European Agenda on migration and protection of refugees; “Europe is not equal to the task”

By Henri Labayle, CDRE

These strong words stated by the President of the Commission at the close of the European Council Summit mirror the situation perfectly. The disappointment they translate is matched by the political gesture carried out by the chief of the Executive. It is only fitting that he is done justice.

The tepidity of the conclusions adopted by the heads of state and government is in fact symptomatic of a Europe which is deluding itself with words and is incapable of respecting the very values it lays claim to. In short, Europe is in the midst of both an identity crisis and a direction crisis. As they are incapable of coming to an agreement on compulsory reception of applicants for persons seeking protection (1), the member states have merely complacently assented to the basic principle of this reception (2).

  1. Refusal of any binding mechanism

It took no great mind to guess what would follow the courageous proposition of the Commission to finally give solidarity among Member States some tangible meaning. These very States would have us believe that solidarity has been set in the stone of the Treaties to such an extent that right here, in this blog, we had come to the conclusion that the obvious outcome would be an early burial or otherwise that it was just political a political manoeuver.

It was in fact very unlikely that there would be a clear majority in favour of the central ideas contained in the proposal made to the Council establishing provisional measures concerning international protection for the benefit of Italy and Greece (COM (2015) 286). A political if not numerical ambition underlay the proposal: States were asked to resettle and relocate 60,000 persons seeking international protection in the European Union in a compulsory fashion over a period of two years, on the basis of distribution criteria.

For once the Union did not disappoint those observing it; the Union was indeed incapable of assuming its responsibilities, as per usual. However, the novelty can be found in the front lines which have emerged at this point and which go beyond mere verbal posturing.

  1. Slowness of operational measures

The martial discourse of the heads of state and government during their meeting held on 23rd April warned human traffickers in Libya feeding the migratory crisis, to beware of their military might. As soon as these words came into contact with reality they pathetically evaporated. This was far from the ‘immediate’ response promised to victims.

The discreet adoption of a decision of the Council of Foreign Affairs ministers on 18th May 2015 which gave the go ahead to a military operation under the name of EUNAVFOR MED (Decision (PESC) 2015/778) is not enough to hide the extreme political and technical complexity of such an intervention. Right from the very first article this decision undertakes to “identify, capture and destroy vessels and assets used” or suspected of being used by traffickers. Therein, quite obviously, lies a major difficulty of implementation and articulation of international law and sovereignty of the costal state concerned, or at least what remains of its sovereignty.

While waiting for a hypothetical agreement from the United Nations Security Council which is barely convinced about the relationship between people smuggling and terrorism or security in Libya, the European Union leadership has been keeping a decidedly low profile. With very little publicity surrounding its launch, the ministers decided to “activate” the first sequence of the operation. This involves indispensable intelligence and information sharing before launching military force if the need be on Libyan soil. It has the added immediate advantage of saving the United Nations from adopting a resolution. Nor are agreements with certain national parliaments needed as potentially would be the case with the Federal Republic.

Thus, discreetly- without the go ahead given from the United Nations- the Council of Foreign Affairs-without its members voting- launched the operation. It was very simply hailed in a reminder, once more of a highly discreet nature, being qualified as an “important contribution” in the conclusions of the heads of state and government at the Council meeting. Half a dozen vessels and submarines, the same number of planes and drones are the concrete manifestation of the participation of a dozen Member States, most notably France, the United Kingdom, Italy, Luxemburg and Belgium.

The Union’s generous proclamation on the absolute necessity of saving human lives in the Mediterranean will just have to wait until the end of summer before it comes into fruition…

The repercussions of the Commission’s proposal on distribution of protection seekers were far-reaching as we had indeed predicted. The context, however, was unforeseen. The flaring up of tension on display for all to see during the European Council revealed that not only are new divides opening up but also revealed their true depth.

  1. Widening divide

As soon as the proposal was put forward by the Commission, the ordinary oppositions piped up. It nevertheless revealed an unusual amount of tension surrounding this dossier. By putting ordinary immigration and protection due to victims of persecution in the same basket, the Commission committed a faux pas which has done nothing to alleviate tension. Almost immediately public opinion and politicians seized hold of the issue using the terms that we remember and transformed what fundamentally should merely have been a debate about asylum seekers and international protection into an open debate on supposed “quotas” for ordinary immigration. The spin put on this question meant that the initiative was more or less doomed to fail from the very beginning…

The first opposition in this type of debate is a classic one; States and front lines are divided, there are those which are immediate objects of the migratory pressure and those which are placed behind the second curtain, not overly inclined to agree with the former. Faced with the Italian and Greek protestations, very few chancelleries felt up to the challenge of a frank exchange on the question, from the United Kingdom to the Federal Republic and the Nordic states whose reception figures prove the impasse of the Dublin system on a daily basis. Nothing has changed on this point.

