European Union

A Euro-American Union: Reflections on an Academic Marriage

Anne-Marie Slaughter

In December of 1993, Andrew Moravcsik published ‘Preferences and Power in the European Community’ in the pages of the Journal of Common Market Studies, giving rise to the Liberal Intergovernmentalist theory of European integration. This month, the journal marks the 25th anniversary of the publication of Moravcsik’s article with a special issue, “Liberal Intergovernmentalism and Its Critics,” devoted to assessing the legacy of Liberal Intergovernmentalism and its continued relevance in today’s crisis-ridden EU. 

Here, Anne-Marie Slaughter, President and CEO of New America and Bert G. Kerstetter ’66 University Professor Emerita of Politics and International Affairs at Princeton University, reflects on her twenty-five year intellectual dialogue with, and marriage to, Andrew Moravcsik. 

*  *  *  *  *

The twenty-fifth anniversary of Liberal Intergovernmentalism happens to be Andy’s and my 25th wedding anniversary. It is thus time to celebrate many types of cross-fertilization. Andy has influenced my thinking in so many ways for so many years that sometimes I’m no longer sure how to disentangle where his thinking leaves off and mine begins. Yet we also remain strongly and occasionally even stridently at odds, with what he would call my legalism clashing sharply with what I would call his cynicism. Our differences are shaped by our disciplines as much as by our personalities and intellects, but I learn from him even in dissent.

Andy and I met in the fall of 1985, when I was a pre-doc at Oxford but on a Ford Fellowship at what was still then the Center for International Affairs at Harvard (now the Weatherhead Center). I remember this impossibly tall man standing in – filling up – the doorway of my small office, handing out a flyer to a party that he and his housemates were giving on Orchard Street. Three years later, as my first marriage ended, I went to Paris for a conference, stayed with Andy, and fell madly in love. We became a couple in early 1990, just after I became an assistant professor at the University of Chicago law school.

Anne-Marie Slaughter and Andrew Moravcsik

My name then was still Anne-Marie Burley. Andy would go to EU conferences and expand his theory of intergovernmentalism, and some graduate student not yet in on the latest gossip would innocently ask him whether he had read Burley and Mattli (1993) on the supranational-functionalist character of the European Court of Justice.  Thus we cut our academic teeth on opposite sides of an ongoing debate. But it was no accident that we were both studying Europe; we are both half-European (a Hungarian father on his side and a Belgian mother on mine), and share a culture, mindset, and sensibility that has shaped us deeply.

As a lawyer and an Oxford D.Phil schooled in the tradition of Hedley Bull’s The Anarchical Society, I was grappling with what the late Professor Thomas Franck used to refer to as the “existential question” that every international lawyer must face: whether and how law shapes politics. Walter Mattli and I elaborated the ways in which the European Court of Justice deployed law as both a mask and a shield for politics. Andy, by contrast, was taking on the sacred cows of European federalism, stripping away visions of peace and unity to uncover bedrock economic interests.

Will Phelan’s (2018) account of European legal integration in this issue revives that debate. Phelan essentially argues that Andy was persuaded by his wife that legal integration was driven by more neo-functionalist factors, but that he shouldn’t have been! In Phelan’s account, a true liberal intergovernmentalist explanation of legal integration would focus on the member states’ deliberate choice of a treaty enforcement system that would prohibit the kind of inter-state retaliation for violations and the invocation of safeguard mechanisms to excuse violations that characterize so many international treaties. To avoid this tit-for-tat, Phelan argues, the member states sought purely judicial enforcement through both national and supranational courts.

Phelan’s argument is novel and persuasive; indeed, he makes a real contribution to a fuller understanding of the member state and judicial motives. But what he cannot explain is exactly the dimension of the EC legal system that Walter Mattli and I focused on most – the ECJ’s decision to validate and actively encourage the use of the preliminary ruling procedure by individual litigants.  The ECJ could perfectly well have narrowed the reach of the Treaty of Rome’s Article 177 just as they narrowed the reach of 173, thereby reserving treaty enforcement to domestic courts but only with regard to cases brought by member states.

Such a decision would have accomplished the goal of substituting a domestic enforcement system for an inter-state retaliation system, but would have left decisions as to when and how to enforce the treaty in the hands of state lawyers, a far more predictable and controllable outcome. Phelan shows that some state lawyers and at least one prominent ECJ judge supported this step. Yet Mattli and I emphasize the innovation of encouraging individual litigants and their lawyers to bring as many cases as possible to enforce European law, as well as the active courting of national judges to hear those cases and refer questions of European law to the ECJ. With that step, EU law became truly like national law, invoked and upheld in accordance with the self-interest and civic commitments of both litigants and judges.

In the end, Phelan’s liberal intergovernmentalist account can co-exist with Mattli’s and my account. Indeed, fitting these two arguments together is a microcosm of the way I now think of Andy’s and my work fitting together more generally. Of course states have power; Mattli and I explicitly described the ways in which the Court as a whole and individual judges responded to increasing Member State concerns about “judicial activism” in the late 1970s and 1980s (Burley and Mattli 1993: 71). But so too do institutions and the individuals who operate them, animated by interests and ideals.

From 1990 to 1994 Andy and I lived mostly in Chicago, very happy years of cohabitation and collaboration, even though Andy was actually teaching at Harvard. Above all, we had no children! We would work at either end of our living room, an arrangement that continued in our joint study to this day. The difference is that then we had time to read and respond to each other’s work.

Andy began working on what I still think is his most important work: a liberal theory of international relations. He read stacks of books of classical liberal philosophy and political theory and derived a theory of international politics from the bottom up, starting with individuals and groups in society, moving up to governments, and finally to international institutions. I was writing what would become “Law among Liberal States: Liberal Internationalism and the Act of State Doctrine” (Burley 1992). The Berlin Wall had come down, history had ended – – although of course we were too sophisticated to believe that – – and I was convinced that in fact liberal states were bound together in different ways, and follow different rules, than non-liberal states.

Over the next two decades I came to realize, however, that the networks, more than the states they bind together, were the real story, and that a bottom-up view of global politics opened up an entire field of network design and opportunities for foreign policy webcraft (Slaughter 2017). Still, Andy’s theory, together with Robert Keohane and Joseph Nye’s (1977) work documenting networks among the complexly interdependent OECD states, helped provide a foundation for my work.

*  *  *  *  *

To return to our personal narrative, Andy and I moved to Harvard in 1994, and later to Princeton, where Andy continues to teach. We had our first son in 1996; our second on the first day of 1999. My memories of those years are of Andy typing away furiously on the manuscript that became The Choice for Europe, typically with Edward strapped to his chest in a Baby Bjorn.

We no longer had time to read each other’s work and comment painstakingly on drafts; our days were filled with logistics and the daily scorecard of joint parenting. We have both documented our odyssey as the parents of a child who seemingly overnight became a determined teenager heading firmly in the wrong direction (Slaughter 2012; Moravcsik 2015). Andy became the lead parent; I came home from Washington; we both found ourselves making choices that we did not expect but do not regret. Our story as a couple may well have more practical impact, surprisingly to us, than any of our academic work.

