Part II - Resilience at the European Level

4 Coloniality and Recent European Migration Case Law

Thomas Spijkerboer

4.1 Introduction

Beginning with the 2014 Khlaifia judgement (infra), the European Court of Human Rights and the Court of Justice of the European Union have given a series of judgments that have been widely perceived as constituting a state-friendly rupture with its earlier case law promoting the human rights of migrants. Practitioners and academics consider this new turn in the case law as a response to the 2011 and 2015 migration crises in Europe.¹ However, it has been argued that these crises were not the unforeseeable consequence of external events impacting on European migration and asylum law and policy, but followed from structural shortcomings of European law and policy itself.² Also, the idea that the earlier case law of the two European courts constituted a robust protection of the human rights of migrants has been subjected to fundamental critiques.³ Taking these two analyses together, this chapter will not approach European law as failing to counter the undermining of migrants’ rights, but will interrogate European law as actively contributing to such undermining since its inception. This does not necessarily mean that European law only undermines the rights of migrants. At times social movements have successes within the overall “sedentarist”⁴ framework of European migration law, and it is conceivable that a number of such successes in the future might fundamentally transform the framework itself. From this critical perspective, the current developments in European case law may be seen not as a rupture, but as a continuation of a pre-existing characteristic – as new inflections of a more long-term tendency to privilege the interests of European states over those of migrants and of Europeans with transnational ties.

The notions of crisis and emergency are reflected in law. John Reynolds has shown that the legal notion of emergency is an elastic concept that may take on various forms. It is not an exceptional legal instrument placing a situation outside of law, but a permanent legal governance technique that was developed in the European colonies and subsequently has been absorbed into international law. The notion of emergency normalised special state powers over colonial subjects, especially when used for an extended period. Legal techniques making this possible maintain the legitimacy and legality of state action, in particular of intensified state violence against populations who are ruled through force, not consent. Emergency regimes are an element of legal techniques of subjugation of racialised and lower-class groups.⁵ The migrants whose rights are being undermined by the case law of the European courts originate from former colonised regions; they do not have a say in the policies that are enforced against them; and they have been subject to intensified forms of state violence in the form of deprivation of liberty, expulsion, and exposure to extreme living conditions.

The European Convention on Human Rights contains three options to limit rights. In addition to the limitation clauses concerning specific rights, there is the general derogation clause for public emergencies (Article 15 ECHR) as well as colonial clause (Article 56 ECHR) allowing states not to extend the Convention to their colonies or, if they choose to do so, to apply it there “with due regard to local requirements”.⁶ Fawcett specified in 1969 that the concept of “local requirements refers primarily to permanent or organic characteristics of a territory and would not extend to temporary features”.⁷ A current textbook admits that the local requirements standard “may permit a lower standard of compliance with the Conventions’ requirements in dependent territories”.⁸

EU law does not have a colonial clause, but it does regulate its territorial scope of application. The 1957 EEC Treaty contained a provision stipulating that the treaty would apply to Algeria and French overseas departments for a number of issues (one of the applicable notions is that of public emergency, Article 227(2) EEC Treaty). It requires intimacy with the text of the treaty to see that free movement of persons is missing and hence does not apply to Algeria. Furthermore, it provides that for the overseas territories of the member states a special association regime applied, laid down in Article 131–136 EEC Treaty. A series of protocols detailed the status of the overseas territories upon entry into force of the Treaty. The current application of EU law to overseas territories is regulated via Article 355 TFEU. In addition, in the field of asylum Article 78(3) TFEU allows the Union to adopt provisional measures for the benefit of states that are confronted by an emergency situation characterised by a sudden influx of third country nationals

Clearly, the recent case law of the European courts does not apply Article 15 or 56 ECHR, or Article 355 TFEU. However, in this chapter this case law will be analysed as an application of the idea on which these provisions are based, namely that the physical proximity of (in this case: former) colonial subjects constitutes an emergency which requires excluding colonial subjects from the full application of the law. The hypothesis which will be examined here is that current-day migrants, being people from former European colonies, are subjected to a split form of legality that was perfected at the end of the colonial era. Article 56 ECHR and 227 EEC Treaty (currently 355 TFEU) are emblematic of this split legality. They both allow for a legal system that maintains the pretence of equality before the law while at the same time relegating colonial subjects to sub-standard legal protection by either excluding them from the application of these treaties altogether (infra, Section 4.2) or by lowering the standards (infra, Section 4.3). In addition to these two elements, a third legal governance technique with its origins in colonialism is the use of emergency powers themselves (infra, Section 4.4). Authorities have special powers at their disposal for use in case of emergency, and have considerable leeway in deciding whether there is an emergency and, if so, what it requires.

4.2 The Law Does Not Apply

The most radical version of coloniality foreseen in European treaty law consists of not applying European legality at all. This can be seen in the EU Court of Justice’s judgments about the EU-Turkey statement. A second example of non-application of European legality is the case law of both European courts in cases of Syrians applying for humanitarian visas so as to claim asylum in Europe without having to risk their lives on smuggling boats. In a third context, that of migrant detention at European external land borders, the Strasbourg court adapted its case law so as to make the ECHR inapplicable (by precisely denying that the people concerned were being detained), while the Court of Justice did not adopt that innovation and continued to apply European law to such detention.

4.2.1 The EU-Turkey Statement

The Court of Justice was asked to annul the 2016 EU-Turkey statement.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.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.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”.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.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.¹⁴

A similar case was brought before the European Court of Human Rights.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”.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.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.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.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.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”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,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,²³ exposing asylum seekers to such return without substantive assessment of their asylum applications constituted a violation of the procedural aspect of Article 3.²⁴ In this respect the Court followed its earlier case law,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”.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.²⁷ In Ilias and Ahmed, however, in contrast to the Chamber judgment in the same case,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,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”.³⁰ It did so by distinguishing this situation from the cases it had ruled on previously.³¹ It furthermore considered:

that in drawing the distinction between a restriction on liberty of movement and deprivation of liberty in the context of the situation of asylum seekers, its approach should be practical and realistic, having regard to the present-day conditions and challenges. It is important in particular to recognise the States’ right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration.³²

The reference to the right of Hungary to control its borders was repeated,³³ as was the reference to “conditions of a mass influx” and the “ensuing very significant difficulties”.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,³⁵ without being at a direct risk to life or health,³⁶ and could return to Serbia voluntarily³⁷ without a direct threat to life or health.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).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.⁴⁰ The Court consistently minimises these twenty-three days, by referring to “only”⁴¹ twenty-three days or by calling the confinement “short”.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.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.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”.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”.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,⁴⁷ but it found it possible to apply the normal concept of detention in that situation.

4.3 Due Regard to Local Requirements

The previous section provided a number of examples where, through the application of European treaty law, former colonial subjects were excluded from European legality. We will now turn to a second category of examples, where European legality is deemed applicable but where it is applied with, in the words of Article 56(3) ECHR, “due regard to local requirements” – in this case, with due regard to the fact that the people it is being applied to are former colonial subjects.

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.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).⁴⁹ It also held unanimously that they had not had access to an effective legal remedy (Article 13 ECHR).⁵⁰ However, in contrast to the Chamber judgment⁵¹ 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),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.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.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.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.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.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”.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:⁵⁹

While the constraints inherent in such a crisis cannot, in themselves, be used to justify a breach of Article 3, the Court is of the view that it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose. In its assessment, the Court will thus bear in mind, together with other factors, that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time.

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 detained⁶⁰ and ignores a report of Amnesty International from the same period that gives similar facts as the Italian Senate Committee two years earlier.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.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.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.⁶⁴ Nonetheless, the new logic of the Khlaifia judgment has been applied to the appalling detention conditions on the Greek Islands since then.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.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.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,⁶⁸ and it also accepted that their removal constituted an expulsion.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.⁷⁰ The Grand Chamber stated, in conformity with consistent case law, that

(i)t should be stressed at the outset that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens.⁷¹

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”,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”.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 Convention⁷⁴ – 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”.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.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.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.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.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,⁸⁰ and that a refusal to examine their asylum application constituted a violation of Article 3 ECHR⁸¹ as well as a violation of the prohibition of collective expulsion.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 Emergency Powers

So far, we have seen that an emergency may lead to non-application of the law and to sub-standard application of the law. Yet another option is that an emergency may enable the state to use special powers which it cannot normally use.

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.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.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.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.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.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 2011.⁸⁸ 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.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.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”⁹¹ and “unprecedented”.⁹² The Court of Justice opted, however, for the opposite approach, which Sharpston labels as “the strict interpretation”.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.⁹⁴ After having reached this conclusion it continued to refer to “the arrival of an unusually large number of third country nationals”,⁹⁵ but merely to state that this “cannot affect the interpretation or application of Article 13(1) of the Dublin III Regulation”.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.

