Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
Table of Contents1
1 Introduction .............................................................................................................................................. 2
1.1 Background LS & SB ........................................................................................................................................ 2
1.2 Methodology LS & SB ...................................................................................................................................... 4
1.2.1 Structure of the thesis LS & SB ............................................................................................................................ 4
1.2.2 Delimitation LS & SB ................................................................................................................................................ 5
1.2.3. Assessment of Sources and Choice of Theory LS & SB ............................................................................. 5
1.3 Theory................................................................................................................................................................. 6
1.3.1 Neofunctionalism LS................................................................................................................................................ 7
1.3.2 Neo-neofunctionalism LS ................................................................................................................................... 10
1.3.3 Liberal Intergovernmentalism SB ................................................................................................................... 11
2 Account and Analysis of EU Asylum Policy .................................................................................. 16
2.1 The Preliminaries ......................................................................................................................................... 16
2.2 Dublin................................................................................................................................................................ 18
2.2.1 Dublin and Schengen LS and SB ....................................................................................................................... 18
2.2.2 First Country of Asylum SB ............................................................................................................................... 20
2.2.3 Effective Remedy SB ............................................................................................................................................. 21
2.2.4 Non-refoulement and Safe Countries SB ...................................................................................................... 23
2.3 Directives ......................................................................................................................................................... 23
2.3.1 The Qualification Directive (Van Krieken, 2004) LS ............................................................................... 23
2.3.2 The Reception Directive (Van Krieken, 2004) LS ..................................................................................... 24
2.3.3 The Procedures Directive (Van Krieken, 2004) LS .................................................................................. 25
2.4 Recapitulating the Main Points of EU Asylum Policy LS .................................................................. 25
2.5 Analysing the Broader Developments .................................................................................................. 26
2.5.1 The Boomerang Trend LS ................................................................................................................................... 26
2.5.2 EU Asylum Policy From an LI Perspective SB ............................................................................................ 28
3 The ECHR Ruling ................................................................................................................................... 30
3.1 Elaboration on the Circumstances in Greece that led to the ECHR Ruling LS.......................... 30
3.2 CASE OF M.S.S. v. BELGIUM AND GREECE 21st OF JANUARY 2011 SB ......................................... 32
3.3 Discussion........................................................................................................................................................ 34
3.3.1 Statement of Cecilia Malmström, European Commissioner for Home Affairs SB ....................... 34
3.3.2 Capabilities and Expectations? SB .................................................................................................................. 37
3.3.4 Economic vs. Human Rights Interests SB .................................................................................................... 38
3.3.5 Reflections on the Boomerang Trend LS...................................................................................................... 39
3.4 Conclusion LS & SB ........................................................................................................................................ 42
4 Bibliography .......................................................................................................................................... 45
5 Table of Abbreviations ....................................................................................................................... 49
6 List of enclosures.................................................................................................................................. 50
1
LS: Louise Svenstrup
SB: Stine Bonnesen
Page 1 of 50
Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
1 Introduction
1.1 Background
On 21st January 2011 the European Court of Human Rights (ECHR) ruled against Greece and
Belgium on the issue of asylum in the case of M.S.S v. Belgium and Greece, 30696/09 2. The
court established that Belgium returning an Afghan male to Greece was a violation of human
rights, even though the return was in accordance with EU law. Under the Dublin Regulation
the first country an asylum seeker enters is the country responsible for processing the asylum
application and he/she should be returned to that country, if encountered somewhere else.
Greece is one of the main points of entry, but it has struggled during the financial crisis to the
point of near bankruptcy leaving it without resources to handle the enormous pressure from
especially Northern African and Arabic refugees. The lack of resources has led to asylum
seekers being kept in detention in facilities of a very questionable standard with poor
sanitation and lack of room. These and other conditions are the reason for the ECHR ruling.
Because of the ruling it is no longer an option for other EU member states (MS) to return
asylum seekers to Greece, which in effect erodes the very foundation of the Common
European Asylum System (CEAS). That raises the question of how EU asylum policy is going to
be affected. We find it is a very interesting question and it has lead to the following thesis
statement:
What implications does the European Court of Human Rights’ ruling against Greece and
Belgium have for the future of the common EU asylum policy?
To help answer the thesis statement, the following hypotheses will be addressed:
The development of EU asylum policy has gone from intergovernmental decisionmaking to supranational and backtracked to intergovernmental decision-making – a
boomerang trend
2
Will be referred to as the ”ECHR ruling” from here on
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
and
Based on the above hypothesis being true, progress in EU asylum policy will come to a
halt and disintegration of the area is a likely future outcome
In order to prove or disprove the hypotheses and answer the thesis statement, we will
account for and analyse the development of EU asylum policy with a particular focus on
Dublin II. First, we will give a brief historic overview of the developments leading up to Dublin
II. Second, we will account for and analyse the elements of Dublin II with the most importance
to understanding the implications of the ECHR ruling. The areas will be: safe countries, first
country of asylum, non-refoulement and options for review and appeal. The analysis will be
carried out in an integrationist theoretical frame. After accounting for and analysing EU
asylum policy, we will move to a discussion of the ECHR ruling. We will briefly outline the
findings of the court and the articles 3 and 13 from the Convention on Human Rights and
Fundamental Freedoms that Greece and Belgium were found in violation of and say a few
words about the conditions in Greece that resulted in the breach of the above articles. Having
established the background of the ECHR ruling, we will move into the discussion itself,
starting off with an assessment and analysis of the publicly stated opinion of the Commission,
as we believe it is an important contribution to deal with the essence of the question in the
thesis statement and the second hypothesis in particular, because it will shed light on what
can be expected from the Commission in connection to the second hypothesis. Finally, we will
sum up our findings in the conclusion and give an overview of the findings from the analysis
and discussion to answer our thesis statement. The structure of the thesis will be outlined in
the methodology section below.
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
1.2 Methodology
1.2.1 Structure of the thesis
We have chosen the following structure to uncover the thesis statement to the fullest.
First, there will be an introductory section that includes an introduction to the subject of the
thesis, the thesis statement and hypotheses, an account of the methodology applied in terms
of structure of the thesis, delimitation of the subject area, choice of scientific theoretical base,
a critical assessment of the sources used and an account of the chosen theories.
Second, a section compromised of an account of EU asylum policy and subsequent analysis of
the developments in that policy area. The main focus in this section will be the Dublin
Regulation (2003), as it is the current legal basis of the CEAS and outlines the principles that
the ECHR has found to be in violation of international law. Preceding the subsection on the
Dublin Regulation will be a brief historic outline of the developments leading up to the
regulation to establish the foundation it is built upon. The historical outline will be the subject
of analysis on a less detail-oriented level than the regulation, as there are important insights
to be gained from that regarding the past, present and future progression of the EU asylum
policy and the hypothesis of a boomerang trend in decision-making.
Finally, the last section consists of an account of the ECHR ruling and the situation in Greece
leading to it. Based on that account and the analysis of EU asylum policy in the previous
section, we will engage in a discussion of the implications of the ECHR ruling for EU asylum
policy. With that as our background, we will apply the above-mentioned theories in an
attempt to predict possible future developments in EU asylum policy and address the second
hypothesis.
We have chosen this structure for the thesis, because it is best suited to answer the thesis
statement. The reasoning behind this choice is that an account and analysis of EU asylum
policy is required in order to analyse the implications of the ECHR ruling, which makes our
choice of scientific theoretical approach hermeneutic. We analyse one part in its context and
when analysed it becomes part of the context for analysing the next part.
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
1.2.2 Delimitation
In our delimitation of the thesis we decided to focus mainly on the Dublin Regulation, because,
as mentioned above, it is the focal point in an analysis of the ECHR ruling. We did not find it
necessary to analyse every step leading up to the regulation in detail, only to provide a brief
overview as a realm of understanding. Also, in the regulation we have not included every
aspect that it deals with, only the areas affected by the ECHR ruling and areas required to
understand those areas, which means we have partly or completely left out issues such as
family reunification, unaccompanied minors and safe 3rd countries. Not because of a lack of
importance in general, but because of a lack of importance for the scope of the thesis. Finally,
we are only concerned with the signatories of the Dublin Regulation that are EU MS, as the
remaining countries do not directly influence EU asylum policy.
1.2.3. Assessment of Sources and Choice of Theory
In the following we will comment on our reflections on the main sources used for the thesis.
A big part of the sources used are obtained via the Internet. The EU publishes and updates its
legal documents, court rulings, opinions etc. online, which makes it the most up to date source
of information when dealing with an EU issue. The main advantage is that it makes it possible
to get the material in focus straight from the source. Therefore, we have accessed for instance
the Dublin Regulation, the CJEU ruling, case C-72/06, and the EU Charter of Fundamental
Rights online. The availability argument applies to the sources used from governmental and
non-governmental organisations such as the UN, HRW, ECHR etc. as well.
We have mainly chosen to use the actual legal documents for our analysis instead of
commentaries or other edited versions, as we believe it eliminates some of the risk of biased
interpretation of sources, even though we are fully aware that avoiding it entirely is not
possible, since no one can be completely objective. Furthermore, analysis of the precise
wording of the acts is the closest one can get to understanding the intended purpose of the
document.
We have, however, used other sources than the ones accessible online. A main source of
reflections on EU asylum policy has been Vigdis Vevstad’s Utvikling av et felles europeisk
asylsystem, 2006. It proved to be a bigger challenge than expected to find a comprehensive
review of the asylum policy in the EU, but Vevstad offers a very convincing contribution and
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Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
must be considered very knowledgeable in the field based on her experience. Below is a brief
description of her qualifications:
Vigdis Vevstad has a doctorate in international public law. Her special interests cover refugee law, human
rights law and EU developments in the area of freedom, security and justice. Vevstad is the Norwegian
member of the Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe. She
has a research cooperation agreement with the Institute for Social Research (ISF) in Oslo and has
published three books in international refugee and migration law.
Vevstad works as an independent consultant and researcher. Tasks include work for the University of
Oslo, Bergen and Brussels, the European Parliament, the European Commission, European governments
and NGOs. Previous professional experience has been in academia and governmental and nongovernmental, nationally and internationally, (Norwegian Ministry of Foreign Affairs, Immigration
authorities, the Norwegian Refugee Council and UNHCR) (Vevstad, 2011).
Our main source for the theory section is European Integration Theory by Antje Wiener and
Thomas Diez, 2004 and 2009 (1st and 2nd ed.). They offer an exhaustive overview of European
integration theory by bringing together a collection of accredited scholars in the area to
account for the different theories. We have chosen to use Neofunctionalism and Liberal
