EU TFEU: Common asylum policy

The EU Treaty of Lisbon brings the new objective of a common asylum policy and clearer treaty provisions.


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Article 78 of the Treaty on the Functioning of the European Union (TFEU), deals with the development of the EU’s common asylum policy. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 100–101), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 2 ‘Policies on border checks, asylum and immigration’

Article 78 TFEU
(ex Articles 63, points 1 and 2, and 64(2) TEC)

1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;

(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;

(c) a common system of temporary protection for displaced persons in the event of a massive inflow;

(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;

(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;

(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

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In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of Article 63 TFEU (ToL), which became Article 78 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58–60).

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The current Article 63, points 1 and 2, and Article 64(2) TEC, to be replaced, are found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/67–68):

Article 63, points 1 and 2, TEC

The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas:

(a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States;

(b) minimum standards on the reception of asylum seekers in Member States;

(c) minimum standards with respect to the qualification of nationals of third countries as refugees;

(d) minimum standards on procedures in Member States for granting or withdrawing refugee status;

2. measures on refugees and displaced persons within the following areas:

(a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection;

(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;

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Article 64(2) TEC

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2. In the event of one or more Member States being confronted with an emergency situation characterised by a sudden inflow of nationals of third countries and without prejudice to paragraph 1, the Council may, acting by qualified majority on a proposal from the Commission, adopt provisional measures of a duration not exceeding six months for the benefit of the Member States concerned.

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Having seen the current treaty base (‘de lege lata’) concerning asylum, we turn to the stages of the treaty reform process leading up to the Treaty of Lisbon.

First, the European Convention, which proposed the following Article III-167 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58–59):

Article III-167 Draft Constitution

1. The Union shall develop a common policy on asylum and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties.

2. For this purpose, European laws or framework laws shall lay down measures for a common European asylum system comprising:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;

(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;

(c) a common system of temporary protection for displaced persons in the event of a massive inflow;

(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;

(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;

(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council of Ministers, on a proposal from the Commission, may adopt European regulations or decisions comprising provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

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In Article III-266 of the Treaty establishing a Constitution for Europe, the IGC 2004 agreed on a few cosmetic changes, like adding the words ‘subsidiary protection’ (concerning protection on humanitarian grounds) to the first paragraph and referring to ‘the purposes of paragraph 1’ in the second paragraph, but there was no substantial change to the Convention’s draft text (OJ 16.12.2004 C 310/115–116).

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In turn, the IGC 2007 took over the wording of the Constitutional Treaty unchanged, save for retaining the present, more primitive system to name and distinguish legal acts.

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Thus, the Treaty of Lisbon introduces the reform proposed by the European Convention; in a nutshell: the objective of a common asylum policy instead of mere minimum standards.

The ordinary legislative procedure (co-decision) is expressed in a less convoluted way than at present, when Article 63 TEC refers to Article 67 TEC, where the co-decision procedure (Article 251 TEC) as regards asylum measures was introduced in paragraph 5 as a derogation from the initial five year period requiring unanimity in the Council according to paragraph 1.

If the solidarity clause is evoked, the European Parliament is at least heard.

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The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed ‘Borders, asylum, immigration and visas’ on pages 133 to 137. The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

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Among British general textbooks on EU Law, Paul Craig and Gráinne de Búrca: EU Law – Texts, Cases, and Materials (4th Edition, Oxford University Press, 2007) is welcome because it offers a distinct Chapter 7 on the area of freedom, security, and justice (page 229 to 267).

In my opinion, a satisfactory understanding of EU dynamics requires more than general principles, judicial review and the common market plus competition law. The common foreign and security policy, including the common security and defence policy, and the area of freedom, security and justice as well as the other EC (EU) policies would require a fair treatment in general course-books (not only specialist treatises), possibly in separate volumes on institutional and substantive law (and politics). Naturally, the Treaty of Lisbon offers another option: an approach based on the partly new division between the reformed TEU and the TFEU, but suitably modified to take account of the interdependence of the treaties.


Ralf Grahn


Consolidated Lisbon Treaty and other materials:

If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:

http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html


In addition, two ‘private’ annotated and consolidated versions including the Treaty of Lisbon amendments can be pointed out.

Peadar ó Broin, of the Institute of International and European Affairs (Dublin), has edited a consolidated and annotated version of the EU treaties as amended by the Treaty of Lisbon. The highlighted IIEA shows the differences between different stages. It is available through the web page of the European Policy Institutes Netword (EPIN):

http://www.epin.org/new/files/AnnotatedTreaties.pdf


Jens-Peter Bonde has issued a ‘Consolidated Reader-Friendly Edition’ of the TEU and the TFEU as amended by the Treaty of Lisbon. There are remarks about changes are in the margin and symbols are used to show amendments. The consolidation is available at:

http://www.j.dk/exp/images/bondes/Consolidated_LISBON_TREATY_3.pdf

The Irish Referendum Commission is gathering speed in its campaign to inform the public ahead of the 12 June 2008 Lisbon Treaty referendum. At this point in time it is possible to find information about the essential treaty changes boiled down to a few pages for the busy reader:

http://www.lisbontreaty2008.ie