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The border spell : Dublin arrangements or bilateral agreements ? Reflections on the cooperation between Germany and Greece / Spain in the context of control at the German-Austrian border

Publié le mardi 26 février 2019 , mis à jour le mardi 26 février 2019

Source : EU Immigration and Asylum Law and Policy

Date : 26 février 2019

Auteur : Constantin Hruschka,

Extraits :

«  Introduction

During the summer of 2018, a fierce debate on how to counter “secondary movements” (to Germany) of potential asylum seekers took place inside the German government. The discussions nearly put an end to the parliamentary group between the CDU and the (Bavarian) CSU, which had existed with a very short interruption in 1976 since 1949. The CSU, in particular the Federal Minister of the Interior (MoI), Horst Seehofer, opted for full controls at the German-Austrian border and the refusal of entry for all persons that are not in the possession of valid documents for an entry to Germany. The MoI claimed that the German constitution as well as immigration and asylum law would require/allow for a refusal of entry and push-backs of asylum seekers due to their entry from a safe third country (Austria). In this regard, German law should be applicable and so no Dublin procedure would be necessary. The CDU and in particular Chancellor Angela Merkel preferred a “European solution” in cooperation with the other Member States based on agreements under Article 36 Dublin III Regulation. This provision allows for Administrative Arrangements only for the purpose of “the exchange of liaison officers” and the “simplification of the procedures and shortening of the time limits relating to transmission and the examination of requests to take charge of or take back applicants.”

As a compromise it was decided to extend the “fiction of non-entry” (Fiktion der Nichteinreise) that applies to the (non-Schengen) transit zones of international airports to this border area. This fiction of non-entry should allow for controls on German soil and the refusal of entry would (legally speaking) push the person that had already reached German soil outside the territory into a perceived no man’s land between the controlling officer and the Austrian border. This effect might be called a “border spell” as the persons – unlike in the non-Schengen zone of an international airport under Annex VI of the Schengen Borders Code – have already legally and physically crossed the border between the two states and had previously already entered the Schengen territory (as Austria is also a Schengen Member State). According to its construction the zone that lies between the controlling officer and the physical Austrian border would be transformed by the refusal of entry into a non-Schengen territory and an EU Law free zone, where German national law and not the Schengen Border Code (SBC) or the Dublin III Regulation would be applicable.

Administrative Arrangements with Greece and Spain

Germany subsequently concluded Administrative Arrangements with Portugal (under Article 36 Dublin III Regulation), Greece and Spain. The latter two Administrative Arrangements contain the agreed procedure in the event that a person is refused entry on the occasion of a check at the German-Austrian border, knowing however that they are not applicable to unaccompanied minors. The conditions for the applicability comprise the refusal of entry, the submission of an application for international protection and a Eurodac Category 1 hit (for an “asylum application”) from Greece/Spain (No. 1 of both Administrative Arrangements – i.e. its first provision). If such a case occurs, the Greek/Spanish authorities will be notified, stating the Eurodac number, photograph, itinerary data and place of apprehension. For this notification the Annex to the Arrangements contains a form (No. 2). The “implementation of the refusal of entry” (i.e. the actual transfer of the person) shall be initiated within 48 hours “after the person has been apprehended at the internal border” (No. 3).

In the German-Greek agreement it is furthermore stated that the Greek side retains a possibility to object the transfer within six hours if it demonstrates why the conditions set out in No. 1 are not met. If the Greek side shows within seven days that the person has been wrongly transferred, Germany undertakes to readmit the person already transferred (No. 4). There is no such time limit in the German-Spanish agreement. No. 5 designates the National Coordination Unit for Border Controls, Migration and Asylum in Athens/the General Commissariat for Aliens and Border (Spain) and the Federal Police Headquarters in Munich are responsible for the implementation of the Arrangements. Germany undertakes to bear all costs associated with the transfers (No. 6). No. 15 of the German-Greek agreement contains the beginning and possibilities for unilateral termination of the Arrangement. It will end at the latest when the reform of the Common European Asylum System (CEAS) enters into force (No. 15 in fine). No. 7 of the German-Spanish agreement does also contain the start date and the scenarios for amending or ending the Arrangement. There is no reference to the CEAS reform in this document.

The first parts of the Arrangements between Germany and Greece/Spain allow for a procedure that is different from the procedure foreseen by the Dublin III Regulation. The agreed approach goes way beyond the simplification of procedures and the shortening of time limits and is therefore not compatible with the scope and purpose of Arrangements under Article 36 Dublin III Regulation. Therefore, the first parts of the Arrangements cannot stand as agreements under this provision. If EU Law was applicable, both agreements would alter the Dublin rules and violate EU law.

The agreement with Greece contains additional parts (Part 2 (Nos. 7-12) and Part 3 (Nos. 13-15)) that are not relevant as such to the topic of this blog. Part 2 was setting out a solution for pending Dublin family reunification procedures where the persons would travel from Greece to Germany. Timelines and procedures were clarified with a two-fold purpose : 1) Clearing the backlog by the end of 2018 and 2) (re-)starting the regular cooperation within the Dublin procedure for new family reunion cases. The final provisions (Part 3) describe the specific administrative cooperation, including the possibility of exchanging liaison officers (No. 13) and the establishment of a Dispute Settlement Committee (No. 14).

