Select Committee on European Union Sixteenth Report


Article 11:[Asylum]

1.  The Union shall develop a common policy on asylum and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy shall be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties.

2.  For this purpose, the European Parliament and the Council, in accordance with the legislative procedure, shall adopt laws or framework laws to establish a common European asylum system comprising:

--  a uniform status of asylum for nationals of third countries, valid throughout the Union;

--  a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;

--  a uniform status of temporary protection for displaced persons in the event of a massive inflow;

--  a common procedure for granting and withdrawing asylum status or subsidiary or temporary protection status;

--  criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

--  standards concerning the reception of applicants for asylum or subsidiary or temporary protection.

3.  In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, by a qualified majority, may adopt regulations or decisions comprising provisional measures for the benefit of the Member State(s) concerned. It shall act on a proposal from the Commission after consulting the European Parliament.

Explanatory note

"The draft article is based on the Working Group's recommendations on page 4 of the final report:

….. "That qualified majority voting and codecision be made applicable in the Treaty for legislation on asylum, refugees and displaced persons; - That Article 63(1) and (2) TEC be redrafted in order to create a general legal base enabling the adoption of the measures needed to put in place a common asylum system and a common policy on refugees and displaced persons as set out in Tampere. This legal base should, as in the present Treaty, ensure full respect of the Geneva Convention but enable the Union also to provide further complementary forms of protection not embraced by that Convention".

Paragraph 3 reproduces current Article 64(2) TEC; the temporary measures that may be adopted are not exclusively confined to the area of asylum law.

"Nationals of third countries" must be understood to include stateless persons."

commentary

38.  Article 11 goes a step further than the current Treaty by expressly aiming to establish a 'European asylum system' with uniform standards and common procedures. In so doing it reflects political decisions already taken. At the Tampere European Council, Member States decided that a common European asylum system was to be established by a two-stage process. Member States have agreed on a number of matters establishing minimum standards to be addressed in the short (first) term. In the long (second) term a truly common asylum procedure and a unified status for refugees, valid throughout the Union, would be established.

39.  The first stage requires the adoption of a number of key measures, including a Directive on minimum standards in asylum procedures for granting and withdrawing refugee status (the Procedures Directive[29]—still under negotiation), a Directive on minimum standards for reception of asylum seekers[30] (now agreed[31]), a Regulation (replacing the Dublin Convention) on criteria and mechanisms for determining the State responsible for examining asylum requests[32] (now agreed[33]), a Directive on qualification and content of refugee status and on subsidiary forms of protection[34] (still under negotiation).

40.  The references in Article 11(2) to "subsidiary protection" are especially welcome. In our Reports on the Procedures Directive and the Reception Standards Directive[35] we drew attention to the absence of provision for those claiming such protection status. The draft Directive on qualification and content of refugee status and on subsidiary forms of protection is the only measure in the current asylum package to address the position of those seeking such protection. Union action in this area should take account of all bases for international protection and any common asylum policy should ensure high standards (particularly in relation to procedures and reception conditions) and consistency in application across the Union.[36]

41.  The last paragraph of the Praesidium's Explanatory note on this Article states: ""Nationals of third countries" must be understood to include stateless persons". We agree. The text of Article 11 should be amended accordingly.

Article 12:[Immigration]

1.  The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

2.  To this end, the European Parliament and the Council, in accordance with the legislative procedure, shall adopt laws and framework laws in the following areas:

--  conditions of entry and residence, and standards on the issue by Member States of long term visas and residence permits, including those for the purpose of family reunion;

--  definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing the freedom of movement and of residence in other Member States;

--  illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;

--  combating trafficking in persons, in particular women and children.

3.  The Union may conclude readmission agreements with third countries for the readmission of third-country nationals residing without authorisation to their countries of origin or provenance.

4.  The European Parliament and the Council, in accordance with the legislative procedure, may adopt laws and framework laws providing incentive and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories.

Explanatory note

"This draft article is based largely on Article 63(3) and (4) TEC, but applies qualified majority voting and the legislative procedure (codecision), as recommended by the Working Group (see page 5 of the report). Paragraph 4 adds a legal base, as recommended by the Working Group (see page 5 of the report:

"that a legal base should be provided to allow the Union to take incentive and support measures to assist Member States' efforts to promote the integration of legally resident third-country nationals").

