The Migration Crisis: A Time for Solidarity Lessons?
MA Thesis in European Studies: European Policy Graduate School of Humanities University of Amsterdam
Author: Kristina Dimitrova Student number: 11104120
Main supervisor: dhr. mr. dr. A.C.van Wageningen Second supervisor: dhr. dr. P. Rodenburg
July, 2017
TABLE OF CONTENTS Abstract ...... 3 Acknowledgements ...... 4 List of tables/figures ...... 5 List of Abbreviations ...... 6 1. Introduction ...... 7 1.1. Background and Current State of Affairs ...... 7 1.2. Purpose and Research Question ...... 11 1.3. Outline ...... 13 2. Theoretical analysis and methodological approach ...... 15 2.1. Defining solidarity ...... 15 2.2 Theories on EU solidarity ...... 22 2.3. Methodological approach ...... 29 3. EU perspective ...... 34 3.1. Legal perspective ...... 34 3.2. Policy perspective ...... 45 4. National Perspectives ...... 57 4.1. Bulgaria ...... 60 4.1.1. Legal Perspective ...... 60 4.1.2. Policy Perspective ...... 65 4.2. Italy ...... 67 4.2.1. Legal Perspective ...... 68 4.2.2. Policy Perspective ...... 73 4.3. Supranational and national comparison...... 75 5. Conclusion ...... 77 Bibliography ...... 84
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ABSTRACT
The migratory challenge that the EU and its Member States are facing, since 2011, raised important questions about the essence, significance, and drawbacks of one of the Union's fundamental values and principles - solidarity. Taking into account the existing gap in the knowledge about the concept's role in the context of asylum policy, this master thesis examines the possibilities of solidarity to be an effective tool for overcoming challenges such as the migration one. The paper argues that due to heterogeneous incorporation and interpretation of the concept at EU and national level, solidarity has relatively small possibility to be a panacea for the current crisis. Despite the ample presence of the concept in the EU policy and legal order, the thesis's findings reveal that at national level the concept is underdeveloped. In order to strengthen solidarity's normative power reexamination of the concept is hereby recommended.
Key words: solidarity, asylum policy, migration crisis EU, constructivism, Bulgaria, Italy
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ACKNOWLEDGEMENTS
Dedicated to the memory of my mother, Mariana Peykova, who always believed in my ability to be successful.
I would like to use the opportunity to express my sincere gratitude to Dr. Anne van Wageningen for his support throughout the writing of this master thesis, his patience and insightful comments which have motivated me to widen my research from various perspectives.
I would like to thank my parents and brother for believing in me. Thank you for your trust, love and appreciation. Thank you for allowing me to realise my own potential and dreams. Thank you for all the support provided over the years as this is the greatest gift anyone has ever given me.
To all my friends, thank you for helping me to keep sane and for giving me valuable support and encouragement during the last year.
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LIST OF TABLES/FIGURES
Table 1 Concepts of Solidarity, Steinar Stjerno ...... 20 Table 2 Contributions to solidarity ...... 21 Table 3 Criteria for analysis of the legal and policy perspective of solidarity ...... 33 Table 4 Framework for comparison and analysis of the correlation between solidarity at EU and national level ...... 76
Figure 1 Solidarity's virtuous circles ...... 24 Figure 2 Number of people sought asylum (01.01.1993 -31.01.2017) ...... 64
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LIST OF ABBREVIATIONS
BCP - Bulgarian Communist Party
CEAS Common European Asylum System
CFSP - Common Foreign and Security Policy
CNDA - Commissione nazionale per il diritto di asilo (National Commission for the Right of Asylum)
CPR - Return Detention Centre
CPT - Centers for Temporary Detention
CTRPI - Territorial Commissions for International Protection
EASO - European Asylum Support Office
EC - European Community
ECJ - European Court of Justice
EP – European Parliament
ESM - European Stability Mechanism
EU - European Union
JHA - Justice and Home Affairs
LAR – Law on Asylum and Refugees
NATO - North Atlantic Treaty Organization
NGO - Non-Governmental Organization SAR - State Agency for Refugees
SEA - Single European Act
SPRAR - Sistema di Protezione per Richiedenti Asilo e Refugiati Protection (System for Refugees and Asylum Seekers)
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“We must not allow Europe to fall into a moral crisis, a crisis of lack of solidarity, a crisis of values.”
Rosen Plevneliev
President of the Republic of Bulgaria1
1. INTRODUCTION
1.1. Background and Current State of Affairs
In 2011, the political upheavals in the Middle East and North Africa became a reason for an unprecedented number of people to flee their country. The migratory influx that crossed the borders of the European Union (EU) challenged the Common European Asylum System (CEAS). The attempt of the EU to speak with one voice and to find a common solution to the crisis failed since reaching a consensus among the Member States was currently impossible. The unwillingness of some Member States to agree with a fair share of the migration burden eroded the unity in the EU. The divisions of opinion and the different attitude and actions of the EU countries towards the migratory influx and the secondary movements from Member State of first arrival provoked serious debates at EU level. Hence, the migration crisis, by “crossing” the European borders, turned to be a reason for disunity of the EU.2 Furthermore, this raised important questions about the nature, significance, and pitfalls of one of the Union’s fundamental values, legal and political principles - solidarity. In the recent decades, the notion of solidarity could be found in various contexts – for example, environmental solidarity, financial solidarity, social solidarity, asylum solidarity. The concept of solidarity exists in the EU legal order since the very beginning of the European integration idea. Solidarity could be initially found in those fields of
1 Speech to the European Parliament on June 8, 2016 2 Munchau, W., 2017.
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EU law that were harmonised. For instance, references to the principle were made in the iron and steel sector and later in the agriculture and fisheries. 3 The concept gradually received more significance with the Treaty of Maastricht when it was mentioned in the context of the economic and social cohesion policy, the common external and security policy and in the Declaration on Asylum.4 The common rules that governed the harmonised policy fields were based on the solidarity rationale, which meant that in return of their competences, the Member States are receiving from the EU equal treatment, rights and obligations.5 However, that was not the case with those sectors that were partially harmonised, for instance, environment and disaster management.6 The term environmental solidarity is linked with the common aspirations of the Member States to ensure the protection of the environment. Solidarity has been widely mentioned in EU environmental law and policy documents related to climate change, energy, sustainable development and disaster management. 7 For instance, Article 222 TFEU, the so-called solidarity clause, explicitly states that the Member States “shall act jointly in a spirit of solidarity” in case of natural disaster. However, it does not specify the way the countries should do so. Some authors emphasise on the global aspect of environmental solidarity as the concept cannot be limited to the premises of one country.8 However, in this field, as argued by some9, solidarity “is underdeveloped, because Member States do not agree on the extent of their solidarity obligations to cooperate”10. In this regard, the creation of a transnational European solidarity in the environmental field is contested as it is not based on “sameness”, as
3 Barnard, C., 2010, p.75. 4 Treaty on European Union (Maastricht Treaty), 1992, Preamble; Article A; Article J.1.4; Protocol on economic and social cohesion; Declaration on Western European Union; Declaration on Asylum. 5 Domurath, I., 2013, p. 464. 6 Idem. 7 Hilson, C., 2010, p. 137. 8 Ibid, p.136. 9 For more information on the concept of environmental solidarity in EU consult: Ahman, T. 2009. The Treaty of Lisbon and civil protection in the European Union. Stockholm: Swedish Defence Research Agency; Jans, J.H., and H.H.B. Vedder. 2008. European environmental law. Groningen: Europa Law 10 Domurath, I., 2013, p. 464.
8 | P a g e social solidarity, but on acceptance of differences, as each country faces different challenges.11 In other areas, such as the monetary one, the arising challenges affect the Member States in a similar way. For instance, almost seven years ago, when the global economic crisis reached a significant number of European countries, the notion of solidarity gained significant popularity in the European political discourse and debates. The term financial solidarity was widely spread in the public discussions in the context of the Eurozone sovereign debt crisis. The crisis was used by political leaders to call for a better coordination in the economic field. According to scholars, the term was implicitly connected with responsibility and with the assumption that richer countries have to take care of poorer ones.12 During the negotiations for the establishment of a European Stability Mechanism (ESM) the topic of solidarity was widely discussed. Scholars researched the promotion of the principle of solidarity through the ESM and its ability to solve the financial crisis. 13 Financial solidarity emerged as part of the negotiations of the Multiannual Financial Framework 2014- 2020.14 Furthermore, in the context of the economic crisis scholars examined the connection of solidarity with responsibility and cooperation.15 As a consequence of the financial crisis, the level of unemployment in the EU raised significantly which provoked a new discourse – the one on social solidarity. Social solidarity is directly linked with the intra-EU labour mobility.16 The role of the European Court of Justice (ECJ) and its jurisprudence became significant for the clarification of this notion. The ECJ “routinely refers to ‘principles of solidarity’ to determine the proper balance between market principles and social protection objectives in EU law”17. Furthermore, in the field of
11 Idem. A more extensive analysis of the idea of transnational social solidarity can be found in Chapter 3 of this thesis. 12 Raspotnik, Jacob and Ventura, 2012, p. 2. 13 A. Sangiovanni, 2013 (Solidarity in the European Union) and K. Klatzaki, The application of the principle of European Solidarity: Another victim of the EU financial crisis? Katarina Klaitzaki , 2016, available at: http://www.uclancyprus.ac.cy/files/1014/7809/0 976/JMMWP_Series2_Kalaitzaki.pdf 14 Raspotnik, A., Jacob, M. and Ventura, L., 2012, p. 2. 15 Fernandez, S. and Rubio, E., 2012, p. 7-8. 16 Raspotnik, A., Jacob, M. and Ventura, L., 2012, p.4. 17 Sangiovanni, A., 2013, p. 214.
9 | P a g e health services, the ECJ develops a framework that highlights the importance of balance between solidarity and market access.18 The market dynamics are explicitly connected with one of the four freedoms of the EU – the freedom of movement. On the other hand, freedom of movement is also a fundamental characteristic of the Schengen area. It has a connection with border and asylum management, where solidarity plays a pivotal role. The recent migration crisis highlighted the notion of asylum solidarity. The term was linked with responsibility- sharing as part of the instruments for effective application of the CEAS.19 Despite the extensive reference to solidarity, not much analysis has been done on the nature of the concept in the field of asylum and its potential for alleviating the current migration crisis.
18 Ibid, p. 215. Further Reference: Giubboni, S. (2007). Free Movement of Persons and European Solidarity. European Law Journal, 13(3), pp.360-379.; Giubboni, S. (2010). A Certain Degree of Solidarity? Free Movement of Persons and Access to Social Protection in the Case Law of the European Court of Justice. In: M. Ross and Y. Borgmann-Prebil, ed., Promoting Solidarity in the European Union. Oxford: Oxford University Press, pp.166-197.; Giubboni, S. (2015). Free Movement of Persons and European Solidarity Revisited. Perspectives on Federalism, 7(3), pp.1-18. Dougan, M. 2005 ‘Wish you weren’t here…” New models of social solidarity in the European Union, in Social Welfare and EU law, eds. E. Spaventa and M. Dougan, 180-218. Oxford: Hart Publishing. Barnard, C. 2005 EU citizenship and the principle of solidarity. In Social Welfare and EU law, eds. E. Spaventa and M. Dougan, 157-180, Oxford: Hard Publishing. 19 Raspotnik, A., Jacob, M. and Ventura, L., 2012, p.4.
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1.2. Purpose and Research Question
Since 2015, the topic of migration penetrated the European leaders’ speeches and the political discourse at EU level. The notion of solidarity became an inseparable part of the discussions on the migration crisis. The European Commission has appealed that “[s]olidarity is part of how the European society works and how Europe engages with the rest of the world”20. Moreover, in the latest State of the European Union, the President of the European Commission Jean-Claude Junker emphasised on the principle of solidarity as “the glue that keeps our Union together” 21 . Despite the importance and popularity that was given to the concept, the available knowledge and understanding of solidarity in EU are partial. In fact, no legal definition of solidarity in the EU legislation is available and thus various interpretations of the concept exist.22 In addition, not much has been done on studying solidarity in the context of asylum and its normative power.23 This master thesis aims to address this existing gap in the knowledge throughout a comprehensive analysis of the concept of solidarity in the EU legal and political order. Furthermore, by examining consecutively the place of solidarity in the legal and political order of two Member States, namely Bulgaria and Italy, the goal of this thesis is to find out what the real possibility for solidarity to be an effective tool for overcoming the current migration crisis is. At the moment, a greater emphasis is put on the migration crisis as an exogenous challenge for the EU (the migration crisis as an external factor that occurs outside the EU's territory but has impact on the EU as a whole; affects the EU- non-EU countries relations), however, in this paper focus will be put on the migration crisis with its endogenous influence on the EU (the impact of the event on the EU internal dynamics, unity and inter-Member States relations), which could be a reason for triggering or revealing an internal solidarity “crisis". The thesis
20 European Commission, 2007. 21 European Commission, 2016. 22 Sangiovanni, A., 2012, p. 387. 23 In this regard it is important to highlight Ian Manners’s work on the normative power of Europe and specifically his categorization of core and minors norms of the EU, among which is solidarity. See: Manners, Ian. (2002) ‘Normative Power in Europe: A Contradiction in Terms?’, Journal of Common Market Studies 40(2): 235–58.
11 | P a g e will study the nature, dynamics and limitations of solidarity as a political and legal concept. Therefore, this paper would attempt to give insight to the question: What is the possibility for solidarity to be an effective EU tool for overcoming the current migration crisis?
In order to do so, the following research sub-questions will be answered: How can we conceptualise the term solidarity? How is solidarity incorporated in the EU legal order? What is the place of solidarity in the EU asylum policy? What is the place of solidarity in the asylum legal and policy order of two of the Member States, namely Bulgaria and Italy? What is the correlation between solidarity in the EU law and asylum policy and solidarity in the law and asylum policies of two of the Member States – Bulgaria and Italy?
This paper represents in its entirety a pragmatic qualitative research which would enable the author to use elements such as historical, legal, constitutional, policy and socio-cultural analyses for creating a more diverse account of the issues at hand. It also uses content analysis in order to identify the presence of solidarity in legal and policy documents and its relationship to other concepts. The methodological approach for comparison and analysis of the correlation between solidarity at EU level and national level is based on three criteria. The first one is conceptual analysis with the aim to discover the frequency of solidarity usage in the legal and policy documents. The second and the third criteria are based on a relational analysis and aim on finding the relation of solidarity to asylum and to other concepts. The thesis draws to some extent on constructivist assumptions of the role of norms for the European integration process. Since, the motivation behind this present study is to draw lessons and conclusions about solidarity, in the context of the current migration crisis, such approach is believed, to provide a better understanding of the role of solidarity in EU policies, such as asylum. The hypothesis of this thesis is that solidarity in the field of asylum policy has relatively small possibility to be an effective tool for tackling the current migration crisis due to the heterogeneous incorporation, application and understanding of the
12 | P a g e concept at EU and national level. By postulating the main research question, the significance of this thesis can be found in its added value for the ongoing debates on the current migration crisis. The aim of this thesis is it to provide a comprehensive analysis of solidarity, which could be useful in areas different than asylum. Furthermore, this thesis aims to contribute to the development of a better understanding of solidarity which can serve as a point for recommendations and future improvements. By using constructivist theoretical assumptions about the role of norms this thesis could also contribute to the study of the significance of norms and values for the European integration process. In terms of delimitations and limitations, it should be noted that the research was encouraged by the recent migration movements caused by the political upheavals in the Middle East and Northern Africa that began in 2011. Thus, the so-called migration crisis is an ongoing crisis with unclear legal and policy outcome, which means that this thesis does not aim to establish a general conclusion about this event. Hence, when referring to the term migration crisis this thesis will only encompass specific timeframe – from 2011 until the first quarter of 2017. Secondly, the national perspective of this thesis is explicitly based on two cases studies – Bulgaria and Italy. Having in mind the time and length limitation of this thesis, examination of more Member States is not feasible. Moreover, this thesis could be criticised on establishing narratives about solidarity in the EU without taking into account a comprehensive analysis of solidarity in fields different than the asylum one.
1.3. Outline
In order to address the current issues that the EU is facing, and particularly the possibility of solidarity as an effective tool for overcoming the present migration crisis, this thesis will be divided into five distinctive but yet complementary chapters. The paper starts with a general presentation of the background and current state of affairs, followed by a concise overview of the main research problem and the limitations of this study. The second chapter concentrates on some of the major theoretical perspectives relevant to the purpose of this study. By combining core elements of fundamental and contemporary theories for the development of a comprehensive understanding of the notion of solidarity, in this chapter the author
13 | P a g e aims to develop the theoretical approach that will provide with enough information for a conceptualization of the term solidarity and solidarity at EU level. The chapter includes contributions made by Emile Durkheim, Max Scheler, Richard Rorty, Steinar Stjernø, Malcolm Ross and Floris de Witte. This will be followed by an explanation of the developed methodological analysis. The third chapter will examine the rise, development, and evolution of solidarity in the EU legal order. An analysis of EU’s primary sources of law and a summary of relevant case law practice of the European Court of Justice in the field of solidarity will be presented. Furthermore, the policy analysis of this chapter will comprise of tracing the historical development of the EU’s asylum policy, the creation of the Common European Asylum System, an analysis of Article 80, TFEU, and presentation and analysis of the current legislative proposals on asylum. The role of solidarity in this policy field will be carefully drawn. Chapter four will deal with the case studies chosen for completing the national perspective of this thesis (Bulgaria and Italy). The chapter will finish with a comparison between the EU and the national perspective with the aim to find what the correlation of solidarity is. The final chapter will summarise the main findings, draw conclusions, answer the main research question and give recommendations for a future discussion and research.
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2. THEORETICAL ANALYSIS AND METHODOLOGICAL APPROACH
This chapter presents various theories that explain the concept of solidarity. Furthermore, the chapter examines solidarity, as a principle and fundamental value of the EU, and its meaning and significance for the European integration process. Finally, the chapter sets out the developed methodological approach, which will be based on constructivist theoretical postulates and content analysis, with the aim to better understand and examine the selected case studies.
