4.2.1 The EU-Turkey Statement

The Court of Justice was asked to annul the 2016 EU-Turkey statement.Footnote ⁹ The court developed a complicated argumentation in order to reach the conclusion that the European Union is not one of the parties to the agreement, but that it was concluded between the 28 member states of the EU and Turkey.Footnote ¹⁰ The Court based this on the wording of the EU-Turkey statement. The judgment is at odds with the so-called ERTA doctrine in a quite evident manner.Footnote ¹¹ This doctrine, codified in Article 3(2) TFEU, holds that whether a decision is a decision of the EU or of the Member States is governed by European law. Contrary to what the Court argues in this case, the label that the decision itself provides is not decisive. The ERTA doctrine concerns exactly the situation at hand – ministers of all EU Member States meet – but do they meet as the council (thus representing the European Union) or as representatives of the Member States? Decisive is not the label, but whether the decision implements a common policy; whether it deals with a matter falling within EU competence; whether it has definite legal effects on a common policy. The EU-Turkey Statement has legal effects (if only because it creates considerable tension with European and international asylum law) concerning a common policy (rules on asylum and migration policy, visa policy) and therefore (in the terms of the ERTA judgment) “the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules”.Footnote ¹²

Because the Court ruled that the EU was not a party to the EU-Turkey statement, it also excluded the possibility of prejudicial questions by domestic courts about the statement. An internal appeal against the judgment in the EU-Turkey statement case was lodged, but this was dismissed as being inadmissible because the Court found the appeal grounds incomprehensible.Footnote ¹³ Be that as it may, it allowed the Court to leave intact an evidently problematic judgment and allowed itself not to have to pass judgment on the compatibility of the EU-Turkey statement with EU constitutional law, including the Charter on Fundamental Rights.

4.2.2 Humanitarian Visa

In October 2016, a Christian family from Aleppo (then a war zone) applied for a short-stay visa with limited territorial validity at the Belgian Embassy in Beirut, and returned to Syria the day after. They had indicated that they intended to apply for asylum in Belgium, and explained that they were forced to return to Syria by the fact that they were not allowed to register as refugees in Lebanon, and were not sufficiently prosperous to be able to maintain themselves in Lebanon without such registration. The EU Court of Justice ruled that an application for a visa with the aim of applying for asylum is not an application for a visa for a stay of no longer than three months (X & X v Belgium, case C-638/16). Therefore, the issue was not covered by the Visa Code, which only governs short-stay visas. As the issue of visas for a stay longer than three months has not been harmonised, it was not governed by European law, but only by national (in this case Belgian) law. As a consequence, the EU Charter of Fundamental Rights does not apply. Therefore, the court did not have competence to rule on the substantive issue of whether European states may be under an obligation to issue a visa in a situation such as that of the Syrian family. The reasoning of the court is formal, but compelling. Remarkably, the Advocate General in this case had an equally compelling formal reasoning with the opposite outcome. He argued that the applicants had applied for a short-stay visa. One of the grounds for denying such a visa was the fact that there were doubts as to whether the applicant would leave after the period for which the visa had been granted. However, it was possible to grant a visa despite such doubts in humanitarian cases by making an exception to this ground for refusal. In addition, the Advocate General argued that the applicants intended to stay for no longer than three months in Belgium on the basis of their visa; after that, their stay would have been based on their status as asylum seekers. Therefore, the procedure really and actually concerned a short-stay visa. In this way, the Advocate General found the EU Visa Code and consequently the Charter of Fundamental Rights to be applicable. The Advocate General then argued that EU Member States were under an obligation to issue a visa if there are substantial grounds to believe that the refusal thereof would have as a direct consequence that the applicant would be exposed to inhuman or degrading treatment, by depriving that national of a legal route to exercise his right to seek international protection in that Member State. The relevant impending inhuman or degrading treatment consists, in the analysis of the Advocate General, both of the treatment the applicant may be exposed to in the country of origin and in the risks inherent in an irregular trip to a country of asylum to which a refusal of a visa would expose the applicants. As Rijpma has observed, the Court’s decision not to adopt the position favoured by the Advocate General was motivated by its wish not to intervene in a highly sensitive area, and it was allowed to make this choice by the ambiguity of the notion of the scope of EU law.Footnote ¹⁴

A similar case was brought before the European Court of Human Rights.Footnote ¹⁵ Again during the siege of Aleppo, a Syrian family from that city applied for a visa at the Belgian embassy in Beirut, with a view to applying for asylum in Belgium. They argued that the refusal to issue that visa exposed them to inhuman treatment in the sense of Article 3 ECHR. The crux of the case was whether Belgium had exercised jurisdiction in the sense of Article 1 ECHR over the Syrian family. The Court has ruled that jurisdiction is primarily a territorial concept. Exceptionally, states can exercise extraterritorial jurisdiction through acts performed or producing effects outside its territory. One example of this is exercising effective control over territory or persons. Another, and one that is highly relevant for this case, is actions or omissions of its diplomatic or consular officials. Until the decision of May 2020, the Court had held that such acts constituted the exercise of jurisdiction if they were committed in an official capacity. In its new decision, the Court added to its summary of case law that acts or omissions of diplomatic or consular officials were an exercise of jurisdiction if they concern “that State’s nationals or their property”.Footnote ¹⁶ In one case, jurisdiction had been exercised over non-nationals (in the Danish embassy in east Berlin), but in that case the non-nationals were physically removed from the embassy’s premises.Footnote ¹⁷ Whereas previous restatements of the Court’s case law on diplomatic or consular officials had covered nationals and non-nationals of the State in question, the Court in M.N. and Others v. Belgium restated its case law as being about diplomatic and consular acts vis-à-vis own nationals, and physical acts vis-à-vis non-nationals. This allows the Court to assert that the case law about consular acts towards nationals and physical acts towards non-nationals is not applicable to the given case, as it is about consular acts towards non-nationals.Footnote ¹⁸ Hence, the Court is not bound by precedent holding that consular acts constitute an exercise of jurisdiction. The Court the ruled that it was not possible to trigger, unilaterally, jurisdiction by addressing a request to a state with whom the applicants had no prior connection, and without that state having chosen to be imposed a treaty obligation.Footnote ¹⁹ The alternative, the Court adds, would amount to a near-universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore create an unlimited obligation on states to allow entry to individuals who might be at risk of inhuman treatment.Footnote ²⁰ This would “have the effect of negating the well-established principle of public international law (…) according to which the States Parties, subject to their treaty obligations, including the Convention, have the right to control the entry, residence and expulsion of aliens”Footnote ²¹ – an ironic statement because the Court is in the process of concluding that the entry of these aliens is precisely not subject to any treaty obligations.

4.2.3 Border Detention

Another legal issue connected to the 2015 “crisis” was also decided by both courts. It concerned the Röske “transit zone” at the Hungarian–Serbian border. Asylum seekers who wanted to enter Hungary from Serbia were stopped at the Hungarian border, which is an EU external border. They applied for asylum, which had to be done from within the Röske “transit zone”, – a closed and guarded area that people could only enter or leave with permission and cooperation by the Hungarian authorities. In Ilias and Ahmed v. Hungary the Hungarian authorities removed the asylum seekers to Serbia without substantive examination of their asylum claims on the ground that Serbia was a safe third country. The European Court of Human Rights found the removal of two Bangladeshi asylum seekers to Serbia to be a violation of Article 3 ECHR,Footnote ²² because there was consistent general information that Serbia would send them onward to Macedonia, which would move them onward to Greece. Because return to Greece would constitute a violation of Article 3 ECHR,Footnote ²³ exposing asylum seekers to such return without substantive assessment of their asylum applications constituted a violation of the procedural aspect of Article 3.Footnote ²⁴ In this respect the Court followed its earlier case law,Footnote ²⁵ despite invoking the right of states “to control the entry, residence and expulsion of aliens” as well as “the challenge faced by the Hungarian authorities during the relevant period in 2015, when a very large number of foreigners were seeking international protection or passage to western Europe at Hungary’s borders”.Footnote ²⁶

However, it ruled that their factual situation did not amount to detention. This constituted a new turn in the Court’s case law. The Court had previously held that people who were held in an airport transit zone or in a reception centre on a Mediterranean island were being held in detention.Footnote ²⁷ In Ilias and Ahmed, however, in contrast to the Chamber judgment in the same case,Footnote ²⁸ the Grand Chamber held that holding people in a “transit zone” at a land border in this case did not constitute detention, despite the fact that the people held there were under the control of the Hungarian authorities,Footnote ²⁹ and despite the fact that “the size of the area and the manner in which it was controlled were such that the applicants’ freedom of movement was restricted to a very significant degree, in a manner similar to that characteristic of certain types of light-regime detention facilities”.Footnote ³⁰ It did so by distinguishing this situation from the cases it had ruled on previously.Footnote ³¹ It furthermore considered:

The reference to the right of Hungary to control its borders was repeated,Footnote ³³ as was the reference to “conditions of a mass influx” and the “ensuing very significant difficulties”.Footnote ³⁴ The main aspect that the Court referred to so as to find that the situation was not one of detention was that the two applicants entered Hungary at their own initiative,Footnote ³⁵ without being at a direct risk to life or health,Footnote ³⁶ and could return to Serbia voluntarilyFootnote ³⁷ without a direct threat to life or health.Footnote ³⁸ The Court did not find it decisive that they had no legal right to enter Serbia (and actually were returned to Serbia in circumvention of border control).Footnote ³⁹ Nor did it find the length of their confinement (twenty-three days) decisive because this length was not longer than necessary for examining their asylum claim.Footnote ⁴⁰ The Court consistently minimises these twenty-three days, by referring to “only”Footnote ⁴¹ twenty-three days or by calling the confinement “short”.Footnote ⁴² The decisive argument seems to be the voluntary nature of the applicants’ decision to enter Hungary from Serbia and their decision not to return to Serbia until they were eventually forced to do so by the Hungarian authorities.Footnote ⁴³ The main problem with this is that the Court itself has held that the asylum procedure in Serbia had such deficiencies that exposing people to it amounts to a violation of Article 3 ECHR. The idea that to prefer confinement over being exposed to a real risk of inhuman treatment is a matter of free choice, is Orwellian in the sense of being evidently cynical.

