Master of Arts Thesis
Euroculture
University of Groningen (Groningen, the Netherlands) University of Deusto (Bilbao, Spain)
June, 2014
The representation of the EU’s center and periphery in EU
asylum law:
The case of Dublin II
Submitted by: Debra van Kleinwee Student number home university: s1895362 Student number host university: 99908202 +31 (0)6 30310508; debravkl@msn.com
Supervised by: Prof. Dr. D. Kochenov Prof. Dr. B. Pérez de las Heras
MA Programme Euroculture
Declaration
I, Debra van Kleinwee, hereby declare that this thesis, entitled “The representation of the EU’s center and periphery in EU asylum law: The case of Dublin II”, submitted as partial requirement for the MA Programme Euroculture, is my own original work and expressed in my own words. Any use made within this text of works of other authors in any form (e.g. ideas, figures, texts, tables, etc.) are properly acknowledged in the text as well as in the bibliography.
I hereby also acknowledge that I was informed about the regulations pertaining to the assessment of the MA thesis Euroculture and about the general completion rules for the Master of Arts Programme Euroculture.
Signed
1 Table of contents
1. Introduction………..2
2. Representation of member states’ capabilities and concerns in EU law……...8
2.1 United in diversity?...8
2.2 Center versus periphery in EU law………10
3. Asylum in the European Union……….19
3.1 The current asylum situation in the European Union………19
3.2 International and EU law regarding asylum……….25
3.3 Solidarity and fair sharing of asylum responsibilities………...33
4. The Dublin Regulation and its representation of center and periphery……...39
4.1 The Dublin Regulation………...39
4.2 Dublin II put into practice……….….42
4.3 Dublin II: balanced criteria?...46
4.4 Dublin II jurisprudence: K.R.S. and N.S………....48
4.4.1 K.R.S. v. United Kingdom……….….49
4.4.2 N.S. v. Secretary of State for the Home Department and M.E. et al. v. the Refugee Applications Commissioner and the Minister for Justice, Equality, and Law Reform…….………...……….51
5. Conclusion……….……….55
Bibliography………..59
Appendix 1: GDP per capita in PPS for EU member states and some non-EU member states from 2001 till 2012...68
Appendix 2: Unemployment rate of EU member states and some non-EU member states from 1995 till 2014………....…….…….……….69
2 1. Introduction
Immigration and asylum in the European member states are highly debated topics among politicians and European citizens. It is widely thought that high numbers of irregular immigrants and asylum seekers enter the EU, which causes high financial burdens on the member states. Before going further into the ‘problem’ of asylum seekers and how this is dealt with by the member states, this idea of the EU being invaded by asylum seekers will be put in perspective. When looking at European history, it becomes clear that Europe has actually always been more a territory of emigration than a territory of immigration.1 From the 15th century onwards, when the Spaniards discovered the Americas, emigration from Europe started to take place on a large scale. About 65 million of Europeans left Europe to settle in other parts of the world.2 The reverse trend of immigration to the European continent was limited until the First World War.3 Then, non-Europeans started to come to Europe as soldiers, guest workers or asylum seekers.4 5 When in 1951 the Geneva Convention Relating to the Status of Refugees6 was signed by several countries in Europe, the right to apply for asylum became more widely accepted.7 Therefore, people from countries in which conflicts were going on started to flee to Europe in search for asylum. One of the most recent conflicts that caused people to flee to other countries, among which EU member states, was the so-called Arab Spring. The Arab Spring was a series of protests against authorities because of issues like little social justice, the gap between rich and poor and a lack of democratic institutions.8 It started in December 2010 in Tunisia and Egypt9 and spread to other Arab states like amongst others Bahrain, Syria and Yemen.10 These protests led to violent repressions from the authorities and caused that many inhabitants of these states had to flee to other countries. In the EU member
1 Peter C. Emmer and Leo Lucassen, “Migration from the colonies to Western Europe since 1800,” Paper on the
European History Online website, 13 November 2012, accessed 6 May 2014,
http://ieg- ego.eu/en/threads/europe-on-the-road/economic-migration/pieter-c-emmer-leo-lucassen-migration-from-the-colonies-to-western-europe-since-1800.
2 Emmer and Lucassen, “Migration from the colonies to Western Europe since 1800,” 1. 3 Ibid., 2.
4 Ibid., 11.
5 Because this work focuses on asylum policies and laws in Europe, there will be talked especially about asylum
seekers and refugees in the EU and not so much about other type of immigrants in EU member states.
6 United Nations, “Convention and Protocol relating to the Status of Refugees,” United Nations (1951).
http://www.unhcr.org/3b66c2aa10.html
7 Emmer and Lucassen, “Migration from the colonies to Western Europe since 1800,” 45.
8 Ron Pundak, “From the Arab Peace Initiative to the Arab Spring and back,” Palestine-Israel Journal of
Politics, Economics and Culture vol. 18, no. 1 (2012): 114.
9 Pundak, “From the Arab Peace Initiative to the Arab Spring and back,” 114.
10 Ayfer Erdogan, “From the collapse of communism in Eastern Europe to the Arab Spring: lessons for
3 states’ media it is often portrayed as if all of these asylum seekers are coming to the EU and are thus highly burdening the member states. However, in comparison with non-EU states, the number of asylum seekers received by EU member states is relatively small. As indicated by Garlick and Van Selm, the EU received 59,00011 asylum seekers from North Africa in 2011. About half of them came from Libya.12 However, this was only 5%13 from the asylum seekers that left Libya. The total amount of fleeing Libyans amounted to about 560,000; most of whom sought asylum in nearby countries such as Tunisia and Egypt.14 The same is reported by UNHCR, who in its statistical year reports of 2011 and 2012 indicates that the countries with the most refugees per GDP are Pakistan and the Democratic Republic of Congo in 201115 and Pakistan and Ethiopia in 2012.16 As far as the number of refugees per 1000 habitants is concerned, the most burdened countries are Jordan, Chad and Lebanon in 2012, which host more than 30 refugees per 1000 inhabitants.17 It can therefore be said that, in comparison to third countries, the financial and physical burden of asylum seekers on European member states is highly exaggerated.
