Daniele Saracino, Why Solidarity is Crucial to the Asylum Policy of the European Union in:

Wolfram Hilz, Daniele Saracino (Ed.)

Nordic Perspectives on the European Asylum System, page 39 - 62

The cases of Sweden and Finland

1. Edition 2017, ISBN print: 978-3-8288-3998-4, ISBN online: 978-3-8288-6738-3, https://doi.org/10.5771/9783828867383-39

Series: Bonner Studien zum globalen Wandel, vol. 23

Tectum, Baden-Baden
Bibliographic information
39 4 Why Solidarity is Crucial to the Asylum Policy of the European Union.1 Daniele Saracino 1 Introduction Solidarity is a dazzling term that has been ubiquitous in the European Union’s discourse not only since the so-called refugee crisis. In that regard, solidarity is used in different dimensions: Civil society actors, for example, call for solidarity with refugees whilst some politicians demand it amongst the Member States of the European Union when negotiating a fair sharing of responsibilities. But also in different European policy issues – like the search for a solution to the financial crisis or the assistance in fighting terrorism – the rhetoric reveals that solidarity seems to be crucial for the Union’s functioning. In this paper, I will focus on the significance of solidarity for the European Union in general and specify it for the area of the Common European Asylum System (CEAS). For this purpose, I will take into account only the solidarity between the Member States.2 At first, I will present a brief overview of the term solidarity within the framework of European integration and specify its meaning and scope in the European Union. I will then set out the status quo of the principle of solidarity in the EU by exemplifying its use in the fields of economic and foreign policy cooperation. Eventually, I will demonstrate the specific role that solidarity implicates for the European asylum policy and analyse the rationale behind it. It may well be an academic commonplace – but still an indispensable layer to start with – that the political will upon which all EU members agree on implementing is always cast into law. This is why European Union law is the basis and necessary condition for the functioning of the so-called “Rechtsgemeinschaft”3 (“community of law”), the rule of law is the prerequisite 1 I would like to thank Christiane Siemer and Dr. Domenica Dreyer-Plum for their thorough review and helpful criticism of this paper. 2 This relation of solidarity is by far the most important and most developed in the European Union. Even though other relations exist, for example between the EU and third countries or among the Union’s citizens, these dimensions play very little roles both in the EU’s discourse and in the academic discussion. 3 Coined by Hallstein, Walter: Die Europäische Gemeinschaft, Düsseldorf & Wien, 1973 and then adopted by the ECJ, see Zuleeg, Manfred: Die Europäische Gemeinschaft als Rechtsgemeinschaft, in: Neue Juristische Wochenschrift, No. 9, 1994, pp. 545-549. 40 of its existence. It provides the adherence to pursuing the common interest of the Union members as well as the pushing back of singular interests that oppose the common political objectives.4 This way, political fall-backs – due to national egoisms – can be contained. The conversion of the common political objectives of all members into Union law has revealed itself as the key to the success of the integration process. I will go on to demonstrate that solidarity is not only one of those objectives cast into Union law, but at the same time an a priori requirement of the existence and functioning of the European Union. 2 A two-fold principle of solidarity It is important to recognize that the establishment of solidarity among the Member States has always been at the core of the integration process. In what is considered the launching document of European integration, Robert Schuman declared: “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity.”5 This “de facto solidarity” was thereafter introduced into the preamble of the European Coal and Steel Community Treaty (ECSC).6 The “concrete achievements” indicated by Schuman were realized at this point by supranational cooperation in the economic field which has been the corner stone of European integration ever since. The establishment of the ECSC was the starting point of one of the major realisations of the post-war era: In international relations, the conflict-prone rule of power which was the struggle of the centuries before and had culminated in the atrocities of the 20thcentury had to be replaced by a rule of law.7 Henceforth, the common political objectives of the Member States in European integration have always been cast into law by default. The core objective in the beginning of European integration – providing peace and stability in Europe through economic cooperation – has been successfully implemented that way. 4 See Bieber, Roland: Solidarität als Verfassungsprinzip der Europäischen Union, in: von Bogdandy, Armin & Kadelbach, Stefan (eds.): Solidarität und Europäische Integration, Baden-Baden, 2002, pp. 41-52, p. 47. 