In a judgment given six months after the Grand Chamber’s Ilias and Ahmed judgment, the EU Court of Justice clearly distanced itself from the interpretation of the term detention of the Strasbourg Court.Footnote ⁴⁴ In a case concerning asylum seekers who were held in the same transit centre at Röszke it gave a complex definition to state the obvious: detention is “a coercive measure that deprives (a person, TS) of his or her freedom of movement and isolates him or her from the rest of the population, by requiring him or her to remain permanently within a restricted and closed perimeter”.Footnote ⁴⁵ It added that the fact that people “are free to leave the Röszke transit zone to travel to Serbia cannot call into question the assessment that the placing of those applicants in that transit zone cannot be distinguished from a regime of detention”.Footnote ⁴⁶ The EU Court of Justice’s refusal to go along with Strasbourg’s new exception signals that, when European case law is analysed through the lens of coloniality, one cannot assume that coloniality necessarily leads to a particular outcome. Like the Strasbourg Court, the Court of Justice was impressed by the “large numbers” arriving in Europe at the relevant time,Footnote ⁴⁷ but it found it possible to apply the normal concept of detention in that situation.

4.3.1 Island Detention Conditions

During the Arab Spring in 2011, nationals of North African states tried to reach Europe using smuggler boats. On 17 and 18 September 2011, three Tunisians in their twenties were intercepted by the Italian Coast Guard and detained on Lampedusa, a 20 km² island with some 5,000 inhabitants 200 kilometre south of Sicily and 110 kilometre east of Tunisia. On 20 September, a revolt broke out, the centre burnt down and the men were transferred to a sports complex. The next day, with some 1,800 others they escaped and demonstrated in the streets of Lampedusa. They were arrested, flown to Palermo, and detained on two ships. They were flown to Tunisia on 27 and 29 September 2011 on the basis of an agreement between Italy and Tunisia of 5 April 2011, the text of which remains secret.Footnote ⁴⁸ In accordance with its standard case law, the European Court of Human Rights in Khlaifia and others v. Italy held unanimously that the right to liberty had been violated because there had been no legal basis for the detention, the detainees had not been informed of the grounds for their detention and they had no access to court (Article 5 ECHR).Footnote ⁴⁹ It also held unanimously that they had not had access to an effective legal remedy (Article 13 ECHR).Footnote ⁵⁰ However, in contrast to the Chamber judgmentFootnote ⁵¹ the Grand Chamber held by a majority of sixteen to one that the applicants had not been subjected to collective expulsion (Article 4 Protocol 4 ECHR),Footnote ⁵² and that they had not been subjected to inhuman or degrading treatment (Article 3 ECHR) during their detention on Lampedusa and on the ships.Footnote ⁵³

The difference between the Chamber and Grand Chamber judgments on the point of collective expulsion is of a rather factual nature. It turns around the issue of whether the decision-making process leading to the expulsion had or had not been sufficiently individualised. However, on the question whether the detention conditions on Lampedusa constituted inhuman or degrading treatment (hereafter for stylistic reasons: inhuman treatment), the Grand Chamber takes a new turn. According to long-standing case law, the Court uses two principles in assessing whether a treatment is to be considered as inhuman. On the one hand, the prohibition of inhuman treatment is absolute and does not allow for derogation under any circumstances. On the other hand, however, treatment must reach a minimum level of severity if it is to be characterised as inhuman treatment, and the assessment of that level “is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim”. The Court also takes other factors into consideration, in particular the purpose and context of the treatment, as well as whether the individual is in a vulnerable situation.Footnote ⁵⁴ The Court has developed detailed case law on the question when detention conditions amount to inhuman treatment. It uses a weighty but rebuttable presumption that a violation of Article 3 has occurred when a detainee has a personal space of less than three square metre, which is below the four square metre norm of the Committee for the Prevention of Torture. Other relevant elements are the availability of toilets and the hygienic situation.Footnote ⁵⁵

The Chamber judgment cites a report of a Special Commission of the Italian Senate, which points out that a thirty square metre room in the Lampedusa detention centre was supposed to accommodate twelve persons (2.5 square metre per person) but in fact accommodated up to twenty-five people (1.2 square metre per person). Toilets and showers had no privacy, there were no taps, and the smell from the toilets was pervasive.Footnote ⁵⁶ The Grand Chamber, however, begins by taking into account the context in which the events had taken place (one of the factors to be taken into consideration to assess whether the situation reaches the minimum level of severity, see above), and in passing accepts the qualification of this as a context of humanitarian emergency.Footnote ⁵⁷ More specifically, it held that “(t)he arrival en masse of North Africa migrants undoubtedly created organisational, logistical and structural difficulties for the Italian authorities”.Footnote ⁵⁸ On the actual conditions, the Court stated: “Admittedly, as noted by the Chamber, the accommodation capacity available in Lampedusa was both insufficient to receive such a large number of new arrivals and ill-suited to stays of several days.” But it then goes on to note that the revolt (which in the Court’s words included protest marches, clashes with the local community, and acts of self-harm and vandalism) “contributed to exacerbating the existing difficulties and creating a climate of heightened tension”. This culminates in the following paragraph:Footnote ⁵⁹

The Court then turned to the situation in the Lampedusa detention centre. It found the report of the Special Commission of the Italian Senate irrelevant because it dates from 2009, refers to a report dating from four months before Khlaifia was detainedFootnote ⁶⁰ and ignores a report of Amnesty International from the same period that gives similar facts as the Italian Senate Committee two years earlier.Footnote ⁶¹ After this, the Court did not mention the hygienic situation anymore. On the “alleged overcrowding” it pointed out that the government had given conflicting statements about the capacity of the detention centre as well as about the number of inmates present at the relevant moment. The Court concluded from this that the capacity of the detention facility must have been exceeded by fifteen per cent to seventy-five per cent. It did not mention that the 2.5 sq metre per person which inmates would have had if there had been no overcrowding (above) was already below the minimum established in the Court’s case law. Instead, it pointed out that inmates could move around within the detention centre, make phone calls, make purchases, and could contact humanitarian organizations and lawyers. Furthermore, it pointed out that although Khlaifia and his fellow applicants had been rescued at sea, they were not asylum seekers and were not elderly nor minors, and therefore they were not vulnerable persons. Their detention lasted merely three or four days.Footnote ⁶² The Court pointed to other case law where short term detention had not been held to be a violation of Article 3 despite problematic conditions, and found that the minimum level of severity had not been reached.Footnote ⁶³

The Court has held in previous cases that serious socio-economic problems cannot justify detention conditions that fall below the threshold of Article 3 ECHR.Footnote ⁶⁴ Nonetheless, the new logic of the Khlaifia judgment has been applied to the appalling detention conditions on the Greek Islands since then.Footnote ⁶⁵ It has, however, not been applied in a case on migrant detention conditions in a Greek police cell in February 2016 a violation of Article 3 ECHR, where the Court did not refer to the challenges the Greek authorities were facing.Footnote ⁶⁶ Like the Court of Justice judgment on the Rözske detention centre, this is another indication that, even if the case law of the European courts has a colonial structure, this does not determine the outcomes. I will return to this in the concluding paragraph of this chapter.

4.3.2 The Spanish Exclaves

Another example of application of the Convention “with due regard to local circumstances” is the case about the Spanish exclaves. A Grand Chamber judgment of the European Court of Human Rights addressed the immediate return of two Malian and Ivoirian nationals by Spain after they had climbed the fence between Morocco and Spain in Melilla.Footnote ⁶⁷ The Chamber in N.D. and N.T. v. Spain ruled that their return was not in violation of Article 3 ECHR, an issue not under review by the Grand Chamber. The Chamber did, however, conclude that their return as part of a group without individual decision or examination had been a violation of the prohibition of collective expulsion in the sense of Article 4 Protocol 4 ECHR. In agreement with the Chamber, the Grand Chamber found that the case fell within Spain’s jurisdiction because Spanish state agents had forced the men to leave Spanish territory,Footnote ⁶⁸ and it also accepted that their removal constituted an expulsion.Footnote ⁶⁹ Contrary to the findings by the Chamber, however, the Grand Chamber did not consider that the expulsion had been a collective one, despite the absence of individual examination and decision making.Footnote ⁷⁰ The Grand Chamber stated, in conformity with consistent case law, that