4.5 Conclusion

Many consider the case law of the European courts since Khlaifia to constitute a rupture. However, both courts themselves have not indicated that they want to break with previous case law and have emphasised the continuity with previous precedents. One may dismiss this as bad faith, or as a result of damage control efforts of liberal judges. While these hypotheses have not been explored here and hence remain possible, this chapter has explored the idea that, indeed, the recent migration case law does not constitute a rupture but a new inflection of a colonial ground pattern that has been part of European migration law for a long time.⁹⁷ Indeed, three techniques of legal governance that have their origin in colonialism (not applying European treaty law; application of European treaty law with lowered standards; and the use of emergency powers) can be identified in recent migration case law of the European courts. They can also be seen at work more broadly, as in the emergency character of the EU Trust Fund for Africa (which side-lines constitutional guarantees as well as public procurement)⁹⁸ or in the widespread reintroduction of internal border controls since 2015.⁹⁹ In this understanding, the European courts always had the option of relying on these techniques, but in previous cases (on border detention¹⁰⁰ or hot returns¹⁰¹) did not use them in the way they have done since Khlaifia. And we have seen that since Khlaifia too, the Courts have not always relied on these techniques in the same way. This, as well as the differences between Chamber and Grand Chamber judgments in Strasbourg and between Advocate General opinions and judgments in Luxembourg, shows that the colonial deep structure of the Courts’ migration case law does not necessarily result in outcomes that are as excluding as they have been in recent years, even when coloniality remains a structuring element. Naming and exposing this colonial deep structure may be helpful to the extent that it makes a legal and political critique possible, in addition to helping actors to navigate the field.

5 Migration as a Constitutional Crisis for the European Union

Alezini Loxa and Vladislava Stoyanova

5.1 Introduction

This chapter aims to offer insights into the wider implications for the rule of law, including for the EU constitutional order, of the restrictions of migrants’ and asylum-seekers’ rights that follow from systematic non-compliance with the Common European Asylum System (CEAS) by certain Member States.¹ In other words, has the migration and asylum crisis developed into an EU constitutional crisis? There is a growing body of literature about the constitutional crisis of the EU.² A rich debate also exists as to the failures of the CEAS.³ Our aim is to bring these two into conversation to demonstrate that migration governance has a constitutive role for the EU. If the EU fails to treat the migration crisis as an EU constitutional crisis, the EU might risk disintegration and return to the national. This would take the evolution of the European project further away from its telos.

The framing of our research question and our arguments requires at least three initial clarifications that are offered in Section 5.2. The first refers to our understanding of the EU constitutional order and when this order can be perceived as being in crisis. The second refers to our understanding of a migration and asylum crisis. The third refers to the specificities of the EU as a supranational legal order in relation to the migration crisis as an EU constitutional crisis. Section 5.3 presents how the EU constitutional order has been challenged by the migration crisis. Specifically, it presents how non-compliance, non-enforcement and informalization have become characteristics of the EU migration and asylum governance especially post 2015 and have prompted a constitutional crisis where both EU institutions and Member States furnish disintegration. Given the current vision of the EU on the development of its asylum and migration governance, as expressed in the New Asylum and Migration Pact, Section 5.4 shows that these characteristics are likely to persist and will continue to have constitutional implications. Finally, Section 5.5 examines what the future holds for EU migration and asylum governance in view of the rise of populism in EU Member States, to conclude that all the alternative scenarios indicate that it might be wiser for the EU to not come forward with new proposals (such as the New Pact) in ‘politically and symbolically charged areas’ (such as migration and asylum) during populist times.⁴

5.2 A Union of Crises

To address the question whether the migration and asylum crisis has developed into an EU constitutional crisis, it is necessary to explain our understanding of constitutional crisis. For this purpose, it is useful to refer to Hailbronner who defines the crisis of EU constitutional democracy as ‘weakening of European democracy and of the normative force of important European constitutional principles’.⁵ These key constitutional principles of the EU are the rule of law, mutual trust, sincere cooperation, solidarity, and commitment to human rights and democracy.⁶ Hailbronner explains that crisis of constitutional democracy entails ‘a systemic weakening of the power of constitutional norms to provide direction for and constraints on the exercise of political power and/or a considerable decrease in the quality of democracy.’⁷ The weakening of EU constitutional norms has important implications for how the EU engages with Member States. In this sense then, our understanding of an EU constitutional crisis also includes the inability of the EU, due to the absence of tools or the non-utilization of existing tools, to effectively provide a political and legal response to the shared challenges faced by Member States from within its constitutional framework and in respect of its normative foundations.⁸

As to the migration and asylum crisis, we understand this as a twofold crisis. First, a crisis caused by the collapse of the Common European Asylum System, manifested through its systemic non-application and the inherent and well-known deficiencies as to its design. Second, a crisis resulting from the prevalent and protracted situation experienced post 2015 where the EU constitutional principles of human rights, solidarity and rule of law are not upheld in EU legislative or judicial practice (as shown in detail in Section 5.3). All of this suggests a failure of the European Union to lead a response to address the common challenge experienced at Member States level.

Certainly, individual Member States, as demonstrated in Part III of this volume, face constitutional challenges of weakened democracies and have systematically engaged in restrictions of migrants’ rights. It can thus be argued that appeals for anti-immigration policies in constitutional democracies should ‘not be mistaken for evidence of a “constitutional crisis”’; rather such appeals are ‘compatible with existing constitutional understandings and arrangements’.⁹ Restrictions upon migrants’ rights ‘can take place within normal politics’ since commitments to human rights can be reinterpreted in a way that is less favourable to migrants.¹⁰ The position of the EU is, however, specific in comparison with the Member States. Accordingly, while restrictions of migrants’ rights might not necessarily lead to a constitutional crisis at the level of Member States,¹¹ the situation is different from the perspective of the EU. This is because the EU is an example of governance beyond the state.¹² If the EU cannot guarantee compliance with its rules (such as those in the CEAS) in a context where mutual trust among the Member States must be assumed, Member States will resort to self-help, that is, each Member State will try to individually solve the issues in accordance with its own interests as perceived at the particular point in time.¹³ Self-help ultimately defeats the purpose of having a Union, or at least having an EU with competence in the area of migration and asylum.

5.3 The Challenges to EU Migration and Asylum Governance

EU integration in the area of migration and asylum has been characterized by a ‘continued tension between nationalism and Europeanization’.¹⁴ The constant bargain between Member States and the EU, with respect to transfer of sovereign powers has shaped this legal area that has not evolved in light of the telos of an ever closer Union. Instead, as Walker notes, ‘the resilience of the tension between competing visions of the role of the states and the European centre in the development of FSJ [the area of Freedom, Security and Justice]’ can be seen ‘as a factor conditioning its constitutionalization’.¹⁵ This is persistent in the history of EU integration in asylum and migration throughout the treaties where the ‘sovereigntist legacy in immigration translates itself into a policy-making environment in which national jealousies and priorities are never far from the surface’.¹⁶Overall, it was not until the Lisbon Treaty when certain constitutional guarantees first made their appearance in EU migration and asylum law.¹⁷

Against this background, it can be expected that a migration crisis would push the EU framework of cooperation to its limits. Still, with the legal mechanisms in place after Lisbon it was not certain to what extent such a crisis could affect the EU as a constitutional order. This uncertainty has been resolved given that, as this section will show, post 2015 the governance of migration and asylum has been pushed outside the EU constitutional frame with serious implications for the EU legal order. This section thus demonstrates how non-compliance, non-enforcement and informalization have become the prevalent characteristics of EU migration and asylum governance post 2015. All of this has led to a constitutional crisis where both the EU institutions and the Member States create ‘disintegration by evading existing law’.¹⁸

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.¹⁹ Italy, Bulgaria, Hungary and Malta feature among the Member States with a history of non-compliance with the CEAS requirements.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.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.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.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.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.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’.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.²⁷ It turned out to also be practically impossible to achieve.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.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’.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.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’.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.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.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.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.³⁶ These Member States were referred to the CJEU for non-compliance with the relocation decisions.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.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.³⁹ As a result, informal cooperation has become the governance paradigm.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.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.⁴² Regardless of its legal nature which has been explored in detail,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.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.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’.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.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.⁴⁸ As a result, they lead to diminished protection for the affected individuals.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.’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.’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.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,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’.⁵⁴ (see Section 5.4.2) .