Intergovernmentalism to answer our thesis statement, as we find they are best suited for the
purpose. They offer insights on different aspects of EU asylum policy and therefore add up to
an extensive and thorough tool for analysing the subject area of the thesis. Both theories
provide explanations for integration progress, actors’ choice of actions and the outcome of
such. At the same time both theories fail to give much insight into possible future
developments. Therefore, we have also applied Philippe C. Schmitter’s revised and elaborated
version of Neofunctionalism, Neo-neofunctionalism. Even though we only have one source for
our theories, we have deemed it to be sufficient, because the authors of the 3 chapters we
have used (chap. 3, 2004 and chap. 3 and 4, 2009) are written by founders or students of
founders of the theories.
1.3 Theory
We share the view of Wiener & Diez (2009) in the introductory chapter of European
Integration Theory that a grand theory for EU integration does not exist. Theories cover
different areas of the process and for our intents and purposes we have chosen to apply
Neofunctionalism, Neo-neofunctionalism and Liberal Intergovernmentalism, as we find that
Page 6 of 50
Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
they have the highest degree of explanatory power in our field of study. We will account for all
three in turn.
1.3.1 Neofunctionalism
Wiener & Diez categorise Neofunctionalism as an explanatory theory in that it seeks to
explain why integration takes place and what lies behind the choices made by policy-makers
concerning policies and institutional agreements (Niemann and Schmitter, 2009, 11). The
theory was first formulated in the late 1950s and early 1960s.
As summarised by Niemann and Schmitter (2009) in chapter 3 of European Integration
Theory, Haas and Lindberg, who are considered the founding fathers of the theory, see
integration as a process that develops over time, not an outcome or state. Regional
institutions are created and expanded as a consequence of the changing expectations and
attitudes of actors. In the early conceptions of Neofunctionalism the goal was a grand theory,
especially for Haas, and spillover, the most important element of the theory, was considered
inevitable and automatic (Niemann and Schmitter, 2009).
Niemann and Schmitter (2009) argue that there are five assumptions behind progress of
integration:
1. Actors are rational and self-interested, but they are able to learn and change their
preferences. Interests of actors are likely to change during the integration process
2. Regional institutions gain a life of their own e.g. through their employees who are
focused on increasing their power, thereby becoming a vehicle for integration
3. Decisions are more often than not taken with imperfect knowledge of their
consequences and often under time pressure, which means that the consequences of
one decision often lead to new decisions and therefore more integration
4. Decision-making is a positive-sum game, not a zero-sum
5. Haas originally believed the spillover process would be automatic, based on the
assumption that emerging functional interdependencies between whole economics
and their productive sectors led to more integration
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Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
Spillover
Spillover is the way Neofunctionalism explains integration progress in Europe. It operates
with three different types of spillover: functional, political and cultivated. They will now be
explained in more detail.
Functional Spillover
Functional spillover refers to the idea that some sectors are so interdependent that
integration in one sector leads to technical pressures pushing states to integrate other sectors,
as integration of the original sector is only fully functional, if further integration is
undertaken. The spillover from the Single European Market (SEM) and the free movement of
people to justice and home affairs (JHA) (visa, asylum immigration etc.) is an example
(Niemann and Schmitter, 2009).
Certain conditions must be met in order for functional spillover to occur. First, functional
pressures must be perceived as compelling. Second, actors must not anticipate that further
integration in one area will lead to problems in other areas and possible undesired
integration, unless the anticipated benefits from the original integration are larger than the
concerns of the effects of the spillover. Third, high issue density leads to more possible
functional interdependencies. In other words, the higher the level of integration, the more
spillover (Niemann and Schmitter, 2009).
Political Spillover
Political spillover is defined as the integrative pressures by national elites (governmental and
non-governmental), which have recognised that problems of high importance cannot be
solved satisfactorily at the domestic level. This is thought to lead to a gradual learning
process, where expectations and, in some cases, loyalties are shifted to the regional centre
(Niemann and Schmitter, 2009).
For interest groups and governmental elites alike, there are conditions to be met for
integration to occur. Interest groups will seek supranational solutions when four criteria are
satisfied. First, potential gains must be high. Second, benefits can easily be determined. Third,
the issue area has been governed by the EU long enough for the interest group to have learned
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
how policy processes and coordination at the EU level functions and for learning processes to
take place. Finally, functional spillover or external pressures encourage the rationale for
supranational solutions. It is worth noting that high complexity and a lack of transparency can
hinder interest group participation (Niemann and Schmitter, 2009).
Governmental elites in working groups and committees can foster integration through
socialisation and learning processes. The following conditions must be taken into account for
these to take place. First, they need time to develop. Second, the processes are significantly
constrained, if prominent committee or working group members are distrusted. Third, the
processes are impaired, if issues become politicised. Fourth, in case of bureaucratic pressure
from unfavourable national ministries and administrations, the processes can be
counteracted. Fifth, they can be impeded when officials are opposed to changing norms and
habits and feel they have been forced into the EU. Finally, obstruction can occur when
negotiators do not have the necessary experience and negotiations are technical in nature
(Niemann and Schmitter, 2009).
Cultivated Spillover
Cultivated spillover is the cultivating role of supranational institutions and the integration it
can bring about. Niemann and Schmitter( 2009) use the Commission as a basis for their
explanation of this type of spillover.
An institutionalised mediator like the Commission often oversee and control supranational
bargaining, creating a forum where actors are inclined to agree on common stands so as not
to endanger the areas where consensus exists. Parties in that type of negotiation tend to give
in on some issues to gain on others, and common interests are upgraded to a degree where
everybody feels comfortable. Contrary to lowest common denominator bargaining, it is a
process of upgrading common interests.
The Commission’s opportunity to act as an
integrative force is conditioned by the following. First, its ability to forge internal cohesion.
Second, its capacity to shape the agenda. Third, how skilfully it cultivates relations with
member governments, interest groups and other actors, thereby securing support for its
proposals. Fourth, its ability to build consensus and broker compromises, often while
upgrading common interests. Fifth, whether it is able to apply external and functional
spillover pressures as reasons for integration. Sixth, its awareness of the limits of its
Page 9 of 50
Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
leadership vis-à-vis MS, so it does not overplay its hand. Niemann and Schmitter (2009) also
mention a few other factors: the need for effective interest groups as allies and the need for
support from a significant political actor such as a powerful MS in order for its leadership to
be most effective. When the above conditions are not present, the Commission only has
marginal influence on integration.
Criticism
First, Neofunctionalism founders considered it a grand theory that could explain all
integration at all times under all circumstances. This is obviously not the case and has been
forsaken by later theorists such as Schmitter (see Neo-neofunctionalism below). Second, the
same goes for the critique of a narrow focus on Europe and too little focus on the external
effects of the global world, which has also been dealt with in newer versions of the theory
(Niemann and Schmitter, 2009). Third, the criticism raised against spillover being considered
something automatic has also been addressed by e.g. Schmitter (see below), who has added
qualifications to the term. Fourth, as a result of the time where Neofunctionalism was
developed and the economic situation in the world was good, economic growth was seen as
something ever ongoing and with equal benefits for all. This has of course later proven not to
be true. Fifth, there have been claims that the theory underestimates sovereignty and
nationalism as barriers to integration. The “empty chair” politics by Charles de Gaulle has
been used as an example, but Neofunctionalism argues that it did not hinder further
integration, only slowed it down for a while (Niemann and Schmitter, 2009).
Finally, the theory seems very suitable for explaining integration outcomes, but is not very
useful when trying to predict future outcomes. Neo-neofunctionalism below offers a solution
to that problem.
1.3.2 Neo-neofunctionalism
Schmitter has addressed some of the critique in his revision and elaboration of
neofunctionalist theory, neo-neofunctionlism (Schmitter, 2004). He moves away from the
assumptions of grand theory and spillover as something automatic. He pays special attention
to general assumption number 3 above, namely that one decision often leads to another. In his
opinion, the foundation of integration is decision cycles. MS engage in regional cooperation to
Page 10 of 50
Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
solve transnational problems and the progress of integration is determined by the
contradictions that arise in the process of reaching a common solution to a problem, which
can lead to four different outcomes: spillover, further integration; spill-back, disintegration or
even MS pulling out of regional cooperation; build-up, the surrender of more power to a
regional institution without expanding its mandate; spill-around, fast growth of specialised,
strictly intergovernmental organisations. In addition, Schmitter (2004) suggests the option of
muddle-about, which equals no changes and MS trying to manage as well as possible with the
instruments already available.
These different solutions are all options at the decision cycle level Schmitter (2004) calls
priming. He argues that the EU has passed through the previous level, initiating, and is on its
way to the next, transforming. But from his point of view, it would require a major crisis to
provoke such a response, where the MS would transcend their initial commitment and move
beyond integrating their economies to integrating their polities. There are still too many
options for functional spillovers in the latter category for that to happen, in Schmitter’s
(2004) view. Also, since integration is considered a series of crisis-provoked decision cycles,
there is no such thing as irreversible progress, and there can be moves away from and
towards integration simultaneously in different issue areas (Schmitter, 2004).
1.3.3 Liberal Intergovernmentalism
In the following, an account of the theory of Liberal Intergovernmentalism (LI) will be given.
LI is a European integrationist theory developed by Andrew Moravcsik in 1993 as a means to
help explain European integration. The theory is a reaction against intergovernmental theory,
and it can be characterised as a baseline theory, because LI is grounded in broader social
science theory. It seeks to modernise integration theory by drawing on general political
science theory.
Two basic assumptions about politics yield the foundation for LI. Firstly, that states are actors.
The EU, like other international institutions, can be profitably studied by treating states as
critical actors in a context of anarchy, and the European Community (EC) is best seen as an
international regime for policy co-ordination. Thus states achieve their goals through
intergovernmental negotiation and bargaining. Moravcsik’s (2009) assumption is not to be
seen as a realist notion: national security is not the dominant motivation; state power is not
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
based on coercive capabilities; states preferences and identities are not uniform; and
interstate institutions are not insignificant. LI, to put it simply, acknowledges a blunt but
empirical fact about contemporary institutions such as the EU: member states are ‘masters of
the treaty’ and continue to enjoy pre-eminent decision-making power and political legitimacy.
The second basic LI assumption is that states are rational. Actors, in this case the MS, calculate
the utility under the circumstances. Therefore, collective outcomes are explained as a result of
aggregated individual action based on efficient pursuit of these preferences. Nonetheless,
collective outcomes are subject to the information at hand and uncertainty about the future
(Moravcsik and Schimmelfenning, 2009, 68). If the MS agree to cooperate, in this case, in the
arena of an international institution, they do so because it serves as a benefit to each single
state actor. Therefore, the establishment of international institutions can be explained as a
collective outcome of interdependent rational state choices and intergovernmental
negotiations (Moravcsik and Schimmelfenning, 2009, 68).
According to Moravcsik (2009), the states’ decision to cooperate by forming international
institutions can be explained by using a three-stage framework. It goes as follows:
States define their preferences, then bargain to substantive agreements, and finally create or
adjust institutions to secure those outcomes in the face of future uncertainty. Each stage is
separate, and each stage is explained by a separate theory. Moravcsik (2009) explains that
cooperation outcomes can be explained only at the end of the multi-clausal sequence. In order
to be used as a tool to analyse European integration more accurately, the three-stage
framework is explained more in depth by using precise theories of preference, bargaining
and institutionalism.
1. National preferences are driven by general geopolitical ideas and interest or by issuespecific (generally economic) interest.
2. Substantive bargaining outcomes are shaped by manipulation of information by
supranational entrepreneurs and information asymmetries or by intergovernmental
bargaining on the basis of asymmetrical interdependence
3. The choice of EU institutions reflects federalist ideology, the need for technocratic
management, or an interest in securing credible MS commitments (Moravcsik and
Schimmelfenning, 2009, 69)
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Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
The different stages in Moravcsik’s (2009) three-stage theory will now be explained in detail:
National Preferences
LI treats states as unitary actors based on the assumption that domestic political bargaining,