However, even though asylum seekers arrive in Europe on a much smaller scale than in other, non-European countries, the rise in the number of arrivals still forms a concern for the member states and causes discussion and tensions between them. If we look at where most asylum seekers and refugees came from (from 2008 to 2011), the top 3 was formed all the time by Afghanistan, Iraq and Somalia.18 Countries of origin are, thus, especially countries from the Middle East and Africa. Since these asylum seekers have little opportunities to enter the EU regularly,19 they are forced to use irregular ways to enter the EU, for example by making use of smugglers of people who bring them to Europe by means of boats or trucks.20 This then means that asylum seekers are likely to first enter the EU through member states that form the Southern and Eastern external border of the EU. It is also the member states that form the Southern and Eastern external border of the
11 Madeline Garlick and Joanne van Selm, “From commitment to practice: the EU response,” Forced Migration
Review 39 (2012): 20.
12 Garlick and Van Selm, “From commitment to practice: the EU response,” 20. 13 Ibid.
14 Ibid.
15 UNHCR, Statistical Yearbook 2011 (Geneva: UNHCR, 2011): 27. 16 UNHCR, Statistical Yearbook 2012 (Geneva: UNHCR, 2012): 28. 17 Ibid., 29.
18 UNHCR, Statistical Yearbook 2011, 28.
19 Eiko Thielemann and Carolyn Armstrong, “Understanding European asylum cooperation under the
Schengen/Dublin system: a public goods framework,” European Security vol. 22, no. 2 (2013): 149.
4 EU that, amongst others because of the Arab Spring, received higher numbers of asylum seekers than they did before.21 The member states forming the Southern and Eastern external border of the EU asked the less affected member states for assistance, but the latter were reluctant to provide sufficient help.22 This has caused tensions between the member states, which became explicitly visible when former President of France, Nicolas Sarkozy, wanted to reinstate the border between France and Italy, when Italy was confronted with an increase in the number of arrivals of Tunisian asylum seekers, of whom it was thought that they wanted to travel along to France.23 Also, Dutch Prime Minister Mark Rutte once said that those countries at the Southern and Eastern borders of the EU that receive high numbers of asylum seekers were simply “geographically unlucky”.24 These incidents show that as far as asylum issues are concerned, the EU member states are not yet able to work together in such a way that asylum applications are dealt with satisfactorily and they do not seem to be able to share the costs and efforts that come along with it. This is in contrast to Treaties25 and other official EU documents regarding asylum issues,26 in which an emphasis is often put on the idea of solidarity27 and a fair sharing of asylum responsibilities28 among the member states. This lack of willingness to cooperate is not only problematic for the asylum seekers, but also for the member states themselves. It causes inhumane situations for the asylum seekers on the
21 For example Italy and Malta, see: Garlick and Van Selm, “From commitment to practice: the EU response,”
21-22.
22 Lillian M. Langford, “The other Euro crisis: rights violations under the Common European Asylum System
and the unraveling of EU solidarity,” Harvard Human Rights Journal vol. 26 (2013): 221.
23 Nikolaj Nielsen, “Sarkozy threatens to end EU passport-free travel,” EUobserver, 12 March 2012, sec. Justice
and Home Affairs, accessed 10 April 2014, http://euobserver.com/justice/115556.
24 Servaas van der Laan, “Europees grensbewakingssysteem Eurosur van start,” Elsevier, 1 December 2013, sec.
News, accessed 2 April 2014, http://www.elsevier.nl/Europese-Unie/nieuws/2013/12/Europees-grensbewakingssysteem-Eurosur-van-start-1420313W/.
25 European Union, “Consolidated version of the Treaty on the Functioning of the European Union,” Official
Journal of the European Union (2008): 49.
26 See for instance: Council of the European Union, “Council Regulation (EC) No 343/2003 of 18 February 2003
establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national,” Official Journal of the European Union (2003): preamble (8); Council of the European Union, “Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof,” Official Journal of the European Communities (2001): preamble (7), (20) and Art. 25(1); European Parliament and Council of the European Union, “Regulation (EU) No 439/2010 of the European Parliament and of the Council of the European Union of 19 May 2010 establishing a European Asylum Support Office,” Official Journal of the European Union (2010): Art. 46(1); European Council, “Tampere European Council Presidency Conclusions,” European Council (1999): 16, accessed 28 April 2014,
http://www.europarl.europa.eu/summits/tam_en.htm.
27 European Council, “Tampere European Council Presidency Conclusions,” 4, 16; European Union,
“Consolidated version of the Treaty on the Functioning of the European Union,” Art. 67(2), Art. 80.
5 one hand, but also an unequal distribution of responsibilities and tensions between the member states on the other hand.
Ever since asylum seekers started to come to the European continent on a larger scale, both international29 and European laws30 have been established in order to better deal with asylum issues. More recently, the EU has undertaken measures, on the one hand, to control the external borders. Frontex, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union,31 and Eurosur, the European Border Surveillance System,32 were established to “improve[ing] the integrated management of the external borders of the Member States of the European Union,”33 and to “prevent[ing] and combat[ing] illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants.”34 On the other hand, actions have been undertaken to share the asylum responsibilities that come along with asylum seekers who do succeed to cross the border, for example by means of the Common European Asylum System (CEAS)35 and the European Refugee Fund (ERF).36 Although it can be said that burden-sharing in the field of asylum is thus seen as an embraced measure within the EU, it is questionable whether it works or even whether it actually exists. Are the EU member states as social or as solidary as they pretend to be and does a burden or responsibility-sharing mechanism really exist? Moreover, while dealing with asylum issues, are the different situations and capabilities of the member states taken into account?
29 For instance: United Nations, “Convention and Protocol relating to the Status of Refugees”.
30 For instance: Council of the European Union, “Council Regulation (EC) No 343/2003”; Council of the
European Union, “Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted,” Official Journal of the European Union (2004).
31 Council of the European Union, “Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a
European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union,” Official Journal of the European Union (2004).
32 European Parliament and Council of the European Union, “Regulation (EU) No 1052/2013 of the European
Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur),” Official Journal of the European Union (2013).
33 Council of the European Union, “Council Regulation (EC) No 2007/2004,” Art. 1(1).
34 European Parliament and Council of the European Union, “Regulation (EU) No 1052/2013,” Art. 1. 35 European Council, “Tampere European Council Presidency Conclusions,” A.II.
