What changed

18.5.2022

ORDINARY LEGISLATIVE procedure

Mr Juan Fernando López Aguilar

Follow up to the European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund]

Chair

1. Rapporteur: Tomas TOBÉ (EPP / SE)

Committee on Civil Liberties, Justice and Home Affairs

2. Reference numbers: 2020/0279 (COD) / A9-0152/2023 / P9_TA(2024)0179

ASP 14G305

3. Date of adoption of the resolution: 10 April 2024

BRUSSELS

4. Legal basis: Article 78(2), point (e), and Article 79(2), points (a), (b) and (c) of the Treaty on the Functioning of the European Union

Subject: Opinion on the legal basis of the proposal for a Regulation of the European Parliament and the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund]

5. Competent Parliamentary Committee: Committee on Civil Liberties, Justice and Home Affairs (LIBE)

(COM(2020)0610 – C9-0309/2020 – 2020/0279(COD))

6. Commission's position: accepts all amendments.

Dear Mr Chair,

By letter dated 16 March 2022 you requested the Committee on Legal Affairs (JURI), pursuant to Rule 40(2) of the Rules of Procedure, to provide an opinion on the addition of Article 80 TFEU as a legal basis to the proposal for a Regulation of the European Parliament and the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund] (COM(2020)0610).

JURI considered the above question at its meeting of 17 May 2022.

I - Background

On 23 September 2020, the Commission adopted a proposal for a regulation on asylum and migration management, which is part of the New Pact on Migration and Asylum. The Commission proposal is based on Article 78(2)(e) and Article 79(2)(a), (b) and (c) TFEU.

LIBE is currently discussing the proposal in view of the adoption of a draft report. In its request, LIBE explains that following an amendment tabled which adds Article 80 TFEU as a legal basis to the legislative act (Amendment 171), “the Rapporteur and his negotiating team, while still in the process of preparing the position of the European Parliament and without prejudice to the final conclusion, have decided to move forward with a request for an opinion from the Legal Affairs Committee.” LIBE request also indicates that a number of amendments tabled in LIBE introduce a specific objective to ensure solidarity and fair sharing of responsibility between Member States (see for example Amendments 174, 184, 260 and 295).

In view of the above, LIBE therefore requests JURI to provide an opinion on the addition of Article 80 TFEU as a legal basis for the proposal.

It has to be noted that the question of whether Article 80 TFEU may serve as a legal basis has been raised in the past, in the context of the adoption of a Regulation of the European Parliament and of the Council establishing the Asylum and Migration Fund in 2014. The Council rejected the idea, considering that Article 80 TFEU does not constitute a legal basis within the meaning of EU law. The Commission supported the final text of the Regulation without the inclusion of Article 80 TFEU as a legal basis, but noted however that it was “without prejudice to its right of initiative with regard to the choice of legal bases, in particular in reference to the future use of Article 80 TFEU.”

On another occasion, Parliament took the view that Article 80 TFEU provided a legal basis ‘jointly’ with Articles 77 to 79 TFEU to implement the principle of solidarity in the areas covered by these Articles (Part Three, Title V, Chapter 2 TFEU).

II - The relevant Treaty Articles

Title V of the Treaty on the Functioning of the European Union entitled “Area of freedom, security and justice” includes the relevant provisions pertaining to Chapter 2 “Policies on border checks, asylum and immigration” that read as follows (our emphasis):

Article 78

(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.

Article 79

(ex Article 63, points 3 and 4, TEC)

1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas:

(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification;

(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;

(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;

(d) combating trafficking in persons, in particular women and children.

3. The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States.

4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.

5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

Article 80

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.

III – CJEU case law on the choice of legal basis

The Court of Justice has traditionally viewed the question of the appropriate legal basis as an issue of constitutional significance, guaranteeing compliance with the principle of conferred powers (Article 5 TEU) and determining the nature and scope of the Union’s competence.

According to settled case law of the Court of Justice, “the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure”. The choice of an incorrect legal basis may therefore justify the annulment of the act in question. In this context, an institution’s wish for more active participation in the adoption of a given measure, the circumstances in which a measure was adopted as well as the work that has been done in other aspects within the scope of action covered by a given measure are irrelevant for the identification of the correct legal basis.

If examination of a measure reveals that it pursues a twofold purpose or that it has a twofold component one of which is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component. Exceptionally, where a measure has several contemporaneous objectives or components, which are indissociably linked, without one being secondary and indirect in relation to the other(s), such a measure will have to be based on the various corresponding legal bases. This would however only be possible if the procedures laid down for the respective legal bases are not incompatible with each others and do not undermine the right of the European Parliament. Further, the measure chosen has to comply with the prescribed type of the legislative act when specified in the Treaty.

IV – Aim and content of the proposed measure

In its explanatory memorandum, the Commission points out the different aims of the proposal which include:

“[to] establish a common framework that contributes to the comprehensive approach to asylum and migration management based on the principles of integrated policy-making and of solidarity and fair sharing of responsibility” and

“[to] ensure sharing of responsibility through a new solidarity mechanism by putting in place a system to deliver solidarity on a continued basis in normal times and assist Member States with effective measures (...) to manage migration in practice where they are faced with migratory pressure”. This approach also includes a specific process for solidarity to be applied to arrivals following search and rescue operations.