representation and diplomacy generate a consistent preference function. According to
Moravcsik (2009), the foreign policy goals of national governments vary in response to
shifting pressures from domestic social groups, whose preferences are aggregated through
political institutions. The essential goals of states, the states’ preferences, are neither fixed nor
uniform, meaning that they vary amongst states and within the state itself. This constitutes
that state preferences are ever changing and of tangible character. Therefore, they can change
across time and according to issue-specific societal interdependence and domestic
institutions. Thus the term issues-specific is a determiner within the scope of national
preference. Moreover, the states’ preferences are driven by issue-specific preference
functions about how to manage globalization. The model of issue-specific preference differs
depending on the nature of the specific issues in question, whether it be of economic
character or of a more ideological character. Moreover, Moravscsik’s (2009) empirical
analysis of European integration showed that the preference of national governments have
mainly reflected concrete economic interests rather than other general concerns like security
or European ideals. It is important to note that economic interests do not tell the whole story
and Moravcsik (2009) points out that geopolitical interest (even more than ideology) also had
an important impact on European integration (Moravcsik and Schimmelfenning, 2009,68-69).
Substantive Bargaining
Moravcsik (2009) emphasises that the national preferences of different states rarely converge
precisely. LI deploys a bargaining theory of international cooperation, which stems from
rational institutionalism; it is used to explain the nature of substantive outcomes among
states that have conflicting national preferences.
States must overcome suboptimal outcomes collectively and achieve coordination or
cooperation for mutual benefit, yet at the same time they must decide on how the mutual
gains of cooperation are distributed among the states. Collective and individual interests often
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
clash with hard bargaining over distributional gains, which eradicate the willingness and
ability of states to cooperate. In this specific context bargaining theory argues that the
outcome of international negotiation is highly dependant upon the relative bargaining power
of the actors. Therefore, bargaining power in international politics, as in social life, might
result from many factors. LI posits that in the EU context, asymmetrical interdependence3 and
information about preferences and agreements play a vital role. Usually, those actors that are
least in need of a specific agreement, relative to the status quo, are best capable of threatening
others with non-cooperation and thereby forcing them to agree to compromise. As a result,
those actors that have better and more information about other actors’ preferences and the
working of institutions are able to manipulate the outcome so that it turns out to their
advantage. As is described above, LI aims to explain the efficiency of bargaining and the
distribution of gains from substantive cooperation among states, whose preferences have
been determined (Moravcsik and Schimmelfenning, 2009, 70-71).
Institutional Choice
When explaining the establishment and design of international institutions once a substantive
agreement is struck, LI follows neoliberal institutionalism in stipulating that international
institutions are often necessary conditions for durable international cooperation. In this
respect, LI concurs with some claims, which are normally attributed to neofunctionalist
theory. It puts forward that states deliberately delegate authority to supranational
organisations capable of acting against the subsequent preferences of governments.
Moreover, institutions incorporate unintended and unwanted consequences under conditions
of uncertainty – an essential component of regime theory. Above all, however, institutions
help states reach a collectively superior outcome by reducing the transaction costs of further
international negotiations on specific issues and by providing the necessary information to
reduce the states’ uncertainty about each other’s future preferences and behaviour. States
establish rules for distribution of gains according to the already existing bargain and reduce
the costs of coordinating their activities, monitoring the activities of others, and mutually
Asymmetrical interdependence means; the uneven distribution of the benefits of a specific
agreement (compared to those of unilateral pr alternative possibilities known as ‘outside
options’).
3
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Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
sanctioning non–compliance. Consequently, issue-specific problems of cooperation caused by,
above all, the severity of distributional conflict enforcement problems and by uncertainty
about the preferences of other actors and the future states of the world, require and yield
institutional design (Moravcsik and Schimmelfenning, 2009, 72). LI argues that the issuespecific variation in the delegation and pooling of sovereignty reflect issue-specific concerns
of national governments about each other’s future ability to comply with the substantive deal
reached either in the sense of strict enforcement or future elaboration of a bargain. Moravcsik
(2009) argues that by transferring sovereignty to international institutions, governments
effectively remove issues from varying influence of domestic politics and decentralised
intergovernmental control, which might build up pressure for non-compliance, if the cost for
powerful domestic actors is high. The key to successful policy implementation is credible
domestic commitment by strengthening the national executive or the very domestic groups
that support the policy in the first place (Moravcsik and Schimmelfenning, 2009, 72-73).
Theoretical Criticism
There has been criticism of LI as a valid theory, and the applicability of the theory to European
integration has been questioned. The main critique is as follows: Historical institutionalism
argues that LI only focuses on conscious intergovernmental decision-making at treatyamending moments, and thereby overlooks many unintended or undesired consequences that
occur from treaty amendments. From this argumentation the critics conclude that LI gives a
misleading impression of integration as a whole. Other critics point to empirical examples
where LI propositions do not seem to hold.
Moravcsik (2009) has addressed the criticism that has been raised and argues that LI is a
valid theory for analysing European integration. Moravcsik (2009) argues that LI is not a
universal theory and thus explains integration under most conditions, but not under those
conditions that violate its assumptions about preferences, bargaining and credible
commitments. Moreover, LI does not seek to explain every issue of European integration, but
works as a tool for analysing issue- specific policies from the three-stage framework of
national preferences, substantive bargains and institutional choice, and therefore it can not be
ruled out as a theory without validity (Moravcsik and Schimmelfenning, 2009, 74-75).
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2 Account and Analysis of EU Asylum Policy
In the following, an account will be given of the development of the Common European
Asylum System (CEAS). The main focus will be on the Dublin Regulation4, as it is the current
legal foundation of EU asylum policy and is what establishes the principles that the ECHR
ruling has found in violation of human rights. The areas of the regulation of main importance
to the ECHR ruling will be analysed on the background of Neofunctionalism and Liberal
Intergovernmentalism and the broader developments of CEAS will also be subjected to a
theoretical analyses, but the section will begin with a brief historical overview of the
developments to lay the foundation for the analysis.
2.1 The Preliminaries
An overview of the developments leading up to Dublin II
The first talks of EU asylum policy emerged in the 1980s in the wake of the collapse of the
Soviet Union and the outbreak of the Balkan wars in the 90s, which led to the first massive
influx of asylum seekers in EU history (Vevstad, 2006). The sudden rise in the number of
asylum seekers meant that the EU was facing the problem of asylum seekers enjoying the
same right of free movement on the territory as its citizens. That made a common asylum
policy a necessity to ensure the functioning of the Single European Market (SEM) and
Schengen (Vevstad, 2006).
Leading up to the creation of CEAS there was a series of developments. First, the Dublin
Convention or Dublin I was negotiated in 1990 and entered into force in 1997. CEAS, with its
two phases (1999-2004 and 2005-2010) has Dublin I and later (2003) Dublin II (Dublin
Regulation) as its foundation. Second, the Maastricht treaty (signed 1992) was the first
mentioning of a common asylum policy in a legal EU document. It was placed in the third
pillar, Justice and Home Affairs (JHA), and discussions of the policy took place in working
groups under the European Council, subjecting it to intergovernmental decision-making
(Vevstad, 2006, 62-63). Third, the treaty of Amsterdam (signed 1998) was a major step in the
formation of a common EU asylum policy. The concept of asylum was considerably expanded
with a number of initiatives:
4
The Dublin Regulation (II) is enclosed ( enclosure 1)
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1. The area of freedom, security and justice was established
2. Schengen was implemented in EU law
3. The treaty states that the EU respects international law, MS have agreed to uphold (e.g.
the European Convention on Human Rights)
4. Asylum, migration, visa cooperation, cooperation on border control and areas
concerning civil law were moved to pillar one (making it supranational instead of
intergovernmental)
5. The legislative right of initiative in the area of asylum was shared between the
Commission and the MS till 2005, where the Commission took over completely
6. States that the rights of 3rd country nationals must be strengthened (e.g. a common
understanding of the Genevé convention’s 1st art., which country bears the
responsibility for processing asylum applications, minimum standards for reception of
asylum seekers etc.)5
Fourth, on the Vienna (1998) and Tampere (1999) summits an action plan for the first phase
of the CEAS was developed. The Haag (2004) summit produced an action plan for the second
phase. Vienna and Tampere were closely linked to the features of a common asylum policy
laid out in Amsterdam. Haag focused on handling some of the problems arising from the first
phase of CEAS and filling in the gaps on the more practical side such as evaluation of the first
phase and implementation of therein agreed initiatives, Vevstad (2006, 90-1)) points to the
fact that Vienna and Tampere are much more idealistic than Haag in the sense that they aim at
striking a balance between the rights of asylum seekers and the control of influx, whereas
Haag is mainly focused on control issues. Finally, the Nice Treaty (signed 2001), also called
“the Amsterdam leftovers”, moved a few more areas from pillar three to one (illegal
immigration and areas concerning freedom of movement) (Vevstad, 2006).
5
These rights are realised in the CEAS
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2.2 Dublin
From Convention to Regulation
The Dublin Regulation (2003) is a revision of the Dublin Convention (1997) (Dublin II,
preface, paragraph 5)6, reaffirming the principles from Dublin I and amending and specifying
it further based on lessons learned from implementing Dublin I. The regulation lays out rules
for determining who are to be granted status as asylum seeker, which MS is responsible for
processing the asylum application based on a hierarchy of criteria and how the process of
taking back and taking charge of an asylum seeker after allocation of responsibility is to be
carried out. In the following, an account of the most important elements of Dublin II in terms
of the ECRH ruling will be given The areas of main concern will therefore be country of first
asylum, safe countries, non-refoulement and options for review and appeal. Any reference to
paragraphs and articles are references to paragraphs and articles in the Dublin Regulation,
which can be found in the enclosures.
2.2.1 Dublin and Schengen
The purpose of Dublin II as stated in the preface:
A common policy on asylum, including a Common European Asylum System, is a constituent part of the
European Union's objective of progressively establishing an area of freedom, security and justice open to
those who, forced by circumstances, legitimately seek protection in the Community. (§1)
The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work
towards establishing a Common European Asylum System, based on the full and inclusive application of
the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New
York Protocol of 31 January 1967, thus ensuring that nobody is sent back to persecution, i.e. maintaining
the principle of non-refoulement. In this respect, and without affecting the responsibility criteria laid
down in this Regulation, Member States, all respecting the principle of non-refoulement, are considered
as safe countries for third-country nationals. (§2)
These paragraphs state that the EU honours its obligations to adhere to international law and
the protection of refugees, which is also clearly stated in §12 of the preface, and §2 above
specifies in detail that Dublin II is based on the Geneva Convention of 1951 and the
amendments of 1967. Furthermore, the purpose of the regulation is assigned to establishing
CEAS as agreed at the Tampere meeting cf. §2 above. §1 sets out the objective of establishing
an area of freedom, security and justice, which is further elaborated in §8 below to include the
6
See enclosure 1.
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creation of an area without internal borders and the need for a common asylum policy to
achieve that goal. It makes clear the connection to the SEM and Schengen, so Dublin II, and
consequently also CEAS, can be seen as a clear functional spillover from the SEM and the free
movement of people to Justice and Home Affairs (JHA). Dublin I makes the link to the
Schengen agreement even clear, since it was formulated concurrently with Schengen 7 and is
clearly a functional spillover, as it is necessary for full functionality of the free area of
movement for EU citizens within the EU borders. Below is the wording from Dublin II ‘s §8
concerning the issue.
The progressive creation of an area without internal frontiers in which free movement of persons is
guaranteed in accordance with the Treaty establishing the European Community and the establishment
of Community policies regarding the conditions of entry and stay of third country nationals, including
common efforts towards the management of external borders, makes it necessary to strike a balance
between responsibility criteria in a spirit of solidarity. (§8, preface)
One of the main goals of Dublin II is to sets up rules on how responsibility for an asylum
seeker is determined. For that purpose, a hierarchy to be followed when responsibility is
decided is included in the regulation. Family unification constitutes the first part of the
hierarchy (art. 5-8) and issued visas and residence permits follow in art. 9. Art. 10 further
underlining the link to Schengen by confronting the issue of illegal border crossing:
Where it is established, on the basis of proof or circumstantial evidence as described in the two lists
mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No
2725/2000, that an asylum seeker has irregularly crossed the border into a Member State by land, sea or
air having come from a third country, the Member State thus entered shall be responsible for examining
the application for asylum. This responsibility shall cease 12 months after the date on which the irregular
border crossing took place. (Art. 10.1)
This article assigns responsibility to the MS that does not live up to its obligation to protect
the Union’s external border by allowing a 3rd country national to cross illegally. The MS is
responsible for the national for 12 months after the illegal crossing. Vevstad (2006, 175)
comments that the fixing of the time limit of 12 months in this article was one of the most
difficult things for the MS to reach agreement on. According to LI, this can be explained due to
the fact that MS have different national preferences. All the MS have an overall interest in
Schengen was signed in 1990 like Dublin I and was implemented in 1995, whereas Dublin I
was implemented in 1997 (Vevstad,2006, 161, footnote 337)
7
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rules in this area to ensure the functionality of Schengen and they chose to do that through
Dublin, making Dublin an example of institutional choice. In this case the specific formulation
of national preference is very much dependant on the geographical position and the resulting
difference in pressure on domestic borders and the economic burden that follows. The fixing
of the time period was an outcome of substantive bargaining. The southern countries (Greece
and Italy especially) had a great interest in minimising the amount of time and the Northern
MS preferred a higher time limit. The suggestions were 6 and 18 months and they agreed on
12 (Vevstad, 2006). Art. 13 below can be seen as a result of the same process of substantive
bargaining.
Where no Member State responsible for examining the application for asylum can be designated on the
basis of the criteria listed in this Regulation, the first Member State with which the application for asylum
was lodged shall be responsible for examining it. (Art. 13)
According to LI, countries with the most power have the bigger influence on the outcome, and
this creates a situation referred to in LI as ‘asymmetrical interdependence’. Article 13
benefits the majority of MS except Greece and Italy, thus creating an asymmetrical
relationship of interests, resulting in Greece and Italy complying with the interests of the rest
of the MS. Thus it is Greece’s and Italy’s national interest (national preference) to comply in
order to avoid creating a conflict that could be harmful for future cooperation within EU
context. Furthermore, complying to meet the interest of the rest of the MS is the only possible
option for minority countries in a situation of ‘asymmetrical interdependence’, as not
reaching an agreement at all would be more harmful to them than reaching an agreement
with bad conditions.
2.2.2 First Country of Asylum
Art. 13 is a constitutive part of the Dublin Regulation along with art. 10, as they constitute the
principle of first country of asylum.
The concept of first country of asylum allows MS to return asylum seekers to the first country
of entry, if the responsibility for the asylum seekers cannot be allocated based on any of the
other criteria within the Dublin II hierarchy. Article 13 has, since the regulation came into
force in September 2003, been referred to as “Dublin II” colloquially, because it has been
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extremely utilised in determining responsibility (Vogel, 2011). Hence, in practice the MS into
which the person first arrived from outside the EU will most often be responsible for
determining any claim for asylum, at least for 12 months. After that time responsibility lies
with the last member state where the asylum seeker has lived continuously for a period of at
least five months.
2.2.3 Effective Remedy
Rules for taking back, taking charge and effective remedy
Dublin II lays out rules for taking charge of and taking back the asylum seeker, when
responsibility has been determined. The taking charge rule applies when the asylum seeker
has not applied for asylum in any other MS. These could be cases where the asylum seeker
does not apply for asylum in the second country he enters or does not get registered8. In cases
such as these it is almost impossible for the second country to determine how long the asylum
seeker has been staying in the country, and therefore there is no time limit determining when
the asylum seeker can no longer be submitted for return contrary to the concept of taking
back.
The taking back rule applies when the asylum seeker has applied for asylum in one MS before
travelling to another MS. The rule applies in cases where the asylum case is still being
processed in the first country, and in cases where asylum has been denied in the first country.
A no to asylum in one MS means no in all MS and the asylum seeker can thus not submit a new
application in the second country and he his application retried. The reasoning behind this is
that all cases should be processed in one country and one country alone. The countries that
are requested to take back an asylum seeker should respond as quickly as possible and within
one month at the latest (art. 17). The practical side of the taking back itself is also laid out in
article 19.1-2.
1. Where the requested Member State accepts that it should take charge of an applicant, the Member
State in which the application for asylum was lodged shall notify the applicant of the decision not to
examine the application, and of the obligation to transfer the applicant to the responsible Member State.
(art. 19)
8
In Eurodac, for instance
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2. The decision referred to in paragraph 1 shall set out the grounds on which it is based. It shall contain
details of the time limit for carrying out the transfer and shall, if necessary, contain information on the
place and date at which the applicant should appear, if he is travelling to the Member State responsible
by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this
decision shall not suspend the implementation of the transfer unless the courts or competent bodies so
decide on a case-by-case basis if national legislation allows for this. (art. 19)
The article states clearly that the country requesting to send the asylum seeker back must
notify the asylum seeker that the country taking him back has agreed to do so. The purpose of
subsection 2 of article 19 is to ensure that the asylum seeker has time to understand the
processing of his case and the judgment to send him back and to allow him to file a complaint
over set judgment, in other words securing the right of effective remedy. The obligation to
notify is especially relevant in the concept of first country of asylum and is mentioned in art.
20.1.e below as well as art. 19.2. Moreover, the rationalisation behind the decision to send
back must be explained to the asylum seeker in a language that he can be expected to
understand. Another paramount element of taking back and taking charge is that the transfer
of the asylum seeker must happen as quickly as possible (art.19.3).
The requesting Member State shall notify the asylum seeker of the decision concerning his being taken
back by the Member State responsible. The decision shall set out the grounds on which it is based. It shall
contain details of the time limit on carrying out the transfer and shall, if necessary, contain information
on the place and date at which the applicant should appear, if he is travelling to the Member State
responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review
concerning this decision shall not suspend the implementation of the transfer except when the courts or
competent bodies so decide in a case-by-case basis if the national legislation allows for this. If necessary,
the asylumseeker shall be supplied by the requesting Member State with a laissez-passer of the design
adopted in accordance with the procedure referred to in Article 27(2). The Member State responsible
shall inform the requesting Member State, as appropriate, of the safe arrival of the asylumseeker or of the
fact that he did not appear within the set time limit. (art. 20.1.e)
The first country of asylum rule and the establishment of it, can be seen as another example of
Dublin II being a functional spillover from Schengen, as it specifically deals with the issue of
securing the area of free movement by preventing asylum seekers from the option of asylum
shopping and the pressure it would put on the entire asylum system and the area of free
movement.
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2.2.4 Non-refoulement and Safe Countries
First country of asylum is built on the idea of non-refoulement. Going back to §2 above, it
states that because all MS respect the principle of non-refoulement they are to be considered
safe countries. The definition of non-refoulement is as follows:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion (Art. 33 of the 1951 UN
Convention and Protocol relating to the Status of Refugees)
That means that a MS can return an asylum seeker to any MS after determining responsibility
based on the criteria set out in Dublin II. Dublin II can therefore be argued to be built on
mutual recognition of rulings on applications and mutual trust of all MS being safe countries
adhering to international law. But this is not unproblematic according to Vevstad; “As a
general rule there is reason to advise caution in dubbing any country as “safe” for all asylum
seekers at all times” (2006, 197 – quotation marks around safe in original). In other words,
Vevstad questions the assumption that all countries are considered safe by default.
2.3 Directives
The Dublin Regulation is surrounded by three directives that were formulated and agreed
upon in order to lay down more specific rules for implementing the regulation. Below is an
account of the most noticeable elements of the Qualifications, Reception and Procedures
Directives.
2.3.1 The Qualification Directive (Van Krieken, 2004)
This directive is an implementation of the articulation in Amsterdam of a need for securing
the rights of asylum seekers through common minimum standards for obtaining asylum. The
directive seeks to ensure that the MS have a common understanding of what constitutes a
refugee, to implement common standards to prevent asylum shopping and to ensure that
people in need of protection receives it. In Vevstad’s opinion (2006, 110), these objectives
make the directive the foundation of CEAS.
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There are a few interesting points to draw out. First, the definition of a refugee under the
directive is an adoption of the Geneva Convention’s definition. It is stated in the preface §2 of
the directive that the MS adhere to that definition and the principle of non-refoulement, which
is also specifically mentioned in article 219. Second, article 3 states that MS are free to go
above and beyond the minimum standards established in the directive. Third, there are
inconsistencies in regards to family reunification between this directive, the Reception
Directive and Dublin II, because the definition of family members differs between the three.
The Qualifications Directive does not define what constitutes family members very clearly,
but it does state that close relatives, who lived with the family at the time of leaving the
country, can be considered a family member, if the MS wishes to do so (art. 23) . The Dublin
Regulation narrowly defines family members as the spouse or unmarried partner from a
stabile relationship (if MS national law recognises that); minor, unmarried, dependent
children and the parents or guardian of an asylum seeker who is a minor and unmarried.
These rules are only applicable to family relations already established in the country of origin
(art. 2.i). The Reception Directive has the same definition as Dublin II, except for the clause
concerning an applicant who is a minor, unmarried child (art. 2.d).
2.3.2 The Reception Directive (Van Krieken, 2004)
This directive sets the standards for how asylum seekers are to be treated, once they have
been found to live up to the criteria in the Qualification Directive for being regarded an
asylum seeker. The main elements of the directive are the following. First, the purpose is once
again to prevent asylum shopping by establishing common standards. Second, MS are
required to provide certain things to the asylum seeker. They should provide housing, a
decent living standard not referring anyone to live in poverty and medical assistance. Also,
they are required to ensure family unity as far as possible and provide the asylum seeker with
adequate information about his/her case and documentation thereof. Third, as in the
Qualification Directive, it is allowed for MS to adopt higher standards than the ones
prescribed in the directive. Fourth, it only applies to convention refugees.
9
From the Geneve Convention’s art. 33 as cited above
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2.3.3 The Procedures Directive (Van Krieken, 2004)
The purpose of the Procedures Directive is to establish minimum standards on procedures in
MS for granting and withdrawing refugee status. The negotiation of the Procedures Directive
proved to be upmost difficult and it is a result of many compromises between the MS. The
final version of the Procedures Directive was finally passed in December 2005 and is first and
foremost a directive that has been created by the MS in the Council. The Procedures Directive
encompasses regulations on effective remedy, minimum standards for the processing of
asylum, safe 3rd and home countries and the first country of asylum principle. Moreover, the
Procedures Directive’s purpose is also to strengthen the prevention of asylum shopping and
illegitimate asylum seekers. Vevstad (2006, 206) believes the many country specific
considerations and exceptions means that the directive does not live up to its goal of
harmonising the area. She also argues that the procedure therefore leaves it up to the MS to
secure the rights of asylum seekers based on international law (2006, 205-6).
2.4 Recapitulating the Main Points of EU Asylum Policy
A common EU asylum policy was under preparation for a while before CEAS actually emerged.
Facing the problem of a mass influx of refugees in the 80s and 90s, the MS found themselves
needing a common solution to solve what was clearly a transnational problem. That led to
initial steps in the Maastricht treaty and the development of Dublin I in the early 90s. Dublin I
entered into force in 1997 and was followed by the Vienna and Tampere meetings in 1998
and 1999, where the specifications of an action plan for the first phase of CEAS were
formulated on the basis of the frame laid out by the treaty of Amsterdam in 1998. The first
phase of CEAS spanned the years of 1999-2004 and the second phase 2005-2010 with the
Haag summit in 2004 laying out the action plan for the latter phase. Dublin II was signed and
in effect by 2003 and is the current legal foundation of CEAS. As mentioned above, CEAS is a
clear functional spillover from the SEM and Schengen to Justice and Home Affairs (JHA), but
looking at the broader picture, it can also be argued that it is a political spillover, because as
mentioned above, it was clearly a transnational problem, and domestic governmental elites
had higher expectations to a common EU solution than national ones, seeing as the vast
