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by Henri Labayle*, CDRE    GDR - ELSJ - Logo 5'

Angela Merkel’s speech before the European Parliament on 7 October 2015, which she gave alongside François Hollande, is remarkable in every way. Besides being a symbol of an intervention by France and Germany – which may not in fact have been the best signal to send to those whom they were trying to convince – the speech before the representatives of the peoples of Europe makes good sense.

It was therefore natural to take her speech as the first subject of this blog dedicated to European immigration and asylum law, sharing Jürgen Habermas’ sense of being “as surprised as delighted” by the German position on the refugee crisis in the European Union.

Indeed, the German Chancellor’s speech reflects a consistent policy that deserves respect, but also announces technical developments that raise some questions.

Consistency

Merkel is sending a clear message. Despite a growing wave of criticism – she faces a latent revolt at home within her own majority and an obvious tension among German public opinion as reflected in recent polls – the Chancellor did not deviate an inch from the course she wishes to take, dragging the rest of the EU in her wake.

This course is the only plausible option – to respect the European Union values up​​on which, in the words of the Treaties, the Union is “founded”, which “are common to the Member States” and which the Union must “promote”. It is to these values ​​and to human dignity that the German Chancellor explicitly referred on August 31, when the asylum crisis was transported to the institutional terrain.

In addition, she kept to her political course in a most responsible way by arguing that, contrary to what we may hear, the debate should not be framed in terms of opportunity but rather in terms of moral and legal obligations. Equally responsible is her repetition that states are powerless in isolation and that a collective response is the only option. Indeed, giving in to “the temptation to fall back into national government action” would be an historical error, and politically we ought to “embrace the attractiveness of Europe”.

This is how the public debate should be framed. Must we be reminded that between the Maastricht Treaty, which viewed asylum as a “matter of common interest”, and the affirmation of a “common asylum policy” in the Amsterdam Treaty, the reception of applicants for international protection became Europeanized enough to require a second generation of texts forming part of the  Common European Asylum System?

Moreover, even if the protection of the right to asylum at the European level is debatable, how can we forget the obligations of all EU Member States which stem from their accession to the Geneva Convention and the European Convention on Human Rights? Finally, to look beyond the borders of France and Germany, even if we take only the recalcitrant Member States, how can we deny the authority of the declaration of the very same right to asylum in the constitutional provisions of Hungary (Article 14), Poland (Article 56) and Slovakia (Article 53)?

Also, if we put aside the technical and procedural arguments (whether they are justified or not), claiming to base one’s opposition to EU measures to relocate refugees on the grounds of the rule of law – as Slovakia seems to – demonstrates a peculiar vision of the legal Community to which one belongs.

Consistency was also a feature of the remarkable words of the President of the Commission on the 9 September, during his State of the Union address to the European Parliament.

Recalling the weight of history on the European continent before, during and after the Second World War, the head of the EU executive body chose to focus on “respect for our common values ​​and our history” after restating the magnitude of the effort required. Highlighting the impact of the international context as well as the challenges of underestimating protection needs, Jean-Claude Juncker has finally restored the political significance of his role.

As a result, a working relationship with the Luxembourg Presidency is vital for the Franco-German alliance. Without it, these two principal actors of the Union cannot have any influence. This development revives a tradition of a small member state’s presidency often being more effective. The sudden acceleration of the “relocation” legislation has benefitted from this, with both relocation decisions already published and beginning to take effect.

But does the consistency of the speech herald real change in the asylum policy of the European Union or should we remain doubtful, like some media commentators who expressed regret about the absence of concrete measures in the speech?

Change

Change is already in motion. The management of the legislative package on relocation demonstrates this in a way which is particularly painful for advocates of the intergovernmental method.

Indeed, we already realised the great relativity of the communitarisation of legislative procedures. Despite what the treaties call the “ordinary legislative procedure” – which would ensure that the standard legislative procedure in the area of migration and asylum is the qualified majority vote combined with the approval of Parliament – its use in the decision-making process in practice is anything but ordinary. The culture of consensus which drives the diplomats claiming to be legislators leads them to prefer the former legislative practices. These practices consist of not forcing Member States, which results in abstention becoming their only option.

