scenarios. The ignorance displayed by Frontex’s designated watchdogs (see Article 7 of the Regulation) is further evidence for the need of more transparency and legal clarity in this regard.

Outlook

On the 6th of October 2016 the landscape of EU external border control did not change dramatically, but it did change. To repeat: No new agency has been founded, no EBCG under EU command and control was established, no right to intervene at Member States’ external borders against their will has been introduced. In fact and most notably, the Member States’ external border guard is placed under increased scrutiny of the EBCG Agency. Failure to comply with integrated border management standards could eventually lead to reintroducing internal border controls to the detriment of the disobedient Member State. At the same time, the Agency’s enhanced tasks and powers will go hand in hand with more responsibility and accountability, but the latter has yet to be improved. Although the complaints mechanism is a step in the right direction, its design could have been more effective. This holds true especially for the follow-up mechanism. In practice, much will depend on the Fundamental Rights officer’s assertiveness on the one hand, and the Executive Director’s responsiveness on the other hand.

After all, the distinguished guests to the celebrations at Kapitan Andreevo Border Checkpoint last week did not witness birth or rebirth, but rather Frontex’s coming of age both in terms of leverage and responsibilities. Frontex, I wish you well indeed.

Scotland and Brexit: Brave Heart or Timorous Beastie?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (13/10/16)

by Steve Peers

At the Scottish National Party (SNP) party conference yesterday, Scotland’s First Minister (Nicola Sturgeon) announced that the Scottish Government would issue a draft of a second independence referendum bill next week. She also announced that the Scottish government would soon table an alternative plan “to protect Scotland’s interests in [the EU] and keep us in the single market – even if the rest of the UK decides to leave”. This would entail “substantial additional powers for the Scottish Parliament”, namely all the Scottish powers that “currently lie with the EU – and significant new powers”, namely the power to negotiate international treaties and “greater powers over immigration”.

Implicitly the Scottish government is offering the UK government a choice: negotiate to ensure that Scotland stays in the single market as a distinct part of the UK, or face another independence referendum. I’ll examine the legal issues arising from these two options in turn, and conclude with some broader observations about the Brexit process compared to the prospect of Scottish independence.

Scotland in the UK – and the single market

Is EU single market participation possible if a) Scotland stays in the UK, and b) the UK as a whole is not in the single market anymore? Some people have called this prospect a ‘reverse Greenland’, referring to the deal whereby Greenland left the EU but Denmark stayed in. Given the huge differences between Greenland and Scotland, I suggest we call this idea by a different name: say the ‘Scottish Economic Area’. I have written about this prospect separately in iScot magazine, but I will summarise my points again here.

Only independent countries which are EU members can fully participate in EU membership. But in theory at least, a part of a non-EU country could participate in the internal market, even if the rest of that non-EU country did not. Of course, the EU and the UK’s Westminster government would have to consent to this in as part of their post-Brexit treaty, and it could only work if there was significant related devolution to Scotland, as the First Minister suggested.

What would it mean in practical terms? The ‘single market’ consists of the free movement of goods, services, persons and capital, which includes the freedom of establishment of companies and the self-employed. To facilitate all this, there’s extensive EU legislation setting common standards for many industries. The single market also includes common rules on competition law and state aid to industry. But a number of rules on other matters (such as trade with non-EU countries) are not necessarily part of it. Full participation in the single market goes further than a free trade agreement with the EU which the Westminster government currently seems likely to prefer, as it will abolish more non-tariff barriers to the trade of goods and services. For instance, most free trade agreements don’t give as much access to financial services markets as single market participation does. So if Scotland is in the single market and the rest of the UK is not, more financial services businesses may stay in Edinburgh, or move from London to Edinburgh rather than to the EU.

Is this feasible in practice though? The easy part would be applying EU laws in Scotland which only have domestic effect, like consumer, environmental and labour law.  When it comes to laws with a cross-border effect on trade between Scotland and the EU, such as financial services market access, it would be necessary to define exactly when a firm was based in Scotland (benefitting from single market participation in the Scottish Economic Area), and when it was based in the rest of the UK (subject to a less favourable trade agreement).

The most difficult issues relate to movement of goods and people. Would different rules on Scottish/EU relations compared to the relations between the EU and rest of the UK mean that there would need to be border controls between Scotland and the rest of the UK? On this point, the Westminster government has promised there will be no border controls between Northern Ireland and the Republic of Ireland, even though that border will become an EU/non-EU border.  Surely whatever deal is reached to this end could be adapted for use at the Scotland/England land border too.

The Scottish government would not have a direct role in EU decision-making. But it could be given the same role as Norway and Iceland have in their single market treaty with the EU (discussed further below): consultation on proposed EU laws, the power to reject them (although that’s subject to the risk of retaliation), and participation in the EFTA Court that decides on single market disputes as regards Norway and Iceland.

The suggestion above is undeniably complex, although the whole Brexit process is complex anyway. However, the idea isn’t all or nothing: it would be possible in theory for Scotland to participate fully in parts of the single market, rather than all of it like Norway and Iceland.

Independent Scotland Continue reading “Scotland and Brexit: Brave Heart or Timorous Beastie?”

Dublin ‘reloaded’ or time for ambitious pragmatism?

ORIGINAL PUBLISHED ON OMNIA WEBSITE (12/10/16)

by Marcello Di Filippo,
Associate Professor of International Law and Coordinator of the Observatory on European Migration Law, University of Pisa (Italy)

(Click here  to hear Francesco Maiani’s (Swiss Member of the Odysseus Network) intervention at the LIBE Committee of the European Parliament on this issue – 4:10 – 22:20)

While the largely failed relocation scheme of 2015 is still in force, the European Commission has put forward a proposal for revising the Dublin III Regulation. Since comments have already been made in the blogosphere (see Hruschka on this blog and Gauci) and a comprehensive study on the need to reform the system has been recently released by a member of the Odysseus Network and presented to the LIBE Committee of the European Parliament (see Maiani), this entry will not provide a general description of the proposal and focus instead on some selected aspects by putting forward some proposals to make the Dublin system less dysfunctional.

A plea against taboos and ‘conservative’ options

Many EU documents repeatedly underline that the Dublin system is a “cornerstone” of the Common European Asylum System (CEAS). Indeed, taking into consideration Article 78(2) TFEU, there is a need to organise the distribution of responsibilities  since the competence for assessing claims and the  provision of protection lie with Member States.  Despite this, we should not let Dublin become a taboo, impermeable to discussions on its past and current contents. If the so-called ‘cornerstone’ is ill-conceived, the overall structure of the CEAS becomes unstable, unfair and ineffective.