2.1. Defining solidarity
Defining solidarity is a difficult task because one common definition does not exist. The analysis of prevailing different approaches on solidarity would help to gain essential knowledge about the concept and its nature. The very beginning of solidarity is traced back to the Roman civil law, where the notion was used to explain the relationship between a creditor and a group of people responsible for a debt.24 In the XIX century, the French Revolution gave birth to the French social solidarity that represents an outset of the contemporary interpretation of the notion. Sociologists, philosophers, and legal scholars developed their own understanding and conceptualization of solidarity while trying to find out its role in the society.25 Today, the definition of solidarity in the Oxford Dictionary is: “Unity or agreement of feeling or action, especially among individuals with a common interest; mutual support within a group”26. Hence, the concept entails the idea of likeness among a group of individuals that are united by a common interest and “are bound together by a feeling of community”27. Furthermore, the individuals are equal and have responsibilities and obligations.28
24 Noll, G., 2016, p.3. 25 Ross, M., 2010, p. 24. 26 Anon, 2016. 27 Domurath, I., 2013, p.460. 28 Idem.
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In the last two decades, the rise and nature of solidarity were investigated by many social researchers and scientists such as Sven-Eric Liedman, Kurt Bayertz, and Andreas Wildt.29 A contribution to the study of solidarity in modernity is also made by Jurgen Habermas 30 , who attempted to create “a moral philosophy with universal validity where justice and solidarity are key concepts” 31 . The present theoretical analysis will encompass Emile Durkheim's fundamental theory of mechanical and organic solidarity, which has been considered by many as a departing point for conceptualization of solidarity, Max Scheler, and Richard Rorty's contributions and perspectives, and a more contemporary conceptualization of solidarity made by the Norwegian academic Steinar Stjernø, who traces the establishing of solidarity as idea by doing an extensive research on classic social theory, political thought, and religious perspective. As it has been just mentioned, many scholars while trying to define solidarity depart from Emile Durkheim’s conceptualization of mechanical solidarity and organic solidarity, expressed for first time in the book The Division of Labour in Society (1893). Durkheim attempt was to give an answer to one of the central questions of sociology: What holds a society together? To answer this question, he departs from the assumption that people have two types of consciousness – individual consciousness, particular to a person, and collective (common) consciousness, that is shared with every member of the society. Durkheim insists that people in a society, or in a community, share common social norms and values, which creates a feeling of moral obligation. According to him, this phenomenon, known as collective (common) consciousness, is a reason for the emergence of solidarity among people in a group. Durkheim states that solidarity is the normative tool that integrates people in one community or society.32 Furthermore, he considers the existence of two types of solidarity: mechanical solidarity and organic solidarity. Mechanical solidarity, according to him, is a characteristic of traditional societies, which are defined by a degree of differentiation
29 See Att se sig själv i andra: Om solidaritet by Sven-Eric, Liedman (Stockholm: Albert Bonniers Förlag, 1999); Solidaritat. Begriff und Problem, published in 1998 and Solidarit, published in 1999, by Kurt Bayertz; Solidarity: its history and contemporary definition by Andreas Wildt, published 1999. 30 See Habermas, J., (1984) Justice and Solidarity: On the Discussion Concerning "Stage 6". 31 Stjernø, S., 2005, p. 302. 32 Andersen, M. and Taylor, H., 2006, p. 130.
16 | P a g e that is very low. 33 In fact, mechanical solidarity innates in societies which are homogenous, people play a similar role, have similar lifestyles and share the same values.34 That is to say, “[s]olidarity is strong in traditional society, because people are alike and because they think alike”35. Thus, in mechanical solidarity, characteristic of traditional societies, collective (common) consciousness dominates the individual one. This means that “the individual does not belong to himself; he is literally a thing at a disposal of society”36. However, nowadays such mechanical solidarity is rare due to the fact that it is easily challenged by the complexity of globalisation and the division of labour. 37 Thus, organic solidarity emerges as a characteristic of modern societies which are highly differentiated, people have a different lifestyle, culture, and beliefs and offer a different relationship between collective and individual consciousness. This creates a novel type of individual freedom but also a higher interdependence between the individuals. In such societies or communities, “occupational differences create a complex interdependence between the activities of different producers” 38 . In other words, people in a society are interconnected by the division of labour although the bond of shared values might be weak.
In short, since the division of labour becomes the chief source of social solidarity, it becomes, at the same time the foundation of the moral order.39
Thus, Durkheim argues that such division of labour is the mean that can intensify unity in a society or community and the outcome would be social progress. Furthermore, according to him solidarity, as a moral principle and law, has the ability to bind people within a society. Durkheim indicates that organic solidarity in modern societies can only exist if justice exists in this society. Such link between solidarity
33 Guyette, F., 2010 p. 409. 34 Andersen, M. and Taylor, H., 2006, p. 130. 35 Stjernø, S., 2005, p. 33. 36 Durkheim, E. and Lukes, S., 2013, p. 102. 37 Andersen, M. and Taylor, H., 2006, p. 130. 38 Stjernø, S., 2005, p. 34. 39 Durkheim, E. and Lukes, S., 2013 p.312.
17 | P a g e and justice is acknowledged by Jürgen Habermas a century later. 40 Moreover, Durkheim considers justice as “the necessary accompaniment to every kind of solidarity”41. Hence, inequality and inequities should be reduced in order to keep the society (or community) united and prosperous.42 Years later, Durkheim expresses a newfangled understanding of solidarity in The Elementary Forms of the Religious Life (1915). He adds another element to the explanation of solidarity – "the role of expressive emotions in forming solidarity"43. By acknowledging the power of religion for establishing of social connection and bonds, the new dimension of Durkheim's upgraded understanding suggests that religion reinforces social solidarity. Thus, the role of emotion and feeling, previously ignored by Durkheim, receives a significance for establishing solidarity in a social community.44 In contrary to Durkheim's later approach on solidarity, Max Scheler45 acknowledges the existence of an emotional dimension of solidarity that is based on a form of compassion rather than a religious ritual. He considers four forms of sympathy that contribute to the establishment of solidarity. Scheler creates an account of solidarity that is criticised for showing the nature of the concept without being able to provide with the incentives that would make a community stick to it.46 Contemporary accounts on the concept have taken into account the influential analysis of solidarity made by Durkheim and the attributions of scholars such as Scheler. Richard Rorty in Contingency, Irony and Solidarity (1989), states that what stimulates the existence of solidarity in a community is the fact that people realise that everyone is equally "vulnerable to hurt and humiliation"47. According to him the existence of solidarity between distinct groups is better achieved by “sewing a thousand little stitches to invoke, a thousand little commonalities between their
40 See Rehg, W. (1994). Insight and solidarity – the discourse ethics of Jurgen Habermas. Berkeley: University of California Press. 41 Durkheim, E. and Lukes, S., 2013, p. 95. 42 Stjernø, S., 2005, p. 35. 43 Guyette, F., 2012, p. 410. 44 Idem. 45 Max Scheler. (1974). Formalism in Ethics and Non-Formal Ethics of Values, trans. Manfred Frings and Roger Funk (Evanston: Northwestern University Press, 1974): 526. Further reference: Rainer Ibana, The Essential Elements for the Possibility and Necessity of the Principle of Solidarity According to Max Scheler, Philosophy Today, 1989, 33: 42–55 46 Guyette, F., 2012 p. 411. 47 Richard Rorty in Guyette, F., 2012, p. 412.
18 | P a g e members, rather by a specifying one great big one, their common humanity”48 Rorty's understanding of solidarity was criticised for being difficult to be preserved for generations. On the other hand, his assumption that solidarity is “the ability to think of people wildly different from ourselves as included in the range of “us””49 has been also acknowledged by the contemporary scholar Steinar Stjernø in Solidarity in Europe, (2005)50. In this regard, as important characteristic of the modern type of solidarity, Stjernø considers that the concept is based on the acceptance of diversity and not on the idea of "sameness"51. As a date of birth of the concept Stjernø identifies the middle of the XIX century. The idea of solidarity, born during the French Revolution, he suggests, is closely related to the notion of fraternité. French social philosophers created the notion of solidarity with the intention to find a solution of the political and social disturbances. The French idea of solidarity was “inclusive one and it aimed at restoring the social integration that had been lost”52. In Germany, the concept was introduced later and it was related to Marxism and the goal of uniting the work class members. Hence, the German idea of solidarity implies limitations because of its focus on workers but it also signifies inclusiveness outside the borders of the country due to the fact that workers outside Germany were also considered. Nevertheless, Stjernø states that the German notion of solidarity was more an example of a conflict rather than integration.53 To develop an understanding of solidarity as a concept in the social and political science, Stjernø offers a unique analytical approach. Departing from the assumption that one single universal concept of solidarity does not exist, the scholar
48 Kuipers, R., 1997, p. 73. 49 Rorty, R., 1989, p. 192. 50 Steinar Stjernø provides a contemporary, in-depth research of the concept of solidarity. Considering solidarity as a key concept of social theory and politics, Stjernø makes a comprehensive research that examines the three main traditions contributing to the establishing of solidarity as an idea – classic social theory, political thought, and religious perspective. The book traces the development of solidarity in XIX, the political dimension of solidarity, analyses the socialist theories of Karl Marx and Karl Kautsky, links solidarity with religion, and in particular Catholicism and Protestantism. It also examines the development of the idea of solidarity in political parties in Europe and makes an extensive comparison between solidarity in social democratic and Christian democratic parties. Stjerno offers predictions about solidarity a modern conceptualization of solidarity. 51 Stjernø, S., 2005, p. 199. 52 Ibid, p. 25. 53 Idem.
19 | P a g e concludes that in modernity there is a diverse range of ideas of solidarity that differ in terms of four aspects – foundation, objective/function, inclusion/exclusion, collective orientation (see Table 1). Based on this, he concludes that solidarity has different configurations. Thus, the concept can be descriptive, normative or a mixture of both. Furthermore, it may indicate inclusion or exclusion.54 In Stjerno’s modern definition, solidarity refers to the “preparedness to share resources with others, through taxation and redistribution organised by the state” and the “readiness for collective action and will to institutionalise it through the establishment of rights and citizenship” 55 . According to his definition, solidarity is expressed when an individual can stand up for those who are in need or in struggle and has the will to support disadvantaged groups.
Table 1 Concepts of Solidarity, Steinar Stjerno56
Thus, Stjernø’s comprehensive examination of the conceptual transformation of solidarity, since its emergence until the modern days, offers significant contributions
54 Stjernø, S., 2005, p. 18. 55 Ibid, p. 326. 56 Ibid p. 86.
20 | P a g e to the development of a unified approach on solidarity. He considers that solidarity is founded not on the base of interest but on humanism thus, he concludes that “[t]he goal of solidarity is not socialism, but the creation of a feeling of community, social integration, and sharing risks”57. He concludes that throughout the years the idea of solidarity became more inclusive, by including not only workers but other social groups and problems. Hence, there is a tendency “towards a broad and inclusive idea of solidarity that has justice or social integration as a main objective”58. The theoretical presentation of essential contributions for the conceptualization of the term solidarity leads to various findings. The first part of this chapter aimed at presenting diverse theories on solidarity which either has been influenced by each other, contradict one another, or complement one another. The main contributions of the presented theories and accounts on solidarity can be summarised in Table 2. Table 2 Contributions to solidarity Scholar Contribution
Emile Durkheim Normative tool that integrates people in one community or society
Characteristic of traditional societies; people are Mechanical alike.
Characteristic of modern societies; people are Organic interconnected because of the division of labour Later understanding Emotional dimension of solidarity - role of religious rituals
Max Scheler Emotional dimension of solidarity - compassion
Richard Rorty The ability to see "others" as "us"
Steinar Stjernø Standing for those that are underprivileged and/or in need; humanism as a base of solidarity; tendency for broader inclusiveness
57 Stjernø, S., 2005, p.199. 58 Ibid, p. 320.
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2.2 Theories on EU solidarity
The classic theories explaining solidarity were developed with a particular focus on the nation state. However, the EU and its legal norms, as suggested by different scholars59, suggest the existence of a new type of solidarity that goes beyond the borders and scope of the Member States. The “sui generis” nature of EU assumes the existence of a revived solidarity. The EU, with its peculiar legal, political and social dimensions and complex relations between the different actors and levels of the EU governance, is an example of a co-existence of national and supranational constitutional order. This order, however, could be sometimes challenged by internal (endogenous) or external (exogenous) threats, for instance in the field of economy or migration, and unpredictable conflicts that can lead to crises with different scope and nature. In order to explain different crises and challenges scholars have developed particular theories about the nature of EU solidarity. Some have made a link between the EU solidarity and Durkheim's idea of organic solidarity as the shared common values between the Member States and the feeling of the interconnection and common responsibility for the current and future prosperity of the EU create a specific transnational EU solidarity. In fact scholars suggest that such type of interstate organic solidarity in the EU can be based on two rationales, either direct reciprocity, in which helping someone is linked with the expectation of being helped in case of need, or "enlightened self-interest" that is based on the genuine belief that doing the right thing for the EU and its members will, in fact, help one's self-interest. A presentation of two contemporary EU solidarity theories and complementary opinions will follow: the Virtuous circle model of EU solidarity 60 and the Theory of transnational solidarity61.
59 For instance: Ross, M. and Borgmann-Prebil, Y., 2010; De Witte, F., 2015; Domurath, I., 2013. 60 Malcolm Ross in Promoting Solidarity in the European Union, (2010) edited by Malcolm Ross and Yuri Borgmann-Prebil, provides an extensive analysis of the role of solidarity in shaping EU policies and law. The book is based on contributions of experts in fields such as sociology, political science, and law. 61 Floris De Witte, in Justice in the EU: The Emergence of Transnational Solidarity, published in 2015 by Oxford University Press.
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As it has been presented in the previous section, Stjernø studies and summarises the different traditional conceptualizations of solidarity and gives his own definition of the term. However, scholars, such as Malcolm Ross, introduce the idea that in the case of the European Union, it is not necessary to identify solidarity with accordance to the peculiarities of the examined by Stjernø traditions, due to the sui generis nature of the EU. Furthermore, this means that the EU offers a unique case for studying which could suggest a special type of solidarity with a legal, political and economic dimension, which is not a characteristic of any other social tradition or entity. As a matter of fact, Ross acknowledges the existence of solidarities in the EU.62 His aim is to study the constitutional significance of solidarity in the European law and the normative nature of the concept while considering that the concept has a specific role in the EU and it is an important part of the Union's legal order. Departing from the assumption that solidarity is a mean through which the integrity of the society can be preserved, Ross summarises some of its elements.63 For instance, based on Heyd’s work, he concludes that solidarity also signifies exclusion, although this does not automatically presume a hostile meaning. 64 Furthermore, according to him, “mutuality”, understood as a balance between the feeling of responsibility and sympathy, and seen as a mean of encouraging mutual support among the people in a community, is an important element of the concept. The notion promotes equality, well-being, and fairness among the members of a group and does not require “self-sacrifice”. In contrast to Stjerno, Ross expands on the legal applications of solidarity, by exploring the interconnection of the term with responsibilities. Another important assumption about the concept is its connection with the public sphere. Ross states that together with the social dimension, the concept has its own political nature and participates actively in political discourses, and thus, should not be compared to an action or feeling of charity. 65 Such observation is also shared by Karagiannis, who states that “solidarity is the periodic specification of social bonds in a political perspective”66. With regards to this, Ross concludes, the multi-dimensional nature of the concept of solidarity suggests that
62 Ross, M., 2010, p. 28. 63 Ibid, p. 24, 28-29. 64 Heyd, D., 2007. 65 Ross, M., 2010, p. 28-29. 66 N. Karagiannis, 2007.
23 | P a g e different political projects could “contain” different dimensions of solidarity and thus, conflicts between them are possible. 67 In order to explain the diverse and multilevel nature of the concept and its implications, Malcolm Ross develops a model of a virtuous circle. This model constitutes of three elements which are linked to each other – creation, expression and sustainability (See Figure 1 Solidarity's virtuous circles). While creation and sustainability have social and political nature, the “expression of solidarity is a Figure 1 Solidarity's virtuous circles68 strongly – though not uniquely – legal phenomenon” 69 . With creation, Ross implies the idea of solidarity that is based on a particular consolidation of bonds that form the nature of the concept. Those bonds include “identity, shared values and belief, positive rights and responsibilities, and levels of security and anxiety”70. In the case of the EU and the presumption that different solidarities exist, “a theoretical model of European solidarity can credibly occupy a place that is neither an extremely thin ‘legal rights’ base nor a very thick statist or nationalist identity”71. By expression, Ross highlights the constitutional character of solidarity in the EU. The legal framework, the acquis communitaire, gives solidarity a pivotal role in the EU. The ratification of the Lisbon Treaty is a moment of the reassertion of the importance of the principle. Ross states that solidarity, as a constitutional value, has a significant impact on the European legal order. For instance, it can influence and transform other EU core values, such as citizenship and fundamental rights. As regards to citizenship, Habermas also emphasises on the existing connection with solidarity by stating that citizenship can be understood as an “abstract, legally mediated solidarity between strangers”72. Ross makes another important observation that both citizenship and solidarity are linked to
67 Ross, M., 2010, p. 29. 68 Source: Ross, M., 2010, p.30. 69 Ross, M., 2010, p. 35. 70 Ibid, p. 36 71 Idem 72 Jurgen Habermas, in Ross, M., 2010, p. 36.