In addition, in paragraph 2, second indent, a slightly different wording has been proposed. It is more in line with the objective set at Tampere of legislating on the legal status held by legally resident third country nationals in their country of residence and in other Member States (on this point, see also page 5 of the Working Group's final report). Lastly, explicit references have been added to combating trafficking in persons and to readmission agreements, in order to highlight the importance place of these two aspects (which are covered by the existing Treaty) in the Union's existing policy.

The definition of this sector as one of shared competence (see Article 12 of draft Part One submitted by the Praesidium) means that Member States may maintain national provisions or introduce new ones in this sector, providing that they are compatible with Union law, without it being necessary to repeat the principle (which is currently set out at the end of Article 63 TEC)."

COMMENTARY

42.  Article 12 is a considerably expanded version of Articles 63(3) and (4) TEC. Paragraph 1, which refers to the objectives of the EU immigration policy, mentions for the first time the 'efficient management of migration flows'—a concept which has been used by the Commission in its work on migration[37] and recently in the conclusions of the Seville European Council[38]. Managing migration flows is to be accompanied by fair treatment of legally resident third country nationals and action to prevent and combat, by 'enhanced measures', illegal immigration and trafficking in human beings.

43.  EU competence regarding legally resident third country nationals (TCNs) is considerably extended.[39] Article 12 is not limited to defining their right of residence. Paragraph 1 refers to the general objective of 'fair treatment of TCNs', while paragraph 2 envisages the adoption of EU legislation defining the rights of legally resident TCNs including (but not limited to) 'the conditions governing the freedom of movement and of residence in other Member States'. A further and important innovation is the inclusion of Article 12(4), which gives the EU a competence for 'supporting action' with the view of promoting the integration of legally resident TCNs.

44.  Changes are also proposed to the Treaty language on illegal immigration. Article 12(1) refers for the first time to its 'prevention', while there is also a reference to 'enhanced measures' to combat illegal immigration and trafficking in human beings. It is not clear what the meaning of 'enhanced measures' is, and whether it signifies a shift to stricter control measures in the field. Article 12(2) also refers to illegal immigration and unauthorised residence, which is deemed to include 'removal and repatriation of persons residing without authorisation'. This appears to be inspired by the prioritisation of expulsion policies decided at the Seville European Council, coupled with pressure towards the conclusion of readmission agreements between the EU and third countries.[40] In this respect, Article 12(3) provides a broad legal basis for the conclusion of such agreements enabling the readmission of TCNs residing without authorisation to their countries of origin or provenance.

45.  In our Reports and day-to-day scrutiny we have repeatedly emphasised the need for a 'common' EU approach to immigration. It remains to be seen whether Article 12 will provide a basis for a balanced EU approach to immigration which this Committee has consistently advocated,[41] combining the opening up of avenues of legal migration with the effective control of illegal immigration. The reference to more 'inclusive' measures on legally resident TCNs is a welcome step in this direction. A further impetus towards the enhancement of EU action in the field, in particular as regards more 'inclusive' measures, will be provided by the shift from unanimity and consultation to qualified majority voting and co-decision ('the legislative procedure') provided for by Article 12(2). This is a positive step to avoid legislative paralysis in an EU of 25, but will be controversial in view of Member States' reluctance to relinquish power in sensitive matters such as the treatment of TCNs.

46.  On the other hand, Article 12 contains no specific references to positive policies to encourage lawful routes for the admission of migrants currently outside the Union. Further, the broad wording relating to illegal immigration ('enhanced measures') and the specific reference in the Article to removal and repatriation may lead to a greater emphasis on stricter control measures.

Article 13:Principle of solidarity
The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility (including its financial implications) between the Member States. Whenever necessary, the acts of the Union adopted pursuant to the provisions of this Chapter shall contain appropriate measures to give effect to this principle.

Explanatory note

"Draft article based on the recommendation on page 4 (third indent) of the Working Group's final report.

"… While acknowledging the responsibilities of the Member States, to enshrine in the Treaty the principle of solidarity and fair sharing of responsibility (including its financial implications) between the Member States, applying as a general principle to the Union's asylum, immigration and border control policies. A specific legal basis should enable the adoption of the detailed policies necessary to give effect to this principle.""

