CYIL vol. 8 (2017)

HARALD CHRISTIAN SCHEU

CYIL 8 ȍ2017Ȏ

1. Introduction In the past two decades, the area of freedom, security and justice has turned into one of the most dynamic fields of EU law. Building upon the experiences of the Schengen regime which was originally developed outside EU law, the Amsterdam Treaty of 1997 defined the area of freedom, security and justice as an area, “in which free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime”. 1 Since the AmsterdamTreaty entered into force in 1999, the EU has adopted a considerable number of legal acts concerning issues of border control, asylum and migration. Whereas the European Council at the Tampere Summit of October 1999 was referring mostly to common minimum standards in the field of asylum law, after the expiry of a five-year transition period this sensitive issue has been gradually transformed into a full-fledged supranational agenda. The Hague Programme of 2004 and the Stockholm Programme of 2009 called upon the Union to build a Common European Asylum System which shall be based on a common asylum procedure and a uniform standard for those granted international protection. 2 As a rule, each reform treaty increased the role of the supranational bodies in shaping migration, asylum and border policies and decreased the areas of law-making which are subject to national vetoes in the EU Council. 3 The asylum and migration crisis of 2015 has shown that migration and asylum remain very sensitive issues from the perspective of member state sovereignty. It has become clear that massive waves of migrants and refugees illegally entering and crossing the EU may endanger the functioning of EU law. In a situation of crisis, the European Commission has quite recently proposed to further Europeanize the European asylum law and the regime at the external borders. 4 Current debates show that the future of the common migration and asylum policy will, to a large degree, depend on the efficiency of measures preventing irregular migration to the EU. The link between migration, asylum and external border controls is clearly reflected in the founding Treaties of the EU. Article 77 of the Treaty on the Functioning of the European Union (TFEU) refers to the management of EU external borders and serves as a legal basis for the common visa policy. Article 78 TFEU is the cornerstone of the Common European Asylum System. The third paragraph of Article 78 TFEU provides the EU with the power to adopt solidarity measures in situations of sudden inflow of third-country nationals. According to Article 79 TFEU the EU shall develop a common immigration policy which includes fair treatment of migrants legally residing in Members States and measures to combat illegal migration and trafficking in human beings. 1 Article 1, para. 5 of the Treaty of Amsterdam amending the Treaty on the European Union, the treaties establishing the European Communities and certain related acts. 2 The Stockholm Programme „An open and secure Europe serving and protection citizens“ (OJ C 115, 4. 5. 2010, p. 1-38). 3 KAUNERT, C., OCCHIPINTI, J. D., LÉONARD, S., Introduction: supranational governance in the Area of Freedom, Security and Justice after the Stockholm Programme. Cambridge Review of International Affairs , 1/2014, p. 39-47. 4 Communication from the Commission to the European Parliament and the Council. Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe, 6. 4. 2016, COM(2016) 197 final.

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