This is an excerpt from Varieties of European Subsidiarity: A Multidisciplinary Approach. Get your free download from E-International Relations.
This chapter examines the relationship between the principle of subsidiarity and the principle of solidarity in the field of asylum and immigration policy of the European Union (EU). The question is whether or not these principles lead to the same results in the governance of this policy area. The basic assumption is that both principles are actually moving in the same direction or implying similar solutions, even if those solutions seem difficult to adopt and encounter several obstacles. In the following analysis, the subsidiarity principle is examined first before the solidarity principle is considered.
The principle of subsidiarity was officially introduced into the legal order of the EU by the Maastricht Treaty. The main rationale of the principle is to distribute the exercise of powers to the lowest possible level, provided that this level meets the satisfactory efficiency requirements. According to Article 5 (3) of the Treaty on European Union (TEU), the principle only applies in areas that are not subject to the exclusive competences of the EU to decide whether or not legislative or operational powers can be exercised by the centralized level of the EU the decentralized level of the Member States. In principle, a double check is required: First of all, it must be determined whether the objectives of the proposed measure cannot be sufficiently achieved by the Member States. and, based on the scope or impact of the proposed action, to further determine whether these objectives can be better achieved by the EU.
Although formally neutral, the principle was adopted to limit the exercise of powers by the centralized level of the EU. In effect this means that the European Commission, which has the power to initiate legislation, has to justify the adoption of an act or an act on the basis of the principle of subsidiarity. The Lisbon Treaty made a special control mechanism available to national parliaments, the so-called early warning system (EMS). Once the national parliaments have issued a certain number of reasoned opinions, the European Commission is forced to review or justify its proposal. In addition, the European Parliament or the EU Council can submit a proposal if they are of the opinion that the subsidiarity principle has not been met. While the Court of Justice continues to have jurisdiction over compliance with the principle, it has been very reluctant to exercise its powers due to the complex political implications that it could have.
The principle of subsidiarity in a comparative context
Strikingly and contrary to expectations, the principle in complex organizations with different levels of governance tends to imply that competencies in the field of asylum and immigration are exercised at the most central level. The United States provides a major example in this regard. The United States and the EU as political systems differ in many ways. In fact, the US legal framework does not specifically mention the principle of subsidiarity. With regard to the consequences of the principle, however, a comparison can be justified, since both units reflect the organizational complexity (Delaney, 2013, p. 153).
In the early stages of American federalism, asylum and immigration powers were shared between the federation and member states, and it was unclear what level would ultimately prevail in the event of conflict. In the late 19th century, a number of cases reached the Supreme Court contesting restrictive legislative acts passed by some members of the federal government already saddled with high levels of immigration, particularly in the states of New York and California. Such local legislation was not welcomed by other states or the association as immigration was necessary for economic growth at the national level. The Supreme Court ruled the matter in favor of the federal government. Although the final decision was made for several reasons, one played a particularly important role.
The majority view emphasized that immigration policy affects citizens of third countries. Therefore, immigration policy is closely linked to external relations, and this implies an inherent political competence of the federal government. For example, a unilateral action by a member state in relation to citizens of a third country can have consequences for the entire association. B. the risk of war. Exercising competences in the field of external relations therefore naturally suggests exercising competences in the area of immigration. While the respective debate has lasted for almost another century, no one today doubts that immigration policy lies essentially as a “federal authority” in the hands of the US Federation.
It is interesting to note that similar justifications have so far only been accepted to a limited extent in the EU context, but in practice they have produced comparable results. As is well known, the EU asylum and immigration policy is based on a system of shared competences and is therefore subject to the principle of subsidiarity. Some provisions reserve specific competence to the Member States, but Article 67 (2) TFEU gives Brussels general competence to implement a common policy in the field of border control, immigration and asylum, as set out in the provisions below for each of these areas. Unfortunately, it’s not entirely clear where the dividing line is between the two. A relevant example relates to the recent process of adoption and enforcement of the Seasonal Workers Directive (European Parliament and Council 2014).
On the one hand, Article 79 (2) TFEU gives the EU the power to take measures concerning the entry and residence conditions of third-country nationals and the definition of their rights. On the other hand, Article 79 (5) TFEU reserves the competence to determine the number of third-country nationals admitted to their state in order to seek work with the national governments. On the basis of Article 79 (2) TFEU, the proposed directive for seasonal workers contained common criteria for the admission of third-country nationals within the EU and the definition of minimum rights to be granted to them as citizens with legal residence in a Member State. However, the European Commission relied on various grounds to justify exercising responsibility for adopting the directive in accordance with the principle of subsidiarity. Two of these justifications stand out: the need to maintain open borders while avoiding secondary movements in the flow of migrants within the Union; and the need for effective cooperation with third countries on migration issues.
The proposal for a directive raised several questions in EU circles, in particular with regard to compliance with the principle of subsidiarity. Although the national parliaments have not been able to obtain the required number of reasoned opinions, their opposition to the adoption of the directive has achieved an impressive consensus that has seldom been achieved on other occasions. The arguments put forward by national parliaments were based on two aspects: firstly, the directive was not necessary to maintain open borders within the EU as it was intended to guarantee only minimal rights for seasonal workers; and second, the directive was not necessary to ensure effective EU cooperation on migration issues with third countries. The first reason was difficult to reject by the European Commission, while the national parliaments could not provide any valid arguments for the second.
