The Principle of Solidarity and Fairness in Sharing Responsibility: More than Window Dressing?

• Published date: 01 July 2016
• Date: 01 July 2016
• Author: Esin Küçük
• DOI: http://doi.org/10.1111/eulj.12185

The Principle of Solidarity and Fairness in

Sharing Responsibility: More than Window

Dressing?

Esin Küçük*

Abstract: The lack of fairness in asylum responsibility sharing within the EU has been a

persistent problem demanding an urgent solution. This article seeks to inform the on-going

debate on European solidarity instruments from a constitutional law perspective by taking

the principle of solidarity and fair sharing of res ponsibility pursuant to Article 80 TFEU

as its reference point. The article sees this principle as an important mechanism in both the

enhancement of fairness in responsibility sharing and the protection of refugees. It argues

that the combined reading of Art icle 80 TFEU and the Charter of Fundament al Rights

provides a strong reason to doubt the constitutionality of the Dub lin III Regulation, and

any decision reforming the asylum regime sh ould take this view into account. Despite its

limited enforceability, Article80 TFEU can play an important role as an interpretationtool,

in particular in the assessment of the legality of solidarity instruments.

I Introduction

This article revisits the relation between the basic principles that shape the EU common

asylum policy (in particular the principle of solidarity and fairness in sharing of responsi-

bilities as enshrined in Article 80 TFEU) and the secondary law that implements the asy-

lum policy (especially the DublinIII Regulation and the TemporaryProtection Directive).

I argue that the present system of allocation of competences and responsibilities between

Member States on asylummanifestly infringes the principle of solidarity, because respon-

sibility is imposed on the EU countries through which the asylum seeker enters the area

without internal frontiers. Thus, responsibility is allocated by reference to the manifestly

inadequate criterion of geography, with no mechanisms being in place to ensure the real-

location of responsibi lities among Member States . To quote from Advocate Genera l

Sharpston’s lucid characterisation of the present rules in Cimade and GISTI,‘the whole

system of providingprotection for asylum seekersand refugees is predicatedon the burden

lying where it falls’.

1

On this a basis, I conclude that the key elements of Dublin III Regulation are uncon-

stitutional, as there are no functional mechanisms ensuring a proper allocation and real-

location of responsibilities among states, resulting in overloading the capacity of some

Member States, the inadeq uate protection of the rig hts of refugees, and eventu ally

* Lecturer in law, Lancaster University. I would like to thankAgustín José Menéndez, CarstenGerner-Beuerle,

Valsamis Mitsilegas, Alexander Türk, and theanonymous reviewers for theirvaluable comments on anearly

draft of thisarticle. All errors remain myown.

1

Opinionof Advocate GeneralSharpston on Case C-179/11,Cimade and GI STI v Ministre de l’Intérieur,d eliv-

ered on 15 May2012, EU:C:2012:298, para.83.

European LawJournal, Vol. 22, No. 4, July 2016, pp. 448–469.

© 2016 The Authors. EuropeanLaw Journal Published byJohn Wiley & Sons Ltd. 9600 Garsington Road,

Oxford, OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA

This is an openaccess article under the termsof the Creative Commons Attribution-NonCommercial-NoDerivs

License,which permits useand distributionin any medium, providedthe original work isproperly cited, theuse is

non-commercial and no modif‌ications or adaptations are mad e.

compromising free movement within the ‘area without internal frontiers’. Moreover, I

show why the Court of Justice o f the European Union (CJEU) sh ould not only be

prepared to invoke the principle of solidarity among Member States as a yardstick by

reference to which EU sec ondary law should be constr ued, but also to interpret th e

law in a less literal and more p urposive way, especiall y the Temporary Protection

Directive.

The article is structure d in three parts. Section II pro vides a brief account of the

historical context in which the EU asylum responsibility sharing system emerged and

evolved, as well as an overview of the workings of the Dublin III Regulation. Section

III makes the case for the European unconstitutionality of the Dublin III Regulation.

I consider whether Dublin III is in breach of the principle of solidarity, and whether

such a breach could resul t in the CJEU declaring part s of the Regulation invalid .

Section IV sets out the arguments favouring a different interpretation of the Temporary

Protection Directive to ensure a better f‌it with the principle of solidarity. Section V

concludes.

II Constitutional Framework, Rationale and Practice of the Common European

Asylum System

A The Close Relationship between the Suppression of Internal Frontiers and the

Establishment of a Common Asylum Policy

According to Article67 TFEU, the European Union is to framea common policy on asy-

lum, immigration and external borders based on solidarity between the Member States.

Article 80 TFEU requires the Union policies on border checks, asylum and immigration

and their implementation to be governed by the principle of solidarity and fair sharing

of responsibility.

A European asylum policy based on solidarity and fairness is not only a normative

requirement enshrined in the Treaties, but also a functional necessity arising from the

general objective of a single market without internal frontiers, one in which the free

movement of persons is re alised.

2

This is so because once internal borders between

EU Member States are removed, the deci sion of third country nationals to enter t he

EU, including those in need of international protecti on, becomes a common concern

to all Member States. Once inside the area without internal frontiers, individuals can

easily move from one country to another. In a literal sense, the decision to grant asylum

stops being a decision that affects the granting state only and becomes the common con-

cern of all states within the area without internal frontiers, because today’sbenef‌iciary of

asylum in Ruritania may eventually become tomorrow’s resident in Freedonia. Conse-

quently, the abolition of internal borders requires a coordinated approach to the control

of the external borders of the area without internal frontiers, including asylum. In that

sense, the common asylum regime is the stepchild of the abolishment of border controls

within the European Union, or to be more precise, of the Schengen area.

3

However, a

2

G. Noll, NegotiatingAsylum: TheEU Acquis, ExtraterritorialProtectionand the Common Marketof Def‌lection

(MartinusNijhoff Publishers,2000), 124(explaining thatthe underlying reasonfor the common asylumsystem

was the establishment of an InternalMarket where persons movedfreely).

3

The Schengen area encompasses all EU Member States except the UK and Ireland, which opted out, and

Bulgaria, Croatia, Cyprusand Romania, which are in the process of becoming members. Iceland, Norway,

Liechtensteinand Switzerland are alsopart of the Schengen area.

European Law Journal Volume 22

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