POST 9 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Prof. Francesco Maiani, University of Lausanne
Introduction
As the Commission observed in 2020, “[t]here is currently no effective solidarity mechanism in place”. This is the cause of many woes for the Common European asylum system (CEAS): geography, historical legacies and varying levels of attractiveness result in Member States facing highly asymmetrical burdens in implementing EU migration law. Absent an effective scheme guaranteeing a “fair sharing of responsibility”, per Art. 80 TFEU, CEAS law tends to be applied in light of national interests, with dire consequences for its integrity. Member States faced with large and/or indeterminable liabilities may outright defect as evidenced by instances of “waving through” or, more tragically, of illegal push-backs at the external and internal borders.
The Dublin system is part of the problem, not the solution, and if anything the Asylum and Migration Management Regulation (EU) 2024/1351 (hereafter AMMR) will strengthen its burden-concentrating effects through a mix of anti-secondary movement rules, shortened deadlines for take charge requests, facilitated take backs, and the introduction of longer-lasting, “stable” responsibility.
Any hopes of having a more equitable and better-functioning CEAS therefore hinge on the new solidarity mechanism introduced by the AMMR. The following lines try to tackle its key aspects successively. Special attention will be devoted to the way in which the new provisions attempt to reconcile the “mandatory” character of the mechanism with its “flexibility” (see recital 22).
The “Annual migration management cycle”: establishing the Pool
Part II of the AMMR – laying down a “Common framework for asylum and migration management” – comprises two Chapters of unequal importance. Chapter I seeks to establish a “comprehensive approach” to migration, under which the Member States must adopt national strategies and, building on those, the Commission must adopt a five-year “long-term European asylum and migration management strategy”. Despite the high hopes expressed by the preamble (see recitals 2-11), it is doubtful that the whole exercise will matter in practice. Indeed: before, during and after the 2015 crisis the EU was swimming in reports, strategies and wish-lists of the kind intended here, none of which appeared to contribute much to alleviating the deep-seated problems of the CEAS.
By contrast, the “annual migration management cycle” laid down in Chapter II might matter some, or much, since it is the foundation on which the solidarity mechanism is built. That cycle aims, in essence, at the yearly adoption of an Annual solidarity pool (ASP), whose implementation is considered in the following sections.
The first move belongs to the Commission, which must adopt three acts by October 15 of every year:
- An annual report assessing the situation over the past 12 months and forecasting trends (art. 9 and 10).
- A decision (art. 11) identifying the Member States “under migratory pressure”, “at risk” of migratory pressure, or “facing a significant migratory situation”. These are the Member States that may later benefit from the ASP and/or be exempted from contributing to it as detailed below. Art. 1 (24) defines “migratory pressure” as a situation where the arrivals or applications of third-country nationals are “of such a scale that they create disproportionate obligations” on a Member State in the EU context, and do so even on a “well-prepared asylum, reception and migration system”. Per art. 1 (25), “significant migratory situations” are those where current and previous annual arrivals lead a “well-prepared” system to reach the limits of its capacity. Given the open-endedness of these definitions, and the breadth of relevant indicators (see art. 9-11), it is not immediately obvious which Member States the Commission will apply them to.
- A proposal for the Council decision establishing the ASP (art. 12). Based on the annual report, the proposal must identify the annual relocations and financial contributions needed. These must be at least 30’000 and 600’000’000€ respectively, save “in exceptional situations”. Should different numbers be proposed, the ratio of one relocation per 20’000€ contribution must still be respected in order to preserve the “equal value” of the various contributions (recital 15). The Commission may also propose “alternative” measures such as operational support depending on observed needs (see art. 56(2)(c) AMMR). Finally, to “facilitate” the pledging exercise examined below, the Commission must also calculate the “indicative” contribution of each Member State based on the population/GDP key of art. 66 AMMR.
The next step, and the heart of the process, is the pledging exercise held by the Member States within the “High level solidarity forum” (art. 13 and 57(3)). The Forum will “consider” the Commission documents and “come to a conclusion” on the overall reference number for each solidarity measure “based on the Commission proposal”. Member States must then pledge their contributions, respecting the “mandatory fair share” level of contribution resulting from the application of the aforementioned key (see also Annex I).
Finally, by the end of each calendar year, the Council adopts the decision formally establishing the ASP. The decision is based on the Commission proposal, but contrary to the ordinary rules requiring unanimity (art. 293 TFEU) the Council may deviate from it by qualified majority. Nor does the Commission proposal bind the Forum, which must merely “consider it” and reach a conclusion “based on” it.