Drawing from private international law terminology, we can say that the main objective of Dublin is to prevent positive and (most commonly) negative conflicts of jurisdiction, by rapidly determining a single responsible Member State (MS). Decades of legal thinking and state practice show that any set of rules (both domestic or international) allocating jurisdiction should be based on rational criteria and on a reasonable degree of connection (i.e. genuine link) between the competent State and the situation at stake. Although due consideration must be given to the fact that “asylum jurisdiction” is a peculiar field of law and that the interests at stake are specific to this area, decision makers must take into account the principles of rationality, fairness and compliance.

More than twenty years of implementation of the Dublin system (see Guild and others, Hruschka and Maiani) showed that, as currently framed, Dublin simply does not work, both in normal periods and in times of crisis. Among other things, the fact that no reasonable room is given to consider asylum seekers’ preferences or their prospects for integration creates an evident trend against spontaneous compliance and towards secondary movements.

The deficient system generates high costs of different natures, such as:

(a) waste of public money in repressive actions and in administrative as well as judicial procedures not producing durable results;

(b) diplomatic tensions between Member States;

(c) profit-making for criminal networks providing smuggling services;

(d) social exclusion and frustration for asylum-seekers (potentially leading to human rights violations or various forms of criminality);

(e) lack of integration, with increased costs for social services and public expenditure.

Against this background, a fresh and innovative approach was expected when the EU institutions finally recognised in 2015 the need for a general overhaul of the Dublin III Regulation. However, the proposal that is now on the table does not envisage an overall reframing of the system, but a rather modest introduction of several corrections (some more significant than others) to a bad architecture that is not fundamentally questioned.

The criterion of the “Country of first entry” or “the irrational rationale”

The first point of the proposal deserving severe critique regards the way in which the Commission treats the allocation criteria and, in particular, the insistence on the questionable criterion of the country of first entry. The explanatory memorandum of the proposal underlines that, according to some MS, the criterion of first entry must be preserved and that alternative connecting factors (such as personal preferences) would add confusion and give the wrong signal that asylum seekers can choose their country of final destination. In the meantime, it is acknowledged that other MSs and relevant stakeholders (for instance UNHCR, para. 6, at 7;  specialised NGOs such as ECRE and others) called for a different vision, focusing on the preferences or characteristics of asylum seekers (in  view of their speedy and satisfactory integration).

Yet, the explanatory memorandum merges the personal preferences and the characteristics of asylum seekers in the same concept, and uses the same rationale to discard both the ‘free choice’ approach and the ‘personal characteristics’ approach. To make my point clear, merely subjective preferences are different than objective personal characteristics (liable to increase prospects of integration in the host MS): while the ‘free choice’ approach may be swiftly questioned as a solution for allocating people (although it should not be summarily discarded, as recently advocated by Maiani, at 46-48), the verification of a reasonable connection with a country is a totally different issue. Even more surprisingly, the Commission seems to ignore the indications from other parts of EU secondary law. For instance, Recital No. 34 of Decision No. 2015/1601 (establishing provisional measures in the area of international protection for the benefit of Italy and Greece) clearly states that:

“The integration of applicants in clear need of international protection into the host society is the cornerstone [sic] of a properly functioning CEAS”.

Following the same logic, the provision on the safe third country concept (defined in the Asylum Procedures Directive) underlines that the latter may be applied only if due regard is given to the existence of “a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country” [Article 38(2)(a)].

This being said, let us try to follow the reasoning of the Commission. What is the rationale behind the first country of entry criterion? Commentators agree on the fact that the drafters of the Dublin Convention and of the subsequent Dublin II and III Regulations intended to establish a linkage between the allocation of responsibility in the field of asylum and the respect of MS obligations in the protection of the EU external borders (as confirmed by the same communicationof April 2016, at 7). Put in another way, if a MS  lets an asylum seeker enter its territory, then it would be logical (sic!) to establish responsibility for assessing the asylum claim and, if the outcome is positive, to define that MS as the new place of residence for the beneficiary of international protection.

However, it is well known that the principle of non-refoulement is applicable on entry regardless of the efficiency of checks at the external borders. Likewise, the combined effect of current EU visa policy, EU carrier sanctions regimes and the nature of flows to Europe unavoidably overburdens frontline States (the number and identity of which may change in time). Thus, we can question whether the above mentioned rationale is…. rational! Or whether it is in line with the principle of solidarity and fair sharing of responsibility recognised in Article 80 TFEU. Would it perhaps sound malicious to advance the idea that this criterion and especially its continued maintenance are simply the result of the (undeclared) will of some MS to put the responsibility and the related burden of international protection on other MS?

A “genuine link” approach: not a panacea, but surely deserving of further enquiry

With the aim to be constructive, this article puts forward another approach for giving more weight to objective links between an asylum seeker and a given MS, which would favour his or her speedy and efficient integration. A series of objectively verifiable elements connecting an applicant with a certain MS can be proposed in order to establish the relevant jurisdiction, according to a ‘genuine link’ approach (see also here for further elaboration on this methodological proposal and on its potential benefits both for MSs and asylum seekers):

  • Wider family links: The Commission proposes to broaden the scope of ‘family members’ so as to include siblings, which is a positive step. In additional to that, taking into account the presence of relatives in a MS deserves a more careful consideration. In many countries of origin, relatives are as important in family life as core family members, due to the cultural concept of family and related moral obligations of mutual assistance and care. Besides, in occasions where the original nuclear family may be dispersed or deceased, the only form of family life available to the asylum seeker may be represented by a cousin, an aunt, a nephew or a grandparent. It is clear that this widened concept of family might be seen as “too generous” by MS, but considering wider family links for Dublin purposes should be at least further discussed. Some categories of relatives could also be included in the alternative criteria of verified sponsors (see below);
  • Language skills: Some States whose official language is widely spoken outside of Europe (for instance, English or French) might fear to be penalised by this criterion. Nevertheless, it could pragmatically work even for indicating a MS where the population in general and civil servants in particular are usually fluent with a second language (for instance, English in some northern European countries). In any case, a saving clause would apply in case of numbers exceeding a reasonable quota (see below);
  • Previous study or work experience in a given MS, or other forms of regular stay: If compared with the lack of any relevant “contact” with a national community, a previous regular residence is usually able to create a potential for integration (unless it is ascertained that during that stay anti-social behaviour occurred);
  • Verified private sponsorship: Apart from relatives, private individuals – be they EU nationals or third country nationals (TCN) regularly residing in the EU – may have a strong and verifiable personal link to an asylum seeker. In a globalised world, with plenty of transnational activities and personal mobility, a person may act as a sponsor for a TCN, for instance due to previous professional or personal exchange developed during a stay in Europe or in third countries. A similar reasoning might apply to non-profit organisations or firms, subject to some eligibility criteria. In the different setting of legal avenues to reach the EU, the Fundamental Rights Agency recently argued that private sponsorship is one of the most promising and under-exploited means (see here, at 6). Similarly, the Commission showed an interesting openness towards such an option (see theCommunication of April 2016, at 15-16). This possibility may cause some concern about possible risk of abuse, false declarations or coverage of illicit smuggling networks, but it should at least be the object of a serious and open minded discussion.
  • Existing legal tools facilitating the recognition of professional qualifications: The network of bilateral treaties already in force between MS and third countries of origin requires proper evaluation, because this could offer pragmatic solutions where the then protected person could easily play the role of an economic actor, instead of depending on social assistance.

