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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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Article, Case comment

Inching Towards an EU-Wide Recognition of Same-Sex Relationships?

Adel Msolly

Introduction

Harmonisation in EU law has been justified as means of facilitating the internal market. Such process has expanded to areas of law not economic in nature, family law being the prime example. Broadening EU competence in family law and thus furthering judicial cooperation in civil matters is necessary to enable free movement of persons and their family members (see Article 81(3) TFEU). As such, EU enjoys competence in family law on conflict of laws matters in matrimonial proceedings, parental responsibility, maintenance and succession. However, family law is one of the areas most laden with socially sensitive issues, every Member State having different values and policies in the field.

Nowhere is this divide in policies more apparent than in the context of recognition of same-sex relationships. Currently, under EU law some Member States have full marriage equality (e.g. United Kingdom[1], Netherlands), some provide for registered or civil partnerships (e.g. Italy, Czech Republic), and some offer no recognition[2] (e.g. Bulgaria, Slovakia). It does not seem likely that there would be a Regulation to legalise same-sex marriage across the EU any time soon. Notwithstanding, the discrepancies in marriage laws across the EU do hamper free movement of persons; just like heterosexual marriage, same-sex marriage and civil partnerships also have consequences in other areas of law, namely property law (for instance, in some Member States certain ways of owning joint property are only available to married couples[3]), succession (how do same-sex spouses or registered partners inherit on their spouse’s death?), among others. Does EU law address this at all?

This blog post will examine the current state of EU law on recognition of same-sex relationships, which is at a standstill. In this context, it is worth mentioning that the Coman case, currently pending before the ECJ, holds great potential for reform. Subsequently, the post considers whether existing EU law on succession and property regimes provides for at least limited recognition of same-sex relationships even in those Member States that do not recognise same-sex relationships outright. Same-sex partners should not need to navigate technical areas of EU law in order to ensure that they can, for instance, inherit the same way a heterosexual married couple would. However, such a limited recognition is a step in the right direction, and may affect attitudes in more conservative Member States, so that one day an EU-wide regime on recognition of same-sex relationships would be viable.

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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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Article, Legal Procedure

Upholding the rule of law in times of crisis: (ineffective) procedures under Article 7 TEU and possible solutions

Patricia Jaworek

Since 2016, the Polish parliament has introduced several new laws that challenge the very foundation of the Polish judicial system, particularly the Polish Supreme Court. These reforms not only represent a further step of the governing Law and Justice Party (PiS) in reducing the independence of the country’s judiciary, but they also pose a threat to one of the European Union’s most fundamental principles: The rule of law. Against this background, this paper shortly outlines the legal instruments available under EU law for securing the rule of law, discusses possible weaknesses of these measures and presents alternative approaches to redress existing violations.

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