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Reforming the Common European Asylum System — Legislative developments and judicial activism of the European Courts pp 5–38Cite as

The Road to the Common European Asylum System: From Amsterdam to Lisbon and Beyond

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Abstract

Any investigation of the EU asylum system and the creation of CEAS necessarily requires an analytical approach which unpacks its inherent tensions. The multi-faceted conflict that underlies this area of EU law results from a rather uneasy cohabitation between intergovernmentalism and supranationalism and opposing objectives and discourses, namely, economic, efficiency/management and securitization goals versus human rights protection, fairness and justice.

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Notes

  1. 1.

    The term “essentially contested concept” was first developed in the philosophy of language, see Ref. [1]; in the EU context, Besson defines it as ‘a concept that not only expresses a normative standard and whose conceptions differ from one person to the other, but whose correct application is to create disagreement over its correct application or, in other words, over what the concept itself is…. It is [the concept's] nature not only to be contested, but to be contestable in [its] essence, so that not only [its] applications, but also [its] core elements or criteria are contestable;’ see Ref. [2], at 6, available at http://eiop.or.at/eiop/texte/2004-015a.htm.

  2. 2.

    It should be noted that these tensions extend to the whole AFSJ. Walker maintains that ‘these fundamental value dilemmas are compounded by problems of political feasibility and implementation,’ Ref. [3], at p. 25.

  3. 3.

    It matters because sovereignty and statehood are inextricably intertwined with identity, i.e. who we are, who is a friend, who is an enemy, and who is a stranger, and history, i.e. where we came from, how we became friends, how we got here, where we are, and where we are going in the future. It therefore provides the ontological and legitimating mooring of state intervention and regulation, see Ref. [4].

  4. 4.

    See Ref. [5].

  5. 5.

    See Ref. [6].

  6. 6.

    See Ref. [7], at 136; for a polycentric conception of sovereignty which does not entail the demise of the state, see Ref. [8, 9].

  7. 7.

    See Ref. [10].

  8. 8.

    Ibidem, 414.

  9. 9.

    See Ref. [11], at 1118.

  10. 10.

    See Ref. [7], see footnote 6.

  11. 11.

    I have borrowed this expression from French who examines similar issues in relation to the role of autonomy in international environmental law, see Ref. [12], at 263.

  12. 12.

    By the same token, Besson refers to the necessary “reflexive” nature of sovereignty, in that its correct use requires a process of perpetual contestation of one's conceptions of the concept and therefore one's exercise of sovereignty; see Ref. [2], see footnote 1.

  13. 13.

    See Ref. [13], at 1078.

  14. 14.

    See French (2009), see footnote 11, at 267.

  15. 15.

    In a similar vein, “inclusive sovereignty” conceives power as an ability to maintain control over some decisive factors as well as influencing other agents (e.g. states) acting within a wider structure of governance such as for example global financial markets, international relations, and international organizations. Hence, inclusion and influence replace exclusion and autonomy. Additionally, the centres of such power do not necessarily coincide with traditional states. See e.g. Refs. [14, 15].

  16. 16.

    Sarooshi cogently maintains that the essentially contested nature of sovereignty remains the same whether we talk about national or international sovereignty. This unity of identity provides a compelling reason for international organizations’ existence and, linked to that, a rationale for the construction of the normative framework that governs international organizations in the exercise of their delegated powers of government. This two-fold claim is substantiated by the fact that organizations provide a forum, transcendental to the state, where conceptions of sovereignty-and more specifically the content of sovereign values- can be contested on the international plane. This—according to Sarooshi- will be effectively achieved through the application of domestic administrative or public law principles to the definition of an international organization’s normative framework of competence and use of delegated powers. See Sarooshi (2003–2004), see footnote 9.

  17. 17.

    A “looped hierarchy” is defined as an interaction among various levels of decision-making (within the hierarchical order) in which the highest level directs back to the lowest level and influences it while at the same time the highest level is determined itself by the lowest one, see Ref. [16].