The French palinodes have been characteristic of the prevailing hypocrisy and doublespeak on this issue. In addition to a hazardous intra-governmental communication, the French authorities have taken great pleasure in adopting one of their preferred postures, that is to say an outpouring of verbosity matched with a moralistic tone about “values” and asylum. It does little to convince anyone that France is taking its common/shared responsibility and the reality of French-style asylum is unfortunately far less glorious than how French authorities would portray it. One only has to witness the homeless people in Calais who refuse to ask for protection in France as they would rather try their luck across the Channel. Nonetheless, the official discourse purported to less rigid regulations with the French authorities making- at the same time- both their opposition to the term ‘quotas’ and their openness to discussion on the theme known. With just one rather important proviso to modify the criteria advanced by the Commission by taking into consideration the “efforts already accomplished”. In other words, remaining on the same basis as before the crisis…

Recent events have but confirmed this discrepancy. The Franco-Italian tensions over their shared interior border have illustrated it without there being any need to cruelly remind the French Minister of the Interior of his connection with the previous episode of the Schengen Area crisis during the Arab Spring and under the strict authority of Silvio Berlusconi and Nicolas Sarkozy who are now abhorred…

Denying the reality of a spectacle filmed by television cameras and NGOs nonetheless, French authorities refuted any police blockades on the border and chose rather to stress the obligations of the reception country, notably those stipulating the readmission of irregular immigrants and Dublin III, much to the fury of the Italian authorities. Since then, on June 29th, the State Council hearing did not interpret the images provided by the claimants’ lawyers in the same was as anyone with any common sense would; the magnitude of the controls would not of course be such that one could conclude that border controls were being reestablished…

Another perhaps even more worrying aspect has been added to these manifestations which unfortunately have been seen before. A second divide has opened up whereby the eastern State Members of the Union schematically oppose the other Members. Forgetting his position and promptly donning his homeland’s discourse for all to hear during the European Council, the President strongly voiced what is unsaid in this conflict with regards to common asylum and immigration policy in the East of the Union.

One must recall that the bulk of the Union’s ambition on this issue was expressed before 2004. The Member States of the time were determined to make entering the Union and the Schengen Area as difficult as possible. As many of the new Member States had had next to no experience with migration or migratory culture, very little reluctance was shown in adopting legislation that appeared passably abstract seeming as their non-European immigration flow was almost non-existent.

The crisis which the Union is currently confronted with plunges it into a dual reality, one of seeing their own borders being put under considerable pressure as is the case for Bulgaria and Hungary for example, and another one involving the necessity of meeting solidarity principle obligations which had been subscribed to upon adopting Article 67.2 of the TFEU. This is not such a simple thing to implement, even for the country in which Solidarnosc originated and would appear to be unaware of what the word means. Poland reluctantly received 720 refugees in 2014, whereas Belgium granted positive responses to 8045 applicants while Sweden accepted 30650 refugees. The situation of the Baltic countries (Estonia 20, Latvia 25, Lithuania 75) or Slovenia (45), contrasts drastically with that of Bulgaria (7020). At any rate, it clarifies the solid wall of resistance which successfully blocked the Commission’s proposal.

Particularly as this hostility was once again demonstrated by Hungary’s intolerable behaviour, one can wonder about the apathy of the Union’s authorities with regards to the attitude of their Hungarian counterparts. This attitude is indeed becoming increasingly incompatible with the pursuit of objectives under a common asylum and immigration policy conforming to the balances set by the treaties. Henceforth extravagance is no longer purely verbal but resonates in actions.

Furthermore, we know the choice made by Victor Orban (and it has been perspicuously described) to use the migration question as a foil. Provocative campaigns, proposing a barrier separating Hungary and Serbia on the grounds of the transit of thousands of immigrants through this third State and an opinion poll assimilating terrorism risks and immigration are all deeply worrying manifestations which European passivity has encouraged.

Never, however, until now has any sort of act such as the one which Victor Orban committed on June 23rd ever occurred. In a blatant breach of the law and with a total disregard for their commitments towards the community, the Hungarian authorities have announced that they unilaterally suspended the Dublin rule due to the migratory pressure that Hungary is under. This argument, even if it is not unfounded, is indefensible. The continental route is indeed taken by an increasing number of people as it is safer and over 50 000 migrants took it in 2014, that is to say an increase of 880% according to Frontex. This explains the understanding that the European Council has shown towards both the Hungarian and Bulgarian situations.