COMMENTARY

47.  Article 13 fleshes out the reference to solidarity in Article 1, where it is considered, along with the fair treatment of legally resident third county nationals, as one of the bases of a common policy on asylum, immigration and border controls. The need for solidarity and the fair sharing of responsibility between Member States has been raised in the context of the negotiations of the 'Dublin II' Regulation[42] as well as, and perhaps most prominently, in the context of the debate over the need to have an integrated EU management of external borders[43]. The explicit reference to the 'financial implications' of solidarity is noteworthy, though it is not clear what it will entail in practice.

Chapter 2: Judicial cooperation in civil matters

Article 14:[Judicial cooperation in civil matters]

1.  The Union shall develop judicial cooperation in civil matters based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation shall include the adoption of measures for the approximation of national laws having cross-border implications.

2.  To this end, the European Parliament and the Council, in accordance with the legislative procedure, shall adopt laws and framework laws aiming inter alia to ensure:

--  the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;

--  the cross border service of judicial and extrajudicial documents;

--  the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;

--  cooperation in the taking of evidence;

--  a high level of access to justice;

--  the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

--  the development of measures of preventive justice and alternative methods of dispute settlement;

--  support for the training of the judiciary and judicial staff.

3.  The Council, on a proposal from the Commission, shall unanimously[44] adopt laws and framework laws concerning family law; it shall act after consulting the European Parliament. The European Parliament and the Council, in accordance with the legislative procedure, shall adopt laws and framework laws concerning parental responsibility.

Explanatory note

"This provision is based on Article 65 TEC. The only amendments to Article 65 TEC which emerged from the Working Group's final report are the following:

--  enshrining of the principle of mutual recognition of judgments and decisions in extrajudicial cases (end of page 6 of the report);

--  development of measures of preventive justice and alternative methods of dispute settlement;

--  training of the judiciary and judicial staff;

--  the codecision procedure for measures concerning parental authority, which would be the only sector of family law in which unanimity would not apply (see pages 6 and 7 of the report).

The Praesidium felt that there was no longer any justification for keeping the current reference to "the proper functioning of the internal market" (Article 65 TEC) in the new provision. The phrase is included in existing Article 65 TEC partly because this provision is an element of Community policies and is linked to the free movement of persons in the context of the internal market.

Once the new Treaty contains a separate title on the area of freedom, security and justice, the reference to "the proper functioning of the internal market" can be considered redundant. Moreover, the most important aspect to be to emphasised in this context is that the envisaged measures under judicial cooperation in civil matters have a "cross-border impact", reference to which is included in the proposed provision.

Finally, in line with the Tampere conclusions, it seemed important to add the explicit statement that the Union must also take measures aimed at ensuring a high level of access to justice. This could have consequences for the future establishment of minimum standards guaranteeing an appropriate level of legal aid for cross-border cases throughout the Union, and special common procedural rules in order to simplify and speed up the settlement of cross-border disputes concerning small commercial claims under consumer legislation or to establish minimum common standards for multilingual forms or documents in cross-border proceedings."

COMMENTARY

48.  Article 14 largely replicates Article 65 TEC. The changes are listed in the Praesidium's Explanatory note printed above. It is noteworthy that the current limitation in Article 65 TEC (that measures can be taken only "in so far as necessary for the proper functioning of the internal market") has been replaced by a "cross-border implications" test. The "internal market" criterion has sometimes seemed rather artificial and strained, for example, in the context of measures relating to the recognition and enforcement of judgments in matrimonial matters and to matters of parental responsibility. The new test is preferable, being more apposite to closer cooperation in non-economic matters. What is important is that there should be a genuine and proven need for action at the European level and that in future the Commission will take full account of the need to respect different legal systems, and their values and traditions (as envisaged by Article 1 above).

49.  The opportunity should also be taken to clarify the meaning of "extrajudicial cases" and "extrajudicial documents". Further, we note that the eighth indent of paragraph 2 of this Article refers to "support" for the training of judges, while the third indent of Article 15(2) (criminal matters) refers to encouraging judicial training. What is the significance of the different wording? Does "support" imply making money available?

Chapter 3: Judicial cooperation in criminal matters

Article 15:[Judicial cooperation in criminal matters]
1.  Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judicial decisions and shall include the approximation of legislation in the areas referred to in Articles [16] and [17].