  18. 18.

    See Besson (2004), see footnote 1.

  19. 19.

    Ibidem, 1084.

  20. 20.

    Emphasis added.

  21. 21.

    See Ref. [17].

  22. 22.

    See Ref. [18], at pp. 201 and 203.

  23. 23.

    See Ref. [17], see footnote 21, at 1084.

  24. 24.

    Securitization theory is pivotal for the understanding of the restrictive trajectory characterizing EU asylum measures, see further Refs. [19–21].

  25. 25.

    See Ref. [22].

  26. 26.

    This principle is examined in further detail in the next section and in Chap. 4.

  27. 27.

    See Ref. [23].

  28. 28.

    E.g. Article 24 of the Qualification Directive; see also the Long-term Residents Directive which in the amended version extends long-term resident status to refugees and beneficiaries of subsidiary protection on a similar basis as other third country nationals legally living in the EU for more than five years. In particular, they will enjoy a number of rights such as the right to free movement within the EU, including the right to become a resident in another EU Member State, and under certain conditions, equality of treatment in relation to education, access to the labour market and social security benefits, see Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44, 23 January 2004, as amended by the Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection, OJ 132/1, 19 May 2011.

  29. 29.

    See Ref. [24], at p. 33.

  30. 30.

    See Ref. [25].

  31. 31.

    See Ref. [26].

  32. 32.

    See Ref. [27].

  33. 33.

    See Ref. [28].

  34. 34.

    See European Commission, Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, COM (2001) 510 final; European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Committee Report on the proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, COM (2001) 510—C5-0573/2001—2001/0207 (CNS)), PE 319.971/A5-0333/2002.

  35. 35.

    See Case C-465/07, Elgafaji v Staatssecretaris van Justitie, [2009] ECR I-921, examined further below in Chap. 4.

  36. 36.

    The critical appraisal will comprise two types of goals: procedural goals, namely, those concerning “who” adopts/implements and “how” asylum policies are or should be adopted and implemented; and, substantive goals concerning what rights constitute the “public good” to which asylum-seekers have access.

  37. 37.

    See Ref. [29].

  38. 38.

    Other important international legal instruments for the protection of asylum-seekers and refugees are those human rights treaties belonging to the United Nations (UN) family to which most European countries are parties to, namely, the 1966 International Covenant on Civil and Political Rights (ICCPR) (which provides similar protection guarantees as the ECHR), the 1948 Universal Declaration of Human Rights (UDHR), the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the 1965 Convention on the Elimination of All Forms of Racial Discrimination (CERD), the 1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the 1989 Convention on the Rights of the Child (CRC) and the 2006 Convention on the Rights of Persons with Disabilities (CRPD).

  39. 39.

    See Article 1A.

  40. 40.

    Such treaties are not explicitly mentioned in Article 78 TFEU. However, there is general consensus that they may comprise the UN Convention on the Rights of the Child of 1989, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 and the International Covenant on Civil and Political Rights of 16 January 1966.

  41. 41.

    See Ref. [30], at p. 10.

  42. 42.

    The General Rule of Interpretation in Article 31(1) of the Vienna Convention states that treaties ‘shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in light of its object and purpose.’ See Ref. [5], see footnote 1, at p. 390.

  43. 43.

    See Article 26 of the Vienna Convention on the Law of Treaties (1155 UNTS 331; entered into force 27 January 1980), which provides that: ‘Pacta sunt servanda- Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

  44. 44.

    Article 27 of the Vienna Convention provides that international law has primacy over domestic law: ‘a state may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’

  45. 45.

    See Ref. [30], see footnote 41, at p. 12.

  46. 46.

    See Ref. [31].

  47. 47.

    See Article 2(1) of the ICCPR which provides that rights are applicable to ‘all individuals within [a State’s] territory and subject to its jurisdiction.’