36 Council of the European Union, “Council Decision of 2 December 2004 establishing the European Refugee
Fund for the period 2005 to 2010,” Official Journal of the European Union (2004); European Parliament and Council of the European Union, “Decision No 573/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the European Refugee Fund for the period 2008 to 2013 as part of the General
6 These questions will be central in this work and they will be related to Damjan Kukovec’s37 theory about center and periphery in the EU and in EU law. Damjan Kukovec argues that within EU law and EU legal discourse there is made a difference between the center and the periphery of the EU.38 According to Kukovec, “the EU legal structure should be seen as a set of freedoms and prohibitions and that the existing configuration of freedoms and prohibitions in the Union favours the center and disadvantages the periphery.”39 As such, the European Union is not as tolerant and inclusive as it pretends to be. Kukovec gives the example of free movement in the EU. By analyzing the European Court of Justice (ECJ) cases of Viking40 and Laval,41 he argues that EU law is more concerned with the center’s interests and to a lesser extent with the interest of the states at the periphery. “I have my reservations about the idea that everyone’s interests are taken into account, about the idea that the EU structure has an inbuilt element of tolerance and inclusion of the other, and about the periphery fully participating in the construction of Europe and in the European growth.”42 This argument will be explained further in the next chapter and it will serve as the central point of this work. While Kukovec focusses on the difference of center and periphery in EU law regarding free movement, his argument will be connected here to asylum policy and asylum law in the EU. When looking at legal acts in the field of asylum and refugee protection, in particular at the Dublin II Regulation, it will be shown whether EU law also better represents the interests of the center than those of the periphery in these areas. By analyzing the Dublin II Regulation and some legal cases regarding this Regulation, it will become clear to what extent the interests of both the member states of the center and those of the periphery are represented within EU law in the field of asylum. The question that
37 Kukovec is a candidate of the Doctor of Juridical Science programme at Harvard University. The main topics
he investigates is the position of the center and the periphery member states in EU law. His argument is that “the interests and the concerns of the peripheral EU countries are difficult to express in the existing legal discourse and that this crucially influences their position in the EU.”
http://www.law.harvard.edu/academics/degrees/gradprogram/sjd/sjd-current-students/damjan-kukovec.html
38 Damjan Kukovec, “Whose social Europe? The Laval/Viking judgments and the prosperity gap,” (paper
presented at Harvard Law School Conference, “Developing Europe: Regional Policy and Free markets in European Legal Discourse,” Harvard Law School, 2010); Damjan Kukovec, “A critique of the rhetoric of common interest in the European Union legal discourse,” (paper presented at the IGLP and IEE joint seminar, “The European Legal Project: New Approaches,” Harvard Law School, 13 April 2012); Damjan Kukovec, “Taking change seriously – The discourse of justice and the reproduction of the Status Quo,” (paper presented at London School of of Economics, 22 September 2012).
39 Kukovec, “A critique of the rhetoric of common interest in the European Union legal discourse,” 10. 40 Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP,
OÜ Viking Line Eesti, judgment of 11 December 2007.
41 Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska
Byggnadsarbetareförbundet, avd. 1, Svenska Elektrikerförbundet, judgment of 18 December 2007.
7 will be dealt with here will thus be: does EU asylum law and in particular the Dublin II Regulation take into account the different interests and capabilities of the center and the periphery member states or does it favour either the center or the periphery? The expectation is that, just as Kukovec has shown for EU law regarding the free movement, EU asylum law better takes into account the wishes, needs and capabilities of the center states than those of the states at the periphery. This will than show us that the EU, because of flaws and biases in EU law, does not function as it is supposed to be functioning, namely as a cooperation between member states based on principles like, amongst others, solidarity.43 This is not just disadvantageous for asylum seekers, but also for the member states themselves, especially for the periphery states. This work is therefore different from other works about asylum policy and burden-sharing in the EU, since it does not focus on the consequences of weak asylum policy for the asylum seekers, but on the consequences for the member states themselves and the EU as a whole.
The structure of the work will be as follows. In the next chapter there will be dealt with the diverse characters of the member states (2.1), and how there are taken into account within EU law and EU legal discourse (2.2). The third chapter will take a closer look at the current asylum situation in the EU (3.1), legal acts in the field of asylum (3.2) and the idea of burden or responsibility sharing (3.3). Finally, an analysis will be conducted as to understand to what extend Dublin II represents the center and the periphery (4). In the final part (5) the relationship between Kukovec’s theory of center and periphery and asylum laws in the EU will be under consideration.
8 2. Representation of member states’ different concerns and capabilities in EU law
2.1 United in diversity?
As all states in the world, the current twenty-eight member states of the European Union are all very different from one another. One of the main differences, which also causes tensions between the member states, is the difference in their economic situation and performance.44 Economic differences, of course, have existed from the beginning of the European integration project onwards, but have been worsened by the crisis.45 Differences in economic levels are of importance for the rest of the argument made in this chapter, since they form an important factor, together with geographical positions, for differences in asylum situations in the member states.46 Therefore, economic diversity will be briefly under discussion here. There will be made use of a geographical division of Europe,47 made by the United Nations, in order to show how economic levels and performances are divided among the different regions of Europe. Three factors of (socio-)economic levels will be taken into consideration for the year 2012:48 GDP per capita, unemployment and the number of people at risk of poverty or social exclusion. As far as the GDP per capita is concerned, 100 is taken as a standard for the entire EU. Countries below this standards are amongst others Bulgaria, Czech Republic, Estonia, Greece, Spain, Croatia, Latvia, Portugal and Romania,49 almost all belonging to the Eastern and Southern region of the EU, except for Estonia and Latvia which are considered to belong to the Northern region according to the United Nations divide. Member states with a GDP higher than the standard are especially member states from the Northern and Western region, like
44 European Commission, “COM(2014) 130 final. Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Taking stock of the Europe 2020 strategy for smart, sustainable and inclusive growth,” European Commission (2014): 8.
45 European Commission, “COM(2014) 130 final,” (2014): 8.
46 The geographic position of the member states is highly influential on whether they receive many asylum
seekers or not. The economic situation then is influential as to what extent the member states are able to deal with the asylum seekers residing within their state.
47 According to this geographical divide of Europe, the European Union consists of a Northern, Eastern,
Southern and Western part: North (Denmark, Estonia, Finland, Ireland, Latvia, Norway, Sweden, United Kingdom), East (Bulgaria, Czech Republic, Hungary, Poland, Romania, Slovakia), South (Croatia, Cyprus, Greece, Italy, Malta, Portugal, Slovenia, Spain), West (Austria, Belgium, France, Germany, Luxembourg, Netherlands). United Nations, “Composition of Macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings,” United Nations Statistics Division, 2013, accessed 5 May 2014, https://unstats.un.org/unsd/methods/m49/m49regin.htm.
48 There has been chosen to look at 2012, since 2012 was an important year as regards asylum issues, since in
2012 the impact of the Arab Spring on the European asylum system(s) became fully clear. This year is also used later on when talking about number of asylum seekers in the European Union, so it is important to link the economic situation in 2012 with the asylum situation at that moment.