The fact remains that- and the Union’s legal order is founded on this principle- the pre-eminence of European law and the loyal cooperation obligation require every Member State to apply all legal rulings encompassed in this law. Breaking away from an international reading of the law, the logic of the Union’s law follows a legislative application. As Hungary subscribed to this application and its principles when it joined the Union, it is now breaking away from this agreement, hence the very careful wording of “technical measures”’ meant to reassure a fairly silent Commission.

All these deep disagreements explain how- if but reluctantly- the principle of reception came to light.

  1. Agreement to the principle of reception

The time spent on this issue by the Council was to no avail. The commission’s plea to render the relocalisation and resettlement of 40 and 20 000 protection seekers was not acted on by the heads of state and government. In a roundabout fashion the Council’s conclusions postponed signing an agreement at that point. Although the word “voluntary” does not explicitly appear in their conclusions, it is however clearly implied in their stipulations.



  1. A merely “voluntary” reception

Mentioning “decisions adopted by the Council in April” during its extraordinary meeting on June 25th, the heads of state and government pretend to consider that the debate on the Commission’s proposal of “mandatory” distribution is already over.

This a posteriori qualification is questionable when faced with a stance which is in fact purely a political manoeuver. The “decisions” made on April 23rd shine by their weak normative aspect. This can be seen when referring to point 3 under paragraph O of the conclusions of April 23rd. The members of the European Council “today commit to reinforce internal solidarity and responsibility” which brings them to “consider options for organizing emergency relocation between all Member States on a voluntary basis”. By giving a mandate to the Commission’s president to present proposals, the European Council actually kept different avenues open, as recent legislative works and debates in the Council of Ministers have confirmed.

Also, the Commission’s stance had been firmer in the statements they made in May; because of the urgency of the situation and the pressure being felt by Italy and Greece, a simple encouragement could not meet the Union’s needs. From the Commission’s point of view, the relocation and resettlement of protection seekers had to be forcibly carried out. The mandatory nature of the mechanism was just as important as its provisional aspect.

The debates during the June 16th meeting of the Home Affairs ministers go to show that the issue had not previously been dealt with either way. They had even led people to believe that a final agreement was possible, according to some participants and notably the Luxemburg minister, who, it must be mentioned, has taken over responsibility for the dossier alongside the presidency of the Union. This agreement could indeed have been approved under certain terms, either by changing the distribution criteria, or by applying different rules in certain geographical zones under tremendous pressure, as in the Balkans.

Painting the picture of a closed book is far from reality, as the ongoing length of debates has shown. According to some, this is the work of the European Council Presidency pulling strings, as it is radically opposed to the ‘mandatory’ relocalisation proposal. During the days leading up to the meeting of June 25th, there was allegedly intensive lobbying on State capitals, which emphasized the fact that the issue had already been decided upon.

This approach overrode all others. Its conclusions do not mention any obligation whatsoever, quite the contrary: “In the light of … our commitment to reinforce solidarity and responsibility, and in line with its April decision in all its regards, including paragraph 3, the European Council agreed on the following interlinked measures to help 60.000 people”… Keeping in mind that the very same paragraph 3 mentioned distribution amongst Member States on a “voluntary basis” a simple bit of diplomatic window dressing affords the luxury of claiming that “all Member States will participate”

Worse than this, the European Council has not hesitated to rewrite the treaty in the spirit of a Luxemburg compromise which is no longer of any relevance. It has notably agreed to “the rapid adoption of a decision by the Council” through this distribution, indicating that “to that end, all Member States will agree by consensus, by the end of July on the distribution of such persons, reflecting the specific situations of Member States.” This is a rather peculiar reading of Article 78 (3) of the TFEU which is the legal basis of the proposal and comes under the jurisdiction of a qualified majority for the adoption procedure…

The gap has grown that much wider between the Commission and its president: “solidarity must be mandatory because when it is voluntary, it doesn’t work.” His great disappointment was obvious after the European Council had met and it reflected what outside observers were feeling. They were quite surprised that such lack of commitment was given in light of such a serious issue and that it could give rise to such ire.

The Commission had the support of a certain number of States, notably Italy, which had threatened its partners with a “plan B”. This plan would apparently have consisted in letting the foreigners it was responsible for roam freely throughout the Union. Therefore, as of July 9th, the Commission will have to convince Member States to each provide a specific figure for the maximum number of migrants it can accept. Its hope, now jeopardised, is to maintain its goal of 40,000 migrants. These commitments should in all likelihood appear in the appendix of the upcoming decision of the EU Council. A particular role should be given to Bulgaria and Hungary since the European Council has admitted that these two countries are in need of individual treatment considering the migratory pressure they are both under.