24 | P a g e the idea of equal treatment. It has been also emphasised that citizenship and solidarity share the idea of inclusion or exclusion towards others especially in regard to immigration. The anti-EU movements oppose the expansion of the political community and the grant of rights to non-nationals, which suggests “that traditional class conflict has been replaced by a conflict of migrant versus citizens”73. Despite the lack of a stable position in the case law practice of the ECJ on citizenship, Ross concludes that the Court’s judgments imply that solidarity can be used as a tool to expand the rights granted by citizenship.74As regards to fundamental rights, Ross examines that the connection between solidarity and fundamental rights is more precarious, considering that in some occasions the latter could be restricted by the former. The author notes that such clash could occur, for example, in relation to the “question of how solidarity and rights-led approaches play out in relation to typical providers of services of general economic interest”75. The last component of Ross’s virtuous circle model of solidarity is sustainability. According to Ross, this dimension of the concept has the power to contest or re- estimate other discourses and paradigms, for instance – the trend of the nation state to ‘securitize’ issues in order to justify its interventions. The author proposes solidarity as a counterbalance to the securitizing biases and adds that nowadays, the “political power of ‘security’ can attempt to appropriate solidarity for its own ends – as witnessed by calls for ‘international solidarity’ in the so-called war on terror”76. The link between solidarity and security is considered ambiguous. For instance, enforcing politics of security would diminish the perception of threats, insecurities and over-all fears (for instance, fears about immigration and terrorism), thus, could strengthen the sense of solidarity. However, solidarity could be also abducted by security matters. Nevertheless, Ross considers solidarity as a powerful concept that has the power to shape policies, such as security. Furthermore, according to him, the existence of transnational solidarities can better ensure security in a society than nationalistic ideologies.77
73 Ross, M., 2010, p. 37. 74 See European Court of Justice Judgment, Case C-303/06 Coleman v Attridge Law and Steve Law [2008] ECR I-5603. 75 Ross, M., 2010, p. 38-39. 76 Ibid, p.39. 77 Ibid, p. 39-40.
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Another approach on solidarity is undertaken by Floris De Witte in Justice in the EU: The Emergence of Transnational Solidarity, (2015). While searching for an answer to the question “What does justice mean in the EU?", the author formulates the theory of transnational solidarity. This theory “serves to integrate the Union’s claims of freedom and equality beyond the state with the institutional and normative framework of the nation state that is indispensable in the production of norms of justice” 78. According to the author, solidarity is the tool for the process of institutionalisation of justice in the EU. De Witte’s understanding of solidarity is that “it is a normative reason of action, a motive for sharing resources – and as such it becomes a mechanism that allows for the translation of obligations of justice into actual right and entitlements”79. By using case law practice of the Court of Justice, De Witte discusses three different types of transnational solidarity: market solidarity, communitarian solidarity, and aspirational solidarity. Market solidarity covers the relationships established by the interactions in the internal market of the EU. Such relationships, based on economic benefits, have an impact on the concept of justice and create a reason for sharing resources among the different countries. De Witte states that market solidarity is a new version (a transnational one) of that type of solidarity that serves as a base for the development of the first national welfare rights. Furthermore, he points out that market solidarity reminds of what Durkheim called organic solidarity. In the case of EU, the transnational division of labour is a source of rights and obligations of solidarity. The economic interactions are not limited within the borders of the nation-state, hence, “market solidarity serves to integrate the associative connections that emerge through economic interaction on the internal market within the domestic structures of the welfare state”80. The communitarian solidarity derives from the idea of the EU as a community and entails the rights of citizens emerging in the process of interaction with other citizens in another Member State (host state). In contrast to market solidarity, which creates economic links between the EU citizens, the communitarian one is related to the establishment of social links. This type of solidarity does not permit the Member
78 De Witte, F., 2015, p. 74. 79 Idem. 80 De Witte, F., 2015, p.75.
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States to have different approaches, based on the criteria of nationality and residence while providing welfare access. It is important to note that, according to De Witte, this does not mean that migrant citizens have unlimited and absolute access to the host country’s welfare system. In fact, communitarian solidarity suggests that there is a different condition for access to the diverse welfare goods. For instance, emergency healthcare has different conditions for access than the right to receive a student grant in the host country. Furthermore, the more integrated the citizen is, the easier the access to welfare resources will be. Hence, in the EU, communitarian solidarity is connected with the idea of a membership, which is a base for sharing welfare goods with citizens of other Member States. The purpose of communitarian solidarity is to prevent discrimination based on nationality and to provide equal access to welfare goods, for those who are socially (and economically) active and socially engaged with the host state policy.81 Aspirational solidarity, as formulated by De Witte, presents the idea that organisations, including the EU, establish a specific role for the individuals corresponding to their own aspirations and objectives. The rights, given by the EU to its citizens, do not only serve to protect them as social or economic agents but they also correspond with the EU’s aspiration – preventing the Member States to restrict the opportunities of their citizens for having a ‘good life’. Part of the EU integration aspirations is to ensure the improvement of the life of people. De Witte, points out that the EU, and in particular, the ECJ, strives to help individuals to have a better life, rather than ensuring the objectives of the Union. Thus, the EU promotes the goal of the national welfare state in establishing opportunities for people to have a ‘good life’. It can also be perceived as a “negative obligation” on the Member States because it limits their ability to restrict citizens’ access to activities, resources, and possibilities that could bring a better life to the individual. Such opportunities for ‘good’ life, could be external, as the free movement of persons in EU or internal, for instance, access to the labour market. Aspirational solidarity aims to ensure stability in the nation-state, even though in some areas, such as labour law, it is apprehended as destabilising national norms. In sum, the correct understanding of aspirational solidarity is that
81 De Witte, F., 2015, 124.
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“entails a conditional obligation to allow citizens to pursue their conception of the ‘good life’ [and] not an absolute obligation to accommodate or stimulate this pursuit”.82 In sum, Malcolm Ross and Bruno De Witte acknowledge that the EU’s nature suggests and proves the existence of different solidarities. Both scholars while examining the multilevel nature of the concept try to find out its normative essence. In contrast to De Witte, who is strictly engaged with finding the role of justice in the EU and the correlation between justice and solidarity, Ross offers a broader analysis of the concept and its constitutional significance. His model of virtuous circles is developed to explain the legal, sociological and political aspects of the concept. Nevertheless, both models contribute to the better understanding of the concept and offer important insights about its nature. It can be concluded that solidarity is not just a simple idea of being part of a group but a robust and influential tool that has the power to transform. An important characteristic of solidarity is its ability to be used as a “constitutional principle that must uphold values and choose between priorities”83. Solidarity seems to be a significant tool for promoting and creating EU law and ensuring justice.
82 De Witte, F., 2015, p. 172. 83 Ross, M., 2010, p. 40.
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2.3. Methodological approach
The previous part of this chapter, presented the theoretical background of the thesis with the aim to provide a better understanding of the topic of solidarity. It also addressed the existing gaps of the available knowledge. The current section introduces the research design and the methodological approach used for the better analysis of the case studies. The careful study of the existing literature and theories about solidarity revealed key components of the notion and helped for the establishing of a new unified approach of solidarity and solidarity at the EU level. It should be noted from the above theoretical and literature review, however, that limited studies on solidarity in the asylum field are available. To the best of the author’s knowledge, the case of the legal and policy dimensions of solidarity in the EU asylum policy has not been given great attention by the researchers in the past and this motivated the present thesis. Analysing the normative power of a norm and fundamental EU principle, such as solidarity, and its real ability to provide an effective response to challenges in the context of a particular policy (in this case asylum policy), would provide important basis for studying the dynamics of the European integration. Hence, the added value of this thesis could be also found in its contribution to the debates between the mainstream theories and approaches on European integration such as rationalist and constructivist ones. Different theories and approaches on EU integration offer various explanations and suggestions of the significance of norms and their influence on policies and the policy-making process. 84 Those theories on European integration considered as interest-based85 tend to disregard the role of norms and values for the integration
84 Jileva, E. ,2004, p.9. 85 Such theory is the liberal intergovernmentalism. See: Andrew Moravcsik, The Choice for Europe. Social Purpose and State Power from Messina to Maastricht (Ithaca: Cornell University Press, 1998), 486–9; Andrew Moravcsik. and Kalypso Nicolaidis, “Explaining the Treaty of Amsterdam: Interests, Influence, Institutions,” Journal of Common Market Studies 37, no. 1 (1999), 59–85, 61.
29 | P a g e process, while other theories, such as constructivism86, underline the importance of norms, social ideas, values, discourse and culture for the European integration process.87 Rosamond, for instance, talks about “the constitutive effect of norm” with which he implies that norms, discourses and ideas at EU level can enter the national policies and influence the EU dynamics.88 In a nutshell, rationalist theories on EU integration consider the interest of the actors as a departing and crucial point for the outcome of the decision-making process. For instance, Andrew Moravscik’s theory of liberal intergovernmentalism, predominant in the 90s 89 , departs from the assumption that the Member States, during the decision-making process, follow their economic interest and their bargaining power influences the outcome of the intergovernmental negotiations. 90 Thus, the deepening of the European integration is closely linked with the states’ preferences and their bargaining power.91 Nevertheless, the rationalist accounts have been criticised for not being able to explain actions that are not based on interest and situations that are unexpected. 92 Such lack of flexibility of the theory aims to be compensated by constructivist approaches. 93 Constructivism attempts to explain outcomes of negotiations that cannot be explained by rationalist approaches and their
86 Some scholars do not consider constructivism as a theory on European integration such as neofunctionalism and intergovernmentalism. Rosamond for instance considers constructivism more an ontology than a theory. See: Rosamond, B. (2000). Theories of European integration. New York: St. Martin's Press.; Moravcsik, A. (1999). 'Is something rotten in the state of Denmark?' Constructivism and European integration. Journal of European Public Policy, 6(4), pp.669-681. Further reference: Checkel, J. (2006). Constructivism and EU Politics. In: K. Jørgensen, M. Pollack and B. Rosamond, ed., Handbook of European Union Politics. London: SAGE Publication, pp.57-77.; Risse, T. (2004). Social Constructivism and European Integration. In: A. Wiener and T. Diez, ed., European Integration Theory. Oxford: Oxford University Press, pp.159- 176. 87 Schimmelfennig, F., 2012, p. 34. 88 Rosamond, B. 2006 p. 131. 89 More about the dominance of liberal intergovernmentalism as a theory on the European integration: Pollack, Mark A. (2001) ‘Theorizing European Integration and Governance: International Relations Theory and European Integration’, Journal of Common Market Studies 39(2): 221–44. 90 Moravcsik, A. 1993; Moravcsik, A., 1998; Moravcsik, A. and Nikolaides, K., 1999. 91 Moravscik, A., 1993, p. 480. See also: Moravcsik, Andrew (1998) The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, Ithaca, NY: Cornell University Press. and Moravcsik, A. and Nicolaidis, K. (1999). Explaining the Treaty of Amsterdam: Interests, Influence, Institutions. JCMS: Journal of Common Market Studies, 37(1), pp.59-85. 92 Jileva, E., 2004, p. 8. 93 Schimmelfennig, F., 2012.
30 | P a g e interest-based element. It takes into account the role of norms as an explanation of the states’ behaviour. In contrast to rationalist theories, constructivism gives an answer to questions such “as ‘why share costs’ [and represents] complementary or alternative account to more prominent cost–benefit models”. 94 The effectiveness of integration, according to constructivist approaches, depends on the high level of “domestic or societal resonance of EU ideas” 95 . Constructivists consider that the “European integration is at its core a process of community building”96. According to them, communities are built upon shared values and normative beliefs. Hence, the EU considered as a community comprised of states that share common norms, values and goals has been a good case for testing constructivism.97 Moreover, such normative nature of the EU gave rise to theories about its role as an international actor and its normative power.98 For instance, Ian Manners, while examining the international role of EU as a promotor of norms, explores the normative basis of the EU and identifies “five core norms” constituting the “the acquis communautaire and acquis politique”99. Those five fundamental norms that guide the European law and policies, according to Manners, are peace, liberty, democracy, rule of law and respect for human rights and freedoms. 100 Moreover, he suggests the existence of minor norms among which is solidarity. 101 Thus, the approach of linking the constructivist emphasis on the significance of norms, such as solidarity, for the integration process and the normative power of EU, is believed to contribute to a coherent and valuable analysis of the current thesis’ topic. In sum, constructivism with its norm-based approach has been applied to various domains of EU integration and policies such as enlargement policy, EU
94 Jileva, E., 2004, p.8. 95 Schimmelfenning, p. 4. 96 Ibid, p. 3. 97 Idem. 98 See: Ian Manners. (2002). Normative Power Europe: A Contradiction in Terms?, Journal of Common Market Studies, 40:2, 235-58; Ian Manners. (2006), Normative Power Europe reconsidered: beyond the crossroads, Journal of European Public Policy, 13:2 182-199. Ian Manners, The normative ethics of the European Union, International Affairs, 84:1 (2008), 46- 60. Helene Sjursen, The EU as a ‘normative power’: how can this be?, Journal of European Public Policy, 13:2 (2006), 235-251. Adrian Hyde-Price, ‘Normative’ power Europe: a realist critique, Journal of European Public Policy, 13:2 (2006), 218-234. 99 Manners, I., 2002, p.242. 100 Idem. 101 Idem.
31 | P a g e citizenship, economic integration and foreign policy. 102 By setting a focus on the importance of socially constructed values and norms for the integration dynamics, constructivism offers a reasonable base for the present study on the essence, significance and normative power of solidarity in the EU asylum policy. After presenting different theories on solidarity in the first chapter, with the aim to answer the first research question: How can we define the notion of solidarity and solidarity in the EU?, the rest of the thesis will attempt to further extend the knowledge about the role and significance of solidarity in the EU, through an analysis of solidarity at supranational level (EU) and national level (two Member States: Bulgaria and Italy). The first step is a comprehensive legal and policy analysis of the role of solidarity at EU level by using historical, legal, and policy analysis of the Treaties of the EU and the EU asylum policy documents. Such analysis will provide answers to the research sub-questions: How is solidarity incorporated in the EU legal order? and What is the place of solidarity in the EU asylum policy? The second step of the thesis is the assessment of the place of solidarity in the legal and policy asylum order of Bulgaria and Italy and thus developing the national perspective of this thesis. It is based on constitutional, historical and policy analysis. The selection of the two case studies is not random. The two cases were selected due to their direct engagement with the issue of providing asylum in the current migration challenge. Both countries represent external borders of the EU. Furthermore, due to the difference of the accession time to the EU, Italy is a founding member and Bulgaria only became a member of the EU in 2007, a comparison between an “old” and “new” Member State can be made. Both countries have a similar type of government. Furthermore, both are parliamentary republics and the fact that both have the continental type of constitutions offers a suitable ground for comparison.
102 On the topic solidarity and enlargement policy see: Schimmelfennig, F. and Sedelmeier, U. (2002). Theorizing EU enlargement: research focus, hypotheses, and the state of research. Journal of European Public Policy, [online] 9(4), pp.500-528. and Jileva, E. (2004). Do norms matter? The principle of solidarity and the EU's eastern enlargement. Journal of International Relations and Development, [online] 7(1), pp.3-23. On the topic of foreign policy and solidarity see: Thanasis Pinakas "The notion of solidarity in European Foreign Policy: a realist-constructivist approach", presented at the European Foreign Policy Conference 2006, London; Glarbo Kenneth, (1999) "Wide-awake Diplomacy: Reconstructing the Common Foreign and Security Policy of the European Union", Journal of European Public Policy, 6:4 Special Issue, pp..634-51; Tonra Ben, (1999) "Social Constructivism and the Common Foreign and Security Policy", Conference Paper, Workshop on Social Constructivism and European Studies, Ebeltoft, Denmark.
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The methodology for comparison and analysis of the correlation between solidarity at EU level and national level includes three criteria (see Table 3). These criteria will be applied both to the legal and policy perspectives and they will be based on analysis of the examined documents. As a research approach, this thesis uses a content analysis to determine the presence of the concept of solidarity within the identified set of texts. Two types of content analysis will be used – conceptual and relational. The first criteria will be based on conceptual analysis with the aim to discover the frequency of solidarity usage in the legal and policy documents. The second and the third criteria are based on a relational analysis which will permit to go further in the analysis by finding out what is the relation of solidarity to the concept of asylum in the examined texts and what kind of meanings emerge from the context in which solidarity is used. The analysis of solidarity at supranational (EU) and national level (Bulgaria and Italy) is believed to effectively outline the evolution of the concept in the EU legal and policy order, its presence at national level, its characteristics, and to provide basis for comparison that will answer the final research sub-question of the thesis: What is the correlation between solidarity in the EU law and asylum policy and solidarity in the law and asylum policies of two of the Member States – Bulgaria and Italy? Table 3 Criteria for analysis of the legal and policy perspective of solidarity
Legal and Policy perspective of Solidarity
Criteria 1 Conceptual analysis – frequency of usage of the term solidarity in the examined legal/policy documents
Criteria 2 Relational analysis - relation of solidarity to asylum
Criteria 3 Relational analysis – relation of solidarity to other concepts
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3. EU PERSPECTIVE
"Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity."
Robert Shuman103
This chapter examines the emergence of the concept of solidarity in the Treaties of the EC/EU. The idea is to trace the introduction, development, evolution and scope of solidarity through a legal analysis of the primary sources of law in the EU – Founding Treaties and their protocols, and the amending EU Treaties and their protocols, excluding the Treaties of accession of Member States to the EU. The legal base of solidarity (as laid down in the EU’s Treaties) will be presented. Additionally, this section gives a short summary of the case law practices of the European Court of Justice that is related to the concept of solidarity. In the second part of this chapter, an analysis of EU asylum policy will be made in order to examine the place of solidarity within it. Thus, the study made in the following sections will contribute to the answering of the second and third subquestions of this thesis: How is solidarity incorporated in the EU legal order? and What is the place of solidarity in the EU asylum policy?
