SHORT COURSE ON THE EUROPEAN ASYLUM ACQUIS THE AREA OF FREEDOM, SECURITY AND

SECURITY AND JUSTICE General Introduction THE TEMPORARY PROTECTION DIRECTIVE

Presented by Boldizsár

Nagy,
The Urals State Law University, 2016
Ekaterinburg

Europe
During the Wall's existence there were around 5,000 successful escapes

into West Berlin. Varying reports claim that either 192 or 239 people were killed trying to cross and many more injured. http://en.wikipedia.org/wiki/Berlin_Wall visited 25 February 2006

Source: http://www.unitedagainstracism.org/pdfs/listofdeaths.pdf visited 13 September 2012

Presentation by Boldizsár Nagy

foreigners internally displaced)

(published: December 2015), p. 4
http://www.unhcr.org/56701b969.html

latest mothly data

latest mothly data

latest mothly data

http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Asylum_applications_(non-EU)_in_the_EU-28_Member_States,_2004%E2%80%9314_(%C2%B9)_(thousands)_YB15_II.png

trends – 2015 overview

SECURITY AND JUSTICE

concepts
1958 - 1993 = Up to Maastricht: intergovernmental cooperation

Schengen

Agreement (1985) and Convention implementing the Sch. A. (1990)
The Dublin Convention on determining the state responsible for the asylum procedure (1990)
1993 – 1999 = Between Maastricht (1 November 1993) and Amsterdam (1 May 1999) = Justice and home affairs = III pillar = 9 matters of common interest as in Article K (Title IV) of the TEU (Maastricht treaty)

1999 - 2009 = From entry into force of the A.T. till entry into force of the Lisbon Treaty (1 December 2009) = Justice and home affairs = Area of freedom, security and justice =
I pillar = Title IV. of TEC (Visas, asylum, immigration and other policies related to free movement of persons + civil law cooperation) +
III pillar =Title VI. of TEU (Provisions on police and judicial cooperation in criminal matters)

2009 December 1 - = Area of freedom, security and justice reunited in Title V of the Treaty on the Functioning of the European Union = Border checks, asylum, immigration; civil law cooperation; criminal law cooperation; police cooperation = no pillar structure but CFSP is outside of the „normal” EU regime

movement + immigration and asylum+ non-discrimination+ data protection


Security = fight

against organized crime (including terrorism) and drugs + police cooperation (Europol, Eurojust, Frontex)


Justice („Recht”) = cooperation among civil and criminal courts, approximation of procedures, mutual recognition of decisions, simplification of transborder actions (litigation in another member state)

implementing it (1990)
C O N V E N T I

O N IMPLEMENTING THE SCHENGEN AGREEMENT OF 14 JUNE 1985 BETWEEN THE GOVERNMENTS OF THE STATES OF THE BENELUX ECONOMIC UNION, THE FEDERAL REPUBLIC OF GERMANY AND THE FRENCH REPUBLIC, ON THE GRADUAL ABOLITION OF CHECKS AT THEIR COMMON BORDERS 19 JUNE 1990 (OJ (2000) L 239/19)

II. The essence (see next slides)

flanking measures
protecting the external borders with the same level of

security including checks and surveillance
intensive co-operation in customs, police and criminal justice matters
establishing a system to determine which state is responsible for the examination of asylum applications

How to interpret the 2015 flow of people from Greece to Macedonia (fYROM), Serbia and then across the external border of the EU to Hungary (and onwards)?!

nationals of member states or “aliens”
“Internal borders shall mean the

common land borders of the Contracting Parties, their airports for internal flights and their sea ports for regular ferry connections exclusively from or to other ports within the territories of the Contracting Parties and not calling at any ports outside those territories;”

The challenge of the Amsterdam Treaty is now to ensure

that freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and justice accessible to all. ...

3. This freedom should not, however, be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organise it and commit related international crimes…..

Union, fully committed to the obligations of the Geneva Refugee

Convention and other relevant human rights instruments, and able to respond to humanitarian needs on the basis of solidarity. A common approach must also be developed to ensure the integration into our societies of those third country nationals who are lawfully resident in the Union.

The message of the Tampere European Council Conclusions (1999)

European Council (26/27 June 2014).

„Building on the past programmes, the

overall priority now is * to consistently transpose, effectively implement and consolidate the legal instruments and policy measures in place.
*Intensifying operational cooperation while using the potential of Information and Communication Technologies' innovations, * enhancing the role of the different EU agencies and ensuring the * strategic use of EU funds will be key.” (Point 3, stars added -BN) 

Presentation by Boldizsár Nagy

protection requires a strong European asylum policy based on solidarity

and responsibility. The full transposition and effective implementation of the Common European Asylum System (CEAS) is an absolute priority. This should result in high common standards and stronger cooperation, creating a level playing field where asylum seekers are given the same procedural guarantees and protection throughout the Union. It should go hand in hand with a reinforced role for the European Asylum
Support Office (EASO), particularly in promoting the
uniform application of the acquis. Converging
practices will enhance mutual trust
and allow to move to future
next steps.”

No reference to Geneva 51, human rights or the Charter of Fundamental Rights!

THE LISBON TREATY

2009)

Art. 294



Regulation, directive, decision, recommendation, opinion
Initiative
Decision making process
Decision
The

rules in force after Lisbon

10356/15 „LIST OF COUNCIL PREPARATORY BODIES” Brussels, 28 July

2015 - visited 18 February 2016

It shall be binding in its entirety and directly applicable

in all Member States.