The provisions contained in the two parts on family reunion (Part 2) and general cooperation (Part 3) would generally be in line with the scope and purpose of Article 36 Dublin III Regulation. If the consultation and notification procedure with the EU Commission is initiated as foreseen in Article 36(3)-(5) Dublin III Regulation is followed, these parts may serve as a model for future cooperation between Greece and Germany. Such agreements exist inter alia between Germany and Austria and – concluded in September 2018 – between Germany and Portugal.

Outside the scope of EU Law ?

In a letter of 20 November 2018 to the President of the German Bundestag (Wolfgang Schäuble) MoI Seehofer argued that the latter two Arrangements are purely bilateral and therefore not falling within the scope of Article 23(2) Basic Law, which provides for full and as early as possible information of the Parliament in “matters concerning the European Union.” “Looking at all circumstances” the Arrangements would have “no close relation to the law of the European Union." (...)

This view presupposes a “non-Schengen zone” created by the border spell within the Schengen area, where EU law is not applicable. Consequently, such controls would be conducted under national law and the Arrangements could apply without being in conformity with EU law. This means that there would need to be an EU law free zone in which neither the Schengen Borders Code , nor the Common European Asylum System (including the Dublin III Regulation) nor the Returns Directive are applicable. This view, which was also put forward in a blogpost on this matter, lacks a legal basis as EU law is applicable to all matters concerning asylum seekers that have reached a border or a transit zone. Consequently, the secondary legislative acts adopted under this Chapter are fully applicable (ratione temporis, personarum, materiae and loci) to interceptions at the Austrian-German border.

National rules have therefore to follow and comply with EU law. Looking at the principle of precedence of EU law it could not (to put it in the words of the CJEU in Costa/ENEL) “be overridden by domestic legal provisions, however framed”. Provisions and agreements not complying with EU law are inapplicable and need – even if they have been adopted subsequently – to be set aside in order to guarantee that they have no legal effect (see e.g. CJEU, Simmenthal II, para. 14pp).

(...)

As the procedure foreseen in the two Arrangements deviates from the above mentioned rules, the agreements are violating EU law. Consequently, the Arrangements need to be set aside and there is an obligation for authorities and courts to secure that there is not “any legal effect” of the Arrangements that is not in line with the Dublin rules.

Transforming the Arrangements into conformity with EU Law ?

The Arrangements could therefore only take effect if it was possible to apply or interpret them in accordance with EU law. The only possibility not to conduct a Dublin procedure is to apply the so-called sovereignty clause (Article 17 Dublin III Regulation) and to conduct a national asylum procedure (see CJEU, Fathi of October 2018). In this national asylum procedure, a transfer to a safe third country remains possible (see CJEU, Mirza), but a transfer to another Member State violates EU law if no Dublin procedure is conducted (see mutatis mutandis CJEU, Hassan). The binding time limits (see CJEU, Mengesteab and Shiri) may be shortened but not altered to a by default acceptance on notification by Arrangements under Article 36 Dublin III Regulation. On a general level, the Dublin procedure does not leave room for exemptions from the general procedural rules (see e.g. CJEU, Hassan) and appeals procedures (see e.g. CJEU, M.A. and others). The ECtHR has made it clear that the lack of such remedy may constitute a violation of Article 13 in conjunction with Article 3 ECHR (see M.S.S. v. Belgium and Greece). The full assessment of the responsibility of another Member State has to be conducted before a request is lodged to such a Member State (see CJEU, Ghezelbash and Karim) that may be followed by a decision and a transfer. Moreover, before a transfer is carried out, a full and individual assessment of potential non-refoulement obligations has to be conducted (see e.g. CJEU, C.K. and others).

The same is true for border controls and returns within the Schengen area as the CJEU has confirmed inter alia in the cases Affum and A. This applicability of European Law does not change during periods where under exceptional circumstances internal border controls have been reinstated. Already the fact that the CJEU accepted the preliminary reference in the case Arib and others, as well as the Opinion of the AG Szpunar in this case, confirm this applicability. Moreover, as these border controls have been conducted for more than three years now, they lack – on a more general level – a legal basis as such, as the maximum period for such reinstated internal border controls is two years (see Articles 25pp SBC). (...)

Conclusions

The Arrangements are unlawful as they foresee procedures that are incompatible with the Dublin rules. Therefore, they cannot be applied. Moreover, using the “border spell” as a trick to suspend the practical applicability of procedural rights and to circumvent non-refoulement obligations is not a new idea in the European asylum policy (see e.g. Frei/Hruschka on this blog). However, the application of such constructions within the Schengen area may actually do more than just suspending/circumventing the Dublin rules : the enacting of such procedures presupposes the existence of (quasi) permanent border controls. Such controls are not only violating the main principle of the Schengen acquis – the free movement within the Schengen area – but are also, as underlined by the Civil Liberties Committee of the European Parliament in the context of the current reform, “illegal” and a “misuse” of the system. The easiest way to avoid further confusion would be to use the unilateral possibility to discontinue the application foreseen in both agreements. In the meantime, authorities and courts are called upon to prevent “any legal effect” of these Arrangements. Any other solution would be incompatible with EU Law. »

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