2.  The European Parliament and the Council, in accordance with the legislative procedure, shall adopt laws and framework laws to:

--  establish rules and procedures for ensuring the recognition throughout the Union of all forms of judgments and judicial decisions;

--  prevent and settle conflicts of jurisdiction between Member States;

--  encourage the training of the judiciary and judicial staff;

--  facilitate all other forms of cooperation between ministries and judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

Explanatory note

"The first paragraph of this draft article is based on one of the Working Group's core recommendations:

see page 8: "… the new formulation of these legal bases must reflect the right balance between the principle of mutual recognition and efforts to approximate criminal laws: as it was politically agreed in Tampere, the principle of mutual recognition should be the cornerstone of judicial cooperation, allowing judicial decisions of one Member States to be recognised by the authorities of another Member State. The Group recommends that this principle of mutual recognition of judicial decisions should be formally enshrined in the Treaty. The Group also recognises that some approximation of certain elements of criminal procedure and of specific areas of substantive criminal law, respecting the different European legal traditions - as well as the provisions of the ECHR as reflected in the Charter in particular concerning the presumption of innocence -, may prove necessary in order to facilitate mutual recognition.".

The second and fourth indents of paragraph 2 are based on existing Article 31(1)(a) and (d) TEU.

The first indent includes a recommendation made by the Working Group (see page 12 of the final report:

"In the field of judicial cooperation, the Group recommends however that the legal basis be complemented so as to enable adoption of the necessary measures for the mutual recognition of judicial orders, fines, disqualification decisions, and all other forms of judicial decisions; this would be a logical consequence of enshrining the principle of mutual recognition in the Treaty.".

By way of clarification, the third indent incorporates an explicit legal basis for the training of judges and judicial staff, which was mentioned on page 11 of the Group's report."

COMMENTARY

50.  Article 15(1) restates the principle of mutual recognition of judicial decisions, now set down in Article 31 (see above), as one of the ways in which the Union shall ensure an area of freedom, security and justice. Article 15(2) provides a legal basis for the adoption of measures on judicial cooperation in criminal matters. It is our experience that the difficulties and sometimes controversy (eg the European Arrest Warrant) lie not in the existence of such a power but fears about the way in which it may be exercised.


29   The subject of our Report Minimum Standards in Asylum Procedures (11th Report, Session 2000-01, HL Paper 59). A revised text of the proposal is being prepared. Back

30   The subject of our Report Minimum Standards of reception conditions for asylum seekers (8th Report, Session 2001-02, HL Paper 49). Back

31   Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. [2003] OJ L 46/18. Back

32   The subject of our Report Asylum applications: who decides? (19th Report, Session 2001-02, HL Paper 100). Back

33   Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L 31/18. Back

34   The subject of our Report Defining refugee status and those in need of international protection (28th Report, Session 2001-02, HL Paper 136). Back

35   See footnotes 29 and 30 above. Back

36   Defining refugee status and those in need of international protection (28th Report, Session 2001-02, HL Paper 136, at paras 42 and 43). Back

37   For example in the recent Communication on integrating migration issues in the EU's relations with third countries (COM (2002) 703 final) currently held under scrutiny by Sub-Committee F. Back

38   Presidency conclusions (paragraph 27). Back

39   Article 63(4) TEC is a legal basis for the adoption of measures defining the rights and conditions under which legally resident TCNs may reside in other Member States. A proposed Directive under this Article has been the subject of a detailed inquiry by this Committee. See The Legal Status of Long-Term Resident Third-Country Nationals (5th Report, Session 2001-02, HL Paper 33). Back

40   Presidency Conclusions, paragraphs 30 and 33-36. Back

41   See our Report A Community Immigration Policy (13th Report, Session 2000-01, HL Paper 64) and our latest Report A Common Policy on Illegal Immigration (37th Report, Session 2001-02, HL Paper 187). Back

42   The Committee examined this proposal in detail: Asylum Applications-Who Decides? (19th Report, Session 2001-02, HL Paper 100). Back

43   Sub-Committee F is currently examining the issue in the context of its "European Border Guard" inquiry. Back

44   Once it has considered Part Two in its entirety, it will be for the Convention to take a decision across the board on any exceptions to the qualified majority rule and, consequently, on the voting rules which should apply in this and other Articles of this draft which refer to unanimity. Back


 
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