9 Denmark, Germany, Luxembourg and Norway.50 While having a look at the unemployment rate in the European member states, it were countries like Bulgaria, Ireland, Greece, Spain, Croatia and Slovakia51 that were above the average of 10,1% in the entire EU in 2012, while Germany, Luxembourg, The Netherlands and Austria had a much lower unemployment rate.52 Finally, taking into account the percentage of the member states’ population that is ask risk of poverty or social exclusion, it becomes visible that Bulgaria, Greece, Romania and Croatia have more inhabitants facing such a risk than states in the North and West like Norway, The Netherlands or France.53 These data indicate that economic performances are generally lower in member states from the Southern and Eastern regions of the EU than those of the Western and Northern regions. Besides this geographical divide, the EU can be divided in other ways as well. Member states could be divided according to whether they are old or new member states, Eurozone or non-Eurozone members or whether they are big or small.54 However, economic performances are highly important for the relationship between the member states. For example, because of economic differences between member states there exists the idea that the economically less performing member states relatively take more from the EU budget than they contribute and that this is the other way around for the economically well performing member states.55 Economic performances are thus highly important for the perception member states have from one another and how they treat each other. According to the different economic performances of the member states, the European Union can be divided in a center and a periphery with the economically better performing states as the center (generally coinciding with the Northern and Western regions described above) and the countries facing more economic difficulties as the periphery (generally coinciding with the Eastern and Southern regions described above).56 This economic divide between different regions in Europe is import to have in mind for understanding
50 See Appendix 1. 51 See Appendix 2. 52 See Appendix 2. 53 See Appendix 3.
54 Elemer Hankiss, “The East-West divide in Europe: does it exist?” (report presented at the Wilson’s Center
EES meeting, 22 October 2003), available at http://www.wilsoncenter.org/publication/281-the-east-west-divide-europe-does-it-exist
55 Kukovec, “Whose social Europe? The Laval/Viking judgments and the prosperity gap,” 3-4.
56 This center/periphery divide is also made by Damjan Kukovec, see: Kukovec, “A critique of the rhetoric of
10 the following section on how EU law and EU legal discourses take into account the different interests of the member states.
2.2 Center versus periphery in EU law
In the previous part a division has been made between the center and the periphery in the EU on the basis of the differences between the member states in their economic performances. The center is economically performing better than the periphery, which means that both groups have different (socio-)economic concerns. Within one country it is already difficult to make a policy and to establish legal acts that take into account the different interests that there are within that country. Within the European Union this challenge is even bigger and the question is whether it is possible, while establishing new policies and laws, to take into account the different situations and along with that the different interests the member states have. Whether EU law and legal experts take into account the different interests of the member states is also questioned by Kukovec. In short, his theory consists of the idea that EU law and legal discourse focus on a certain common interest. However, according to Kukovec, within the EU there is no such thing as a common interest, since the member states find themselves in different situations and therefore have different interests and needs. This common interest which seems to exist coincides with the interest of the center states and not so much with those of the periphery. Kukovec’s theory of center and periphery in EU law and legal discourse was a response to the so-called ‘social Europe’ debate. This debate focuses on the process of European integration and criticizes the lack of a social dimension within this integration project.57 Proponents of a more social Europe argue that there is a subordination of social rights to economic freedoms. Fritz Scharpf called this the “political decoupling of economic integration and social-protection issues,”58 which made that the European agenda exclusively focused on the issues of market integration and liberalization, leaving social issues to national governments.59 This was also called the social deficit of the European
57 Christian Joerges and Florian Rödl, “Informal politics, formalised law and the ‘social deficit’ of European
integration: Reflections after the judgments of the ECJ in Viking and Laval,” European Law Journal vol. 15, no. 1 (2009): 2-3.
58 Fritz Scharpf, “The European social model: coping with the challenges of diversity,” JCMS vol. 40, no. 3
(2002): 646.
11 Union.60 The Viking61 and Laval62 cases of the European Court of Justice made an
important contribution to this debate, since they were used by legal academics to support their theory of the social deficit of Europe. These cases are important to understand Kukovec’s idea of center and periphery in EU law. Therefore they will be briefly dealt with here. In Viking collective action was undertaken against Viking Line, a Finnish shipping company63 that wanted to reflag its Rosella ferry in Estonia, since this would offer the opportunity to hire cheaper workers from Estonia.64 The International Transport Workers’ Federation (ITF) as well as the Finnish Seamen’s Union (FSU) undertook collective action against Viking, since reflagging the Rosella in Estonia and hiring an Estonian crew would mean unfair competition for the former Finnish crew.65 Viking Line brought the case to court, since it felt that the actions undertaken against him by the trade unions were conflicting with his right to establishment. The case was then taken to the European Court of Justice. The ECJ indicated that the right to take collective action to protect employers, for example by means of striking, is a fundamental social right, which the ECJ recognizes and also respects.66 However, the Court also stated that this right can be restricted in certain cases, when it is in conflict with Community law, i.e. with the fundamental freedoms within the internal market.67 Moreover, it ruled that, since state obstacles that hinder the free movement between member states had been abolished, private organizations, like the trade unions in this case, could not form new obstacles to the free movement of persons and services.68 According to the national Court, the collective action undertaken by the trade unions in question makes it less attractive and more difficult for Viking Line to exercise its right to establishment.69
Shortly after Viking there was the Laval70 case. Laval was quite similar to Viking as it also discussed the relationship between the right to take collective action and the principles of
60 Joerges and Rödl, “Informal politics, formalised law and the ‘social deficit’ of European integration,” 6. 61 Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP,
OÜ Viking Line Eesti, European Court of Justice, judgment of 11 December 2007.
62 Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska
Byggnadsarbetareförbundet, avd. 1, Svenska Elektrikerförbundet, European Court of Justice, judgment of 18 December 2007. 63 Case C-438/05, para 6. 64 Ibid., para 9. 65 Ibid., para 16. 66 Ibid., para 44. 67 Ibid., para 40. 68 Ibid., para 57. 69 Ibid., para 69.