And in the end, Andy has perhaps influenced me perhaps most as the father of our children. He parents the way he researches and writes: with intensity, passion, and rigor. His highest accolade, which our sons have picked up, is “serious.” When Andy says someone is serious, he means committed, deep and disciplined about a work or project, whether it’s a matter of vocation or avocation. When Andy goes to hear an opera, he spends weeks in advance listening to and watching videos of earlier performances to prepare himself.

Above all, Andy is deeply committed to a set of intellectual, artistic, and moral principles, perhaps best captured by the German idea of a “gebildeter Mann,” an educated man, but equally important, a cultured man. Knowledge is sterile without culture, the highest expression of the human spirit. Indeed, at some level, the love of learning and the exploration of the endless realms of the imagination merge.

This wonderful issue is the best possible tribute to not only to the ideas and knowledge, but also to the standards and attitudes that Andy has transmitted to his students. It is a celebration of thirty years of scholarship and teaching. And it is the perfect prelude to Andy’s next act.

References

Burley, Anne-Marie (1992). ‘Law among Liberal States: Liberal Internationalism and the Act of State Doctrine’, Columbia Law Review, Vol. 92, No. 8, pp. 1907-1996.

Burley, Anne-Marie, and Walter Mattli (1993). ‘Europe Before the Court: A Political Theory of Legal Integration’, International Organization, Vol. 47, No. 1, pp. 41–76.

Keohane, Robert O., and Joseph S. Nye (1977).  Power and Interdependence:  World Politics in Transition (Boston: Little Brown).

Moravcsik, Andrew (2015). ‘Why I Put My Wife’s Career First’, The Atlantic (October).

Phelan, William (2018). ‘European Legal Integration: Towards a More Liberal Intergovernmentalist Approach’, Journal of Common Market Studies, https://doi.org/10.1111/jcms.12782.

Slaughter, Anne-Marie (2012) “Why Women Still Can’t Have It All,” The Atlantic (July/August).

Slaughter, Anne-Marie (2017).  The Chessboard and The Web: Strategies of Connection in A Networked World (New Haven: Yale University Press).

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It’s a mark of the quality of the public Brexit debate that the title of this post could refer to pretty much any aspect of the negotiations to date: the mixture of ignorance, indifference and confusion has produced more than its fair share of mistimings and incorrect sequencings.

But today I’d like indulge in my own piece of (partial) mistiming, following a very useful discussion yesterday while giving evidence to the Exiting the EU Committee in Parliament.

The session was focused on the process and practice of ratifying the Withdrawal Agreement, but discussion also strayed into the transition and the movement to the future relationship from that transition.

As all the witnesses underlined, when transition ends (whenever that might be), it ends with a cliff edge, unless an agreement is in place to maintain some form of formal EU-UK cooperation. In that respect, it’s like 29 March 2020, but with the added complication that we currently don’t have a mechanism to extend transition as we can Article 50.

The question that arose was one of how one might square that cliff edge with the difficulty/impossibility (depending on how you feel about it) of concluding a comprehensive future relationship treaty of a kind that’s never been attempted before.

Part of the answer might lie in provisional implementation, which would allow a substantial amount of the contents to be in operation during the (likely lengthy) ratification process. The CETA example gives an indication of how that worked in a potentially-not-dissimilar case.

But that still leaves the complexity of drawing up and signing a single text. As CETA underlined, that single text contains everything and someone in the process might take exception, as Wallonia demonstrated in ratification.

So I’d like to try out some ideas here about how one could break up that single text into multiple ones, to help reduce the cross-linkage that delayed CETA approval and to potentially allow for a more stable move from transition to the end-state future relationship.

The architecture of this multiple-text would be relatively simple, in theory.

At its core would be a framework treaty. This would provide for a general structure of interactions between the EU and UK, including a management/dialogue process as well as a dispute settlement mechanism. Logically, these could be the same as those used in the transition period. In substantive policy terms, you’d also have the maintenance of the transition provisions, but with a mechanism for their suspension as new, sectoral agreements could be reached.

Those sectoral agreement would form the second element, and could be constructed as narrowly or as broadly as required, with negotiation and implementation running at variable speeds.

The merits of this approach would be multiple.

Firstly, it would move transition off the Article 50 basis to the proper one (Arts.207, 217, etc), thus removing a major legal headache for the EU and so providing much more stability for both parties.

Secondly, given the broad acceptance of the transition model to all parties now, the securing of the framework text might be simpler than engaging in to detailed modelling of the end-state future relationship, especially when some parties still aren’t sure what they want that end-state to be.

Thirdly, the framework text would not have to be a complete translation of transition into a new text: if parties could agree within those negotiations that they would end participation in specific areas, then that could already be included, allowing everyone to show that it wasn’t simply a holding exercise. Fisheries and agriculture might be obvious examples of this.

Fourthly, by push substantive changes out to sectoral agreements, it would be possible to avoid progress in one area getting held up by delays in another. So security cooperation could be fast-tracked, while arguments about services continue.

Fifthly, this arrangement would avoid some of the problems of the Swiss model, where multiple treaties were agreed simultaneously and are cross-linked. The EU doesn’t like this, since it’s complex and fiddly. In this proposal, the framework would be the single master document, and could impose conditions on what happens in the case of violation of any sectoral text (e.g. recourse to dispute resolution, or revision to transition provisions). The framework could also create a streamlined ratification process for the sectoral texts, to reduce ratification delays.

But problems would remain.

The central one is the framework document still remains a big and daunting document, and ratification would need to be in place by the end of transition, to ensure it was fully effective. That might be possible, because it’s more about can-kicking than making final decisions on the end-state, but equally that can-kicking might be cause for concern for some parties.

Much would depend on local political conditions around the negotiations. If parties (and particularly the UK) remain at the high level of politicisation on the subject, then the holding pattern that this approach would suggest might not be an option, especially if transition itself had to be extended to allow for ratification to be completed.

However, in the absence of clear consensus about what the end-state should be, thinking about ways to avoid falling off the cliff edge might be of interest.

And this brings us back to getting ahead of ourselves.

All of this clearly depends on an agreement being reached on Article 50 and the Withdrawal Agreement. That said, there are also the active discussions on the Political Declaration, where parties might usefully begin to think about where they’re heading, and how.

Too often in Brexit, decisions have been taken by default or in haste, because we’ve not had the capacity or willingness to raise our eyes from the immediate challenges that surround us.

In those cases, and in this case, that means making less-than-optimal choices. So maybe we can try to change how we do things.

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We wholeheartedly welcome the release of Aasiya Noreen, also known as Asia Bibi, after eight years in prison, following the ruling of the Pakistan's Supreme Court, overturning her conviction for blasphemy which is unfortunately punishable by death under Pakistan’ laws. Mr McAllister and Mr Panzeri also emphasised “Pakistani authorities must continue to uphold the rule of law and Pakistan’s international commitments on human rights”.

We condemn the violence by extremist elements in Pakistan and hope that, in the light of the past violence against victims of blasphemy, allegations by vigilantes as well as those who criticised blasphemy laws, the Pakistani government will do its utmost to provide safety to Ms Bibi, her family and those courageous persons defending freedom of expression and religion.

