A European response to non-compliance: the Commission’s enforcement efforts and the Common European Asylum System

Abstract

This article aims at systematically analysing the European Commission’s effort to enforce compliance with the Common European Asylum System (CEAS). In recent years, human rights organisations have increasingly denounced EU member states’ violations of the right to asylum and accused the EU of turning a blind eye to non-compliance with the CEAS. Although the primary responsibility to implement EU law lies with member states, the Commission ought to assist them and enforce violated legislation. How exactly does the Commission react to member states’ non-compliance with the CEAS? What can be inferred from these insights? By using infringement data, policy documents, and complementary interviews, the article scrutinises which of the available instruments are applied de facto. Subsequently, the findings are critically discussed, suggesting that the Commission prefers capacity-enhancing instruments and is rather tentative in using instruments to increase member states’ willingness to comply.

Keywords:

• Compliance
• enforcement
• implementation
• asylum policy
• European Commission

Acknowledgements

The author would like to thank Michael Kaeding, Alexander Hoppe and Marcus Walsh for their valuable support and helpful comments throughout the period of research. Particular recognition further goes to the reviewers of this Journal as well as the interesting insights granted by the interview partners.

Notes

1. In order to allow for analysing a longer timeframe, I will take into account both versions, i.e. the original and the revised legislative act.

2. Prior to launching infringement procedures, the Commission has the possibility of using the ‘EU pilot’, a mechanism for entering into informal dialogue on issues related to potential non-compliance. However, the EU pilot will not be further analysed here for two reasons. First, as the Commission reports on ‘Monitoring the application of EU law’ for 2014, 2015 and 2016 reveal, asylum-related matters did not rank high on EU pilots in the field of Migration and Home Affairs (European Commission 2014: 81; 2015: 79; 2016: 64). Second, in the Commission Communication on ‘EU law: Better results through better application’, it was decided that the use of the EU pilot mechanism will now be restricted, in order to avoid adding a lengthy step to the infringement process: ‘the Commission will launch infringement procedures without relying on the EU Pilot problem-solving mechanism, unless recourse to EU Pilot is seen as useful in a given case’ (European Commission 2017a).

3. The interviewees prefer to stay anonymous but a table of position, time and place of the interviews is provided in the online appendix (Table A1).

4. For a complete list of all infringement proceedings regarding the CEAS, see online appendix, Table A2 for transposition and Table A3 for application.

5. For a list of keywords and resulting Commission documents including the instrument ‘naming and shaming’, see online appendix (Table A4).

6. E.g. the Africa Trust Fund, the Madad Fund or the EU-funded refugee facility for Turkey.

7. E.g. Fund for European Aid to the Most Deprived, European Social Fund, Horizon 2020, European Regional Development Fund.