  48. 48.

    See Ref. [5], see footnote 4, at p. 234.

  49. 49.

    Ibidem, at p. 412.

  50. 50.

    In the past various international organizations and non-governmental agencies have developed general principles on asylum procedures, e.g. see Ref. [32–34]. However, such recommendations whilst of high value do not constitute an authoritative source of interpretation.

  51. 51.

    With the term “irreversible” I am referring to the fact that, despite some rebellious and die hard Member States and notwithstanding the existence of differentiated integration mechanisms, the EU will survive its very own self only through a departure from atomistic systems of regulation to a pluralistic one largely based on shared competence.

  52. 52.

    Kostakopoulou argues that the ToA changes in the field of JHA marked the beginning of a third phase in the development of a European immigration policy and constituted a break in the intergovernmental methodology. By extension, the same consideration can be made in relation to EU asylum measures; see Ref. [35], at 182.

  53. 53.

    See Ref. [36], at p. 30.

  54. 54.

    What is being said is not meant to underestimate the coming into existence of other forms of competence which were given a more formal recognition around the same time such as, for example, coordination (see e.g. Articles 5 and 6 TFEU). It is however the author’s view that shared competence constitutes a durable and thus preferable form of competence if the EU is to carry on existing in the foreseeable future.

  55. 55.

    For an account of the historical background of the legislative and policy developments in asylum, see Ref. [37–45], in this chapter and Chap. 5.

  56. 56.

    It should be noted that Title IV EC inserted by ToA did not establish ‘an area of freedom, security and justice’, but rather introduced mechanisms and a timetable for the progressive establishment of such an area.

  57. 57.

    See Ref. [46].

  58. 58.

    Beyond any philosophical delving on the meaning of “voluntary”—certainly not the intention here- it should be noted that EU asylum law exemplifies the extant tensions in many areas of EU law, namely the inherent ambiguity between what was initially designed to be a body of law premised largely upon state voluntarism and what has ultimately become a supranational system of law. From this perspective, the tensions within EU asylum law are arguably innate within a state-based system of law.

  59. 59.

    Classical approaches espouse a monistic conception of sovereignty, which is seen as a key organizing principle and source of legitimation for state action. E.g. [47–50]. In the context of international law, De Vattel, developed the theory of a voluntary law of nations and its necessary corollary of states’ self-interestedness, which was grounded in the notion of the state as a compound moral person that had a duty under natural law to perfect itself. According to this theory, states committed themselves to international agreements with the proviso that these pledges were only binding insofar as states continued to view them as such. For de Vattel a state had an understanding and a will (the latter intertwined and united by the pacts of a number of men, and thus the will of all), of which it made use for the conduct of its affairs, and was capable of obligations and rights. See Ref. [51].

  60. 60.

    See Refs. [52, 53]. For an analysis of the measures and instruments employed in the context of the Europeanization of asylum, see Ref. [54].

  61. 61.

    See Presidency Conclusions of the Tampere European Council 15–16 October 1999, pp. 3–4; see also Ref. [55].

  62. 62.

    See Ref. [56].

  63. 63.

    In legal theory the term ‘meta-principle’ refers to an umbrella principle from which other principles derive as corollaries or as natural consequences; see e.g. Ref. [57, 58].

  64. 64.

    The Dublin Regulation allocating responsibility for the examination of asylum applications presupposes that all EU Member States comply with certain standards of protection in order to avoid arbitrary differences of treatment, and to reduce the risk of secondary movements between Member States, see Council Regulation No. 343/2003 of 18 February 2003. Similarly, this objective has been expressly stated in the Preambles of all the first generation asylum Directives, e.g. see Recital 9 of the Temporary Protection Directive (Directive 2001/55 of 20 July 2001), Recital 8 of the Reception Conditions Directive (Directive 2003/9 of 27 January 2003), Recital 7 of the Qualification Directive (Directive 2004/83 of 29 April 2004) and Recital 6 of the original Asylum Procedures Directive (Directive 2005/85 of 1 December 2005).

