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 by Ulrike Brandl, Associate Professor at the Faculty of Law, University of Salzburg

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In February 2016, the planned introduction of border controls at the Brenner led to massive criticism from Italy. This is a symbolic border because of the historical relations between Austria and Italy and the feeling of a kind of unification after decades of controls separating North and South Tyrol. The facilities to introduce border controls are almost ready. The Austrian authorities however decided to postpone them as the Ministry of the Interior announced that these controls are currently “obsolete” after a meeting between the Italian and Austrian foreign ministers on 13 May. Military personnel and police however are present on transit routes to detect persons crossing the border illegally from Italy. This episode follows the introduction of border controls on the Austrian-Slovenian border and the following chain reactions that were decisive steps in the closure of the Balkan route. This story includes the announcement by Austria to limit the number of new applications for international protection in January 2016 (the so-called “caps”) that deserves closer scrutiny about its legal basis.

Events leading to the closure of the Balkan route

On 20 January 2016, the Austrian Government announced that Austria intends to limit the number of new applications for international protection (including family members) to 37.500 in 2016, 35.000 in 2017, 30.000 in 2018 and 25.000 in 2019. In sum, the maximum number until 2019 should be 127.500 persons. On 17 February, the Ministry of the Interior further heralded that only 80 applications a day shall be accepted. Regarding the numbers of the intended caps, it is not easy to find out why the numbers above have been proposed. The total limit of 127.500 is equal to 1.5 % of the population. Those numbers seem to be artificial. Reports suggest that reception capacities, labour market data, economic considerations and administrative capacities played a crucial role. The calculation was based on quite similar but not completely identical considerations that were taken into account when the resettlement schemes in the EU were elaborated. The outcome was the result of negotiations or presumptions and took the reception capacities of the federated States into account. It has to be mentioned that the Government and the federated States carry out a “well maintained” dispute about the reception of applicants and the quota where the later constantly refuse to fulfil their obligations.

Afterwards, Austria invited the transit States on the Balkan to attend a meeting in Vienna on 24 February 2016. Slovenia, Croatia, Serbia, Macedonia, Bulgaria, Kosovo, Albania, Bosnia and Montenegro as States directly on the main route or on an alternative route were invited to participate. Neither Greece, nor Turkey were asked to attend the conference, which led to massive criticism from Greece and was also seen as a negative signal vis-a-vis Turkey, the intended main cooperation partner of the EU. Neither Germany, at that time the main target country of persons transiting through Austria, nor representatives from the European Commission were invited to take part in the conference. The Ministers present at the Conference agreed on a Joint Declaration. A few days later, the domino effect already reached the Macedonian-Greek border, which was first partly (for a few days certain nationalities were allowed to cross) and then completely closed.

In the weeks following the decision about the envisaged cap, the numbers were lower than 80 persons a day. Meanwhile, statistics show a constant number of more than 80 applications (including applications for family reunification). Caps are not yet implemented. Applications for international protection are accepted and the applicants are admitted to the territory and the procedure. If the numbers remain stable, the amount planned for 2016 would already be reached in the middle of this year.

The fact that the Austrian legislation in force did not allow a limit of the acceptance of new applications underpinned the political intention. The predicted limit aimed at warning the neighbouring States that Austria could close the borders for applicants when the limits are reached. It was also a signal accompanying Austria’s demand for more solidarity in Europe. Austria was also confronted to the political reactions of the neighbouring States Hungary, Slovakia and the Czech Republic. It was the main transit country for prospective applicants for protection coming from Hungary who intended to continue to Germany, until Hungary decided to close its borders to Serbia. Since then, new arrivals from Hungary nearly stopped. In the opinion of the Austrian Government the measures implemented in these States perfectly demonstrated that a closure of the borders only leads to criticism from other States, but is in fact much easier to handle than to cope with high numbers of applicants.