While the Commission proposal is “weak” in the sense described, the conclusions of the Forum fully pre-determine the substance of the Council decision. Indeed the overall reference numbers and the contribution due by each Member State must be “in accordance with the pledging exercise” (art. 57(1) AMMR).
A few observations on the decision-making process:
- The minimum numbers of 20’000 relocations and 600’000’000€ laid down in art. 12 have the sole effect of binding the Commission, not the Forum. Therefore, the guarantee of “minimum thresholds” ensuring “predictable planning by contributing Member States and […] minimum guarantees for the benefitting Member States” (recital 15) is not fully reflected in the law and will only be effective if the Forum de facto follows the proposals of the Commission (see also infra on responsibility offsets).
- Even though the formal decision-making power rests with the Council, it is ultimately for the Forum, i.e. for the Member States collectively, to set the overall level of solidarity. Faced with insufficient pledges, EU institutions can only reconvene the Forum in an iterative process that, ultimately, seems to hinge on peer pressure (see art. 13(4) AMMR).
- In this context, important questions are left unanswered: is the Forum to “come to a conclusion” by unanimity, by consensus, or by (an unspecified) majority? What if a Member State should pledge less than its due? The latter question, of course, is somewhat moot if – as the words “coming to a conclusion” suggest – the Forum operates by consensus.
Another key point is worth stressing: while overall numbers are ultimately for the Forum to decide, and “fair shares” are determined through a key, each Member State explicitly retains “full discretion” as to the type of contributions that it intends to pledge (art. 57(4)).
This means that while overall numbers are specified for each type of contributions (see Art. 56 and 57(3)), each Member State may decide to pledge, e.g., only financial contributions and not relocations – in other words, to contribute applies instead of the expected oranges (on the modest legal consequences of low relocation pledges, see below on “responsibility offsets”). Of course, this flexibility makes it necessary to establish a conversion key between apples and oranges, otherwise it becomes impossible to ascertain whether the pledged contributions tally up to the “fair share”. In the absence of alternatives, the candidate for this role would seem to be the “equal value” ratio established in art. 12(2), i.e. 1 relocation per 20’000€ (see recital 15). As for alternative solidarity measures, they “shall be counted as financial solidarity” and their value determined on a case-by-case basis. Under art. 57(4), it is up to the pledging Member State to assign such value. However, should the benefitting Member States not make use of the alternative measures pledged, they will indeed be converted into financial contributions at the declared value. Member States would therefore do well to assign realistic values to the contributions they pledge.
Implementing the Pool: role, components, mechanics
Once established, the Pool “shall serve as the main solidarity response tool for Member States under migratory pressure” (art. 56(1)). Made up of State-to-State contributions (art. 6(2)(e)), it is additional to what the Regulation calls the “Permanent EU Migration Support Toolbox”, which includes operational assistance by EU Agencies and funding through the Asylum, Migration and Integration Fund (art. 6(3) and 65(2)). Even though the Regulation encourages Member States to use support elements from the Toolbox “in conjunction” with the Pool, and to provide information in this respect whenever activating measures under the Pool, the two are to work independently from each other and, in particular, using the Toolbox is not to become a precondition to receiving support from the Pool (see recital 32, and art. 58(2) and 59(2)(b)).
As noted, the Pool itself consists of three categories of solidarity contributions – relocations, financial contributions, and alternative solidarity measures – as defined in art. 56(2).
Financial contributions are paid by the contributing States to the EU budget and made available to benefitting States via the relevant EU Funds (art. 58(2) and 64).
Alternative solidarity measures, once pledged and integrated into the Pool, must be “based on a specific request” of the benefitting State. As said, if not requested in a given year, they are to be converted into financial contributions (art. 57(4) and 65).
Relocations and their Ersatz, responsibility offsets, are discussed below.
Process-wise, solidarity contributions are granted on request. The Member States “under migratory pressure” per the Commission decision access the Pool directly and become thereby “benefitting Member States” (art. 2 (19) and (24), 11 and 58). Member States that consider themselves to be under migratory pressure, but are not identified as such in the Commission decision, may also submit a substantiated request. The Commission assesses the request, taking into account i.e. its own previous decision on whether the State was “at risk of migratory pressure”. If it finds in favour of the requesting State, it grants access to the Pool and to the status of “benefitting Member State”, unless it or the Council decides that there is insufficient capacity in the Pool or that there are other “objective reasons” for not allowing access. In the former case, the Forum must be swiftly reconvened (art. 59).
