Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers' Sanctions with EU Member States' Obligations to Provide International Protection to Refugees

2008 ◽  
Vol 10 (3) ◽  
pp. 315-364 ◽  
Author(s):  
Violeta Moreno Lax
Keyword(s):  
Geneva Convention ◽  
Eu Law ◽  
International Protection ◽  
Eu Member States ◽  
Common European Asylum System ◽  
The One ◽  
Teleological Interpretation ◽  
Physical Access ◽  
The Eu ◽  
Special Protection

AbstractWhereas the EU is developing a highly protective Common European Asylum System in purported compliance with the Geneva Convention, it is also displaying growing reluctance to provide unhindered access to it to those in need. The question of physical access to protection is ambiguously dealt with within EU law. On the one hand, it appears that entry to the Schengen zone has been designed disregarding refugees' entitlement 'to special protection'. Prior to admission, refugees seem to have been assimilated to the broader class of (potentially illegal) immigrants and thus required to submit to general immigration conditions, including visa. On the other hand, some isolated EU law rules give the impression that refugees are to be exonerated from normal admittance requirements.This article intends to show how, 'in the light of present day conditions,' a contextual, dynamic and teleological interpretation of Articles 31 and 33 of the Geneva Convention as well as of Articles 3 ECHR and 2(2) of Protocol 4 ECHR require that the second set of EU rules be appropriately furthered.

scholarly journals EU–UK institutional arrangements and Brexit: a view from Switzerland

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Yuliya Kaspiarovich
Keyword(s):  
Trade Agreement ◽  
Institutional Arrangements ◽  
Eu Law ◽  
The European Union ◽  
Cooperation Agreement ◽  
Eu Member States ◽  
Close Relationship ◽  
The One ◽  
The Uk ◽  
The Eu

In 1972 the UK signed an accession treaty with the EU while Switzerland and the EU concluded a free trade agreement. Nowadays, both countries have a very close relationship with the EU and are not (or not anymore) EU Member States. This article aims to analyse two complex legal paths taken by countries able but not willing (or no longer willing) to be part of the EU through institutional arrangements they have already negotiated or are currently negotiating with the EU. On the one hand, the UK was part of the EU legal order and is now extracting itself from the realm of EU law while switching to relations with the EU based on international law. On the other hand, Switzerland has built its relations with the EU on numerous bilateral agreements based on EU law without establishing a homogeneous institutional mechanism, which the EU has been insistently demanding since 2013. These two situations are paradoxically similar as for both of them the design of institutional arrangements depends on the degree of integration with/extraction from EU law. A comparison between the EU–UK withdrawal agreement, the EU–UK Trade and Cooperation Agreement (TCA) and the EU–Switzerland draft institutional agreement, as proposed in this article, confirms that the degree of institutional flexibility that the EU is able to offer to a third country with which it concludes an agreement is dependent on whether that agreement is based on EU law, and in particular, EU internal market law. This article argues that depending on the nature of law the agreement is based on, from an EU perspective variations in the role of Court of Justice of the European Union (CJEU) and/or of an arbitral tribunal may make sense, but this is not the case when one takes an outside perspective.

scholarly journals From Persecution to Management of Populations: Governmentality and the Common European Asylum System

Politik ◽  
2011 ◽  
Vol 14 (4) ◽  
Author(s):  
Elspeth Guild
Keyword(s):  
Geneva Convention ◽  
The Other ◽  
Underlying Structure ◽  
European Union Law ◽  
Refugee Protection ◽  
Common European Asylum System ◽  
The Status ◽  
The Common ◽  
The One ◽  
The Eu

Refugee protection has long been an issue of great moral and legal importance among the countries in Eu- rope. European states sent representatives to participate in the drafting of the UN Convention relating to the status of refugees 1951 together with its 1967 protocol – the international commitment to refugee protection and were among the first signatories. They have also been strong supporters of the UN Agency established as guardians of the Geneva Convention – the United Nations High Commission for Refugees (UNHCR) and participate as members of the UNHCR’s Executive Committee. However, these same states, when adopting legislation on refugee protection in European Union law appear Janus faced. On the one hand, statements of commitment to refugee protection are plentiful, on the other, mechanisms adopted aim to exclude the refugee even from being heard. In this article I will examine this contradiction using the concept of governmentality as developed by Michel Foucault. Deploying the three techniques of governmentality which Foucault developed most – sovereignty, discipline and biopolitics, I seek to dissect the asylum protection system the EU is developing and make visible the underlying structure of authority and power. 