5.4 The New Asylum and Migration Pact

The presentation of the New EU Pact on Migration and Asylum in September 2020 expresses a continuous effort to find a solution within the EU by more harmonization through law and the introduction of a common framework for responsibility sharing.⁵⁵ Acknowledging the shortcomings exposed by the 2015/2016 migration crisis, the New Pact tries to offer a ‘fresh start’ to EU migration and asylum governance under the presumption that the problems experienced by Member States can be overcome by changes in the legal landscape. The proposed changes strengthen the synergies between migration control and asylum under the assumption that protection needs can be easily and swiftly identified at the EU external borders. In addition to these synergies, a second prominent characteristic of the New Pact is the introduction of the idea of flexible solidarity. Finally, the New Pact reiterates the need to cooperate with third countries so that the pressure on the EU is relieved. A closer look will show that there are historical and constitutional origins behind these three solutions. The Pact can thus be viewed as a continuation of the persistent EU deficiencies in migration and asylum governance rather than the ‘fresh start’ that it claims to be.

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,⁵⁶ which builds on the idea of transit zones, such as the ones used by Hungary,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.⁵⁸ Third, the position of asylum seekers in the context of Dublin transfers, is weakened.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.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.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’.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.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.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.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.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.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.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.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,⁷⁰ and represent a return to the status quo at the time of Dublin II.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.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:

the requirements laid down in Article 5 of the regulation to give asylum seekers the opportunity to provide information to facilitate the correct application of the criteria for determining responsibility laid down by the regulation and to ensure that such persons are given access to written summaries of interviews prepared for that purpose would be in danger of being deprived of any practical effect if it were not possible for an incorrect application of those criteria – failing, for example, to take account of the information provided by the asylum seeker – to be subject to judicial scrutiny.⁷³

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.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.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’.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.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.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.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’.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’.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.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),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’.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.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.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.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.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.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.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 Conclusion: EU Migration and Asylum Law in Populist Times and the Prospects for the Future

It has always been a challenge for the EU to fully integrate the governance of migration and asylum within its constitutional structures. Even if common rules in the area of asylum and migration exist, there is a tendency not to comply with them, not to enforce them and to evade them. Even worse, in practice Member States are rewarded for not complying with the rules. Those Member States that deviate from the rules of the CEAS are rewarded since they could shift responsibility to other Member States. The shift, however, is prompted by the relevant law that unfairly places the burden on the deviant Member States. Instead of working towards reinstating legality, the EU institutions praise state practices which go against EU and international human rights obligations in so long as they manage to function as a European ‘shield’ and keep migrant populations outside EU borders.⁹¹

In this context, we can speak of migration as posing a constitutional crisis for the EU, in the sense that migration and asylum as EU legal areas have developed by threatening the core foundations of the EU as a project. The project’s core tenets such as rule of law, respect for human rights, freedom of movement and mutual trust have been challenged.

In this chapter we brought forward the policy incoherence that characterizes the unsustainability of the current EU migration and asylum law, which has repercussions of a constitutional nature for the EU project and its progress. Ronan McCrea defines ‘policy incoherence’ as ‘a situation where different EU rules or a combination of EU and national rules, operate at cross purposes, undermining the ability of each to achieve the goals intended or where the rules and structures brought about by the degree of integration achieved to date produce otherwise avoidable negative outcomes for the Union and its Member States’.⁹² McCrea explains that situations of policy incoherence are not sustainable for the EU.⁹³ He argues that the only solution for the EU is further integration and if this is blocked by some Member States, the EU constitutional project will struggle.

The policy incoherence that pervades the EU asylum and migration law can be summarized as follows. First, EU migration and asylum governance is characterized by rules that operate at cross purposes: protecting internal security, protecting asylum seekers, ensuring strict border controls, assisting in the development of third countries and so on. The security considerations behind the creation of an EU cosmopolitan migration regime undermine the creation of a full area of freedom security and justice, respect for the fundamental rights of migrants as full human beings and not as just objects of EU policies, and the division of competences at a procedural level.⁹⁴ At the same time, the current structures of EU migration and asylum law produce negative outcomes both for the EU and for the Member States, as is shown by the broader tendency of non-compliance and implementation deficit.

Overall, EU asylum and migration law is characterized by intense political tension and partial compliance, partial implementation and partial integration. Much like McCrea, we believe that standing still is not an option. At the same time, however, it seems that the EU does not have the necessary means and political support to push forward integrational processes through the classic community method. In this context, it seems like the New Pact functions as a simple adjustment of EU law which involves no additional integration. The future then is likely to be characterized by erosion of law’s place ‘as integration’s dominant medium’ and by turn towards closer administrative cooperation and co-evolution through the establishment of common approaches and goals.⁹⁵ The latter, however, would come with its distinct risks of bypassing the normative and conceptual foundations of the EU project and in terms of results, it does not look like it would be located far from disintegration.

In light of the tensions, we will now proceed to examine what seem like the different possible future developments of the EU migration and asylum law.

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’.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.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.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,⁹⁹ are susceptible to statist policies that have serious negative effects on migrants.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 2015.¹⁰¹

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.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.¹⁰³ Without Member States’ agreement in this ‘politically and symbolically charged area’,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.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’.¹⁰⁶ As a result, populists threatening the core of the EU project have become ‘the unexpected (and certainly inadvertent) agents of Europeanization’.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.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 dimension¹⁰⁹ 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.

Acknowledgment

We would like to express our gratitude to Xavier Groussot, Eleni Karageorgiou and Stijn Smet for their comments on earlier versions of this Chapter.

6 Possibilities and Limits of European Union Action against Democratic Backsliding and Decline of Migrants’ Rights in Member States

Jan Wouters and Maaike De Ridder

6.1 Introduction

Over the last decade, the European Union (EU or Union) has faced numerous crises. Among the most notable are the financial and eurozone sovereign debt crises, the migration crisis and more recently, the COVID-19 crisis. As a result, the political landscape of the EU has changed tremendously. The Union’s institutions and the Member States have undergone significant transformations as regards political majorities, policy priorities and compliance with EU fundamental values.

As to the latter, it should be reminded that the Union is based on a set of fundamental values that are not only binding upon the EU itself, but also are – or ought to be – ‘common to the Member States’, as indicated in Article 2 of the Treaty on European Union (TEU). According to this provision, these values consist of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights (including the rights of persons belonging to minorities), pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men.¹ Respect for, and a commitment to promote, these values have long been prerequisites to become an EU Member State (Article 49 TEU). After accession, however, the Union has only limited means available to ensure Member States’ compliance with them.

Specifically for this chapter our focus lies with the value of democracy. While it constitutes one of the foundational values of the EU,² in the past years it has set foot on a downward path in a trend that has been labelled as ‘democratic backsliding’ in multiple Member States.³ Through this deterioration, the EU has been confronted with attacks on national judiciaries, censorship of national and international news outlets, the dismantling of multiple other rule of law foundations and restrictions of migrants’ rights.

In this chapter we aim to capture the substance and range of the EU’s toolbox in tackling the issues that arise out of democratic backsliding in its Member States and the limitations of these tools. The deterioration of democracy and, related to this, the rule of law have had significant consequences in the migration context, which will be taken into account in our analysis. In the first section, we look at the EU’s toolbox and whether these tools provide legal resilience in counteracting democratic backsliding. The second section evaluates the toolbox in a migration context and the third section discusses how the EU is currently bringing new initiatives forward to strengthen its democracy and legitimacy. We conclude with a number of suggestions de lege lata and de lege ferenda on how the EU’s toolbox could become more effective.

6.2 The EU’s Toolbox for Action: A Paragon of Legal Resilience?

Restrictions of migrants’ rights and processes of democratic or rule of law backsliding do not always appear jointly.⁴ However, if one takes a closer look at the current democratic decay in the EU, there appears to be a crucial link between migration and respect for democracy and the rule of law.⁵ Concurrently with the EU migration crisis, we have witnessed an accelerated decrease in multiple Member States’ respect for the values of democracy and the rule of law.⁶ Adherence to these values has, nonetheless, proven essential in a context of large-scale immigration.⁷ Democracy and the rule of law provide the basis for the protection of refugees and asylum seekers, as they ensure due process obligations, access to justice, respect for human rights and many other essential principles to safeguard migrants’ rights in EU Member States.⁸

The EU has several tools available to deal with non-compliant Member States. However, not all of those tools are equally well-equipped to tackle the specific issues of democratic backsliding that have accompanied the rise of (authoritarian) populism – and the decline in migrants’ rights – in some of its Member States. Bigotry towards immigrants is only one of the symptoms of the EU’s democracy crisis, which is a much larger phenomenon.⁹ Therefore, the focus of this chapter predominantly lies with the EU’s apparatus for counteracting democratic decay and rule of backsliding. We will discuss whether the EU’s tools are effective and whether they can offer legal resilience against populist movements that threaten migrants’ rights in EU Member States.