In reality, Member States are driven by other concerns to do with stricter border controls and more efficient regulations.

  1. A broadly defined agreement

The European Council’s much tougher stance on asylum and immigration was highlighted when Donald Tusk gave a press conference about these specific issues. The fate of people being denied asylum concerns the majority of Union’s leaders more, than the fate of people seeking protection, which sounds an off-key for the Council, which is supposed to bring hope to those seeking protection.

The concern of the Member States has mainly focussed on the importance of return measures and readmission of illegal immigrants as well as the identification and recording of migrants arriving in the EU as the Commissioner for Migration and Home Affairs heavily insisted. All of this with a generous objective in mind- cynically echoed by the Member States whilst death is omnipresent in the Mediterranean- that of “dissuading people from risking their lives” (Point five of the Conclusions)……

In this capacity heads of states and government have taken great care to rehash the standard discourse whether it concerns the increased mobilisation of agencies such as Frontex or the European Asylum Support Office or the necessary application of the “return” Directive with nonetheless two particular aspects emphasised.

The first one rekindles the British discourse heard at the Seville European Council whereby development aid and cooperation of third States are brought together to fight against irregular immigration. In the name of a magic solution, presented as a way to “give more to receive more”, the Union will link its aid and policies so as to “incite the setting up of existing readmission agreements and the conclusion of these new types of agreements”, including those concerning border control, asylum and the fight against people smuggling.

The second one involves the provisions concerning the notion of “country of safe origin”  under Article 36 of Directive 2013/32: “Procedures” which will take effect in July. The European Agenda in fact proposes a “reinforcement of the provisions concerning safe country of origin to ensure that the application process is more streamlined” for the nationals concerned; Kosovo and Serbia by all appearances are in the line of sight. The European Council has given its full support.

After having been included in Article 29 of Directive 2005/85 and having been the subject of a dispute before the Court of Justice (C-133/06), the idea of a “common list of safe countries of origin” had quite simply been deleted from the new directive as no legal basis can be found in it. It seems to be back on the agenda, in addition to national lists drawn up by numerous Member States. Furthermore, the European Council has indicated that as of July, the Commission will present measures to be taken in order to bring EASO on board to coordinate the implementation of provisions concerning safe countries of origin as contained in Directive2013/32.

Overall, the great disappointment of the President of the Commission is shared by us all. If we are to examine the two possible assumptions which we discussed at an earlier date- namely that of a political ‘coup’ or a desire to push back the boundariesit is beyond any shadow of a doubt the second assumption which prevails. Evidently, Member States thus necessarily the Union, are not up to the challenge.

The Member States, for a start, are turning a decidedly blind eye to the reality of the situation. In this respect, the short term reasoning of a handful of States led by the President of the European Council’s vision is damaging. It is under the pretext that certain countries such as Spain and Portugal refuse to accept a heavier burden or that they have ‘no experience’ whatsoever in this field (see Agence Europe issue 11344), as is the case for the new Member States that this vision is deemed valid. Are we to believe that the European funds provided to help joining the Union membership were entirely useless? By contrast, the deafening silence of French as well as German leaders bears witness to the ambiguity of the positioning of a pair which most probably could have been in a position to reverse the decision, yet refused to do anything of the sort for reasons which we can only guess at.

Next, the Union which by no means comes out strengthened by this latest episode, in light of the dramatic nature of what is at stake. The positioning of the Council’s President who preferred to use the word ‘responsibility’ as opposed to ‘sharing’ and ‘solidarity’ found in Article 80 of the TFEU is surprising. It gives even less credibility to his role when naively, he who was Prime Minister in his own State, declared at the end of the meeting that “we have obtained everything that we wanted to” according to Agence Europe…

Relations with the Commission’s President who is down but not out should be interesting to follow especially if one keeps in mind that it is a … Luxemburg presidency which will now deal with the dossier. The European Parliament, aside from a few weak platitudes, did not show any particular pugnacity either at the European Council or afterwards. The next meeting of the LIBE committee on July 9th will be followed with interest to see if there is a change of course or simply confirmation of the present one.

All of this is taking place as if the tragic consequences of migration in Southern Europe and the human suffering of tens of thousands of foreigners fleeing certain death and persecution had barely even affected the leaders of the Union; so attached to their role playing, to putting the important issues to one side and forgetting what is happening in front of their eyes as these very lines are being written. Is any of this at all surprising?