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By Kris Pollet, Head Legal and Policy Research, European Council on Refugees and Exiles (ECRE)

This blog is written in the personal capacity of the author and does not necessarily represent the views of ECRE.

 

The reform of the Common European Asylum System (CEAS) through a third phase of harmonisation of the EU asylum acquis, launched by the Commission in 2016, proved too ambitious to be concluded under the 2014-2019 parliamentary term. While being blocked because of disagreements between Council and Parliament especially about solidarity between Member States, the legislative work done risks to be annihilated by the European elections, knowing that appetite of Member States for legislative harmonisation may diminish in the future.

Contrary to popular perception, from an institutional perspective considerable progress has already been made on parts of the asylum package. As discussed in more detail below, with five of the seven proposals having reached the stage of so-called trilogue negotiations and short of an inter-institutional agreement within less than three years, co-legislators have certainly moved at reasonable pace. Keeping in mind the fact that both the first and second phase of legislative harmonisation in the asylum field took five years and various amended proposals to conclude, the third phase of harmonisation is certainly still on schedule.

However, discussions on the Commission’s Dublin IV proposal in particular and the Asylum Procedures Regulation have triggered a range of fundamental legal and political questions among the Member States preventing the Council from adopting a negotiating mandate so far. A final push by the Commission and some Member States to have at least some of the least controversial proposals adopted before the European elections appeared to be in vain as there was eventually too little appetite to split the package. The uncertain legal and political ramifications of a partial deal finally prevented both the European Parliament and the Council from moving ahead. Faithful to the package-doctrine, the negotiations on the asylum package were finally de facto referred to the next parliamentary term. 

Failure to complete negotiations on legislative proposals within one Parliamentary term triggers a number of institutional and political issues, in particular from the perspective of the European Parliament. Although the European Parliament has always been one step ahead of the Council in the legislative process since the Commission proposals were submitted, the installment of a new European Parliament may have important consequences for the negotiating mandates that have been adopted on all asylum proposals under the resigning Parliament. 

This contribution discusses the possible institutional implications of the establishment of a new parliament after the elections for the negotiating mandates adopted by its Libe Committee on Civil Liberties under this parliamentary term. Whether and to what extent the new Parliament is bound by the commitments made by the previous assembly has obviously a huge impact on the continuation, if any, of the legislative process after the elections. In a second part, the state of play of negotiations on the asylum package will be briefly discussed with a particular focus on three key features of the Commission proposals relating to the Qualification Regulation and the recast Reception Conditions, illustrating the impact of positions taken by the LIBE Committee on the provisional compromise agreements that had been reached with the Bulgarian Presidency in June 2018.

1. New Parliament, new beginning?

Negotiations on the seven files constituting the asylum package are at different stages of the ordinary legislative procedure in accordance with Article 294 of the Treaty on the Functioning of the European Union. As none of the proposals have been adopted before the elections, negotiations with the Council will have to be taken forward by the next European Parliament, unless the current or future Commission decides to withdraw them. Assuming the objective of both last institutions is to achieve a first reading agreement, this triggers specific challenges from an institutional and political perspective for the next European Parliament.

From an institutional perspective, the failure of the co-legislators to conclude negotiations on (parts of) the asylum package before the elections could have important consequences for the positions which have been negotiated within the European Parliament under the current parliamentary term. In theory, all the work invested by the previous European Parliament in the asylum package could be lost. This is because of the so-called “unfinished business” provision laid down in Rule 229 of the Rules of Procedure of the European Parliament’s 8th parliamentary term. This provision states the principle that “at the end of the last part-session before the elections, all Parliament’s unfinished business shall be deemed to have lapsed”.

This would mean that all negotiating mandates adopted by the LIBE Committee on the asylum package, which all have fundamentally amended the initial Commission proposals and have included important human rights safeguards without exception, would no longer bind the new European Parliament. As a result, the process within the European Parliament would have to start all over again, with the appointment of rapporteurs and shadow rapporteurs, a first draft by the rapporteur, amendments by LIBE Committee members, a vote on the draft report and negotiating mandate in the LIBE Committee and endorsement of the negotiating mandate by the plenary assembly.

