Programme setting
In its conclusions of 26–27 June 2014, the European Council defined the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.
The so-called Ypres Guidelines succeeded the Tampere conclusions (1999), The Hague programme (2004) and the Stockholm programme (2009) with which the European Council laid down the foundations and indicated the main directions for the development of the Area of Freedom, Security and Justice. Nevertheless, the new Guidelines received many critics,25 as they lacked real ambition to propose further reforms at the major policy areas.26
Several Member States were confronted with a significant increase in the total number of migrants, including applicants for international protection, arriving on their territories in 2014 and 2015. When Member States of the EU faced a massive inflow of migrants, it was evident that not only national, but also EU level response was needed. Member States com-mitted to taking rapid action to save lives and to step up EU action in the field of migration in a European Council statement of 23 April 2015. The European Council decided, inter alia, to reinforce internal solidarity and responsibility and committed itself in particular to increasing emergency assistance to frontline Member States and to considering options for organising emergency relocation between Member States on a voluntary basis, as well as to deploying European Asylum Support Office teams in frontline Member States for the joint processing of applications for international protection, including registration and fingerprinting.
The European Commission was of the opinion that the 2014 Strategic Guidelines did not contain elements that could provide effective response to the migration crisis, therefore, breaking the tradition of proposing an Action Plan based upon the political JHA programmes of the European Council, the Commission itself acted on its own by setting out a new po-litical and legislative programme regarding migration and asylum policy of the EU. The European Agenda on Migration27 adopted by the European Commission on 13 May 2015 sets out a European response, combining internal and external policies, making the best use of EU agencies and tools, and involving all actors. The European Agenda on Migration proposes both immediate actions and long-term reforms.
25 See e.g. EPC or MPI evaluations on the document.
26 See De Bruycker, Philippe (2014): The Missed Opportunity of the “Ypres Guidelines” of the European Council Regarding Immigration and Asylum. MPC Blog, 29 July 2014. Available: https://blogs.eui.eu/migra- tionpolicycentre/the-missed-opportunity-of-the-ypres-guidelines-of-the-european-council-regarding-immi-gration-and-asylum/ (Accessed: 30.11.2017)
27 Communication from the Commission to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the Regions; A European Agenda on Migration, Brussels, 13.5.2015, COM(2015) 240 final.
Immediate actions
As regards urgent matters, already two weeks after the publication of the European Agenda on Migration, the Commission set out the immediate response to the emergency situation in the Mediterranean. Among the Member States witnessing situations of considerable pressure and in light of the recent tragic events in the Mediterranean, Italy and Greece in particular experienced unprecedented flows of migrants, including applicants for interna-tional protection who were in clear need of internainterna-tional protection.
On 27 May 2015, the Commission, in order to assist Italy and Greece, proposed to use the emergency response mechanism under Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). This provision, which was activated for the first time, en-visioned the relocation of 40,000 asylum seekers28 in clear need of international protection from Italy and Greece to other EU Member States over a two-year period. Although the Commission suggested the share of relocation among Member States to be calculated based on a distribution key, the adopted Council Decision (EU) 2015/152329 of 14 September 2015, in line with the April 2015 European Council conclusions, set out that relocation was to be carried out on a voluntary basis by Member States making their pledges.
The first relocation decision was soon followed by the proposal for another relocation decision after the sharp increase in illegal border crossings in the Central and Eastern Mediterranean, but also on the Western Balkans route. On 9 September 2015, the Commis-sion proposed the setting up of another emergency relocation for 120,000 asylum-seekers in clear need of international protection from Italy (15,600), Greece (50,400) and Hungary (54,000). Hungary, on the other hand, expressed its wish not to become a beneficial state within the framework of relocation, as a result of which Hungary – contrary to its explicit objection30 – became obligated according to the adopted Council Decision 2015/1601 of 22 September 201531 to compulsorily relocate a certain number of persons (quotas) calculated according to a distribution key. The annulment of this second relocation decision was sought by Hungary and Slovakia,32 yet its validity was confirmed by the Court of Justice of the EU in its 6 September 2017 ruling.33
Apart from reacting to the crisis caused by the massive flows reaching the EU, in order to share the burden of the countries hosting the biggest share of refugees, on 8 June 2015 the Commission also launched a proposal asking Member States to resettle 20,000 people from outside the EU, in clear need of international protection as identified by the United Nations High Commissioner for Refugees (UNHCR) over 2 years from third countries,
28 According to Recital (21) of Council Decision 2015/1523 this number corresponds to approximately 40% of the total number of third-country nationals in clear need of international protection who have entered irregularly in Italy or Greece in 2014.