70 Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska
12 free movement within the internal market. Laval un Patneri was a Latvian construction company which established a subsidiary, L&P Baltic Bygg AB, to perform certain construction projects in Sweden which it obtained by means of a tender.71 Laval started negotiations with both a Swedish trade union and a Latvian trade union in order to define the rates of pay for the posted, Latvian workers.72 Laval signed an agreement with the Latvian trade union and negotiations with the Swedish trade union were not finished. The Swedish trade union therefore blocked Laval’s building sites as a means of collective action. Laval reacted by taking the case to court.73 The European Court of Justice, as in
Viking, argued that although the right to take collective action is a fundamental social
right, it can be restricted once it is in conflict with free movement within the internal market.74 Also, the Court looked whether there was a certain public interest which would justify the collective action.75 Although the collective action aimed at the protection of workers,76 the protection of workers, according to the Court, was already ensured sufficiently by Directive 96/71/EC,77 concerning the posting of workers to another member state in the framework of the provision of services.78 Moreover, Swedish national law did not provide a clear minimum standard for wages, because of which it is not clear for a foreign company that it should comply with a certain minimum standards.79 These cases are used by legal academics as an argument in favor of the social deficit of the EU, since they seem to show that according to the Court, the social right has to make way for economic freedoms. Kukovec offers a new perspective on this debate. While critics80 on cases like Viking and Laval focus on the emphasis on free movement considerations and the precedence of free movement over social concerns, these critiques, according to Kukovec, fail to take into account the distributional element of social and economic concerns. Discussions on the social deficit of Europe treat “both “social” and “free movement” considerations as general to the union as a whole, making it difficult to 71 Case C-341/05, para 27. 72 Ibid., para 29. 73 Ibid., para 27-38. 74 Ibid., para 91. 75 Ibid., para 101. 76 Ibid., para 107.
77 European Parliament and Council of the European Union, “Directive 96/71/EC of the European Parliament
and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services,” Official Journal of the European Communities (1997).
78 Case C-341/05, para 108. 79 Ibid., para 110.
80 For example Fritz Scharpf who after Viking and Laval said that “the only way is not to follow the European
13 discuss alternative social arrangements – or alternative modes of structuring free movement – that might have very different distributional consequences.”81 So, as was mentioned above, whether the so-called precedence of economic rights over social rights is preferable or problematic depends on different factors, but most importantly it depends on the EU member state we take into consideration and on what we consider to be the social and the economic. Social and economic considerations are not the same for the different European member states. According to Kukovec, member states with a high GDP, a well-functioning economy and low social inequalities have different economic and social concerns than those member states that face economic difficulties, a low GDP and high social inequalities. “What is social and what is economic (or “free movement”) really is a matter of perspective.”82 Moreover, there does not really exist a common (social or economic) interest within the EU.83 So, when within legal discourse there is talked about the need for a more ‘social Europe’, the question is a more social Europe for whom? If social rights are to be empowered, whose social rights will this be, because it cannot be the social rights of the center and the periphery at the same time.84 So, instead of looking at which right is subordinate to which right, what is more important to take into account, as argued by Kukovec, is the question of “whose comparative advantage will be diminished.”85 This same consideration is brought to the fore by Alexander Somek when he speaks about social-democratic sensibilities. He defines the social-democratic as “any political view that combines a commitment to markets with the effort to protect humans against vulnerabilities to which markets specifically give rise, such as lack of access to employment, exploitation or the general commodification of human life.”86 Social-democratic sensibilities, thus, also concern the relationship between the development of the free market on the one hand and consideration of human rights on the other. Somek indicates that, in general, everybody is in favor of labour.87 However, the question is labour for whom? In Somek’s words: “Not surprisingly, the basic social democratic
81 Kukovec, “A critique of the rhetoric of common interest in the European legal discourse,” 3. 82 Ibid., 4.
83 Ibid., 1.
84 Kukovec, “Whose social Europe? The Laval/Viking judgments and the prosperity gap,” 5. 85 Ibid., 3.
86 Alexander Somek, “From workers to migrants, from distributive justice to inclusion: exploring the changing
social-democratic imagination,” European Law Journal 711 (2012): 2.
14 attitude is “pro labour”. The predicament posed by the aforementioned cases is, however, that they require choosing the group of labourers that one wants to be “pro” for.”8889 Because of several factors, like geographic positioning and economic performances, the EU member states all find themselves in different situations. This is not only the case when there is a conflict between social and economic concerns. Different situations and thus also different interests come to the fore in for example environment issues, asylum, energy and agriculture. It is therefore questionable to what extent all these different concerns can be taken into account in EU law and EU policies. This problems is addressed by Kukovec. As has been done above as well, Kukovec divides the EU member states in two groups: member states of the center and member states of the periphery.90 Both groups have their own characteristics and therefore they also have their own interests which differ from one another. In EU legal and political discourse it is said that this diversity is taken into account and respected and that the varying interests of the member states are accounted for within EU law.91 Kukovec, however, doubts whether this in reality is also the case. In his view, “the position of the EU’s periphery is not reflected in the existing EU legal discourse.”92 Kukovec, thus, takes the debate on ‘social Europe’ to another level. He moves away from the discussion on which rights are subordinate to what rights. This competition between social rights and economic freedoms is somewhat useless, since they are no fixed terms because of which they have different meanings in different contexts. Policies or laws can be positive for one member state but negative for another member state, since both are in a different situation. This is not only the case with social and economic concerns, but also with other issues. It is an interesting question to see how the EU deals with these different viewpoints and different concerns. The important question is therefore not which issue ‘wins’ from the other, but whose concern is better taken into account than the concern of the other. This is also what Kukovec argues in relation to the legal discourse surrounding the social Europe debate. Moreover, he argues that the concerns and thus the point of view of the center is better taken into account within EU law and legal discourse than those of the periphery. Since he relates
88 Ibid.
89 By “the aforementioned cases” Somek refers to Viking and Laval.
90 Kukovec defines the center as countries with a higher GDP per capita than the periphery countries. The center
has better universities and invests more in research and development. The periphery, on the other hand, has a lower GDP, a weaker industry and a less efficient agricultural sector than the center. See: Kukovec, “A critique of the rhetoric of the common interest in the European Union legal discourse,” 2.
