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

AuthorElise Muir - Caterina Molinari
ProfessionHead 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)
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.

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