Immediately after the announcement of the decision to introduce caps, it became clear that neither the wording, nor the legal basis of the intended measures was really agreed and that only vague plans existed how the goals could be implemented. It was only clear that the numbers should be reduced and steps should be taken in order to get a picture if and how such plans could find a legal basis. In order to create a legal basis for enforcing the caps, the Austrian Parliament adopted an amendment to the Asylum Act. This amendment provides for the possibility that the Government together with the Main Committee of the National Assembly may adopt a decree to limit the acceptance of applications or to adopt other emergency measures.

Expert opinion on “caps” and their conformity with EU Law

The Government decided also to ask for expert opinions. The two experts (Prof. Bernd-Christian Funk and Prof. Walter Obwexer) delivered their advisory opinions combined in one document on 29 March 2016. One part of the opinion refers to the question which legal parameters exist to base the intended measures on legal acts in conformity with Constitutional Law, the other one with European Union and Public International Law. The opinion is quite detailed. The conformity of the measures with EU Law is developed from mainly two arguments.

Article 20 of Dublin III Regulation

One argument concerns the interpretation of Article 20 (4) of the Dublin III Regulation. This provision stipulates that the determination shall be made by the Member State in whose territory the applicant is present. Based on an interpretation of this provision, the opinion concludes that the responsibility to start the determination procedure is solely linked to the place of application. Border controls, which prevent the entry of applicants would make the neighboring State (in the Austrian actual situation Italy or Slovenia) responsible for the conduct of the determination procedure. The expert concludes that this result is only achieved when border controls are carried out on the territory of the other State. The opinion acknowledges that Article 20 (4) Dublin III-Regulation was not designed for that purpose, the interpretation of the wording would however allow to allocate the responsibility to conduct the determination procedure to the neighbouring states.

It is clear that this provision was not adopted to allocate a responsibility for the determination based on a mere presence. According to the rules on the determination of the jurisdiction of a State, responsibility would already be given when a person is under Austrian jurisdiction, e.g. when an Austrian border guard controls the entry of a person even if that control takes place outside the country. Austrian jurisdiction would also create the responsibility to conduct the determination procedure.

In practice, Slovenia or Italy would then be responsible for conducting the determination procedure. The expert opinion does not refer to the relocation decisions, which do not allow a Dublin return to Italy as long as the decision is in force. According to Recital 23 of the Preamble, also the procedural steps, including the time limits laid down in Articles 21, 22 and 29 of the Dublin III Regulation are temporarily derogated. As Art. 20 is not explicitly mentioned, the conclusion may be that this provision is not temporarily derogated. This would however mean that the Austrian practice to reject applicants at the border would be possible, though it would contravene the object and purpose of the relocation decisions. The aim of these decisions is undoubtedly to reduce the pressure on the Italian asylum system.

Article 72 TFEU

This provision would – according to the expert opinion – also constitute a suitable legal basis for measures allowing a non-acceptance of further applications. As Austria received around 89.000 applications last year, a comparably high number in 2016 would significantly undermine Austrian security.

Art. 72 TFEU states that this “Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. According to the expert opinion, the reception capacities (housing, education, medical care, social care) are already exhausted. New arrivals could significantly threaten the functioning of State institutions. Thus measures to limit the numbers could be based on Art. 72 TFEU. The advisory opinion describes a scenario where even core State functions are threatened by the current asylum applicants in Austria. This is however far from reality. The current situation would not allow the adoption of emergency measures in the form of strictly limiting the number of applications.

Conclusion

There is neither a real threat for internal security, nor a necessity to adopt caps with regard to the maintenance of law and order. The experts’ opinion also admits that human rights provisions, especially the prohibition not to violate Article 3 ECHR, must also be guaranteed even in times of emergency. Every person under Austrian jurisdiction has indeed the right a decision is made by Austrian authorities in a procedure based on all procedural safeguards, including the availability of an effective remedy against a negative decision.

Furthermore, a closure of the borders for applicants for international protection would be an act contrary to the solidarity provisions in the TFEU. Article 80 TFEU especially demands cooperation in general and in times of increasing numbers of applicants and it does not allow the introduction of caps without a consultation with the affected States.