29 Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece (OJ L 239, 15.9.2015. 146).
30 The decision was adopted by the Council by a qualified majority, with the Czech Republic, Hungary, Romania and the Slovak Republic voting against and Finland abstaining.
31 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (OJ L 248, 24.9.2015. 80–94.)
32 Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union.
33 Judgment of the Court (Grand Chamber) of 6 September 2017 Slovak Republic and Hungary v Council of the European Union, Joined Cases C-643/15 and C-647/15.
namely North Africa, the Middle East and the Horn of Africa. The proposed resettlement scheme used a distribution key based on the same criteria as the emergency relocation scheme. The Commission’s proposal was followed by an agreement among the Member States of 20 July 2015 to resettle, on a voluntary basis, 22,504 persons in clear need of international protection.34
Long-term reforms
“The overall objective is to move from a system which by design or poor implementation places a disproportionate responsibility on certain Member States and encourages uncon-trolled and irregular migratory flows to a fairer system which provides orderly and safe pathways to the EU for third country nationals in need of protection or who can contribute to the EU’s economic development. (…) For it to work, this system must be comprehensive, and grounded on the principles of responsibility and solidarity.”35
In this context, the Commission in its Communication Towards a reform of the Com-mon European Asylum System and enhancing legal avenues to Europe36 considered that there are five priority areas where the CEAS should be structurally improved: establishing a sustainable and fair system for determining the Member State responsible for asylum seekers; reinforcing the Eurodac system; achieving greater convergence in the EU asylum system; preventing secondary movements within the EU; and a new mandate for the EU’s Asylum Agency.
In order to make the CEAS more crisis proof in the future, the Commission present-ed two packages of altogether seven reform proposals in 2016. The first asylum package launched on 4 May 2016 includes the reform of the Dublin system by making it more trans-parent and enhancing its effectiveness, while providing a mechanism to deal with situations of disproportionate pressure on the asylum systems of the Member States;37 transforming the existing EASO into a fully-fledged EU Agency for Asylum to reflect its enhanced role in the new system;38 reinforcing of the EU’s fingerprinting database, Eurodac, in order to better manage the asylum system and to help tackle irregular migration.39
On 13 July 2016, the European Commission presented further proposals to complete the reform of the CEAS in order to move towards a fully efficient, fair and humane asylum policy – one which can function effectively both in times of normal circumstances and in times of high migratory pressure. To this end, in order to achieve a common and harmonised set of rules at EU level, the Commission proposed the creation of a common procedure for international protection by turning the existing Asylum Procedure Directive into a
regula-34 www.consilium.europa.eu/en/meetings/jha/2015/07/20/ (Accessed: 30.11.2017)
35 Communication from the Commission to the European Parliament and the Council, Towards a reform of the Common European Asylum System and Enhancing Legal Avenues to Europe, COM(2016) 197 final.
36 Ibid.
37 Regulation establishing the criteria and mechanisms for determining the Member State responsible for ex-amining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM(2016) 270 final.
38 Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, COM(2016) 271 final.
39 Regulation on the establishment of EURODAC (recast), COM(2016) 272 final.
tion,40 uniform standards for qualification as beneficiaries of international protection and rights granted to them by turning the existing Qualifications Directive into a regulation41 and the further harmonisation of reception conditions in the EU.42 Overall, these proposals aim at simplifying and shortening the asylum procedure and the decision-making, discour-aging secondary movements of asylum seekers and increasing integration prospects of those that are entitled to international protection. On the same day and as a fourth element of the second asylum reform package the European Commission proposed an EU Resettlement Framework43 to establish a common European policy on resettlement to ensure orderly and safe pathways to Europe for persons in need of international protection.
Given the different nature and sensitivity of the seven legislative proposals, the nego-tiations of the files within and between the co-legislators, namely the Council of Ministers and the European Parliament, are going in different pace and showing various degrees of progress. On 27 September 2017 the Commission reviewed the progress on the 2015 European Agenda on Migration and set out the next steps to put in place the missing ele-ments of a stronger, fairer and more effective EU migration and asylum policy.44 In order to urge further progress and ahead of the EU leader’ thematic debate on migration held on 14 December 2017, the Commission proposed a political roadmap45 to reach a comprehensive agreement by June 2018 on how to pursue a sustainable migration and asylum policy. The Commission’s view is that the discussions on the reform proposals to overhaul the CEAS have progressed very slowly, so it is essential that the European Council unblocks the debate and endorses a revision of the Dublin regulation as part of a wider agreement on all the reforms proposed by June 2018.