One may question which of these factors is more suitable and which pre-requisites should be established to put them in place, but new paradigms need to be seriously explored in order to alter the current overall unsatisfactory performance of Dublin.

In the same vein, the quantitative impact of the proposed approach might be doubted. It must be acknowledged that no precise data are available and that no serious estimate may be done as to the impact of this proposal. Nevertheless, it is very likely that a large number of secondary movements is motivated by the intention to reach a country where some connections exist, so there is an evident normative need to set this empirical phenomena into a more credible legislative framework. The alternatives are to turn a blind eye (with no solution to the current problems to be expected) or to increase the sanctions regime for asylum seekers not complying with the current rules (a scenario that is even more debatable and problematic in the perspective of fundamental rights of asylum seekers: see  the post of Hruschka and the in-depth study of Maiani). By applying this new approach, some MS that are already under strain might become the responsible MS. To avoid undesired side effects, a saving clause might be connected to the overall system (see below).

Filters and corrections: the strange idea of treating persons as objects

As mentioned, the proposal does not change the main criteria for asserting jurisdiction, but it does introduce some novelties. Two of them seem particularly relevant here: the process at the early stages of the procedure (a kind of “pre-Dublin stage”) and the corrective mechanism, conceived as an evolution of the idea of a permanent scheme of relocation in times of emergency.

This pre-Dublin stage consists of a systematic assessment of the admissibility of the asylum claim, having regard to various deflective concepts (such a safe country of origin, first country of asylum, safe or ‘super safe’ third country, and a security screening of the applicant). These enquiries must be conducted by the first country of entry: only if the claim stands admissible, the enquiry into the Dublin criteria is carried out.

It must be observed that the two main actors (the asylum seeker and the national authorities) in this procedure are placed in a relationship of conflict: little chance seems to be left to the asylum seeker to actively participate in the procedure, and public officers are unavoidably perceived as hostile by him/her. This ‘applicant-unfriendly’ environment will not stimulate spontaneous compliance and full account of personal stories, thus generating systemic deficiencies.

The corrective mechanism is interesting, although in the current formulation is rather puzzling. A centralised system of registration of asylum claims will be put in place. Additionally, a reference key (composed of each MS’ GDP and population, each given 50% weighting) will determine which share of claims are assigned to each MS. The system will monitor in real time during the year the correspondence between the total number of asylum claims lodged in the EU and the division of them among the various MS. If a certain MS (MS#1) receives more than 150% of its assigned quota, then the corrective mechanism is automatically triggered. Additional asylum seekers will then be automatically assigned to other MS which are below their capacity (MS#2). If MS#2 refuses to take charge of an asylum seeker, a high amount has to be paid (€250,000 per person). The idea to impose a sanction (although the proposal uses a different vocabulary) on non-collaborative MS is not bad in principle, but it may be doubted that such an amount is proportionate.

Apart from that, what is really questionable is that the asylum seeker plays no role in this corrective procedure, and that the proposal does not indicate a method to identify MS#2. Maybe it is the MS which in that moment has the lowest performance of its assigned share? Or another MS? And in the latter case, will this be decided by a computer applying a casuistic algorithm? The proposal is incredibly ambiguous on this crucial point, and this “blind lottery approach” must be severely criticised. Again, people are treated as the object of procedures impinging on their lives: is all this human, rational and fair?

Finally, it must be taken into account that – even under the corrective mechanism – the overburdened State (MS#1) is, in any event, obliged to process the pre-Dublin stage and to conduct a dialogue with the assigned State regarding public security issues. To put it differently, there is no immediate relief for the overburdened State. Only after the person is moved to the automatically assigned MS#2, will this country verify the applicability of the Dublin criteria and then proceed with the subsequent steps (assessment of the claim or Dublin transfer to a MS#3). Thus, there is the possibility of a second mandatory movement: once again, is this rational? And cost-effective? And humane?

Time for ambitious pragmatism: Some ideas for EU policymakers

Drawing on the Commission proposal, it seems possible to improve some elements and reframe others. The purpose of the following suggestions is to reconcile the Dublin system with the authentic cornerstones of the CEAS (seeArticle 78(1) and also Article 80 of the TFEU) and with basic principles of rationality and fairness, both for MSs and applicants. To put it clearly, the proposal of the Commission is not all bad but it needs a robust correction.

Firstly, a permanent assessment of reception capacities (to be conducted through a reference key) and a centralised collection of all asylum claims (to be conducted as soon as possible) are highly needed. This idea of the proposal is good and should help to reduce instrumental and sterile political discussions. It is simply untenable that some MS must undergo a relevant pressure as frontline countries or as second-line favorite places of secondary movements while others give scarcely relevant support, or no support at all. It may be questioned which criteria should integrate the key and with which weight, but the overall idea is defensible.

Secondly, it is untenable to include a correction to an inherently bad system: the main standard criteria must be changed (in a similar vein, see Gauci). A primary role must be given to objectively verifiable preferences: after verification of admissibility of the claim (with full guarantees for the concerned applicant), an asylum seeker should be allocated to a given MS according to (wider) family links and other genuine links (see above). There would not be a simple or unqualified free choice of the applicant (as advocated by some NGOs): the applicant would be obliged to specify why a certain country is preferred and verification would be conducted by the interested MS.

It may be questioned if this solution would produce lengthy procedures or an excessive administrative burden on the first MS of entry. Well, this country is already obliged to conduct significant administrative activity under the pre-Dublin phase: a file is created, human resources are employed, time is spent on this activity and an interview is conducted. Is it so absurd to insert at such an early stage an ‘extra’ procedure aimed at showing a friendly face to the asylum seeker? One should also take into account that this extra procedure would be greatly facilitated by the asylum seeker’s cooperation, and that a different scenario would probably lead to a form of legal challenge by the asylum seeker, or his/her absconding. Would this be cost effective and desirable from a systematic point of view?

In this scenario, the asylum seeker would be asked to actively participate and to give clear indications regarding the presence of family members and of other connecting factors. In the case of several connected MSs (a circumstance which is not so probable), the choice could be left to the applicant.

In order to reassure MS whose asylum systems have undergone or are facing severe pressure (e.g. Germany or Sweden), if the competent State is already over its quota, the asylum seeker would be assigned to another (less) connected country, or only as extrema ratio to the State with the lowest performance rate of its share. In case of refusal of this MS to receive the concerned person, a proportionate financial disincentive should be established.