Mr McAllister recalls that the European Parliament Foreign Affairs Committee visited Pakistan in April last year and held in-depth exchanges of views with the authorities and civil society, including human rights defenders, on the human rights situation in the country.
Further information
European Parliament resolution of 15 June 2017 on Pakistan, notably the situation of human rights defenders and the death penalty
Source : © European Union, 2018 - EP

A European Parliament’s delegation of the Committee on Foreign Affairs and Subcommitee on Human Rights, headed by Chairman David McAllister met with António Guterres the UN Secretary General, in New York on Tuesday.
The delegation of MEPs explored ways to reaffirm the importance of cooperation between the EU and the UN in order to promote and guarantee multilateralism while there are growing threats to democracy worldwide. The need to enhance the credibility of multilateral diplomacy to achieve real results was underlined. The EU is strongly committed to promoting a rules-based global order with multilateralism as its key principle and with the UN at its core. UNSG Guterres insisted on the fact that the EU is a vital and honest broker.
Further information
Read the complete text of the press statement
Source : © European Union, 2018 - EP

The standardisation of armaments has been a long-standing focus of EU efforts to enhance the Union’s military effectiveness, to improve capability development and to support the competitiveness of the European defence industry. Armaments standardisation is a process that can lead to cost savings for defence spending by injecting added-value in defence production processes and the avoidance of capability and equipment duplication. Standardisation is a method of improving interoperability within and between European armed forces and a process that can enhance the operational effectiveness of Europe’s militaries. Both the EU and NATO have taken measures over many years and decades to enhance armaments standardisation in Europe. Yet the nature of the contemporary global defence market is that many more technologies and components integrated into military systems are sourced and/or produced in the civilian sector. The line drawn between defence equipment and capabilities on the one hand, and civilian products and technologies on the other, is increasingly blurred. In this context, and in relation to recent developments on EU defence cooperation, this study analyses the standardisation approaches taken by the EU in relation to maritime information sharing and remotely piloted aircraft systems. It makes recommendations on how EU approaches to armaments standardisation can be expanded and enhanced.
Source : © European Union, 2018 - EP

As it stands, the United Kingdom is due to leave the EU on 29 March 2019 (as a consequence of invoking Article 50 of the Treaty on European Union on 29 March 2017 by the UK government), when the period for negotiating a withdrawal agreement will end unless an extension is agreed. The so-called “Great Repeal Bill” (which would repeal the European Communities Act of 1972 and converge in UK law all enactments previously in force under EU law), subsequently renamed the European Union (Withdrawal) bill,  was introduced to the House of Commons on 13 July 2017 and became law in June 2018.

This Act inter alia legislates for formal incorporation of up to 20,000 pieces of EU law onto the UK by:

– conversion of directly applicable EU Regulations into the UK law

– preservation of laws that have been made in the UK in order to implement its obligations imposed onto the UK as a consequence of its EU membership, and

– continuing to make available in the UK those rights enshrined in the EU treaties, that are relied upon directly in court

One of the areas of a particular regulatory concern in this regard is the situation with EU standards, or more precisely – EU Harmonised Standards, which set benchmarks for the safety and quality of products and services across multiple sectors —from energy and healthcare to transport — to protect consumers and facilitate cross-border trade.

As stated on the DG GROWTH website,

“A harmonised standard is a European standard developed by a recognised European Standards Organisation: CEN, CENELEC, or ETSI. It is created following a request from the European Commission to one of these organisations. Manufacturers, other economic operators, or conformity assessment bodies can use harmonised standards to demonstrate that products, services, or processes comply with relevant EU legislation.

The references of harmonised standards must be published in the Official Journal of the European Union. The purpose of this website is to provide access to the latest lists of references of harmonised standards and other European standards published in the Official Journal of the European Union (OJEU)”[1].

There are currently 33 areas for regulating production of goods and performance of services in the EU covered by Harmonised Standards approach.

And whereas the above-mentioned European Union (Withdrawal) bill may preserve those EU standards applicable in the UK, it will not necessarily be reciprocal for British standards being valid or accepted throughout the EU after the 29 March 2017, as the UK will become a so-called ‘third country’ overnight.

In the subsequent chapters we will analyze various approaches and scenarios and will attempt to make suggestions as how to achieve a workable modus operandi.

[1] http://ec.europa.eu/growth/single-market/european-standards/harmonised-standards_en

 

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Delegations

Source : © European Union, 2018 - EP

AMENDMENTS 1 - Draft recommendation on the proposal for a Council decision on the conclusion of the Agreement in the form of an exchange of letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part
Committee on Foreign Affairs

Source : © European Union, 2018 - EP

REPORT on arms exports: implementation of Common Position 2008/944/CFSP
Committee on Foreign Affairs
Sabine Lösing

Source : © European Union, 2018 - EP

Many people, including politicians and journalists, don’t understand the difference between ‘free trade’ and ‘frictionless trade’. This has caused a huge misunderstanding across the country, leading to the mess we are now in.

In summary, ‘free trade’ means that goods (sometimes only some goods) can be exported and imported between countries without tariffs – hence the phrase, ‘free trade’ or ‘tariff free’.

But those goods, even though tariff free, still have to go through customs and are subject to checks, often causing many delays.

And even though it’s called ‘free trade’ there are other barriers as well as customs – such as regulations, restrictions, strict compliances and complicated documentation, which hold things up. (See the graphic for some examples).

So, for example, a Canada-style trade agreement between the UK and the EU – so coveted by ardent Brexiters – could give us tariff-free trade, but it wouldn’t give us frictionless trade with the EU, which is vital to so many of our manufacturers.

(BMW UK imports around 90% of its parts from the EU to enable it to manufacture the Mini in the UK. If we no longer have frictionless trade with the EU, says BMW, it would destroy their just-in-time manufacturing process, meaning they would be ‘forced’ to move their Mini factory to Holland).

‘Frictionless trade’ means that goods, as well as being tariff free, go through customs without any checks. In fact, it means that for trade between those countries, there aren’t any customs or borders. 

Furthermore, with ‘frictionless trade’ there is a ‘level playing field’ between countries for the movement of goods – removing many of the barriers that exist with ‘free trade’ only.

That makes exports and imports between those countries super-efficient, leading to streamlined delivery of products, and of course, increased profits and more successful national economies.

But frictionless, although making international trade simpler and more easy, is more difficult to establish than just free trade. It means that countries have to enter what is known as a ‘customs union’ to enable borderless trade to take place between them.

Countries in a customs union agree a common external tariff for imports from non-member countries. The tariff revenue may then be shared between members, with the possibility that the country that collects the duty retaining a share (between 20 and 25% in the European customs union) to cover the additional administration costs associated with border trade.

A ‘customs union’ cannot just be based on trust. If countries agree to flatten their borders, then those countries need to agree rules, terms and conditions. And they need to agree on a mutually acceptable court to intervene if those rules are breached.

That’s so the process of sending goods between each other is not abused, for example, to export substandard or dangerous goods, or exporting goods that are banned, to another country in the customs union.

Agreeing those rules is fiendishly complicated, which is why it can take many years, sometimes decades, before countries can agree on the strict and comprehensive terms and conditions to enable them to open-up their borders to other countries for the purposes of trade.

But there’s more. For frictionless trade to function most fully and most successfully, it needs what are called the ‘four freedoms’ – free movement of goods, services, capital and people.

These ‘four freedoms’ represent the cornerstones of the EU’s Single Market, helping the EU to become the world’s largest and most successful trading bloc.

Although it would be technically possible to implement just some and not all the ‘four freedoms’, the success of the EU has been to conjoin all these freedoms into a single market, so that they work seamlessly together.