15 his argument especially to the social Europe debate, he claims that the definition of the social and the economic as it is understood in EU law is a definition of the social and the economic as it is in center states, not as it is in periphery states.93 When within EU law there is talked about social or economic improvements or deterioration, it is thought of as improvements or deterioration for the center.94 As described by Kukovec, “we EU lawyers, tend to think about harm in a very specific way – in terms of harm to the center. Periphery claims are often foreclosed from operating powerfully in the existing consciousness.”95
Since EU discourse has primarily focused on the cases of Viking and Laval when talking about the gap between economic rights and social considerations, Kukovec also explains his argument by discussing these judgments and especially by discussing how these judgments have been received in academia. Although he expresses some criticism on the judgments themselves, he especially criticizes the legal debate surrounding these cases.96 Why have legal scholars been so critical of the judgments in Viking and Laval? According to Kukovec this was not because of the so-called subordination of social rights to economic freedoms, but because harm was done to the center.97 The center’s right to take collective action and its right to fair competition on the labor market was restricted by the periphery’s right to free movement of workers and services. Whether these rights of both the center and the periphery were social or economic does not really matter, since that is just a matter of perception.98 The right to take collective action could be both a social right and an economic right, depending on the perspective. The same holds for the right to free movement.99 Free movement in the case of Eastern European countries is not only an economic right but can also be seen as a social right, as it offers Eastern Europeans an opportunity to employment and to improve their living conditions. On the other hand, the right to free movement can be considered as an economic right for Sweden, since it offers that country to make use of services from another European member state.100 Kukovec thus moves away from discussing rights as if there were in competition with one another as such. To the contrary, he looks at the entities that feel that have certain rights that are
93 Kukovec, “A critique of the rhetoric of common interest in the European Union legal discourse,” 1-3. 94 Ibid., 6.
95 Kukovec, “Taking change seriously. The discourse of justice and the reproduction of the status quo,” 1. 96 Kukovec, “Whose social Europe? The Laval/Viking judgments and the prosperity gap,” 4.
97 Kukovec, “A critique of the rhetoric of common interest in the European Union legal discourse,” 6-8. 98 Kukovec, “Whose social Europe? The Laval/Viking judgments and the prosperity gap,” 3.
16 in conflict with one another and looks at whose comparative advantage wins from the other.101
As far as the European Court of Justice and its judgments themselves are concerned, Kukovec is critical as well. Although in these cases the periphery actually ‘won’ from the center, the justification for the judgment failed to take into account certain important elements that were also described above. First of all, just as critics of the judgments, the judgments focus on the dichotomy between the economic and the social,102 while Kukovec thinks that these are problematic terms that are highly dependent on the adopted perspective. Moreover, “it forecloses any discourse of economic development and the problem of different comparative advantages. The discourse of addressing the immense prosperity gap and developmental needs of some Eastern European countries was clearly dismissed.”103
Finally, Kukovec supports his argument that EU law and EU legal discourse are more concerned with the interests of the center than with those of the periphery by giving the example of social dumping of workers and social dumping of goods and how they are treated when they concern states of the center and when they concern states of the periphery.104 In the Viking and Laval cases, the free movement of workers and services ‘won’ over amongst others the right to take collective action but at the same time the social dumping of workers was highly condemned by the ECJ.105 ‘Social dumping’ of workers means that workers from a certain member state get to work in another member state at the wage they would normally get in the first member state, but which is lower than the minimum wage in the second member state.106 Therefore, workers from member states in the East of Europe, who usually get lower wages than people in member states from the Western region, have a comparative advantage to workers from the West. In EU legal discourse and also in Viking and Laval this phenomenon of social dumping of workers is highly criticized. It is seen as unfair competition107 and disadvantageous for workers in Western European countries. However, if we look at the social dumping of
101 Ibid. 102 Ibid., 4. 103 Ibid. 104 Ibid., 4-5.
105 Case C-438/05, para 44; Case C-341/05, para 91.
106 Stéphane Lalanne, “Posting of workers, EU enlargement and the globalization of trade in services,”
International Labour Review vol. 150, no. 3-4 (2011): 212.
17 goods, as indicated by Kukovec, it actually works the other way around.108 According to Kukovec, it happens within the EU that companies from economically well performing countries (North and West), who already have advantages because of the strength of their brands, produce cheap products, by using cheap labor forces in the East, which they sell in economically less performing (Southern and Eastern) countries. As such, this could be seen as unfair competition for the sale of goods produced in Eastern European countries themselves, because they cannot produce the products any cheaper (just as workers from Eastern and Southern member states coming to work in Western and Northern member states is considered to be unfair competition for the latter). Dumping of goods also happens from outside the EU to the EU. In this case the dumping of goods is often combatted,109 because it would be a hindrance and unfair competition for Western European countries, who cannot produce their products cheaper. However, once it concerns the social dumping of goods from European member states from the West to member states in the East, not so much effort is made to do something about it. So, when talking about social dumping, different reactions come to the fore. When social dumping of workers from the East to the West is concerned, it is a problematic issue because it forms unfair competition for Western workers and it brings their social rights into danger. However, when we talk about social dumping, albeit of goods, from the West to the East, no real complaints are made. But then again, when there is social dumping of goods from outside the EU to the EU member states, it is seen as problematic, because it is problematic for Western member states.110
Altogehter, Kukovec’s main argument is that when within EU law and EU legal discourse there is talked about harm, this harm is perceived as harm to the center, not to the periphery. As such, it can be said that within EU law there is more a focus on the interests of the center than on those of the periphery. This argument is based on the conflict between economic freedoms and social rights and how this conflict has been treated in both European case law and the legal discourse surrounding it. The fact that the conflict is approached differently when it concerns the center and when it concerns the periphery indicates that center and periphery are important factors in EU law and legal discourse that influence how certain issues are being perceived. This theory will therefore be
108 Kukovec, “Whose social Europe? The Laval/Viking judgments and the prosperity gap,” 4-5.
109 For example: Council of the European Union, “Council Regulation (EC) No 1225/2009 of 30 November 2009
on protection against dumped imports from countries not members of the European Community,” Official Journal of the European Union (2009).
18 adopted here. In this chapter there was a focus on the conflict between social rights and economic freedoms, which was important to fully understand the theory, since this is where the theory is based upon. However, in the following there will no longer be looked at social rights and economic freedoms but at the wider applicability of the theory in the field of asylum. Asylum issues have caused tensions between the member states, since they are in different situations, and therefore have different experiences and different points of view on how to deal with this subject. Asylum policies and laws are to be based on the principles of solidarity111 and a fair sharing of responsibilities.112 However, it can be questioned again how the different situations and different interests of the member states can be taken into account in such policies and laws. Moreover, if EU law and legal discourse is more focused on the interests of the center and not so much on those of the periphery, how can this be united with the principles of solidarity and fair sharing of responsibilities? This will be under consideration in the next chapters with a specific focus on the Dublin Regulation (chapter 4).