With the aim to reduce possible tensions coming from asylum seekers or from MS, a certain degree of freedom of movement of the beneficiary of protection should be accepted. If after recognition of refugee status or subsidiary protection by the designated MS, the person receives an effective job offer in another MS and security checks are fulfilled, the holder of international protection should have the possibility to accept this job offer, thus leading to a better allocation of the workforce. In this case, the issue should be raised as to whether, after voluntary establishment in another MS, protection duties should continue to bind the original MS or should be transferred to the second one, or whether such duties should simply cease.

Finally, a corrective emergency-mechanism should be conceived only for sudden and massive inflows and for supporting extremely precarious national asylum systems.

Do all these proposals look too innovative and unconventional? We all know perfectly what will happen if the Dublin system as it stands is maintained, or if only the limited ‘corrections’ set out in the Commission proposal are introduced. Should we wait for the next political crisis of the EU? Why not try to think of pragmatic and innovative way which could avoid tensions between MS, limit profits for smugglers as well as space for human rights abuses, avoid unnecessary sufferance, save public money and use human resources in a better way?

Continue reading “Dublin ‘reloaded’ or time for ambitious pragmatism?”

Meijers Committee on EU latest proposals on “Dublin”, Eurodac and European Asylum Agency.

ORIGINAL DOCUMENT ACCESSIBLE HERE

CM1609: Note on the proposed reforms of the Dublin Regulaton (COM (2016) 197), the Eurodac recast proposal (COM (2016) 272 fnal), and the proposal for an EU Asylum Agency (COM(2016)271 fnal)

Comments on the Dublin recast proposal

  1. General observatons

The Meijers Commitee would like to take this opportunity to comment on the proposed reform of the Dublin Regulaton, as set forth in the 6 April 2016 EC communicaton to the EP and Council (COM (2016) 197) and the 4 May 2016 proposal for a regulaton of the EP and Council establishing the criteria and mechanisms for determining the Member State responsible for examining an applicaton for internatonal protecton lodged in one of the Member States by a third-country natonal 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 Commitee 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 Commitee would frst of all like to point out that none of the shortcomings listed by the Commission will be remedied by the first opton, since it is essentally a contnuaton of the present Dublin system, which is demonstrably a failure. Why contnue 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 Commitee 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 unsustainability 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 mentoned above concern Member States on the EU’s external borders. These Member States have for a long tme 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 observatons

Continue reading “Meijers Committee on EU latest proposals on “Dublin”, Eurodac and European Asylum Agency.”

The Reform of the Dublin III Regulation

EXECUTIVE SUMMARY OF A STUDY COMMISSIONED BY THE EUROPEAN PARLIAMENT

(Full text 72 pages accessible HERE) 

by Dr.  Francesco  Maiani,  (Associate  Professor,  University of  Lausanne)

 

“A number of Member States and representatives of the European Commission are highly resistant to the idea that asylum seekers might be better placed to know where their best chances of integration are than any officials, and that this knowledge might be helpful for everyone in both the short and long term. Yet in practice, it seems that it is asylum seekers who  move  to  seek  asylum  and  Member States that  determine  their applications.” (Elspeth  Guild  and  Sergio Carrera, 2016)

If the Common European Asylum System (CEAS) is to become “sustainable and fair”, it needs  a fundamental  reform  of its  responsibility allocation  system.

The Dublin system is ineffective and inefficient, inflicts hardship on protection seekers and damages the efficiency of the CEAS. Until now, the Relocation schemes established in September  2015  have  also failed  to produce  appreciable results.

These negative results can be traced back essentially to three structural factors: (a) the unattractiveness of EU allocation schemes to protection seekers, due in particular to their strict “no choice of destination” philosophy; (b) the fact that, in the absence of effective solidarity schemes, Member States tend to engage in defensive rather than cooperative behaviour; (c) a heavily bureaucratic approach, producing complexity and delays, compounded  by  the intergovernmental   nature  of  responsibility allocation  procedures.

Going from Dublin to “Dublin plus”, as proposed by the Commission in May 2016 (COM(2016) 270 final), is unlikely to solve any of these problems. In its normal operation, the system would remain essentially unchanged. It would thus be as unattractive as it now is for protection seekers. The response to applicants’ avoidance strategies would be essentially repressive, and judging from past experience this is unlikely to elicit widespread compliance. At the same time, the Commission’s proposals cut back significantly on applicants’ rights. They are at variance with key human rights guarantees on several points, and would downgrade protection standards in the CEAS. The proposal to restrict significantly Member States’ discretion under the Dublin system is also likely to set the Dublin  system  on  a  collision  course with  the   European  Convention  on  Human  Rights.

Dublin IV would probably aggravate current imbalances in responsibilities among Member States. In addition to retaining and expanding the “irregular entry” criterion, it would (a) concentrate extensive “gatekeeper” responsibilities on application States – in theory the border States; (b) concentrate on application States the responsibilities to examine most applications, including through shortened “take charge” deadlines; and (c) cement such responsibilities through the repeal of all clauses foreseeing the cessation of transfer of responsibilities among the Member States. The proposed “corrective” mechanism would leave the aforementioned “gatekeeper” responsibilities on application States, while probably being too cumbersome to re-allocate the other responsibilities more effectively than  on-going  relocation  schemes  do.

 

This last observation can be applied to the Dublin IV Proposal as a whole. While simplifying Dublin procedures in several respects, the proposal fails to address the main causes of delays and complexity: reliance on intergovernmental procedures and on involuntary transfers, liable to give raise to extensive litigation. Even the allocation procedure under the “corrective” mechanism – purportedly designed to relieve “overburdened” States – epitomises administrative complexity by accumulating procedural stages before the applicant is placed in  a  status  determination procedure.

If Dublin IV is to conform to human rights standards, many of the Commission’s proposals will require several amendments, detailed below. If it is to bring improvements, further amendments will  be  required.

If the EU is to have an effective responsibility allocation mechanism, a fundamental change of direction is required. Experience indicates that attempting to “allocate” persons without their consent, according to pre-determined criteria, is unworkable and comes at the expense  of ensuring effective and swift  access  to status  determination.

In order to have a workable system, it is necessary to forgo ambitions of producing predetermined allocative results – fair or unfair – and focus instead on minimising the time, effort and coercion required to place the applicant in an asylum procedure. In this perspective, the allocation system – alone or in conjunction with other CEAS instruments – should: (a) elicit the cooperation of protection seekers; (b) defuse Member States’ incentive to engage in defensive behaviour; and (c) drastically reduce bureaucratic complexity  and  coercion. Within  this general   template,  three  models are examined here.

“Free choice” is the ideal-type of the “light” allocation system. It presents so many advantages (including preventing irregular movement and smugglers’ activities in Europe) that  it  should  not be discarded  without  serious consideration.