The pledges must be executed by year’s end with the support of a Technical-level Forum and EU Solidarity Coordinator (see art. 14, 15 and 60 AMMR). There are however a number of caveats:
- Benefitting Member States are not obliged to implement their pledged solidarity contributions (art. 60(3)). Furthermore, Member States that are or consider themselves to be under migratory pressure, but do not request access to the Pool, may request a partial or complete deduction from their own pledged contributions. The Council decides following an assessment by the Commission (art. 61). The same goes for Member States that have been determined as “facing a significant migratory situation” or consider themselves to do so (see art. 1 (25), 11 and 62).
- Furthermore, contributing Member States are not required to implement pledges or apply responsibility offsets towards benefitting Member States where the Commission has found “systemic shortcomings” in the implementation of Dublin rules. This may well be a direct operationalisation of the idea that “solidarity and responsibility must go hand in hand”, but the present writer finds it difficult to understand why systemic shortcomings in other areas of EU Law (e.g. reception conditions) should not attract the same “sanction”.
In particular: the relocation procedure
Relocations – the transfer of eligible persons from a benefitting to a contributing Member States (art. 2 (2) (22) AMMR) – have a special place in the solidarity mechanism, so much so that their implementation is specifically incentivized through lump sums (art. 81(3)) and that their lack or insufficiency entails specific consequences in the form of mandatory offsets, as discussed below. The relocation procedure is inspired by the 2015-17 relocation schemes, although there are important differences.
The eligible persons are applicants, regardless of their nationalities, as well as beneficiaries of protection, if status was recently obtained and if all parties including the beneficiary of protection consent (see art. 56(2)(a) and 67(4)).
Persons constituting a security threat are excluded, just as they are excluded from the application of the Dublin criteria (art. 16(4)), and the existence of reasonable grounds to this effect constitutes the only ground of refusal available to the State of relocation (art. 67(2) and (7)-(9)). For very different reasons, i.e. to prevent relocations to run counter family unity, art. 67(5) also excludes applicants for whom the benefitting State is responsible under the family criteria.
It is up to the benefitting State to identify candidates for relocation, and to “match” them to the Member State of relocation, with the assistance of the EUAA. The only rights of eligible persons are to provide information on their “meaningful links”, and to be kept together with other relocated family members if any (art. 67 (3), (4) and (6)). While familiar to Dublin and relocation experts, the policy choice to deny eligible persons a “right to choose” (recital 26) is a prime example of the kind of irrational, taboo-based policy making that has bedevilled the CEAS since its inception. Granting eligible persons, the choice among available relocation places would enormously simplify the process, and effectively prevent secondary movements later on, with no conceivable downsides – at issue is the transfer of persons selected by a Member State, screened for security, and going to Member States that by definition have “free places”.
Having denied eligible persons the right to choose, the legislator had itself no choice but to mould the relocation procedure in the complicated likeness of a Dublin take charge procedure, appeal rights included (art. 67 (7)-(13) AMMR).
Post-relocation, beneficiaries of protection are automatically granted the same status. Things are more complicated for applicants:
- If the benefitting State has run a full Dublin procedure, and determined itself to be responsible on grounds other than family ties, the relocation State becomes automatically responsible.
- However, if the benefitting State has merely checked that the family criteria did not make it responsible, but refrained from running a full Dublin procedure, the relocation State must do so, while disapplying some of the criteria. Thus, the hapless applicant may have to undergo a further transfer before accessing an asylum procedure.
This last point is yet another instance of the legislator’s disregard for the complexity of transfers, not to mention for the legitimate interests of applicants. True, the stated intention is laudable: to ensure that the family criteria are respected at all times (recital 70). Its implementation is spotty, however, and a “re-transfer” may be ordered also on the basis of criteria that have nothing to do with family unity (e.g. art. 31 and 32).
In particular: responsibility offsets
Responsibility offsets, whereby a contributing State accepts to become the responsible State for an applicant that is present on its territory and should be transferred to a benefitting State, are a one-to-one replacement for relocations (recital 33).
If the relocation pledges set out in the Council decision establishing the ASP are equal or above 50% of the number indicated in the Commission proposal, offsets are optional for all States concerned. The benefitting State may ask for a given number of offsets, and the contributing State will indicate the number it accepts, if any, and identify the applicants for whom it takes responsibility. Contributing States may suggest such a solution to benefitting States (art. 63 (1) and (2), and 69 AMMR).
