Background
This post is a follow up of the earlier posts on the Common European Asylum System published on this blog. It is based on a Statement from the Commission, published on 2 March 2017 concerning renewed efforts in implementing solidarity measures under the European Agenda on Migration. The European Agenda on Migration is an agenda based on four pillars to better manage migration. The four pillar are reducing the incentives for irregular migration, saving lives and securing the external borders, a strong asylum policy and a new policy on legal migration.
Since 2015, a lot of people have applied for asylum in different parts of the world. The main reason for this is the crisis and war in Syria. According to the United Nations High Commissioner for Refugees (UNHCR), 6.5 million people have fled from Syria. Because of the unexpected amount of people applying for asylum, the migration policy in the EU has been highly discussed and criticised (see earlier posts). On 2 March 2017, the Commission stated that all Member States need to ‘pick up the pace of relocation to alleviate pressure from Italy and Greece’.
The EU-Turkey Agreement, which has been discussed earlier on this blog, is an agreement which aims to end illegal migration from Turkey to the EU. The agreement came into force 20 March 2016 and includes, inter alia, a provision stating that irregular migrants crossing from Turkey to the Greek Islands will be returned to Turkey. On 2 March 2017, the Commission stated that Greece and the other Member States must continue working on the Joint Action Plan on the implementation of the EU-Turkey agreement, which is a cooperation between EU and Turkey on migration management. The objective is to improve the situation on the Greek Islands and the work of the European Border and Coast Guard Agency.
Frans Timmermans, the Commission’s First Vice-President stated, that all Member States must continue to implement a comprehensive approach. The engagement with Turkey needs to continue. Dimitris Avramopoulos, the Commissioner for Migration, Home Affairs and Citizenship stated that ‘responsibility cannot be fairly shared without solidarity’. Avramopoulos refers to the fact that the Member States need to carry through their obligations and to ensure full operational capability of the European Border and Coast Guard.
A renewed push without actual effect?
Concerning the relocation and the resettlement of migrants, the Member States are performing in various degrees with regards to their obligations. Only two Member States, Finland and Malta, are fulfilling their obligations towards Greece and Italy. However, other Member States, such as Hungary, Austria and Poland, are refusing to participate at all in the process. In addition, some Member States are meeting their obligations to a very limited extent, for example Bulgaria, Croatia and Slovakia. So far, the Member States have only provided safe pathways to 14,422 out of 22,504 persons which they have agreed to relocate. It is in this light that we must ask ourselves the critical question if the Commission’s renewed push towards implementing solidarity measures will really encourage the Member States to live up to their obligations on the issue of relocation and resettlement of migrants.
The Commission’s stance towards the Member States is quite firm. Either the Member States comply with their obligations or the watchdog of the EU will hold these naughty Member States accountable for not living up to their obligations deriving from the Council decisions. But, will the Commission’s stern approach help the migrants in the Mediterranean sea? It is evident that the Member States should participate in the relocation scheme of migrants. The principle of solidarity and fair sharing binds all Member States.
As a consequence of the Member States’ failure, or refusal, to comply with their obligations, the Commission is indeed calling for renewed efforts in implementing solidarity measures under the European Agenda on Migration. By stating it will not hesitate to make use of its powers under the Treaties for those who have not complied, the Commission shows it is firmly determined to make the Member States equally deliver our obligations. However, will this threat actually lead to the Member States complying and is this the only way forward? As Avramopoulos said, all operational preconditions to make relocation work are in place, yet only two Member States are complying with their obligations. In this case, it is not hard to argue that, although the EU officially has agreed upon how to solve this ongoing problem, it is obvious that very few Member States actually support what they have agreed upon. Therefore, if the Commission were to realize its threat, it would have to do this against almost all the Member States. In such a case, it is doubtful if the Commission is brave enough to do this or if the threat is an ‘empty threat’.
So, why are some Member States not complying with their obligation? One of the reasons for this is the conflicting interest between the EU and the Member States. While the EU has their own interest to maintain their obligations, the Member State are concerned about their national priorities. Since the Commission, which takes the interest of the EU, is the initiator of the agreement, the Member States may not feel sufficiently included in the decision-making process. Bulgaria, Hungary, Macedonia, Greece and Turkey have put up fences to hinder refugees from entering their countries, which clearly manifest some Member States’ contradicting opinions about the refugee crisis.
In addition, it is also possible that some Member States, especially those refusing to comply with their obligation at all, would prefer to be brought before the Court by the Commission and eventually be fined instead of having to relocate refugees. The relocation and resettlement of refugees is clearly a very sensitive issue for both the EU and the Member States, and although the Commission is firmly determined in implementing the solidarity measures under the European Agenda on Migration, it is not hard to argue that this renewed push is without actual effect. It seems more likely that the EU must get back to the drawing board and come up with a solution that all Member States support and, sadly enough the refugees are the ones most affected by this, not the Member States.
Christofer Bjerkhoel, David Peralta, Anna Puck Lundgren and Nora Shoki
EU Law | Örebro universitet 
The question in the title of this post, “the watchdog barks, but does it bite?” is relevant to discuss. How I understand the question is if the statement from the commission is an empty threat or not to launch infringement procedures against those Member States that have not yet relocated anyone. I do not completely agree with the authors of the post that the statement is without actual effect. I think the Commission purpose with that statement was to give those member states a last chance to implementing the solidarity measures before taking the first step in launching infringement procedure against them. I understand the statement as a warning before the Commission will take action. From a later statement, 16 May 2017, the Commission announced that Austria has now formally pledged to relocate 50 persons from Italy so perhaps the former statement had some effect (http://europa.eu/rapid/press-release_IP-17-1302_en.htm).
Additionally, I believe it is important that the Commission do not let those countries that have not yet relocated anyone to get away with it because they are in fact in breach of their legal obligation. If the Commission do not take action against those Member States it would send out the wrong message, namely that the Commission will not make use of its power under the Treaties when it regarding sensitive issues and tolerate that Member States continue to breach their legal obligations.
Nonetheless, I do agree with the authors of the post that perhaps some Member States would prefer to be brought before the CJEU rather than having to relocate refugees, but that is another questions that should be distinguish from the first.
The problem here is the recent immigration crisis that occurred since 2015 and the issues it implies now when it comes to relocation of population. Because of the amount of migrants, the Commission decided that an action should be taken on the EU scale, using a comprehensive approach. Personally, I think even though the criticism of the action is fair because, what the deal is about with are human beings, so a solution should come faster and be as effective as possible for the greater good. This is the very reason this crisis is different from any other such as economic crisis. Even though an action has been taken on the European scale, only two countries fulfilled their obligations towards Greece and Italy while other refuse to participate at all.
What comes out of this, is that the EU gives the impression to actually do something about this great crisis when the most importqnt part of it, the member states, actually only turns its back to the problem by refusing to find a proper solution or to take part on it. The EU is supposed to be built as a community when some countries take the charge while the others are exclusively focused on their own problems, going as far as having to pay a fine rather than being an actual part of the solution to this crisis. The question that comes into my into my mind is the actual use of the Commission and the impact of the of the actions taken on the European scale on the member states. What use do they have if they member states just run away from them just by paying a simple fine.