scholarly journals The impact of COVID-19 on households´ income in the EU

2021 ◽  
Author(s):  
Vanda Almeida ◽  
Salvador Barrios ◽  
Michael Christl ◽  
Silvia De Poli ◽  
Alberto Tumino ◽  
...  
Keyword(s):  
Fiscal Policy ◽  
Disposable Income ◽  
Income Loss ◽  
Eu Member States ◽  
Policy Interventions ◽  
Discretionary Fiscal Policy ◽  
Policy Measures ◽  
The One ◽  
The Impact ◽  
The Eu

AbstractThis analysis makes use of economic forecasts for 2020 issued by the European Commission in Autumn 2019 and Spring 2020, and of a counterfactual under a no-policy change assumption, to analyse the impact of the COVID-19 crisis on EU households´ income. Additionally, our analysis assesses the cushioning effect of discretionary fiscal policy measures taken by the EU Member States. We find that the COVID-19 pandemic is likely to affect significantly households’ disposable income in the EU, with lower income households being more severely hit. However, our results show that due to policy intervention, the impact of the crisis is expected to be similar to the one experienced during the 2008–2009 financial crisis. In detail, our results indicate that discretionary fiscal policy measures will play a significant cushioning role, reducing the size of the income loss (from −9.3% to −4.3% for the average equivalised disposable income), its regressivity and mitigating the poverty impact of the pandemic. We conclude that policy interventions are therefore instrumental in cushioning against the impact of the crisis on inequality and poverty.

scholarly journals Territoriality Beyond the State: The EU’s Territorial Claims and the Search for Their Legitimacy

2021 ◽  
Vol 22 (4) ◽  
pp. 650-672
Author(s):  
Josef Weinzierl
Keyword(s):  
The State ◽  
Political Community ◽  
The Other ◽  
Main Question ◽  
Eu Law ◽  
European Level ◽  
Territorial Claims ◽  
The One ◽  
The Individual ◽  
The Eu

AbstractQuite a few recent ECJ judgments touch on various elements of territorial rule. Thereby, they raise the profile of the main question this Article asks: Which territorial claims does the EU make? To provide an answer, the present Article discusses and categorizes the individual elements of territoriality in the EU’s architecture. The influence of EU law on national territorial rule on the one hand and the emergence of territorial governance elements at the European level on the other provide the main pillars of the inquiry. Once combined, these features not only help to improve our understanding of the EU’s distinctly supranational conception of territoriality. What is more, the discussion raises several important legitimacy questions. As a consequence, the Article calls for the development of a theoretical model to evaluate and justify territoriality in a political community beyond the state.

What Kind of Ireland?

2021 ◽  
pp. xviii-20
Author(s):  
Niamh Hardiman ◽  
David M. Farrell ◽  
Eoin Carolan ◽  
John Coakley ◽  
Aidan Regan ◽  
...  
Keyword(s):  
Political Institutions ◽  
Public Discourse ◽  
The European Union ◽  
Eu Member States ◽  
The United Kingdom ◽  
Original Contribution ◽  
Electoral Mobilization ◽  
The One ◽  
The Eu

Modern Ireland is a relatively wealthy and politically stable democracy, but it bears the deep marks of its route to this point. This introductory chapter draws together some key themes that run through this volume and profiles the core contributions of each of its chapters. The overall story is one of contradictory influences. The political institutions of the state, notwithstanding much innovation over time, retain a bias toward a remarkably strong executive. The long-standing weaknesses of social democratic electoral mobilization both reflect and reinforce a conservative and market-oriented tilt in policy priorities. The ideas that animate public discourse show a creative but sometimes problematic tension between republican and communitarian ideals on the one hand, and liberal ideas and values on the other. Ireland has assumed a confident role on the world stage and especially within the European Union (EU), but relations with its nearest neighbour, the United Kingdom, can often be problematic, not least because of the complexity of the politics of Northern Ireland. And while on many measures Ireland is among the wealthiest of the EU member states, this is not the lived reality for a great many of its citizens, and the nuances of why this is so need to be carefully assessed. Overall, this introductory chapter offers an overview of the whole Handbook while also making an original contribution in its own right.

Europe’s Cosmopolitan Union

2021 ◽  
pp. 204-226
Author(s):  
Bertjan Wolthuis ◽  
Luigi Corrias
Keyword(s):  
Public Law ◽  
Internal Market ◽  
The Other ◽  
Refugee Crisis ◽  
Eu Law ◽  
Eu Member States ◽  
Cosmopolitan Law ◽  
Migration Law ◽  
Legal Condition ◽  
The Eu

The chapter provides a Kantian reading of EU internal market law and the refugee crisis of 2015. The chapter argues that the EU should be viewed as a cosmopolitan union. The authors ask whether EU law, understood as positive cosmopolitan law, can be qualified as an extension of the legal condition, and whether it can be viewed as consistent with the other two parts of public law, especially with the freedom of EU member states which also depend on the possible connection to global, much less extensive, systems of positive cosmopolitan law such as migration law.