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majority of MS did not choose or attempt to solve the problem at the domestic level 10. The
important elements from the Dublin Regulation in regard to the ECHR ruling are the notion of
country of first asylum, safe countries, non-refoulement and options for review and appeal as
explained above. The analysis of the Dublin Regulation itself and the preliminary
developments accounted for in the historic overview led Neofunctionalism to identify the link
between SEM, Schengen and JHA via asylum policy as a functional spillover, but at the same
time arguing that there are also elements of political spillover in the process of developing
CEAS. LI gave insights in the complex processes of national preference generating and
substantive bargaining as part of the development of Dublin II.
2.5 Analysing the Broader Developments
There are some interesting observations to be made based on the process of developing CEAS
and they will be accounted for and analysed in the following.
2.5.1 The Boomerang Trend
Based on the development of CEAS, it can be argued that this particular area has gone from
intergovernmental
decision-making
to
supranational
decision-making
and
recently
backtracking to intergovernmental in a boomerang trend. There are a number of arguments
to support this claim, especially if one looks at the treaties, because they specify the decisionmaking processes used for asylum policy. First, Maastricht placed asylum policy in the third
pillar; an intergovernmental pillar, and discussions of the policy took place in Council working
groups, also an intergovernmental forum. Second, in Amsterdam there was a move towards
more supranational decision-making on two levels. Firstly, a range of issues was moved to the
community pillar, pillar one, subjecting them to the community method. Secondly, the
Commission, a supranational institution, gained sole right of initiative in the area in 2005
after a 5-year transitional period of sharing it with the MS. Both developments testify to a
general movement towards supranational decision-making. In addition, the directives
exemplify that intergovernmental decision-making is coming back. They are all adopted from
2003-05 and therefore represent some of the later developments. The reason they can be
10
Denmark is the only MS not to be part of Dublin II. It is part of Dublin I, though.
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argued to show the intergovernmental turn is that they do not always agree with the wording
of Dublin II on different issues (such as family reunification) and they have adopted a fairly
restrictive interpretation of Dublin II (Vevstad, 2006). Also, the Procedures Directive in
particular is characterised by country specific considerations, which in fact has watered down
the directive to a point where Vevstad (2006, 205-6) does not think it manages to harmonise
the area at all. Furthermore, the Vienna, Tampere and Haag summits also have a story to tell
of the latest developments in decision-making processes. As mentioned earlier, Tampere and
Vienna were focussed on striking a balance between securing refugee rights and controlling
refugee influx. Haag was much more concerned with the control issue than anything else. This
bears witness of the changing currents in the sense that MS are now trying to take back some
of the power they had given over to the supranational level. Finally, there is also a case to be
made concerning the Commission’s role in terms of illustrating the boomerang trend. The
Commission did not have much influence on the first steps in creating CEAS. As mentioned
above, discussions took place in Council working groups under Maastricht. That changed with
Amsterdam and the transfer of some of the areas concerning asylum policy to the community
pillar and finally the sole right of initiative in the area. That made it possible for the
Commission to facilitate what Neofunctionalism terms cultivated spillover. But as the MS
slowly began focussing more on control issues, some of the conditions Niemann and
Schmitter (2009) deem necessary for cultivated spillover to take place, disappeared (e.g.
internal cohesion between MS and the Commission capacity to shape the agenda).
Neo-neofunctionalism would define the above development as one of the inevitable crises
that naturally occur as part of the integration process (Schmitter, 2004). The MS have a choice
of spillover, spill-back, spill-around or build-up. Asylum policy has been an example of
spillover so far, but there might be reason to believe that it could move in the direction of
spill-back based on the latest developments with France and Italy calling for the dismantling
of Schengen and a re-erection of national borders as a means to control refugee influx
(Euronews, 2011). On the other hand, muddle-about may also be an option based on previous
EU experience. EU had a long period of muddling-about from the first years of its creation to
the signing of the Single European Act (SEA) in 1986 (Neugent, 2006). Further elaboration of
the possibilities for spillover or spill-back will be in taken up in more detail in relation to the
discussion of the ECHR ruling.
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2.5.2 EU Asylum Policy From an LI perspective
In the following, LI theory will be used to analyse the broader developments of EU asylum
policy by using Moravcsik’s (2009) three-stage theory.
National Preferences
The National preferences of how a common European asylum policy should be has shifted
from being more ideological and focusing on the rights of refuges, as it was the case in the
Dublin Convention of 1990, to be more concerned with economical issues of avoiding asylum
shopping and the economical burden of mass migration. The rapid growing number of asylum
seekers and the open internal borders of the EU that came with Schengen, shifted the national
preferences of the MS from being concerned with doing the right thing and taking
responsibility for the many asylum seekers to safeguarding national interests.
LI argues that geopolitical interests are more important in determining national preferences
than ideology. Therefore, it is credible that there is a difference in preference from North to
South, because southern MS are the first countries the refugees arrive in, and based on the
Dublin Regulation that means they are responsible. For the northern MS it is convenient to
have such an arrangement, as it means the southern states carry most of the burden of
asylum. It exemplifies the above claim that the development of asylum policy has gone from
intergovernmental to supranational to intergovernmental, especially with the latest
development of France and Italy voicing a request for dismantling Schengen and re-erecting
national borders11
Economic interests are even more important, according to Moravcsik (2009). The financial
crisis has had a major influence on domestic social groups, and the shift in preferences in
regard to asylum seekers has been that it is an expense society is not willing to uphold in a
situation of scarce resources. It is seen as a threat to the welfare of MS populations. Therefore,
the Northern MS are keen on maintaining status quo and the application of first country of
asylum, whereas the southern MS are becoming increasingly set on burden sharing. Again, it
supports the above claim of asylum policy development, since it illustrates the move from
focus being on refugee rights to being on control issues.
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Substantive Bargaining
Substantive bargaining happens on the basis of national preferences and is dependant upon
the relative bargaining power of the MS. When bargaining in the frame of asylum policy in the
EU, the relationship of asymmetrical interdependence can be defined as follows; The northern
MS can be argued to have the most bargaining power, because they include some of the
richest MS and because they are larger in number than the southern MS. These are two
conditions that are important for the outcome of the process. Furthermore, they are the group
of countries that need an agreement in this area the least. According to LI, that gives them
leverage to manipulate the agreement to their advantage and the southern MS are so
dependant on an agreement that they would rather accept an unfavourable one than risk not
having an agreement. The difficulty of reaching agreement, especially in the later years of
developing the legal frame for CEAS (Vevstad, 2006, 205) once again reflects the
developments mentioned above, but also shows the perplexities of substantive bargaining.
The Procedures Directive exemplifies it very well. The then commissioner of JHA was
apologetic of the end result, because it was much less ambitious than what the Commission
would have wanted (Vevstad, 2006, 205). Reaching the final agreement on the directive
turned out to be a long process of sending proposals back and forth between the Council and
the Commission, which finally led to a directive full of national special considerations and
most articles expressing the lowest common denominator, in Vevstad’s opinion leaving it up
to the individual MS to uphold international law and secure the legal rights of refugees (2006,
205-6).
Institutional choice
Based on the agreement reached through substantive bargaining, sovereignty is transferred
to a supranational institution to oversee that it is carried out as intended. Moravcsik (2009)
believes that governments effectively remove issues from varying influence of domestic
politics and decentralised intergovernmental control by doing so. It can be argued that due to
increasing pressure from domestic societal actors, as mentioned above under national
preferences, MS governments have been forced to re-direct this process and return to more
intergovernmental methods, hence the claim of the boomerang trend above.
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Summing up, the theories all find indications in the development of CEAS that underline the
hypothesis of a boomerang trend in decision-making, whether it is Neofunctionalism and Neoneofunctionalism in their focus on spillover and decision cycles or it is LI and the focus on
national preferences, substantive bargaining and institutional choice. They all point in the
direction of a boomerang trend.
3 The ECHR Ruling
On the basis of the above account and analysis of EU asylum policy, focus will now be on the
ECHR ruling and a discussion of its implications. It will begin with an explanation of the
situation in Greece that led to the ECHR ruling followed by an account of the ruling.
Subsequently, the discussion will follow.
3.1 Elaboration on the Circumstances in Greece that led to the ECHR Ruling
The ECHR based its ruling on a number of questionable conditions for refugees in Greece. One
point of concern was the inhumane and degrading treatment Greece subjects refugees to. In
recent years, these conditions have been devoted a great deal of attention by governmental
and non-governmental organisations alike.
The Commission addressed the problem at the EU courts and on the 19th April 2007 in the
Commission v. Greece, case C-72/06, the court found that Greece had not lived up to its
responsibility of implementing the Reception Directive within the time limit.
Human Rights Watch (HRW) published a report, Stuck in a Revolving Door, in November 2008.
The HRW conducted research in Greece from May 22 to June 5, 2008 and in Turkey from June
5 to June 14, 2008, and the report proves through interviews with migrants, refugees, asylum
seekers, police chiefs and detention guards and observations of facilities that the conditions
for the detained are very criticisable and not in keeping with international law (ECHR,2011).
The report reveals that the vast majority of refugees are kept in detention facilities despite the
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reception directive’s requirement that it should only be used as a last measure 12.
Furthermore, the conditions under which they are kept constitute inhumane and degrading
treatment, as they are kept in severely overcrowded facilities with very poor sanitation and
restricted access to legal and medical assistance. There was also evidence of missing or
misleading information on the asylum procedure. In addition, the report briefly comments on
the role of the poor state of Greek economy13 and how difficult or maybe even impossible it
makes it for Greece to deal with the large number of refugees crossing its borders every day.
As of August 2010, Greece had 52,000 pending asylum application cases14 and that does not
include the vast number that has not been registered as asylum seekers yet, due to the
incapability of Greek authorities to keep up with the demand15. Being a main point of entry for
asylum seekers, Greece is also a main recipient of requests for taking back and taking charge
under the Dublin Regulation, which further adds to the burden16.
The United Nations (UN) has also closely monitored the situation in Greece and has published
a range of positions, papers and reports on the subject17. The report, Observations on Greece as
a Country of Asylum, published by the UN Refugee Agency (UNHCR) in December 2009, gives a
thorough examination of the situation for asylum seekers in Greece and reaches the
conclusion that it keeps to its previous recommendations of not returning any refugees to
Greece, because of the poor conditions asylum seekers are kept under and the many
insufficiencies in the asylum procedure as such, very much in keeping with the findings from
the HRW report mentioned above. The European Council of Refugees and Exiles have also
raised its concerns18 and brings up similar points to the ones made by the UN and HRW. All in
all, Greece can surely be classified as not living up to the requirements for safe countries.
Art. 18
See enclosure 2 – OECD key short term indicators
14 UN News Services, 20 October 2010, UN expert urges EU to help ‘overwhelmed’ Greece deal
with irregular migrants( Nowak,2010).
15 UN report on Greece (UNCHR, 2009).
16 See enclosure 3 and 4 – ingoing and outgoing Dublin Requests
17 www.UNHCR.org
18 www.ecre.org
12
13
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3.2 CASE OF M.S.S. v. BELGIUM AND GREECE 21st OF JANUARY 2011
In the following an account of the Case of M.S.S. v. Belgium and Greece will be given.
On the 21st of January 2011 the European Human Court of Human Rights (ECHR) found that
Belgian authorities had violated the rights of asylum seeker M.S.S, an Afghan national, as
stated in the European Convention on Human Rights 19, by sending him to Greece using the
Dublin II Regulation. In effect this ruling means that asylum seekers cannot be returned to
Greece under the Dublin Regulation (MRN, 2011).
The Afghan male was sent back to Greece using the Dublin Regulation’s first country of
asylum principle, which enables MS to send asylum seekers back to the country where they
first applied for asylum (MRN, 2011). The Dublin Regulation assumes that the country to
which the asylum seeker is to be retuned is able to safeguard the individual’s human rights
and will determine the application for refugee status in accordance with the standards of
international law. The lawyers of the Afghan male, M.S.S, argued before the ECHR that asylum
procedures in Greece were in such a state of disarray that it could not be presumed that the
requirements of international law with respect to refugees were being met (ECHR, 2011).
ECHR ruled as follows on the 21st of January 2011:
Belgian authorities should not have expelled asylum seeker to Greece
In the Grand Chamber judgment in the case M.S.S. v. Belgium and Greece (application no.
30696/09), which is final, the European Court of Human Rights held, by a majority, that there
had been:

A violation of Article 3 (prohibition of inhuman or degrading treatment or
punishment) of the European Convention on Human Rights by Greece both because of
the applicant’s detention conditions and because of his living conditions in Greece;
The EU MS have an obligation to adhere to this convention due to their membership of the Council of
Europe, since all members are signatories and the Dublin Regulation states in §12 of the preface that
MS are obligated to adhere to the international law to which they are party
19
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A violation of Article 13 (right to an effective remedy) taken together with Article 3 by
Greece because of the deficiencies in the asylum procedure followed in the applicant’s
case;

A violation of Article 3 by Belgium both because of having exposed the applicant to
risks linked to the deficiencies in the asylum procedure in Greece and because of
having exposed him to detention and living conditions in Greece that were in breach of
Article 3;

A violation of Article 13 taken together with Article 3 by Belgium because of the lack of
an effective remedy against the applicant’s expulsion order (MRN, 2011).
European Convention on Human Rights
EU Charter of Fundamental Rights
Equivalent
Article 3
Article 4
Prohibition of torture. No one shall be Prohibition of torture and inhuman or
subjected to torture or to inhuman or degrading treatment or punishment. No one
degrading treatment or punishment
shall be subjected to torture or to inhuman or
degrading treatment or punishment.
Article 13
Right to an effective remedy. Everyone whose
rights and freedoms as set forth in this
Convention are violated shall have an
effective remedy before a national authority
notwithstanding that the violation has been
committed by persons acting in an official
capacity
Article 47
Right to an effective remedy and to a fair trial.
Everyone whose rights and freedoms
guaranteed by the law of the Union are
violated has the right to an effective remedy
before a tribunal in compliance with the
conditions laid down in this Article. Everyone
is entitled to a fair and public hearing within
a reasonable time by an independent and
impartial tribunal previously established by
law. Everyone shall have the possibility of
being advised, defended and represented.
Legal aid shall be made available to those
who lack sufficient resources in so far as such
aid is necessary to ensure effective access to
justice
As mentioned above, the ECHR found that Belgium and Greece had violated article 3 and 13 of
the European Convention on Human Rights, which deals with the prohibition of inhumane
and degrading treatment or punishment and the right to an effective remedy. Greece was
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found in violation of the convention due to detention conditions and deficits in Greece’s
asylum procedure, the lack of an effective remedy being one of them. In the case of Belgium
the country’s violation of the convention was that it had exposed M.S.S, the Afghan male, to
these inhuman conditions (ECHR, 2011). Moreover, the court also found that Belgium had
violated the convention by denying the applicant an effective remedy against his expulsion
order. Besides this ruling the ECHR has more than 960 cases pending that relate to the Dublin
II regulation, against Netherlands, Finland, Belgium, the United Kingdom and France. Most of
the cases concern expulsion to Greece. Additionally, the ECHR has ordered the temporary
suspension of transfers in 531 cases (Vogel, 2011).
3.3 Discussion
Now, a discussion of the implications of the ECHR ruling for EU asylum policy will be taken up.
This section will commence with an assessment and analysis of Home Affairs Commissioner
Cecilia Malmström’s public statement on the ECHR ruling. Next, the focus of the discussion
will shift to possible future implications on EU asylum policy. First, LI theory will be used to
discuss the consequences of the EU not abiding to international law and the battle between
economic and human rights values. Second, Neo-neofunctionalism will be applied for
reflections on the boomerang trend and the second hypothesis and what it can possibly say
about the future of EU asylum policy. Finally, a conclusion to the findings of the thesis will be
offered and consequently the thesis statement will be answered.
3.3.1 Statement of Cecilia Malmström, European Commissioner for Home Affairs
In the following an assessment and analysis of the Commissioner’s response to the ECHR
ruling will be given to show the response of the EU to the ruling.
Commissioner for Home Affairs, Cecilia Malmström, spoke on the day of the verdict saying:
“Today’s ruling by the European Court of Human Rights (ECHR) clearly shows the EU’s need to
urgently establish a Common European Asylum System and to support Member States in meeting
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their obligations to provide adequate international protection. The EU’s commitment to
continue its humanitarian tradition in providing shelter to those in need of international
protection can only be fulfilled if all its Member States contribute and take their responsibilities.”
(IEWY, 2011)
Malmström addresses the heart of the conflict. In order for a Common European Asylum
System to work at all, MS must live up to their obligations, otherwise it is simply not possible.
But the likelihood of all MS contributing and taking their responsibility is doubtful, especially
because the situation in Greece has escalated over the past 5 years. Already back in 2006 the
European Commission asked the Court of Justice of the European Union (CJEU) to examine
whether Greece was fulfilling its obligations concerning the reception of refugees (case C72/06). Subsequently, the MS have been aware of the problematic situation in Greece for
years, in particular, because it has also been subject to substantive media coverage 20.
However, there have been no signs of the MS stepping up and taking action. Thus the calling
upon MS to take action is most likely going to be without any real effect. LI theory of national
preference along with substantive bargaining explains why it is so hard for the MS to agree on
burden sharing and taking responsibility. MS are not interested in taking responsibility for the
mass influx of asylum seekers, because it is an economic burden, and it seems as though the
MS are doing their upmost to avoid dealing with the Greece crisis.
“I invite Greece to continue working to enhance the humanitarian situation of migrants and
asylum-seekers. The country has committed to carrying out an ambitious reform of its asylum
system and the European Commission is closely involved in the implementation of this crucial
reform. The European Commission is aware of the efforts already put in place by the Greek
authorities and will continue to support Greece’s actions to manage the unprecedented flows of
migrants and asylum seekers”. (IEWY, 2011)
Malmström mentions in the above that the Commission has continuously supported Greece’s
commitment to manage the flow of migrants and asylum seekers. But as it is stated in the
ECHR ruling, the conditions in Greece are so severe that it can no longer be assumed that
20
UN, ECRE and HRW as mentioned above in the section on the Situation in Greece
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Greece is capable of handling asylum seekers at all. Judge Rozakis (ECHR) supports the claim
that under the current circumstances the Greek authorities cannot deal with the present flow
of asylum seekers. Moreover, Rozaki states that it is evident that the EU’s asylum policy
including Dublin II does not reflect the present realities, or do justice to the disproportionate
burden that falls on the Greek immigration authorities (ECHR, 2011, 91). Based on the above
it can be argued that Commissioner Malmtröm’s perception of the situation in Greece is not in
line with the wording of the ECHR ruling, and the fact that the Greek asylum reform has been
postponed to the end of 2011 at the earliest (HRM, 2010) further underlines that the
Commission’s support has not made much of a difference and the UN still expresses great
concern with the situation (UNCHR, 2010). In the light of the boomerang trend discussed
above and the effects it has had on the Commissions ability to foster integration, it seems
unlikely that it will be able to make a big influence on the MS here.
“I invite the Member States and the European Parliament to work for a balanced compromise on
the Commission’s proposal to amend the current Dublin II Regulation. In this framework, an
emergency mechanism for suspending transfers in cases of particular pressure on the asylum
system would contribute to build more trust and genuine support between the Dublin partners.”
(IEWY Home Politics, 2011)
In the last part of Malmström’s response to the ECHR ruling, she urges the MS and the EU to
work for a balanced compromise. As we argued earlier, the substantive bargaining process
under the negotiation of the Procedures Directive proved very difficult. From a LI point of
view it can be argued that Malström’s calling for a balanced compromise can be hard to
achieve, because of the asymmetrical interdependence between the MS. As argued in the LI
analysis of the Procedures Directive, the northern MS’s bargaining power is still arguably
stronger than the southern MS’s. But perhaps the southern MS, especially Greece, are no
longer so inclined to reach an agreement, because the situation since the forming of Dublin II
has worsened to such a degree that Greece is now incapable of handling the migration flow.
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Louise Svenstrup
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3.3.2 Capabilities and Expectations?
As a result of the ECHR ruling it can no longer be assumed that EU member states respect the
fundamental rights of international law, which are encompassed in the preface to the Dublin
Regulation §12 and §2. This means that the MS can no longer be assumed to be safe
countries, as they do not necessarily adhere to the principle of non-refoulement and other
rights, e.g. access to an effective remedy, as is the case with Greece.
But what happens when the EU is no longer abiding by international law? If the EU fails to
rectify the situation and keeps undermining international law it risks damaging its reputation
severely. It is interesting in this case that the EU has marketed itself as an actor within the
scope of soft power (Smith, 2004). When the EU is not abiding by international law it
compromises the Union’s ability to use soft power tools in the international arena. This
quotation by Willy Brandt is interesting to consider in that connection: “When Europeans
began to recognise themselves and to extend the institutional reach of collective European
diplomacy into new and potentially sensitive areas, in doing so, they inevitably came up against
the ‘capability-expectations gap’’, (Hill, 1998). The ECHR ruling and the failure to abide by
international law vs. the EU’s role as a soft power actor can be seen as capability-expectations
gap. Because the EU on the one hand is voicing the importance to live up to democratic values
and international law and on the other hand the EU is failing to abide by international law
itself. By this Janus-faced behaviour the EU is an obvious target of critique. The EU puts itself
in an unfavourable situation, when it fails to live up to human rights and international law,
especially because it appears to be speaking with two voices. One being a voice, preaching the
importance of abiding by international law, the importance of democratic values and putting
humans rights first. The other voice in this instance can be characterised as a “silent voice”, a
voice that is speaking through the actions of the EU, contradicting the first voice. It is
interesting to note that the EU applies accepting the Geneva Convention as a condition, when
engaging in new trade agreements with 3rd countries. This particular aspect of the EU’s
conditionality principle becomes self-contradictory, when the EU fails to follow its own
pronouncements (Smith, 1997). Smith (1997) argues that the perceived inconsistency in the
EU’s application of conditionality could diminish its influence as argued above. In other
words, damaging its reputation by not adhering to international law and the contradictions it
brings with it proves to be damaging to the EU’s influence internationally.
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3.3.4 Economic vs. Human Rights Interests
When predicting a future development of EU Asylum Policy, on the basis of the above, one
obvious question emerges, will economic interests or human rights values win? LI theory
points to a possible answer to the above question. Moravcsik (2009, 70) argues that European
integration has mainly reflected concrete economic interests rather than European ideals.
This suggests that the answer lies in the first scenario, economic interest.
The preference for economic interests can help explain why countries, in this case Belgium,
are sending back asylum seekers to Greece all the while knowing that Greece is not living up
to the obligations laid out in the Dublin Regulation. It can be presumed, that Belgium cannot
have overlooked the situation in Greece as it has been subject to several reports from NGOs
e.g. Human Rights Watch report of 2008: “Stuck in a Revolving Door”. In addition, in April of
2007 (case C-72/06) the CJEC found that Greece failed to fulfil its obligation under the
Reception Directive (ECHR, 2011, 84). It can be argued that Belgium chose to overlook the
above, because it is beneficial for it to keep sending asylum seekers back to Greece, since they
would otherwise be granted asylum in Belgium and this can arguably prove to be a costly
affair both in terms of processing the asylum cases and maintaining a reasonable standard of
living for the asylum seekers. In accordance with LI theory, Belgium’s national preference was
then determined by economic factors, which explains why it knowingly compromised the
human rights of asylum seekers even though one can argue from an ethical point of view that
securing human rights should be prioritised instead of putting economical interests first.
The recent developments of France’s and Italy’s wish to change Schengen (Euronews, 2011) is
also in accordance with the above prediction. The EU asylum policy has long been a subject of
debate in France, where the flow of immigration has been growing rapidly in the course of the
last decade (Deubner, 2007). In the French public there has been a call for stricter
immigration laws and along with this a strong critique of the open borders that came along