By way of innovation, it then stated that states “may in principle put arrangements in place at their borders designed to allow access to their national territory only to persons who fulfil the relevant legal requirements”,Footnote ⁷² and thus assimilated the right to control borders in the manner states prefer to the right of states to control migration. Subsequently, it emphasised “the challenges facing European States in terms of immigration control as a result of the economic crisis and recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East”.Footnote ⁷³ In a remarkable next move, the Grand Chamber then interpreted Article 4 Protocol 4 as having as its aim to maintain the possibility to make the claim that the return would violate the ConventionFootnote ⁷⁴ – which must mean: another Convention provision. This means that the prohibition of collective expulsion has little, and potentially no added value compared to the other provisions of the Convention. But is expulsion only a prohibited collective expulsion if, through the collective character of the expulsion, other Convention rights are violated too? If so, what is then the independent meaning of Article 4 Protocol 4 and its added value? The Court then stated that the applicants’ own conduct “is a relevant factor in assessing the protection to be afforded under Article 4 of Protocol 4”.Footnote ⁷⁵ In an earlier judgment, the Court held that the state was not responsible for the fact that there had been no individual examination in a situation where that had been made impossible by the lack of cooperation of a person with the procedure for conducting an individual examination.Footnote ⁷⁶ In the case of the Malian and Ivoirian men, however, the Court formulated the following exception: the prohibition of collective expulsion does not apply if people have genuine and effective access to a means of legal entry but do not make use of it, and instead cross a land border in an unauthorised manner, deliberately taking advantage of their large numbers and the use of force, and thereby create a clearly disruptive situation which is difficult to control and endangers public safety. This non-applicability of the prohibition of collective expulsion can – the Grand Chamber continued – be different if there were cogent reasons not to use this means of legal entry which are based on objective facts for which, in this case, Spain is responsible.Footnote ⁷⁷

In effect, the Court holds that the expulsion of a group of people without individual examination does not constitute a collective expulsion (despite standing case law finding precisely this covered by that notion) because, as a starting point, states have the right to control migration, and can guard their borders in the manner they prefer. As long as there is a possibility for people to access the territory of a state in a legal manner for the purpose of invoking the protection of the Convention, the expulsion of a group without individual examination is not collective because the members of that group have an alternative which does allow for individual assessment. This interpretation is given in light of “the challenges facing European States in terms of immigration control”, and it entails that at European land borders the notion of collective expulsion no longer has independent significance in comparison to the other provisions of the Convention.

In its reasoning in N.D. and N.T., the Grand Chamber mentioned two possibilities which the men had to access Spain legally. The first was to go to a border crossing point at the Spanish–Moroccan land border. The applicants, however, argued that due to brutalities from the side of Moroccan police forces it was very difficult or even impossible to approach the border crossing point As a response, the Grand Chamber observed that there is no evidence that suggested that Spain was responsible for this, and hence dismissed the applicants’ argument as irrelevant.Footnote ⁷⁸ This ultimately means that since the responsibility of Spain for the actions of Moroccan police forces is hard to establish, the Court accepts the ineffectivity of Article 4 Protocol 4 not in theory (the Court does mention the possibility of Spanish responsibility) but in practice as a consequence of evidentiary requirements. There is considerable evidence of the major impact of Spanish policies on Moroccan migration policy and practice, and requiring evidence of Spanish government involvement in the Moroccan practice of preventing particular people from approaching a particular border crossing point at a particular moment makes the theoretical norm the Court formulates ineffective in practice.

The second possibility that the Court held against the two men was the possibility to invoke the protection of the Convention at a Spanish embassy or consulate, for example, by applying for a visa.Footnote ⁷⁹ This reasoning is, however, incompatible with the Grand Chamber decision in M.N. and Others v. Belgium delivered three months after N.D. and N.T. v. Spain. It became clear from M.N. and Others v. Belgium that the refusal of a visa by an embassy or consulate abroad does not constitute an exercise of jurisdiction in the sense of Article 1 ECHR (supra). Therefore, in contrast to what the Court suggested in N.D. and N.T. v. Spain, approaching embassies or consulates is not a manner in which non-nationals can invoke the protection of the Convention.

Two months after N.D. and N.T. v. Spain, a Chamber judgment ruled that three Chechnyans rejected at the Polish-Byelorussian border were within the jurisdiction of Poland,Footnote ⁸⁰ and that a refusal to examine their asylum application constituted a violation of Article 3 ECHRFootnote ⁸¹ as well as a violation of the prohibition of collective expulsion.Footnote ⁸² Once again, this signals that, even if one accepts the colonial structure of the Court’s case law, this does not imply that the Court necessarily rules against migrants – to which we will return in the conclusion of this chapter.

4.4.1 The EU Relocation Decision

The use of emergency powers was at stake in the Court of Justice’s judgment in Slovak Republic and Hungary v. Council of the European Union. On 22 September 2015, the Council adopted a decision which obliged EU member states to cooperate in relocating asylum seekers from states like Italy, Greece and Hungary (which as a consequence of the Dublin Regulation are responsible for the examination of the large majority of asylum applications in Europe) to states with less asylum seekers. This Council Decision was based on Article 78(3) TFEU, which allows for provisional measures for the benefit of states that are confronted by an emergency situation characterised by a sudden influx of third country nationals. Slovakia and Hungary asked the Court of Justice of the EU to annul the Council Decision. In its judgment, the Court dismissed their actions.Footnote ⁸³ One of the issues the Court dealt with was whether the Council could use emergency competence under Article 78(3) TFEU. The Court rejected the argument that the influx was not sudden (Slovakia and Hungary argued the increase had been gradual). The Court pointed out that the Council had identified a sharp increase in a short period of time, in particular in July and August 2015, and concluded that, without making a manifest error of judgment, the Council could classify such an increase as “sudden” in the sense of Article 78(3) TFEU even though the increase was a continuation of a pre-existing pattern. In its reasoning, the Court of Justice also added that EU institutions such as the Council have broad discretion when they adopt measures in areas which entail choices, in particular of a political nature, and complex assessments.Footnote ⁸⁴

Besides that gradual increase, a second argument for annulment raised by Slovakia and Hungary was that the emergency in Greece was not caused by the influx, but by the serious shortcomings of the Greek asylum system.Footnote ⁸⁵ The Court admitted that there were structural shortcomings in Greece in terms of lack of reception capacity and of capacity to process asylum applications, all of which also contributed to the emergency situation. However, it held that the 2015 inflow of asylum seekers was on such a scale that it would have disrupted any asylum system, even one without structural weaknesses. Therefore, there was a sufficiently close link between the inflow and the emergency.Footnote ⁸⁶ The Court therefore accepted that the Council could use the competence under Article 78(3) TFEU to take provisional measures in an emergency situation.

To sum up, the Court held that the Council could use its emergency competence in a situation where policymakers saw the presence of a number of asylum seekers as an emergency, and refused to substantively address arguments holding that the situation did not (as Article 78(3) TFEU requires) arise suddenly, or that the emergency did not arise as a result of the sudden influx but because of pre-existing shortcomings in asylum policy.

4.4.2 “Waving Through” and Dublin

Two other Grand Chamber judgments address the basic rule of the Dublin Regulation that asylum applications have to be examined by the EU member state where the applicant has entered the territory of the EU.Footnote ⁸⁷ The cases concerned Afghan and Syrian asylum seekers who had entered the European Union via Turkey and Greece. They had then travelled onwards, and were transported by the Macedonian, Serbian, Croatian and Slovenian authorities northward, and subsequently applied for asylum in Austria. Under normal circumstances, Greece would have been the responsible member state because that was where they irregularly entered the EU (Article 13(1) Regulation 604/2013 (Dublin III)). However, the sub-standard nature of the Greek asylum system has made return of asylum seekers to Greece impossible since 2011.Footnote ⁸⁸ Therefore, it could be argued that Croatia was responsible on the basis of Article 13(1) Dublin III. At the core of these cases was the question whether the asylum applicants had entered Croatia irregularly.Footnote ⁸⁹ When they reached the Croatian border in November 2015 and February 2016 respectively, the Croatian authorities did not initiate an expulsion procedure, did not check whether they qualified for lawful entry into Croatia, but organised onward transport to Slovenia.Footnote ⁹⁰ Thus, they entered Croatia with de facto authorisation of the Croatian authorities, while this authorisation could not be labelled either as the issuance of a visa or as visa waived entry in the sense of Article 14 Dublin III. If their entry could be labelled as based on either a visa or a visa waived entry, this would lead to Croatian responsibility on the basis of Article 12 Dublin III. If, to the contrary, this was not considered as irregular entry in the sense of Article 13 Dublin III, then Dublin’s default rule (responsibility of the member state where the asylum application is lodged) was applicable (Article 3(2) juncto. 15 Dublin III). Underlying this very formal issue (can de facto authorised entry be considered as irregular entry?) was the question whether Dublin III had to be applied so as to concentrate the overwhelming majority of asylum seekers in peripheral member states, or whether the circumstances in 2015/2016 justified spreading the burden. In other words: would asylum seekers be allowed to set in motion a spontaneous intra-European solidarity mechanism, or were they to be referred back to the peripheral member states?

