Salvo Nicolosi (RENFORCE - Utrecht Centre for Regulation and Enforcement in Europe)
While a new European Union legislature is about to start on 2 July 2019, it is not certain to what extent the new European Parliament will inherit and continue the work of the previous one in one of the most delicate areas under reform, such as the Common European Asylum System (CEAS). The whole reform package has been put into “unfinished business,” according to rule 229 of the Rules of Procedures of the European Parliament. This means that at the end of the legislature all dossiers that have not been voted at the plenary shall be deemed to have lapsed. While arguing that, despite some points of concerns, the European Parliament made a significant contribution especially as regards the reform of the Dublin Regulation and that departing from such a position will be a misstep for the new European Parliament, the evolving role of the European Parliament in the past and current negotiations for the CEAS will be considered.
The State of Play of the Negotiations
In an attempt to tackle the structural shortcomings of the CEAS, the European Commission adopted two packages of proposals for the future CEAS regulatory framework (Nicolosi, 2019). A first package adopted on 4 May 2016 comprises the proposals to recast the Dublin Regulation (COM/2016/270), Eurodac Regulation (COM/2016/272) and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will replace the current European Asylum Support Office (EASO) (COM /2016/271). A second package was adopted on 13 July 2016 and includes a proposal for a Regulation repealing the Qualification Directive (COM/2016/466), a proposal for a Regulation repealing the Procedure Directive (COM/2016/467), a proposal to recast the Reception Directive (COM/2016/465) and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468). Provisional compromises have been concluded between the Council’s Presidency and the European Parliament’s rapporteurs on five of the seven proposals but, at the end of the eighth legislature no progress was registered, and the reform is in a stalemate, especially owing to the difficulties to find an agreement on the reform of the Dublin Regulation. Nonetheless, while the Council has not yet managed to come up with a concerted approach, the European Parliament submitted “the boldest official proposal to amend the Dublin system to-date” (Maiani, 2017): the Wikström Report.
The European Parliament as a Forward-Looking Negotiator
Since the entry into force of the Lisbon treaty, the European Parliament has played a crucial role as a co-legislator in the area of asylum. Several authors have welcomed in general such an expansion of powers (Monar, 2011) for an institution that for many years during the European integration process has acted as a consultative body. While its contribution was rather limited to the adoption of the first generation of legislative measures in the field of asylum (1999-2005), which were adopted by unanimity by the Council on the basis of Article 63 of the Treaty on the European Community, the European Parliament distinguished itself as a strategic negotiator and forward-looking legislator during the reform that resulted in the second generation of EU asylum legislation (2008-2013).
In particular, before the end of the sixth term, in May 2009 the Parliament strategically decided to finalise its first reading position at the plenary to leave its imprint on the follow-up during the next legislative term. As has been highlighted (van de Peer, 2016: 57), it was rather exceptional to adopt first reading positions without trying to negotiate a first reading agreement with the Council, as it has been doing during the current phase of reform, in which the LIBE Committee has been seeking to pre-agree a text with the Council before formally adopting its first reading position at the plenary. Moreover, as regards the Dublin Regulation, the European Parliament had already called for a new legislative proposal to put in place by the end of 2011 to replace the provisions on the suspension of transfers proposed by the Commission (COM/2008/820, Art. 31) when a Member State was faced “with a particularly urgent situation which places an exceptionally heavy burden on its reception capacities” and suggesting the adoption of “legally binding instruments to ensure greater solidarity between Member States” (EP-PE_TC1-COD(2008)0243, Recital 27), including a relocation mechanism for the benefit of Member States in situations of emergency (Ibid, Art. 32 (2) 11 b).
…Campaigning for Horizontal, Vertical and Reciprocal Solidarity
This emphasis on solidarity is even more visible in the amendments to the current European Commission’s proposal to recast the Dublin Regulation. Departing from the Commission’s proposal (COM/2016/270), which has designed a model of solidarity based on emergency-driven relocations, the Wikström Report deserves the credit of adding another dimension of solidarity to the horizontal and inter-State one, which has been under consideration and abundantly discussed (inter alia Tsourdi, 2017).
Such a new dimension of solidarity, which can be considered vertical, aims to turn the Dublin system into a model which is not only fair to the Member States but also to the asylum seekers. In an attempt to redesign the allocation criteria under the Dublin mechanism, the Wikström Report proposes a relocation mechanism that is supposed to work permanently with a focus on asylum seekers’ genuine links. These include family ties but also previous legal residence or educational diplomas.
Accordingly, the Member State of first arrival has the duty to register the applicants, filter out those representing a risk for security or whose application is manifestly unfounded and determine the transfer of the other applicants in line with any relevant genuine link. On the contrary, if no relevant link is available, applicants will be relocated though the automatic allocation mechanism to one of the four Member States which have received the lowest number of applicants in relation to their fair share. The fair share is calculated on the basis of the GDP and the population to ensure that larger and wealthier countries will have a larger share. For the first time applicants will be given the option to choose among the four less burdened Member States. Also, another example of vertical solidarity refers to the possible group transfer of a maximum of 30 applicants travelling together. As has been emphasised, “the logic of these amendments is to encourage persons to apply in the first State of arrival by offering the prospect of being transferred to a desirable destination” (Maiani, 2017). All transfers are to be operationalised by the future EU Asylum Agency within two weeks from the final transfer decision and the costs should be borne on the general budget of the EU.
Ultimately, in order to ensure reciprocal solidarity, instead of a solidarity fee, as proposed by the Commission, the European Parliament proposed that, if a Member State does not fulfil its obligations of registration or participation in the allocation mechanism, it shall not be permitted to use EU funds to finance the return of third-country nationals to third countries.
A too Ambitious Reform for a still Weak Legislator?
The European Parliament has admittedly distinguished itself as being “revolutionary” in suggesting for the first time the redesign of the Dublin Regulation’s criteria. The amendments contained in the Wikström Report constitute a valuable stepping stone from which the future negotiations can resume. On the basis of Rule 229, the new Parliament’s Conference of Presidents decides on whether to resume or continue the consideration of unfinished legislative proposals. While the practice shows that the European Parliament usually resumes the pending dossiers, the question still remains how effective it is as a co-legislator. The former negotiations for the CEAS show the political unwillingness of the Member States to overhaul the Dublin system. During the adoption of the second phase legislation, Member States were very reluctant in approaching the European Parliament as a co-legislator, especially as regards the reform of Dublin. Still, the current reform lays in stalemate, because all proposals to depart from the current system of responsibility allocation lack the necessary support and politically cannot reach consensus within the Council. This is also reflected in the dramatic emphasis on externalization (EUCO, 2018).
Two general recommendations can be therefore sketched for the future European Parliament. First, the Wikström Report is a valuable stepping stone for the next round of negotiations, but improvements are necessary because, as has been stressed, it designs a system which is far from being practically feasible (Maiani, 2017). This is in particular due to the fact that the permanent relocation will determine a massive number of transfers with the risk that a misfunctioning in their smooth operationalisation can create undesirable deadlocks. It has been suggested renouncing this ambition of large-scale transfers and establishing responsibilities entirely on genuine links (Maiani, 2017). These are remarkable inputs, but perhaps, as a second recommendation, applicants’ choices can be better weighed with a more principled approach to the integration potential in the host society, especially in terms professional life and social inclusion. This means that transfers can be arranged based on the specific needs Member States might have in their labour market. All in all, what refugee law requires is empowerment: allowing refugees to start a new life in dignity.
Barnard & Peers: chapter 26
JHA4: chapter II:5
Photo credit: euractiv.com