Should “free choice” be considered infeasible, a “limited choice” model could be progressively  constructed starting  from   a stripped-down  Dublin  system  (“Dublin  minus”).

“Dublin minus” – i.e. the current system, without the criteria based on residence and entry – would entail a radical simplification while producing nearly identical distributive results to the current system. It would already constitute a distinct improvement. Just like the current system, however, it would incite applicants to avoid identification and engage in irregular movements, and States to engage in defensive behaviour. To reduce these effects, the system could be amended so as to give a range of politically approved choices to applicants, based on much-expanded “meaningful link” criteria and on the permanent offer  of  reception  places  from  “under-burdened”  States.

As the experience of the 1999 Humanitarian Evacuation Programme suggests, such a consent-based system might perform far better than strictly “no choice” systems such as the  September  relocation  schemes.

“Light” allocation systems would facilitate early identification, reduce irregular movements within the EU, and liberate resources for the really important tasks of the asylum system: to provide dignified reception, to identify persons in need of protection in fair and effective procedures, and to return in dignity those found not to be in need. Like any responsibility allocation system, they would of course need accompanying measures. Indeed, there are three types of reform that the EU should engage in regardless of what responsibility-allocation  system it chooses.

 

First, it is indispensable to guarantee to protection seekers and beneficiaries in every Member State the full enjoyment of the rights recognised by international and EU law. In this respect, monitoring the existing standards seems more urgent than reforming them. In addition to renewed activism on the part of the Commission, the Proposal for an EU Asylum Agency (COM(2016) 271 final) might bring an important contribution in the form of enhanced monitoring and capacity assessment. The progressive centralisation of services supporting status determination might also improve convergence and constitute an effective  way  of pooling resources.

Second, financial solidarity should be considerably strengthened. Indeed, there is a strong case for placing on the EU budget, suitably expanded, asylum-related expenses that are currently placed on national budgets – identification, registration, screening, reception and processing of the claim. Such costs are distributed asymmetrically and are incurred by Member States in the provision of a collective good benefitting, to some extent at least, all others. Their centralisation might prevent under-provision, defuse incentives to engage in defensive behaviour, and contribute to raising reception and protection standards where this is most needed, contributing to reducing secondary movements. The progressive centralisation of costs would not preclude maintaining EU funding in a capacity-building perspective, as under the Asylum, Migration and Integration Fund (AMIF), nor introducing financial incentives in  support  of e.g.   EU-sponsored  allocation  or  relocation  schemes.

Third, introducing real mobility rights for protection beneficiaries would make responsibility allocation more sustainable – especially under systems not granting full free choice to applicants. It would facilitate acceptance of a less than ideal initial allocation, improve integration prospects and self-reliance for beneficiaries of protection, and possibly defuse the fears of some States of first application of facing, over time, unsustainable responsibilities.

Continue reading …

TABLE OF CONTENTS

  1. INTRODUCTION 
  2. THE EXISTING ACQUIS AND ITS IMPLEMENTATION 

2.1.   The Dublin System                                                                 

  • The basic features  of  the Dublin  system
  • The Dublin system  in  practice

2.2.   EU Relocation Schemes                                                        

  • The basic features  of  EU  relocation  schemes
  • The September 2015  relocation  schemes in  practice

2.3.   Investigating the Causes of Past Failures                           

  • Introductory remarks
  • Root cause  #1:  neglect  for  protection  seekers’ motives and  agency
  • Root cause  #2:  unmitigated  conflict of national  interests
  • Root cause  #3:  cumbersome  intergovernmental  procedures
  • Lessons to be  drawn  for the reform  of Dublin  III
  1. AVENUES FOR REFORMING THE DUBLIN SYSTEM 28

3.1.   The Commission’s “Dublin Plus” Approach                      

  • Context and  philosophy  of  the  Dublin  IV  proposal
  • Proposals to  “streamline” the Dublin  system
  • The “corrective mechanism”

3.2.   Dublin IV: a Critical Appraisal                                              

  • The Dublin IV  approach:  fair, sustainable and  efficient?
  • The Conformity of Dublin IV to  Human  Rights
  • A summary of  the  main points

3.3.   In Search of an Alternative: from “Heavy” to “Light” Systems                                       

  • “Light” systems:  philosophy, virtues  and  (purported)  risks
  • Three models:  free  choice,  limited  choice, Dublin  minus
  • “Light” systems and  emergency  situations
  • Accompanying reforms:  convergence,  solidarity, and free  movement
  1. CONCLUSIONS AND RECOMMENDATIONS
    ACKNOWLEDGEMENTS
    REFERENCES                                                                                        

The Future of EU External Trade Policy – Opinion 2/15: Report from the Hearing

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

(Nota Bene: emphasis are added)

by David Kleimann and Gesa Kübek*

On September 13 and 14, the Court of Justice of the European Union (CJEU) held its hearings for Opinion 2/15, which concerns the EU’s competence to conclude the recently negotiated EU-Singapore Free Trade Agreement (EUSFTA). The CJEU convened in a rare sitting of the Full Court of CJEU judges. It was presided by Judge Lenaerts and Vice-President Tizzano, with Judge Ilešič fulfilling the function of the Court’s Rapporteur. Mrs. Sharpston serves as Advocate General.

This note offers a first-hand report on the hearing and summarizes the exchange of arguments between the Commission, on the one side, and the Council and the member states, on the other side. The first section sets the stage by providing relevant contextual information to the proceeding and highlights the systemic importance of the coming judgment. Section II first outlines the main and general lines of reasoning that the parties presented during the hearing. Secondly, we highlight a selection of policy specific, novel, or even ‘curious’ legal arguments that were advanced by the representatives of the Council and the Commission on the one, and the members of the Court, on the other hand. Section III concludes this note with one of many still unanswered, yet systemically highly significant legal questions that surfaced in the course of the oral phase of the proceedings. There’s some further background to the case in an earlier post on this blog.

  1. The Crux of Opinion 2/15

“Does the European Union have the ‘requisite competence’ to conclude the EU – Singapore Free Trade Agreement [EUSFTA] alone?” More specifically, the Commission, in October 2014, had asked the Court to clarify whether and which areas of the EUSFTA fall under EU-exclusive, shared, or member states’ exclusive competences respectively.

The crux of the matter brought before the Court lies exactly in this precise delineation of EU external competences: If the content of the EUSFTA falls under EU exclusive powers in its entirety, its conclusion as ‘EU-only’ would be mandatory. If certain treaty provisions are regarded as exclusive national competences, the agreement ought to be concluded as a ‘mixed’ agreement, including all EU member states as independent contracting parties. If only EU exclusive as well as shared competences were touched upon by the FTA, the decision to propose the conclusion (on behalf of the Commission) and to conclude the agreement (on behalf of the Council) as either ‘EU only’ or ‘mixed’ is legally optional and referred to the political discretion of the EU institutions involved in the applicable procedures set out in Article 218 TFEU (the general rules on EU negotiation and conclusion of treaties) in conjunction with Article 207 TFEU (the provision on the EU’s Common Commercial Policy).

