POSITION ON THE FUNCTIONING OF THE TREATY ON EUROPEAN UNION IN         RELATION TO ASYLUM POLICY

                                     AUTOR :  European Council on Refugees and Exiles (ECRE)

                                                         March 1997
 
 
 

Introduction

   1.In June 1995 ECRE issued a Position Paper on The Functioning of the Treaty on European Union in relation to Asylum Policy with reference to the
     Inter-governmental Conference on the Revision of the Treaty on European Union, (IGC). In this paper ECRE drew attention to the discontent expressed by
     all the major institutions of the European Union concerning the effectiveness and the adequacy of the Third Pillar of the Maastricht Treaty.
   2.ECRE urged the institutions of the Union and the Governments of the Member States to utilise the opportunity of the 1996 IGC and undertake institutional
     reform to improve co-operation and effectiveness, guarantee transparency and to ensure judicial and democratic control of all Council decisions relating to
     asylum and refugees.
   3.In further contribution to the discussions of the Conference on the revision of the Treaties, ECRE here responds to developments since June 1995.
 
 
 

PART I: General Remarks on the Institutional Framework

Considering:

4. that there is a recognised need for a common approach by the Union and for greater co-operation between Member States on questions related to refugees and
the right of asylum;

5. that the 1994 Communication of the Commission on Immigration and Asylum Policies1 offers a useful framework for a comprehensive approach to refugee
situations and indicates a constructive strategy beyond the current approach taken within the inter-governmental framework, which seems to result in the adoption of
policies based on the lowest common denominator;

6. that the 1995 Communication of the Commission on Article K.92, was correct in promoting the fundamental revision of the Third Pillar within the framework of
the IGC rather than through the eventual application of Article K9;

7. that in Article G of the General Outline for a Draft Revision of the Treaties, 3drawn up by the Irish Presidency for the Conference of the Representatives of
the Governments of Member States, the Presidency stated that the role of institutions and decision making procedures under Title VI remain to be considered further
by the Conference;

8. that in November 1995 the Council agreed that the adopted acts and other texts in the field of asylum and immigration are to be published in the Official Journal of
the European Communities4, but that access for all interested parties (i.e the European Parliament, non-governmental organisations and inter-governmental
organisations) to information during the development of these acts is still not guaranteed;

9. that it is of the utmost importance that all discussions within the Council framework, especially within the `Centre for Information, Discussion and Exchange on
Asylum' (CIREA) are open to public scrutiny;
 

ECRE:

10. urges the Conference to continue working towards the transfer of competence for dealing with refugee and asylum matters to the European Community itself,
thereby allowing for full democratic and judicial control;

11. or, if the above transfer proves to be politically impossible, at least to adopt qualified majority voting within the Third Pillar for decisions by the Council in all
matters relating to asylum and refugees, when further considering the appropriate forms and procedures under Article K.3(2), as a basic prerequisite for
strengthening decision making procedures,

12. believes that the Commission should have an exclusive right of initiative and not a shared right with the Member States under either of the options suggested by
the Irish Presidency5, in order to counter the inevitable tendency of Member States to act primarily in accordance with national interests

13. believes that the Court of Justice must have full competence in the areas of asylum and immigration through the amendment of Article L of the TEU in order to
ensure supranational jurisdiction of the discrepancies which currently exist between the Member States in the interpretation and application of provisions in this area;

14. welcomes the reference in Article 192a of the draft revision to the right of access to European Parliament, Council and Commission documents, but believes that
this right of access should include draft documentation and be subject to the minimum number of limiting conditions;

15. recommends as an alternative to CIREA, the establishment of an independent refugee commission6 composed of representatives of the Member States,
non-governmental organisations, and inter-governmental organisations (amongst which UNHCR) and other experts, to assume the responsibility for research and
analysis of the situation in the countries of origin;

16. believes that the substantive issues laid down and the legal instruments adopted hitherto under the Third Pillar should be subject to full renegotiation, under these
democratic conditions and in consultation with UNHCR, and not merely transferred to the First Pillar;

17. believes that the highest standards of practice in the asylum field, rooted firmly in values of democracy and human rights, should be taken as a starting point of
these negotiations.
 
 

PART II: Specific Remarks on Substantive Issues

Considering:

18. that in Article C of the General Outline for a Draft Revision of the Treaties immigration and asylum issues, as subjects for further communitarisation, were
examined in substance for the first time;

19. that the Council has asked the Conference to develop the proposal7 to amend the Treaties in order to establish it as a clear principle that no citizen of a Member
State of the Union may apply for asylum in another Member State;
 

ECRE:

20. welcomes the substantive examination of issues related to refugees and the right of asylum in Section 1, Chapter 2, of The General Outline for a Draft
Revision of the Treaties,8in particular the fact that Article C.2 deals with persons in need of international protection who fall outside the scope of the Geneva
Convention9;

21. furthermore welcomes the explicit references to Temporary Protection10 and "burden sharing"/ sharing the responsibility11 in Article C.2;