Advocate General Sharpston interpreted Article 13 Dublin III in such a manner that de facto authorised entry could not be labelled as unauthorised entry in the sense of Article 13 Dublin III. As a result, in her opinion the member state where an application had been lodged was responsible for the examination of asylum applications. While this is a strictly formal interpretation, throughout her opinion Sharpston emphasised that the situation at the time was “wholly exceptional”Footnote ⁹¹ and “unprecedented”.Footnote ⁹² The Court of Justice opted, however, for the opposite approach, which Sharpston labels as “the strict interpretation”.Footnote ⁹³ The Court used an a contrario construction of the term irregular crossing: any border crossing without fulfilling the conditions imposed by domestic legislation in the member states concerned must necessarily be considered irregular in the sense of Article 13 Dublin III.Footnote ⁹⁴ After having reached this conclusion it continued to refer to “the arrival of an unusually large number of third country nationals”,Footnote ⁹⁵ but merely to state that this “cannot affect the interpretation or application of Article 13(1) of the Dublin III Regulation”.Footnote ⁹⁶

Both the Advocate General and the Court use a formal approach to interpret the meaning of “irregular crossing” in Article 13 Dublin III. Undeniably, the bigger issue (should asylum seekers be contained in peripheral states, or should they be allowed to spread out over all member states if there are many of them?) plays a role, be it not in the formal reasoning. Sharpston uses the notion of exception and crisis liberally throughout her opinion, with the effect of naturalising the outcome she proposes: making an exception to the usual Dublin system of placing the responsibility for asylum seekers with peripheral states. The Court is quite prim in its language, and even when it refers to “unusual” or “exceptional” numbers it does so without finding this to be a good reason to deviate from the conclusion it has reached through its formal approach. This underlines how formal interpretation methods do not guarantee that there is only one possible outcome, and it underlines the importance of rhetorical tools to help make the outcome of a formal interpretation plausible.

5.3.1 Non-compliance

To begin with, Member States’ compliance has been an issue characterizing asylum and migration law harmonization for many years. Even prior to the migration crisis, Member States in the south were turning a blind eye towards secondary movement by asylum seekers.Footnote ¹⁹ Italy, Bulgaria, Hungary and Malta feature among the Member States with a history of non-compliance with the CEAS requirements.Footnote ²⁰ Greece has, however, been the primary culprit for defying the rules. The structural deficiencies of the Greek asylum system resulted in the cases of MSS v. Belgium and Greece and N. S. and others that recognized that Member States should not always carry returns under Dublin if this could expose asylum seekers to treatment contrary to their human rights.Footnote ²¹ At that point, the foundational principle of mutual trust as the basis of the European project and, relatedly, the CEAS, was undermined by the systemic flaws existing in one EU Member State. It is important to note, however, that the non-application of the Dublin mechanism took place from within the EU legal framework. Specifically, the non-application of the ordinary Dublin rules on responsibility was based on Article 3(2) of Dublin II, according to which Member States have a discretion to examine asylum claims even in cases where they were not responsible according to the Dublin rules.Footnote ²² Despite the non-compliance with the rules, no hard enforcement measures were adopted by the European Commission. Instead, the measures actually taken at the EU level focused on providing financial and administrative support.Footnote ²³

The financial and administrative support proved insufficient in the face of the 2015 arrivals. This is because the architecture of the EU legal order relies on the importance of patrolling the common external borders while allowing an internal area of free movement. The story as to how the rights of non-EU citizens have been sacrificed, so that the EU citizens benefit from free movement within the Union, is well known.Footnote ²⁴ In relation to the interplay between border control and the rights of asylum-seekers, the message transmitted by the EU to the Member States of South and Central Europe has prioritized the control of the external borders, often at the expense of asylum-seekers.Footnote ²⁵ This message has been part of the constitutional foundation of the EU, which has implied ‘collectivization of the protectionist side of the nation state’.Footnote ²⁶

During the 2015/2016 crisis the ‘collectivization of the protectionist side of the nation state’ created particular problems for the EU that protectionism would not normally create for the nation state. Faced with increased arrivals of migrants and refugees, the periphery EU Member States had two choices – (i) preventing entry at all costs or (ii) subverting the EU asylum system by not registering arrivals but rather letting people make their way to the North and the West. As to the first option, it implied a humanitarian crisis at the EU doorstep.Footnote ²⁷ It turned out to also be practically impossible to achieve.Footnote ²⁸ So, the second option prevailed; the periphery EU Member States bypassed their obligations and became corridors en route to the North and West. Subsequently, the failure of the Member States located at the external borders to offer substantive protection to asylum seekers and to guard the borders created a domino effect of non-compliance. Germany publicly declared that it would disregard Dublin and would accept all refugees that managed to enter its territory.Footnote ²⁹ As a consequence, ‘the “Western Balkans route” became an epitome for the partial collapse of the Dublin system and the EU’s border control policies’.Footnote ³⁰ The practical collapse of Schengen followed – in the autumn of 2015 border controls were reinstated far beyond the permissible time limits set by the Schengen Border Code.Footnote ³¹ Austria, Germany, Denmark, Sweden, Norway and France in practice nullified the Schengen acquis. These countries have exhausted all procedures and continued to impose border controls until May 2020 under the justification of public policy or public security threats due to migratory movements.

5.3.2 Enforcement Deficit

EU asylum and migration law is not only disregarded, it is also not enforced. The problem is not that there are no enforcement mechanisms. Rather there is often ‘no interest in activating them’.Footnote ³² Specifically, it does not seem like the Commission ever understood non-compliance as an issue capable of threatening the constitutional structure of EU Law. This cannot but have negative repercussions for the constitutional structure of EU Law.

In this context, it was not until 2015 that proceedings were first initiated against Member States located at the external EU borders (Greece, Croatia, Italy, Malta and Hungary) to ensure ‘full compliance’ with EU asylum law.Footnote ³³ This late reaction is hard to understand given that most of these countries defied EU law in a systemic manner. The procedures initiated by the Commission, which primarily concerned reception and registration upon entry, were closed with regard to nearly all the Member States as the Commission found improvements.Footnote ³⁴ The protracted situation of vulnerability experienced by asylum seekers on the ground testifies the opposite. At the same time, the Commission has not opened any infringement action in relation to the failures of Austria, Denmark, Sweden, Norway, Germany and France to comply with the Schengen Border Code. On the contrary, the Commission legitimizes these countries’ actions of non-compliance by proposing amendments to the Border Code that would render the period of exceptional reinstatement of border controls close to indefinite.Footnote ³⁵

The failure of the periphery Member States to effectively protect EU borders and deter secondary movements prompted a reaction by the Member States of the North to protect their national borders. In essence, Member States with no experience in asylum, having troubled administration and unable to provide for the material needs of asylum seekers, failed to comply with the CEAS. This failure by the Member States at the external border, to keep migrants far from the Member States of Central and Northern Europe legitimized the violation of the Schengen acquis and the reestablishment of border controls. The EU institutions were simply bystanders for some time. Then, they proceeded with half-hearted attempts to ensure that the first deviants (the Member States at the external borders) comply with EU law and with endorsement of the second deviants (the Member States in the West and North) by recognizing the legitimacy of their defiance and proposing amendments to fit their behaviour.

The only cases related to infringements of the CEAS that have reached the CJEU concern Poland, Hungary and the Czech Republic.Footnote ³⁶ These Member States were referred to the CJEU for non-compliance with the relocation decisions.Footnote ³⁷ Hungary was also referred to the CJEU for non-compliance with the Asylum Procedures Directive, the Return Directive and the Reception Conditions Directive, read in conjunction with the Charter of Fundamental Rights of the EU.Footnote ³⁸ These initiatives can be assessed as part of measures intended to address the broader rule of law problems in Hungary and Poland (such as independence of the judiciary, freedom of speech, etc.). This linkage of migration and asylum law with broader problems, has its positive sides – it might be an indication that the Commission perceives non-compliance with the CEAS as a problem that triggers more general concerns about the rule of law. At the same time, however, it might also indicate that the Commission is not that troubled by violations of EU migration and asylum law per se. If the latter is correct, the Commission does not seem to understand that such an approach threatens the EU internal rule of law. The EU is, after all, founded upon the centrality of law whose application and implementation guarantee not only rights for individuals (even if these happen to be migrants), but also the very viability of the integration project. When migration and asylum law function as legal areas characterized by compliance and enforcement deficit (by themselves even if not linked to broader rule of law problems), it can be doubted to what extent the EU can be considered as a constitutional order. Such doubts also arise since EU migration and asylum governance has been dominated by informalization, a feature that has become very prominent post 2015.