  65. 65.

    See Ref. [59].

  66. 66.

    See Ref. [60], at p. 255.

  67. 67.

    Idem.

  68. 68.

    The fact that the Asylum Procedures Directive was only adopted beyond the May 2004 deadline because of strong disagreement on various controversial issues confirms what has been said above about the great difficulty in achieving harmonization in the field of asylum, see Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/13.

  69. 69.

    The reference to a common asylum procedure in the 2004 Hague Programme in many aspects recalled the “single procedure” as defined by the Commission during the first period of implementation of the implementation of the Tampere Programme, see European Commission Communication, Towards a Common Asylum Procedure and a Uniform Status, Valid Throughout the Union COM (2000) 755 final, pp. 8–9.

  70. 70.

    See Ref. [61], at p. 378.

  71. 71.

    See Ref. [62].

  72. 72.

    See Ref. [63].

  73. 73.

    This is discussed in further detail in Chap. 5.

  74. 74.

    See also Refs. [64, 65].

  75. 75.

    See Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L 212/12, 7 August 2001; Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304/12, 30 September 2004; Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/, 13Dec. 2005; Council Regulation No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50/1, 25 Feb. 2003; Council Directive 2008/115/EC on common standards and procedures for illegally staying third country nationals, OJ L 348/98 of 16 December 2008.

  76. 76.

    See Ref. [66]; see also Ref. [67]

  77. 77.

    See Ref. [68].

  78. 78.

    See Ref. [69], at 38.

  79. 79.

    See Ref. [70, 71].

  80. 80.

    See Ref. [72].

  81. 81.

    A first package of proposals included: Ref. [73–75]. A second package included: Ref. [76, 77]. See Ref. [78], for detailed analysis and commentary. The recast process is largely the focus of Chap. 3 of this volume.

  82. 82.

    See European Commission Communication to the European Parliament and the Council, An area of Freedom, Security and Justice serving the citizen, COM (2009) 262 final, 10 June 2009.

  83. 83.

    E.g., see Ref. [79], at 695; for a view according to which restrictive national measures are likely to be countered by arguments founded on the peremptory norm of non-refoulement see Ref. [80, 81].

  84. 84.

    See Ref. [82]. The agency, which is based in Malta and became fully operational in June 2011, plays a key role in the concrete development of CEAS and asylum protection. It has been established with the aim of enhancing practical cooperation on asylum matters. In particular, EASO acts as a centre of expertise on asylum and also provides support to Member States whose asylum and reception systems are under particular pressure. First, it provides training on asylum procedures and processes, such as assistance in screening by asylum support teams, development of technical documents, provision of country of origin information reports and training of national experts, including members of the judiciary. It can also provide tailor-made (technical) assistance, such as capacity building and relocation, as well as emergency support in the form of solidarity to help repair or rebuild asylum or reception systems (e.g. Article 80 TFEU). In the longer-term the agency could have a significant influence on Member States’ asylum measures, including (indirectly) individual asylum decisions.

  85. 85.

    See Recital 31, which provides that: ‘This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and should be applied in accordance with the right to asylum recognised in Article 18 of the Charter.’

  86. 86.

    See Recitals 10, 17, Articles 2(5), 5, 9(1), 12(2), 25(4), 27(1), 29(2) subpara. 3, 32(2), 50, 51(3) subpara. 2.

  87. 87.

    See Ref. [83].

  88. 88.

    See Ref. [84], at 116.

  89. 89.

    See Ref. [83], see footnote 87, at p. 76.

  90. 90.

    See Ref. [85].

  91. 91.

    See Ref. [86], at p. 164.

  92. 92.

    See Ref. [87], at p. 203.

  93. 93.

