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Challenging Harmonisation and Uniformity in EU asylum law: A Broader Problem of International Law?

Jenny Poon 

Introduction

The conflict in Syria has brought a large number of asylum claimants across Europe into sharp relief. This is precisely the time when the Common European Asylum System (CEAS) should be closely monitored and scrutinized to ensure access to international protection for those deserving it.

The CEAS expresses political willingness by the European Union to establish a harmonised, fair, and effective asylum procedure to process asylum claims across EU Member States while complying with international law obligations to protect asylum claimants fleeing persecution.[1] The three key instruments of the CEAS include: the Dublin Convention (1990), the Dublin II Regulation (2003), and the Dublin III Regulation (2013).[2] The latter Regulation identifies the Member State responsible for examining the asylum application, which the aim to enhance efficiency, prevent forum-shopping, and promote harmonisation within the EU asylum system.[3]

This blog post argues that the CEAS as a whole has partially failed its goals of achieving harmonisation and uniformity in the area of asylum law. The lack of uniformity and harmonisation among the practices of the Member States in such an area is due, in particular, to the fragmentation of international law.[4] While some argue that EU law, as interpreted by the Court of Justice,[5] is an autonomous legal order, this blog takes the internationalist view to suggest that the EU legal order should comply with relevant international law obligations in the area of asylum law, as requested in Article 78 TFEU.

Harmonisation and uniformity in the area of asylum protection may be achieved when Member States comply with the CEAS in a coherent and standard manner, while at the same time adhering to their international law obligations such as non-refoulement, protected under the ECHR. It is important for the CEAS to be aligned with international law and in particular, the principle of non-refoulement as protected under the ECHR, for two reasons: First, to effectively protect asylum claimants and refugees; second, to prevent erosion of the international refugee law regime by the variation of interpretation by EU Member States.

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News/notes

The KSLR EU Law Blog is 12th in the FeedSpot ranking on EU law blogs

We are pleased to announce that the KSLR EU Law Blog has been selected among the 30 most influential blogs on European matters, ranking 12th! We would like to thank all our readers for their interest and support to this project.

Further information may be found at the following link:  https://blog.feedspot.com/european_law_blogs/.

We look forward to receiving your submissions and hearing your thoughts on any EU-relevant matter.

Giulia & Luigi

 

 

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Article 7 TEU and the Polish case – a recast

Leo Hotham and Lucas Nacif 

Introduction

According to Article 2 of the Treaty on European Union (TEU), the European Union (EU) is founded on the common values of its Member States: ‘respect for human dignity, freedom, democracy, equality, and the rule of law’. The Article in itself is non-obligational, and lacks a substantive dimension, and as such appears to be aspirational. It is, however, protected against serious breach by the procedures contained in Article 7 TEU.

This Article was introduced by the Treaty of Amsterdam,[1] to advance the European constitutional project by creating a form of ‘constitutional troubleshooting’, placing the individual at its centre and providing protection from ‘state arbitrariness’.[2] The provision entrusts the Council with an arsenal of political measures aimed at rectifying a breach of Article 2. Firstly, Article 7(1) TEU enables the Council, acting by four-fifths majority, to take pre-emptive action, after a proposal by the Commission, Parliament or one-third of the Member States, to declare ‘a clear risk of serious breach’ of Article 2 TEU. The Council, acting by unanimity, may furthermore declare ‘the existence of a serious and persistent breach’, at which point the Council has at its disposal a sanctioning mechanism, able to strip Member States in breach of rights derived from the Treaties. In this post, we will argue that, despite the gravity of the Commission’s recent recommendation, it will unlikely have a lasting impact, due to the current political climate alongside the onerous procedural requirements of Article 7 TEU.

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Choosing London: the effectiveness of exclusive choice-of-court agreements post-Brexit

Louise O’Callaghan

The implications of Brexit on private international law fail to make headlines. However, due to the overwhelming ‘europeanisation’ of this area, Brexit will have far-reaching consequences. EU law has drastically impacted the United Kingdom’s commercial judicial system, notably the procedure applicable to international commercial litigation. The Brussels I Regulation, and its Recast, determine which Member State has jurisdiction in a civil and commercial dispute involving an international element.

London maintains a dominant position as a jurisdiction of choice for international commercial disputes. While this reputation is built upon the experience of UK’s judges and the quality, certainty and efficiency of its legal system, it is heavily reliant on the procedural effectiveness guaranteed by the Brussels regime, especially with regards to choice-of-court agreements. A major accomplishment of the Brussels regime is ensuring the effectiveness of choice-of-court agreements by protecting them from pre-emptive proceedings in other Member States. However, post-Brexit, the Brussels regime will cease to apply to the UK. This paper examines whether choice-of-court agreements electing London will remain effective or whether they will be at risk of being undermined by pre-emptive strikes.

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