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.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.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.¹²

6.2.1.1 Article 258 TFEU

Article 258 TFEU gives the European Commission the possibility to deliver a reasoned opinion to a Member State that has failed its obligations under the Treaties, after giving the latter the opportunity to submit observations.¹³ This is the so-called administrative stage.¹⁴ If the Member State concerned gives no effect to the opinion, the judicial stage is entered, in which the Commission can bring the matter before the Court of Justice of the European Union (CJEU).

Important for all infringement proceedings under Article 258 TFEU is that the Commission enjoys full discretion as to when and whether it will commence a procedure and against which Member State it will do so.¹⁵ It can never be forced to initiate proceedings. However, since the Commission has to monitor the application of EU law across twenty-seven Member States, it needs to pick its battles carefully in view of its lack of sufficient resources and of a complete overview.¹⁶ The Commission will thus not be able to challenge every violation of EU law through infringement proceedings.

Article 258 TFEU offers a legal remedy to challenge infringements of the Union acquis. However, whether violations of Article 2 TEU can be considered part of the Union acquis is still being debated.¹⁷ Many believe that the provision is insufficiently precise to generate legal obligations enforceable through judicial action, while others believe that Article 2 is clearly meant to be endowed with legal value.¹⁸ Furthermore, the existence of a specific remedy designed for breaches of Article 2 TEU – namely Article 7 TEU – might also present itself as a hurdle for triggering legal action under Article 258 TFEU.¹⁹ At the moment, it remains unlikely that the Commission would initiate an infringement action on the sole ground of Article 2 TEU without involving other concrete obligations under the EU Treaties or secondary law of the Union.²⁰ Indeed, on numerous occasions, the Commission has brought infringement actions against Member States for disrespecting EU values.²¹ But it did not do so solely on the basis of Article 2 TEU. In Commission v. Poland (C-619/18), the Commission initiated infringement proceedings in response to a law that lowered the retirement age for Supreme Court Judges.²² Poland clearly violated – as it currently still does – the rule of law under Article 2 TEU, but an infringement action based on this article alone has not been launched. Instead, the Commission relied on Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights (Charter) to start the proceedings.

On 6 October 2020, the CJEU ruled against Hungary in a landmark judgment.²³ The case concerned an infringement procedure against Hungary’s ‘Lex CEU’: a law introduced by the Orbán government with the aim of chasing out the independent Central European University, founded by one of Orbán’s opponents, George Soros. The CJEU found the law to be in breach of WTO commitments regarding services (GATS) and the Charter.²⁴ Although the judgment is of great importance to strengthen the legal protection of academic freedom, it came too late to bring about change in Hungary. The CEU had already relocated to Vienna.

In 2016 the European Parliament suggested that the Commission could launch a ‘systemic infringement’ action on democracy, the rule of law and fundamental rights.²⁵ This idea was originally brought up by Kim Lane Scheppele, who is convinced that the Commission should demonstrate the interconnectedness of specific issues to the larger pattern.²⁶ Systemic infringement actions should then enable the CJEU to spot this pattern and establish the existence of a threat to the EU’s most fundamental of values. It remains to be seen whether the Commission will eventually bring a case before the CJEU solely based on Article 2 infringements and whether the CJEU will be willing to interpret an entire pattern of infringements under a single action.

6.2.1.2 Article 259 TFEU

Article 259 TFEU foresees in a similar means of action, but this time the initiative lies with the other Member States. One Member State violating EU law inevitably impacts the entire Union and the mutual trust that is supposed to be ensured between its Members. Therefore, other Member States are given the opportunity to bring alleged violations before the CJEU.²⁷ However, before they can do so, they have to bring the matter before the Commission. Only after the Commission has given the respective State the opportunity to submit its observations and has issued a reasoned opinion, will action before the Court be possible.²⁸ If the Commission omits to give a reasoned opinion within a three-month timeframe, the matter may be brought before the Court directly.²⁹

So far only a handful of cases have been brought before the CJEU under Article 259 TFEU.³⁰ One of the reasons is that the political weight of one Member State bringing another Member State before the Court is rather significant. Additionally, the procedure still requires the involvement of the Commission, which could always use this information to launch a proceeding under Article 258 TFEU. Consequently, incentives for Member States to act on breaches of EU law themselves are very low.³¹ Lastly, similar to the issue that arises with Article 258 TFEU, it is unclear whether cases would come to the Court that are solely based on infringements of EU fundamental values.³² Interestingly, on 2 December 2020, the Dutch Parliament adopted a resolution requesting the Dutch government to start planning the deployment of Article 259 TFEU against Poland for disrespecting the rule of law.³³ If the Dutch government were to act upon the resolution – for which there is no indication at the time of writing – it would constitute a first use of the article in the specific context of the EU’s crisis of values.³⁴

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.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.³⁶

6.2.2.1 The Preventive Procedure

Article 7(1) TEU outlines the preventive procedure. To begin proceedings, either one third of the Member States, the European Parliament or the Commission has to make a reasoned proposal to the Council.³⁷ Acting by a majority of four fifths and after obtaining consent from the European Parliament, the Council can then determine the existence of a clear risk of a serious breach of the values laid out in Article 2 TEU. Before doing so, the Council will hear the respective Member State and has the opportunity to address recommendations. These recommendations can also be issued before the existence of a risk has been determined.³⁸ The advantages of Article 7(1) are the range of possible initiators and the still somewhat attainable thresholds compared to Article 7(2) and (3) TEU. However, its effectiveness is still a concern, since it only serves as a basis for dialogue and recommendations. This is especially the case when combined with the Commission’s Framework to Strengthen the Rule of Law (infra), which also foresees the possibility of informal dialogue and addressing recommendations in order to avoid triggering Article 7 TEU procedures.³⁹

6.2.2.2 The Remedial Procedure

The remedial procedure laid down in Article 7(2) TEU is more problematic. It stipulates that the European Council, acting on a proposal of one third of the Member States or the Commission and after obtaining the consent from the European Parliament, can ‘determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2’.⁴⁰ However, there are some impediments to reach this point. First of all, unanimity is required within the European Council, which means that each Member State (represented by its Head of State or Government) has a veto. The Member State concerned does not have a vote but every single other Member State, even those not complying with EU values themselves, does. If a serious and persistent breach has been found, the procedure moves forward to the Council of the EU. The Council, acting by a qualified majority, can then, according to Article 7(3) TEU, ‘decide to suspend certain of the rights deriving from the application of the Treaties to the Member States in question’.⁴¹

The purpose of the remedial arm of Article 7 TEU – which is the oldest part of the article, inserted by the Treaty of Amsterdam – is the possibility to impose a political sanction on a Member State that commits a serious and persistent breach of one of the Union’s fundamental values.⁴² Such a sanction could for example entail the loss of voting rights in the Council. The focus on ‘persistent’ in the article indicates that the aim is to only capture those violations that cannot be solved through national institutions or small corrections following infringement action or dialogue.⁴³

Both the preventive and the remedial components of Article 7 TEU are fully political in nature. The CJEU has no involvement in any step of the procedures, the only exception being that if sanctions are decided upon, the Member State concerned can still challenge the decision before the Court.⁴⁴

Article 7 TEU has often been coined as the ‘nuclear option’.⁴⁵ One of the reasons for this terminology is that the two procedures have high thresholds for their activation. The majorities or unanimity required are difficult or even impossible to obtain when more than a single Member State is at odds with the Union’s values, as is the case today. Another reason for the ‘nuclear’ terminology is the sanction that could follow a successful triggering of Article 7(3). Losing voting rights in the Council is the most serious political sanction the Union can impose on a Member State.⁴⁶ Since its inclusion in the TEU, following the Treaty of Nice, the mechanism of Article 7(1) TEU has only very recently been used (infra).⁴⁷ The remedial component of Article 7(2) TEU has so far remained unused.