Under some circumstances, offsets become mandatory for contributing States.
- This will be the case when pledged relocations fall below the minimum threshold of 30’000 units (see art. 12) or below 60% of the overall number of relocations identified by the Forum, either following the latter’s re-convening under art. 13(4), or due to the deductions granted to benefitting States and other States similarly placed during the year. In all such cases, contributing States must take responsibility for a number of applications equal to the difference between the higher of the two numbers indicated above and the relocations pledged, but always within the limits of their “fair share”.
- Offsets will also be mandatory for a contributing State that has not implemented its pledged relocations by year’s end. On request of the benefitting State, offsets will have to be granted “as soon as possible” after the end of the year.
Art. 63(8) lays down a number of additional preconditions that must be met for offsets to be possible.
The idea of offsets is ingenious: avoiding the transfer of an applicant from contributing State A to benefitting State B has the same effect as carrying out a relocation from State B to State A, and it’s far easier and more economical since the applicant is already present in State A. Because of this, the concept also offers opportunities to obtain an in-kind Ersatz from Member States that are unwilling to play the relocation game.
Unfortunately, apart from their complexity and dubious internal consistency, the rules laid down in art. 63 are imperfectly suited for their aims.
First, the mandatory offset mechanisms do not seem apt to elicit more relocation pledges or at least an in-kind substitute from Member States averse to offer relocations, if that was the idea. To avoid the rigors of para. (5), all a Member State has to do is indeed to refrain from pledging any relocations. This may of course contribute towards triggering the thresholds of paras (3) and (4). Even then, if my reading is correct, the “punishment” is collective and recalcitrant Member States are not singled out as those that have to accept offsets. Indeed, it would seem that a Member State having pledged the whole value of its fair share in financial contributions will have nothing to fear (see art. 63(7)).
Secondly, while it is true that paras. (3) and (4) offer some guarantee to benefitting States that they may count on a minimum of 30’000 units between relocations and offsets, that guarantee is everything but ironclad. First, as we have seen, mandatory offsets are only triggered if the 30’000 threshold is transgressed in specific circumstances. Second, mandatory offsets will be de facto inoperant if the benefitting State has very few or no incoming Dublin transfers foreseen – a far more common situation than is widely assumed, with Greece being perhaps the prime example.
Concluding remarks
Considering its main features, is the new solidarity mechanism the right “insurance scheme” for the CEAS? Will it allow Member States to implement the acquis in full confidence of the fact that they will not incur disproportionate liabilities?
At this stage, clear-cut answers are not possible, only preliminary remarks are.
First, the Regulation establishes a process – a very complex one – whose functioning relies on a multitude of incentives and, crucially, on peer pressure. This is not surprising given the sensitivity of the subject and the difficulty of the negotiations. Complexity is not necessarily a downside, either. To an extent, it is a corollary of flexibility, the latter being a desirable feature if Member States are all to contribute and pool together their resources.
Secondly, the mechanism is overall more readable and sensible than the one initially proposed by the Commission. Indeed, having ousted “return sponsorships” and included offsets would be enough to say that negotiations improved on the original blueprint.
There are still a number of problems however. The unthinking reaffirmation of the “no right to choose” mantra in the context of relocations, and the hyper-bureaucracy of a procedure capable of including a pre-screening, matching, transfer, Dublin procedure and re-transfer, are perhaps unavoidable mistakes for the current EU leadership, but they are mistakes nonetheless and risk costing this part of the mechanism all of its efficacy. The rules on mandatory offsets conspicuously fail in targeting the “right” Member States, to the extent that they aim to compensate for insufficient relocation pledges. Finally, contrary to what the Regulation suggests, and despite the subtle interplay between the Commission proposal, the pledges and the responsibility offsets, neither the “minimum thresholds” of art. 12 nor any other discernible minimum of solidarity is actually guaranteed. Ultimately, it will still be for the Forum – i.e. for the Member States collectively, “coming to a conclusion” on the basis of unspecified voting rules – to define the yearly quantum of solidarity. Discretionary deductions and vaguely or arbitrarily worded conditionalities will make the size of the Pool and its accessibility even less determinable in advance for aspiring benefitting States.
In this last sense one preliminary conclusion is inescapable: on paper, the new solidarity mechanism lacks the predictability making it a viable insurance scheme for the CEAS in the sense described above. But this is merely the end of the beginning, and the development of a solid implementation practice might still endow the mechanism with that desirable quality.