The importance of the Court’s judgment for the governance of EU commercial relations with third countries – in particular the controversial EU/US trade deal (‘TTIP’) and EU/UK trade relations after Brexit – can hardly be underestimated. Given the broad and deep material coverage of the EUSFTA, the judgment will serve as a precedent for the conclusion of the vast majority of future EU trade and investment agreements. As such, the Court judgment in Opinion 2/15 could possibly mark the beginning of the era of ‘EU-only’ trade and investment agreements and, conversely, the end of the EU member states lengthy parallel ratification procedures required by ‘mixity’. As mirrored by the inter-institutional political debate on the legal status of the EU Canada Comprehensive Economic Trade Agreement (CETA), the eventual outcome of Opinion 2/15 has important implications on both the efficiency, reliability and credibility of EU trade and investment policy formulation, on the one hand, and the de jure legitimacy of multi-level economic governance in the European Union, on the other.

  1. Commission vs. Council and the Member States: The Arguments

Throughout the course of the hearing, the arguments of the parties focused on four contentious policy areas covered by the EUSFTA, notably disciplines on transport, investment, intellectual property rights, as well as sustainable development (labor rights & environmental protection). In the following, we will first outline a number of general legal arguments advanced by the parties that recurred during the hearing in application to all or most issue areas and discernably built on established CJEU case law. Subsequently, we highlight a selection of specific legal constructions that the parties put forward in respect of EUSFTA transport and investment rules.

  1. General Arguments of the Parties
  1. The Commission

Continue reading “The Future of EU External Trade Policy – Opinion 2/15: Report from the Hearing”

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’s ‘The 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

ORIGINAL PUBLISHED ON OPEN DEMOCRACY  (29 September, 2016)

 by VALSAMIS MITSILEGAS  (*)

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”

Who exactly will ‘take back control’? Parliament vs executive after Brexit and the ‘Great Repeal Bill’

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

A key issue in the Brexit referendum campaign was the case for British democracy: that rules applying to the UK should be adopted by the UK parliament (or, as the case may be, devolved bodies and local governments; I’ll come back to devolution issues in a later blog post). But since the referendum result, it’s striking that many on the Leave side seem reluctant to give Parliament much of a role in practice. Having made a strong case for Parliament to make decisions affecting the British people, they suddenly find this argument less compelling when contemplating that Parliament might make decisions that they may not agree with. A bit like St. Augustine, they pray for the virtues of parliamentary sovereignty – but not yet.

While a lot of debate has focussed on whether Parliament should have a role in triggering Article 50 (the clause on the process of UK withdrawal from the EU), that’s actually one of four related issues: Who should trigger Article 50? Who should determine the form of Brexit? How accountable should the Brexit negotiations be? And who should control what happens after Brexit?  I’ll discuss each of these issues in turn, including a broader analysis of the ‘Great Repeal Bill’ just announced by the government as part of the fourth point.

1 Who should trigger Article 50?

As many readers will know, there are pending court cases on this issue. It’s clear that the referendum itself is not legally binding, since unlike previous cases like the 2011 referendum on voting rules, the European Union Referendum Act 2015 does not specify what happens in the event of a vote to Leave.  The government made a political promise to implement the result, but that is not a legal obligation.

The core legal argument is whether the official notification that the UK will withdraw from the EU is governed by the ‘Royal Prerogative’, which gives the UK executive the power to negotiate treaties and conduct foreign relations, or subject to Parliamentary approval, since Brexit will inevitably impact upon the European Communities Act (which is the main law giving effect to EU law in the UK) and other UK statutes. You can find the skeleton arguments tabled by both sides here; and see Mark Elliot’s analysis of the government’s pleadings.

Whatever view the courts finally take of the law, there’s an overwhelming political argument that Parliament ought to decide, given the huge impact upon the laws of the United Kingdom. If it comes to this, I don’t expect many MPs would actually vote to block Brexit, since the majority of UK constituencies voted to Leave, and they will be concerned about their re-election chances. Moreover, many of them likely believe it would be politically illegitimate not to respect the result of the referendum. Frankly, it’s unfortunate that many Remain supporters are unwilling to accept this political reality, and expend their energy on overturning the result, rather than engaging in a constructive debate about the least bad form of Brexit. Time to face facts: Bobby Ewing will not be back from the dead in your shower tomorrow morning.

So the more significant impact of any parliamentary vote on Brexit would be its potential impact on the next issue: who should decide what form of Brexit to take?

2 Who should determine the form of Brexit?

A majority of votes were cast to ‘Leave’ the EU. No other question was on the ballot paper. Various arguments were made in favour of Leaving the EU, some of them contradictory (ie from opposite sides of the political spectrum). It’s sometimes asserted that the Leave vote is a mandate to reduce immigration from the EU and to withdraw from the free movement of people to this end, but at least some senior Brexiteers used to argue that it is not a mandate to this effect.

So while the vote is a political mandate to leave the EU, it’s not a mandate for any particular form of leaving the EU. For instance, if the UK sought to leave the EU and retain membership in the European Economic Area (EEA), in order to keep full participation in the EU’s single market, at least on an interim basis (as discussed here) this would in no way contradict the referendum result. EEA members like Norway are not members of the EU, and do not participate in many aspects of EU law: fisheries, taxation, trade with non-EU countries, agriculture, the single currency, and many more.

Of course, some people object to the idea of the UK staying in the EEA. But they need to base their arguments on the perceived flaws of the EEA – and, if they are intellectually honest, on the comparative perceived strengths of any other form of Brexit. The argument that the British public ‘voted against staying in the single market’ is quite simply false.

This brings us to the question of who should make the final decision on what form of Brexit to pursue: the UK parliament or the executive? (Not forgetting, of course, that the EU side must also agree to the terms). The question of whether to stay in the single market has a huge impact upon the UK economy (see, for instance, the estimates of the Institute of Fiscal Studies on this point: Brexit on the basis only of participating as a WTO member would shrink the economy 4% as compared to staying in the single market). Moreover, it will have a huge impact on British law. Refusing to let parliament decide this issue is incompatible with its underlying role.

Of course, I would expect the executive to draft a proposed motion for Parliament to approve. But if Parliament is only willing to approve that motion subject to amendments, the executive should consider itself politically bound by the amended motion.  I’m not suggesting that Parliament should get the power to agree every word in the text of future UK/EU treaties before negotiations start, as if those treaties were Acts of Parliament. But it should have the power to approve the main thrust of the government’s negotiating position. If Parliament votes that the UK ought to negotiate to remain a full participant in the single market, the government must consider itself bound by that result. A clear statement of the government’s negotiation objectives, approved by Parliament, would also supply a degree of legal certainty to those doing business in or investing in the UK.

