The Nice Treaty: qualified majority rule is postponed
The main objective of the Treaty of Nice, which entered into force in 2003, was to reform the institutional structure of the EU in order to facilitate the accession of ten new member states, an undertaking which was previously planned to have been accomplished by the Amsterdam Treaty.
Nice, however, failed to make significant progress in the context of EU asylum and migration policymaking, primarily as the application of the qualified majority rule, granting the European Parliament (EP) co-decision power rather than mere consultation, was postponed. The unanimity requirement for the adoption of legislation in this area thus continued to hamper the legislative process. Nevertheless, the first phase of the Common European Asylum System (CEAS) was completed in 2005, under Nice, following the adoption of the Qualification Directive (QD) and the Asylum Procedures Directive (APD), yet it remained limited to minimum standards (Niemann, 2012).
The QD, adopted in 2004, set out the conditions for the qualification and status of third-country nationals (TCNs) or stateless persons as refugees or as beneficiaries of subsidiary protection. According to the Directive, asylum applicants are granted refugee status on the basis of the Refugee Convention, while subsidiary protection is granted in cases where the requirements of the Convention are not met but the asylum applicant ‘would face a real risk of suffering serious harm’ if returned to his or her country of origin (Art. 2 (e)). As a result, the content for refugees and subsidiary protection holders differs in certain respects, with the latter granted limited rights compared to the former (such as access to healthcare, social benefits, labour market, as well as duration of residence permit, Arts. 24-33). The highly polarised negotiations prior to the adoption of the Directive, with the Commission and the EP pushing for higher standards of protection for asylum seekers and the Council’s focus on the prevention of abuse of the asylum system and on irregular arrivals, are illustrative of the difficulties in reaching political agreement in this sovereignty-sensitive policy domain (Velluti, 2014). The resulting QD proved to be an instrument of compromise and political pressure to be adopted before ten new states joined the EU on 1 May 2004, bringing new views and legal heritages. This partially explains the passage of some poorly drafted provisions and the interpretative difficulties of national courts in applying the scope of subsidiary protection, highlighted in the seminal CJEU judgment of 2009 in the case of Elgafaji.
In 2004, FRONTEX, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU, was set up in response to the need to strengthen the management of the EU’s external borders. According to the Regulation establishing the agency, however, it is the member states that remain responsible for control and surveillance of external borders. In other words, the agency is merely tasked with the ‘coordination’ of national forces. Following the unprecedented influx of irregular migrants in 2015 and 2016, Frontex was reformed into a ‘European Border and Coast Guard Agency’ (EBCG) giving it a broader mandate, as the EU focus shifted further towards strengthening the external borders (Carrera and den Hertog, 2016). Nevertheless, given that the EBCG has not been transformed into a centralised agency means that, like its predecessor, it remains incapable of solving the structural problem of European border management (De Bruycker, 2016).
In December 2005, the adoption of the APD completed what is referred to as the first phase of the CEAS. The Directive aimed to establish minimum standards for procedures for granting and withdrawing international protection in order to reduce the disparities between member states. However, given the fact that the APD was adopted beyond the May 2004 deadline, due to deep divisions on several contentious matters, highlights the difficulty in reaching agreement in this sovereignty-sensitive policy domain.
Following the implementation of the Tampere Programme (1999-2004), the Hague Programme, adopted by the European Council at the end of 2004 outlined the objectives of a second multiannual justice and home affairs (JHA) programme for the period 2005-2009. Hague reiterated the objective to create a CEAS and called for second-phase instruments to harmonise common standards for asylum to be adopted by the end of 2010. Most of the legislative instruments, however, were eventually adopted in 2013.
References
Carrera, S. and Den Hertog, L. (2016) A European Border and Coast Guard: What’s in a Name? CEPS Paper in Liberty and Security in Europe No. 88, Brussels, 8 March. Available from: https://www.ceps.eu/ceps-publications/european-border-and-coast-guard-whats-name/
Council Regulation (EC) No 2007/2004
De Bruycker, P. (2016) The European Border and Coast Guard: A New Model Built on an Old Logic, European Papers, 1 (2), pp. 559-569. Available from: https://doi.org/10.15166/2499-8249/53
Niemann, A. (2012) The Dynamics of EU Migration Policy: From Maastricht to Lisbon. In: Richardson, J., (ed.) Constructing a Policy-Making State? Policy Dynamics in the EU. Oxford: Oxford University Press, pp. 209-233.
The Hague Programme: strengthening freedom, security and justice in the European Union, 2005.
Velluti, S. (2014) Reforming the Common European Asylum System – Legislative Developments and Judicial Activism of the European Courts. London: Springer.
