Abstract


 
 
 The Dublin regime – in short – determines which EU Member State is responsible to examine an application for asylum. The former Dublin Convention was signed in 1990 and first came into force in 1997. Today, 22 years and several legislative generations later, the Dublin regime is determined by the Dublin-III Regulation. After the 2015 so called ‘migration crisis’ and the collapse of legal principles in the Regulation, European legislators called for a reform of the Dublin system. Beside the will to reform the whole Common European Asylum System (CEAS), special focus lies on the reform of the Dublin-III Regulation. Therefore, the Commission issued its proposal for a new Dublin-IV Regulation. The proposal led to enormous controversies not only in the academic world but also in the European Institutions themselves. The aim of this article is first to analyse the Dublin-IV proposal against the background of fundamental and human rights with the incorporation of relevant case law of the ECJ and the ECtHR. The analysis will show several such violations and contradictions to the relevant jurisdiction. Furthermore, it will be demonstrated that the European Institutions are far from consent with regards to the Commission’s proposal. By showing the different approaches of the Institutions and of the academic world, finally, this article will provide guidelines on how to reform the Dublin regime adequately and in accordance with fundamental and human rights.
 
 

Highlights

  • Today we have had a frank discussion on fundamental aspects of the asylum reform

  • With its Dublin-IV reform, the European Union and especially the European Commission demonstrate, how unforeseen challenges in migration movements can at the same time lead to challenges of fundamental- and human rights

  • With its severe change proposals, the Commission drafted a disproportionate reform which is unworthy in the light of the values, enshrined in the Treaties and in the Charter, the European Convention on Human Rights (ECHR) and the case-law of Europe’s highest courts

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Summary

INTRODUCTION

Today we have had a frank discussion on fundamental aspects of the asylum reform. The foregoing quote reveals two valuable aspects: First of all, the Member States of the European Union do not face a ‘migration crisis’ anymore. Follows the ‘from the scratch’ reform approach of the European Union institutions regarding the current secondary law instruments. I will elaborate, in what seems to play only a secondary role in the reform plans, even though it is primary law: The fundamental and human rights enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’). In light of the foregoing, I will undergo a critical legal assessment of the so called ‘Dublin-IV’ reform plans with regards to fundamental and human rights (3.).

THE MOMENTARY LEGAL FRAMEWORK OF THE CEAS
THE REFORM PLANS OF THE DUBLIN SYSTEM
THE EUROPEAN INSTITUTIONS DISCREPANCIES
THE EUROPEAN PARLIAMENT I: ‘SUPRANATIONALIZATION’
THE COMMITTEE OF REGIONS: ‘INDIVIDUALISATION’
Findings
CONCLUSION
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