Studies show that the EU’s gross domestic product (GDP) has grown by several percentage points thanks to the Single Market and its four freedoms. This is hardly surprising, when one considers that two-thirds of all goods produced in the EU are exported to another EU country.

THE UK COULDN’T FUNCTION WITHOUT THE ‘4 FREEDOMS’

To try and understand how the EU couldn’t fully function without all four freedoms, imagine how our own union of the United Kingdom also couldn’t fully function without these four freedoms.

The UK currently benefits from two single markets. Our country’s single market. And our continent’s single market. They both operate in the same way and on the same principles.

Free movement of people, goods, services and capital between the three countries of England, Scotland, Wales and the province of Northern Ireland form the basis of our union of the United Kingdom.

It’s our single market. Just like the EU’s Single Market, it’s the glue that keeps us together.

Enabling people, goods, services and money to move without borders or restrictions across England, Scotland, Wales and Northern Ireland is what makes us a functioning unity. It’s helped to make the UK one of the world’s richest and most successful countries, with common standards, values and history.

Free movement of people, goods, services and capital work together. They cannot be separated without causing discord and disorder across our nation.

Mess with just one of the four freedoms and our union of the UK would come undone. Not only business and employment would be affected, but peace and stability would be put at risk if we could not have the freedom to move, to do business, to trade, to send money and to work, without friction, across and between our four member ‘states’ of the UK.

It’s the same with the EU. The EU functions as a cohesive single market of 28 countries, just as the UK functions as a cohesive single market of four ‘countries’.

The EU Single Market is the glue that keeps European nations together. It has helped to make Europe the richest and most successful continent on the planet, with common standards, values and history.

The UK’s Single Market, and the EU’s Single Market, both represent significant achievements. They work.

But here’s one vital difference.

Frictionless trade between the four members of the UK is vital to our smooth functioning as a nation. But doing business with each other doesn’t make the UK significantly richer.

To do that, we need the UK to export our goods and services (and we export far more services than goods).

Doing frictionless trade with other EU countries makes Britain richer. Easy exports and imports with the EU bring us prosperity.

If we lose borderless, lowest-cost trade with our most important customers and suppliers right on our doorstop, Britain – and Britons – will be poorer.

Our frictionless exports to the rest of Europe bring us wealth. Yes, exports to countries outside the EU also bring us wealth.

But we need BOTH. And ONLY in the EU do we have both.

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On BBC’s Andrew Marr Show, Labour’s Shadow Brexit Secretary, Sir Keir Starmer, claimed that Britain could be in the EU Customs Union and still be free to negotiate its own trade agreements with other countries around the world.

This goes against the founding principles of the EU and everything that EU leaders have been saying from the start is impossible. (Article continues below the video.)

Andrew Marr asked Sir Keir:

“Have you spoken to a single senior figure inside the EU – anyone in any authority who has told you this is a runner?”

Sir Keir answered, “Yes.” But when Mr Marr asked him, “Who?”, he answered:

“I’m not going to disclose confidential meetings.”

This shouldn’t be kept confidential. If Sir Keir really believes that Labour could achieve a trade agreement with the EU that, frankly, goes against the very essence of what the European Union is all about, then he should be completely open about it.

As Mr Marr pointed out to Sir Keir, Article 3 of the Founding Treaty of the European Union clearly states that the EU shall have “exclusive competence” in its Customs Union.

Earlier this month, the EU’s Chief Brexit negotiator, Michel Barnier, asserted that allowing Britain to be in its Customs Union whilst at the same time entering into its own trade agreements with other countries would, “run counter to the very foundations of our Single Market of Europe.”

He added it would mean the UK could apply “lower tariffs” than the EU, thereby competing head on with the Single Market.  Asserted Mr Barnier:

“We believe this would create a serious risk of trade flows going elsewhere, to the detriment of our companies.”

Countries in a customs union agree a common external tariff for imports from non-member countries. The tariff revenue may then be shared between members, with the possibility that the country that collects the duty retaining a share (between 20 and 25% in the European customs union) to cover the additional administration costs associated with border trade.

But Sir Keir insisted:

“I would not have surfaced this as a Labour Party position if I hadn’t had the assurance that this was a negotiation that could be had.”

A negotiation had with who? Sir Keir refuses to say.

Clearly not with Mr Barnier, or the EU Council President, Donald Tusk.

Immediately after the referendum Mr Tusk warned that the Brexit negotiations would, “stick unconditionally to the Treaty rules and fundamental values.”

He added:

“There will be no compromises in this regard.”

Sir Keir’s proposal seems more, classic, cake-and-eat-it fantasy: promising to the British electorate a Brexit that simply cannot be delivered.

EU law expert, Professor Steve Peers commented:

“The UK could negotiate trade deals about services and non-tariff barriers, but not tariffs.”

However, being able to negotiate tariffs outside of the EU appears to be what Sir Keir is proposing.

I contacted Sir Keir to ask him:

“Can you please clarify if you meant that the UK could be in the EU Customs Union whilst also independently negotiating its own tariffs with other countries across the world?”

I pointed out to Sir Keir’s office:

“On the face of it, it seems as if Sir Keir is claiming that the UK could be in the EU Customs Union but at the same time negotiate its own tariff arrangements with other countries, which would go against EU rules. We look forward to clarification.”

But his office simply wrote back to say,

“Keir’s comments were consistent with what Jeremy Corbyn set out in his Brexit speech earlier this year when he said:

‘We have long argued that a customs union is a viable option for the final deal. So Labour would seek to negotiate a new comprehensive UK-EU customs union to ensure that there are no tariffs with Europe and to help avoid any need for a hard border in Northern Ireland.

‘But we are also clear that the option of a new UK customs union with the EU would need to ensure the UK has a say in future trade deals.’

But that simply explains The Labour Party’s Brexit policy; it does not explain how this policy could ever be achieved, or who in the EU would support such an arrangement.

A spokesperson for the Liberal Democrats told me,

“Labour’s proposal is like something out of ‘Alice in Wonderland’. It is just fantasy.

“No-deal or any deal, Brexit will take a sledgehammer to the UK economy. Labour must wake up to that. Sadly, Jeremy Corbyn opposition to Brexit is as absent now as it was during the referendum campaign.

“Liberal Democrats demand better.”

Liberal Democrats say they are, “united in fighting Brexit and giving the people the final say, including the option to remain in the EU.”

International trade expert, Jason J Hunter commented:

“The issue is that Keir Starmer has no evidence to back up his claim, refuses to provide anything at all, and he is contradicted by the facts and treaties.

“He’s like a one-man fantasist.”

Mr Hunter added that, in any event, it could take up to ten years for the UK to complete negotiations to be in the EU Customs Union. He added:

“In the meantime, companies are moving out of the UK and jobs are being lost. By the time we’ve got a worse deal than we already had, we won’t have much to export anyway.”

Sir Keir has proposed that any Brexit agreement would have to pass ‘six tests’ before Labour could support it:

① Does it ensure a strong and collaborative future relationship with the EU?

② Does it deliver the “exact same benefits” as we currently have as members of the Single Market and Customs Union?

③ Does it ensure the fair management of migration in the interests of the economy and communities?

④ Does it defend rights and protections and prevent a race to the bottom?