3.1. Legal perspective
The entering into force of the current EU Treaties, in 2009, gave solidarity a pivotal place in the EU legal order by positioning it together with EU’s fundamental values such as democracy, rule of law, justice, tolerance.104 However, the idea of solidarity is not a pure novelty of the Lisbon Treaty and it has a long history through the dynamics of the European integration history. Solidarity, as a mean of establishing peace in Europe, became popular after the Second World War. The creation of the European Community was a step forward towards a peaceful and prosperous Europe. The concept of solidarity has been
103 Shuman, R., 1950. 104 Consolidated Version of the Treaty on European Union, 2016 (hereinafter TEU), Article 2.
34 | P a g e introduced into the political discourse of European integration since its very beginning, e.g. in the Schuman Declaration of 1950.105 The idea of solidarity, before having a treaty basis, was part of the mindset of the leaders of the six countries who “developed” the European Communities. Solidarity was a concept that would ensure the achievement of peace in Europe, by starting the integration of the Community from the economically important sphere of coal and steel.106 The goal of the founding fathers was to expand the integration to more and more sectors, by establishing also political, military and defence union. The strong sovereignty concerns of the Member States of the European Coal and Steel Community led only to the creation a European Defense Community and a European Political Community. The letdown of the unrealised idea of creating a military community in 1954, was a significant sign for the six founding Member States that the European integration has its limits and should be a process in which the power of national sovereignty should not be underestimated.107 The content analysis of the Treaty of Paris108 shows that there is no reference to the concept of solidarity. Moreover, the Treaty of Rome109 has only one explicit reference to solidarity, placed in the Preamble. However, this reference addresses the relations between the Member States in accordance to their overseas territories and does not touch any mutual matters of integration.110 Despite the fact that the Treaties do not include explicit mentioning of solidarity, researchers consider that the call for an “ever closer union” reflects the attitude of the founders to use solidarity as an integration value and tool.111 The first amendment of the Founding Treaties - The Single European Act (SEA) makes a big step forward towards an unambiguous incorporation of the concept of solidarity in the process of European integration. The SEA states that in order to effectively reach the goal of the Community – protecting the common interests and
105 Niznik, J., 2012, p. 9. 106 Ferreira-Pereira, L and Groom, A., 2010, p. 599. 107 Ferreira-Pereira, L and Groom, A., 2010, p.599. 108 Also known as Treaty establishing the European Coal and Steel Community. 109 Also known as Treaty establishing the European Economic Union. 110 Treaty establishing the European Economic Union (hereinafter Treaty of Rome), 1957, Preamble: INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations 111 McDonough, P. and Tsourdi, E., 2012, p. 599.
35 | P a g e interdependencies, there is a necessity to “act with consistency and solidarity” 112 . Solidarity is thus mentioned together with other pivotal values such as respect for human rights, democracy and rule of law. In the following years the principle of solidarity gained more significance as a tool that governs the European integration process. Scholars claim that the Structural and Cohesion Funds were directly linked to solidarity and emphasise solidarity slowly expanded from the economic sphere of integration to the political one.113 The Treaty of Maastricht, signed in February 1992, put the integration process on another level – a political one. The creation of the European Union with its three- pillar structure: European Communities, Common Foreign and Security Policy (CFSP), and Justice and Home Affairs Cooperation (JHA), was a significant step forward towards shaping the future of the Union. The actions in the second and the third pillar were coordinated by intergovernmental cooperation. The Treaty of Maastricht explicitly refers to solidarity six times in different context – economic and social cohesion, common external and security policy, solidarity in the EU actions as part of the Western European Union and a reference to solidarity actions in the Declaration on Asylum. 114 The Treaty of Maastricht replaces the term European Economic Community with European Community and introduces changes to Article 2 by adding new aspects of the primary aim of the Community. One of those aspects is the explicit mentioning of “economic and social cohesion and solidarity among the Member States”115. Furthermore, in the provisions of a CFSP, the Treaty states that loyalty and mutual solidarity should be an existential part of the Member State’s actions.116 It should be noted, that the mentioning of mutual solidarity in relation to common defence “did not stand for the acceptance of mutual security guarantees for the territorial defence of Member State"117. The text explicitly states, that “the specific character of the security and defence policy of certain Member States”118 should not be disobeyed by the Treaty. Thus, the Treaty respected the neutrality of countries such as
112 Single European Act, (1986), Preamble. 113 Ferreira-Pereira, L and Groom, A., 2010, pp. 599-600. 114 Treaty on European Union, 1992, (hereinafter Treaty of Maastricht), Preamble; Article A, Article J.1.4, Protocol on economic and social cohesion, Declaration on Western European Union, Declaration on Asylum. 115 Treaty of Maastricht, 1992, Title II, Article G, B.2. 116 Ibid, Title V, Article J.1.4. 117 Ferreira-Pereira, L and Groom, A., 2010, p. 601. 118 Treaty of Maastricht, 1992, Article J.4.4.
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Ireland and its unwillingness to be part of the of common defence commitments but it also made sure that such countries will not impede the other Member’s defence commitments. Furthermore, Article J.4.4 confirms the primacy of the North Atlantic Treaty in the field of common defence and security policy. Considering this, experts conclude that the concept of solidarity in the Maastricht Treaty had two restraining aspects for military solidarity – the Irish clause, later, used by Austria, Sweden, and Finland, and the primacy of NATO.119 Another novelty of the Treaty of Maastricht was the introduction of provisions on European citizenship120, which gave rise to the development of social solidarity jurisprudence by the ECJ.121 In Sodemare C-70/95, paragraph 29 the ECJ interprets social solidarity for those that are in need of social benefit by using the principle of proportionality.122 The Court approach “has balanced the interests in national and transnational solidarity by extending national solidarity to non-national EU citizens”123. With Martinez Sala C-85/96 and later on Trojani C-456/02 the access to the national social security system of individuals was expanded, considering the lawful residence permit as a valid prerequisite for the access of a non-national to the host state social benefits system without taking into account the financial status of the individual.124 The judgement Martinez Sala C-85-96 was an important step for the recognition of the principle of equal treatment as stipulated by the Treaty and is an inseparable part of the idea of social solidarity.125 With the judgment Grzelczyk C-184/99 social solidarity was expanded with "a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary".126 The judgement also recognised
119 Ferreira-Pereira, L and Groom, A., 2010, 2010, p. 601. 120 Treaty of Maastricht, 1992, Article 8, 8a-8e. 121 Guibboni, S. 2015, p. 3. Further reference: Jo Shaw (ed.), Social Law and Policy in an Evolving EU (Oxford: Hart, 2000); G De Búrca, ed., EU Law and the Welfare State: In Search of Solidarity (Oxford: Oxford University Press, 2005); Eleanor Spaventa and Michael Dougan, (eds) Social Welfare and EU Law (Oxford: Hart, 2005) 122 Domurath, I., 2013, p. 461. 123 Idem. 124 Giubboni, S., 2010, p. 172. 125 Idem. 126 European Court of Justice, Grzelczyk C-184/99.
37 | P a g e students as citizens of the EU and approved their right on social benefits.127 In this regard, the case Bidar C-209/03128 affirmed the idea of providing social solidarity to non-nationals with the condition not to become a financial burden for the hosting country. In addition, in the Collins C-138/02 judgement, ECJ ruled that the host country can enforce more requirements for granting social security access to individuals who have recently entered the country.129 In sum, departing from the internal market dynamics and its social dimension, the ECJ developed an approach for granting social solidarity “beyond the traditional beneficiaries of the economic freedoms” 130 . The judgments of the ECJ, by linking European citizenship rights with the principle of solidarity, created a new discourse on transnational solidarity. The concept of social solidarity in the EU for granting access to national welfare benefits was recognised as a right for non-nationals due to their status as citizens of the EU. With the cases Baumbast C-413/99 and Zambrano C- 34/09 the Court extended the idea of financial solidarity to non-economically active individuals.131 Giubboni argues that the ECJ case law practice contributes to the establishment of a trend of transnational solidarity by extending the access to social benefits from economically active individual to non-economically active ones. 132 Furthermore, Giubboni, drawing to some extent on Reiner Zoll133, uses Durkheim’s notions of mechanical and organic solidarity to illustrate the emergence of social solidarity at EU level. In his reading, mechanical solidarity is established between individuals, with no regard to their nationality, who are economically active and participate in the market process, while the organic one refers to the relation between economically active and non-active persons.134 The Court practice, however, indicates also that this new type of cross-border social solidarity135, mechanical and organic, has some prerequisites. For instance, a certain level of integration of the individual
127 Giubboni, S., 2010, p. 176. 128 Recent case consistent with Bidar judgement: Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep. Grand Chamber Judgment of 18 November 2008. 129 Domurath, I., 2013, p. 462. 130 Idem. 131 Idem. 132 Giubboni, S., 2010, p. 190-191. 133 See: Reiner Zoll, La solidarietà. Eguaglianza e differenza (Bologna: ll Mulino, 2003). 134 Giubboni, S., 2010, p. 190-191. 135 On the topic of European cross-border social solidarity, see also M. Paci, Welfare, solidarietà sociale e coesione della società nazionale` (2008) Stato e Mercato.
38 | P a g e into the society is needed so he/she does not become a financial burden for the host country. In other words, “national solidarity is extended to non-nationals based on “acquired sameness””136. The financial solidarity, according to Giubboni, is created on the premises of “sameness” between the individuals benefiting from the national social schemes in the territory of a country. The integration into the society, based on the time of legally residing in the country, is a crucial condition for “sameness”. Notwithstanding the ECJ case law practice on social solidarity, authors 137 conclude that the Court’s practice did not lead to a stable creation of a European transnational solidarity. In this sense, with the cases Viking C-438/05 and Laval C- 341/05, the ECJ did not “recognise the constructive potential for the European political project of social solidarity which truly originates from transnational collective action at Community level”138. Furthermore, the cases Brey C-140/12 and Dano C- 333/13 are examples of the Court’s step back from its own practice to consider the EU citizenship as a basis for transnational social solidarity. After the Brey139 judgement, the ECJ continued in Dano C-333/13 to go against its own judicial practice established with Martinez Sala C-85/96, namely to facilitate the access of economically non-active citizens to the national social schemes of a host country on the premise of equal treatment.140 Such puzzling change in the judicial practice led to questioning whether the ECJ has the potential to put forward the idea of an explicit and unambiguous common solidarity.141 To a greater extent, this led to questioning of the possibility of existence of a genuine European solidary society.142 The Treaty of Maastricht added important policy fields into to the European integration agenda such as judicial cooperation in criminal and civil matters, combatting terrorism, the establishment of a European Police Office (Europol), control
136 Domurath, I., 2013, p. 463. 137 Giubonni, S., 2010, p. 195 and Domurath, I., p. 463. 138 Giubonni, S., 2010 p. 195. 139 More on the controversial ECJ practice established with Brey case: Verschueren Herwig , 2012a, ‘Union Law and the Fight against Poverty: Which Legal Instruments?’, in Cantillon Bea, Verschueren Herwig and Ploscar Paula (eds), Social Inclusion and Social Protection in the EU: Interaction between Law and Policy , Intersentia, Cambridge – Antwerp – Portland, 205 – 231. 140 Giubboni, S.,2015 p. 11. 141 Barnard, C., 2010, p.194-195. 142 Domurath, I., 2013, p. 463. Further reference: Bruter, M. 2005. Citizens of Europe? The emergence of a mass European society. Basingstoke: Palgrave Macmillan; Michalski, K. 2008. What holds Europe together? Budapest and New York: Central European University Press.
39 | P a g e of illegal immigration and common asylum policy. However, the Union’s goal to create common action in these sensitive for the nation states fields was limited by intergovernmental cooperation. The Treaty of Amsterdam, signed in October 1997 and entered into force in May 1999, had as a main goal to reform the institutions of the EU and to prepare the Union for its future enlargement. Some of the areas, such as asylum, immigration, external borders control and judicial cooperation in civil matters were moved from the third (intergovernmental) pillar to the first one, where the community method for decision making was used. The Treaty of Amsterdam mentions the term solidarity five times. An important change is made in Article J.1.2 where the phrase ‘mutual solidarity’ is replaced by ‘mutual political solidarity’ emphasising the political nature of the cooperation in the field of CFSP. The Treaty introduced the possibility of constructive abstention, which means that a country can decide not to participate in a voting, in certain cases, and that will not impede the actions of the other Member States. Together with the Irish clause and the supremacy of NATO, scholars state that this clause could have had a negative effect on the developing of solidarity in the CFSP by “creat[ing] a multilayered solidarity especially at the behest of neutrals”143. In this regards, Ferreira-Pereira and Groom suggest that the period after the Amsterdam Treaty was characterised by the emergence of three types of solidarity – ‘Europeanist solidarity’, ‘transatlantic solidarity’ and ‘limited solidarity’. The Europeanist solidarity was supported by the founding fathers of the European Communities, excluding the Netherlands. They agreed on the expansion of the principle of solidarity in the military field. The Atlanticists recommended the ‘transatlantic solidarity’, supporting political solidarity with defence cooperation. Lastly, the ‘limited solidarity’ was performed by the neutrals that were against any commitments in the field of defence.144 The left-overs of the Treaty of Amsterdam, such as the composition of the institutions, mostly the Commission, the weighting of votes in the Council, and the extension of QMV voting, were supposed to be cleared up by the Treaty of Nice. The Treaty of Nice signed on 26 February 2001 and entered into force on 1 February 2003, made those institutional reforms that were meant to be addressed by the Amsterdam Treaty. The amendments to the Treaty of Nice, however, did not include even one
143 Ferreira-Pereira, L and Groom, A., 2010, p. 602. 144 Ibid, p. 603.
40 | P a g e mentioning of the term solidarity. This suggests that this Treaty maintains the already existing status quo of solidarity in the EU legal order. However, it is important to remark that the Charter of Fundamental Rights of the European Union was proclaimed by the European Council in Nice. The Charter is comprised of six titles of fundamental rights and freedoms, one of which is named Solidarity (Tittle IV). 145 Nevertheless, the Treaty of Nice left some important questions unanswered such as the competences between the EU and the Members States, the role of national parliaments in the EU, and the legal status of the Charter of Fundamental Rights. In line with Declaration No 23, annexed to the Treaty of Nice, the European Council meeting in Laeken took a decision to set up a Convention that will address the question of the future of the European Union. The main goals of the meeting were to prepare for the next Intergovernmental Conference, which was supposed to tackle domains such as better division of competences, democracy and to draft a constitution for Europe. The debates in the Laeken meeting resulted in the adoption of the Laeken Declaration on the Future of the European Union.146 The Declaration explicitly refers to the term solidarity four times. It acknowledges that the progress and success of the Union are based on “mutual solidarity and fair distribution of the benefits of economic development”147. Furthermore, solidarity is mentioned together with human values and liberty, approving the new role of Europe in the global scene. Europe in the globalised world is seen as a “power seeking to set globalisation within a moral framework, in other words, to anchor it in solidarity and sustainable development”148. The Declaration of Laeken became the basis for negotiation of the European Constitution. In the end of October 2004, the Treaty establishing a Constitution for Europe (known also as the Constitutional Treaty and European Constitution) was signed by 25 Member States. The European Constitution envisioned bold changes that eventually impeded its successful ratification. Among the provisions were a repeal of the pillar structure of the Union, creation of the post of EU Minister for Foreign Affairs, merging of the European Community with the European Union and creating one single legal personality, establishment of an area of freedom, security and justice,
145 European Union, 2012. 146 European Council, 2001. 147 Idem. 148 Idem.
41 | P a g e incorporation of an exit clause that will allow the Member States to leave the Union.149 The Draft Constitution has twenty references to the solidarity concept. The Constitution explicitly refers in Article III-257 to the principle of solidarity, in relation to the area of the common asylum, immigration, and external borders policy. Despite the strong persistence of the concept of solidarity throughout the Constitutional Treaty, the Dutch and French ‘No’ on the referendum for the ratification, blocked the adoption of the Treaty. 150 The failure of the Constitutional Treaty gave rise to scepticism about the future of the European project and the future of the European solidarity. 151 The next step of the European integration process was to revise the provisions of the Constitution in a way that will guarantee the approval of all the Member States. The Lisbon Treaty, largely base on the Constitutions provisions, was signed three years later. The Lisbon Treaty, entered into force on 1 of December 2009, is an important step forward for the European integration after the unsuccessful ratification of the European Constitution. The Treaty of Lisbon amends the Treaty of Maastricht, now known as Treaty on European Union (TEU) and the Treaty of Rome, now Treaty on the Functioning of the European Union (TFEU). The Treaty of Lisbon brings the concept of solidarity to a new level. The TEU refers to the concept of solidarity 11 times – Preamble, Article 2, 3(3)152 and (5), 21(1), 24(2) and (3) 153 , 31(1) and 32 TEU. According to Article 2, TEU, solidarity is a founding value of the EU and it is mentioned in the together with justice, tolerance and gender equality. In reference to the Union’s external relations, the EU aims at being an active partner in the process of ensuring “peace, security… sustainable development of the Earth, solidarity and mutual respect among peoples”154. The relational analysis of the text shows no connection between solidarity and asylum. It is, however, related to concepts such as peace, security and sustainable development155 and democracy and rule of law156. TEU calls for solidarity
149 Dimitrova, et al., Forthcoming, p. 79. 150 Ibid, p. 78. 151 Giubboni, S., 2007, 379. 152 Mentioned twice. 153 Mentioned twice. 154 TEU, 2016, Article 3 (5). 155 Idem. 156 Ibid 2016, Article 21(1),
42 | P a g e between EU peoples 157 , solidarity between generations 158 , and solidarity among states159. Furthermore, the TEU makes an explicit reference to solidarity as a tool for achieving the Union’s goals in the domain of CFSP and calls for loyalty, mutual and political solidarity between the Member States.160 The TFEU refers to solidarity 7 times – Preamble, Article 67 (2), 80 (1), 122 (1), 194 (1), 222 (1) and (3) TFEU. In the area of freedom, security, and justice, TFEU envisions solidarity as a base for establishing a successful common policy on asylum, irregular immigration and external border control.161 Moreover, solidarity is considered as a principle that should be used as a base when the Council takes a decision concerning the Member States’ economic policy, and specifically energy matters.162 The relational analysis shows that TFEU uses solidarity in the context of asylum, immigration, external border control, economic policy, and energy policy. Article 222, TFEU, also known as “solidarity clause”, envisions common response, based on solidarity, of the EU and its Member States in the case of terrorist attacks and natural or man-made disasters. According to scholars, the Lisbon Treaty has improved the legal building of solidarity by establishing a “three-dimensional understanding of solidarity: solidarity between Member States, among Member States and individuals, and […] also between generations” 163 . The Lisbon Treaty reaffirms the significance of solidarity as a constitutional value in the EU.164 Another important contribution of the Lisbon Treaty is the clarification of the legal status of the Charter of the Fundamental Rights, which was proclaimed in the Nice European Council on 7 December 2000. The Lisbon amendment makes the Charter part of the EU primary law.165 The chapter ‘Solidarity’ of the Charter deals with matters such as environmental protection, health care, worker’s rights, etc. Thus, solidarity between individuals and Member States is consolidated by linking the economic internal market with a social aspect.166
157 Ibid, Preamble and Article 3(5). 158 Ibid, Article 3(3). 159 Idem. 160 Ibid 2016, Article 24(2) and 24(3), 31(1), 32. 161 TFEU, 2016, Article 67 (2). 162 Ibid, Article 122 (1). 163 Domurath, I., 2013, p. 460. 164 Ross, M., 2010, p. 35. 165 TEU, 2016, Article 6 (1). 166 Domurath, I., 2013, p. 460.