    For example, the Council has completely rejected the proposal to establish a mechanism for the possible suspension of the Dublin rules in cases of Member State’s deficiencies and thus suspension of transfers, agreeing instead to insert rules on an ‘early warning mechanism’ which in practice would not affect the application of the Regulation; this is examined further below, infra, Chap. 3.

  94. 94.

    See Ref. [84], see footnote 88, at 108.

  95. 95.

    See Nicholson, see footnote 77, at p. 525.

  96. 96.

    See e.g. Refs. [88, 89] for academic commentary see Ref. [90].

  97. 97.

    See Ref. [91], at 154.

  98. 98.

    Idem.

  99. 99.

    It was former Article 67(5) EC which introduced QMV in order to enable the amendment of the first generation of asylum Directives.

  100. 100.

    See Ref. [92].

  101. 101.

    The European Parliament and the Council managed to agree on the revision of the Qualification Directive, which was then officially adopted in November 2011. However, the Council had difficulty agreeing on how to revise the recast of the other Directives with the result that the Commission had to amend proposals for the Directives on reception conditions and asylum procedures, in order to restart discussions.

  102. 102.

    See further in Chap. 3.

  103. 103.

    The amended proposals reproduced in the adopted Recast Directives contain mostly cosmetic changes and do not require Member States to raise their standards very much. Arguably, the second phase of the CEAS resembles the first phase; see Ref. [93]; see Refs. [94, 95].

  104. 104.

    See Ref. [96].

  105. 105.

    See e.g. Case C-465/07, Elgafaji and Elgafaji [2009] ECR I-921; Cases C-175-179/08 Abdulla and Others, judgment of 2 March 2010, nyr; and C-31/09 Bolbol [2010] ECR I-5539.

  106. 106.

    See e.g. the Czech Republic case, Supreme Administrative Court case of March 13, 2009, no 5 Azs 28: 2008, the UK case of QD & AH (Iraq) (Appellants) v. Secretary of State for the Home Department (Respondent), [2009] EWCA Civ 620; the German case of Complainant v Respondent, BVerwG 10 C 4.09 VGH 8 A 611/08.A, judgment of the Federal Administrative Court, 27 April 2010. All three decisions build on the Elgafaji ruling.

  107. 107.

    See Ref. [97]; see also Ref. [98].

  108. 108.

    See Council Directive 2004/83/EC as amended by Directive 2011/95/EU.

  109. 109.

    See Judgment of the Federal Administrative Court (Bundesverwaltungsgericht) BVerwG 10 C 4.09 VGH 8 A 611/08.A, 27 April 2010, infra paras 22–34.

  110. 110.

    It is noteworthy that the Statute of the ECJ does not permit third-party intervention despite the fact that the UNHCR for instance is considered as providing “valuable guidance” in the application and implementation of asylum law, see Recital 22 of the Recast Qualification Directive.

  111. 111.

    By way of example, the Bolbol case took some 17 months from the reference in January 2009 to the judgment of the Court in June 2010. Similarly, in the Abdulla case the order of reference submitted by the German court made in early 2008 did not receive a ruling by the ECJ until 2 March 2010.

  112. 112.

    The PPU procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Articles 108–109 of the Rules of Procedure of the Court of Justice.

  113. 113.

    In the field of asylum and border control, see e.g. Case C-357/09 PPU Kadzoev, Judgment of the Court (Grand Chamber) of 30 November 2009, nyr, and Case C-61/11 PPU Hassen El Dridi alias Soufi Karim, Judgment of the Court (First Chamber) of 28 April 2011, nyr, both concerning the Returns Directive (Directive 2008/115/EC), Case C-278/12 PPU Atiqullah Adil v Minister voor Immigratie, Integratie en Asiel Judgment of the Court (Second Chamber) of 19 July 2012, nyr, concerning the Schengen Borders Code. Judgment of the Court (Second Chamber) of 19 July 2012, nyr, concerning the Schengen Borders Code.