⑤ Does it protect national security and our capacity to tackle cross-border crime?

⑥ Does it deliver for all regions and nations of the UK?

All well and good, but anyone who knows anything about the EU (and one would hope Sir Keir does) must realise that the sum of the six tests can only be achieved by the UK remaining a full member of the EU.

This is not, however, Labour’s plan or policy as it has specifically ruled out the UK accepting ‘free movement of people’ – a strict pre-requisite for being in the EU’s Single Market.

Before the referendum, Theresa May said:

“It is not clear why other EU member states would give Britain a better deal than they themselves enjoy.”

But now, after the referendum, that’s precisely what both the Tory government and the Labour opposition are expecting the EU to offer us: a better deal than they themselves enjoy.

It’s all fantasy.

It’s time that the Tories and Labour were honest with the electorate.

No Brexit is better than any Brexit. Only continued full EU membership can offer us “the exact same benefits” as we have now as a member.

Once that’s fully realised and understood, there’s only one path that can and should be taken. #StopBrexit. That’s what needs to be done.

It doesn’t matter how it’s done. A people’s vote. A general election. Or politicians simply being truthful with us at last and admitting that Brexit will destroy our country.

What matters is that it is done, and done soon. Britain is now perilously close to the cliff edge.

• Follow my journalism page on Facebook: Jon Danzig writes
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Labour's fantasy Brexit

→ Keir Starmer proposes ‘fairyland’ Customs Union – Please shareLABOUR’S FANTASY BREXIT (Video: 6 minutes)On BBC’s Andrew Marr Show last Sunday, Labour’s Shadow Brexit Secretary, Sir Keir Starmer, claimed that Britain could be in the EU Customs Union and still be free to negotiate its own trade agreements with other countries around the world.This goes against the founding principles of the EU and everything that EU leaders have been saying from the start is impossible. Andrew Marr asked Sir Keir, “Have you spoken to a single senior figure inside the EU – anyone in any authority who has told you this is a runner?”Sir Keir answered, “Yes.” But when Mr Marr asked him, “Who?”, he answered, “I’m not going to disclose confidential meetings.”This shouldn’t be kept confidential. If Sir Keir really believes that Labour could achieve a trade agreement with the EU that, frankly, goes against the very essence of what the European Union is all about, then he should be completely open about it.As Mr Marr pointed out to Sir Keir, Article 3 of the Founding Treaty of the European Union clearly states that the EU shall have “exclusive competence” in its Customs Union.Earlier this month, the EU’s Chief Brexit negotiator, Michel Barnier, asserted that allowing Britain to be in its Customs Union whilst at the same time entering into its own trade agreements with other countries would “run counter to the very foundations of our Single Market of Europe.”He added it would mean the UK could apply “lower tariffs” than the EU, thereby competing head on with the EU. “We believe this would create a serious risk of trade flows going elsewhere, to the detriment of our companies,” said Mr Barnier.But Sir Keir insisted, “I would not have surfaced this as a Labour Party position if I hadn’t had the assurance that this was a negotiation that could be had.”A negotiation had with who? Sir Keir refuses to say.Clearly not with Mr Barnier, or the EU Council President, Donald Tusk.Immediately after the referendum Mr Tusk warned that the Brexit negotiations would, “stick unconditionally to the Treaty rules and fundamental values.”He added, “There will be no compromises in this regard.”Sir Keir’s proposal seems more, classic, cake-and-eat-it fantasy: promising to the British electorate a Brexit that simply cannot be delivered.EU law expert, Professor Steve Peers commented, “The UK could negotiate trade deals about services and non-tariff barriers, but not tariffs.”However, being able to negotiate tariffs outside of the EU appears to be what Sir Keir is proposing. I contacted Sir Keir to ask him, “Can you please clarify if you meant that the UK could be in the EU Customs Union whilst also independently negotiating its own tariffs with other countries across the world?”I pointed out to Sir Keir’s office, “On the face of it, it seems as if Sir Keir is claiming that the UK could be in the EU Customs Union but at the same time negotiate its own tariff arrangements with other countries, which would go against EU rules. We look forward to clarification.”But his office simply wrote back to say, “Keir’s comments were consistent with what Jeremy Corbyn set out in his Brexit speech earlier this year when he said:“We have long argued that a customs union is a viable option for the final deal. So Labour would seek to negotiate a new comprehensive UK-EU customs union to ensure that there are no tariffs with Europe and to help avoid any need for a hard border in Northern Ireland. “But we are also clear that the option of a new UK customs union with the EU would need to ensure the UK has a say in future trade deals.” [Source: https://labour.org.uk/press/jeremy-corbyn-full-speech-britain-brexit/]But that simply explains The Labour Party's Brexit policy; it does not explain how this policy could ever be achieved, or who in the EU would support such an arrangement.A spokesperson for the Liberal Democrats told Reasons2Remain, “Labour’s proposal is like something out of ‘Alice in Wonderland’. It is just fantasy.”He added, “No-deal or any deal, Brexit will take a sledgehammer to the UK economy. Labour must wake up to that. Sadly, Jeremy Corbyn opposition to Brexit is as absent now as it was during the referendum campaign. “Liberal Democrats demand better. Only the Liberal Democrats are united in fighting Brexit and giving the people the final say, including the option to remain in the EU.”International trade expert, Jason J Hunter commented, “The issue is that Keir Starmer has no evidence to back up his claim, refuses to provide anything at all, and he is contradicted by the facts and treaties.“He's like a one-man fantasist.”Mr Hunter added that, in any event, it could take up to ten years for the UK to complete negotiations to be in the EU Customs Union.“In the meantime, companies are moving out of the UK and jobs are being lost. By the time we've got a worse deal than we already had, we won't have much to export anyway.”Sir Keir has proposed that any Brexit agreement would have to pass ‘six tests’ before Labour could support it:① Does it ensure a strong and collaborative future relationship with the EU? ② Does it deliver the “exact same benefits” as we currently have as members of the Single Market and Customs Union? ③ Does it ensure the fair management of migration in the interests of the economy and communities? ④ Does it defend rights and protections and prevent a race to the bottom? ⑤ Does it protect national security and our capacity to tackle cross-border crime? ⑥ Does it deliver for all regions and nations of the UK?All well and good, but anyone who knows anything about the EU (and one would hope Sir Keir does) must realise that the sum of the six tests can only be achieved by the UK remaining a full member of the EU. This is not, however, Labour’s plan or policy as it has specifically ruled out the UK accepting ‘free movement of people’ – a strict pre-requisite for being in the EU’s Single Market.Before the referendum, Theresa May said, “It is not clear why other EU member states would give Britain a better deal than they themselves enjoy.”But now, after the referendum, that’s precisely what both the Tory government and the Labour opposition are expecting the EU to offer us: a better deal than they themselves enjoy.It’s all fantasy. It’s time that the Tories and Labour were honest with the electorate. No Brexit is better than any Brexit. Only continued full EU membership can offer us “the exact same benefits” as we have now as a member. Once that’s fully realised and understood, there’s only one path that can and should be taken. #StopBrexit. It doesn’t matter how it’s done. A people’s vote. A general election. Or politicians simply being truthful with us at last and admitting that Brexit will destroy our country.What matters is that it is done, and done soon. Britain is now perilously close to the cliff edge. • Words and video production by Jon Danzig• Please re-Tweet, and follow Reasons2Remain on Twitter:twitter.com/Reasons2Remain/status/1055799923420119041• This video is now available on the Reasons2Remain YouTube channel: https://youtu.be/8FPrqG07oDw Before commenting on the Reasons2Remain campaign page, please read our new Rules of Engagement: Rules.Reasons2Remain.com********************************************► Watch Jon Danzig's 50-minute video: 'Can Britain Stop Brexit?' Go to CanBritainStopBrexit.com********************************************• To follow and support Reasons2Remain just ‘like’ the page, and please invite all your friends to like the page. ********************************************• Please recommend Reasons2Remain in the reviews section. Here's the link: facebook.com/Reasons2Remain/reviews/********************************************• Follow Reasons2Remain on Twitter: twitter.com/reasons2remain and Instagram: instagram.com/reasons2remain/********************************************• Explore our unique Reasons2Remain gallery of over 1,000 graphics and articles: reasons2remain.co.uk********************************************• Reasons2Remain is an entirely unfunded community campaign, unaffiliated with any other group or political party, and is run entirely by volunteers. If you'd like to help, please send us a private message.********************************************• © Reasons2Remain 2018. All our articles and graphics are the copyright of Reasons2Remain. We only allow sharing using the Facebook share button. Any other use requires our advance permission in writing.#STOPBREXIT #EXITBREXIT #PEOPLESVOTE #FINALSAY