On 20 December 2017, the European Commission started the procedure of Article 7(1) TEU for the first time in Union history. It submitted a reasoned proposal with regard to the rule of law in Poland as a result of the Polish government’s disrespect for the independence of the Polish judiciary.⁴⁸ In September 2018 the same procedure was launched against Hungary. This time, it was the European Parliament which voted a resolution calling the Council to determine the existence of a clear risk.⁴⁹ It was preceded by numerous resolutions adopted by the Parliament between March 2011 and May 2017. The resolutions all related to concerns about judicial independence, freedom of expression, corruption, rights of minorities and, relevant to this volume, the situation of migrants and refugees in Hungary.⁵⁰ Although the initiation of these procedures constituted a strong political statement, Article 7(1) TEU was essentially triggered too late, as both countries had already been violating EU values for a long time. After launching the preventive phase of Article 7, the situation in Hungary and Poland has only deteriorated further.⁵¹

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’.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.⁵³ The Framework is meant to be an early warning system to complement the procedures of Article 7 TEU and Articles 258–260 TFEU.⁵⁴

As a result of encouragements by the European Parliament, the Commission issued a ‘Blueprint for Action’ in July 2019.⁵⁵ 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.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.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.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’.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.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.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.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 The Legal Resilience of the EU’s Toolbox in a Migration Context

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.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.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.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).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 2015.⁶⁷

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.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.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.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.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.⁷² Although these obligations had already expired, the Court still found the Member States to be in breach of their obligations under EU law.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.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.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.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.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.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.⁷⁹ Countries, such as Hungary and Poland, that failed or refused to comply with the CEAS have only benefitted from their non-compliance.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.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,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 Suggestions de lege lata and de lege ferenda

Rule of law and democracy serve as a basis for all the other fundamental values of the Union. The EU’s ability to uphold these two values in its Member States is therefore essential. Particularly in the context of guaranteeing migrants’ rights, it is of great importance that central elements of the rule of law, like the independence of the judiciary and the equal application of the law, can be maintained. This applies especially when all Member States have to be able to trust each other’s judiciaries in order to apply EU law correctly in the light of the Dublin Regulations and, more generally, the Area of Freedom, Security and Justice.⁸³

The current tools and their usage by the EU institutions are unable to discipline Member States violating the Union’s values. Article 7(1) TEU is what many have already called ‘a bark without a bite’, which Member States are free to ignore since they know sanctions under Article 7(2) TEU will be unlikely to follow due to the unanimity requirement.⁸⁴ In utopian circumstances, an effective Treaty change could entail a lowering of the voting requirements in Article 7 TEU or introducing sanctions under Article 7 that go beyond merely political punishments, such as monetary sanctions.⁸⁵ None of these scenarios are realistic. Since the EU’s fundamental values are crucial for the proper functioning of the Union itself and mutual trust between Member States, the enforcement of Article 2 TEU cannot be left to the workings of one political mechanism alone.

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.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.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.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.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.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.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.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 2027.⁹³ 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).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).⁹⁵ Article 142(a) of the CPR allows the Commission to withhold ESIFs where a Member States does not respect the rule of law.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.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.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):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’.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 2018.¹⁰¹ 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.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.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’.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.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.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’.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’.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.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.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.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 2022.¹¹² Furthermore, the mechanism will only apply to the 2021–2027 budget, exempting all future projects that will be realised under the previous budgetary framework.¹¹³

6.5 Conclusion

Multiple tools offer avenues for the EU to address democratic backsliding and the subsequent restrictive effect on migrants’ rights in the Member States. But given how these tools are constructed and how the institutions make very limited use of them, they turn out to be insufficient in providing legal resilience against this phenomenon. We have discussed the legal proceedings provided for by Articles 258–260 TFEU, the political procedures of Article 7 TEU and the soft law instruments that were introduced by the Commission to contain the value crisis that continues to develop throughout the Union. All of these options show significant shortcomings that, cynically enough, seem to have benefitted authoritarian governments in Member States.

EU institutions have long reacted too haltingly to serious rule of law and democratic concerns, which has enabled certain governments to excessively restrict migrants’ rights in the meantime. While the Von der Leyen Commission has committed to introduce new initiatives to strengthen democracy and respect for the rule of law in the Union and no longer tolerate shortcomings in this regard, it remains to be seen how successful its initiatives will be.

This chapter has shown that the new initiatives already face quite some challenges and that further political will and engagement will be needed to enhance the democratic functioning of the Union and uphold respect for its fundamental values. The damage caused by backsliding Member States is substantial and the EU will have to act upfront if it wants to avoid further deterioration. In our suggestions we first of all proposed that the EU makes better use of the tools that are available. Second, we proposed to sanction rogue Member States by tying EU funding to rule of law compliance. However, while in December 2020 a rule of law conditionality mechanism was adopted in relation to EU funds, its practicality and effectiveness have been attenuated considerably under the pressure of obstinate Member States.

7 The Loss of Face for Everyone Concerned EU Rule of Law in the Context of the ‘Migration Crisis’

Barbara Grabowska-Moroz and Dimitry Vladimirovich Kochenov

7.1 Introduction

The European Union, which is officially established as an entity based on the rule of law¹ according to its own Article 2 TEU,² currently faces a ‘rule of law crisis’ in several Member States, where the system of checks and balances is being gradually dismantled, judicial independence is undermined and systemic corruption is flourishing.³ Despite the availability of numerous instruments (e.g. Article 7 TEU, direct actions under Articles 258 and 259 TFEU, the financial repercussions of non-compliance under 260 TFEU, and many others)⁴ intended to deal with such existential threats – a Union not composed of rule of law-based democracies respecting human rights would be a misnomer – the political will to apply the available tools in practice is missing.⁵ The supranational side of the same coin has fared no better: while ‘rule of law’ emerged as the core rhetorical pretext for pushing for the unquestioned supremacy of EU law across the board,⁶ this created apparent conflicts with the Strasbourg human rights protection system and resulted in the Union’s failure to apply the same basic principles at the supranational level as it promotes at the national level, leading to the regrettable emergence of well-articulated double standards.⁷ The most clear-cut of these is the non-application of the core elements of the rule of law – the irremovability of judges and security of tenure⁸ – to the EU’s highest Court, as is clarified by the Vice-President of the institution.⁹ An embarrassing situation followed, calling into question the lawfulness of the composition of the Court.¹⁰ The illegally ousted Advocate General, whose term of office, which is established in Primary Law, has not yet expired, issued brilliant ‘shadow Opinions’ – also pertaining to core issues of EU migration law¹¹ – in parallel to those presented by the person purported to be an ‘Advocate General’ by the Member States and sworn in by the President of the Court in apparent violation of the Treaties.

On the other side of the same coin, the EU has been facing a ‘migration crisis’ in recent years, which is directly related to an absolute fiasco of its neighbourhood policy.¹² Barroso’s projected ‘ring of friends’ has effectively become (or at best remained) a renewed defilé of dictatorships or, in part, an unstable warzone, finding the EU and its Member States utterly unprepared for this reality, including the migration pressures it could generate: so much for the ‘promotion of values’ abroad – including in EU’s own backyard.¹³ The ‘migration crisis’, which came as a testimony to unpreparedness and deep failure of foreign policy over the years and focused on dictator appeasement combined with ignoring powerful interests and de facto spheres of influence, presented a seemingly novel challenge: its mitigation needed to follow the Union’s values, such as solidarity and the rule of law. This proved extremely difficult to achieve, as politically and also legally, deep intolerance to the migrant other became the new normal in the EU, often targeting not only third-country nationals, but also EU citizens, as Sarah Ganty has demonstrated.¹⁴ This reality ranges from border walls to pushbacks on land and at sea – sometimes with the full knowledge, if not the assistance, of FRONTEX¹⁵ – as well as broad acceptance of ‘culture’ and ‘integration’ tests.¹⁶ Europe today is without any doubt far removed from being a welcoming place, as thousands drown at sea from year to year, children are pushed to die in wintery forests and millions of hours are wasted by countless immigrants forced to learn ‘the local customs and language’ in an again intolerant Europe.¹⁷ At a more global level, the EU, although officially created with lasting peace in mind, has been traditionally markedly ineffective in promoting peace in the European continent and around it.¹⁸ The emerging picture is a disheartening one. It is difficult to decide what about the newly created post of the Commission Vice President for the ‘European Way of Life’ is a better illustration of just how bad this situation is: the fact that it exists, or the fact that it was thought to be a good idea.¹⁹

Against the above backdrop, this contribution focuses on the link between the rule of law and migration in the particularly poisonous context of democratic and rule of law backsliding in the EU.²⁰ Our analysis draws on the Hungarian case study,²¹ where overall institutional changes introduced since 2010 have led to the establishment of a regime described as ‘illiberal’ by some and as ‘authoritarian’ by others.²² We argue that Hungarian asylum policy is essentially designed with one key goal in mind: to deprive people of the right to seek asylum in breach of the international obligations of Hungary and of EU law. Introduced in response to the ‘migration crisis’ in 2015, it was a direct result of the broader process of rule of law backsliding. The Hungarian case study proves that the unresolved rule of law backsliding flourishing in some EU Member States affects both the practical implementation of EU basic values (e.g. solidarity) and the proper functioning of the EU policies (e.g. asylum policy).