5.3.3 Informalization

By way of emergency framing, the EU response to the migration and asylum crisis was only in a very limited way characterized by measures adopted from within the Treaty framework. Instead, informal cooperation and the adoption of soft law was promoted for having the necessary expediency and flexibility to address the situation on the ground.Footnote ³⁹ As a result, informal cooperation has become the governance paradigm.Footnote ⁴⁰ The EU-Turkey agreement has been the prime example of this paradigm leading the way for a series of other informal instruments and creating spaces of liminal legality.Footnote ⁴¹ This agreement appeared in the form of a press release on the EU Council website and, according to the CJEU, it lies outside the scope of EU law.Footnote ⁴² Regardless of its legal nature which has been explored in detail,Footnote ⁴³ the agreement managed to contain new arrivals and it has been seen as a blueprint for the external dimension of EU asylum and migration law ever since.Footnote ⁴⁴ The move towards more informal cooperation in asylum and migration governance is also evident from the Migration Partnership Framework and the Joint Way Forward on Migration Issues between Afghanistan and the EU.Footnote ⁴⁵ In this context, Wessel has noted that ‘[t]he political reasons for expediency and pragmatism are understandable, but […], they do come at a price’.Footnote ⁴⁶ The price to pay, in this case, is the push of migration and asylum law out of the EU constitutional framework to a space of liminal legality with severe costs for the affected individuals and serious repercussions for the EU constitutional order as a whole.Footnote ⁴⁷

These repercussions manifest themselves in the following. First, informal agreements bypass the European Parliament and cannot be an object of ex ante judicial control as they are not adopted following the procedure of Article 218 TFEU.Footnote ⁴⁸ As a result, they lead to diminished protection for the affected individuals.Footnote ⁴⁹ As Vara has noted, ‘[t]he lack of jurisdiction of the Court of Justice might also mean that it is not allowed to protect the general principles of EU law and, in particular, institutional balance and sincere and loyal cooperation.’Footnote ⁵⁰

Another repercussion from the informalization has been identified by Vitiello: ‘by transposing EU principles, such as solidarity and shared responsibility, into international relations while de-contextualising them, the Union may trigger their transformation into “empty boxes” to be filled – on a case-by-case basis – with national voluntarism.’Footnote ⁵¹ Principles that are central to the EU architecture like solidarity, sincere cooperation and mutual trust are no longer seen as tied solely with intra-EU cooperation. Instead, they are transplanted to external action as a means of legitimizing informal cooperation with third countries as a central element of EU asylum and migration governance. This transplantation runs the real risk of diluting the legal significance of these principles in the EU legal order.Footnote ⁵² This has been the case with the binding principle of solidarity. Despite attempts to operationalize solidarity through the Relocation Decisions and the ensuing litigation,Footnote ⁵³ the binding nature of this principle seems to have been indeed diluted – in light of the narratives of the Commission and the proposals in the New Pact – to something that ‘must be given voluntarily’ and that ‘cannot be forced’.Footnote ⁵⁴ (see Section 5.4.2) .

5.4.1 Solidification of the Nexus between Protection and Migration Control

A noticeable aspect of the Pact is the solidification of the links between asylum, external border controls and return procedures. This will be chiefly achieved in the following ways. First, a ‘pre-entry screening’ is introduced,Footnote ⁵⁶ which builds on the idea of transit zones, such as the ones used by Hungary,Footnote ⁵⁷ and which aims at swift removals of the persons. Second, a ‘seamless link’ between asylum and return is forged by the extended use of border procedures.Footnote ⁵⁸ Third, the position of asylum seekers in the context of Dublin transfers, is weakened.Footnote ⁵⁹ We would like to focus on the latter since, as we will show, it has serious repercussions of a constitutional nature for the EU.

The New Pact retains the link between the responsibility for examining asylum needs and the protection of the external borders since the responsibility criteria based on first entry are preserved.Footnote ⁶⁰ This link is actually further strengthened by ‘reinforcing the responsibility of a given Member State for examining an application for international protection’ and by deleting some rules on cessation or shift of responsibility between Member States.Footnote ⁶¹ The objective is to ‘further incentivize persons to comply with the rules and apply in the first Member State of entry and hence limit unauthorized movements and increase the overall efficiency of the CEAS’.Footnote ⁶²

The Dublin mechanism has been based on coercion of asylum-seekers. The element is further strengthened since the ‘incentives’ to comply with the rules include punishing asylum seekers by limiting their right to material reception conditions to the Member State where the applicant is required to be present.Footnote ⁶³ Therefore, instead of creating incentives for better convergence and improvements regarding the Member States’ reception conditions, the burden is transferred in the form of an obligation upon the asylum seekers to prevent their unauthorized movements. Such an effect is also expected by the deletion of the rules allowing for cessation or shift of responsibility of the Member State based on the behaviour of the applicant – absconding or leaving the territory of the Member States.Footnote ⁶⁴ In addition, by introducing a system of take back notifications instead of the existing take back request system for cases where responsibility has already been established, the proposed Regulation on Asylum and Migration Management aims to simplify the take back procedure and to achieve more procedural efficiency.Footnote ⁶⁵ Such efficiency is also intended to be achieved by shortening the deadlines for making and replying to requests to take charge, for making take back notifications, as well for making and deciding on appeals.Footnote ⁶⁶

The limitations of procedural rights of asylum seekers subject to transfer decisions, also aim at increased system efficiency. The scope of the right to challenge transfer decisions is limited to an assessment as to whether the transfer would result in a real risk of inhuman or degrading treatment and whether the family related criteria have been correctly applied.Footnote ⁶⁷ A challenge to a transfer decision has to be submitted within two weeks and does not have an automatic suspensive effect. The individual can, however, request a court to suspend the transfer.

Member States have been pushing for limitations on judicial review in line with the floodgates argument, in order to limit the procedural safeguards for asylum seekers that have been established by the CJEU.Footnote ⁶⁸ However, access to court as the central tenet of the EU rule of law does not only presuppose the existence of remedies, but it is also related to the intensity of judicial review. It is precisely this kind of judicial scrutiny that guarantees not only the rights of asylum seekers, but also respect for the rule of law within the EU, as former AG Sharpston has argued.Footnote ⁶⁹ The proposed limitations as to the possibility of challenging Dublin transfers, reverse the case law of the CJEU regarding the right to an effective remedy,Footnote ⁷⁰ and represent a return to the status quo at the time of Dublin II.Footnote ⁷¹ As the Court has observed in Ghezelbach, Article 27(1) of Regulation No 604/2013, that which enshrines the right to an effective remedy, makes no reference to any limitation of the arguments that may be raised by the asylum seeker when availing himself/herself of that remedy.Footnote ⁷² The CJEU justified this procedural protection by noting that the Dublin Regulation governs not only relations between Member States, but also the relation between a Member State and an individual. The Court has also suggested that these two levels of relations are actually linked and inform each other. In Ghezelbach, the Court thus explained that:

Therefore, as noted in Ghezelbach, the idea behind the individual procedural guarantees in the Dublin system that lead to judicial scrutiny, is to ‘verify whether the criteria for determining responsibility laid down by the EU legislature have been applied correctly’. The correct application of these criteria is arguably also intended to serve the relation of mutual trust between the Member States. After all, since Member States purport to mutually trust each other, they have adopted these criteria and the assumption seems to be that Member States are interested in their correct application. If not, the whole Dublin system seems to be a farce: if the genuine objective of correct application of the rules is under question, then the objective appears to be evading responsibility at all costs and under any circumstances in disregard of the rules themselves. But then why have these rules and why keep on amending the rules that are not or are reluctantly complied with anyway? Are these rules simply for the sake of sustaining the perception that there is a common EU asylum system, when ultimately national interests govern and the system is only relevant when it selectively operates in harmony with the national interests? If this is the case, this situation does raise serious concerns as to the constitutional structures of the EU that are based on the rule of law.Footnote ⁷⁴ The reason is that law is adopted when it is questionable whether the relevant actors, the Member States and the affected individuals (i.e. the asylum seekers) genuinely intend to comply with the law that in any case might not be in their interests. The anomaly seems to be suggestive of the situation during the 2015/2016 crisis when the Dublin mechanism collapsed since both the Member States and the affected individuals had a joint interest not to apply the rules. If this anomaly is about to be normalized to some extent and in some form, there cannot be rule of law.

Procedural guarantees contribute to the objective of correct application of the Dublin criteria. If the latter is assumed to be the actual objective pursued by the Member State, then procedural guarantees actually strengthen mutual trust between them.Footnote ⁷⁵ It then logically follows that if in practice there is no mutual trust (rather mistrust and making sure that responsibility is avoided as much as possible by quick and efficient transfers), conferral of individual procedural rights to asylum seekers should be indeed avoided. The limitation of these procedural rights then appears understandable. It follows that the objective of efficiency, heavily relied upon in the proposed Regulation on Asylum and Migration Management, not only undermines the rule of law, as already mentioned above; it is also suggestive of the instability and vulnerability of mutual trust among Member States in practice.

5.4.2 Flexible Solidarity

Similarly, the proposed system of ‘flexible’ solidarity in the Regulation on Asylum and Migration Management reveals the absence of trust. The proposed Regulation on Asylum and Migration Management intends to regulate solidarity in two situations: disembarkations following search and rescue operations and migratory pressures. In the first situation, the Member States are offered the possibility to choose between the following solidarity measures: relocation, or relocation of only vulnerable persons, or ‘capacity-building measures in the field of asylum, reception and return, operational support and measures aimed at responding to migratory trends affecting the benefitting Member State through cooperation with third countries’.Footnote ⁷⁶ In a situation when a Member State is assessed to be under migratory pressure (i.e. the second situation), the assisting Member States have the option to help only through the above mentioned capacity-building measures. They also have the option to contribute only through return sponsorship.Footnote ⁷⁷ The latter means supporting the benefitting Member State to carry out the return of third-country nationals. Support in the form of return sponsorship is defined and regulated in the proposed regulation.Footnote ⁷⁸ In contrast, support in the form of capacity building is not concretized; it is therefore difficult to understand the concrete measures that it demands.

Overall, ‘flexible’ solidarity means that Member States might be relieved from the responsibility of relocating asylum seekers. The available options between relocation, return sponsorship and the vaguely defined ‘capacity building measures’, imply that Member States can trade their responsibilities in the area of asylum by helping with returns. The relief offered to Member States that do not want to relocate asylum seekers, is not necessarily offset by requiring them to contribute to the asylum policy (by, for example, funding reception capacities in other Member States). It can be rather offset by helping with returns or cooperating with third countries for preventing arrivals. This not only further strengthens the abovementioned synergies between asylum and return, but it also reflects the absence of an asylum policy that can be characterized as common to the Member States.