Posted by Reasons2Remain on Friday, 26 October 2018

The post Labour’s fantasy Brexit appeared first on Ideas on Europe.

AMENDMENTS 11 - 51 - Draft opinion Establishing a European Instrument for Nuclear Safety complementing the Neighbourhood, Development and International Cooperation Instrument on the basis of the Euratom Treaty
Committee on Foreign Affairs

Source : © European Union, 2018 - EP

Unsurprisingly, Belgium has announced that it has chosen the American F-35 fighter.Unsurprisingly, Belgium has announced that it has chosen the American F-35 fighter. Second betrayal of partners by Belgium, "heart of the European Union" since the 1970s. After 48 years, new proof to what extent Belgium's policy is influenced by the Americans, which was also the case in 1970. New proof to what extent European integration can be considered serious. Quo vadis European integration?

Why has Belgium once again turned its back on the European preference?

Thanks to two defining criteria that were insinuated in the specifications for the replacement of the F-16: the ability to carry a US-made nuclear bomb and stealth. Two crucial criteria for the success of the F-35. Belgium has been carrying out the nuclear mission on behalf of NATO for decades. The F-16s stationed at Kleine-Brogel (F-16A) are capable of carrying and dropping an American B-61 nuclear bomb. In any case, Brussels who wishes to keep it, had made it known.

This skewed the competition and favored the American F-35 against its four competitors: F / A-18E / F Super Hornet, Rafale F3R, JAS-39E / F Gripen and Eurofighter Typhoon. Only the F-35 will be able to carry out the mission of nuclear attack by carrying a B-61 American gravitational bomb. It is designed as dual capacity (conventional and nuclear) and should be able to carry a bomb B-61 in a later phase (!) of its development, probably from 2022 (!).

What is not the case for other contenders to Belgian market, with the exception of the Rafale, which already carries a nuclear weapon. However, Germany has also made a formal request to the United States to integrate the B-61 under the Eurofighter. In theory, this ability could also be certified on the European fighter. Not sure if Washington shares with anyone the firing and releasing codes of the B-61s.

"Within the Alliance, Belgium has accepted, five decades ago, that its fighter jets have both conventional and nuclear capabilities, taking into account a joint analysis of the global threat. NATO is asking us to continue to maintain our combat aircraft available for any such missions, and we look forward to meeting all our obligations in this regard, " said Belgian Foreign Minister Didier Reynders.

In addition, the Belgian Air Force is close to that of the Netherlands, which without hesitation bought eight F-35s in March 2015 on a target of 37 aircraft.

Despite the fact that about 38,000 signatures were collected against the idea of ​​equipping the Belgian air force with F-35 stealth fighter jets, the finance committee of the House of Representatives refused to hear the arguments opponents of this project.

The F-35 project is the most expensive project ever seen. The aircraft had several hundred defeats (hardver + software) his "brother" the F-22 Raptor, after it was put in place with the US Army, was less effective in the fight against the Eurofighter and the former F-16 is stealth is also highly doubtful.

According to a leaked test in 2015 also the F-35 Joint Strike Fighter’s demonstrated performance is inferior to the current fighters it is designed to replace. Specifically, the report marked for official use only (FOUO) finds that, in a series of 17 dogfights, the F-35 was consistently outmatched by an aging F-16 :

"One of the significant new issues raised by the report was the F-35’s difficulty in sustaining energy in close-in maneuvering combat—that is, the energy needed to turn and accelerate. The test pilot found this to be “substantially inferior” to older planes like F-15s, F-16s, and F-18s. In the tests, the F-35’s maneuverability against the F-16 was so limited that it could only point quickly enough to achieve a missile shot by executing one specific maneuver. But this move consumed so much energy that if the shot failed the F-35 would “ultimately end up defensive again”—which is to say, at the mercy of any opponent.

The report also homed in on flight control problems in the 20 to 26 degrees angle of attack zone, crucial for hard maneuvering. The pilot described the F-35’s computer-controlled flying qualities as “sluggish” for evasive maneuvering and “not intuitive or favorable.” This echoes information in a recent report from the Director of Operational Test and Evaluation (DOT&E) that described severe flying quality problems in this high angle of attack region—including uncontrollable wing drop and heavy buffeting (shaking) “that degraded the flight control system (two of three flight control channels become disabled), requiring a flight abort.”

Tag: BelgiumF-35RafaleEurofighter

In the interesting times that have been unfolding since the EU referendum, Britain is seeing the emergence of a new identity. A new cultural-political identity is being forged by British Europeans who feel a strong affiliation with the continent by virtue of background or cultural affinity. It’s an identity that’s growing out of a sense of rupture and the loss of something that was previously held securely, linked to a determination to preserve something valuable for the future.

Such British Europeans – or we, for I am definitely one – could be called New Europeans. But perhaps that’s a term a bit too fixed for this identity-in-the-making, and we could more accurately be described as ‘Emerging Europeans’ – people aspiring to become New Europeans who, with all the uncertainty about Britain’s future relationship with Europe, are not sure what form(s) this evolving identity might take.

One clear expression of this new identity can be found in the many new campaign groups and grassroots organisations that have sprung up since 2016 with the aim of stopping Brexit or putting more checks into the political process of leaving the EU. Campaigning Remainers have clear goals and tribal affiliations, so much so that the adoption of symbols and branding – the EU colours and flag on T-shirts and berets – has been rapid and straightforward. But since their goals are time-limited (assuming the Brexit negotiations will eventually lead to some conclusions) these particular political identities are necessarily time-limited.

Emerging Europeans, meanwhile, tend to be looking for resources and connections beyond the policies and politics of Brexit, a looser, less tangible set of characteristics and values deep and positive enough to underpin a sense of belonging that will endure for the rest of their lives and potentially for generations to come. The historical story that defines this identity, while in the recent past, is already clear: a piece of political expediency executed amid some long-standing party politics, a hasty referendum and an unexpected result.