Some are concerned that Parliament would be tying the government’s hands too much, since there is a risk that some aspect of the government’s negotiating position will be unattainable. In such a case, the government could come back to Parliament and ask it to revise the motion, or failing that, to explain its inability to achieve all those negotiation objectives when it comes time for Parliament to approve post-Brexit treaties.  And that point brings us neatly to the process of negotiating and approving those treaties.

3 How accountable should the Brexit negotiations be?

Usually, it’s an executive power to negotiate international treaties. Parliament is involved at the end, if it’s necessary to amend an Act of Parliament, or adopt a new one, to give effect to a treaty. Since 2010, it also has the ability in effect to block the government’s ratification of a treaty, under the Constitutional Reform and Governance Act 2010. The government has made clear its unwillingness to be accountable during the negotiations, arguing that it will not be giving a ‘running commentary’.

However, there are important reasons why the Brexit talks should not be regarded as any ordinary treaty negotiation. Firstly, as noted already, EU law has a huge effect on UK law; it follows that Brexit will do also. Refusing to disclose any information to Parliament in that process would be to divest it (and public opinion) of any effective role in the debate about the negotiations.

In fact, there’s a relevant precedent for a bigger role for Parliament. Due to the important role of EU law in UK law, the House of Lords and House of Commons already have Scrutiny Committees examining the government’s negotiation of draft EU laws. In particular, the government reports back regularly to the latter committee on how negotiations over important EU laws are going. One might almost call it a ‘running commentary’.

Secondly, there’s a particular well-known feature of the Brexit negotiation process: the two-year deadline that applies once Article 50 is triggered. This means that Parliament does not face the ordinary choice between approving a treaty or the status quo; rather the choice will be between leaving the EU on the Brexit terms negotiated by the government and leaving the EU without any terms at all, which will also cause major transitional problems. For instance, would the UK have to release from prison, or refrain from arresting, fugitives who were the subject of a European Arrest Warrant issued by an EU Member State on Brexit Day?

Thirdly, there is no reason for secrecy on ‘negotiation tactics’ grounds once a text has been tabled to the other side. In effect, those cards are on the table already. On the other hand, it would damage the UK’s negotiation position to release notes which give the government’s fallback position: those cards are still face down. There will, inevitably, be some embarrassment if the UK government doesn’t obtain its initial negotiation position. But this is normal in any treaty negotiation, and the government simply has to prepare public opinion for this.

Fourthly, it would be odd if the UK parliament had any less a role than the European Parliament, which not only (like the UK Parliament) has to approve any final Brexit deal, but must be ‘immediately and fully informed at all stages of the procedure’ (Article 218 TFEU). As a recent post on this blog pointed out, there is EU case law clarifying these rights, as well as a ‘closed door’ procedure for MEPs to review texts.

4         Who should control what happens after Brexit?

This issue has come to the fore with the government’s announcement of a ‘Great Repeal Bill’, to replace the European Communities Act. First of all, some general points about this Bill. It won’t take effect until Brexit Day, so the UK will still be in compliance with its EU law obligations beforehand.  An interesting point is how the Act will deal with any EU laws adopted after it obtains Royal Assent, but before Brexit Day: logically, it should at least cover those which fall due for the UK to apply in the meantime. (My thanks to Graham Smith for raising this point).

Secondly, despite the title, the Act won’t actually repeal any substantive EU law, but just the opposite: it will keep all pre-Brexit EU law in force in the UK. But it’s not therefore a meaningless gesture, as some have suggested, as it will do several things: a) prevent post-Brexit EU law from applying to the UK; b) limit the legal effect of EU law in the UK’s legal systems (ie, EU law would presumably no longer have primacy over all other national laws in principle); and c) remove the role of the EU courts in interpreting that law. This raises some key questions: would the UK want a legal mechanism for adapting easily to post-Brexit EU laws that it wishes to apply? What would be the impact of pre-Brexit, and post-Brexit, case law of the CJEU on interpreting this law? How will the UK match the EU regulatory bodies referred to in EU legislation?  Despite those questions, though, the plan for the Bill does offer a great degree of legal certainty, as businesses and others know that there will not suddenly be a legislative vacuum as regards a big chunk of the law on intellectual property, data protection, environmental protection, and so on.

Thirdly, there are two other things that the ‘Great Repeal Act’ won’t do: a) it won’t affect EU laws that form part of UK law due to other statutes (such as the Extradition Act), although they will equally stay in force in much the same way as the EU law preserved by the Repeal Act; and b) it won’t bind the European Union (or, where relevant, non-EU states). Any EU law kept in force in UK form which relates to trade with the EU, or other UK relations with the EU (recognition of judgments, or return of asylum-seekers, for instance) will only have practical effect to the extent that the UK and the EU have reached an agreement to this effect.

Fourthly – and this is my main focus for now – the ‘Great Repeal Act’ will set out a process for repealing or amending that EU law retained by that Act as and when the UK wishes to do so. The key issue here is: will the government decide that, or Parliament? The government’s announcement makes clear that it wants Parliament to confer power upon it to make at least some of the decisions on repealing EU law.

Let’s be clear what’s at stake here. Acts of Parliament need to be approved by both the House of Commons and the House of Lords, following a process of several readings where there is a chance for public input and amendments. In comparison, ‘secondary legislation’ adopted by government (usually in the form of ‘Statutory Instruments’ or ‘Orders in Council’) cannot usually be amended by Parliament, and there’s little time for public discussion or parliamentary scrutiny that could influence amendments. Either of the two Houses of Parliament could veto draft secondary legislation, but this is rare.

Secondary legislation is used in other fields, and it was very frequently used to give effect to EU law in the UK.  So what’s the problem using it for repealing EU law? First of all, the very fact that secondary legislation was used so much to put EU law into place was a problem. It removed Parliament from having the role it would usually have over the adoption of the substantive laws in question. That was indeed one reason why Eurosceptics were critical of the EU for years. So using secondary legislation to overturn or amend those EU laws doesn’t solve that problem: it continues, even exacerbates it. Remember, as noted above, that the government’s negotiation of EU laws was always scrutinised by Parliament; this ameliorated the impact of the big transfer of power to the executive. But in principle, there would be no such mechanism to ameliorate the executive power to repeal EU laws after Brexit – unless a new form of parliamentary control of secondary legislation, involving some form of effective scrutiny and amendment, were developed.

Some might argue that the EU origin of these laws is inherently tainted, and so therefore a fast-track procedure to repeal them is justified. That argument is based on a fatuous misunderstanding of EU law propagated during the referendum campaign: that the UK is the passive recipient of laws adopted by ‘unelected bureaucrats’. In fact, as I pointed out in detail here, EU laws are adopted by elected ministers of Member States and elected Members of the European Parliament, and the UK government voted for them a huge majority of the time.

