EU TFEU: Solidarity clause: Borders, asylum and immigration

The EU Treaty of Lisbon evokes the principle of solidarity and fair sharing of responsibility with regard to the policies on border checks, asylum and immigration.

The countries managing the eastern and southern external borders of the European Union feel the pressures on a daily basis, but failures at the borders have consequences for the whole Union.


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Article 80 of the Treaty on the Functioning of the European Union (TFEU) evokes the principle of solidarity between member states in the policies concerning border checks, asylum and immigration. 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; page 102), 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 80 TFEU

The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.

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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 the new Article 63b TFEU (ToL), which became Article 80 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 61, 209).

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According to the tables of equivalences in the Treaty of Lisbon and the Council’s consolidated version and under the Article number, there is no corresponding Article in the current Treaty establishing the European Community (TEC).

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The European Convention proposed the following Article III-169 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):

Article III-169 Draft Constitution

The policies of the Union set out in this Section and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the acts of the Union adopted pursuant to this Section shall contain appropriate measures to give effect to this principle.

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Article III-268 of the Treaty establishing a Constitution for Europe replaced ‘acts of the Union’ by ‘Union acts’, but made no other change (OJ 16.12.2004 C 310/116).

Between the Constitutional Treaty and the Treaty of Lisbon, only the general replacement of ‘Section’ by ‘Chapter’ has taken place.

In essence, the solidarity clause is the child of the European Convention, although it has been shifted between two IGC foster homes.

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Let us check our conclusions this far against ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO). The comparative table offers the following quick view of Article 80 TFEU, before renumbering Article 63b ToL TFEU:

“Draws on Article 63(2)(b) TEC, but extends the principles of burden sharing and solidarity between Member States to all EU measures based on Chapter 2.”

The useful FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

This gives us cause to look at the current Article 63, point 2b, TEC. In the latest consolidated version of the existing treaties, we find the following words (OJ 29.12.2006 C 321 E/67):

“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:
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2. measures on refugees and displaced persons within the following areas:
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(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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Admittedly, the FCO can point to the germ of the idea of burden sharing at the treaty level, although the link is rather weak.

On the other hand, it is just as easy to understand that the drafters of the TFEU have indicated no corresponding TEC provision. In the same vein, the UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; page 37) concluded:

“Article 63b (Constitution Article III-268) requires that the principle of solidarity and the “fair sharing of responsibility” be observed in this area. This is new and has no equivalent in Title IV TEC.”

The Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

Likewise, Steve Peers commented in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 63b ToL, Article 80 TFEU:

“This provision is new as compared to the current Treaty.”

This and other Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

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 concluded on page 135:

“6.121. New Article 80 provides that the Union’s policies in this Chapter and their implementation “shall be governed by the principle of solidarity and fair sharing of responsibility”. This appears to strengthen the existing Article 63(2)(b) provision which provides for measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.”

The report is accessible at:

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

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Regardless of the novelty or not of the treaty level provision, in the real world, however, the member states managing the EU’s external borders bear the brunt of monitoring the borders and carrying out the necessary border checks, handling applications for asylum and stemming the flood of illegal immigrants and combating the trafficking in human beings.

Therefore, especially for the member states with the eastern and southern borders of the European Union, the questions of solidarity and a fair sharing of burdens are evoked on a daily basis. In the absence of internal border checks, immigrants – legal and illegal – can move freely once inside the EU. Failures at the external borders or unilateral moves like mass naturalisations have consequences for the rest of the European Union. There are causes for concerted action and the sharing of burdens.

As the UK House of Lords European Union Committee stated on the proposed solidarity principle in its report ‘FRONTEX: the EU external borders agency’ (published 5 March 2008, HL Paper 60, page 37):

“We do not think the Member States need wait until 1 January 2009, when it is planned that this provision will come into force, before giving effect to its principles.”

The FRONTEX report is available at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf


Ralf Grahn