(Comparisons with the identities of peoples formed by what were, from their point of view, sudden catastrophes such as Palestinian nationalism, while limited, can be instructive here: the resulting identity is about more than a yearning for recovery; it is forged by a sense of loss. In this sense, Emerging Europeans are perhaps more determinedly, consciously European than they were before the Catastrophe of the Referendum.)

But while its origins are clear, the future form of this emerging identity is obscure, and the search for constructive ways of developing this fragile new identity is on. Various ways of preserving European citizenship are under discussion – at a recent conference held by New Europeans, academics raised the possibility of legal challenges to the unprecedented stripping of 65 million people of their European citizenship, while a European Citizens Initiative is slowly gathering endorsements. But the former would involve breaking new legal ground, and the latter is a long way off the million signatures needed to get considered by the European Commission, so these measures may be more aspirational than anything else.

In any case, Emerging Europeans will need a broader set of cultural resources to sustain their connection with the continent. For some of us, this will involve physically visiting our European neighbours, with all the experiential pleasures and challenges that only travel can bring. For others, it’s likely to be more about maintaining cultural links, with a possible resurgence of initiatives such as town twinning and old-fashioned cultural exchanges, along with the emergence of new professional networks and interest-group associations. In the years to come, the next stage of the European project will usher in a host of other ways of being European that currently lie beyond the visible horizon.

Join the discussion about Britain’s evolving relationship with Europe on Facebook here and find out more about Alex Klaushofer’s book project here.

The post Emerging Europeans – a new post-Brexit identity appeared first on Ideas on Europe.

A delegation of the Committee on Foreign Affairs and of the Subcommittee on Human Rights, will meet the UN leadership in New York on 29-30.10.18. In the context of the regular dialogue with the United Nations, the delegation will have the opportunity to discuss a number of issues of strategic common interest for the European Parliament, the EU and the UN. Particular attention is expected to be put on peace and security, human rights, and conflict prevention.
Source : © European Union, 2018 - EP

This post first appeared at the EU Immigration and Asylum Law and Policy Blog 

 

Introduction

From May to July 2016, the Commission put forward a wide-ranging European Asylum package, which included the establishment of a European Union Agency for Asylum (EUAA). The Council and the European Parliament reached a partial agreement on 28 June 2017 on twelve chapters of the Regulation on the future EUAA with the exception of Chapter 1 (“The European Union Agency for Asylum”), Chapter 3 (“Country information and guidance”), Chapter 5 (“Monitoring”), and Chapter 9 (“Organization of the Agency”). President Juncker announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to “further develop the European Asylum Agency to make sure that Member States get more European support in processing asylum seekers in line with the Geneva Convention”. On the same day, the Commission that welcomes the agreement concluded by the legislators released an amended proposal containing only targeted amendments reinforcing the operational tasks of the EUAA. This blog post analyzes the key novelties tabled in both 2016 and 2018 Commission proposals, and critically assesses what changes they will bring about to EASO’s current mandate in comparison with the mandate of the European Border and Coast Guard following Regulation 2016/1624 of 14 September 2016.

The Agency’s Monitoring Role

The European Border and Coast Guard agency determines a technical and operational strategy for European integrated border management, to which the Member States should conform to (article 3 Regulation 2016/1624). Although the EUAA is not mandated to set out a comprehensive strategy of asylum in a similar manner, the agency, through guidance on the situation in third countries of origin, will “ensure greater convergence and address disparities in the assessment of applications for international protection” (Proposal for a EUAA, COM(2016) 271 final, 04.05.2016, p. 7). The EUAA will “develop a common analysis on the situation in specific countries of origin and guidance notes to assist Member States in the assessment of relevant applications” (article 10(1) partial agreement EUAA). Importantly, as soon as the EUAA’s Management Board endorses the guidance notes, the Member States should take them into account when examining applications for international protection, without prejudice to their competence for deciding on individual applications (article 10(2a) partial agreement on the EUAA referred above).

The new monitoring role of the EUAA will also indirectly contribute to shape a common strategy of asylum in the EU. A key difference between EASO and the future EUAA will be its monitoring role in order to guarantee that the national authorities are sufficiently prepared to manage exceptional and sudden pressure in their asylum system. Should the EUAA’s information analysis raise serious concerns regarding the functioning or preparedness of a Member State’s asylum or reception systems, the agency, on its own initiative or at the request of the European Commission, may initiate a monitoring exercise (article 14(2) partial agreement EUAA).

The Member State concerned will receive the findings of the monitoring exercise and the draft recommendations of the EUAA’s Executive Director on the basis of which it should provide for comments. Taking Member State’s comments into account, the EUAA’s Management Board will, by a decision of two-thirds of its members, adopt those recommendations (article 14(3a) partial agreement EUAA). As with the EBCG’s vulnerability assessments (article 13 Regulation 2016/1624), the future EUAA will be conferred a recommendatory power in order to put forward measures to be adopted by the national authorities. Nevertheless, Member States will still maintain indirect control of the EUAA’s recommendations (see here) through the enhanced majority that is required in the Management Board.

Whereas the Commission did not initially propose that the EUAA’s Executive Director should be able to appoint experts from the staff of the agency to be deployed as liaison officers in Member States, the provisional text agreed on 28 June 2017 indicates that liaison officers “shall foster cooperation and dialogue between the Agency and the Member States’ authorities responsible for asylum and immigration and other relevant services” (article 14a(3) partial agreement EUAA). Like the EBCG’s liaison officers, they will facilitate the monitoring role of the agency by reporting regularly to the Executive Director on the situation of asylum in the Member States and their capacity to manage their asylum and reception systems effectively (article 14a(3) partial agreement EUAA).

 

The EUAA will thus be in charge of monitoring “the operational and technical application of the CEAS in order to prevent or identify possible shortcomings in the asylum and reception systems of Member States and to assess their capacity and preparedness to manage situations of disproportionate pressure so as to enhance the efficiency of those systems” (article 13(1) partial agreement EUAA). With this aim, the agency will namely assess the national procedures for international protection, staff available and reception conditions (i.e. infrastructure, equipment or financial resources) on the basis of the information provided by the Member State concerned and by relevant intergovernmental organisations or bodies, as well as by means of analysis on the situation of asylum and on-site visits that the agency may undertake (article 13 (3) and (4) partial agreement EUAA). This new monitoring task of the EUAA could so ultimately contribute to the effective and harmonised implementation of the CEAS by the Member States (see, here, here and here).

The Agency’s Expanded Operational Mandate

The EUAA will be in charge of organising and coordinating the appropriate operational support at the request of the Member States or upon the initiative of the agency in cases where the national asylum and reception systems are subject to exceptional pressure.

Following the lead of the EBCG’s Rapid Reaction Pool, an asylum reserve pool of a minimum of 500 persons should be made available by the Member States for their immediate deployment and should assist those national authorities subject to extraordinary migratory pressure (article 19A(6) partial agreement EUAA).

Moreover, the future Regulation on the EUAA details the functions of the agency in the recently established hotspots. Upon the request of a Member State facing an exceptional and sudden migratory pressure, the EUAA’s Executive Director should draw up a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union agencies, and deploy Asylum Support Teams (ASTs) as part of migration management support teams (article 21(1) partial agreement EUAA). In 2018, the European Commission proposed to further expand, upon the request of a concerned Member State, the scope for the use of the migration management support teams to any situation and not necessarily limited to circumstances of extraordinary migratory pressure (new article 21, COM(2018) 633 final).