However, the abovementioned principle is subject to the provisions of the second paragraph of Rule 229 which states the following:  [A]t the beginning of each parliamentary term, the Conference of Presidents shall take a decision on reasoned requests from parliamentary committees and other institutions to resume or continue the consideration of unfinished business”. The Conference of presidents of the new Parliament could therefore decide to continue or resume the consideration of such unfinished business, upon request of a parliamentary committee or other institutions. The latter may include any other EU institution, including the Commission or the Council, should no such request be made by the parliamentary committee concerned. This is to be considered an institutional measure of last resort to address inaction by the parliamentary committee concerned and where it is considered politically desirable to continue the discussions in order to avoid additional delay from having to start the procedure from scratch again in the responsible committee.

Given the sensitive nature of the asylum package, the amount of work invested in the asylum proposals by the LIBE Committee and the advanced stage of negotiations with the Council on five of the seven asylum proposals, it is beyond doubt that such a request would be considered as “reasonable”. For the same reasons, it seems inconceivable for the next LIBE Committee not to submit such a request to the Conference of Presidents. It seems unlikely that the Conference of Presidents would refuse such request, but the fact remains that the decision to continue or resume unfinished business under the previous Parliament is at the discretion of the Conference of Presidents. The European Parliament’s rules of procedure do not provide for a specific definition of “unfinished business”. However, it must be assumed that it includes any type of activity within the European Parliament’s mandate which requires a decision, including the negotiation of legally binding acts. This follows a contrario from paragraph 3 of Rule 229, according to which the provisions on unfinished business “shall not apply to petitions and communications that do not require a decision”.

It should be noted that the basic rule according to which any unfinished business lapses, does not apply to legislative files on which the Parliament has voted in plenary. All votes taken in plenary by Parliament before the elections remain legally valid for the next Parliament. This means that, after the elections, the new Parliament will pick up the files where the previous left them and will continue with the next stage of the decision-making procedure. However, none of the LIBE reports on the asylum proposals have been subject to a vote in plenary before the last part-session of the European Parliament sealing the Parliament’s first reading position, except for the endorsement of the respective negotiating mandates. Therefore, the EP reports voted in LIBE could not benefit from this institutional practice and be saved from oblivion without a decision of the new Parliament’s Conference of Presidents.

Certain forecasts of the outcome of the European elections predict important changes in the composition of the European Parliament and the balance of powers between the traditional political families. While the European People’s Party and the Socialists and Democrats (S&D) may remain the two biggest political families, they may face a considerable loss, while the success of eurosceptic parties in the slipstream of the Legal Nord in Italy remains the big unknown. The effect of such changed composition on the European Parliament’s position in negotiations with the Council on the asylum package after the elections is hard to predict and will also depend on whether the current allocation of asylum files to the various political groups will be maintained. Traditionally, reports assigned in the preceding parliamentary term are not claimed by another political group after the elections. However, this is not set in stone and could be questioned at any time. As some of the appointed rapporteurs on the asylum files are not running for re-election and others may not be re-elected, new rapporteurs will have to be appointed. Whether this opportunity will be taken by certain groups to claim the rapporteurship from other groups remains to be seen, but even if all files remain within the same political group, a new rapporteur will inevitably bring a new dynamic and may set different priorities in the negotiations with the Council, or in case new reports need to be adopted, within the European Parliament.

2. The state of play of negotiations on the asylum reform

Despite the overall political deadlock over the issue of solidarity, five of the seven Commission proposals have reached the stage of trilogue negotiations between Parliament and Council. This is the case for the Commission proposals for a Qualification Regulation, recasting the Reception Conditions Directive, establishing a Union Framework on Resettlement, recasting the Eurodac Regulation as well as the the proposed Regulation establishing a European Agency on Asylum. The Commission proposal on the reform of the Dublin Regulation as well as the Commission proposal for an Asylum Procedures Regulation have not reached the stage of trilogue negotiations yet in absence of a Council negotiating mandate on both files. However, in both cases the European Parliament has adopted its negotiating mandate – substantially amending the Commission proposals – with the EP position on the Dublin IV proposal having been widely advertised and commented upon, including on this blog.

