The European Parliament in the negotiations for reform of the Common European Asylum System

EU Law Analysis: Unfinished Business: The European Parliament in the negotiations for reform of the Common European Asylum System

Unfinished Business: The European Parliament in the negotiations for reform of the Common European Asylum System

Salvo Nicolosi (RENFORCE – Utrecht
Centre for Regulation and Enforcement in Europe)
While a new European
Union legislature is about
to start
on 2 July 2019, it is not certain to what extent the new European Parliament
will inherit and continue the work of the previous one in one of the most
delicate areas under reform, such as the Common European Asylum System (CEAS).
The whole reform package has been put into “unfinished business,” according to rule
229 of the Rules of Procedures of the European Parliament
. This means that
at the end of the legislature all dossiers that have not been voted at the
plenary shall be deemed to have lapsed. While arguing that, despite some points
of concerns, the European Parliament made a significant contribution especially
as regards the reform of the Dublin Regulation and that departing from such a
position will be a misstep for the new European Parliament, the evolving role
of the European Parliament in the past and current negotiations for the CEAS
will be considered.
The State of Play of the Negotiations
In an attempt to
tackle the structural shortcomings of the CEAS, the European Commission adopted
two packages of proposals for the future CEAS regulatory framework (Nicolosi, 2019). A first
package adopted on 4 May 2016 comprises the proposals to recast the Dublin
Regulation (COM/2016/270),
Eurodac Regulation (COM/2016/272)
and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will
replace the current European Asylum Support Office (EASO) (COM
). A second package was adopted on 13 July 2016 and includes a
proposal for a Regulation repealing the Qualification Directive (COM/2016/466),
a proposal for a Regulation repealing the Procedure Directive (COM/2016/467),
a proposal to recast the Reception Directive (COM/2016/465)
and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468).
have been concluded between the Council’s Presidency and the European
Parliament’s rapporteurs on five of the seven proposals but, at the end of the eighth
legislature no progress was registered, and the reform is in a stalemate,
especially owing to the difficulties to find an agreement on the reform of the
Dublin Regulation. Nonetheless, while the Council has not yet managed to come
up with a concerted approach, the European Parliament submitted “the boldest
official proposal to amend the Dublin system to-date” (Maiani,
): the Wikström Report.

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