Our hypothesis is that the rule of law is not secured sufficiently, either in the EU or by the EU, causing all concerned to lose face: EU values deserve better. Given how much the basic values of the EU, and especially the rule of law, are intertwined with the functioning of EU policies, we argue that reinforcement of the rule of law broadly conceived needs to be a part of the answer to the ‘migration crisis’ in the EU. Any substandard response in the field of the rule of law leads to deterioration of migrants’ rights and vice versa: anti-migration rhetoric and politics help entrench attacks on the rule of law in the backsliding Member States of the Union. Crucially, embracing a systemic connection between the responses to the two interrelated ‘crises’ should become a priority both at the EU and at the Member State level.

7.2 The Status of Values in the EU Legal System

The amendments introduced into the Treaties in the 1990s strengthened the visibility, status and the role of values, such as democracy, fundamental rights and rule of law, building on their antecedents, lingering among the unwritten principles and informal resources of the acquis.²³ At least on paper and as inspirational ideals, full compliance with the acquis at that time still had little to do, strictly legally speaking, with compliance with ‘values’²⁴ – hence the need for the ‘Copenhagen political criteria’ in the context of recent enlargement preparations.²⁵ The aftermath of enlargement proved that their practical implementation faces numerous legal and political obstacles.

Despite the fact that the Rule of Law is closely linked with the development of the European Communities as confirmed on numerous occasions in the case law of the Court of Justice,²⁶ the Member States tend to question its status, justiciability, meaning and function.²⁷ This questioning is not always without merit, given the complexity of the multilevel system of European constitutionalism.²⁸ That said, Laurent Pech managed to demonstrate quite convincingly that even the occasional differences in the articulation of its meaning notwithstanding,²⁹ the wholesome core of the rule of law is unquestionably sound.³⁰

It is thus not the ‘meaning game’ that we need to riddle, when the EU’s rule of law problems come to be illuminated. Rather, there seem to be two aspects of the rule of law crisis. The first is that some Member States deliberately undermine the existing system of checks and balances which allows the governments in power to amend and/or abuse the existing rules in order to remain in power, no matter what, through harnessing the apparatus of the state.³¹ The second aspect of the crisis consists in the fact that the European Union has been rather anæmic in its attempts to counteract rule of law backsliding in the Member States.³² Such an approach undermines the principle of the rule of law understood as a foundation of the EU and does not ensure that the Union is truly composed of rule of law-abiding democracies respecting human rights. Despite being codified in primary EU law, fundamental rights have enjoyed limited scope of application,³³ since they are addressed to the Member States only when they are implementing Union law. Furthermore, the verification of their practical implementation by Member States is limited due to the principle of mutual trust between EU Member States and the principle of autonomy of EU law.³⁴ The Charter of Fundamental Rights guarantees the right to asylum in a scope provided for by the Geneva Convention and in accordance with the EU Treaties.³⁵ In this sense attempts to limit the right to asylum are not only about violations of EU law, but also, significantly, about undermining globally recognised human rights instruments. From this perspective, the ‘migration crisis’ (also described as a ‘refugee crisis’ or ‘asylum crisis’) can be considered as a crisis of fundamental rights protection in the EU. From the institutional perspective it is ‘a crisis of the CEAS’.³⁶

EU integration has been facing numerous challenges in the recent years, some of which have been described as ‘crises’, while others – as ‘deficits’.³⁷ Such crises-deficits result in a situation in which the law is both contested – for good or bad reasons – and disapplied – again, for good or bad reasons. The Dublin Regulation, which is famously flawed, does not work in practice, leaving the problems it purported to alleviate unresolved, while unquestionably remaining ‘law’. Article 7 TEU, similarly, fails to protect, not only against authoritarian turns – but also against the undermining of legal rules.³⁸ There is also an important ‘populist element’ present in both cases.³⁹ This concerns both anti-elitism – and this includes rallying against courts and judges in the name of ‘democracy’ pursuing the goal of undermining judicial independence; and anti-otherness, targeting today not only ‘illegal immigrants’ – but also EU citizens with immigrant background in their family histories. How else does one protect ‘our European way of life’? The worse off here are the most vulnerable – the refugees. ‘Democratic’ fighting for ‘our way of life’ can thus build on the dismantlement of the rule of law with anti-refugee sentiments as the main driver deployed by the backsliding governments and gradually transferred to the European discourse and practice. Both the failure to tackle the problems of the dysfunctional Dublin system and the creation of the Commission Vice-Presidentship focused on the ‘European way of life’ are thus parts of the same anti-rule of law populist drive, which saw Hungary and Poland in a free fall in all the democracy and rule of law indexes. The ‘will of the people’, sometimes expressed via a referendum,⁴⁰ is frequently one of the main instruments in the re-charting of law and politics along anti-rule of law and anti-immigrant lines. The two emerged in ‘our European way of life’ as two sides of the same coin, and both levels of government – supranational and national – are to blame. Furthermore, the populist critique of human rights also refers to the ‘people’, arguing that the ‘human rights project’ has given up on this mission and has started to serve particular groups and promote particular agendas.⁴¹ Such rhetoric directly undermines pluralism, a foundational value in the EU project.⁴² Lastly, it goes without saying that the challenges described above erode the core fabric of which EU law is woven: the principle of mutual trust.⁴³

7.3 When Rule of Law Backsliding Meets ‘Migration Crisis’: Hungarian Asylum Law before the Court of Justice

Commissioner Viviane Reding, when discussing the ‘rule of law crisis’ in 2013, referred to three examples: ‘the Roma crisis in France in summer 2010; the Hungarian crisis that started at the end of 2011; and the Romanian rule of law crisis in the summer of 2012’.⁴⁴ After ten years the Hungarian crisis has led to the establishment of the first autocracy in the European Union – a ‘Partly Free’ EU Member State.⁴⁵ Institutional arrangements undertaken by the government in Hungary since 2010 have strengthened the executive against any independent entity. Such an institutional, procedural and political shift allowed the government to introduce numerous policies directly affecting fundamental rights and freedoms – freedom of association, academic freedom, and right to asylum.⁴⁶

There are no effective checks and balances which would control and supervise whether a policy is reasonable, effective or acceptable in the light of Constitution, international law or the moral values of a given society. Using the ‘migration crisis’ to ramp up populist sentiments, the Hungarian government introduced an asylum policy which de facto limited the right to asylum to a degree where there could be no such right in practice. The populist othering game went as far as the criminalisation of those ‘assisting migrants’ and large-scale PR campaigns against the figures criticising the government, from George Soros, the founder of the CEU, to key figures at the European Commission.⁴⁷ ‘Othering’ is popular and can become a banner under which the rule of law is destroyed.

A barbed-wire fence was erected along the country’s southern border; crossing the border fence became a criminal act; two transit zones were established, where people were kept without any ‘detention order’; the courts’ competences were limited;⁴⁸ a ‘pushback’ policy was implemented; since 2018 all asylum applications were automatically declared inadmissible if the applicant had transited Serbia;⁴⁹ and finally, as mentioned above, providing assistance to asylum-seekers also became a criminal act. In 2016 alone, the Hungarian government spent approximately twenty-eight million euros on its large-scale xenophobic anti-immigrant campaign.⁵⁰ In October 2018 a referendum was held in Hungary in which the Hungarians were asked ‘Do you want the European Union to prescribe the mandatory settlement of non-Hungarian citizens in Hungary without the consent of the National Assembly?’ Despite the low turnout, Viktor Orbán announced that ‘Hungarians decided that only we Hungarians can decide with whom we want to live’.⁵¹

The very idea of migration, especially ‘non-Western’ migration, came to be immensely politicised. The politicisation of migration⁵² diagnosed in numerous Member States, was a result of the polarisation of attitudes towards EU migration policy,⁵³ and without any doubt was also a reaction to the very essence of what the EU has stood for from its inception: a Union in which the internal market is the main objective and the core element of achieving it is open internal borders and the strict enforcement of the principle of non-discrimination on the basis of nationality. Unthinkable elsewhere in the world, given the nationality’s main function – it would be absurd to claim that any of the Member States enjoys any control over its borders or its population.⁵⁴ No nationalist would like this, of course, and Orbán has been very skilful in riding the wave of hate he fuelled in full knowledge of the outright nihilistic, at least legally speaking, nature of his referendum, combined with all the PR activity: by joining the EU, Hungary had surrendered the right, precisely, to determine essentially who will inhabit its territory.⁵⁵ The law was thus not on the ‘othering’ populists’ side.