111 European Union, “Consolidated version of the Treaty on the Functioning of the European Union,” Art. 80. 112 Eiko Thielemann, Richard Williams and Christina Boswell, “What system of burden-sharing between
19 3. Asylum in the European Union
In order to establish a connection between the center and periphery divide in European law and legal discourse on the hand, and legal acts in the field of asylum on the other hand, it is first essential to fully understand what the asylum situation is like in the European Union and also outside of it. Therefore, in this chapter the present asylum situation in the European Union will be under consideration. Then a historical analysis will be done of asylum rules that have come into existence under international and EU law. Finally the concept and practice of asylum burden-sharing or responsibility-sharing will be discussed. Although within political discourse responsibility-sharing is an accepted and stimulated measure,113 it is questionable whether it is really applied in the EU context.114 This can then also be related to the theory of a center and periphery divide in EU law and EU legal discourse, since if there is more focus on the center’s interests than on those of the periphery, it will be difficult to stimulate the sharing of asylum responsibilities.
3.1 The current asylum situation in the European Union
Ever since immigrants and asylum seekers started to come to the European territory, especially from World War II onwards, immigration has been a highly discussed topic within the EU and amongst EU citizens. Over the last couple of years this debate has become more intense when it seemed that asylum seekers were entering the EU in higher numbers because of the Arab spring and the conflicts that were going on in both Arab and African countries. EU citizens and politicians were afraid that so many asylum seekers would enter the EU that this would become highly problematic for the member states in which they live.115 In 2011 the debate intensified even more because of several incidents at the Southern coastal borders of the EU. Asylum seekers have few opportunities to enter the EU regularly,116 because of which many are forced to make use of unsafe, irregular ways to reach a safer place.117 Boats that transport asylum seekers to the EU are often too small and too weak to safely cross the Mediterranean Sea. Therefore, approximately 1500
113 Thielemann, Williams and Boswell, “What system of burden-sharing between Member States for the
reception of asylum seekers,” 25.
114 See for example: Garlick and Van Selm, “From commitment to practice: the EU response,” 22. 115 Thielemann, Williams and Boswell, “What system of burden-sharing between Member States for the
reception of asylum seekers?” 12.
116 Thielmann and Armstrong, “Understanding European asylum cooperation under the Schengen/Dublin system:
a public goods framework,” 149.
20 people have drowned in the first months of 2011 when they tried to cross the Mediterranean Sea.118 Those who did manage to reach the other side of the sea, mainly coming from Tunisia, entered the EU primarily through the Italian island Lampedusa and Malta119 because of their proximity to the African continent. Tens of thousands of, especially, Tunisian immigrants arrived in Lampedusa. Sometimes they arrived with more than a thousand per week.120 The number of arrivals was high, especially when it is taken into account that Lampedusa originally has about 5000 inhabitants. In the end more asylum seekers were living on the island than original inhabitants. The island became overcrowded and no sufficient facilities were available in order to provide all immigrants with shelter and daily necessities.121 Italy gave temporary residence permits to many of these immigrants, which meant that they could also travel to other EU countries.122 The situation in Lampedusa caused frictions, not only on the island itself but also between Italy and other member states. As was mentioned above, France wanted to reinstate the border between France and Italy in order to prevent the Tunisians to go from Italy to France. Despite the fact that the asylum situation in Europe is much under discussion, it still has to be kept in mind that the EU only hosts a very small part from the entire refugee and asylum seekers population,123 while it is especially third countries located next to conflict countries which host a major number of asylum seekers and refugees.124
Within literature about immigration and asylum there is little agreement about which member states carry the highest asylum responsibilities. Many different factors can be taken into account in order to calculate which countries carries the hardest burden. One could look at absolute or relative numbers of asylum applications, the number of asylum applications per inhabitant, the number of asylum applications per GDP etc. Therefore, every estimation of carried asylum responsibilities has a different outcome, resulting in disagreement about asylum burdens and responsibilities. In this work therefore, there will not be made a new determination of which member state is most burdened and which is less burdened. However, numbers of asylum applications and refugees will be given in
118 Garlick and Van Selm, “From commitment to practice: the EU response,” 22.
119 UNHCR, “Asylum trends 2012. Levels and trends in industrialized countries,” UNHCR website, 21 March
2013, accessed 15 April 2014, http://www.unhcr.org/4e9beaa19.html
120 UNHCR, “Mediterranean takes record as most deadly stretch of water for refugees and migrants in 2011,”
UNHCR website, 31 January 2012, accessed 28 April 2014, http://www.unhcr.org/4f27e01f9.html .
121 Garlick and Van Selm, “From commitment to practice: the EU response,” 21. 122 Ibid.
123 Thielemann, Williams and Boswell, “What system of burden-sharing between Member States for the
reception of asylum seekers?” 24
21 comparison to the total number of inhabitants of the member states in order to give an indication of the asylum situation in the member states. Moreover, this will be compared to the situation in countries outside of the EU that find themselves close to conflict countries from which many people flee.
Taking into account that the Arab Spring, which was one of the main reasons for the recent increase in the arrival of immigrants and the discussions of how to deal with this, started at the end of 2010, we will especially focus here on the numbers asylum applications in 2011 and 2012. From UNHCR’s data it appears that in 2011 the at that time 27 member states of the EU together saw an increase of 15% in asylum applications in comparison to the year before (from 240,400 in 2010 to 277,400 in 2011).125 It also mentions explicitly that “the largest relative increase in annual asylum levels occurred in the eight Southern European countries which received 66,800 asylum requests during 2011, an 87% increase compared to 2010.”126 This eight Southern European countries are Albania, Cyprus, Malta, Greece, Italy, Spain, Portugal and Turkey.127 Although Albania and Turkey are not EU-member states, these numbers still indicate that it is especially the Southern states of Europe, i.e. the states that form the Southern external border of Europe, that receive high numbers of asylum seekers and that saw the biggest increase in this number in 2011. Member states that do not find themselves at the Southern border, like Germany and France, saw an increase which was much smaller than those of the Southern border-states (11% and 8% respectively).128 Moreover, there were several countries that actually saw a decrease in the number of asylum requests in 2011 like for example The Netherlands (-13%), Finland (-23%), Denmark (-23%) and Norway (-10%).129 So, together as a region, the Southern coastal member states saw the biggest increase in the number of asylum applications, which is logical since they are the most easy to reach for asylum seekers coming from Northern Africa and the Middle East.