22. believes that there is an urgent need for clarification of the meaning of the words "qualification of third country nationals as refugees" as described in point
1c in Article C of the draft revision. This point would seem to refer to Article 1 of the 1951 Geneva Convention, an international treaty obligation which as such
should not be a subject for consideration within a proposal for the revision of the Treaties on European Union;

23. therefore urges that the 1996 Council Joint Position on the harmonized application of the term "refugee" in Article 112 should not be converted into a binding
legal instrument;

24. furthermore expresses its concern with regard to the possible reinterpretation of existing treaty obligations, such as those covering the social and economic rights
of recognised refugees as laid down in the 1951 Geneva Convention, the interpretation of which are the responsibility of national and international judiciaries, and
UNHCR;

25. strongly supports UNHCR's opposition13 regarding the proposal by the European Council to deny the right of EU citizens to apply for asylum in
another Member State and finds the proposal to be dangerous and unacceptable for the following reasons:

i. If adopted, the amendment would result in each Member State being in violation of their obligations under international law. Under the 1951 Geneva Convention,
as ratified by every EU Member State, it is incumbent upon those Contracting States to determine who on their territory is a refugee, irrespective of country of origin.

ii. In seeking to establish an automatic bar to refugee determination procedures according to country of origin, the proposed amendment would introduce a
geographical limitation to the application of the refugee definition as contained in Article 1 of the 1951 Geneva Convention, and thus violate the 1967 New York
Protocol. It is also inconsistent with Article 3 of the 1951 Geneva Convention that requires Contracting States to apply its provisions without discrimination as to
country of origin, and is therefore prohibited by Article 42 which does not permit reservations to certain provisions of the Convention, including Articles 1 and 3.

iii. ECRE believes that the right to free movement enjoyed by citizens of the Member States of the European Union14 would not, in practice, be sufficient to
guarantee protection to a refugee were they to seek it by means of entering and establishing residence in another Member State. They may still be forced to return to
their country of origin (refoulement), in direct violation of Article 33 of the 1951 Geneva Convention or of Article 3 of the European Convention on Human Rights
and Fundamental Freedoms, if they were subject to expulsion under Directive 64/22115 or extradition under the 1996 Convention on Extradition16.

iv. The proposed amendment has been partially motivated by the wish to exclude terrorists from the institution of asylum. ECRE emphasises that the issue of
exclusion is already provided for under Article 1F (a) of the 1951 Geneva Convention.

v. The proposed amendment is falsely based upon the belief that we can predict human rights developments in European States over the longer term. ECRE
emphasises that no country is absolutely immune from serious political or social instability resulting in human rights violations. In particular, the proposed amendment
fails to take account of situations which could arise under an enlarged European Union.
 

1 Communication from the Commission to the Council and the European Parliament on Immigration and Asylum Policies, 23 February 1994. REF.COM
(94) 23 final.

2 Communication from the Commission to the Council and The European Parliament on the Eventual Application of Article K.9 of the Treaty on
European Union. REF COM (95) 566 final.

3 `The European Union Today and Tomorrow - Adapting the European Union for the Benefit of its Peoples and Preparing it for the Future -- A General
Outline for a Draft Revision of the Treaties'. Dublin II. 5 December 96, REF CONF 2500/96 COR 1

4 OJ C 274 19.9.1996

5 Point 1, Article G of A General Outline for a Draft Revision of the Treaties

6 ECRE believes that bringing information on country of origin into the public domain both facilitates the examination of individual asylum applications and is an
important element in guaranteeing fair and efficient procedures for determining refugee status (see ECRE Proposal for Fair and Efficient Asylum Procedures,
October 1990); and believes that the Canadian Immigration and Refugee Board's "Documentation, Information and Research Branch" may be a useful model.

7 Chapter IV, Conclusions of the Presidency - Dublin 13/14 December 1996 REF SN 401/96

8 See footnote 4

9 See ECRE Working Paper on the Need for a Supplementary Refugee Definition, April 1993, confirmed as ECRE policy as of May 1996.

10 See ECRE Position Paper on Temporary Protection in the Context of the Need for a Supplementary Refugee Definition, February 1997.

11 See ECRE Position on Sharing the Responsibility: Protecting Refugees and Displaced Persons in the Context of Large Scale Arrivals, March 1996.

12 Council Joint Position on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term
"refugee" in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees, 4 March 1996 (Published in OJ L 63, 13/3/96).

13 UNHCR Position on the proposal of the European Council concerning the treatment of asylum applications from citizens of European Union Member
States, January 1997.

14 As laid down in Article 48 and following of the Treaty on European Community.

15 This Directive permits expulsion in the interests of public policy, health or security.

16 Convention drawn up on the basis of Article K.3 of the Treaty on European Union, relating to Extradition between the member states of The
European Union, September 1996. REF CONV/EXTR. (Published in OJC 313, 23/10/96).
 
 

FONTE : http://europa.eu.int/en/agenda/igc-home/instdoc/ngo/ecre.htm