Would it be surprising, then, that the officially endorsed and madly serialised narrative offered by the Hungarian government rests heavily on creating a link between ‘rule of law’ and ‘migration’ – suggesting that criticism based on ‘rule of law’ aims at forcing Hungary to ‘let illegal migrants in’,⁵⁶ and as a result the procedure initiated under Article 7 TEU, constitutes a ‘revenge campaign of the pro-migration elite’.⁵⁷ Insofar as the EU is bound to ensure that its law’s claim to supremacy succeeds⁵⁸ and that an effective right of asylum is indeed provided in the EU – however flawed its problematic legal framework may be on the subject⁵⁹ – Orbán’s propaganda has thus got several key points about the nature of the EU right. Indeed, Hungary cannot in the majority of cases decide who will live in Hungary and yes, it is against the law to try to do so without taking EU legal instruments fully into account.

The second point that the Orbán propaganda machine got across relates to the criticism of ‘migration’ per se, which is presented as a threat to Hungary,⁶⁰ resulting in the ‘securitisation’ of migration⁶¹ and the humiliation of migrants. Hungary is not alone here – take the UK⁶² or Denmark⁶³ as other examples – but Hungary is notorious for bringing this basic point to an extreme. For Fidesz, the crux of the matter is not even ‘Britishness’ or ‘the knowledge of the Danish language and culture’: any act of migration by ‘non-Western’ ‘others’ is presented in the official narrative as a direct threat to ‘Christian values’ – never mind the religion of the migrants – thus justifying the rhetorical need of protecting these values.⁶⁴ The only value enjoying protection here is boring old racism – not an atypical stance in the contemporary ‘West’ of the passport apartheid,⁶⁵ but probably somewhat more clearly articulated in Hungary than, say, Denmark, and thus a little bit more obnoxious. Orbán even employs the term ‘Christian democracy’ to describe a regime which he used to name ‘illiberal democracy’.⁶⁶ This description of course advanced despite the fact that the functioning of Hungarian ‘transit zones’ can hardly be linked to any ‘Christian standard’,⁶⁷ not to mention the fact that Hungarian ‘democracy’, to quote András Sajó’s brilliant recent account, is ‘Ruling by Cheating’.⁶⁸

The anti-migration policy adopted by the Hungarian government since 2015 became the subject of numerous infringement actions initiated by the European Commission. The first concerned the opposition to fulfil the relocation plan adopted in 2015 as a part of the ‘European Agenda on Migration’.⁶⁹ The aim of the relocation programme was to support Greece and Italy and relocate almost 1,600,000 refugees to other Member States. The programme operated on the basis of two Council decisions⁷⁰ which were challenged by the Czech Republic and Hungary⁷¹ before the Court of Justice.⁷² One reason for the reluctant response to EU initiatives, such as the relocation scheme in many EU countries, has been the rise of nationalistic populist parties in national elections in several EU Member States.⁷³ In the proceedings before the Court, the Polish government argued, for example, that the relocation scheme was disproportionate with respect to states that are ‘virtually ethnically homogeneous, like Poland’ and ‘whose populations are different, from a cultural and linguistic point of view, from the migrants to be relocated on their territory’.⁷⁴ The Court’s ruling, which dismissed this reasoning, was seen as a milestone since solidarity and burden-sharing were framed for the first time as obligations, rather than as discretionary.⁷⁵

Following the unsuccessful challenge of legality of the relocation scheme, Hungary (alongside Poland and the Czech Republic) faced proceedings regarding their failure to fulfil obligations under the relocation decisions.⁷⁶ Hungary, Poland and the Czech Republic argued that their actions – refusal to accept refugees under the relocation scheme – were justified due to the ineffectiveness of the scheme and the need to safeguard internal security. The governments argued that such ‘withdrawal’ from the realm of legal obligations directly binding on them was acceptable in the light of Article 72 TFEU, which specifies that ‘This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’. The Court disagreed with this argument and underlined that Article 72 TFEU must be interpreted strictly⁷⁷ and ‘cannot be read in such a way as to confer on Member States the power to depart from the provisions of the Treaty based on no more than reliance on those responsibilities’.⁷⁸ It further underlined that Member States cannot rely on their ‘unilateral assessment’ to avoid their obligations.⁷⁹ This was in particular due to the binding nature of the Decisions and from the perspective of their aim – solidarity, finding that ‘in a European Union based on the rule of law, acts of the institutions enjoy a presumption of lawfulness’.⁸⁰ Advocate General Sharpston was as simple on this matter as she was clear: ‘respect for the rule of law implies compliance with one’s legal obligations’.⁸¹ She added that ‘solidarity is the lifeblood of the European project’, which ‘requires one to shoulder collective responsibilities and (yes) burdens to further the common good’.⁸²

There is also an important ‘political aspect’ to the relocation story – that ‘consensus in the EU has to be formed on the political level’,⁸³ to forestall legal challenges of its crucial elements. The media reported that outside the legal proceedings, it was being suggested that the relocation decisions themselves, rather than the lawless behaviour of the recalcitrant Member States, were the ‘original sin’ that broke trust between the Commission and Eastern and Central European governments.⁸⁴ The lack of an actual will to cooperate and genuinely act in solidarity with other EU Member States is seen as one of the reasons why the relocation system failed.⁸⁵ This legal fight reinforced the position of the ‘anti-immigrant’ leaders at home: connecting the destruction of the rule of law with anti-immigration policies has seemingly paid off.⁸⁶

The main elements of the new asylum policy were subject of the second infringement procedure against Hungary, initiated already in 2015, but did not reach the Court until 2018.⁸⁷ The case covered the most disturbing elements of the ‘asylum procedures’ applied in two ‘transit zones’. Access to the asylum procedure was ‘systematically and drastically’ limited,⁸⁸ which was found to be incompatible with Article 6(1) of Directive 2013/32. The obligation to remain in the transit zones (surrounded by a high fence and barbed wire) was recognised as ‘detention’,⁸⁹ which had not been ordered on a case-by-case basis⁹⁰ and was thus contrary to numerous provisions of Directive 2013/32.⁹¹ The Court also found that the so called pushback policies violated EU law. However, according to the Hungarian Helsinki Committee, the policy is still in use.⁹² As a result FRONTEX – an EU agency currently under EP investigation for, precisely, pushbacks elsewhere – decided to suspend operations in Hungary.⁹³ This is a puzzling decision, given the growing evidence of FRONTEX’s own involvement in pushbacks and harassment, in attempts to prevent the effective protection of rights.

The third infringement action deals with the legislation that criminalises organising activities with a view to ‘enabling asylum proceedings to be brought in Hungary by a person who is not persecuted in his or her country of nationality, country of habitual residence or any other country via which he or she arrived […] or who does not have a well-founded fear of direct persecution’. The Commission argued that such legislation violates EU law and in 2019 brought the infringement case to the Court.⁹⁴ The Opinion in this case was delivered by ‘AG’ Rantos.⁹⁵ He found that the Hungarian government had breached EU law⁹⁶ by criminalising activities designed to enable asylum proceedings to be brought by persons who do not meet the criteria for the granting international protection established by national law.⁹⁷ The Hungarian authorities argued that the challenged provision of domestic law must be interpreted in light of the clarification provided by the Hungarian Constitutional Court, which had ruled that the provision ‘does not penalise negligent conduct, but exclusively acts which are committed deliberately’.⁹⁸ It is, however, up to the authorities to decide whether the action meets the criteria of being ‘deliberate’. The Greek gentleman wrote that ‘in any event, criminalising assistance provided to applicants for international protection could have a particularly significant deterrent effect on all persons or organisations who, knowingly, try to promote a change in legislation or a more flexible interpretation of national law, or even claim that the relevant national law is incompatible with EU law’.⁹⁹ As a result, the challenged provision ‘de facto prevents or, at the very least, significantly restricts any activity providing assistance to applicants for international protection carried out by persons or organisations.’¹⁰⁰ The above finding seems to be even more evident if the analysis is concentrated on the asylum seeker directly. As Advocate General Sharpston underlined in her Shadow Opinion in the case of H.A.,¹⁰¹ dealing with the Dublin system, ‘[a]n applicant for international protection is not a statistic. He or she is a human being, who has the right to be treated fairly and with dignity’.¹⁰² Limiting access to legal assistance renders meaningless the right to be treated fairly.

All the hard work of the Court of Justice, including the infringement actions and preliminary rulings in response to the requests from the Hungarian courts quite expectedly failed to produce any major policy shifts on the ground: Hungary remains closed to refugees. As a result of preliminary references, however, the Court acquired a chance to rule on the main elements of the Hungarian asylum law before the infringement actions confirmed those findings.¹⁰³ Consider transit zones – the Court in FMS had already found in May 2020 that placement in transit zones amounted to unlawful detention.¹⁰⁴ The Government criticised the ruling as ‘dangerous’, arguing that it ‘poses a security risk to all of Europe’,¹⁰⁵ but also decided to close the transit zones in May 2020.¹⁰⁶ It shows, first and foremost, how important the time factor is in the decision-making process of the European Commission – the guardian of the Treaties – regarding initiating infringement actions against Member States. Second, the role of the independent domestic courts, indispensable actors in guaranteeing rule of law standards, cannot be overstated, especially in the context of asylum cases.