A partial inter-institutional agreement on the proposed EU Asylum Agency was even reached between the Council and the European Parliament under the Maltese Presidency in June 2017. However, this was never formally adopted due to the abovementioned package approach, while an amended Commission proposal submitted in September 2018 reopened discussions on the one asylum file co-legislators were in principle in agreement on. The Commission’s move provoked a fierce reaction from the LIBE Committee, which rejected all proposed amendments and in doing so made clear that the text as agreed with the Council in June 2017 was to be considered as the final deal ready for formal adoption. Largely inspired by activities carried out by EASO in accordance with the operating plan 2018 and 2019 for Greece, the amended proposal includes a further expansion of the EU Asylum Agency’s role in national decision-making by entrusting it with the “preparation of decisions on applications for international protection” to be consequently provided to the national asylum authorities. It also entrusts the Agency with a role in assisting Member States in “the follow-up of asylum procedures with return procedures in case of a negative decision”, thereby entering European Border and Coast Guard’s  territory. Particularly controversial is the proposed role of the asylum support teams in assisting the Courts and tribunals with handling appeals by performing legal research, analysis and other legal support. In particular, as the role of the Agency in first instance decision-making increases, any interference with the appeal process is highly problematic as it undermines the independent and impartial nature of appeals and inevitably creates a conflict of interest. In the name of harmonisation and quick procedures, key features of the right to an effective remedy are apparently easily overlooked.

Furthermore, trilogue discussions have resulted in provisional compromise texts between the Bulgarian Presidency and the European Parliament on the Commission proposals for a Qualification Regulation and a Union Resettlement Framework, as well as the recast Reception Conditions Directive. However, these provisional agreements were eventually not endorsed by the Council, which further amended the provisional agreements and updated its negotiating mandates inter alia with respect to the detention of children, exclusion clauses and revocation of international protection status. Unacceptable to the European Parliament, trilogue discussions have been on hold since. In all three files, so far trilogue negotiations have altered key aspects of the initial Commission proposals. Some of these changes have been triggered by amendments proposed by the European Parliament’s negotiating mandate, others have been proposed by the Council as well.

The latter was the case, for instance, for the Commission’s proposal for a mandatory review of the continued need for international protection of status holders at the occasion of the renewal of their residence permit. Both institutions finally objected to the inclusion of such an obligation in the Regulation but for different reasons. For a majority of Member States, the obvious additional administrative burden on asylum authorities outweighed the potential deterring effect of a more temporary protection status. Adverse effects on integration of beneficiaries of international protection stemming from increased uncertainty over the length of their stay on the territory were used as justification for the rejection of the proposed provision by various LIBE Committee members. Although the rejection of the mandatory review provision is an important improvement of the Commission proposal, it would not prohibit Member States wanting to systematically re-assess whether beneficiaries continue to require international protection from doing so as a matter of national law.

Mandatory application of the internal protection alternative (IPA), optional for Member States under the current recast Qualification Directive is another key feature of the Commission proposal for a Qualification Regulation. Here, the Commission proposal is further nuanced in the provisional compromise text. Contrary to the European Parliament’s negotiating mandate, the latter maintains the mandatory assessment of an internal protection alternative, where persecution emanates from the State but provides for a presumption against the existence of an internal protection alternative where persecution emanates from the State, except where this is limited to a specific geographical area. The compromise text further refers to the obligation to “examine” whether an IPA exists, rather than an obligation to “determine” that an IPA exists when certain conditions are met. The latter leaves ambiguity as to whether a State is always required to examine and apply the internal protection alternative or whether, following examination, it may choose not to use it. Being a Regulation, its provisions would be directly applicable provided they are sufficiently precise as per the CJEU doctrine. However, if adopted, the provision on internal protection alternative would no doubt be a strong candidate for interpretation by the Court of Justice through a preliminary reference procedure.

Also, the punitive approach to secondary movements of asylum seekers envisaged by the Commission has been further diluted in trilogue negotiations on the recast Reception Conditions Directive. According to the provisional agreement, exclusion from general material reception conditions as a sanction can only be imposed as of the moment of notification of a transfer decision, and not for the entire duration of the Dublin procedure. While Parliament had proposed the deletion of this provision, it was the Council’s negotiating position which was finally adopted in the provisional compromise. At the same time, whereas the European Parliament had proposed an absolute ban on detention of children, the compromise in the provisional agreement further strengthened the exceptional nature of detention of children by allowing detention only as a measure of last resort and after detention is assessed to be in their best interest.