43 | P a g e
In conclusion, the dynamic history of EU integration proves that sovereignty concerns have a significant power over the shaping of EU discourse, politics, and values. In domains of intergovernmental cooperation, such as the CFSP and JHA, the idea of flexible solidarity was the only possible scenario, due to the fact that in such policy fields national interests and sovereignty played a crucial role in the future of the European integration. Nonetheless, it should be admitted that the Treaty of Maastricht has a significant role in promoting solidarity in the EU. According to scholars, the emergence of solidarity “as a psychosocial commitment [gave] rise to an ever more confident expectation that any member belonging to the European economico-political club was likely to benefit from manifestations of solidarity in case of need”167. The adoption of the Treaty of Amsterdam confirmed that the concept of solidarity will be an immense part of the Union’s integration process. However, it also emphasised that solidarity, in areas of intergovernmental cooperation, has a problematic implementation as a concept and tool of the European integration process. Despite this, the transition of policies, such as asylum, and irregular immigration, from the third pillar to the first pillar was a promising step towards an expansion of solidarity in new policy domains, which became obvious with the Treaty of Nice and subsequently with the Treaty of Lisbon. In this section, the attempt was to trace the genesis of the solidarity concept in the Treaties of the EU. The brief overview of the most important steps of the process of embedding solidarity in the European legal order shows that the concept occupies a significant place in it. The expansion to different policy areas seems to be influenced by the sovereignty concerns of the Member States. This section presented solidarity as perceived in the EU legal order. The next step of this thesis is to examine the situation in the asylum policy field with the aim to answer the next research question: What is the place of solidarity in the EU asylum policy?
167 Ferreira-Pereira, L., and Groom, A., 2010, p. 602.
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3.2. Policy perspective
Having in mind that the current thesis sets focus on solidarity in one particular policy field, (asylum) this part of the chapter consists of policy analysis of the European asylum policy. One of the aims is to provide a comprehensive historical review of the development of EU competences in this field. Moreover, the analysis of the asylum provision’s content in the current section contributes to finding out the place of solidarity in the European asylum policy.
Historical overview of the European asylum policy
Asylum policy was not a part of the integration sphere of the European Community (EC) until the end of the 80s and the beginning of the 90s. Even though all Member States had signed the Geneva Convention relating to the Status of Refugees (1951) and the Protocol to the Geneva Convention (1967)168 each of the countries in the EC had its own asylum system and policy. Under those circumstances, the EC had the opportunity of being an important player in the field of refugee protection and asylum. The EC made its first attempts for cooperation in the field of asylum in 1986 when an Ad Hoc Group on Immigration was founded. A subgroup on the right of asylum was also established. Four years later, in 1990, the EC adopted the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (known as "Dublin Convention").169 A closer look at the Convention wording shows that the version has no explicit reference to the term solidarity. In fact, asylum policy was introduced for first time in the EU legal order with the Treaty of Maastricht. The Treaty states that in the field of justice and home cooperation asylum is the first one of the nine “matters of common interest”170. The policy was placed in the Third Pillar (Justice and Home Affairs) where the cooperation between the Member States was based on intergovernmental approach. Scholars
168 The protocol to the Geneva Convention Relating to the status of Refugees was adopted in 1967 and it changed the geographic scope of application of the Convention, so that the Convention will apply to refugees without any geographic limitation. 169 European Union, 1990. 170 Treaty of Maastricht, 1992, Article K.1.1.
45 | P a g e consider that “the measures adopted on the basis of such inter-governmental arrangements tended to be restrictive [and] in line with the preference of the dominant actors – the Interior Ministers – whose preferences were not counter-balanced by those of other actors”171. Furthermore, the cooperation at EU level was limited due to the fact that the resolutions and recommendations of the EU had no legally binding effect on the Member States. 172 An important change was made with the Treaty of Amsterdam when the policy of asylum was moved from the Third to the First Pillar. Article 73(k) establishes the main Council goals in the area. The Treaty foresees the adoption of measures on asylum, refugees and displaced persons, such as minimum standards on reception, procedures, mechanism and criteria. Furthermore, the article endorses the so-called burden-sharing measures. The Treaty of Amsterdam strengthened the role of the ECJ in the field of asylum. However, Article 73(p)173 establishes a limitation of its jurisdiction. Despite the extension of competences that the Treaty of Amsterdam granted to the EU, those competences “were still limited with regard to both the scope of the work programme and the level of harmonisation to be achieved”174. Hence, the Member States continued to be the key actors in the asylum policy field. In 2001, the Treaty of Nice stipulated that the Council, by acting unanimously and after a consultation with the Parliament, should adopt measures on minimum standards on reception, the status of refugees and procedures. The Treaty also states that after this first phase of establishing the common rules, the Council can also act following the standard co-decision procedure, which means that
171 Kaunert, C., and Leonard, S., 2012, p. 8. 172 Geddes, A., 2008. 173 Treaty of Amsterdam, 1997, Article 73p: 1. Article 177 shall apply to this Title under the following circumstances and conditions: where a question on the interpretation of this Title or on the validity or interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. 2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 73j(1) relating to the maintenance of law and order and the safeguarding of internal security. 3. The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this Title or of acts of the institutions of the Community based on this Title. The ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata. 174 Kaunert, C., and Leonard, S., 2012, p. 9.
46 | P a g e unanimity will be replaced by qualified majority. In practice, since 2005 the Council applies co-decision procedure. With the entering into force of the Treaty of Lisbon in 2009, the legal framework of the EU asylum policy was established - Article 3, (2) TEU, Article 67 TFEU, Article 77, Article 78, Article 79 and 80 of TFEU. As examined by scholars, the Treaty of Lisbon “incorporated at a constitutional level the competences of the EU in developing asylum policy” 175 Hence, this latest amendment of the Treaties expanded the competences of EU. This becomes obvious by the wording of the Lisbon Treaty where “common” system and procedures are replacing the minimum standards. This common system includes uniform procedures and uniform status. The Treaty also mentions the “status of asylum” as a substitute of the earlier “qualification as refugees”, which was a full replication of the Geneva Convention. 176 Another novelty was the application of the ordinary legislative procedure in the field of asylum, set up in Art. 294, TFEU. As stated before, the Treaty of Nice weakened the intergovernmental approach of decision taking in this field, by introducing co-decision procedure with a qualified majority vote in the Council. However, the introduction of the ordinary legislative procedure in the field was important for the European Parliament because thus its decision-making could not be challenged and it was guaranteed by the latest Treaty. The Treaty of Lisbon made another institutional change – it extended the powers of the ECJ the Area of Freedom, Security and Justice by giving the ECJ the preliminary reference jurisdiction in the whole field and thus it "opened the opportunity for a judicial shaping of asylum policy and Union competences based on a number of cases that are, and will be coming, in front of the Court" 177.
Article 80, TFEU
The Treaty of Lisbon, in Article 80 TFEU, foresees that policies in Chapter 2 (Border checks, Asylum and Immigration) should be governed by the “principle of solidarity
175 Bačić, N., 2012, p. 55. 176 Idem. 177 Idem.
47 | P a g e and fair sharing of responsibility”178. This formulation suggests on one hand that the EU is granted the power to adopt measures to carry out this principle and on the other hand that the principle of solidarity is explicitly coupled with “fair sharing of responsibilities”.179 Furthermore, the mentioning of solidarity as a “principle” leads to the suggestion that “its nature differs from strict binary rules that prescribe or prohibit certain behaviour…[and suggests that it should] be realised to the highest degree that is actually and legally possible, depending on the circumstances at hand”180. The article is not clear about actual measures to be adopted in order to put the solidarity principle in effect. It contains a reference to financial solidarity as an instance of support that can be provided but “the content, as well as the forms of solidarity, remain circumstance-particular and context specific”181. An examination of the legal impact of Article 80, TFEU in accordance with solidarity applied to borders and asylum leads to the conclusion that the there is no absolute interpretation of this article.182 Based on a study made for the European Parliament183, McDonough and Tsourdi offer possible interpretations. For instance, the wording “whenever necessary” suggests a link with the principles of subsidiarity and proportionality.184 This means that the EU should act only when it is necessary, hence, in an area of shared competence as asylum, EU should take actions only if the aims will be better reached at supranational level.185 A Recent analysis of the provisions of Article 80, TFEU suggests that the fact that the policies covered by it are related to free movement of people could be a challenge for the application of solidarity and fair sharing of responsibility because of the different objectives of those policies. This is to say that a possible conflict can arise when Member States exercise solidarity as regards to refugee protection and solidarity in reference to border management and regular or irregular migration. Thus, a
178 TFEU, 2016, Article 80. 179 Karageorgiou, E., 2016 p. 4. 180 Idem. 181 Karageorgiou, E., 2016, p. 4. Further reference: Vanheule, D., et all. (2011)‘The Implementation of Article 80 TFEU on the Principle of Solidarity and Fair Sharing of Responsibility, including its Financial Implications, between the Member States in the field of Border Checks, Asylum and Immigration’ EP Study. 182 McDonough, P. and Tsourdi, E. 2012, p. 76. 183 Vauhuele, D. et al., 2011. 184 See also: Karageorgiou, E., 2016, p.4 , where she makes similar observation. 185 McDonough, P. and Tsourdi, E., 2012, p. 77.
48 | P a g e possible definition of the measures to be adopted for exercising the principle of solidarity remains unclear.186 Article 80 TFEU is closely linked to the other provision in Title V, related to the Area of Freedom, Security and Justice, where asylum policy occupies a significant place. For instance, Article 67(2) states that “solidarity between Member States” should be a governing principle in the process of creating “a common policy on asylum, immigration and external border control”. This suggests that the “solidarity’s addresses are national governments”187. The same article states that those policies should be elaborated in such a way that will be fair to nationals coming from countries outside the EU.188 This puts the focus on addresseеs different than the Member States – third country nationals. The Treaties remain silent on defining the notion “fair” but as suggested by scholars it has to be connected with fundamental human rights protection, as laid down in the European Convention on Human Rights, for example. 189 Such multidimensional application of solidarity inevitably suggests tensions between national security priorities and supranational protection of human rights.190
CEAS
The EU has been working on establishing a Common European Asylum System (CEAS) since 1999. The conclusions of the Tampere meeting of the European Council in 1999, express the intentions of the Member States to establish a CEAS. 191 The next two programmes that set up the guidelines for common actions the area of freedom,
186 Karageorgiou, E., 2016, p. 4. 187 Ibid, p. 5. 188 TFEU, 2016, Article 67(2): It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States,which is fair towards third-country nationals 189 Karageorgiou, E., 2016, p. 5. 190 Idem. 191 European Council, 1999. “II. A Common European Asylum System 13. The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement.
49 | P a g e security and justice, and also defining the political priorities in the field of migration and asylum, are The Hague programme (2004-2009)192 and the Stockholm Programme (2009-2014)193. With The Hague Programme, the willingness of the Member States to create a CEAS that is beyond the minimum standards is demonstrated. Moreover, the Stockholm Programme set up the priority of establishing “a Europe of responsibility, solidarity and partnership in migration and asylum matters” 194 . The Programme specified that Europe needs a flexible and comprehensive migration policy that should combine the successful and effective management of migration, emphasising on the fact that “well-managed migration can be beneficial to all stakeholders” 195 , with prevention of illegal migration. According to scholars, “these EU policy developments have had a significant impact on the national policies of the Member States”196. In the first phase of the adoption of CEAS (1999-2005), the aim was the establishment of common minimum standards in the area of asylum. The main elements were the Asylum Procedures Directive, the Dublin Regulation, The Reception Conditions Directive, the Eurodac Regulation and the Qualification Directive. All the directives of the CEAS have a treaty base Article 80, TFEU.197 In 2008, the European Commission presented a Policy Plan on Asylum, 198 that aimed at evaluating the achievements in the area. This document established three directions for future development of the CEAS: “bringing more harmonisation to standards of protection by further aligning the EU States' asylum legislation; effective and well-supported practical cooperation; increased solidarity and sense of responsibility among the EU States, and between the EU and non-EU countries”199. The functioning of “the Dublin Regulation has raised a number of questions involving fairness and solidarity in the allocation of such responsibility"200. Valsamis Mitsilegas observed that the connection made between burden sharing and migration (asylum) flows suggests an EU notion of solidarity that is state-centered, securitised
192 European Council, 2005. 193 European Council, 2010. 194 Idem. 195 Ibid, 2010, p. 5. 196 Kaunert, C., amd Leonard, S., 2012, p. 8. 197 McDonough, P., and Tsourdi, E., 2012, p. 76. 198 European Commission, 2008. 199 Migration and Home Affairs - European Commission, 2017. 200 Mitsilegas, V., 2014, p.185.
50 | P a g e and exclusionary.201 State-centred is used to indicate that the individual preferences of the asylum seekers are not taken into account and only the interest of the Member States is considered. 202 The securitisation of solidarity in the field of asylum is suggested by the idea of solidarity as a tool for dealing with emergency situations and alleviating crises. 203 Furthermore, according to Mitsilegas, the securitisation of the notion is implied from the solidarity clause expressed in Article 222 TFEU. Article 222 TFEU, also known as the “”solidarity clause”204, states that the EU and its Member States should undertake common actions, following the spirit of solidarity” in case of a “natural or man-made disaster” or “terrorist attack”. Such call for joint actions expresses the political development of solidarity as a concept that is state-centred and focused on the relation between EU and the Member States, rather than a relation between the individual and the state. 205 The clause underlines the emergency character of the solidarity in the common European asylum policy. It implies urgency and common actions provoked from fear, unprecedented happenings and threats. Such assumption reminds of the third component of Ross’s virtuous circle model - sustainability, and in particular the idea that notion of security has the power to “use” solidarity for its own needs and often is used as a justification for different kinds and levels of interventions.206 The exclusionary nature of the EU type of solidarity in the field of asylum consists of the assumption that there is a lack of inclusion of third country nationals in the concept. As a base for this assertion, Mitsilegas uses Andrea Sangiovanni’s idea for the development of a three-dimensional concept of solidarity at EU level. According to Sangiovanni the EU should aim for establishing national solidarity, that covers obligations among citizens and residents of Member States, Member State solidarity (obligations among the Members States) and transnational solidarity (among EU citizens).207 This suggests that the EU and its type of solidarity do not cover third-country nationals, which implies that the concept has exclusionary
201 Mitsilegas, V., 2014, p.186. 202 To prove this statement, Mitsilegas uses Article 67(2) TFEU and Article 80 TFEU. The former states that the framing of the common EU policy on asylum and immigration are established on solidarity between Member States and later relates to the general governing of those policies by the principle of solidarity between the Member States. Mitsilegas, V., 2014, p.187. 203 Mitsilegas, V., 2014, p.187. 204 TFEU, 2016, Article 222. 205 Mitsilegas, V., 2014, p. 187. 206 Ross, M. 2010, p. 39. 207 Sangiovanni, A., 2013, p. 217.
51 | P a g e nature.208 Furthermore, as observed by Mitsilеgas, the exclusionary line of solidarity can be seen in the text of the Treaties. For instance, the Preamble of the TEU states the willingness of the Member States to “deepen the solidarity between their peoples while respecting their history, their culture and their traditions”209. Thus, the concept implies the inclusion of EU peoples on the base of common European identity and exclusion towards third-country nationals, which are the main “actor” of the European asylum policy.
Latest developments
With the goal to provide an effective response to the migration, the European Commission presented in May 2015 the European Agenda on Migration. 210 The Commission prepared a reform of the CEAS and it launched two packages of legislative proposals – one in May 2016 and one in July 2016. At the moment, the pending legislative proposal in the area are: Regulation establishing a common procedure for international protection in the Union211 Regulation on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted212 Directive laying down standards for the reception of applicants for international protection (recast)213 Regulation establishing a Union Resettlement Framework214 Dublin Regulation (recast)215 Eurodac Regulation (recast)216 Regulation on the European Union Agency for Asylum217
208 Mitsilegas, V., 2014, p. 187. 209 TEU, 2016, Preamble, recital 6. 210 European Commission, 2015. 211 European Commission, 2016e. 212 European Commission, 2016f. 213 European Commission, 2016b. 214 European Commission, 2016g. 215 European Commission, 2016h. 216 European Commission, 2016c.