In sum, instead of attempting to achieve implementation of law and harmonization of protection offered on the ground, the new Pact and the paradigm of ‘flexible solidarity’ embodies conflicting elements and objectives and reflects the absence of a commonality and common policy. It seems to be intended to serve the interest of the Visegrad countries. This paradigm seems like a further turn towards common goals, as a method of international governance, rather than common rules that have been central to the development of the EU project. The scheme is not meant to apply equally to all the Member States, but it allows each to pick and choose what they want to do, with the Commission determining both what each Member State needs and how sufficient each Member State’s action is. This poses the risk of creating another area of differentiation in EU migration and asylum law, while at the same time negating predictability and legal certainty.Footnote ⁷⁹

5.4.3 Cooperation with Third States

As already noted in Section 5.3.3, legal certainty cannot exist when informalization is a governing paradigm. The continued domination of this paradigm clearly emerges from the New Pact, where migration policy is placed ‘at the heart of relations with third-country partners’.Footnote ⁸⁰ The component of ‘mutually-beneficial partnership and close cooperation with relevant third countries’ is set as a priority in the EU’s approach for addressing ‘the entirety of the migratory routes’.Footnote ⁸¹ In light of this priority, the proposal for a Regulation on Asylum and Migration Management envisions that the Commission and the Council shall take ‘appropriate actions’ with regard to third countries that do not cooperate sufficiently in the readmission of illegally staying third-country nationals.Footnote ⁸² In its communication on the New Pact on Migration and Asylum, the Commission identifies not only readmission, but also supporting developing countries that host refugees, helping third countries to manage irregular migration and human smuggling, and the development of legal pathways to Europe (e.g. resettlement),Footnote ⁸³ as key points in the EU relationship with third countries. The Commission’s document also indicates that this relationship is ‘first and foremost based on bilateral engagement’.Footnote ⁸⁴

Overall, the Pact maintains the historical link of migration and asylum policies with both the Area of Freedom, Security and Justice and the EU Common Foreign and Security Policy and Development Cooperation.Footnote ⁸⁵ This link between the constitutional Area of Freedom, Security and Justice and the intergovernmental area of Common Foreign and Security Policy, bears important ramifications. The adoption of measures related to the Area of Freedom, Security and Justice under the Common Foreign and Security Policy legal basis raises concerns in relation to the horizontal division of competences that is inherent in the constitutional structure of the Union and the division of powers between the EU and the Member States.Footnote ⁸⁶ The most pressing concern is the significant limitation of judicial guarantees. Measures adopted under a Common Foreign and Security Policy legal basis are not subject to full judicial review by the CJEU.Footnote ⁸⁷ In such a context, any procedural guarantee of individual protection is taken away. Individuals, whose rights might be violated in the context of Common Foreign Policy and Security Missions, may have recourse to other adjudicatory bodies, but they are not entitled to protection by the CJEU.Footnote ⁸⁸ This is important since it frames a setting where the EU legal order – founded as a sui generis, yet complete order of law – functions, in certain instances, as a loosely integrated intergovernmental setting with no accountability for the actions it undertakes.

What is more, the Pact maintains and strengthens the emphasis on use of soft-law measures that escape the rule of law and promote bilateralism. In this way, the concerns about judicial review and accountability, mentioned in Section 5.3.3, persist. They are even intensified by the normalization of informal cooperation with third countries as the core of EU external migration governance. In light of the assumptions underpinning the EU asylum and migration governance, as solidified in the New Pact, namely that asylum is abused by migrants coming from third countries, cooperation with these countries appears crucial for convincing them to fight the irregular migration of their own nationals (i.e. the migrants or the prospective migrants). It is thus necessary for the EU to present this fight as a shared concern and thus make third countries willing to cooperate. This is not an easy task. An additional complexity arises from the cooperation with third countries (such as Turkey and Libya), where, according to the current EU policy, migrants are to be contained.Footnote ⁸⁹ To sustain this cooperation, the EU needs to continue to project to third countries the normative value of the asylum-seekers’ right to protection, given that these countries host a substantial number of migrants and with its policy the EU is keen to ensure that these migrants do not leave their current hosts. If the projection by the EU of the normative value of asylum fails, the current EU strategy of engaging with third countries would collapse: the latter will have weak incentives to be hosts.

Finally, the emphasis on use of soft law as the primary method for outsourcing migration control to third countries, creates issues in relation to enforcement. The events that occurred at the Greece-Turkey border in March 2020 were revealing.Footnote ⁹⁰ They showed that governance through partnerships of contested legal nature, is always dependent on the will of both parties. Hence, when such third countries find themselves in destabilized national and international settings and, consequently their will to serve the EU subsides, the respective EU migration policy is trapped in the informality it pursued.

5.5.1 Adoption of New Instruments and Repoliticization

The attempts for more harmonization through the adoption of new instruments are not sufficient to re-introduce migration and asylum in the EU constitutional framework. As Section 5.4 shows, the most recent efforts to revamp the CEAS brought nothing revolutionary or novel; rather, the new additions in many ways express the interests of countries like Hungary and Poland. Even more disturbingly, the New Asylum and Migration Pact in some way normalizes or even endorses non-compliance by proposing rules which take the CEAS a step back in terms of human rights guarantees and hence in terms of European constitutional principles. In this regard, the New Pact may be considered as a technical fix attempting to cover rather than correct the inherent problems of EU migration and asylum law.

It has been proposed that instead of technical fixes, political debates are necessary to discuss the meaning of constitutional values, such as asylum. Thym has, for example, observed that ‘basic consensus on the normative foundations is what the EU’s asylum policy lacks at this juncture’.Footnote ⁹⁶ Thym has thus proposed politicization that implies overcoming the cleavages among the Member States and introduction of a functioning system of cooperation among them of a lasting nature.Footnote ⁹⁷ We are, however, skeptical about this proposal since the value of asylum does not seem to have much resonance given the populist political climate, as described in the country chapters included in this volume. Politicization of the matter is not likely to lead to solutions that might be empirically grounded and morally just. Rather, as Noll suggests in Chapter 3 in this volume, the current political and democratic structures lock us into policies that do not respond to the actual problems of the empirical reality.Footnote ⁹⁸ Unless European societies emerge with different kinds of political and representative structures of governance, the current ones might not lead us to different solutions. Even the courts, both national and international, that are meant to be non-majoritarian and are viewed as sites where populist policies can be contested,Footnote ⁹⁹ are susceptible to statist policies that have serious negative effects on migrants.Footnote ¹⁰⁰ In short, democracy as a form of governance leads to moral and social injustice.

5.5.2 The Unlikely Potential of Convergence

Any solution to the challenges that the EU faces in the area of migration and asylum would have to address the socio-economic differences between the Member States and the different standards of protection offered in each one of them. Solidarity is about sharing norms, which implies better harmonization of standards so that asylum seekers are offered similar reception conditions in say Sweden and Bulgaria and the recognition rates are comparable for the different nationalities. However, this implies not simply adoption of norms, but also guaranteeing these norms in reality.

The idea of harmonization of asylum procedures and reception conditions is a myth, given the persisting socio-economic differences between the Member States. Asylum and migration laws cannot bridge these differences. The gaps between countries like, for example, Sweden and Bulgaria, will persist. This reality cannot be simply ignored anymore. Admittedly, since the 2004 enlargement – if not before – this reality has been existing also with respect to other areas of EU action, for example, social security or monetary union. The specificities of asylum and migration lies, however, in the lack of enforcement through infringement proceedings against the deviants (from the side of the EU) and the powerful political tensions characterizing these policy areas (from the side of the Member States) especially post 2015.Footnote ¹⁰¹

The essential question that arises then is whether this reality can allow more central actions (at the level of the Union) to tame nationalistic tendencies. This looks unlikely. The Union is precluded from solving these fundamental disparities between Member States, unless we assume that integration in one area (i.e. migration and asylum) produces the need for integration in other areas (i.e. social policies, salaries, welfare rights). However, migration and asylum interact with social and economic realities that lie beyond the reach of the Union due to the absence of competence and with policy areas on which consensus is a lot harder to achieve in an enlarged Union with varied national interests.Footnote ¹⁰² As a result, there is little prospect that Member States will agree upon common rules that can actually make a practical difference. The reason behind this seems to be the broader lack of political consensus in connection with the rise of populist parties.Footnote ¹⁰³ Without Member States’ agreement in this ‘politically and symbolically charged area’,Footnote ¹⁰⁴ ultimately the EU might be without the means for change. Not having such means is more than indicative of a constitutional crisis.

5.5.3 The Prospect of Europeanization Far from Constitutional Demands

Another scenario needs to be considered as well. It is possible that the political tension in combination with intense Eurosceptic populism, can lead to the paradox of more Europeanization. The latter, however, will not follow EU constitutional demands. On this matter, Lindseth notes that there is increasing potential for EU mobilization and integration in border controls since this is an area where pan-European politics align.Footnote ¹⁰⁵ On the issue of border controls, Eurosceptic populists set the agenda since their ‘Europhilic confrères to the north and west […] have needed to respond to the increasingly anti-immigration mood’.Footnote ¹⁰⁶ As a result, populists threatening the core of the EU project have become ‘the unexpected (and certainly inadvertent) agents of Europeanization’.Footnote ¹⁰⁷

Such a type of Europeanization would be based on integrated administration with an emphasis on EU agencies, like the European Border and Coast Guard Agency and the European Asylum Support Office. This implies more Europe at the borders. Tsourdi has clarified how administrative integration with the involvement of these agencies would come with its own constitutional challenges and would require rethinking accountability processes in order to comply with procedural guarantees.Footnote ¹⁰⁸ Tsourdi’s concerns are more than valid. We, however, think that the problem is of a much more general constitutional nature since more Europe at the borders and, accordingly, more Europeanization in the current political climate, would lead to more distancing from the EU constitutional demands as we now know them. Strengthening the means of exerting power and ensuring exclusion of migrants and refugees at the borders, risks exposing the most vulnerable to treatment in violation of fundamental rights (those in need of international protection and without means of legal entry to Europe). What is more, such Europeanization would necessarily reinforce the security dimensionFootnote ¹⁰⁹ of EU migration and asylum law and, as a result, it would take it further away from the cosmopolitan ethos which has been located at the core of the EU project.