Whereas co-legislators have downplayed some of the controversial aspects of the Commission proposals in trilogue negotiations so far, others have been maintained such as additional grounds for detention and freedom of movement restrictions, or the prohibition of any proportionality assessment linked to the “fear of persecution’ in the application of exclusion clauses, based on an erroneous reading of the ruling of the CJEU in the case of B&D. Moreover, trilogue discussions on the two other core instruments of the asylum package, the Dublin IV proposal and the proposal for an Asylum Procedures Regulation, including most contentious provisions relating to safe country concepts, border procedures and solidarity, have not even started yet.

The composition of the new European Parliament may considerably change the dynamics in the negotiations with the Council and trigger additional concessions by the new European Parliament departing from core protection-oriented positions taken by its predecessor. Seen from that perspective, even in case the above mentioned request for continuation of the legislative process on the basis of the positions taken by the previous Parliament is honoured by the Conference of Presidents under rule 229, this does not necessarily imply that such positions would be defended with the same rigour, nor would it prevent the newly composed Parliament from significantly altering those positions when negotiating compromises with the Council as part of a first reading agreement. However, as it takes two to tango, all this is only relevant provided the other co-legislator is able to sort out its position on the reform of Dublin.

3. Completing the third phase of legislative harmonisation of asylum: a lost cause?

The key objectives pursued by the Commission proposals are harmonisation, efficiency and tackling abuse of the system. Submitted in the wake of the unprecedented increase of arrivals of asylum seekers and refugees in 2015-16 and the entry into force of the EU – Turkey Statement, the Commission’s asylum package epitomises the search for a new raison d’être for the EU’s common asylum policy. Twenty years of harmonisation, both through two rounds of legislative reform and increasingly sophisticated forms of practical cooperation steered by EASO, have produced fairly meagre results. Recognition rates across the EU continue to diverge enormously for certain nationalities, while the landscape of material reception conditions and procedural safeguards for asylum seekers and integration perspectives for status holders across the EU presents a far from homogenous picture. 

While further reform of the legal framework of the CEAS is required to address structural flaws, in particular in the Dublin system, it is difficult to see how EU institutions will be able to untie the Gordian knot of solidarity, a precondition to successful conclusion of the asylum package, anytime soon after the elections, if at all on the basis of the current Commission proposals.

  • First, beyond the potential political and institutional implications of the European elections as discussed above, the appetite for legislative reform within the Council may further diminish while for some countries solutions to current challenges Europe is facing on asylum policy lie elsewhere. Managing migration and access to the territory through agreements with transit countries such as the EU-Turkey deal, seems increasingly appealing to many political leaders and has not been sanctioned by the General Court of Justice in the case of the EU-Turkey Statement.
  • Secondly, as the deadlock in negotiations on the legislative reform of the CEAS continues, in particular on the revision of the Dublin system, Member States increasingly revert to intergovernmental solutions to address common challenges in the asylum field. This is most prominent in the case of bilateral agreements concluded between Member States with the aim of speeding up transfers of asylum seekers to the responsible Member States, in accordance with Article 36 of the Dublin III Regulation or even outside and contrary to EU law as convincingly argued by Constantin Hruschka in a post published on this blog. Recent discussions on temporary relocation arrangements for persons rescued at sea and disembarked in Southern EU Member States, which have been called for even by the European Commission, fit in the same trend of finding pragmatic solutions outside of the EU asylum acquis.

Hence, any negotiations on the asylum package after the European elections, should be put into perspective and assessed against the backdrop of increasing use of bilateral agreements and arrangements between States both within and outside the EU. Whereas one of the key objectives of the Commission’s asylum package was to sow the seeds for maximum harmonisation through further reduction of State discretion in the asylum acquis, it seems to have reaped a return to intergovernmentalism instead. These recent developments combined with the fundamental divergences between various groups of Member States in Council over the role of solidarity within a reformed Dublin system may indicate a turning point for the CEAS. Only time will tell whether further steps in harmonisation through legislation are still possible in the foreseeable future or whether the limits of harmonisation have been reached under the second phase of harmonisation.