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

A decision shall be binding in its entirety upon those to whom it is addressed.

regulation „automatically forms part of the (highest) provisions of a

Member State’s legal order” – without transposition Laenarts – Van Nuffel (Bray, ed), Constitutional Law of the European Union, second ed .2005, p. 764
Direct effect: if the regulation is clear and precise and leaves no margin of discretion then individuals can rely on it against the state and against each-other
Directive: no direct applicability (needs transposition) but may have direct effect if unconditional and sufficiently precise – and the state fails to transpose it on time.
Primacy/Supremacy of EC law: In case of conflict it has primacy even over later national acts, including statutes.

on opting in to new measures under Title V
on

3 December 2015
The outcome was NO

years of transition from the entry into force of the

Lisbon Treaty (i.e. after 1 December 2014) full CJEU control and ordinary legislation in police and criminal matters

Two opts out:
A) first from the whole criminal law and police acquis adopted before 1 December 2009 (which did bind it!) (See Article 10 of Protocol 36 to the Treaties)
B) from any new measure adopted under Title V. (Protocol 21)

Ad A) :The block opt out (and selected opt back)
24 July 2013 notification of block opt-out
Later: letter informing Council and Commission to opt in into certain measures
Negotiations during 2014
Council and Commission decisions of 1 December 2014 (2014/857/EU and 2014/85/EU, OJ L 345/1 and 6, 1.12.2014 )

Result UK is back to 29 measures adopted before 1 December 2009, including Eurojust, Europol and the framework decision on the European Arrest Warrant

Ad B) UK exercised several opt ins, including to amendments to pre-2009 rules (thereby loosing the right to opt out from them) E.g.? 2015: debate on opting in into resettlement scheme

Acommodation of new UK demands – see European Council on 18 – 19 February 2016 Referendum on in – out of Britain at the end of 2017

per chamber)
8 weeks for reasoned opinions on subsidiarity - if 1/3

oppose a draft (1/4 for Police Coop. / Judicial Coop. in Criminal Matters), draft must be reviewed, initiator of the draft can maintain the draft but has to give reasons
- if simple majority opposes a proposal from the Commission under the ordinary legislative procedure, draft must be reviewed. If Commission maintains proposal, Council and Parliament take account of position of national parliaments and either may halt procedure (55% of Council or majority of votes in EP)

Presentation by Boldizsár Nagy

policy on regular migration
Asylum policy, including solidarity and cooperation
Irregular

migration, return policy
Terrorism and radicalisation,
Fight against crime (.e.g.: human trafficking, smuggling and cybercrime, corruption) Strengthening police cooperation.
Citizenship:
- citizenship rights
- active citizens

DIMITRIS AVRAMOPOULOS

Migration, Home Affairs and Citizenship
2014 - 2019

Union (CJEU) in asylum and migration matters
Procedures against states
Infringement procedure

= Commission against state for failure to fulfil obligations Article 285 TFEU (ex Article 226 TEC)
Interstate dispute = State against state for failure to fulfil obligations (Hardly ever used) Article 259 (ex Article 227 TEC)
Enforcement procedure = Commission against MS - when a state fails to implement a judgment of the CJEU Article 260 (ex Article 228 TEC)
Challenging the legality of an act or the failure to act
Annulment procedure = review of legality of acts Article 263 (ex Article 230 TEC)
MS, Parliament, Council or Commission challenging an act (of the other bodies) on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers + Natural and legal persons also, if personally and directly affected
Challenging failure to act = MS and institutions against any institution, body or organ if the latter fails to act in infringement of the Treaties
Preliminary ruling
MS’s courts may (any level) must (highest level) request a preliminary ruling on
the interpretation of the Treaties;
the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

the Event of a Mass Influx of Displaced Persons and

on Measures Promoting a Balance of Efforts Between Member States in Receiving Such Persons and Bearing the Consequences Thereof 2001 July 20, OJ L 212/12

the event of a mass influx of displaced persons

+
to promote a balance of effort between Member States
Basic principles:
Neither replaces nor excludes recognition as Convention refugee
Any discrimination among persons with temporary protection is forbidden

country or region of origin,
or have been evacuated,
and are

unable to return in safe and durable conditions

in particular:
(i) persons who have fled areas of armed conflict or
endemic violence;
(ii) persons at serious risk of, or who have been the victims
of, systematic or generalised violations of their human rights;

a large number of displaced persons,
who come from a

specific country or geographical area
The Council decides by qualified majority the start and end of T.P.
Duration
1 year + max two times 6 months
= total max: 2 years
Council may end it earlier, but must not exceed two years‘
_______________________________________
Not applied until mid-April 2014

paper,
Employment, self employment under the same conditions as recognized refugees
Suitable

accommodation or the means to obtain housing.
Social welfare and means of subsistence, if they do not have sufficient resources
Medical care in emergency cases and illness
Specific assistance to vulnerable groups

nationals
family unification (partner also, broader family) if
if they had lived

together
parted due to circumstances surrounding the mass influx
extends to spouse (partner) , dependent non-married child, exceptionally to other traumatized close relative.

Convention Refugees

Access to determination procedure must be guaranteed

The decision on

status may be suspended for the time of T.P.

Non-recognition of Conv. status does not affect T.P.