7.4 Why Solving the ‘Migration Crisis’ Requires EU Rule of Law Resilience

It is well known that the existing EU asylum legal framework does not constitute an effective tool to ensure that the fundamental rights of all those concerned are safeguarded. Indeed, it has been abundantly confirmed that the Dublin Regulation does not produce such results,¹⁰⁷ which constitutes a huge challenge for the rule of law. It is a result of two constitutional problems with the rule of law in the European Union. The first is a ‘design problem’ which amounts to the fact that the rule of law is not really an EU institutional ideal.¹⁰⁸ Later claims notwithstanding, it was not a foundational value and its understanding is often limited to the requirement of legality. The jurisdictio–gubernaculum divide is missing in the EU legal system.¹⁰⁹ This all led to a situation where Article 2 TEU tends not to be regarded – mistakenly in our view – as part of the ordinary EU acquis.¹¹⁰ The second issue is a ‘functionality problem’ – the inability to enforce EU values effectively, neither politically nor legally.¹¹¹ This is notwithstanding the overwhelming progress made over recent years in the area of the rule of law, especially by the Court of Justice.¹¹² The existing tools have been ineffective in the face of all the deliberate attempts to undermine checks and balances in some EU Member States. Interestingly enough, similar design and enforcement shortcomings have also been highlighted with regard to the ‘migration crisis.’¹¹³ In short, on top of the Hungarian mockery of the law described above, it is fundamental to realise that the rule of law and migration contexts are also intertwined because the EU law in question is absolutely inadequate and – which could be even worse for our purposes – its rigorous enforcement could be presented as much of a threat to the rule of law and the protection of fundamental rights as breaking it.

The EU actions, including infringement actions and Article 7 TEU procedure, did not solve the rule of law backsliding in Hungary. Dismantlement of the checks and balances gave the public authorities a broad discretion regarding public policies, including protection of fundamental rights and the right to asylum. As a result, the Commission had to initiate numerous infringements regarding violations of EU asylum law, dealing with such basic issues as access to asylum procedure or access to legal assistance. In our opinion such basic violations of the right to asylum would not have been introduced if the rule of law backsliding was tackled effectively in Hungary. Despite the Commission’s small juridical victories, the infringement actions did not change the essence of the Hungarian asylum policy, which makes seeking asylum in Hungary highly challenging, especially for the Mediterranean route migrants. In other words, we are dealing with yet another instance of what we have characterised elsewhere as ‘losing by winning’, writing with Kim Scheppele.¹¹⁴ The Commission’s Court victories change absolutely nothing at the systemic level. Worse still, given the shortcomings of the Dublin system, ideal compliance with EU law would be prone to producing chronic violations of the right to seek asylum – we will turn to this point below. Such a ‘vicious circle’ shows that solving ‘migration crisis’ is directly linked with the need to handle the rule of law backsliding in EU Member States, as well as addressing the justice deficit and other flaws plaguing EU law at the supranational level.

It goes without saying that the inability of the EU to address rule of law backsliding is only one side of the coin. The second, once again, is that EU law per se does not offer the basic rule of law standards required to guarantee asylum rights. The so-called EU-Turkey deal, one of the main tools aimed at dealing with the ‘migration crisis’, provides an interesting example of such EU rule of law shortcomings. The deal was reached in 2016 and aimed at limiting the number of people seeking asylum who reached the EU Member States from the Mediterranean area.¹¹⁵ It was a part of the EU Migration Agenda.¹¹⁶ According to the agreement all new irregular migrants crossing from Turkey into the Greek islands from 20 March 2016 would be returned to Turkey.¹¹⁷ In return the EU distributed 3 billion euros to the Facility for Refugees in Turkey. The focus of criticism of the deal was the danger of human rights abuses in Turkey.¹¹⁸ In 2017 an annulment action was brought to the General Court by three persons who had travelled from Turkey to Greece, where they submitted applications for asylum. Under the EU-Turkey deal they could be returned to Turkey if their applications for asylum were rejected. They argued that the EU-Turkey deal is an international agreement that the European Council, as an institution acting in the name of the EU, concluded with the Republic of Turkey. The obvious unstated objective of such agreement is to annihilate the right to seek asylum in the EU. The General Court, however, ruled that it lacks jurisdiction to hear and determine these actions under Article 263 TFEU, reaching the conclusion that it was not the EU but its Member States which conducted negotiations with Turkey and the Court did not have jurisdiction to rule on the lawfulness of an international agreement concluded by the Member States.¹¹⁹ The Court of Justice dismissed¹²⁰ the appeals after finding them ‘incoherent’,¹²¹ ‘worded in a vague and ambiguous manner’,¹²² ‘lacking any coherent structure’.¹²³ Switching off the fundamental rights guaranteed in EU and international law in direct breach of what both these legal orders purport to guarantee is thus absolutely fine in the EU system of the rule of law, freeing the Member States to demonise asylum seekers, view them as a threat and are unwilling to adhere to the really quite low standard of protection guaranteed by EU and international law. The desire of the Member States not to honour clear obligations is the law, as the world has learned from the Court’s engagement with the EU-Turkey deal.

The apparent supranational rule of law problems were further exacerbated by the positions adopted by the institutions in the context of this litigation. The EU institutions denied before the General Court that they participated in signing the agreement with Turkey despite the wording of the press release, which referred to the ‘EU-Turkey Statement’. The EU has done all it could to hide a mass assault on the rights of asylum seekers that it had orchestrated behind truly ingenious and flimsy excuses, amplifying serious concerns about the accountability of the European Union institutions and the Union as a whole.¹²⁴ Approached from this vantage point, Orbán’s government in Hungary is a model pupil in the EU’s school of values with the only difference being that it does not claim that ‘it was not Hungary’ that built a barbed-wire fence and engaged in the systematic abuse of asylum seekers to void their rights of any content. The EU is seeking the same results, but under the juvenile banner that ‘it was not me’. An international agreement reached outside the legal framework required by the Treaties, affecting fundamental rights and freedoms to the point of de facto threatening to eliminate them, and remaining outside the jurisdiction of the Court, constitutes a huge challenge to the idea that the rule of law is a foundational value of the EU: just another example of how mythical the fable of the completeness of the system of legal remedies in the EU is. Numerous examples beyond Turkey prove the same point: paying Libyan thugs to enslave people for ransom with the use of EU intelligence as the New Yorker reported is also “our way of life”. It is thus beyond any doubt that the problematic tandem of waning rule of law and migrants’ rights deterioration is not merely acute in the context of the analysis of the situation in the backsliding EU Member States, but it should also be taken seriously when considering the supranational level.

The image of the EU emerging in this context is directly opposite to the ‘Union based on the rule of law’, let alone a Union giving full respect to the rights of asylum seekers and compliance with EU law. The supranational level flaws affecting the rule of law picture and adding to its complexity, thus further came to light. The rationale behind the double standards in how the Court of Justice treats Union institutions as opposed to the individual Member States embarking on exactly the same exercise of robbing the most needy of all their rights and sometimes of their lives, will need to be explained by the Court in its future case law.

7.5 Conclusion

The rule of law is purported to be one of the core values on which the EU is founded. The same applies to respect for human rights, especially those set out in the Charter of Fundamental Rights and entering the EU legal system from the ECHR. Those most basic aspects of European law are currently facing the biggest political and legal challenges, frequently described as ‘crises’: a rule of law ‘crisis’ and a migration ‘crisis’. Crises can be perceived as an important stage of development or progress, emerging as true turning points. Political will both at the supranational and at the national level emerges, however, as an indispensable factor to turn the ‘rule of law’ into a truly foundational and constitutional value of the EU and make it work for rather than against safeguarding the rights of all those entangled in the ‘migration crisis’. As our analysis has shown, both the national – as illustrated by Hungary – and the EU regulatory levels have demonstrated eagerness to annihilate fundamental rights, undermining the basics of the rule of law and obfuscating the levels of legal and political responsibility for ‘crisis’-inspired actions aimed at harming rights. The recurrent connection between migration and the rule of law has thus been feeding a dangerous vicious circle, lowering the level of rights protection and eroding rule of law guarantees, as well as undoubtedly the legitimacy of the Union as a whole. Should this trend not be reversed, all Europeans – just like the foreigners at our shores – are going to be markedly worse off as a result, while our ideals are being progressively turned into empty proclamations by the European Union and its Hungaries alike.