It was thus that, on the 20 July 2015, a “Resolution of the representatives of the governments of the Member States meeting within the Council” – that is, an act not by the EU but by Member States collectively (CJEU, 30 June 1993, Parliament v. Council and Commission, C-181/91 and C-248/91, paragraph 25) – allowed States to overcome their disagreements by consensus and adopt Decision 2015/1523 to advance towards the relocation of 40,000 people from Greece and Italy.

However, the return to Community orthodoxy proved much more practical when it came to overcoming the resolute opposition of four Member States: Decision 2015/1601 of 22 September 2015 was adopted through the traditional means of the treaties, right down to the use of the qualified majority voting procedure. A sign of the extent of disagreements is that the conclusions of this meeting were presented by the Luxembourg Minister as “those of the Presidency” and not the Council.

The second sign of change relates to the Schengen area. The law of the Schengen area has been improperly presented as falling within the “Schengen Agreements”. This ambiguous presentation might suggest that these agreements can be terminated, whereas Schengen is based partly on Articles 67 and 77 of the TFEU, which guarantee the absence of controls at internal borders, and partly on Regulation 562/2006 “Schengen Borders Code” as amended in 2013.

This system – now almost thirty years old – was not originally designed to withstand the pressure which faced the EU in the summer of 2015. It was therefore left in tatters in terms of both the ability of Member States to take responsibility for external border controls and the abolition of national controls at internal borders. The temporary reintroduction of border controls between several Member States, with the agreement of the Commission, in accordance with Article 25 of the Code, made the reality of the situation clear.

This reality is twofold: firstly, the failure to substantially modify a mechanism designed for five states in order to extend its application to 30 became clearly problematic. On the other hand, maintaining an area of ​​free internal movement obviously depends on the effective tightening of controls at the external borders. On this second point, the only possible conclusion in order to ensure a constant European area is to increase the integration of external border management. Once again, in her conduct since the beginning of September as well as before European Parliament, the German Chancellor has in no way masked the gravity of this issue.

The third sign of change, and no doubt the one with the most significance, is the questioning of the Dublin system. An inaccurate name, because it was, in fact, first conceived in Chapter VII of the Convention implementing the 1990 Schengen Agreement. This system establishes the principle of a single state being responsible for processing an asylum application. It has been rightly criticized for its somewhat dubious efficiency as evidenced by the latest report from AIDA. The Dublin system has been challenged in courts all the way to the Council of Europe, and has undergone several reforms, but its underlying principle has never been called into question.

The reason is simple: it places the largest burden on the States that, by chance of geography, are in immediate contact with external migration pressure. This responsibility exists irrespective of their capability to respond, a fact caricatured by the situation in Greece. Despite the shortcomings of the system, the states without an external border found, for better or for worse, some comfort in it, even if the system did not work out as envisaged in Italy or Greece.

It is for this reason that some have had difficulty in accepting the idea of ​​change, despite the storm caused by the opening of Germany’s borders, in clear contradiction to the law.

This attachment to the Dublin system has remained until very recently. At the informal meeting of Heads of State and Government on 23 September, it was recalled that “we must all respect, apply and implement our existing rules, including the Dublin Regulation and the Schengen acquis.” Similarly, the relocation device was presented as a “derogation” from the Dublin mechanism. Finally, although we do not know exactly what changes it intends to make, the Commission has committed to reforming Dublin in March 2016.

“Frankly, the Dublin process, in its present form, is obsolete,” the German Chancellor said to European parliamentarians. This attack, which has come without any warning shot, is right on target and seems to open a new chapter for asylum policy.

Should we believe that the Chancellor’s conclusion will serve as a road map? Will the EU, aware that its policy led to a political deadlock, be able, firstly, to open legal channels to access protection, and secondly, to agree on a fair distribution of the burden as set out in the treaties?

*Translated from French by the Odysseus Network’s OMNIA Team