Any call for more integration in the area of EU asylum and migration would thus have to address a series of issues. First, the empirical reality on the ground is such that persistent socio-economic differences between Member States exist and are likely to remain a continuing feature. Far from the past of homogenous European societies with similar politics and concerns, the EU now has to address potential harmonization in light of the antithetic conditions and politics existing across its twenty-seven Member States. What is more, the current political climate creates concerns regarding the future of law. To what extent can Member States reach an agreement which would take the EU project forward? The way forward should be shaped in light of the EU telos rather than in light of closer cooperation without accountability and human rights protection. Closer to the normative foundations of the EU constitutional order, EU migration and asylum law needs to evolve in light of the rights conferred to individuals and respect for the protection needs of the vulnerable. As a result, it might be more prudent for the EU to refrain from proposing changes in immigration and asylum law (such as those currently formulated in the New Pact), an area charged with political tensions at a time when populist parties seem to dominate the agenda setting.

6.2.1 Infringement Proceedings under the TFEU

A first path of action when a Member State is in breach of EU law, are the infringement proceedings that are provided by the Treaty on the Functioning of the European Union (TFEU). These procedures are foreseen for specific and concrete violations of EU law by otherwise compliant Member States.Footnote ¹⁰ Structural and persistent deviations from the Union’s values listed in Article 2 TEU, however, often fall beyond the scope of what can be achieved with infringement actions.Footnote ¹¹ When Member States decide to no longer conform to the demands of maintaining a democracy, they are probably violating more than one part of EU law at the same time: starting an infringement action to bring one violation to a halt will most likely have little effect on the bigger picture.Footnote ¹²

6.2.2 The ‘Nuclear’ Option: Article 7 TEU

Apart from the legal remedies offered by Articles 258–260 TFEU, the Union also has a specific political remedy at its disposal, as opposed to a judicial one, in case a Member State acts in conflict with the EU’s fundamental values: Article 7 TEU.Footnote ³⁵ The article contains two procedures: a preventive one and a remedial one. They can be seen as separate, in the sense that one does not necessarily have to follow the other.Footnote ³⁶

6.2.3 The Commission’s Rule of Law Review Cycle

Between infringement proceedings with insufficient scope and Article 7 procedures with almost impossible thresholds, the European Commission felt the need to develop an additional tool. On 11 March 2014 it issued the ‘EU Framework to Strengthen the Rule of Law’.Footnote ⁵² This allows it to engage in a structured dialogue with Member States addressing and redressing ‘systemic threats’ to the rule of law, and consequently other values, in order to prevent the emergence of a clear risk of a serious breach.Footnote ⁵³ The Framework is meant to be an early warning system to complement the procedures of Article 7 TEU and Articles 258–260 TFEU.Footnote ⁵⁴

As a result of encouragements by the European Parliament, the Commission issued a ‘Blueprint for Action’ in July 2019.Footnote ⁵⁵ In this document it set out a new instrument called ‘the Rule of Law Review Cycle’. At the same time, the Commission proposed to publish a complementary Annual Rule of Law Report to promote an ongoing dialogue on the Rule of Law in the entire Union.Footnote ⁵⁶ Unlike the Rule of Law Framework, the review encompasses all Member States instead of singling one or two out. On 30 September 2020 the Commission adopted its first annual review.Footnote ⁵⁷ Regrettably, it was not the gamechanger many had hoped for. The Report uses soft and euphemistic language that understates the gravity of the situations that have unfolded in both Hungary and Poland and further fails to describe and offer recommendations for persistent rule of law backsliding.Footnote ⁵⁸ As expressed by Daniel Kelemen, the Report is toothless and ‘fails to recognize – even at a conceptual level – the nature of the threat to the rule of law in the EU’.Footnote ⁵⁹

On 7 October 2020, the European Parliament overwhelmingly voted for a Resolution on the Establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights.Footnote ⁶⁰ The Resolution aims to establish a more comprehensive and inter-institutional approach to tackle the deterioration of EU values instead of the fragmented instruments that have so far proven to be insufficient. The Resolution mentions how the Commission’s Annual Rule of Law Report fails to encompass democracy and fundamental rights and does not cover the full scope of Article 2 TEU.Footnote ⁶¹ The new Mechanism widens the scope, streamlines several existing tools and also contains an Annual Monitoring Cycle, which now encompasses all Member States and all EU values. The Cycle is set to provide country-specific recommendations with timelines and targets linked to concrete measures by the respective powers of each of the institutions.Footnote ⁶² Findings of the annual review will thus be used to assess possibilities under Article 7 TEU, general infringement actions and, once adopted, budgetary conditionality measures (see infra).

6.3.1 Infringement Actions and Article 7 TEU

The tools discussed above can to some extent help the EU enforce its values. However, there are indisputable limitations to the legal resilience they provide vis-à-vis democratic decay or rule of law backsliding and, by extension, restrictive migration policies in the Member States.

As indicated above, a crumbling democracy and rule of law linked with present-day populism seems to have manifested itself also in the extreme limitation of migrants’ rights.Footnote ⁶³ Intolerance towards immigrants has become one of the symptoms in the EU’s democracy crisis, in which Member States, besides degenerating their democracy and rule of law standards, have adopted restrictive laws and policies towards migration and often use immigrants as the scapegoat for the societal issues on which they build their populist narratives.Footnote ⁶⁴

Infringement actions present an avenue for the Commission to react to violations of EU law. But, as discussed earlier, violations of EU values (Article 2 TEU) cannot currently serve as the only ground for such action. However, violations of primary and secondary EU law on migration and the Charter of Fundamental Rights can. The Commission has previously used this as a way of showing resilience against both democratic backsliding and restrictions of migrants’ rights. It has initiated various infringement procedures based on a variety of legal grounds, including the treatment of migrants in breach of EU laws on asylum procedures, return procedures, reception conditions and several provisions of the Charter of Fundamental Rights.Footnote ⁶⁵

Presently, over forty infringement procedures have been initiated against Member States (mostly Hungary and Italy) for not or incorrectly applying the Common European Asylum System (CEAS).Footnote ⁶⁶ Hungary, for example, has been dismantling both the rule of law and its asylum system while simultaneously restricting the right to access to its territory and asylum procedures since 2015.Footnote ⁶⁷

On 30 October 2020 the Commission opened a new infringement procedure – the fifth infringement action against Hungary related to asylum since 2015 – and this case clearly shows the link between migration and the crucial issues concerning the rule of law in Hungary.Footnote ⁶⁸ Under the guise of COVID-19 emergency measures, Hungary had introduced new asylum procedures that further complicate the application procedure for asylum seekers. In doing so, it de facto removed itself from the EU asylum system and gravely deteriorated migrants’ rights.Footnote ⁶⁹ This misuse of emergency powers in Hungary, which have allowed the Orbán government to rule by decree, has negatively impacted the rule of law and democracy.Footnote ⁷⁰ The Commission addressed a letter of formal notice to Hungary on the incorrect application of EU asylum legislation, interpreted in the light of the EU’s fundamental rights.Footnote ⁷¹

Another infringement action related to migration gave rise to a judgment of 2 April 2020. The CJEU ruled on three joined cases that the Commission had brought against Hungary, Poland and the Czech Republic for failing to execute their migrant relocation obligations.Footnote ⁷² Although these obligations had already expired, the Court still found the Member States to be in breach of their obligations under EU law.Footnote ⁷³ Unfortunately, the consequences were entirely declaratory since the obligations had lapsed.

As for infringement actions under Article 259 TFEU, the chances of a Member State initiating infringement proceedings against another Member State for alleged violations of migrants’ rights seem very slim, for all the earlier mentioned reasons (see supra). For those reasons, this tool does not offer much solace either.

After years of launching infringement procedures on migration and indirectly on rule of law or democratic concerns, actions have mostly proven insufficient in improving migrants’ rights or respect for democracy and the rule of law.Footnote ⁷⁴ When Article 7(1) TEU was triggered against Hungary, one of the twelve concerns at the root of the procedure related to the fundamental rights of migrants, asylum seekers and refugees.Footnote ⁷⁵ However, as indicated above, even the preventive arm of Article 7 remains a heavy tool to lift and has so far failed to lead to any improvements, neither regarding democratic backsliding, nor as to the treatment of migrants.Footnote ⁷⁶

The EU’s tools, and how they are deployed, are far from a paragon for legal resilience and fail to weaponise the EU against authoritarian populism that impacts democratic values and threatens migrants’ rights.