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Regulation establishing crisis relocation mechanism218 Regulation establishing an EU common list of safe countries of origin219 In April 2016, the Commission published a Communication to the European Parliament and the Council called Towards a reform of the Common European Asylum system and Enhancing legal avenues to Europe (COM 2016/197). 220 The Communication follows the European Agenda on Migration and draws up “steps to be taken towards a more humane, fair and efficient European asylum policy, as well as a better managed legal migration policy”221. The complexity and large scale of the current migration situation in Europe provoked the urgent attempt of the EU to deal with the situation by this set of legislative proposals. The current set of rules was considered unable to adequately provide measures, procedures and safeguards for the successful tackling of the crisis.222 Apparently, the EU, in the face of the Commission, aims to revise the existing legislation but also to add new dimensions that will enhance the efficient cooperation among Member States and will provide for “a fully efficient, fair and humane asylum policy – one which can function effectively both in times of normal and in times of high migratory pressure”223. The proposal for a recast of the Dublin Regulation acknowledges the fact that the present Dublin System does not guarantee justifiable sharing of responsibility among the Member States.224 One of the main criticisms on the CEAS is that it creates a system that puts some Member States, particularly those that are on the Eastern and Southern periphery of the EU, in a back-breaking situation, unable to deal with the huge number of migrants crossing their borders. Furthermore, the relocation and resettlement schemes do not offer satisfactory results and the pressure on the MS and on EU grows immensely each day. The study of Professor Francesco Maiani for the LIBE Committee of the EP identifies the pitfalls of the existing Dublin III Regulation and the relocation schemes. It also critically assesses the Commissions’ Dublin IV
217 European Commission, 2016d. 218 European Commission, 2015a. 219 European Commission, 2015b. 220 European Commission, 2016a. 221 Ibid, p. 3. 222 E. Guild et al., 2015.; De Bruyker, P., and Tsourdi, E. (2016), p.499 223 Europa.eu, 2017. 224 European Commission, 2016h.
53 | P a g e proposal. Starting from the assumption that the Dublin III Regulation and the relocation schemes are not effective and efficient, this study points out three structural factors for this failure. First, the asylum seekers are not attracted to the Dublin system neither to the allocation schemes, because of the “no choice of destination” philosophy of the system. Both the Dublin regulation and the relocation system are based on the principle that applicants have no choice and the Dublin regulation takes very little account of the preferences of the applicants. Furthermore, sometimes the Member States adopt competitive approaches for dealing with the situation instead of a cooperative approach. Second, there are no sufficient solidarity instruments, which enables Member States to play a “zero-sum game” in which they try to get rid of the applicants and send them to another MS. Third, the bureaucratic approach of the Dublin regulation and the relocation system is a reason for delays and complexity. The study also gives recommendations for reforms, considering solidarity as an essential part of the effective operation of the CEAS. As has been stated above, Article 80, TFEU states that the migration policies of the EU should be “governed by the principle of solidarity and fair sharing of responsibility, including its financial implications”. The aim of the EU common migration policy is to ensure equal obligations and responsibilities on MS. Hence, a working corrective mechanism is necessary to guarantee the solidarity arrangements, laid down in the Treaties.225 Following the criteria for analysis, set up for the aim of this master thesis, the content analysis shows that the European Agenda on Migration contains four referencing to solidarity. The concept was used by the Commission together with “shared responsibility” while calling for “a clear common policy…to address migration” 226 . Moreover, it was mentioned in the context of “saving lives at sea”, relocation and border management. The analysis of the Communication of 2016, shows that solidarity appears seven times. And again, the concept is mentioned together with responsibility. The Communication suggests a reformed EU funding scheme in the proposals reforming CEAS, that will be a “further expression of solidarity”. In terms of the current legislative proposal reforming the CEAS, it should be noted that the analysis made is based on the Commission’s proposals that are
225 Maiani, Fr., 2016, p.54. 226 European Commission, 2015.
54 | P a g e currently under discussion by the co-legislators - the European Parliament and the Council of the European Union. Hence, all findings here are related explicitly to the Commission’s proposals and not to the final acts, which are to be adopted, as their structure and content could be amended. Having clarified this, the conceptual analysis of the proposals shows that solidarity is present at the explanatory memorandums of all the proposals, except the one for the Regulation establishing the EU common list of safe countries of origin COM (2015) 452. In the section stating the reasons and objectives of the proposals, the Commission repeatedly emphasises on the EU’s work “toward an integrated, sustainable and holistic EU migration policy based on solidarity and fair sharing of responsibility”227. The recast proposal of the Dublin Regulation contains the most referencing to solidarity – 10. Three proposals do not contain any reference in the texts – Qualification Regulation COM (2016) 466, Eurodac Regulation (recast) COM (2016) 272, and EU common list of safe countries of origin COM (2015) 452. The relational analysis shows that the concept is used extensively together with “fair sharing of responsibility”. Moreover, in the recast of the Dublin regulation the mentioning of a “solidarity contribution mechanism” suggests that solidarity is perceived as a financial tool. Some proposals seem to be designed in a way to promote different levels of solidarity. For instance, the Union Resettlement Framework is foreseen “as a tool of international solidarity”228, while the establishment of EU Asylum Agency that will substitute the existing European Asylum Support Office (EASO), will “support the development of solidarity within the EU”. The policy perspective on EU asylum was the last step of analysis of solidarity at supranational level. This part of the chapter presented the historical development of asylum policy at EU level. According to the analysis made asylum seems to be a field that underwent dynamic changes – from a field of cooperation based on intergovernmental approach to a field in which the ordinary legislative procedure is applied; from a field of integration in which the EU was setting up only “minimum standards” to a field in which the aim is for a “common system and procedures”. The conceptual and relational analysis made of the asylum provisions, agendas and legislative proposals shows that solidarity has been extensively used with the aim
227 European Commission, 2016g, p.1 (Explanatory memorandum). Wording is also repeated in other proposals: European Commission, 2016e; European Commission, 2016f. 228 European Commission, 2016g.
55 | P a g e contribute to the establishing of a common holistic and sustainable EU asylum policy. Having set the supranational level of solidarity analysis, the next chapter will focus on the national one.
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4. NATIONAL PERSPECTIVES
The migration crisis, by generating passionate public debates, deeply affected the European political environment. This environment became a fertile ground for the growth of populist parties across Europe. Furthermore, the political agendas were reshaped drastically by the topics of migration and security. The terrorist attacks in 2015 and 2016, in Paris and Belgium, played a key role in the emergence of fear and the tension between locals and refugees escalated. Hence, the migration crisis by crossing the borders of the EU led to the rise of narrative associating the refugee flow with a menace to the principles and values of the EU. The functioning of the Schengen area was also put into question with a severe impact on the free movement for the citizens.229 The introduction of temporary border control by some Member States contributed to shaking of the Schengen Area. According to Article 29 of the Schengen Borders Code, the European Commission can propose recommendation for the reintroduction of border controls, for up to 6 months with the possibility to be extended. Such recommendation should be adopted by the Council with a qualified majority. On 4 May 2016 the Commission submitted such recommendation to the Council and 8 days later the Council recommended that five countries, namely Austria, Germany, Denmark, Sweden and Norway, can introduce temporary border controls. However, at the end of October 2016, the migration situation was a reason for the Commission to propose a prolongation of the temporary internal border controls, of the same countries, for a maximum period of three months. The Council, on 11 November 2016, adopted an implementing decision that allows the prolongation of the period. However, the goal of the Council and the Commission was clearly stated: "to get back to Schengen as soon as possible"230 . It was more than obvious that national approaches do not work and the EU systematically called for “renewed efforts in implementing solidarity measures under the European Agenda on Migration”231. The need of collective action and common
229 European Commission, 2016i, p. 1. 230 Consilium.europa.eu, 2017. 231 Europa.eu, 2017b.
57 | P a g e efforts was apparent; the appeal for reinstating solidarity among the Member States became a key part of the political discourse. Facing the above mentioned the EU and its institutions, until that time unable to provide an adequate response, decided to urgently address the challenges. The EU decided to cut all the illegal pathways for a migrant to enter the EU and to permit refugees to enter through the legal routes starting in Turkey. Hence, this suggested a stricter external border control, responsibility and burden-sharing and more solidarity. In addition, an agreement with Turkey was envisioned. The aim of this deal was to stop irregular migrants from crossing the EU borders but also the possibility for EU to return those migrants who were not granted permission to stay in the EU back to Turkey. In March 2016, the EU-Turkey Agreement was signed. The EU-Turkey Joint Action Plan "identifies a series of collaborative actions to be implemented as a matter of urgency by the European Union (EU) and the Republic of Turkey with the objective to supplement Turkey’s efforts in managing the situation of the massive influx of persons in need of temporary protection"232. As have been traced in the previous chapter, the introduction of a common migration and asylum policy at the EU level was a difficult task. Due to the sovereignty concerns, diverse historical background, economic and social differences, the Member States did not have the willingness to cede competence to the EU in this policy field. So far, the Member States dealt with migration issues by themselves. For instance, in 2000, Spain faced difficulties with the migrants coming from West Africa. The EU had no key role in the process of dealing with the situation. Spain followed its national vision and policies for tackling the situation. Similar was the situation with the enormous migration flow coming in Italy through Libya. The Italian government following its own measures and plan dealt with the situation without the participation of the EU.233 However, due to numerous reasons, the situation in 2015 made it clear that such individualistic approach, based on the national state's interests, could be no longer successfully applicable. The migration crisis, with its size and impact, found the Member States and the EU unprepared. In 2015, more than 1 million people
232 Europa.eu, 2017a. 233 Vimont, P., 2017.
58 | P a g e entered the EU with the aim to flee war conflicts or to find better economic opportunities.234 "The 28 Member States of the European Union […] granted protection status to 333 350 asylum seekers in 2015, an increase of 72% compared with 2014."235 The tendency for 2016 is a decrease and according to the statistic around 156 000 have entered Europe.236 The result was a diverse response to the migration flows from MS to MS. Some Member States decided to close their borders, by building walls and introducing border control, in order to stop the migrants.237 Others were convinced that the only way to deal with the situation is to apply EU rules and particularly the Dublin regulation that determines that the first Member State, in which a refugee enters, is responsible for the examining and processing of the asylum applications. However, both approaches, closing borders or applying EU rules, resulted in a situation that left Greece and Italy, by being the frontline countries of EU, to deal with the biggest burden.238 This chapter will establish the national perspective, based on two cases – Bulgaria and Italy. For each country, a legal, constitutional and policy analysis will be made. The findings and information are believed to contribute to the answering of the last research sub-questions and to provide with sufficient information for the comparison to be made between the EU and the national perspective on solidarity.
234 European Civil Protection and Humanitarian Aid Operations, 2017. 235 Ec.europa.eu, 2017. 236 European Civil Protection and Humanitarian Aid Operations, 2017. 237 For instance, in 2015, Hungary built a fence with its neighbor countries Croatia and Serbia. Deutsche Welle, 2017;VOAnews.com, 2017. On the recent Hungarian intentions to build another wall see: Theguardian.com, 2017, ForeignPolicy.com, 2017. 238 TheNational.ae, 2015; EURACTIV.com, 2016; BBC News, 2016.
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4.1. Bulgaria
4.1.1. Legal Perspective
Historically, provisions granting asylum exist in the Bulgarian legal order since the adoption of the first Bulgarian constitution in 1879 which marked the establishment of the Principality of Bulgaria. 239 In fact, the so-called Tarnovo Constitution stipulates in Article 61, paragraph 2 that every slave, with no regard its gender, religion or nationality, by crossing into the Bulgarian territory becomes free. 240 The first Bulgarian constitution was followed by two socialist by character constitutions – Dimitrov Constitution (1947-1971) and Zhivkov Constitution (1971 – 1991). The Dimitrov Constitution used as a model the 1936 Soviet Constitution and arranged a planned national economy, nationalisation of private property, etc.241 The analysis of the Dimitrov Constitution shows that there is a provision on asylum in Article 84, stipulating that aliens have a right to asylum in case they are being prosecuted on the purpose of support for democratic principles, national freedom, freedom of cultural and academic activities. The following years under the rule of the Bulgarian Communist Party (BCP) did not prove any democratic future for Bulgaria but rather “harsh repression of all deviation from the party line, arbitrary suppression of culture and the arts along the lines of Soviet-prescribed socialist realism, and an isolationist foreign policy”242. In 1971, under the governance of the new leader of the BCP – Todor Zhivkov, the Constitution of 1971 was approved. The provisions on asylum were kept
239 After the Russian victory in the Russo-Turkish war (1877-1878), the preliminary Treaty of San Stefano (3 March 1878) agreed on the establishment of Bulgarian vassal state. The Treaty of Berlin (13 July 1878) revised the Treaty of San Stefano and divided Bulgaria into three parts – the Principality of Bulgaria, autonomous province of Eastern Romelia and Macedonia which was given back to the Ottoman Empire. The Tarnovo Constitution (in Bulgarian: Търновска конститутиция) is the first constitution of Bulgaria. The constitution was adopted on 16 April 1879 in the city of Veliko Tarnovo. It is based on the Belgian charter of 1831 and it was part of the establishment of the Principality of Bulgaria, under the suzerainty of the Ottoman Empire. The Tarnovo Constitution continued to be fundamental legal act after the raise of the Bulgarian state from Principality to Kingdom (Tsardom) on 22 September 1908. It remained in force until 1947 when was replaced by the Dimitrov Constitution - the legal base of the communist rule of Bulgaria. 240 Writh, Hebert F., ed, 1919. Tarnovo Constitution, Article 61, p. 2. 241 Curtis, G. and Keefe, E., 1993, p 45-47. 242 Ibid, p. 46.
60 | P a g e from the Constitution of 1947 and expanded to cover cases in which people have been prosecuted also for progressive political activities, fight against discrimination on the basis of race and protection of peace.243 Furthermore, Zhivkov Constitution gave the prime minister the right to grant asylum.244 The fourth and current constitution of Bulgaria was adopted in 1991. In contrast to the previous two constitutions that were socialist in their character, this is one is democratic and marks the path of the country towards a parliamentary representative democratic republic. In the current constitution, the asylum principles are stipulated in Article 27, paragraph 2: The Republic of Bulgaria shall grant asylum to foreigners persecuted for their opinions or activity in the defence of internationally recognised rights and freedoms. 245 The end of the communist era and the adoption of the current constitution in the beginning of the 90s was the beginning of the era in which Bulgaria started building its democratic national law and policy. The country ratified the 1951 Convention and its Protocols in April 1992. Such late adhesion to the international refugee regime was speculated to be also due to the unavailability of the official translation of the Geneva Convention.246 In 1993 the country concluded an agreement with the UNHCR that became the legal basis for cooperation. 247 According to the UNHCR, the processing of asylum applications started in 1994.248 In fact, the first national law in the area of asylum, the so-called Refugee Law, was adopted in 1999 together with the opening of an Agency for Refugees. This law was drafted already in 1994 but it only entered into force 5 years later after the country was criticised by the European Parliament and the Danish Refugee Council.249 The urgency of asylum law was in line with the aspirations of the country to become EU Member State. In 2002, with the adoption of the Law on Asylum and Refugees (LAR) the Agency for Refugees was renamed to State Agency for Refugees (SAR). The Law on Asylum and Refugees
243 In Kostadinov, I., 2012, Bulgarian Constitution of 1971 Article 65. 244 Ibid, p.21, Article 92. 245 President.bg, 2012. 246 Lavanex, S., 2002, p. 706. 247 Available in English at: http://www.aref.government.bg/docs/agreement_unhcr_government_bg_en.pdf 248 UNHCR, 2010. 249 European Parliament, 1997; Danish Refugee Council, 1998.
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(LAR), adopted in 2002, contains the conditions and the procedures for granting protection to aliens on Bulgarian territory. It also stipulates their rights and obligations. The last amendment of LAR was in the end of December 2016 and it does not contain any reference to solidarity. Тhe present Bulgarian constitution gives special competence to the President of the Republic to grant asylum. 250 In 2012, the former president Rosen Plevneliev conferred its rights under article 98, paragraph 10 of the Bulgarian Constitution to be executed by the Vice-President.251 Moreover, an Asylum Committee was established as a supportive body to the Vice-President, respectively the President of the Republic of Bulgaria.252 According to the statistics from January 2012 until January 2017, the number of applications submitted tripled compared to the previous period (January 2007 - January 2012). The Asylum Committee received 141 applications (2012-2017) from citizens from 28 countries. From those applications, only one was approved for granting asylum but later on cancelled.253 The content analysis under Criteria 1 on the texts of the current and previous Bulgarian constitutions shows that there is no reference to solidarity in any of them. The Bulgarian post-communist asylum law and policy are a relatively new domain, developed simultaneously with the ambitions of the country to become a part of the European Union. This suggests that “in building up its national legal and policy framework, it consistently looked up to the ‘moving target’ of EU acquis in the area and the international law norms adopted in Europe”254. With the steady incorporation of asylum policy in the EU acquis communitaire, the countries candidates for memberships, including Bulgaria, had to reach the EU set standards in order to qualify for it. 255 The annual reports of the European Commission on Bulgaria’s progress towards accession contain recommendations, however, they did not consider
250 In President.bg, 2012, Constitution of the Republic of Bulgaria, Article 98, paragraph 10. 251 President of Republic of Bulgaria, 2012. Following the latest presidential elections in 2016, the new president Rumen Radev with Decree № 24 from 23 January 2017 continued the already established practice and delegated the Vice President the authority granted by Article 98, paragraph 10. 252 The Committee on Asylum is established by a Presidential Decree № 124 from 27 March 2012. More information about the asylum Committee is available at: https://www.president.bg/cat23/komisia-po-predostaviane-na-ubejishte/&lang=en 253 Statistic for the period January 2012 – January 2017 available in Bulgarian at: https://text.president.bg/bg/cat23/komisia-po-predostaviane-na-ubejishte 254 Nancheva, N., 2015, p. 446. 255 Lavenex, S., 2002, p.706.
