Par Rostane Mehdi, Directeur de l’Institut d’études politiques d’Aix-en-Provence

L’excellent billet publié par notre partenaire français, le GDR sur le droit de l’espace de liberté, de sécurité et de justiceà propos d’un arrêt de la CJUE aussi important qu’étonnant ne concerne certes pas les questions d’immigration et d’asile, mais il s’inscrit parfaitement dans le débat sur le thème du “passivisme judiciaire” lancé lors de notre dernière conférence annuelle.

Les rapports de systèmes ont souvent été inscrits, par la doctrine, dans le registre sémantique de la polémologie ou de l’art militaire. Il convient, pourtant, de garder à l’esprit que les interactions entre ordres juridiques sont passées au filtre d’une approche faisant de la pacification des relations intra-européennes une fin politique et du juge l’un des instruments de celle-ci. Pour autant, nous accepterons, pour les besoins de la cause, de filer à notre tour la métaphore guerrière.

De toutes les manœuvres qu’une armée en campagne peut conduire, la retraite est probablement l’une des plus délicates à exécuter. L’histoire enseigne qu’elle doit être parfaitement maîtrisée au risque de se transformer en débâcle. Or, c’est bien la question que pose l’arrêt rendu le 5 décembre 2017, dans l’affaire C 42/17, M.A.S. En effet, interrogée sur les conséquences à tirer de sa décision Taricco, la Cour y opère un repli sur une position dont on peine à imaginer qu’elle fût « sûre et préparée à l’avance ». Continue reading »

By Achilles Skordas, Professor of International Law, University of Copenhagen

The discussion on the restrictive migration management policies of the European Union (EU) and its Member States (MS) has so far focused on the potential violation of the primary rules of international law that determine the conduct of subjects of international law. The question of applicability of the secondary rules of international responsibility that provide for the consequences of the commitment of a wrongful act has attracted less attention. The main question in the current context is whether the cooperation of the EU and its MS with the Libyan coastguard and militias with the view of stemming irregular migration flows to Europe generates international responsibility for the above actors. More specifically, it is asked whether there is an autonomous basis in the law of international responsibility for holding the EU and its the MS responsible for the violations of human rights occurring in Libya, even if they do not exercise directly jurisdiction over migrants. Three aspects of this theme will be developed here: first, the nature and scope of the cooperation of the EU and its MS, in particular Italy, with the Libyan authorities, coastguard and militias in view of restricting the access of migrants to the EU; second, the extent of human rights violations of migrants in Libya; and third, the alleged complicity and responsibility of the EU and MS for the violations of these rights. Continue reading »

By Lilian Tsourdi, Departmental Lecturer in International Human Rights and Refugee Law, University of Oxford, Refugee Studies Centre

Practical cooperation has passed from the margins to the center of the migration and asylum policies. The operationalisation of the hotspot approach to migration management points to the emergence of an increasingly integrated European administration. We are witnessing patterns of joint implementation, with experts deployed by EU AFSJ agencies involved in search and rescue operations, the registration and referral stages, as well as in the processing of asylum claims. However, less attention has been dedicated to a parallel development, that of the expansion of the mandate of EU JHA agencies, and specifically the revamped FRONTEX and EASO agencies, to include monitoring-like functions, as well as functions which have the potential to steer policy implementation. This creates obvious tensions with the agencies’ internal governance structures which are largely intergovernmental. In this contribution, I first outline some of the novel (envisaged) functions, while critically assessing the challenge of independence. I then open the question whether social accountability arrangements could act as a counterbalance. This fully sets the scene for the debate between academics, agency and civil society representatives, set to take place on the 1st February as part of a dedicated workshop in the framework of the 2018 Odysseus Academic Network Policy conference. Continue reading »

By Iris Goldner Lang,* Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue, University of Zagreb.

Unlike “judicial activism”, the term “judicial passivism” has not been used in relation to EU law. In order to understand its meaning, it is necessary to briefly address and define the term “judicial activism”.

In EU law, judicial activism is most often understood as cases when the judiciary oversteps its judicial powers. The problem with this definition is that the delimitation of the CJEU’s powers often lies in the eye of the beholder. In other words, a case which one person might define as an example of the Court transgressing its powers (activism) might be seen by somebody else as an example of the Court staying within its boundaries, and the other way round. The perception of the existence or non-existence of judicial activism would partly depend on the ideology, beliefs and the background of the person you ask. It is also difficult, if not impossible, to tear the case away from its political and social setting. If we start from the premise that a judge is homo politicus and that he/she does not decide a case in a vacuum, every case is bound to carry a policy, social and political message. Continue reading »

By Philippe DE BRUYCKER, ULB & Odysseus Coordinator

The blog post below critically exposes the main themes of our next annual conference that will take place on Thursday 1 February 2018 in Brussels. This event is organised in the framework of the OMNIA Project with the support of the Jean Monnet Networks under the Erasmus+ Programme of the EU.

2017 has been marked by several rulings about crucial questions related to the European migration and asylum policies. The Court of Justice was called to rule on the most politically sensitive issues and delivered very controversial answers. The Odysseus Network decided therefore that its annual conference will focus on “Conflict and Compromise between Law and Politics in EU Migration and Asylum Policies”. The six workshops organised in the framework of the conference will tackle key legal, policy and operational challenges in relation with Court rulings around three streams. Continue reading »

By Paula García Andrade, Universidad Pontificia Comillas ICAI-ICADE (Madrid)

The decision in cases T-192/16, T-193/16 and T-257/16, NF, NG and NM v European Council) where the General Court considered that it is not competent to rule about the action for annulment brought by several asylum seekers against the EU-Turkey Statement of 18 March 2016 is well known. People often get shocked by the Court’s decision considering that it did not dare ruling on this burning issue when it affirmed that the European Council did not adopt the statement with Turkey. But there is much more than the question of the authorship behind that case raising the overall issue of the distribution of competences between the EU and its Member States (1) with the risk for the CJEU to contradict one of its fundamental decisions about the external powers of the EU in the ERTA case. This issue is also linked to the external representation of the EU, whose implications can also be examined in the current negotiations of the Global compacts on migration and on refugees under the auspices of the United Nations (2). Continue reading »