Higher Education, Equal Access, and Residence Conditions: Does EU Law Allow Member States to Charge Higher Fees to Students Not Previously Resident?

2005 ◽  
Vol 12 (3) ◽  
pp. 227-240 ◽  
Author(s):  
Gareth Davies
Keyword(s):  
Higher Education ◽  
Case Law ◽  
Social Effects ◽  
Eu Law ◽  
Financial Benefit ◽  
Member States ◽  
Policy Issues ◽  
Eu Member States ◽  
Law And Policy ◽  
The Eu

This article looks at the law and policy issues surrounding the practice of charging uniform fees for higher education to home students and students coming from other EU Member States. It begins with the observation that within the EU such fees are heavily subsidised by governments and therefore amount to a financial benefit (or a disguised grant) to students. In the light of this, this article suggests that restricting that subsidy to students resident prior to their studies would be not only compatible with recent case law on non-discrimination but would also fit better with the underlying logic of free movement, which denies any right to benefits for non-economic recent migrants. Secondly, it looks at the policy, and finds that while equal fees have a number of very positive social effects, they also carry moral and economic risks. A better approach, less distorting of the market for higher education and more consistent with the wider EU approach to welfare migration, might be to require exportability of subsidies from the student's state of origin.

The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

2015 ◽  
Vol 16 (6) ◽  
pp. 1343-1374 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Constitutional Courts ◽  
Cautious Approach ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

scholarly journals Google LLC v. Commission nationale de l'informatique et des libertés (CNIL)

2020 ◽  
Vol 114 (2) ◽  
pp. 261-267
Author(s):  
Monika Zalnieriute
Keyword(s):  
Search Engine ◽  
Data Privacy ◽  
Freedom Of Information ◽  
Eu Law ◽  
The European Union ◽  
National Data ◽  
Eu Member States ◽  
Court Of Justice ◽  
The Right ◽  
The Eu

In Google LLC v. Commission nationale de l'informatique et des libertés (CNIL), the Court of Justice of the European Union (CJEU or Court) held that the EU law only requires valid “right to be forgotten” de-referencing requests to be carried out by a search engine operator on search engine versions accessible in EU member states, as opposed to all versions of its search engine worldwide. While the ruling has been perceived as a “win” for Google and other interveners, such as Microsoft and the Wikimedia Foundation, who argued against worldwide de-referencing, the Court also made clear that that while the EU law does not currently require worldwide de-referencing, “it also does not prohibit such a practice” (para. 72). As a result, the CJEU found that an order by a national supervisory or judicial authority of an EU member state requiring worldwide de-referencing in accordance with its own national data protection laws would not be inconsistent with EU law where the data subject's right to privacy is adequately balanced against the right to freedom of information. By leaving the door to extraterritorial de-referencing wide open, the CJEU continues to pursue its post-Snowden hard-line stance on data privacy in a manner that is likely to transform the data privacy landscape.

CJEU Judgment in Case C-284/16 Achmea: Single Decision and Its Multi-Faceted Fallout

2019 ◽  
Vol 18 (1) ◽  
pp. 3-32
Author(s):  
Bartosz Soloch
Keyword(s):  
International Investment ◽  
The European Union ◽  
International Investments ◽  
Eu Member States ◽  
National Courts ◽  
International Investment Agreements ◽  
The One ◽  
The Relationship ◽  
Investment Agreements ◽  
The Eu

Abstract Recent decisions of European and national courts, as well as those of arbitral tribunals, concerning the Achmea saga seem to be plentiful enough to draw preliminary conclusions as to the relationship between EU law, intra-EU international investment agreements (IIAs) and the national laws of EU-Member States. In order to get the proper picture of the situation, however, it is necessary not only to analyse the recent decisions of the Court of Justice of the European Union (CJEU) and their consequences from these three perspectives, but, equally, to understand how they interact with each other. Such an analysis indicates the real possibility of the emergence of a rift between the practice of the EU and national courts rejecting the validity of investment arbitration agreements, on the one hand, and investment tribunals, on the other. In any case, such a divergence would put into question the IIAs’ claim to provide a stable regulatory framework for international investments in the EU, which, in turn, would strengthen the argument for termination of intra-EU IIAs.

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