If we look at UNHCR’s data for 2012, different outcomes come to the fore. No longer is the Southern region the region that saw the largest increase of the number of asylum
125 UNHCR, “Asylum levels and trends in industrialized countries – 2011,” UNHCR website, 27 March 2012,
accessed 3 April 2014,
http://www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=4e9beaa19&query=asylum%20levels%20and%20trends%2 02011
126 UNHCR, “Asylum levels and trends in industrialized countries - 2011,” 2. 127 Ibid., 7.
22 applications, this was now the Northern region, which saw an increase of 38% in comparison to the year before.130 The Southern region saw a decrease of 27%,131 but it is important to take into account that although the Northern region saw an increase and the Southern region a decrease in comparison to 2011, the Southern region still received more asylum applications than the Northern region (48,600 and 43,900 respectively).132 Also, the increase of the Northern region in 2012 (38%)133 is much lower than the increase of the Southern region in 2011 (87%).134 These numbers, thus, are very relative. For example, the reason that the Southern region in 2012 saw a high decrease in the number of asylum applications is that the number of asylum applications in 2011 was very high. Therefore, the fact that in 2012 it knew a decrease, does not mean that they received a small amount of asylum seekers. The Southern region still received more asylum application than the Northern region. Moreover, although asylum applications are done (to a different extent) in all EU member states, it is “reasonable to assume that those Member States that have external borders facing non-EU states are more likely to be a ‘first country of entry.’”135 It is especially Southern and Eastern member states that have an external border facing non-EU states. Because of that they are the most easy to reach for asylum seekers (after third countries which find themselves directly on the border of the conflict states, like for example Lebanon). Therefore, it is these countries that received a large number of asylum seekers entering its territories while they often do not have the financial and practical resources to deal with these asylum seekers, resulting in a failure of protecting human rights.136 This would simply never happen in countries like Germany or The Netherlands since they do not have an external border facing non-EU countries. If we look at the top-10 of EU member states that received the most asylum applications from 2000 to 2013, it shows that it were most of the time Malta and Cyprus that received the most asylum applications within the EU in comparison to its number of inhabitants (except for 2000-2003 when it was Austria).137
130 UNHCR, “Asylum trends 2012. Levels and trends in industrialized countries,” 2. 131 Ibid.
132 Ibid. 133 Ibid.
134 UNHCR, “Asylum levels and trends in industrialized countries - 2011,” 2.
135 Thielemann and Armstrong, “Understanding European asylum cooperation under the Schengen/Dublin
system: a public goods framework,” 149.
136 Langford, “The other Euro crisis: rights violations under the Common European Asylum System and the
unraveling of EU solidarity,” 217.
23 However, if we relate the before mentioned numbers with the number of asylum seekers and refugees in certain non-EU countries, it becomes clear that the number of asylum seekers entering the EU are actually very modest. In 2012 the countries that hosted the most refugees world-wide were Jordan, Chad and Lebanon.138 The only European states that entered the top-10 of countries hosting refugees were Malta and Montenegro,139 of which only Malta is an EU member states, while Montenegro is a candidate member state. Both are countries with an external border facing non-EU countries. As far as the number of refugees in comparison to countries’ GDP is concerned, it is the non-EU countries that host the most refugees, namely Pakistan, Ethiopia and Kenya.140 None of the EU member states enter the top-10 in this regard.141 Altogether, asylum applications are mostly dealt with outside the EU and it are also especially third countries that host the most refugees. “Europe only hosts a fraction of this [refugee] population; in 2007 Europe only hosted 14 per cent of the world’s refugees or people in refugee like situations.”142
Although the EU only hosts a small part of the world-wide number of refugees and only deals with a moderate part of all the asylum applications, it still poses a problem for the EU member states, since they are not always able to take care of the asylum seekers applying for asylum in their countries in a satisfactory way and thus to guarantee the human rights of asylum seekers. Moreover, the asylum issue has an influence on the relationships between the member states and the current functioning of the European asylum system questions the idea of solidarity between them.143 For example, after the incidents of 2011 the Southern member states, especially Malta, Italy and Greece, felt that they carried an uneven (and unfair) part of the asylum responsibilities144 and asked the other member states for help in order to satisfactorily provide shelter to the asylum seekers, to foresee in their daily needs and to protect their human rights. However, those member states expressed reluctance to help the external border member states. France, who shares a border with Italy, was afraid that the Tunisian asylum seekers, who received a temporal residence permit in Italy, would go to France and stay there. France wanted to
138 UNHCR, Statistical Yearbook 2012, 29. 139 Ibid.
140 UNHCR, Statistical Yearbook 2012, 28. 141 Ibid.
142 Thielemann, Williams and Boswell, “What system of burden-sharing between Member States for the
reception of asylum seekers?” 24.
143 Langford, “The other Euro crisis: rights violations under the Common European Asylum System and the
unraveling of EU solidarity,” 217.
144 Thielemann, Williams and Boswell, “What system of burden-sharing between Member States for the
24 prevent this from happening and, therefore, wanted to introduce passport controls again at its border with Italy.145 Germany actually supported France in its ideas to reinstate border controls between France and Italy. The European Commission at first denied the possibility to reinstate passport controls, but also indicated that it could be a possibility in the future that national borders are reinstated when there are well-founded criteria for it.146 This makes us question the solidarity within the EU and between the different member states. Was the EU not created in order to overcome extreme nationalisms, in order to overcome a new war between European countries by working together with one another? And was this cooperation not based on the notion of solidarity? The immigration and asylum issue highly pressured the relation of cooperation between the member states147 and it showed that member states still think of themselves as national countries which have to protect their own national interests. The feeling of being united in a supranational polity still seems to lack.148 This also became very clear in The Netherlands, where, although people said to be shocked about the happenings at the coast of Lampedusa, Dutch Prime Minister Rutte said that Italy was just geographically unlucky.149 So, as long as those asylum seekers were not of any inconvenience to The Netherlands, it was simply a problem for Italy. The problem was not seen as a European problem with immigrants crossing a European border, but it was framed as a problem for Italy as an individual state. The question is of course how the problem would be framed if it was The Netherlands itself that received such an increase in the number of arrivals of asylum seekers. This does not only hold for the Netherlands and France but for every member state that fails to provide the external coastal member states with the help they need. The issue is, of course, that countries like The Netherlands will never face such a problem as Italy because of their geographical location. But this does not mean that these countries therefore do not have any responsibilities regarding immigration and asylum issues. At least, not when we look at how and why the European Union was created. Moreover, in European politics there is agreement that member states have to be solitaire with one another, also in the field of asylum.150 There have therefore been established
145 Nielsen, “Sarkozy threatens to end EU passport-free travel.”
146 Andrew Willis, “Barroso moots return of internal EU borders,” EUobserver, 2 May 2011, sec. Headline
News, accessed 12 April 2014, http://euobserver.com/news/32247.
147 Langford, “The other Euro crisis: rights violations under the Common European Asylum system and the
unraveling of EU solidarity,” 217-218.
148 Ibid., 222.
149 Servaas van der Laan, “Europees grensbewakingssysteem Eurosur van start.”
