Commission pushes member states to accept emergency mechanism

Brussels has told member states opposed to the introduction of an emergency mechanism in EU asylum legislation to agree to the change or be at the mercy of the European Court of Justice.

If we don’t do anything we are all at the mercy of the court

EU Home Affairs Commissioner Cecilia Malmström was speaking during a meeting of Justice Ministers on the European Commission’s proposal, tabled following Malta’s pressure, aimed at possibly suspending the Dublin II rules in extreme cases of migration pressure.

During the meeting aimed at resolving the issue, Ms Malmström insisted that member states had to show some flexibility.

“All member states have agreed on the establishment of a common asylum system by 2012 and the emergency suspension mechanism we are proposing is part of the package,” Ms Malmström said.

According to current rules, asylum applicants who are apprehended illegally in a member state are sent back to the member state where they first entered the EU. However, in recent cases decided by the ECJ, member states were ordered not to follow the Dublin II rules.

These exceptions were in two cases concerning Greece, where it was found that the human rights of the asylum seeker could be violated if sent to a country that could not cope with the system and was overwhelmed by immigrants.

“Those opposing our proposals need to be flexible. Everyone is noting the decisions being taken by the ECJ on these issues. If we don’t do anything we are all at the mercy of the court. More judgements are on the way,” Ms Malmström warned.

A legal opinion submitted by the ECJ’s Advocate General holds that a member state is obliged to examine an asylum application itself if it cannot safely assume the asylum seeker will be treated in line with EU law in the country of entry.

The current system is considered to be placing a disproportionate burden on peripheral countries like Malta, Greece, Cyprus, Spain and Italy particularly when faced with exceptional influxes of illegal immigrants.

Two years ago the Commission proposed that the Dublin II rules may be suspended “in exceptional circumstances” when a particular member state could not cope with the sudden pressure.

Although this was just a “very small step” to alleviate the pressure on some member states – as highlighted by Malta’s permanent representative to the EU Richard Cachia Caruana during the discussion – some member states are objecting. They include Germany, the UK, France, the Czech Republic, Sweden, Slovakia and Latvia.

They argue the “emergency mechanism” may put more pressure on their own asylum systems and that member states may “abuse” of such a mechanism.

On the other hand, those member states supporting the Commission, including Malta and Italy, are interpreting this resistance as yet more proof of lack of solidarity.

Melchior Wathelet, Belgium’s Home Affairs Minister whose country is in favour of the Commission’s proposal, noted that the countries opposed to discussing a suspension mechanism were the same ones that rejected the idea of a European asylum system.

The European Parliament has already backed the Commission’s plans but the deep divisions among member states means it is now stuck at Council level.

To unblock the impasse, the Polish Presidency has now proposed the Commission clarify under which circumstances a suspension mechanism could enter into play so to put opposing countries’ minds at rest that this mechanism would only be “a last resort”.