As stated in recital 2, the proposal for a regulation sets out a common framework for the actions of the Union and of the Member States in the field of asylum and migration management policies, by elaborating on the principle of solidarity and fair sharing of responsibility in accordance with Article 80 of the TFEU. The proposal further establishes a solidarity mechanism that includes measures to promote a fair sharing of responsibility and a balance of effort between Member States also in the area of return (see recitals 16 and 27).

In recital 35 the proposal explains that it should be based on the principles underlying Regulation (EU) No 604/2013 of the European Parliament and of the Council while developing the principle of solidarity and fair sharing of responsibility as part of the common framework. To that end, a new solidarity mechanism should enable a strengthened preparedness of Member States to manage migration, to address situations where Member States are faced with migratory pressure and to facilitate regular solidarity support among Member States.

Recital 78 specifies that the aim of the proposal is “the establishment of criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person, and the establishment of a solidarity mechanism to support Member States in addressing a situation of migratory pressure”.

With regard to content, as provided for in its Article 1, “[i]n accordance with the principle of solidarity and fair sharing of responsibility, and with the objective of reinforcing mutual trust”, the proposal sets out a common framework for the management of asylum and migration in the Union (Part II), lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection (Part III) and establishes a mechanism for solidarity (Part IV).

Part II lists the components of the framework in general terms, such as international cooperation, visa policy, border management, the asylum acquis and return management. It also lays down the principle of integrated policy-making and the principle of solidarity and fair sharing of responsibility. Part II also provides for the establishment of migration management strategies by the Union and the Member States and sets up a mechanism aimed at improving the cooperation of third countries as regards readmission. It includes a specific Article on the principle of solidarity and fair sharing of responsibility (Article 5) which provides that “[i]n implementing their obligations, the Member States shall observe the principle of solidarity and fair sharing of responsibility and shall take into account the shared interest in the effective functioning of the Union’s asylum and migration management policies” and lists a number of measures that Member States have to take.

Part III of the proposal contains the provisions that replace the current Dublin acquis, i.e. provisions setting out criteria and mechanisms for determining the Member State responsible for examining an application for international protection.

Part IV creates mechanisms under which solidarity contributions are made for the benefit of a Member State under migratory pressure or subject to disembarkations following search and rescue operations.

Furthermore, Parts I and V set out the scope and definitions of the proposal and lay down a series of general provisions on, inter alia, data protection, the adoption of implementing and delegated acts and the evaluation of the proposal.

Part VI amends (1) the Long Term Residence Directive to enable beneficiaries of international protection to obtain long-term resident status after three years of legal and continuous residence and (2) the Regulation establishing the Asylum, Migration and Integration Fund in order to provide for financial incentives for relocation.

Part VII of the proposal sets out transitional and final provisions.

V – Analysis

The analysis provided in the present note is made only in reference to the Commission proposal as presented. In view of LIBE’s request to receive JURI’s opinion on the addition of Article 80 TFEU as a legal basis for the proposal, the present note should first consider the nature of Article 80 TFEU assess whether in itself it confers competence to adopt legislative acts.

The first sentence of Article 80 TFEU is drafted in a way implying that the policies set up in Part Three, Title V, Chapter 2 TFEU and their implementation should follow the principle of solidarity:

“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.”

The first sentence of Article 80 TFEU does not give a specific competence to the Union to adopt legislative measures but rather seems to specify how the competences already conferred on the Union in Chapter 2 (i.e. Articles 77 to 79 TFEU) should be exercised.

It sets out a "principle" (namely the "principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States"), according to which existing competences are to be "governed". According to the Legal Service, such principle, like those that govern the "use" of Union competences (such as the principles of subsidiarity and proportionality) should not be referred to in the citations of a legislative act as part of the "legal basis" but it should be instead addressed in the recitals of a legislative act.

The second sentence of Article 80 TFEU states that :

“Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.”

Article 80 TFEU, in its second sentence, makes it mandatory for the Union legislator (through the word “shall”) to include in legislation adopted on the basis of Articles 77, 78 and/or 79 (Part Three, Title V, Chapter 2 TFEU) appropriate measures to give effect to the principle of solidarity and fair sharing of responsibility, whenever that is necessary.

The second sentence of Article 80 TFEU does not give competence to adopt a legislative act on its sole basis but rather creates an obligation to include in that legislative act (adopted on the basis of Articles 77, 78 and/or 79 TFEU) appropriate measures that give effect to the principle if that is necessary; that by itself does not seem to require a reference to Article 80 TFEU in the citations in order for this obligation to be activated.

The Court of Justice has not expressly ruled on the use of Article 80 TFEU as a legal basis, but it can be concluded from a number of cases that an act adopted in the field of border checks, asylum and immigration should in any case be in accordance with Article 80 TFEU, even though that article is not cited as a legal basis.

The proposal may therefore be amended to insert (additional) appropriate measures giving effect to the principle of solidarity and fair sharing of responsibility, without the need for Article 80 TFEU to be added to the legal basis. It would, however, be appropriate to explain those measures in a recital.

VI - Conclusion and recommendation

Acts adopted under Articles 77 to 79 TFEU shall in any case be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States and shall, whenever necessary, contain appropriate measures to give effect to this principle, as required by Article 80 TFEU.

At its meeting of 17 May 2022, the Committee on Legal Affairs accordingly decided by 19 votes in favour, 1 against and 1 abstention, to recommend to the Committee on Civil Liberties, Justice and Home Affairs the addition of Article 80 TFEU as a legal basis for the Commission proposal for a Regulation of the European Parliament and the Council on asylum and migration management is not required, however it is not precluded.

Yours sincerely,

Adrián Vázquez Lázara