The Refugee Crisis and the Executive: On the Limits of Administrative Discretion in the Common European Asylum System
TL;DR: In this article, the authors analyze the reasons for, and limits of multilevel administrative discretion in the Common European Asylum System and argue that when a Member State exercises the right to assume responsibility in a sweeping manner, i.e. in hundreds of thousands of cases, it runs the risk of overstretching the legal limits of its discretionary powers.
Abstract: While the Dublin System was meant to create a clear and fair division of responsibilities for the examination of applications for international protection, the recent refugee crisis highlighted the extent to which normative aspirations and political realities can diverge. That said, the Dublin System does allow for a certain degree of flexibility: By exercising the discretionary right to assume responsibility under the so-called “sovereignty clause” of Article 17, paragraph 1 of the Dublin III Regulation, Member States can examine asylum applications even when they would not formally have jurisdiction for doing so according to the criteria established by the Dublin System. Germany has relied upon this right extensively during the refugee crisis. Against this backdrop, the following contribution analyzes the reasons for, and limits of, multilevel administrative discretion in the Common European Asylum System. It argues that when a Member State exercises the right to assume responsibility in a sweeping manner, i.e. in hundreds of thousands of cases, it runs the risk of overstretching the legal limits of its discretionary powers. National administrative bodies can only invoke the right to assume responsibility insofar as this does not amount to game-changing decisions by the executive or unilateral decision-making without transnational coordination – particularly when such decisions have severe transnational consequences.
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01 May 2018
TL;DR: The baseline study examines in particular the EU wide responses to the high influx of refugees, the hotspot approach, and the implementation and effectiveness of the Dublin system with regard to the determination of the responsible state for an asylum application.
Abstract: In 2015-2016, migration towards Europe has pressured on the EU asylum and migration systems, challenging the adequacy of the legal design of the Common European Asylum System (CEAS). This impact on the implementation of both the CEAS and national asylum systems in practice called theurther harmonisation into question. This baseline study provides a comprehensive overview of the commentaries and evaluations that were made on the functioning of the CEAS between January 2014 and December 2017. The baseline study examines in particular the EU wide responses to the high influx of refugees, the hotspot approach, and the implementation and effectiveness of the Dublin system with regard to the determination of the responsible state for an asylum application. Furthermore, this study provides an overview of the main comments and evaluations dealing with the Procedure Directive, the Qualification Directive, and the Reception Directive, also taking into account new proposals of the European Commission.
24 citations
TL;DR: In this article, the authors discuss the essence of EU fundamental rights under Article 2 TEU and the connection between essence and values in relation to mutual trust and federalism, as well as the condition of systemic deficiencies as a federal safeguard.
Abstract: Mutual trust – Essence of EU fundamental rights – Values under Article 2 TEU – Intrinsic link between essence and values – Federalism – LM judgment – Rule of law crisis in Poland – Right to fair trial – Judicial independence – Fundamental right to an independent tribunal – Prohibition on transfers – Obligation to presume compliance with fundamental rights – Condition of ‘systemic deficiencies’ as a federal safeguard – Area of Freedom, Security and Justice – European Arrest Warrant – Dublin system
11 citations
01 Jan 2018
TL;DR: In this paper, the impact of the European Convention Relating to the Status of Refugees, European Convention of Human Rights, and the EU Charter of Fundamental Rights on the Common European Asylum System (CEAS) is examined.
Abstract: In tackling the 2015 refugee influx into the European Union (EU), many problems related to the Common European Asylum System (CEAS) arose in dealing with the situation that is still unresolved. The questions posed include who needs international protection, should the member state of first entry bear the main responsibility for the asylum procedure, what are the legal obligations that the member states have toward asylum seekers and beneficiaries? With these questions in mind, this chapter not only will introduce CEAS but also will examine the impact that the Convention Relating to the Status of Refugees, the European Convention of Human Rights, and the EU Charter of Fundamental Rights have on them. In this context, significant recent rulings by the European Court of Human Rights and the Court of Justice of the European Union will also be analyzed. The chapter concludes with an outline of European integration policy and reflections on possible reforms.
2 citations
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01 Jun 2003
111 citations
Journal Article•
TL;DR: The concept of systemic deficiency in the rule of law has been proposed in this paper, where the authors argue that due to endemic corruption, weak institutional capacities, or insufficient resources at the administrative or judicial levels, some EU Member States present so grave deficiencies in guaranteeing the Rule of Law that their conformity with basic EU standards is seriously questioned.
Abstract: There is currently a widespread view that the EU is in crisis. This crisis is not only financial, but, most importantly, it touches upon the founding principles of the Union as set out in Article 2 TEU. Among them, a principle that has served as the cornerstone of European integration already from its early stages seems particularly threatened: the rule of law. Due to endemic corruption, weak institutional capacities, or insufficient resources at the administrative or judicial levels, some EU Member States present so grave deficiencies in guaranteeing the rule of law that their conformity with basic EU standards is seriously questioned. Although it is obvious that the EU cannot stay inactive in the face of such grave deficiencies, it remains unclear how potential responses fit with the overall EU constitutional framework. This article aims at contributing to this discussion by developing the concept of systemic deficiency in the rule of law.
73 citations
Journal Article•
TL;DR: In this paper, the Court of Justice of the United States of America has made a modest, although by no means trivial, move towards becoming the Constitutional Court of Europe, particularly in the N.S. case, where it rejected the guiding rule of automatic reliance on the principle of mutual confidence.
Abstract: It is suggested in this paper that the Court of Justice has made a modest, although by no means a trivial, move towards becoming the Constitutional Court of Europe, particularly in the N.S. case, where it rejected the Union's guiding rule of automatic reliance on the principle of mutual confidence. The paper proposes that this represents a test, labelledthe "horizontal Solange" test and which is composed of two tiers. The first, substantive, tier forms the Solange component. Cooperation between Member States will be maintained as long as all the Member States systematically adhere to core European fundamental rights. If the evidence shows that a systemic violation of core European fundamental rights took place in a Member State, other Member States should suspend their cooperation. The second, institutional, tier forms the "horizontal" component. The national courts are entrusted with the task of reviewing whether the other Member States abide by the European standard of protection of fundamental rights.The exact substantive contours of the test are examined alongside the test's possible implications for related fields of law of the European legal order. The test also allows the ECJ to interweave the different European fundamental rights systems into a fully integrated judicial dialogical network, and to steer the exact direction in which European legislation should advance.
33 citations
Posted Content•
TL;DR: In this paper, the authors discuss the concept of solidarity in the Dublin System for determining the State responsible for examining an application for asylum in the EU, and discuss how solidarity can be used to compensate an unequal distribution of costs and benefits caused by measures taken on the path to furthering supranational integration.
Abstract: The present paper discusses the concept of solidarity in the Dublin System for determining the State responsible for examining an application for asylum in the EU. This case is especially critical because the Dublin System has given rise to sharp conflicts pertaining to interstate solidarity. It is only at first glance paradoxical that the non-hierarchical, cooperative idea of mutual solidarity is being called upon just at the moment that EU Member States have integrated themselves even further into the hierarchical framework of a quasi-federal structure with the Treaty of Lisbon. Solidarity in EU law aims to compensate an unequal distribution of costs and benefits caused by measures taken on the path to furthering supranational integration. The increasing demand for interstate solidarity is a natural corollary of the process of transitioning to a federation or, as Habermas put it, the anticipation of new political forms of integration.
16 citations