Given that Member States are free to provide for better living conditions or workers’ rights, it is not easy for the Commission to argue that the directive is essential to prevent secondary movements of third country nationals. In contrast, it is far more difficult to deny that there is a close link between the adoption of the directive and the need for effective cooperation with third countries on migration issues. As further elaborated by the Commission, the Treaties also confer powers on development policy at EU level, which under Article 208 (1) TFEU are required to take into account the respective objectives in the implementation of all likely policies impact on developing countries, including asylum and migration policy. It is clear that action by Member States alone is not enough to achieve development policy objectives, especially in cases of widespread and widespread migration. This necessarily requires a common EU approach. As the Commission (1995, 2) explained, immigrants often have
Maintaining close ties with their countries of origin, and the economies of the latter benefit from welcome contributions in the form of salary transfers. If the planned cooperation with the countries concerned does not create a methodological way to combat migratory pressure, this can easily lead to friction losses that affect not only international relations but also the groups of immigrants themselves.
Member States, often more concerned with national sovereignty, have only occasionally shared a common vision, for example when acting under shared responsibilities. Accordingly, the French EU Presidency declared in 2008 with regard to migration policy: “Decisions made by one Member State will have an impact on all other Member States.”
The principle of solidarity
The principle of solidarity largely suggests similar consequences. From a legal point of view, the principle has its roots in the international regime for refugees. After the Second World War, on December 3, 1949, the General Assembly of the United Nations adopted resolution 319 (IV) on refugees and stateless persons, one of the first codified texts in this field. In its preamble it was expressly recognized that “the problem of refugees is international in scope and nature”. In addition, the fourth sentence of the preamble to the Geneva Convention on the Status of Refugees (1951) confirms that
Asylum seekers can place undue burdens on certain countries and a satisfactory solution to a problem, the international scope and nature of which the United Nations has recognized, cannot therefore be achieved without international cooperation.
Although the lack of a direct mention leaves the practical consequences unclear, there is little doubt that the above statements are motivated by the principle of solidarity (Karageorgiou 2016, 3). Any solution to the refugee problem would require consultation and cooperation between states because of its international dimension. Indeed, countries alone are unable to properly deal with all of their causes and consequences. Depending on the perspective, however, it can be questioned whether the principle of solidarity as a guideline for European asylum and immigration policy comes from international law rather than from a term intended to regulate relations between EU member states.
Solidarity is recalled as a guiding principle for asylum and immigration policy in Article 67 TFEU and then further developed in Article 80 TFEU. This is the final provision of the treaty chapter dealing with the policy of border control, asylum and immigration. Article 80 TFEU states:
The Union’s policies as set out in this chapter and their implementation are subject to the principle of solidarity and the fair sharing of responsibility, including its financial implications, between Member States. If necessary, Union acts adopted under this chapter shall contain appropriate measures to implement this principle.
Despite the reference to solidarity and fair exchange between the member states, it should be emphasized that the first addressee of both elements is the EU legislator, who is called upon to translate abstract ideas into operational policy. Moreover, given its direct expression, the principle of solidarity within the European legal order seems to go a step further than is implied by its recognition in an international context. As Karageorgiou (2016, 4) points out,
The provision expressly combines solidarity with a fair division of responsibilities. The fact that two different terms are used to describe the authors’ intentions is pretty telling. The concept of solidarity is mainly concerned with the common approach to an issue for mutual support, while a fair division of responsibilities is associated with a concrete division of labor.
The principle of solidarity goes beyond the mere adoption of measures at central or joint level to ensure better cooperation between states. This implies more than the same principle that is being proclaimed internationally. Since solidarity basically requires the sharing of responsibilities on the basis of a fairness criterion, it is linked to institutional measures as well as political implications in terms of content.
Regardless of its position in the EU Treaty, the solidarity principle has serious gaps in implementation, either in the legal provisions passed by the EU or in the specific behavior of national governments. This is arguably the causal factor in understanding the obvious shortcomings in the EU’s common asylum and immigration policy. The example of the EU’s Dublin system, which was established by an EU regulation of the same name, explains some of the practical consequences that result from inadequate implementation of the principle (European Parliament and Council 2013).
The relevant law states that the Member State responsible for examining an asylum seeker’s application is the country of first entry. In this way, the main burden is shifted to the Member States, which are located directly on the Union’s borders. In fact, in its own reform proposal, the European Commission did not define the Dublin system as a burden-sharing mechanism, but as a mechanism for direct burden-shifting (European Commission 2016, 13). In the words of Advocate General Sharpston (2012, 83): “The whole system of protection of asylum seekers and refugees is based on the burden where it falls” and on the basis of a simple “factual situation”. As a result, there is an almost natural tendency for the most polluted countries to evade the proper application of the core rules of the Dublin system and to make their asylum systems as unattractive as possible in order to reduce the practical demands on them.