62 | P a g e the area as very problematic and “suggest[ed] that it was largely compatible with the forming acquis”256. After the accession of Bulgaria to the EU in 2007, the number of asylum applications until 2013 was on an average of 1000. The situation changed in the middle of 2013 when an unprecedented number of refugees, mainly from Syria, fled their countries and entered the EU border through Bulgaria. (See: Figure 2) In 2013 the country received 7144 asylum applications. The number was almost tripled in 2015 – 20 391 applications. The emergency of the situation required external help for the Bulgarian authorities. In November 2013, the country was helped by EASO experts who provided technical and operational support for SAR, the National Institute of Justice, and the Ministry of Interior – Chief Directorate Border Police and Migration Directorate.257 The country also plays an important role in the EU-Turkey Statement due to its border with Turkey. On 5th of May 2016, Bulgaria and Turkey signed a protocol for the application of the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorization, which increased the expectations and attention on Bulgaria to effectively manage the migration flows. Unable to cope with the influx, Bulgaria opened additional accommodation and reception centres – Voenna Rampa, Vrazhdebna, Harmanli, Kovachevci. 258 The buildings used for those purposes were empty schools or military quarters that were unable to provide acceptable living conditions. The media discourse on Bulgaria’s treatment of refugees was condemned by many, including the EU, international organisations and NGOs, as highly problematic, as the country used unethical and unlawful means to tackle the situation.259 However, it should be noted that the case of Bulgaria was not “unique” and the problem of treatment of asylum seekers innates also in other EU countries.260 The inability to balance between the protection of universal human rights and national security concerns provide an explanation of the Bulgarian response to the
256 Nancheva, N., p.2015, p 446. 257 EASO, 2013. 258 A list with the reception centers, transit centers and shelters on the territory of Bulgaria is available at: http://www.asylum.bg/en-3/en3-4/ 259 UNHCR, 2014;Amnesty International, 2106; Amnesty International 2015, Amnesty International 2015a. 260 Dearden, L., 2017; Nydailynews.com, 2015; BBC News, 2015; Newstatesman.com, 2015.
63 | P a g e crisis situation but it is in the essence of EU’s failure to provide a common working asylum provisions.261
Figure 2 Number of people sought asylum (01.01.1993 -31.01.2017) Source: State Agency for Refugees
25000
20391 20000 19418
15000
11081
10000
7144
5000 2888 2428 822 451 1349 1755 1549 639 746 853 1025 1387 429 834 975 276 283 1127 890 421 0 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
261 Nancheva, N., 2015 p. 450.
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4.1.2. Policy Perspective
In the height of the migration crisis, in 2013 the Bulgarian Council of Ministers adopted a Containment Plan for Refugee Crisis 262 with the aim to overcome the emergency. The analysis of the Plan, however, shows that there is a tendency towards a policy that has as a main goal of “protection from asylum seekers, rather than at protection of asylum seekers”263. Only two out the seven main goals of the Plan are taking into account the refugees’ well-being and integration. As far as the other five points are concerned, they include the decrease of the numbers of illegally migrants on the territory of the country through the building of a razor-edge fence and deployment of additional police units to the borders; ensuring the security of the Bulgarian citizens by prevention of terrorism and radicalism, criminal activities, epidemics and religious conflicts. The Plan contains no reference to solidarity or solidarity as expressed as a fundamental value in the Treaties of EU, endorsed by Bulgaria. The National strategy on migration and integration (2008-2015) had no specific focus on the asylum field. It was oriented towards attracting Bulgarians and foreigners with Bulgarian origin to permanently settle on the territory of the country. The strategy foresaw yearly planning and it was focused on legal migration and integration. The change of the circumstances and the emergence of the migration crisis suggested a revision of the national strategy that would answer the needs of the situation. In this regard, the new Strategy, that is currently in force, explicitly includes the field of asylum. The general strategy of Bulgaria for the period 2011-2020 in the area of migration and asylum was adopted on 23 of February 2011 and draws new national policy and tendencies in those fields. The strategy, based on national interests and European principles for governing migration processes, is considered by some to be elaborated in accordance with the international obligations in this field and with a respect of the human rights world regime. 264 In the preparation of the Strategy
262 Available at:http://www.government.bg/cgi-bin/e-ms/vis/vis.pl?s¼001&p¼0211&n¼82&g 263 Nancheva, N., 2016, p. 2. 264 Vuchkov, V., Grudeva, Rosica 2011, p. 2.
65 | P a g e participated non-governmental and international organisations. A special consulting from the Austrian expert team from the International centre for development of migration policy played a significant role in the development of the strategy. The aim of the National Strategy (2011-2020) is to create a policy framework that will facilitate the development of a resilient normative and institutional base for effective management of the legal migration and integration. Moreover, this strategy aims at preventing and tackling irregular migration. The read-thru analysis shows, that on one hand one of the main points of the strategy is the idea of migration as necessary resource for the national economy of a country. 265 On the other hand, migration is perceived as a potential threat to the social cohesion and security of the country. The Strategy takes into account the fact that the country is undergoing a transformation – from a state of emigration, through a state of transit to a state of attracting immigration. 266 The policy document also acknowledges the European perspective on migration as a mean to answer economic and demographic challenges. It is important to notice that a main component of the National Strategy is the understanding that the successful management of the migration processes can have a positive influence on the security and economy of the EU. The Strategy acknowledges the fact that Bulgaria is an external border of the EU and takes the responsibility for implementing a common, long-term policy that will ensure the effective guardian of the border and fight irregular migration, human trafficking and organised smuggling. In order to upgrade the existing national structures, a National Council on migration policy was created, under thе governance of the deputy prime minister and the minister of interior. This new structure aims at enhancing the cooperation and interconnection between the existing migration structures. The concept of solidarity is mentioned only once in the whole document. In Chapter 3 – Asylum Policy, the document, states that the country is completely engaged with the EU’s policy on asylum. The strategy, however, acknowledges the fact that the Member States have their competence in the process decision on asylum application and, even more, significant for the aim of the present work, the strategy highlights the independence of the country to decide whether to participate or no in
265 Bulgarian Council of Ministers, 2011, p. 3. 266 Vuchkov, V. and Grudeva R., 2011, p. 4.
66 | P a g e the so-called “mechanism for practical solidarity”267. Stated like this, it seems like this is certainly not an obligation or responsibility, but an action that is based on the goodwill of the government. In the context of the migratory pressures and the influx of refugees and asylum seekers, the government adopts in 2015, a new strategy for the period 2015-2020. This new strategy combines the main goals of the previous ones and updates them according to the new dynamics of the migration crisis. The main goal of the strategy is to develop a political framework that will ensure the existence of an effective normative and institutional basis for successful dealing with legal migration and integration, as well as prevention and combating of illegal migration.268 The Strategy also aims to deliver the necessary care and services to those that are seeking international protection in the territory of Bulgaria. 269 In this regard, the revised Strategy, in comparison to the previous one, has an additional mentioning of the term solidarity. In the section related to the integration of those that have received international protection in Bulgaria, public solidarity and tolerance towards foreigners with respect to their identity, is added as a main principle to be followed while executing the strategy.270 Such wording, however, opens space for questions for further discussion such as – What does "public solidarity" implies? and What is the relation between tolerance and solidarity? Overall, the legal and policy analysis of Bulgaria's asylum system shows that the country has been gradually putting efforts to adapt to the changing migratory situation. The country's communist past inevitably have influenced the legislation and policy domains. The current legal and policy order in the field of asylum offer scarce evidence of Bulgaria as a promotor of the solidarity concept. The analysis made reveals that the Bulgarian national strategies are following to a greater extent the national interest rather than attempting to ensure protection for those looking for it.
4.2. Italy
267 Bulgarian Council of Ministers, 2011, p.41. 268 Bulgarian Council of Ministers, 2015, p. 5-6. 269 Idem. 270 Ibid, p.30.
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4.2.1. Legal Perspective
Italy, as one of the founding fathers of the EC/EU, has been engaged directly in the process of negotiations of the Union’s legal framework and policies. Italy has ratified the Geneva Convention of 1951 and its Protocols in 1954271. Six years earlier the country also obeyed to the UN Universal Declaration of Human Rights of 1948.272 After the referendum held in June 1946, and the transition of Italy from monarchy to a republic, a new constitution came into force in 1948. The previous one – Albertine Statute, had no reference to asylum.273 Italy’s current constitution contains provisions on a right to asylum. 274 In Article 10(3), in the Fundamental Principles section, the current Italian constitution states that “a foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian Constitution shall be entitled to the right of asylum under the conditions established by law”. This provision is applicable even in the case of prosecution of political crimes.275 Scholars276 made observations on the ample scope of the provision 277 and pointed out on the duty felt by the Constitutional Assembly towards those countries who hosted Italians during the War and the totalitarian regime.278 It should be noted, however, that this provision was not accompanied by any of the laws adopted on asylum, hence, it was a reason for confusion and interpretation complications for national courts. 279 It remained non- binding for a long period of time. Just in 1997, after decisions of the courts, the Italian Court of Cassation280 approved it as a binding norm.281 The Italian legal scholar Bruno Nascimbene notes, the right on asylum in the Italian constitution is a “subjective right” which, compared to the provisions of the Geneva Convention, is at the same
271 See Italian Law 722/1954 ratifying and giving execution to the 1951 Geneva Convention. 272 UN General Assembly, 1948. 273 Lambert, H. et al., 2008, p. 22. 274 Available at: https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf 275 Nascimbene, B., 2011 p. 229. 276 For instance, Lambert et al., 2008. 277 See more on the traveux preparatoir of art.10(3) B. Nascimbene (ed.) Diritto degli stranieri, Padova, CEDAM, 2004, 1137–38; M. Benvenuti Il diritto di asilo nell’ordinamento costituzionale italiano. Un’introduzione, Padova, CEDAM, 2007, 21–8. 278 Lambert, H. et al. 2008, p.22. 279 Nascimbene, B., 2011, p.229. 280 Italian Supreme Court of Cassation, Allen v. Ministry of the Interior , no. 4674/ 1997. 281 Lambert, H. et al, 2008, p.22.
68 | P a g e time a right to apply and to be “granted asylum when specified conditions are met, even in the absence of a law governing the exercise of that right”282. However, the application of a constitutional asylum in Italy is not a common practice. The EU legislation did not influence the provision due to the fact that the implementation measures of the EU legislation are related to subsidiary protection and determination of refugee status (following the Geneva Convention on Refugees). There is no official statistics on the cases that asylum was granted on the basis of the constitutional provisions. The lack of attention and information given to this provision leads to the suggestions that it does not form a significant part of the Italian international protection regime.283 The conceptual analysis of the Italian Constitution currently in force reveals that the term solidarity is explicitly stated two times. The first reference to solidarity is in Art. 2where, together with the recognition and guarantee of human rights, the obligation for the citizens to fulfil their responsibilities is expressed as solidarity with three dimensions – political, economic and social. 284 Such provision suggests at solidarity from the individual/s towards the state, rather than a shared mutual solidarity between the Republic and its citizens as individuals and as a group. The second mentioning of solidarity in the Constitution is in Tittle V Regions, Provinces - Municipalities (Art. 119). This article recognises the revenue and expenditure autonomy of the Italian administrative divisions. The reference to the concept is in а relation to the state’s responsibility to provide supplementary resources to those divisions and to “promote economic development along with social cohesion and solidarity”285. With this article, the “presence” of solidarity in the Italian constitution is exhausted. The Constitution does not contain any explicit connection between asylum and solidarity.
282 Nascimbene, B., 2011, p.230. Further reference: G. D’Alconzo et al., Ricerca giuridica sugli orientamenti giurisprudenziali in materia di asilo , Roma, Jesuit, Refugee Service – Italia, 2003; Benvenuti, Il diritto di asilo nell’ordinamento costituzionale italiano , op. cit . 31, 31–48. 283 Nascimbene, B., 2011, p. 230-231. 284 Constitution of Italy, 1947, Art. 2: The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled. 285 Constitution of Italy, 1947, Art. 119.
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During the years, different laws have been adopted in the field of asylum, aiming to support the implementation of the constitutional provisions and to develop a comprehensive immigration legislation. The first attempt was in in 1990, when the Italian government adopted its first organic regulations concerning foreigners. The so-called Martelli Law286, named after the Vice President of the Council of Ministers, addresses in its title the topic of political asylum. It established the procedures for granting refugees status on the base of the Geneva convention and gave the right to every alien, despite its nationality, to be able to apply for asylum in the country.287 Furthermore, it created a Commission that was entitled to deal with the recognition of refugee status.288 The law confirmed the access to social rights, however, in practice, no sufficient finances were allocated in this regard.289 Eight years later, in 1998, the main law concerning migration - the Consolidated Act on provisions concerning the immigration regulations and foreign national conditions norms was adopted. The so-called Turco-Napolitano Law 40/98, elaborated by the center-left government, with Romano Prodi as a Prime Minister, aimed at regulating the process of receiving permanent residence permit and Italian citizenship. The Law, mostly oriented towards irregular migration, established the procedure for deportation of illegal and irregular immigrants and created temporary detention centers for those who were supposed to be deported. 290 Centers for Temporary Detention (CPT)291 were established and immigrants awaiting deportation could be held for up to 30 days. Nevertheless, the Turco-Napolitano Law distinguished asylum and humanitarian matters from immigration. The law granted rights to immigrants, including illegal immigrants, such as a right to access to education social right and access to the national Italian health care system. Furthermore, it provided possibilities for family reunification and introduced the so-called Carta di soggiorno - a permanent residence permit for those who have been legally residing in the territory of the country for a period of five years. The Turco-Napolitano Law has no reference to solidarity.
286Martelli Law, 1990. 287 Cicerofoundation.org, 2017. 288 Nascimbene, B. 2011, p. 230. 289 Zincone, G., 2006, p. 21. 290 Paparella and Rinolfi, 2002. 291 Abrreviation from Italian: CPT - Centri di permanenza temporanea.
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The current Italian laws on asylum are the Bossi-Fini Law and the Security Package 94/2009. With the change of the government in 2001, the center-right coalition with a Prime Minister Silvio Berlusconi amended the Turco-Napolitano law in 2002 with Law no. 189/2002, namely Norms Concerning Immigration and Asylum. This amendment, also known as the Bossi-Fini Law, named after the politicians who proposed it, introduced some important changes mainly in the area of legal migration but also in regard to fighting illegal migration. The new provisions on irregular and illegal migration are concerned with the eradication of the illegal ones entering the country.292 The period for detention of immigrants in the CPT is increased from 30 to 60 days. The Commission established with the Martelli Law became a Central National Commission for the Right on Asylum and other Territorial Commissions for International Protection were established.293 The National Commission for the Right of Asylum (CNDA)294 currently provides coordination and supervision to the Territorial Commissions for International Protection (CTRPI) and also has the responsibility for withdrawal and termination of international protection. 295 The Bossi-Finni Law introduced the Protection System for Refugees and Asylum Seekers (SPRAR) 296 providing care services, such as accommodation, food, assistance in social, education and health matters, and integration services, such as training courses, support and orientation to employment. SPRAR is financed by the National Fund for Asylum Policies and Services, under the management of the Ministry of Interior. By involving the Ministry of Interior, NGOs and municipalities, Italy represents a multilevel system of governance of asylum seeker’s reception. The Bossi-Fini Law has been extensively criticised by trade unions and employers’ organisations.297 The critiques are related to the fact that the law made it very difficult to proceed with deportation due to the lack of any agreements with the countries from which the immigrants are coming from. In addition, the provisions
292 Paparella, D. and Rinolfi, V., 2002. 293 Nascimbene, B., 2011, p. 230. 294 Abrreviation from Italian: CNDA - Commissione nazionale per il diritto di asilo. 295 Bove, C., 2016, p. 18. 296 Abrreviation from Italian : SPRAR - Sistema di Protezione per Richiedenti Asilo e Refugiati 297 For more information about critiques of the Bossi-Finni Law see: Hamilton, K. and Jachimowicz, M. (2002). Italy's Southern Exposure. [online] migrationpolicy.org. Available at: http://www.migrationpolicy.org/article/italys-southern-exposure [Accessed 2 Mar. 2017]; Paparella, D. and Rinolfi, V. (2002). New legislation regulates immigration. [ebook] Available at: https://www.eurofound.europa.eu/observatories/eurwork/articles/new-legislation-regulates- immigration.
71 | P a g e stating that third-country nationals that want to legally enter the country have to provide a job contract prior to entrance increased the attempts on of immigrants to enter illegally. Thus, the provisions of the Bossi-Fini Law seem to be restrictive and to perceive the migration dynamics as a burden for the country. There is no reference to the term solidarity. In 2007, the Romano Prodi’s government proposed a reform of the Bossi-Fini Law. However, the elections of 2008 and the new government of Silvio Berlusconi interrupted the attempt. In 2009 the minister of interior Roberto Maroni presented the so-called Security package, law 125/2008 (Pacchetto Sicurezza) 298 . The Security Package it is two laws combined into one. The topic of illegal migration became directly connected with the topics of security and organised crime. The CPTs were renamed Centers of Identification and Expulsion. This amendment increased the detention period to 6 months and criminalised the aiding illegal immigrants entering Italy. This law was criticised on the grounds of promoting discrimination and unequal treatment for citizens. It is accused of reducing the fundamental rights expressed and guaranteed by the Italian Constitution. Other critics come in relation to the lack of any provisions on integration for the newcomers. In 2014 and 2015, Italy introduced changes to its legislation following the adoption of EU directives in the field of international protection.299 The texts of the Bossi-Finni Law and the Security Package have no reference to solidarity.
298 Main laws contained in the “Security Package”: Law n. 125 of 2008, conversion of the former legislative bill “Urgent Norms on Security Matters” and Law n. 94 of 2009, “Regulations on Security Matters”. 299 Strati, F., 2016.
