Can Europe Make It?

EU migration policy: effective solidarity or ineffective implementation of existing Treaty provisions?

How best can we Europeans re-establish at least a semblance of moral and economic justice in the future conduct of EU migration policy?

Solon Ardittis
16 December 2016

Angela Merkel accompanied by Turkish PM Ahmet Davutoglu, talks to refugees during a visit at the Nizip refugee camp in Gaziantep province, southeastern Turkey, Saturday, April 23, 2016. Lefteris Pitarakis/Press Association. All rights reserved. One of the agenda items for the European Council of 15 December 2016 was on the newly fashioned principle of ‘effective solidarity’ in the field of EU migration policy.

This was the latest addition to a number of previous attempts to build consensus in this critical policy area, including through such diametrically opposed principles as a fully fledged and legally binding solidarity policy, based on the relevant provisions of the Treaty on the Functioning of the European Union (TFEU) and other subsequent instruments; and a system of ‘flexible solidarity”, as proposed by the Visegrad Group during the Bratislava summit of 16 September 2016.

How many more terminological innovations will be needed before the matter can be settled once and for all? As President Martin Schultz remarked during the summit, “it is deplorable that none of the solutions proposed so far was either flexible, effective, or had much solidarity at its heart”. “It is deplorable that none of the solutions proposed so far was either flexible, effective, or had much solidarity at its heart”.

Effective solidarity, in its current design, builds on a three-pillar strategy that is based on the relative magnitude of migratory flows.

The first pillar, which would apply in ‘normal circumstances’ and for ‘moderate flows’, foresees a continuation of the existing EU migration system, albeit with further efforts to ‘increase its efficiency’ and to ‘stabilise the Member States' responsibilities’.

The second pillar, which would apply under ‘deteriorating circumstances’ and high numbers of arrivals’, foresees a ‘tailored solidarity contribution mechanism’ that might imply relieving the pressure from the most affected member states through a transfer of asylum seekers to other member states. However, it could equally take other forms such as financial contributions and increased inputs to the work of EASO and the European Border and Coast Guard.

The last pillar, which would be activated in case of ‘severe circumstances’ and following ‘exceptionally high numbers of arrivals making the Dublin system totally dysfunctional,’ would require additional supportive measures from each Member State, albeit on a voluntary basis.

Beyond slightly less uncompassionate?

While the concept of effective solidarity might offer a slightly less uncompassionate approach to the collective implications of the EU migrant crisis than that of ‘flexible solidarity”, which consisted merely of allowing each member state to decide on specific forms of contribution on a voluntary basis, its potential to facilitate the development of a fully functional EU migration solidarity regime can be questioned at this stage. There are at least three reasons for this.

First, in addition to failing to define and quantify the notions of ‘normal circumstances’ and ‘moderate flows’, in particular whether these will refer to the levels of immigration experienced before or since the outbreak of the so-called EU migrant crisis in 2015, the first pillar in the proposed system presents a number of possible weaknesses.

The most prominent of them is the practical meaning that will be conferred to the idea of ‘stabilising the member states’ responsibilities’ in this area, when most of the legally binding mechanisms in the field of migration policy to date, including the implementation of Schengen and Dublin rules, and of the EU Relocation Plan, have been so invariably ignored by most member states.

The same comment would apply to the mechanism foreseen under the second pillar, which aims to relieve the pressure from the member states most affected by high levels of inflows through a transfer of a ‘well-defined proportion’ of applicants to other member states. How much trust can be placed in such a principle when, as of 8 December 2016, only 8,162 asylum seekers, out of a legally binding quota of 160,000, had been relocated from Greece and Italy to other member states?

Similarly, the exceptional solidarity mechanism foreseen under the third pillar is largely reminiscent of the aims and scope of the existing EU Council Directive on Temporary protection in the event of a mass influx of displaced persons adopted on 20 July 2001.

While this Directive foresees a range of conditions and minimum standards for granting temporary protection in the event of a mass influx of displaced persons, as well as specific measures to promote ‘a balance of efforts between member states in receiving such persons and bearing the consequences thereof’, it has never been triggered in 15 years of existence. This is despite the fact that the levels of mass displacement experienced since 2015 are at least as consequential as those from Kosovo in 1999, which is what led to the drafting of this Directive originally.

EU law and responsibility sharing

But as significantly, one of the most remarkable traits of all recent attempts to redefine the concept and practical implications of intra-EU solidarity in the field of migration policy has been the continuous and unobstructed renunciation of the very principle of responsibility sharing enshrined in EU law. Article 80 of the Treaty on the Functioning of the European Union (TFEU), in particular, has foreseen a range of provisions on the principle of solidarity and fair sharing of responsibility in the field of asylum and immigration, including in terms of the member states’ financial obligations. However, despite the ever increasing levels of migratory flows, and the lingering pressure on some of the member states, none of these provisions appears to have ever been translated into implementable and widely agreed policy since its original adoption in 2007.

What all of the above suggests, then, is that instead of constantly redefining and relabelling the concept of intra-EU solidarity in the field of migration policy, when all the appropriate legal instruments to regulate and guide the implementation of this concept have been in place for a number of years, the time might have come to recognise that solidarity in such a sensitive policy area is a notion that might never be endorsed, at least in practice, by most member states. The time might have come to recognise that solidarity in such a sensitive policy area is a notion that might never be endorsed, at least in practice, by most member states.

The logical conclusion to be drawn from this is that there might now be a need to reflect on new policy devices to prompt a more active and effective contribution from all member states in this critical policy area. Since the principle of sanctions has rarely been enacted by the EU executive to this day, one effective option, following in particular the recommendation by former Prime Minister Matteo Renzi a few months ago, might be to allow those member states that contribute the most to the EU migration solidarity mechanisms to reduce proportionally their financial contributions to structural funds and other programmes benefiting those member states that contribute the least.

While there would be a number of variants to this option, including a unilateral reduction in the level of EU aid to the least cooperative member states, one of its key merits would be to re-establish at least a sense of moral and economic justice in the future conduct of EU migration policy.

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