  114. 114.

    See Ref. [99]; see also Ref. [100].

  115. 115.

    This lack of transparency is in stark contrast with the Court’s emphasis on openness as pivotal for ensuring greater legitimacy of the Union Institutions vis-à-vis EU citizens, see Joined Cases C-39/05 P and C-52/05 P, Kingdom of Sweden and Maurizio Turco v Council of the European Union [2008] ECR I-4723.

  116. 116.

    Giving reasons for rejecting a PPU request would provide valuable guidance to other referring courts about when a PPU case is not “absolutely necessary;” Cfr. Joined Cases C-261/08 and C-348/08 María Julia Zurita García, Aurelio Choque Cabrera v Delegado del Gobierno en la Región de Murcia [2009] ECR I-10143 in which the PPU request was rejected (and thus the case was heard on the basis of the standard preliminary ruling procedure) with Case C-278/12 PPU Atiqullah Adil v Minister voor Immigratie, Integratie en Asiel Judgment of the Court (Second Chamber) of 19 July 2012, nyr, where the PPU request was accepted; both cases concerned the interpretation of Regulation 562/2006 (i.e. the Schengen Borders Code).

  117. 117.

    See Ref. [101].

  118. 118.

    The new provisions entered into force on 1st November 2012; see Article 210 of the Rules of Procedure of the Court of Justice of the European Union (OJ L 265/I, 29.9.2012).

  119. 119.

    To this end, the new Rules introduced a separate, third Title on references for a preliminary ruling (Articles 93–118). In 2011, 423 references for a preliminary ruling were submitted to the ECJ of which 44 in the field of AFSJ (23 cases completed), see the 2011 Annual Report of the Court of Justice, Section D, Statistics of Judicial Activity of the Court of Justice, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-06/ra2011_statistiques_cour_en.pdf.

  120. 120.

    First, a case connected to another pending case assigned to a Judge Rapporteur can be assigned to the same Judge Rapporteur, even if he/she is not a member of the designated Chamber (Article 108 (2)). Second, another Member State can be invited to participate in the proceedings, in case the request for a preliminary ruling refers to an administrative procedure or to judicial proceedings in its territory (Article 109 (3)).

  121. 121.

    Formerly Articles 63, points 1 and 2, and 64(2) EC.

  122. 122.

    See Refs. [79–81], see footnote 83, at 695.

  123. 123.

    For analysis and commentary, see Refs. [102–105]; see also Ref. [106, 107]

  124. 124.

    For further analysis, see Refs. [108–112].

  125. 125.

    See e.g. Case C-72/06 Commission v Greece [2007] ECR I-57.

  126. 126.

    See e.g. Case of Sharifi and others v Italy and Greece (Application No. 16643/09) communicated on 13 July 2009; see also UN High Commissioner for Refugees, Written Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Sharifi and others v Italy and Greece (Application No. 16643/09), October 2009, Appl. No. 16643/09, available at: http://www.unhcr.org/refworld/docid/4afd25c32.html; ECRE, Defending Refugees’ Access to Protection in Europe, December 2007, available at: http://www.ecre.org/topics/areas-of-work/access-to-europe/95-defending-refugees-access-to-protection-in-europe.html.

  127. 127.

    See Refs. [113, 114].

  128. 128.

    This can be inferred from the reasoning of the Court in Bolbol, C-31/09 Bolbol [2010] ECR I-5539, examined above and also, more recently, from the ruling in Case C-245/11 K v Bundesasylamt (Austria), Judgment of the Court (Grand Chamber), nyr, and Case C-528/11 Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski, nyr, Judgment of 30 May 2013.

  129. 129.

    By “de-nationalization” I refer to the demise of individual states’ centrality in decision-making most well-represented by conventional approaches to national sovereignty. I am not suggesting a clear-cut supranationalization over and beyond intergovermentalist forms of decision-making at EU level, the premise being that states in a post-Westphalian era can only survive as a collectivity.

