The Contribution of the European Courts to the Common European Asylum System and its Ongoing Recast Process
| Date | 01 June 2013 |
| DOI | 10.1177/1023263X1302000207 |
| Author | Francesca Ippolito |
| Published date | 01 June 2013 |
| Subject Matter | Article |
20 MJ 2 (2013) 261
THE CONTRIBUTION OF THE
EUROPEAN COURTS TO THE COMMON
EUROPEAN ASYLUM SYSTEM AND
ITS ONGOING RECAST PROCESS
F I*1
ABSTRACT
A ‘Common European Asylum System’ (CEAS) based on the full and inclusive application
of the Geneva Convention has been d eveloped according to the principles and aims of the
Tampere European Council in October 1999 (further elaborated by e Hague Programme
adopted in November 2004). However, signi cant discrepancies and di erences between
Member States’ asylum law and policy still exist, and it has yet to be e ectively realized.
A recast of the adopted series of important legislative measures harmonizing common
minimum standards in the area of asylum is now ongoing. is article will highlight the
progressive role played by the Court of Justice of the European Union together with the
European Court of Human Rights in the ongoing recast process, particularly in terms of
ensuring a higher stand ard of protection of basic human rights.
Keywords: asylum; CE AS; European Court of Human R ights; European Cour t of Justice;
protection st andards
§1. IN TRODUC T ION
Co ope ra tio n b et wee n Me mb er S tat es on a sy lu m is su es i s a lat e a rr iva l o n t he E ur ope an
scene. But since the entry into force of the Treaty of Amsterdam, which changed
the nature of asylum policy from a ‘question of common interest’ into veritable
‘European’ measures, t he achievements have been signi cant. A ‘Com mon European
Asylum System’ (CEAS) based on the full and inclusive application of the Geneva
* Lecturer i n International and EU Law, Universit y of Cagliari.
Francesca Ippol ito
262 20 MJ 2 (2013)
Convention has been developed according to the principles and a ims of the Tampere
European Council in October 1999 (further elaborated by e Hague Progra mme
adopted in November 2004). In particula r, a series of important legislative measures
harmonizing common min imum standards in the a rea of asylum have been adopted: a
Directive on reception conditions for asy lum seekers, a Directive on the qual i cations
for becoming a refugee or a bene ciary of subsidiary protection status, a Directive
on asylum procedures and the Dublin II Regulation.
1 Nonetheless, the wide scope
of discretion – either expl icitly a orded to Member States or implicitly derived
from the lack of clarity – of many provisions of the existing legislation has still led
to signi cant discrepancies and di erences between Member States’ asylum law and
policy. e second phase of legislation is now underway in order to adequately and
comprehensively address this problem.2 It aims to introduce a signi cant shi in
the nature of the legislation by introducing mandatory obligations for the Member
States together with t he abolition of opt-out clauses and the ‘f ull’ harmonization of
both procedures and standa rds, which are a lso in line with the changes made by the
‘a common area of protection and solidar ity based on a common asylum procedu re
and a uniform status for those granted international protect ion’ as set out in the
Stockholm Progra mme of 2009.3
1 See Council D irective 200 4/83/EC of 29April 2004 on m inimum sta ndards for the qua li cation and
status of thi rd country nation als or stateless p ersons as refugee s or as persons who other wise need
international pr otection and the content of t he protection grante d, [2004] OJ L 304/12; Counci l Directive
2005/85/EC of1December 2005 on minimum standards on procedures in Member States for granting
and withdr awing refugee s tatus, [2005] OJ L 326/13; Counci l Regulat ion No. 343/2003 of 18February 20 03
establishi ng the criteria a nd mechanisms for de termining t he Member State responsible for ex amining a n
asylum applicat ion lodged in one of the Member State s by a third country n ational, [2003] OJ L 50/1.
2 e rst package of proposals inc ludes the Proposal for a Regu lation of the European Parli ament and
of the Council e stablishing the c riteria and mechan isms for determini ng the Member State responsible
for examini ng an application for i nternational protec tion lodged in one of th e Member States by a
third countr y national or a stateles s person, COM (2008) 820 nal ; the Proposal for a Regu lation of the
European Parl iament and of the Counc il concerning th e establishment of ‘Euro dac’ for the comparis on
of ngerprints for the e ective application of Regul ation (EC) No. 343/2003,COM (2008) 825 nal;
the Proposal for a Di rective of the European Parlia ment and of the Council laying dow n minimum
standards for t he reception of asylum s eekers, COM (2008) 815 nal and t he Proposal for a Direc tive of
the European Pa rliament and of the Counc il on minimum stand ards on procedures in Member St ates
for granting a nd withdrawing inter national protection, COM (200 9) 554 nal, and a new Directive of
the European Pa rliament and of the Counci l 2011/95/EU on minimum standard s for the quali cation
and status of th ird country nationals or stat eless persons as bene ciaries of internation al protection
and the content of the prote ction grante d, [2011] OJ L 337/9. In order to help the stag nant (stuck)
negotiations, t he European Commission in Ju ne 2011 presented a modi ed proposal for the Dire ctive
on the reception cond itions of asylum seekers , COM (2011) 320 nal; as well as a modi ed proposal for
the Direct ive on minimum standa rds on procedures in Member States for g ranting and withdr awing
international pr otection, COM (2011) 319 nal.
3 Council Docu ment 17024/09, ‘ e Stockholm Prog ramme – An open and secu re Europe serving and
protecting t he citizens’, 2December 20 09, http://register.consilium. europa.eu/pdf/en/09/st17/st17024.
en09.pdf (last v isited 16April 2013).
To continue reading
Request your trial