The marathon talks on the EU’s asylum reforms have not yet led to a final agreement – which is probably good news. It suggests that the Parliament is holding firm and refusing to concede, despite immense pressure from both the Council and from the Commission, which has largely taken the side of the Member States.
Yesterday’s “jumbo” trilogue didn’t lead to the closure of any of the files; the next attempt will be at another trilogue on 18 December. The hope is that a political agreement can be reached then and announced before the end of the Spanish Presidency, with the Belgians then steering the adoption of the legislation based on the agreed content.
A one-way street?
ECRE has urged the Parliament to defend its positions and not least because they already represent significant compromises, which were made to get the necessary support across the political groups. In addition, in the trilogue negotiations so far, the Parliament’s rapporteurs have made additional concessions, accepting a number of key points that are in the Council’s mandates.
The Council seems to have made around zero concessions. A discussion paper from Tuesday, prepared by the Spanish Presidency, entitled “Towards a final compromise on the Pact on Migration and Asylum”, refers to the “core part of the Council mandates being preserved”, which is, if anything, an understatement – the document goes on to list the multiple elements of the Council’s General Approaches which have been agreed to by the Parliament.
A full comparison of the two co-legislators’ positions can be found in ECRE’s policy paper from August which noted many points of divergence, most of which have been settled in the favour of the Council. The argument continues to be made that it was so difficult for Member States to reach agreement that the Council position has to be accepted in its entirety. This is a rather disingenuous attempt at blackmail: it was also difficult for Parliament to reach its positions and the co-legislators are supposed to be on equal footing, with each making concessions in order to reach an agreement that reflects the positions and priorities of both.
The pressure brought to bear on MEPs to abandon key elements of their position might be considered part of the political game. It might also be considered a subversion of democratic processes. Hence the conclusion that a lack of agreement, based on the Parliament defending its position should be viewed positively.
The Pact and the reform process as a whole are based on a multitude of deals, with many done and more to come. Although none of the files has closed, the two co-legislators are close to agreement on almost everything. There will be a set of reforms in the Pact which add to the legislative proposals from 2016 asylum package that have already been agreed. It has already been settled that there will be a Screening Regulation setting out a mandatory screening process. It seems that the scope of the new monitoring mechanism will be limited to the screening process itself, as favoured by the Council, and that Parliament’s proposal to expand the monitoring to the wider border situation will not be included. It appears that screening on the territory (not just at the borders) has been agreed – unfortunate if so – All of which will take place in the fiction of non-entry.
The new APR will include mandatory use of the border procedure for certain categories of applicants, as well as expanded and sometimes mandatory use of other sub-standard procedures and significant weakening of procedural guarantees. The RAMM will replace the Dublin Regulation but will do so with rules on responsibility that look similar to the current rules, and even go further in reinforcing the first entry principle. A solidarity mechanism will be added but one that features flexible solidarity which means allowing Member States to choose the form of solidarity they offer.
Of the remaining disagreements, there are three main groupings of issues. First, border procedures. At the heart of the Pact, is the expanded use of the border procedure. As expected since the start, Parliament has conceded and accepted the mandatory use of asylum and return border procedures. The open points concern the categories of people for whom the procedures will be mandatory, with Parliament wishing to limit and the Council seeking to expand those captured by the rules. Then there is a question of which procedural guarantees will be provided, and notably whether the commitment to free legal assistance at all stages will remain.
The second group of issues concerns the “instrumentalisation” proposals. After the Instrumentalisation Regulation was blocked at Council level a year ago, a new tactic saw the key elements of the proposal integrated into the Crisis Regulation, meaning that the latter would include three situations in which Member States are allowed to ignore EU law, choosing from a menu of derogations, situations of Crisis, “Force Majeure” and “Instrumentalisation”.
While rather underhand, the move was undoubtedly clever: the Commission and Council know that the Parliament is strongly committed to the Crisis Regulation, for which the rapporteur is the Chair of the LIBE Committee, the key player on Parliament’s side, and where an effort has been made to create a useful piece of legislation. Parliament has been faced with a dilemma, should it accept the merging of the regulations and the incorporation of instrumentalisation into EU law, or insist on removal of instrumentalisation and force majeure, being ready to reject the Crisis Regulation entirely? ECRE strongly argued for the latter, given the danger of the instrumentalisation concept and of the expanded use of derogations in a context where compliance with the law is already a major challenge.
Worryingly Parliament is preparing to concede on the central element – integrating instrumentalisation into the Crisis Regulation. Debates continue, however, on the definition of instrumentalisation, the mechanisms for triggering the derogatory regimes, safeguards, and the forms of solidarity and other support that would apply in the situations of crisis. This issue is even more complicated because Parliament doesn’t have a position on the Instrumentalisation Regulation. A fractious debate last week saw the presentation of a damning implementation assessment which it commissioned, alongside the presentation of the rapporteur’s draft report which is not acceptable to most of the political groups.
A third area concerns solidarity and responsibility rules, with Parliament seeking to ensure prioritising of relocation and certain offsets in solidarity provisions – particularly in times of crisis – and also seeking to amend the responsibility rules to allow more grounds for allocation of responsibility, the rationale of its position being to alleviate the responsibilities of the countries at the external borders and create a fairer division of responsibility for applicants across the Member States. Unfortunately, even if the Parliament’s amendments were to be accepted, responsibility for the countries at the external borders will still increase – just not by as much.
What is it worth?
Overall, for all of these issues, the underlying question is what will the Parliament expect in exchange for having conceded on such major issues as agreeing to mandatory border procedures, to take place in detention with the fiction of non-entry applied, and accepting the pernicious concept of instrumentalisation into EU law? Or for having accepted a reform that does little to address the dysfunctionality of the Dublin system? The context is a set of reforms that reduce protection standards in Europe, appear unworkably complex, and do little to improve the fairness of the system for Member States or for applicants. It has been clear though since the breakthrough agreement brokered by the French Presidency, that something will go through, since when damage limitation has been crucial, and it remains so even in this final stage.
Attempts to reach an agreement will continue without a break from now until 18 December. Some of that will be on the basis of new compromises which have been drafted by the Commission, and which proved controversial yesterday. While compromises purport to incorporate the views of both co-legislators, in practice they skew very much towards the Council’s position, for example, on solidarity, legal assistance, safe third countries and so on.
The next 10 days will see relentless pressure on the Parliament to concede. ECRE again urges the Parliament to demand equal and sufficient concessions from the Council in exchange for what it has agreed. Too much has already been given up.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)