  130. 130.

    See Articles 5(3) TEU and 69 TFEU.

  131. 131.

    See Protocols 1 and 2.

  132. 132.

    See Article 12(c) TEU.

  133. 133.

    See Hailbronner, see footnote 63, p. 8.

  134. 134.

    See Article 6 (1) TEU; for critical analysis, see Ref. [115].

  135. 135.

    See Ref. [116], at 1204.

  136. 136.

    See Ref. [117], at 1576.

  137. 137.

    See Ref. [118].

  138. 138.

    Idem.

  139. 139.

    See Opinion of AG Maduro in Case C-465/07 Elgafaji and Elgafaji [2009] ECR I-921.

  140. 140.

    E.g., see the Qualification Directive 2004/83 and the Procedures Directive 2005/85.

  141. 141.

    E.g., C‐175/08 Abdulla case where the ECJ refers, among other things, to the respect of the rights protected in the EU Charter.

  142. 142.

    See Ref. [119].

  143. 143.

    See Ref. [120].

  144. 144.

    On Article 14 UDHR, Gammeltoft-Hansen and Gammeltoft-Hansen say that the provision does seem to require a right to an asylum procedure of some kind for it to be meaningful, see Ref. [121].

  145. 145.

    See Ref. [119], see footnote 142, at 48 and 50.

  146. 146.

    See Ref. [122], at p. 430.

  147. 147.

    Ibidem, at p. 431.

  148. 148.

    See AG Maduro Opinion in C-465/07 Elgafaji v. Staatssecretaris van Justitie [2009] ECR I-921, para. 30.

  149. 149.

    See Ref. [123].

  150. 150.

    See Ref. [124], at 36.

  151. 151.

    See Praesidium of the European Convention [120], see footnote 143.

  152. 152.

    See also Article 13 of the ICCPR.

  153. 153.

    For instance, in the revised Reception Conditions Directive there is reference to “standards” rather than “minimum standards” reflecting the wording of the ToL. However, Member States will still be free to set “more favourable provisions” for asylum-seekers (e.g. Article 4); similarly with regard to the revised Asylum Procedures Directive where the focus shifted to setting “common procedures” rather than “minimum standards”, again reflecting the revised wording of the ToL. However, Member States will still be free to set “more favourable provisions” for asylum procedures (e.g. Article 5).

  154. 154.

    In examining the Asylum Procedures Directive, Vedsted-Hansen argues that Member States are willing to accept a relatively high degree of harmonization in some policy areas, while in others persist in defending domestic legislation, thereby in effect undermining the minimum harmonization stipulated by Article 63 EC, for a combination of regulatory tradition and calculated evasion [emphasis added], see Ref. [60], see footnote 66, at p. 262.

  155. 155.

    See Ref. [125].

  156. 156.

    See chapter 2, Title V, Part Three.

  157. 157.

    For examples, see footnote 153.

  158. 158.

    See Ref. [125], see footnote 155, at p. 4.

  159. 159.

    Examples are the transposition of provisions relating to the refugee definition and/or the definition of persons eligible for subsidiary protection or the transposition of mandatory provisions on refusal or termination of refugee and subsidiary protection status in the event that there are no provisions under national law. See also Ref. [126], 4.

  160. 160.

    See M. Symes, see footnote 150, at 29.

  161. 161.

    See Ref. [127].

  162. 162.

    See Ref. [128], at 17.

  163. 163.

    See Ref. [129].

  164. 164.

    See Ref. [129], see footnote 159.

  165. 165.

    See Ref. [130].

  166. 166.

    See Ref. [131].

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Velluti, S. (2014). The Road to the Common European Asylum System: From Amsterdam to Lisbon and Beyond. In: Reforming the Common European Asylum System — Legislative developments and judicial activism of the European Courts. SpringerBriefs in Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40267-8_2

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