with Schengen (Deubner, 2007). France, which in EU context has been a strong proponent of
further integration, is, when it comes to EU immigration and asylum policy, a proponent of
disintegration. France’s standpoint is in accordance with the above-mentioned preference for
putting economic interests first, because the mass flow of immigration creates a risk of
economic loss to the French state. Consequently, changing Schengen is a favourable solution
for France.
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In sum, both the analysis of Belgium’s and France’s preferences points in the direction of
economic interest prevailing over human rights, which underlines the boomerang trend by
exemplifying a MS wish for intergovernmental decision-making.
3.3.5 Reflections on the Boomerang Trend
The ECHR effectively establishes that Dublin II is no longer valid. As mentioned above, the
goal of the regulation is to prevent asylum shopping, but with the first country of asylum
principle being found in violation of human rights, if asylum seekers are sent back to Greece,
the foundation of the system the EU has set up for that purpose is demolished. It can be
argued that CEAS therefore collapses under the weight of the ruling, because with no option
to return an asylum seeker to the first country of entry, asylum seekers can chose any country
of their liking for their application. The full scope of this can only be understood completely in
the light of the Schengen agreement and the freedom of movement for individuals.
As stated above, the EU asylum policy was a spillover from Schengen and was needed to
secure the free movement of EU citizens. The first country of asylum principle is a
cornerstone in the protection of that right, because it helps limit freedom of movement to
citizens. Without it, asylum seekers are free to move around the EU area the same way as
citizens and that begs the question of whether the EU can keep its internal borders open at all.
France and Italy seem to believe that it is not an option in their recent suggestion to re-erect
national borders and dismantle Schengen. The consequences of dismantling Schengen would
be immense. If Schengen is dismantled, it will have grave repercussions in a great number of
policy areas, especially the SEM which is very dependent on open borders to facilitate
economic growth through the ease of moving goods between countries, keeping the EU labour
market flexible etc. If the functionality of SEM is heavily influenced or distorted, it is no longer
just a question of the foundation of CEAS crumbling, but the foundation of the entire EU
crumbling, because SEM is the centre of EU integration and is what has lead to integration in
many other policy area due to the spillover effect, if one follows the logic of neofunctionalism.
The SEM and economic cooperation has been deemed the rationale for the EU (Nugent, 2006)
and if that is threatened, the existence of the EU itself is brought into question.
With that being said, it should be noted that the dissolution of the EU is a rather unlikely
outcome. Neofunctionalism is well suited for explaining integrative outcomes, but it does not
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have much to say about future developments. Neo-neofunctionalism on the other hand, offers
various alternatives. As previously argued, the most likely outcomes for CEAS will be
spillover, spill-back or muddle-about. To continue the train of thought from the above
paragraph, the option of spill-back will be dealt with first. Spill-back equals disintegration and
is what happens when the MS decide to handle a crisis by pulling away from regional
cooperation and move decision-making back on the domestic level. If that is the solution, the
MS choose in the asylum policy decision cycle they are in, the asylum area will experience less
cooperation than it has so far. Whether this will have an effect on Schengen or not is difficult
for neo-neofunctionalism to predict, but Schmitter (2004) does argue that integration and
disintegration can happen simultaneously in different policy areas, making it possible for
Schengen not to be affected. Though, it is a very interdependent area, so it can be hard to
envisage how Schengen would look without CEAS. A possible solution could be further
integration and a “new” spillover from Schengen leading to a reformation of CEAS. In that
scenario one could imagine that the MS reach a compromise that will respond to the concerns
of southern MS like Greece on the pressures of the massive influx of refugees and their
request for burden sharing by transferring even more sovereignty in the area to the EU. That
could be done through the EU building and running refugee reception centres in the most
encumbered southern countries and making the decisions on applications and distribution of
approved asylum seekers to all the MS. That would be a large step forward in terms of
integration, but could be defended on the grounds that the Lisbon treaty relocates all third
pillar issues to pillar one, subjecting them to supranational decision-making. Though, as
previously mentioned, the Commission does not seem to be as strong in the area of asylum as
before and might have difficulties taking the lead in this area and promote further integration
(cultivated spillover). Another, perhaps more likely version of this scenario would be that the
EU would run reception centres, but not decide on applications, only receive them and
distribute the asylum seekers to the MS based on a model agreed on in the Council. An
argument for this being a possible scenario could be that the countries in Northern Europe,
benefitting from the current arrangements of first country of asylum, would agree to it based
on a concern to protect the Schengen agreement and thereby the SEM. Also, external
pressures, which is also something Schmitter (2004) advocates as important, from countries
and organisations outside the EU to adhere to international law, could also add to the
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willingness to pursue such a scenario to avoid the negative consequences of an
expectations/capability gap, as mentioned above. Muddling-about is the last option to be dealt
with and Schmitter suggests that MS can choose to do nothing and try to scrape through the
situation as best as possible with the instruments available. However, it seems like an unlikely
outcome, as CEAS is so paramount for the functioning of Schengen. It is more likely in a
situation where the EU can have a deadlock without it affecting other areas. Schmitter (2004)
would argue that the time before the SEA was a period of muddling-about for the MS, as they
could not agree on further integration, but they were not dependant on it and the EU could
still function. Therefore, the MS will most likely choose one of two contradicting options;
more or less integration. The development of the asylum policy, the boomerang trend, points
in the direction of disintegration and MS dealing with asylum on a domestic level, but the
desire to protect Schengen and the internal market points in the opposite direction, so there
are no clear indications on what the future will bring for EU asylum policy according to neoNeofunctionalism. Nonetheless, it is interesting to contemplate whether the asylum crisis is
big enough to foster a move from the priming cycle level to the transforming level and thereby
change the nature of the EU. Especially in the event of further pressures being added, such as
the abolition of Schengen becoming an imminent threat or Greece completely giving up on its
asylum responsibilities, thereby forcing the other MS to come up with a strategy to deal with
it.
As mentioned above, Cecilia Malmström, Commissioner of Home Affairs, suggests an option
that would allow a limited suspension of the return of asylum seekers to a country with a
particular burden in the area. It is much less drastic than any of the above, but would give MS
the opportunity to settle their differences in the asylum area and come up with a workable
solution, while still adhering to international law. The final outcome could still be
disintegration, but it would make it possible to, first of all, avoid a total and instant collapse of
CEAS and, second of all, solve the issues in the area without it affecting Schengen, even in the
circumstance of disintegration in the area of asylum.
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3.4 Conclusion
The development of CEAS happened because of a need for an asylum policy to secure full
functionality of Schengen and free movement of people under the SEM. In other words, it was
a functional spillover, though with elements of political spillover as well. Neofunctionalism
and Neo-neofunctionalism also play an important part in proving the first hypothesis:
The development of EU asylum policy has gone from intergovernmental decision-making to
supranational and backtracked to intergovernmental decision-making – a boomerang trend
On the basis of the theory it was argued that EU asylum policy in fact has gone from
intergovernmental decision-making to supranational and back to intergovernmental. In the
initial phase of policy development under the Maastricht treaty, where the issue was placed in
pillar three and working groups under the council conducted discussions on future
development, it was clearly intergovernmental. Under Amsterdam supranational decisionmaking was in the lead and culminated with the Commission gaining full right of initiative
over the policy and a range of issues being moved from pillar three to pillar one. The
directives mark a movement back towards intergovernmental decision-making, being
characterised by a restrictive interpretation of the Dublin Regulation, inconsistencies in
definitions of terms and country specific considerations in the Procedures Directive. The
Vienna, Tampere and Haag summits illustrate that same dynamic. The Commission initially
not having much influence on policy formation (Maastricht) slowly gaining more influence
(Amsterdam) only to loose it again as MS began focussing more on control issues than on
refugee rights (Tampere and Vienna to Haag) is another argument.
LI proves the hypothesis as well by showing how national preferences are determined by
economic and geopolitical interests instead of refugee rights as the consequences of the
massive influx of refugees start weighing on the MS. Substantive bargaining makes it even
more obvious through the role that asymmetrical interdependence play. There is a distinct
difference in national preference between northern and southern MS, but due to the fact that
northern MS have more bargaining power when negotiating because of their number, their
wealth and a smaller need for an agreement than the southern MS, they are able to
manipulate the agreement to their advantage. A good example is the Procedures Directive and
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Stine Bonnesen
Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
how it turned out with country specific considerations. The increased pressure from domestic
societal groups as they realized the full consequences of the large amount of refugees coming
to the EU marks a move back to intergovernmental decision-making, according to institutional
choice.
In short, all the theories point in the direction of a boomerang trend, proving the first
hypothesis.
The second hypothesis is addressed in the discussion:
Based on the above hypothesis being true, progress in EU asylum policy will come to a halt and
disintegration of the area is a likely future outcome
An assessment of the consequences of not adhering to international law, as was made clear in
the ECHR ruling, shows that it will most likely affect the EU’s influence in the international
arena, because the expectations-capabilities gap that it creates damages the EU’s reputation
and credibility with the mismatch between actions and stated objective. Speaking with two
voices does not empower the EU internationally, when it applies adhering to the Geneva
Convention as a condition for 3rd country relations without living up to the Convention itself.
The consequences of this dilemma might bring the MS to work for a solution of the asylum
crisis to re-establish its reputation as a soft power actor.
However, LI also suggests an option of the MS continuing their move towards
intergovernmental decision-making. Looking at Belgium’s choice of sending asylum seekers to
Greece despite its knowledge of the conditions there, indicates a preference for economic
interests. The same can be argued when it comes to France’s recent suggestion of dismantling
Schengen. Again, economic interests are more important than securing refugee rights. These
trends point towards disintegration of EU asylum policy.
Commissioner Cecilia Malmström’s response to the ECHR ruling further underlines the
diminishing role of the Commission as claimed by the boomerang trend. The final part of the
discussion contemplates whether the asylum crisis might eventually lead to a dissolution of
the EU, but it reaches the conclusion that it is rather unlikely, even when taking the
boomerang trend into consideration. Subsequently, it reflects on different possible outcomes
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
for the asylum policy, spillover, spill-back and muddle-about. Muddle-about and
disintegration are found to be improbable because of the importance asylum policy has for
Schengen, even with economic interests being more important than refugee rights, because
economic interests would be more threatened by a dismantling of Schengen. That leaves the
option of spillover, but even though different scenarios are discussed, it is not possible to
reach a clear conclusion on what will happen to the area of asylum policy in the EU. Cecilie
Malmström’s suggestion of making it possible to suspend returns under the Dublin Regulation
might prove to be a good way of giving the MS time to consider their options and possibly
amend the Dublin Regulation to solve the current crisis.
The discussion disproves the second hypothesis and together with the first hypothesis lead to
the answer of the thesis statement to be ambiguous. It is ambiguous in the sense that the
implications of the ECHR ruling depend completely on the future actions of the MS and the
direction they choose for EU asylum policy. What the thesis can do, is to offer different
suggestions on what the possible scenarios could be, as has been done.
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Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
4 Bibliography
Harvard System of Referencing
Books & Journal articles