Secondly, the government may well seek the power not only to fast-track repeal of EU laws which apply in the form of secondary legislation, but also those which are implemented by means of Acts of Parliament. Such powers are known as ‘Henry VIII clauses’, and are particularly controversial because they effectively overturn the role of parliament that led to the adoption of those Acts in the first place. In my view, such clauses should be rejected for the post-Brexit process as a matter of principle. If an EU law issue was deemed important enough while the UK was a member to enshrine in an Act of Parliament, it should be for Parliament to repeal or amend it.

On the other hand, it is probably not feasible to entirely rule out the use of secondary law-making to amend or repeal existing secondary legislation derived from EU membership. But Parliament should not give the government a blank cheque, for the reasons explained above. Rather, such powers should be subject to strict limits, either by means of a positive list (‘secondary legislation is only allowed in the following areas’) or a negative list (‘secondary legislation is allowed, except for the following areas’). In either case, there should be a ‘carve out’ for laws on workers’ rights and the environment, given their particular importance, as well as other issues where Parliament usually plays the main role.

Conclusions

There’s no plausible argument that we need to destroy parliamentary democracy in order to save it. The Leave side argued for British parliamentary supremacy – not for ‘handing back control’ to our ‘unelected bureaucrats’. Parliamentary sovereignty doesn’t need fair-weather friends: it needs supporters who will take the opportunity of Brexit to strengthen it for reasons of principle, not undermine it for reasons of tactical advantage.

‘Inside’ the European Parliament’s Closed Reading Rooms: Transparency in the EU

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Dr Vigjilenca Abazi (Assistant Professor of European Law Maastricht University)

What do documents about negotiations of the Transatlantic Trade and Investment Partnership (TTIP), oversight of the EU’s Food Safety Authority or Tax-Justice have in common? In order to access these documents, (selected) Members of the European Parliament are requested to attend closed reading rooms. This blog post discusses how an exception to open parliamentary oversight is increasingly becoming a regular institutional practice and questions its spillover effect on requests for public access to documents.

Background

As the wording suggests, ‘closed reading rooms’ are meetings that take place behind closed doors with the purpose of reading certain sensitive documents, particularly EU official secrets. Documents are distributed at the beginning of the meeting and collected again at the end; documents may not be copied by any means, such as photocopying or photographing; no notes may be taken; and the minutes of the meeting cannot make any mention of the discussion of the item containing official secrets (Art. 6, Interinstitutional Agreement between the European Parliament and the Council of 12 March 2014).

Closed reading rooms are an exception to generally open meetings and discussions of the European Parliament. This practice emerged with the introduction of rules on EU official secrets and specifically the Interinstitutional Agreement of 2002 between the European Parliament and the Council concerning European Parliament’s access to sensitive information in the field of security and defence policy (see Art. 3 and Annex, second paragraph). The rationale of what this Agreement called ‘secured room’ was to make sensitive documents available for purposes of parliamentary oversight without ‘risks’ of public disclosure or possible leaks, i.e. unauthorised disclosure of documents.

Initially, this practice was mostly confined to the area of security and defence for documents classified as official secrets. Yet, with the expansion of rules on EU official secrets to areas well beyond security and defence to ‘activities in all areas that require handling classified information’ via a Council Decision on official secrets in 2013, the use of closed reading rooms by MEPs to access sensitive documents became an increasing practice.

Closed Oversight

At first glance, closed reading rooms, or more generally ‘closed oversight’ (as I have elaborated in-depth in this recent article), might seem an inevitable institutional practice when dealing with official secrets and certainly this is not an issue confined to the EU, but a much wider world practice of oversight (e.g. see here for a recent report). Yet, the following salient questions arise:

Is it possible to keep account of closed oversight?

Accountability does not stop with executive institutions. It is equally important that oversight actors, such as the European Parliament, have appropriate institutionalised processes of keeping track of documents that have been reviewed, that meeting minutes reflect at least in some broad sense what has been discussed when official secrets are involved, or any other means that leave a traceable mark of institutional oversight having taken place. As the current procedure of getting access to official secrets stands (see above section on ‘background), it seems that keeping (some sort of public) track of the oversight process is deeply challenging.

To what extent intra/inter institutional rules alter primary law oversight architecture?

Another disconcerting aspect to closed oversight is the way it has been developed, i.e. mostly through rules of procedure and inter-institutional agreements. Indeed, EU institutions in line with primary law have clear prerogatives to make arrangements for their cooperation and to set out their rules of procedure (see respectively Art. 295 TFEU, Art. 240(3) TFEU). However, it remains to be more critically discussed whether this route of designing how oversight will take place in practice follows the constitutional principle of openness in the EU in full spirit and to what extent it alters the process of oversight in EU.

Does recent case law offer insights on closed oversight? 

In a series of recent cases, the CJEU has clarified the relevance, scope and procedural aspects of institutional access to information by the European Parliament in the context of international negotiations (see previous EU Law Analysis blogs here and here). However, case law does not address the manner in which these documents should be read and importantly, primary law only refers that accessibility to information is ‘immediately and fully’ (see Art. 218(10) TFEU) with no further details as to how access ought to be organised.

What about public deliberation?

A crucial role for the European Parliament as the direct representative of citizens (Art. 10 TEU) is to provide a link between what takes place in Brussels and what citizens know. But actively creating space for public deliberation and prompting public debate on issues that are overseen behind closed doors remain yet to be delivered by the European Parliament.

Spillover Effect Even to Public Access to Information?

Recently four MEPs filed a public access request to the European Food Safety Authority to gain access to unpublished studies determining the carcinogenicity of glyphosate on basis of which EFSA made its assessments. EFSA was not immediately open to provide public access to these studies. Remarkably, in its response, EFSA offers a ‘physical reading room’ for the MEPs to read these studies and reasons that the owners of these studies seem open to sharing the studies in this manner.

In other words, the EFSA is offering the MEPs a closed room to read the studies as a response to a public access request that should result in making the documents public, not only for these four MEPs but also for the general public. It should be stressed that the EU public access to documents regime does not foresee ‘physical reading rooms’ and indeed that would be contrary even to its rationale of granting the widest possible public access to documents. It seems that in the eyes of EFSA, a closed reading room offers a ‘solution’ to the potential unwillingness of the authors of these studies to disclose the documents. Yet, this possibility is also completely outside the legal contours of public access to information. Legally, authors of these studies do not have a veto on whether the studies would be public and certainly do not have prerogatives to decide how public access to documents should be organised in practice.

The EFSA response is ongoing and the four MEPs have still not received access to all requested documents. Yet, beyond this case, is the practice of closed reading rooms expanding not only toinstitutional access but also to public access to documents? This is a issue that we should continue to examine more closely.