Likewise, other types of measures designed to help the hardest hit countries show a lack of respect for the principle of solidarity. The German initiative of 2015 is a typical example of unilaterally applying the discretionary clause of Article 17 (1) of the Dublin Regulation. The latter says that
By way of derogation from Article 3 (1), each Member State may decide to examine an application for international protection applied for by a third-country national or a stateless person, even if it is not responsible for this examination according to the criteria set out in this Ordinance.
The adoption of this unilateral measure outside of a concerted framework had a negative impact on other Member States. The initiative thus became a center of attraction for the arrival of new migrants in countries other than Germany and further increased the pressure on the Member States that had already been exposed to the phenomenon (Shisheva 2016, 4). Unsurprisingly, the European Commission has narrowed the scope of the relevant clause in its proposals to reform the Dublin rules.
In view of the above, it is fair to say that within the EU legal order, both the subsidiarity principle and the solidarity principle go in the same direction and, despite some remaining differences, have similar consequences. The effects of the principle of subsidiarity are more of an institutional or procedural nature, since it essentially calls for the adoption of collective action at a coordinated, if not centralized, level. The effects of the solidarity principle, on the other hand, have either an institutional or a substantive dimension. In other words, it means not only coordinated or centralized action, but also real burden sharing to allow all Member States to have more sustainable policies.
Overall, it must be clarified how deep the intervention should be at the central EU level. How can the central intervention of Brussels be balanced and preserve the national competences? While the principle of subsidiarity and solidarity would require more determined centralized intervention and more joint action, it should not be forgotten that the EU model is not meant to be identical to US-style federalism.
To answer the question, the contracts give only a few partial details. The second sentence of Article 80 TFEU states, for example: “The Union acts adopted under this chapter shall contain appropriate measures, if necessary” in order to implement the principle of solidarity. However, this particular provision is based on an already resolved problem relating to the subject exercising jurisdiction. Indeed, finding the right balance for the application of the principles of subsidiarity and solidarity, in their institutional and substantive dimensions, depends more on non-legal factors than on the provisions set out in the Treaties.
A number of such factors can be enumerated. First, there is no consensus on the values that should prevail at European level. In contrast to other European crises, the migration problem is more serious as it directly calls into question the principles and values of the individual member states and “depends on solutions to combat the life and death of people fleeing war zones and persecution” (Pascouau 2016, 17 ). . Second, the EU states lack trust in their mutual ability to adequately fulfill their burden-sharing obligations. It is no coincidence that the northern member states usually defend their strict approach by demanding more solidarity from the southern countries to ensure that their national asylum systems meet European standards. Thirdly, and probably at the heart of the matter, there has been a fundamental misunderstanding of this policy area since the beginning of European cooperation, which is reflected in the narrative that has settled in the collective mind.
Indeed, the core of EU asylum and migration policy has always been guided by an emphasis on the positive effects of removing internal borders, neglecting the need to establish a common regime for the Union’s external borders. Abolishing the borders between France and Germany may be a good idea, but that does not mean that France and Germany will not have an external border. Instead, this means that the external border between France and Germany is now in a different place, for example in Italy or Greece (with considerable consequences in terms of the available resources and the obligation to a larger area of responsibility) (Shisheva 2016, 5). . Preserving the EU’s Mediterranean borders cannot only be a problem for Italy and Greece, as their borders must be seen as the borders of all European Member States. Nobody can expect two countries alone to do the work for everyone else in the common European space.
In combination, the factors listed above led to a rather unfavorable situation for the European project. Not only does this negatively affect the ability to address current challenges, it also precludes a clear strategy for the future. The measures taken in EU asylum and immigration policies seem to be more responsive to possible circumstances than to long-term goals. Confirmation of this claim is found in the documents adopted by the European Commission, which admit that only limited policy action is feasible and that longer term action without more favorable policy conditions is unlikely to be envisaged. In addition, the lack of systematically collected, objective data often prevents a more thorough analysis from being carried out as a potential starting point for new policy initiatives at European level.
In EU asylum and immigration policy, the principle of subsidiarity and the principle of solidarity point in the same direction. Both call for measures to be adopted at a more central or coordinated level and for more balanced commitments on the part of the Member States. Despite the persistent serious obstacles to achieving this result, success stories can be found within narrow limits. The adoption of the seasonal workers directive is a case in point. However, with regard to the institutional profile of the EU, the risk of a rather ambiguous framework cannot be ruled out. The frequent inability of the EU to take adequate action may be accompanied by occasional peaks showing centralized efforts. From the point of view of a neutral observer, this certainly makes little sense in terms of policy coherence and coherence.
For this reason, efforts should be made to strike a balance between actions that need to be taken at a central or coordinated level and actions that need to remain in the hands of national governments. Obvious examples of the latter are issues of migrant integration, where real needs change from country to country, or external migratory flows that ultimately affect individual Member States to different degrees. Ultimately, what is most worrying is the apparent lack of a long-term strategy. Of course, the general political climate is not conducive to it, but processes of public deliberation need to be initiated and maintained by the European institutions in order to develop a more solid political approach that is better suited to existing needs.
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