Deubner, C., 2007. France: Contradictions and Imbalances. Zeff, E. and Pirro, E. B., ed.
2007. The European Union and the member states: influences, trends, and prospects.
Boulder, CO: Lynne Rienner Publishers.

Hill, C., 1998. Closing the Capability–Expectations Gap? Peterson, J. and Sjursen, H.,
eds. A Common Foreign Policy for Europe? Competing Perspectives on the CFSP. London,
Routledge.

Moravcsik, A., Schimmelfenning, F, 2009. Liberal Intergovernmentalism. Wiener, A.,
Diez, T., ed.. 2009. European Integration Theory. Oxford University Press. Chap 4

Nugent, N., 2006. The Government and Politics of the European Union. Palgrave
Macmillan.

Niemann, A., Schmitter, P. C., 2009. Neofunctionalism. Wiener, A, Diez, T., ed., 2009.
European Integration Theory. Oxford University Press. Chap 3

Schmitter, P. C., 2004. Neufunctionalism. Wiener, A, Diez, T, ed., 2004. European
Integration Theory. Oxford University Press. Chap 3

Smith, K. E., 1997. The use of political conditionality in the EU’s relations with third
countries: How effective?[online] Available at http://aei.pitt.edu/2729/ [Accessed 9
April 2011 ].
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Project Counsellor: Per Lunde
Louise Svenstrup

BA-thesis, May 2011
Smith, M. , 2004. Between Two Worlds? The European Union, the United States and
World Order. International Politics, Vol. 41, Iss. 1, pp. 95.

Van Krieken, P. J., 2004. The Consolidated. Asylum and Migration Acquis. T.M.C. Asser
Press.

Vevstad, V., 2006. Utvikling av et felles europeisk asylsystem. Jus og Politikk.
Conventions, Court rulings & Reports

Charter of Fundamental Rights of The European Union (2000/C 364/019, 2000.
[online] Available at [online] Available at
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/ENG_CONV.pdf [Accessed 20 April 2011].

Convention of the Protection of Human Rights and Fundamental Freedoms, 2010.
[online] Available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318B457-5C9014916D7A/0/ENG_CONV.pdf [Accessed 24 April 2011].

European Court of Human Rights (ECHR) 2011. CASE OF M.S.S. v. BELGIUM AND
GREECE . (Application no. 30696/09) [online] Available at
http://www.statewatch.org/news/2011/jan/echr-judgment-mss-v-belgiumgreece.pdf [Accessed 15 March 2011].

Office of the United Nations High Commissioner for Refugees. (UNHCR), 2009.
Observations on Greece as a country of asylum. [online] Available at
http://www.unhcr.no/Pdf/Position_countryinfo_2010/GREECE%20final281209.pdf
[Accessed 17 April 2011].
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Louise Svenstrup
Project Counsellor: Per Lunde
BA-thesis, May 2011
 Judgment of the Court (Fifth Chamber). 2007. Commission v Greece (Case C-72/06)
[online] Available at
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0219:EN:PDF
[Accessed 28 April 2011].
 UNCHR, 2010. UNHCR. Recommendations to Hungary for its EU Presidency- JanuaryJune 2011. [online] Available at http://www.unhcr.org/4d0645fb9.pdf [Accessed 30
April 2011]
Web-articles & Web-sites

European Council on Refugees and Exiles (ECRE) [online] Available at
http://www.ecre.org/ [Accessed 18 April 2011].

Euronews, 2011. Italy, France wants Schengen changes. [online] Available
athttp://www.euronews.net/2011/04/26/italy-france-want-schengen-changes/
[Accessed 30 April 2011].

Human Rights Watch (HRM), 2008 Stuck in a Revolving DoorIraqis and Other Asylum
Seekers and Migrants at the Greece/Turkey- Entrance to the European Union. 1-56432411-7. [online] Available at http://www.hrw.org/en/reports/2008/11/26/stuckrevolving-door-0 [Accessed 21 April 2011].

Human Rights Watch (HRW), 2010. Greece: Asylum Reform Delay Unacceptable.
[online] Available at:
http://www.unhcr.org/refworld/docid/4c9846281a.html [Accessed 1 May 2011]

IEWY Home » Politics, 2011. Statement of Cecilia Malmström, European Commissioner
for Home Affairs, following the judgement of the European Court of Human Rights on the
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Louise Svenstrup
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BA-thesis, May 2011
transfer of asylum seekers under the EU Dublin Regulation[Online] Available at:
http://www.iewy.com/14712-statement-of-cecilia-malmstrom-europeancommissioner-for-home-affairs-following-the-judgement-of-the-european-court-ofhuman-rights-on-the-transfer-of-asylum-seekers-under-the-eu-dublinregulation.html

Migrant’ rights network (MRN). 2011. Human Rights Court rules that asylum seekers
cannot be sent to Greece under Dublin Convention procedure. [online] Available at
http://www.migrantsrights.org.uk/news/2011/human-rights-court-rules-asylumseekers-cannot-be-sent-greece-under-dublin-convention-proc [Accessed 8 April
2011].

Nowak, M., 2010. UN expert urges EU to help ‘overwhelmed’ Greece deal with irregular
migrants. UN News Centre. [online] Available at
http://www.un.org/apps/news/story.asp?NewsID=36517&Cr=migrants&Cr1=&Kw1
=Greece&Kw2=refugee&Kw3 [Accessed 29 April 2011].

The United Nations Refugee Agency (UNHCR) [online] Available at www.UNHCR.org
[Accessed 19 April 2011 ].

Vevstad, V., 2011. [online] Available at http://www.vvevstad.com/
[ Accessed 30 April 2011 ].

Vogel, T., 2011. Expulsion of asylum seekers to Greece 'illegal'.EuropeanVoice. [online]
Available at http://www.europeanvoice.com/article/2011/january/expulsions-ofasylum-seekers-to-greece-illegal-/70019.aspx [ Accessed 10 April 2011 ].
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Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
5 Table of Abbreviations
CEAS
The Common European Asylum System
CJEU
Court of Justice of the European Union
EC
European Community
ECRE
European Council on Refugees and Exiles
ECHR
European Court of Human Rights
HRW
Human Rights Watch
JHA
Justice and Home Affairs
LI
Liberal Intergovernmentalism
MS
Member States
MRN
Migrant’ rights network
OECD
The Organisation for Economic Co-operation and Development
SEA
Single European Act
SEM
Single European Market
UN
The United Nations
UNCHR Office of the United Nations Refugee Agency
Page 49 of 50
Stine Bonnesen
Project Counsellor: Per Lunde
Louise Svenstrup
BA-thesis, May 2011
6 List of enclosures
1. Dublin Regulation
2. OECD Key short term indicators, Current account in % of GDP
3. Dublin Regulation outgoing requests
4. Dublin Regulation ingoing requests
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