Micro-Harmonisation of The Fundamental Right to an Effective Judicial Remedy in the Proposed Return Directive and Beyond: a Dangerous Path?

• Author: Elise Muir - Caterina Molinari
• Profession: Head of the Institute for European Law of the KU Leuven and Visiting Professor at the College of Europe - Doctoral researcher at the Institute for European Law of the KU Leuven and Doctoral Fellow at the Research Foundation, Flanders (FWO)
• Pages: 157-172

157

12. MICRO-HARMONISATION

OF THE FUNDAMENTAL RIGHT

TO AN EFFECTIVE JUDICIAL

REMEDY IN THE PROPOSED

RETURN DIRECTIVE AND

BEYOND: A DANGEROUS PATH?

Elise Muir and Caterina Molinari

1. Introduction

Title V of the Treaty on the functioning of the European Union

(‘TFEU’) opens with the following statement: “the Union shall

constitute an area of freedom security and justice with respect for

fundamental rights and the dierent legal systems and traditions

of the Member States.” is armation, contained in art. 67 TFEU

sets the Union’s shared competence in the Area of freedom secu-

rity and justice (‘AFSJ’) on a path of caution, immediately high-

lighting two features of the eld: (i) its far reaching fundamental

rights implications; and (ii) its potential for conicts with national

legal system.

is Chapter turns the spotlight on a regulatory technique that

amplies both features, namely detailed (or ‘micro’-)harmonisa-

Table of Contents

158 PART III - Irregular and Regular Immigration

tion of standards of judicial protection at the EU level. Micro-har-

monisation of this kind can be limited to minimum standards, or

go as far as to impose maximum standards of protection. It is a

characteristic of several EU measures the asylum and migration

elds of the AFSJ eld and it culminates in the surprising level of

procedural detail of the proposed recast of the Return Directive

(Commission 2018 – ‘Proposed Return Directive’).

e following analysis will explore and problematise the con-

sequences of the use of this regulatory technique to shape the legal

regime for the return of irregular migrants. e 1999 Tampere

Programme stipulated the goal for the EU to develop “common

policies on asylum and immigration” with particular focus on the

management of migration ows and “illegal immigration”. e

Chapter will identify examples of micro-harmonisation of rules

of judicial procedure in the Proposed Return Directive and other

instruments in the area of migration and asylum, and then explore

its implications for fundamental rights and the legal systems of the

member states.

2. Micro-Harmonisation of Rules on Judicial Protection in

The Proposed Return Directive: Examples

As mentioned, the micro-harmonisation of standards of judicial

protection reaches its apex in the Proposed Return Directive,

which contains several examples not only of minimum, but also

maximum standards of judicial protection. e most striking pro-

visions are found in Chapter III, entitled “Judicial Safeguards’’ and,

more particularly, in its Art. 16.

First, Art. 16(1) starts by establishing a minimum standard

of protection, namely the requirement that an eective remedy

against return decisions be oered before a judicial, rather than

administrative, authority. However, it immediately goes further, by

limiting the number of levels of judicial review to no more than

one for rejected applicants for international protection.