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4.2.2. Policy Perspective
The latest Italian policy plan was presented by the Minister of Interior Marco Minniti in the end of January, 2017. Between the main points of the plan are stricter measures for returning illegal immigrants. The country’s policy and laws have been always oriented towards acceleration of repatriation. As an approach to deliver best results in this field, the Italian government foresees bilateral agreements with the countries of origin and transit countries. Nevertheless, this provokes serious debates and critiques as the main “partners” should be countries such as Libya and Sudan that can be hardly if not impossibly considered as safe countries for return. In fact, on second of February, 2017 the Italian Prime Minister Paolo Gentoloni and Libyan Prime Minister Fayez al-Serraj signed a Memorandum of Understanding with the aim to tackle the issue of illegal immigration to Europe and in particular Italy. On the informal meetings of the EU heads of state or government on third of February 2017, the plan has been agreed, together with the allocation of more than 200 million euros that will go to the Libyan coast guards training and support in order to fight human smuggling, terrorism and support rescue operations. Such Memorandum between Italy and Libya, backed by the EU, unsurprisingly suggest a parallel with the EU- Turkey agreement in 2016. Many find it problematic that immigrants would be returned to a country which hardly can be considered respecting human rights and international law.300 Another point of the plan is devoted to detention. The Minnity Plan introduces an increase of the detention centres from 400 to 1600. The Centers for Identification and Expulsion (CIE) are to be renamed to Return Detention Centres (CPR)301 but the substance of these centres remains302. In addition, the plan foresees acceleration of the Asylum Procedure. The Minnity Plan proposes 14 courts to have new chambers that will hear asylum appeals.303 Furthermore, the decision time of this new chamber is changed from 6 months to 4 months. The appeal of a decision in the Court of Appeal will not be possible. Legal experts share concerns that this law might be adopted by the Parliament which would eliminate one of the levels of
300 Risoleo, R., 2017. 301 Abbreveriation from Italian: CPR - Centri di permanenza per il rimpatrio. 302 Risoleo, R., 2017. 303 Italian Council of Ministers, 2017, Art. 1.
73 | P a g e proceedings. 304 The plan also envisions increased funding for Assisted Voluntary Returns. Furthermore, it aims at enhancing the inclusiveness of the local authorities in the SPRAR system 305 . Measures, for improving the transparency of the whole system are also considered. The conceptual analysis of the text of the Minniti Plan shows no reference to solidarity. Italy offers a legal system for asylum seekers that is characterised by a vast involvement of stakeholders from national to regional level, relatively strong role of the law enforcement body in the process of rejection of asylum seekers on the borders. The evolution of the Italian asylum law and policy indicates a trend towards stricter rules that are related to the country’s security concerns. Italy’s legislation in the field follows the country’s international and European obligation, however, the restrictive tendencies lead to criticism of the Italian attempt to protect asylum seekers’ human rights and dignity.
304 Ecre.org, 2017. 305 Further information in English about SPRAR system can be found on: http://www.sprar.it/english.
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4.3. Supranational and national comparison. The legal and policy analysis of solidarity at supranational (EU) and national level (Bulgaria and Italy) in Chapter 3 and Chapter 4 provided with significant information for comparison that will answer the last research sub-question of this thesis: What is the correlation between solidarity in the EU law and asylum policy and solidarity in the law and asylum policies of two of the Member States – Bulgaria and Italy? A summary of the key findings of the analysis made in the previous chapters is provided in Table 4. In terms of the legal perspective, the comparison shows that at EU level solidarity has an important place, while at national level, in the specific cases of Bulgaria and Italy, solidarity is not incorporated at all or its mentioning has an explicit domestic dimension. For instance the Italian Constitution has only one reference and it is in relation to solidarity of the citizens towards the state in completing their responsibilities as Italian peoples. The relational analysis of the EU’s legal perspective shows that the concept of solidarity is used together with fundamental values such as democracy, rule of law, justice, gender equality, etc. Solidarity penetrates in different policy fields, has various dimensions and it is part of the relations between different actors (between EU peoples, between the Member States, between generations). Such multidimensional nature of EU solidarity, however, does not explicitly mention solidarity with countries and people outside the European Union. Nevertheless, it is worth noting that the wording of Article 67 (2), TFEU suggests that the policies of asylum, immigration and border checks, governed by solidarity, should be elaborated in a way that will be fair to third-country nationals. The comparison of the policy perspective follows a tendency of a clear ample use of solidarity at EU level and lack of referencing at national level. The Bulgarian and Italian national agendas and policies on asylum do not refer to solidarity as a guiding principle. The situation differs at European level, where solidarity is considered as a necessary tool for delivering an effective response to crises and prerequisite for the development of an integrated, sustainable and holistic EU migration policy. On the basis of these findings, the correlation between solidarity in the EU law and asylum policy and solidarity in the law and asylum policies of examined Member States can be estimated as rather low. The concept exists extensively at EU level, while at national level there is no indication that solidarity is a norm that can serve as a unifying tool for integration.
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Table 4 Framework for comparison and analysis of the correlation between solidarity at EU and national level Solidarity
Supranational Level National Level Legend:
European Union Bulgaria Italy 1 TEU – 11 Constitution – none Constitution – 2 1. Conceptual 1 analysis –
TFEU – 8 Legal acts – none Legal acts - none
frequency of
usage of the 2 2 TEU – none none term solidarity none
TFEU - 2
3 3 justice, gender equality, tolerance, non-
discrimination, peace, security, citizens-state 2. Relational sustainable development of the Earth, relation none analysis -
loyalty, democracy and rule of law; Legal Perspective Legal Legal Perspective Legal financial relation of solidarity between EU peoples, dimension solidarity to generations, states economic policy, asylum
energy policy, CFS policy
1 1 3. Relational European Agenda on Migration – 4
analysis –
Communication Legal Avenues – 7 Containment plan – relation of none none solidarity to Legal proposals – numerous other National Strategy - 2 concepts/emerg
ing meanings 4 4 saving lives at sea;
relocation, 4. Relational border management; practical solidarity
none analysis – Policy Perspective Policy Policy Perspective Policy mechanism resettlement, context
mentioned in
financial solidarity
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5. CONCLUSION
The unprecedented number of people crossing the borders of the EU since 2012 has revealed the downsides and pitfalls of the Common European Asylum System. The national systems have been experiencing migratory pressures that led to their inability to cope with the situation. The available EU tools for tackling the situation also were recognised as inefficient. This led to a recast of the main EU legislation in the field of asylum. It also provoked extensive debates at national and EU level, emphasising on the notion of solidarity as a necessary component for the successful tackling of the migratory challenges. Solidarity, by way of being incorporated in the EU Treaties as a core value and principle of the Union, can be found in different legal and policy texts, in diverse contexts such as environment, social cohesion and economics. The current migration crisis put attention to the relation of solidarity with asylum. This novel aspect, which essence and normative power have not been extensively studied, is in the heart of the research made in this master thesis. In addition, the lack of definition of solidarity in the EU legal order and the diverse understandings of the concept formed a gap in the research knowledge that has been addressed by the author of this thesis. The purpose of this master thesis was to analyse the significance of solidarity for the European integration process and its possibility to be an EU tool for overcoming crises, such as the migration one. Based on the conducted historical, legal and policy analyses this thesis has the following findings. Firstly, the examination of the theories on solidarity and solidarity in the EU provides essential information about the main components of the concept. Although the theories examined in chapter two present numerous aspects and details of the concept of solidarity, it should be noted that a unified up-to-date approach, neither on solidarity nor on solidarity at EU level, does not exist. Since one of the motivations behind this study was to draw lessons and conclusions about solidarity, in the context of the current migration crisis, key components of the notion can be identified and a new unified understanding can be presented. Following the analysis made, the main components of solidarity are inclusiveness, support of underprivileged, moral and social dimension, power to integrate, promoter of peace and prosperity, a prerequisite of justice.
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Secondly, the complex nature of the EU offers a unique case of solidarity. The theories presented show that at EU level it seems clear that the concept has a unique multidimensional nature. Such multidimensional solidarity exists among the EU and its Member States, among the Member States, and among the EU citizens. The EU solidarity is believed to have the power to re-shape and influence, to some extent, other concepts and values such as security. Solidarity, justice and fairness emerge interconnected. The concept possesses the power to unite the Member States and to build connections on different levels – national, supranational, and worldwide. Thirdly, the legal and historical analysis of the EU solidarity provides with several findings. Solidarity exists as an idea in the EU since the very beginning of the European project with a very first reference in the Schuman Declaration of 1950. The concept is gradually incorporated and expanded with the amending Treaties to cover not only economic but also political spheres of integration. With the introduction of the EU citizenship with the Maastricht Treaty, the European Court of Justice began with its judicial practice on social solidarity. Solidarity expanded with more difficulties in policy fields that were under intergovernmental cooperation. With the Lisbon Treaty, solidarity received a vast presence in the EU legal order. It is mentioned together with other core EU values such as democracy and rule of law. Despite its incorporation in the EU legal order, the concept’s strength is considered by experts as undeveloped. The analysis showed that the ECJ contributes to the clarification of the implications of solidarity, however, it does not provide yet with a stable position about its normative power. Fourthly, the policy analysis shows that solidarity has been mentioned numerously by the Commission in its effort to provide a better working and efficient common asylum standards, procedures and safeguards. With no doubt, solidarity takes a pivotal place in the policy development of asylum, as all the current legislative proposals in the area are using as a treaty base Article 80, TFEU, which establishes solidarity and fair sharing of responsibility as governing principles in this policy field. However, the research has found that there is no clarity about the measures to be adopted by the national governments in order to exercise the principle of solidarity. In addition, no absolute interpretations of the provisions of Article 80, TFEU on solidarity exists and an “emergency” character of the principle is suggested by the essence of the so-called solidarity clause (Article 222, TFEU).
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Fifthly, the examined national perspective, based explicitly on the case of Bulgaria and Italy, shows that asylum has been part of the constitutional order of the countries since very long time. However, the analysis made reveals that solidarity does not have a significant presence in the legal order of those countries. At a policy level, the situation does not differ much. Solidarity does not have a place in the agendas and plans set by the government to tackle the existing migratory pressures. Sixthly, the policy and legal comparison made between the supranational (EU) and national perspective (Bulgaria and Italy) shows that the level of correlation of incorporation of solidarity is relatively low. On one hand, the EU is the ostensible promoter of solidarity as a way of integration, while on the other hand the examined two Member States do not provide with evidence that solidarity occupies an important place in their legal and policy order. Furthermore, this suggests that the length of membership in the EU does not have an influence on the presence of solidarity at national level. Based on these findings there are multiple conclusions that follow. The first conclusion that can be drawn is based on the previous research and on the gap of theoretical knowledge about the essence and components of the term solidarity. The analysis of theories and contributions made by scholars, such as Emile Durkheim, Max Scheler, Richard Rorty, Steinar Stjernø, helped for the establishment of some main characteristics of solidarity. Thus, based on those findings solidarity can be defined as a feeling, an enduring state of mind, and an action, among people in a group, to support those that are in need or unprivileged. Solidarity is based on shared moral principles, social norms and values. It has the power to unite and integrate, to reduce inequalities and inequities, to establish, preserve and restore bonds, and to defend common interests. By its nature solidarity is an inclusive concept. It is the ability of a person or a group of people to share risks and to fight unjustness and unfairness with the primary aim of keeping the harmony, peace and prosperity of everyone, but also of the community as a whole. If justice refers to the idea of establishing and protecting fairness among individuals, then solidarity is the necessary tool through which justice can be distributed and guaranteed. In other words, solidarity is a prerequisite for the willingness to establish justice and to create a prosperous and harmonious society. The findings from the examination of the EU theories on solidarity suggest that in addition to the multidimensional nature of EU solidarity there is an evidence
79 | P a g e suggesting the existence of different EU solidarities with different normative power – economic, environmental, asylum. The level of strength and potential to integrate and shape policies depends on the field of application and the level of competence conferred by the Member States to the EU in that specific policy field. Thus, it can be further concluded that the power of solidarity and its ability as a tool for integration is equally dependent on the willingness of the Member States to confer trust and rights to the EU. Based on the historical and legal analysis of solidarity in the EU, the importance of the notion of solidarity as a guiding principle of the European integration is confirmed by the gradual evolution of the position of the concept in the Treaties. Despite the fact that the founding treaties do not explicitly refer to solidarity, the following amendments confirm the aspirations of the political leaders to build a Union based on values and principles that include solidarity. The expansion of the concept through the Treaties’ texts is a sign that the concept plays and it will play an important role in the present and future of the EU. On the other hand, the gradual incorporation of the term in the Treaties signalises that there were obstacles impeding the freely spread of solidarity in every domain of the European integration policies. The analysis of the Treaties and the history of the European integration process show that the main obstacle for deepening the integration are the national sovereignty concerns. Thus, whenever the integration aimed to spill over into sensitive for the nation state areas, (such as military, security, border management) the process was challenged by strong fears of an intervention into the sovereignty of the Member States. In those cases, solidarity could not be used as a powerful principle and tool for overcoming those sovereignty concerns. This suggests that regardless the increased acceptance of solidarity as a fundamental principle by the Member States, national interests, in some cases, are strong enough to prevail over supranational ones. The EU offers a unique type of solidarity, understood as a fundamental value, legal norm and a political principle of the EU integration. The embeddedness of the concept in the EU law affirms that solidarity is a pivotal part of the Union and its policies. However, the research made on the implication of solidarity in the field of asylum showed that the concept is rather unclear and its potential is underdeveloped. In times of crisis, such as the current migration one, solidarity could be used as an
80 | P a g e instrument to alleviate clashes of interest of the main actors, to bring effective and timely results and to deeper the integration in the EU. Nevertheless, the research made in this thesis shows that the correlation of European and national solidarity is rather low. Thus, the existence of a domestically interpreted concept of solidarity in the field of asylum which is strongly engaged with security concerns, suggests that the ability of the solidarity to be a tool for tackling of the migration crisis, does not explicitly dwell on the nature and substance of the EU law and policy but also in the different interpretation of EU law by the Member States. As a consequence, such weak type of solidarity might be a reason for an endogenous EU political and moral crisis. The hypothesis of this thesis has been proven right to a certain extent. According to the EU Treaties, solidarity is part of the Union’s legal order. However, as it has been traced here, the obligation to act in a spirit of solidarity, as laid down in the EU Treaties, is not respected by all Member States during the current migration crisis. The analysis of solidarity at EU and national level, and the existing disagreement among Member States regarding a common approach towards the migration crisis, suggest that in the field of asylum policy the concept has relatively small possibility to be an effective tool for tackling this crisis due to the heterogeneous incorporation, application and understanding of the concept at EU and national level. Hence, the current status of solidarity can hardly offer proof that the concept has strong normative power. This raises questions about the nature of solidarity as an ordinary legal norm. Moreover, based on the findings of this thesis the author suggests that solidarity as its now incorporated, developed and applied in the EU legal order can only have practical strength if it is part of other binding legal norms. Such failure of the concept of solidarity, as a binding legal principle, suggests either its revision or a shifting of the discourse about measures for tackling the migration crisis from solidarity towards another concept/s. In case the main actors of the EU “game” want solidarity to be an effective tool for dealing with common EU matters and to possess an actual political and legal importance, this principle should be re-examined and redefined in a way that will answer the needs and purpose of the EU and its members. The attempt of the EU to impose responsibility and justice through solidarity seems more like a desperate, inefficient and unrealistic move rather than a secure and well- thought out one. Solidarity could possess a real binding power if a better resonance between solidarity at EU and national policies and law exists.
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Based on the findings and conclusions the added value and importance of this thesis could be found in the following contributions to the existing literature and researches on solidarity at EU. First, it puts focus on the normative and integration power of a fundamental principle and value of the EU and its relation to the field of asylum. The present analysis also contributes to the debate between two of the mainstream theories of European integration - rationalism and constructivism. Having in mind that constructivism considers that the European integration's success is dependent on the high level of "domestic…resonance of EU ideas"306, the conclusions of this master thesis, and specifically the finding that the correlation between solidarity at EU and national level (Bulgaria and Italy) is rather low, could provide with another idea of why the concept has no practical influence on tackling the current migration challenges. Thus, this research provides a basis for exploring the possibilities of other European concepts and expanding on the European solidarity one. Lastly, this thesis provides with a number of recommendations for future research on topics that are timely relevant and might have a significant influence on the future of the European integration project. Further research of the concept of solidarity and its normative implications is strongly recommended as this can provide a holistic understanding of the concept. One of the limitations of this study suggests that for an all-encompassing understanding of solidarity at EU level analysis of the legal and asylum policy of the rest of the Member States hereby suggested. Furthermore, having in mind that this thesis is focused on asylum, a study on the concept of solidarity in other policy fields is also recommended. For instance, in the European energy policy field, the latest Commission proposal for new rules in the field of gas supply foresees the introduction of a solidarity principle. 307 Another possible direction for further research could be a thorough examination of the EU’s motto United in diversity. Analysis of the relation of the motto with solidarity and a research on questions such as Does this principle implies exclusiveness towards “others”? How diverse can the EU actually be? Is solidarity a base of this motto? would be also relevant. The essence of the proposal and the future of the European Solidarity Corps is also a topic that could be examined. For
306 Jones, E. and Menon, A., 2012, p.36. 307 European Commission, 2017.
82 | P a g e those interested in the crisis management studies, might be relevant to trace whether the concept of European solidarity is a victim of the current crisis or the crisis is deeper because of the EU’s weak type of solidarity. Nowadays, the effects of globalisation on the movement of persons led to a situation in which governments are less and less capable of controlling these processes. In fact, the recent civil war conflicts, dictatorship regimes, political and economic breakdowns and environmental disasters in countries outside the EU brought serious challenges for the EU Member States abilities to tackle the high influx of refugees, asylum seekers and economic migrants looking for temporary or permanent protection in Europe. This exogenous challenge, inevitably affected negatively the EU from inside. With no physical borders for goods, persons and services, and national governments applying their own immigration policies that also affect the migrant situation in neighbour countries, it became clear that individualistic attempts for tackling the situation are inappropriate. Thus, a common European response to the migration challenges is needed more than ever. Such common response should be in accordance with EU’s fundamental principles, norms and values. The legal norms in the EU primary law are binding for all the Member States as they have been endorsed by their governments. The same counts for the secondary law of the EU - all the regulations, directives and decisions adopted by the EU institutions. The ECJ is the responsible body for control over the application and transposition of the asylum legislation of the EU. The rulings of the ECJ are binding for the Member State’s administrative authorities and courts and as such influences the development of norms. As traced in this master thesis solidarity occupies a pivotal place in the EU legal and policy order. Nevertheless, the conclusions of this thesis suggest that the concept’s nature and normative implications should be clarified in order to give the possibility of the notion to be more than just an “empty shell” with ambiguous and vague essence. The EU needs a strong, comprehensible, inclusive and legally binding principle of solidarity that will be able to unite and ensure peace and prosperity for the EU citizens and for those that have chosen to seek protection in it.
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