6.3.2 The Implications of Infringements on the CEAS for Democracy and the Rule of Law

The EU sees its legitimacy challenged when migrants’ rights are restricted or violated contrary to its fundamental values.Footnote ⁷⁷ This not only decreases trust in the Union’s institutions, but also in its constitutional order, severely affecting the EU’s position of promoting and enforcing respect for democracy and the rule of law.

One can wonder whether the EU itself has already considered these wider implications of negated migrants’ rights on democratic and rule of law standards and its position in their enforcement in the Member States. The Commission has brought a considerable amount of infringement proceedings against Member States for violating the CEAS and migrants’ rights. But despite these actions from the Commission, it is impossible to ignore some of the mixed signals the Union has sent in its policy on systemic violations of CEAS’ protective norms over the years. In many ways the EU’s migration policy (particularly the Dublin Regulations) has even enabled non-conforming Member States to further consolidate both their anti-migration and backsliding politics.Footnote ⁷⁸

The CEAS is based on the values of solidarity and respect for human rights and aims to align asylum procedures in the different Member States. The migration crisis exposed the severe shortcomings of the CEAS. As a consequence of the crisis and these shortcomings, the focus of the EU’s migration and asylum policies has shifted from solidarity and protection of migrants’ rights to control and security measures to protect the outer borders of the Union and the national sovereignty of States.Footnote ⁷⁹ Countries, such as Hungary and Poland, that failed or refused to comply with the CEAS have only benefitted from their non-compliance.Footnote ⁸⁰ Their burden was shifted to other Member States, disrupting the idea of solidarity altogether and further delegitimising EU policies and institutions in the meantime. The abandonment among certain Member States of the CEAS and the principles of solidarity has inevitably impacted on democratic and rule of law backsliding.

Another example of a mixed signal is the infamous EU Turkey Declaration, through which the EU chose to cooperate with Turkey, a country with a poor human rights record, only because the intended outcome of the deal was beneficial for both the EU’s external and internal migration policies. Since both policies had failed to contain the migration crisis within the borders of the EU, the Union now prioritised external border control over migrants’ rights protection.Footnote ⁸¹

Whether the EU itself perceives the infringements on migrants’ rights as a direct threat to the rule of law and democracy is therefore not entirely clear. Migration was one of the twelve concerns on which the European Parliament triggered the Article 7 TEU procedure against Hungary (see supra) and CEAS violations are not ignored in infringement actions,Footnote ⁸² but an explicit consideration of the implications of national restrictions of migrants’ rights on democracy and the rule of law does not seem to be present.

6.4.1 Effective Usage of the Tools at Hand

To date, many suggestions have been made to expand the EU’s toolbox. But options are limited. As Treaty change requires unanimous consent from all Member States and will thus not lead to any solutions in the near future, it seems preferable to use more effectively the tools that are already available to ensure adherence to the values of the EU.

As pointed out by Kim Lane Scheppele, the Commission should make better use of infringement actions by trying to bring a pattern of non-compliance to the attention of the CJEU.Footnote ⁸⁶ Although infringement actions directly based on Article 2 TEU might still be considered a pipe dream, the CJEU seems to warm up to this possibility by using Article 19(1) TEU as a bypass.Footnote ⁸⁷ Systemic infringements can also be tackled in combination with Article 4(3) TEU, which lays down the principle of sincere cooperation for Member States, and by invoking violations of the Charter of Fundamental Rights.Footnote ⁸⁸ Strengthening the resilience of the Union’s fundamental values against autocratic Member State governments largely depends on the political will of the Commission to act more creatively and timely within the boundaries of infringement actions as set out by the TFEU and the CJEU in its case law.Footnote ⁸⁹

However, time sides with those who aim to deconstruct democracy and the rule of law, and so far the EU has not been able to keep up. Accelerated action alone could already make a difference in avoiding the further decline of these core values.Footnote ⁹⁰ Not only infringement actions but also Article 7 TEU should be triggered much more quickly. Additionally, Article 7(1) TEU should only be used in cases where the risk has not (yet) developed into a breach. Otherwise, it will only waste time before any meaningful action can be taken. The EU institutions should be able to call a spade a spade and immediately revert to the use of Article 7(2) TEU when a Member State has breached fundamental values.Footnote ⁹¹

6.4.2 Hitting Them Where It Hurts

The biggest flaw in the EU’s enforcement apparatus – or at least in the way the EU deploys it – has to do with the funding of Member States that are no longer committed to complying with the Union’s fundamental values. Among the Member States that currently breach democratic standards most seriously are some of the largest beneficiaries of EU funds.Footnote ⁹² As other sanctions leave autocratic regimes unimpressed, the Union should – if it wants to challenge democratic backsliding successfully – withhold funds from those unwilling to align with its fundamental values.

Making EU funds conditional on value compliance should be a concrete measure of enforcement when serious deficiencies to the rule of law or democracy occur in a Member State. In 2018, the Commission made a first proposal for a regulation to this end as part of a package of proposals on the multiannual financial framework (MFF) for the years 2021 to 2027.Footnote ⁹³ The Regulation was eventually adopted on 16 December 2020 after multiple concessions regarding the rule of law conditionality scheme at the European Council of 10–11 December 2020 (see infra).Footnote ⁹⁴ However, it has been submitted that the EU already had the possibility to link the allocation of funds to compliance with the rule of law under the Common Provision Regulation (CPR), which regulates the administration of European Structural and Investment Funds (ESIFs).Footnote ⁹⁵ Article 142(a) of the CPR allows the Commission to withhold ESIFs where a Member States does not respect the rule of law.Footnote ⁹⁶ The article provides that the procedure occurs in private dialogue with the Member States, which means that the Commission may already be doing this behind the scenes.Footnote ⁹⁷ But, as pointed out by Kim Lane Scheppele and Daniel Kelemen, the question arises how useful a secret dialogue can be in deterring other Member States from going down the same path.Footnote ⁹⁸ To effectively suspend the flow of funds and affect rule of law violations, the Commission will again have to show political will and leadership.

An important development in rule of law conditionality to funding happened at the European Council Summit that was held from 17 to 21 July 2020, to discuss the EU’s economic response to the COVID-19 pandemic and the Multiannual Financial Framework for 2021–2027 (MFF). What stands out about the European Council Conclusions of 21 July 2020 is that they contain language that ties the distribution of resources to compliance with the rule of law in order to protect these funds from the effects of backsliding (such as corruption):Footnote ⁹⁹ ‘a regime of conditionality to protect the budget and Next Generation EU will be introduced. In this context, the Commission will propose measures, in case of a breach, for adoption by the Council by a qualified majority’.Footnote ¹⁰⁰

On 30 September 2020, the Council shared its position on the proposal for the MFF legislation that was put forward by the Commission in 2018.Footnote ¹⁰¹ The Commission’s proposal included reversed qualified majority voting, meaning that the majority of the Council would have to oppose the adoption of sanctions in order for them to be rejected.Footnote ¹⁰² The Council’s proposal reversed the voting once again, which means that a qualified majority is now needed to adopt measures against a Member State. This raises the bar, as most Member States have been reluctant to openly target a colleague Member State in the past.Footnote ¹⁰³ The Council’s proposal faced considerable contention because of this change in voting system, but also because it introduced a ‘brake’ system which would allow the targeted Member State to call on the Council and stall the procedure. Many members considered the proposal a ‘watered down version of what was agreed in July’.Footnote ¹⁰⁴

On 10 November 2020, the European Parliament and the Council, with the support of the Commission, reached an agreement on the EU’s next long-term budget (MFF) and the Next Generation EU recovery fund.Footnote ¹⁰⁵ The package includes the above-mentioned rule of law mechanism, which does not need unanimity to be adopted as law. However, the full package needed unanimous support from all the Member States, and unsurprisingly this is where the shoe pinched.Footnote ¹⁰⁶ Hungary and Poland retaliated against the rule of law conditionality scheme by vetoing the entire budgetary process. Orbán defended his veto by stating that the scheme only aims to target countries that reject migration: ‘[T]hey only view countries which let migrants in as those governed by the rule of law. Those who protect their borders cannot qualify as countries where rule of law prevails’.Footnote ¹⁰⁷ Cynically, the statement once again illustrates how respect for the rule of law and the treatment of migrants are interlinked. The Slovenian Prime Minister Janez Janša supported the opposition of the two Member States by exclaiming that ‘[s]ome political groups in the European Parliament are openly threatening to use the instrument wrongly called “the rule of law” in order to discipline individual EU member states through a majority vote’.Footnote ¹⁰⁸ The German Presidency led the negotiations that ended the deadlock, with various countries, in need of the recovery fund, being held hostage for ten weeks.Footnote ¹⁰⁹ In its meeting of 10–11 December 2020, the European Council managed to seal a deal on the EU’s budget and Recovery Fund.Footnote ¹¹⁰ The rule of law conditionality scheme is still included, but various concessions have been made to the advantage of Hungary and Poland. This includes inter alia that (i) the Commission intends to develop guidelines on the way it will apply the Regulation in close consultation with the Member States, (ii) these guidelines will only be finalised after the CJEU renders its judgment should an action for annulment be introduced with regard to the Regulation, and that (iii) until the finalisation of the guidelines, the Commission will not propose measures under the Regulation.Footnote ¹¹¹ As a result, the implementation of the Regulation could be pushed back for a number of years and might possibly be delayed until after the Hungarian elections of 2022.Footnote ¹¹² Furthermore, the mechanism will only apply to the 2021–2027 budget, exempting all future projects that will be realised under the previous budgetary framework.Footnote ¹¹³