The Agency’s Competence to Intervene

Another important novelty that the EUAA will bring is the possibility of making an emergency intervention. This will happen if the functioning of the CEAS is jeopardized due to:

• the insufficient action of a Member State to address the disproportionate pressure on the asylum and reception systems in a Member State (article 22(1) partial agreement EUAA) or
• the refusal of the competent national authorities to request or accept assistance from the EUAA (article 22(1) partial agreement EUAA) or
• the unwillingness of a Member State to comply with the Commission’s recommendations to implement an action plan intended to address serious shortcomings identified during a monitoring assessment (article 14(3a) partial agreement EUAA).

The procedure set out in article 19(1) of the EBCG Regulation regarding situations at the external borders requiring urgent action will be, to a more limited extent, replicated for the EUAA. The proposal for a Regulation on an EUAA originally stated that the Commission would be the EU institution in charge of adopting a decision by means of an implementing act to be taken by the agency in order to support the Member State concerned. However, the provisional text finally states that the Council should be the authority responsible for adopting such an implementing act like it is the case for the EBCG (article 22 partial agreement EUAA).

Three days after the Council adopts its implementing act, the EUAA’s Executive Director will draw up an Operational Plan and determine the details of the practical implementation of the Council’s decision (article 22(2) partial agreement EUAA). Subsequently, the Member State concerned will have three days to reach an agreement with the Executive Director on the Operational Plan and will immediately cooperate with the agency to facilitate the practical execution of the measures put forward (article 22(4) partial agreement EUAA).

The Agency’s Role in Examining Asylum Applications

Another novelty in comparison to the EASO will be the involvement of the EUAA in the examination of international protection applications. Several provisions of the EUAA mention that the agency will assist or facilitate the Member States in examining the applications of international protection submitted to their asylum systems. Alongside the operational and technical assistance that the EUAA should provide to Member States upon their request, the agency will facilitate the examination of applications for international protection (article 16(2)(b) partial agreement EUAA) submitted to the competent national authorities. In this regard, the Asylum Support Teams (ASTs) “should support Member States with operational and technical measures, including (…) by knowledge of the handling and management of asylum cases, as well as by assisting national authorities competent for the examination of applications for international protection and by assisting with relocation or transfer of applicants or beneficiaries of international protection” (recital 16 partial agreement EUAA).

The European Commission’s proposal tabled on September 2018 mainly centers on expanding the EUAA’s role in the administrative procedure for international protection. Specifically, the new Article 16a states that the EUAA’s asylum support teams should, among other measures, identify any needs for special procedural guarantees, carry out the admissibility and substantive interview, assess the evidence, and prepare decisions on applications for international protection. This means that, upon the request of a Member State, the future EUAA will be able to draft decisions on asylum applications. However, the text of the Regulation highlights that the decisions on individual applications for asylum remain the Member States’ sole responsibility (Article 16a).

Assessing the extent of the Agency’s power to examine asylum applications

Recital 46 of the Commission proposal repeats that “the competence to take decisions by Member States’ asylum authorities on individual applications for international protection remains with Member States”. The Commission, both in 2016 and 2018, clearly establishes that the future EUAA cannot be conferred decision-making powers.

The question to be answered is whether the EUAA will be able to jointly process applications for international protection, and if it cannot, to what extent the agency may support the processing of asylum applications. In 2013, the Commission adopted a study in which the concept of “joint processing” was defined as “an arrangement under which all asylum claims within the EU are processed jointly by an EU authority assuming responsibility for both preparation and decision on all cases, as well as subsequent distribution of recognized beneficiaries of international protection and return of those not in need of protection” (p. 114). This study put forward four options that progressively move from supporting the Member States in processing asylum applications through an agency such as EASO/EUAA, to designing a centralized EU authority with decision-making powers and responsible for all asylum processing.

Currently, the Member States remain exclusively competent to adopt decisions concerning the admissibility and applications for international protection. The next level of European integration would entail the introduction of a mechanism of joint processing in situations where a Member State is subject to an extraordinary number of asylum applications. Joint processing teams of EASO would be deployed and make recommendations on asylum cases to the requesting Member State, which would continue to have exclusive decision-making powers.

The ASTs of EASO deployed in the Greek hotspots are in practice already adopting recommendations on the admissibility of the international protection applications. These recommendations are in fact largely accepted by the Greek Asylum Service’s officials when adopting a decision (see here, here and here). Precisely, the future EUAA, upon the request of a concerned Member State, will formally be conferred the power to facilitate the examination of applications for international protection. Actually, the envisaged EEUA Regulation provides a legal basis to the practice that the EASO has already developed in Greece as acknowledged by the European Ombusdman in its decision on a complaint about EASO’s role in that Member State.

However, the future EUAA will be far from deciding, in first instance and in appeal, every asylum application within the EU. Instead, the European Commission has opted to reinforce the operational tasks of EASO and maintain the Member States as the exclusive decision-making authorities. Centralizing the asylum decision-making process would ensure a full harmonization of the national procedures and foster a consistent evaluation of protection needs. Nevertheless, this option demands a “major institutional transformation” and “substantial resources” that can only be envisioned in the long-term.

There are also doubts as to whether article 78(2) TFEU is a sufficient legal basis for conferring the power to exclusively adopt binding decisions on all asylum claims to a EU authority. Pursuant article 78(2)(d) TFEU, the EU shall ensure: “(…) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status”. The 2013 Commission’s study on the feasibility of joint processing of asylum applications in the EU considers that article 78(2) TFEU, read together with articles 78(1) and 80 TFEU, represents an adequate legal basis and opens up the possibility for a completely harmonized EU-based approach for joint processing of asylum applications within the EU. Tsourdiunderlines however that a EU-level processing scenario in which decisions would be entirely undertaken by a EU authority instead of the Member States is legally impossible under article 78(2)(e) TFEU “which envisages that ‘a Member State’ is ultimately responsible for the examination of an application” that is the legal basis if the Dublin regulation.

Conclusion

Although the European Commission keeps referring to a fully-fledged agency for asylum matters in the EU, the EUAA will neither be conferred decision-making powers regarding asylum applications, nor executive or enforcement tasks on the ground. As is the case with the EBCG that did not establish a European Border Guard for managing the European external borders (see here, here, here or here), the future EUAA will rather be given an assisting role in the examination of applications of international protection by Member States (see here). The EUAA will be far from processing and deciding asylum applications made in the EU. Instead, the future Regulation on the EUAA opts for reinforcing the operational tasks of the agency and maintaining the Member States as the exclusive decision-making authorities. This should be de jure the situation in the future but once again one will have to check what will happen de facto.

The post From EASO to the European Agency for Asylum: “Business as Usual?” appeared first on Ideas on Europe.

AMENDMENTS 1 - 190 - Draft report Report on the 2018 Commission Report on Bosnia and Herzegovina
Committee on Foreign Affairs

Source : © European Union, 2018 - EP

DRAFT RECOMMENDATION on the draft Council decision on the conclusion, on behalf of the European Union, of the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part
Committee on Foreign Affairs
Alojz Peterle

Source : © European Union, 2018 - EP