5 The Schuman Declaration, 9 May 1950, available at: http://www.cvce.eu/obj/the_ schuman_declaration_paris_9_may_1950-en-9cc6ac38-32f5-4c0a-a337-9a8ae4d 5740f.html (15 February 2017). 6 The third recital of the ECSC preamble reads: “Conscious of the fact that Europe can be built only by concrete actions which create a real solidarity and by the establishment of common bases for economic development.” 7 See Nicolaysen, Gert: Die Europäische Union als Rechtsgemeinschaft, in: Weidenfeld, Werner (ed.): Die Europäische Union. Politisches System und Politikbereiche, Bonn, 2008, pp. 105-121, p. 114. 41 After this first step of European cooperation after the war, a continuously progressing integration required an ever closer and extended cooperation on more and more levels and policy fields by an increasing number of Member States, and solidarity continued to be a crucial part within those processes. For example, the first Davignon Report of 1970 determined as one of the goals in the field of common foreign policy a strengthening of solidarity between the Member States8, which the second Davignon Report confirmed.9 Moreover, in the creation of the Economic and Monetary Union, the Paris Summit of 1972 declared that one of the goals of that common enterprise was to provide a basis for mutual solidarity.10 And in a report from 1975, which laid down future visions towards the development of additional common policy fields, the Commission emphasized the importance of solidarity between the Member States with special emphasis on the necessity of a legal basis to achieve that goal.11 These processes led to a higher valuation of solidarity both on a qualitative and quantitative level within the European Union.12 Around the same time in the 1970s, the European Court of Justice (ECJ) reinforced a principle of solidarity in the European Union with several rulings. The ground-breaking decision in that regard was that “For a State unilaterally to break, according to its own conception of national interest, the equilibrium between advantages and obligations flowing from its adherence to the Community brings into question the equality of Member States before Community law and creates discriminations at the expense of their nationals, and above all of the nationals of the State itself which places itself outside the Community rules. This failure in the duty of solidarity 8 See European Communities: Davignon Report, Office for Official Publications of the European Communities, Luxemburg, 1970, pp. 9-14, p. 10. 9 See European Communities: Second Report on European Political Cooperation on Foreign Policy, Office for Official Publications of the European Communities, Luxemburg, 1973, pp. 14-21, p. 14. 10 See European Communities: Statement from the Paris Summit, Office for Official Publications of the European Communities, Luxemburg, 1972, pp. 14-26, p. 14. 11 See European Communities: Report on European Union, Office for Official Publications of the European Communities, Luxemburg, 1975, pp. 5-42, p. 10 ff. 12 See Müller, Andreas Th.: Solidarität als Rechtsbegriff im Europarecht, in: Sedmak, Clemens (ed.): Solidarität. Vom Wert der Gemeinschaft, Darmstadt, 2010, pp. 77-104, p. 78. 42 accepted by Member States by the fact of their adherence to the Community strikes at the fundamental basis of the Community legal order.”13 The crucial passage in that decision is that the Member States accept a duty of solidarity when entering the European Union. The statement makes two fundamental determinations: First of all, the willingness to mutual solidarity is the necessary prerequisite for nation states to unite in a community based on law. They must be entirely aware of this particular duty before they join the Union. And secondly, by violating the solidarity principle, the whole legal order would be put into question, hence potentially jeopardizing the whole integration project. So, once accepted, the principle of solidarity must not be violated. This stipulation is the answer to the question why solidarity is necessary in the EU in the first place: “Without the willingness to solidarity a community built on democracy and law cannot exist.”14 Hence, a functioning and effective cooperation would be impossible.15 Additional rulings by the ECJ have not only confirmed this duty to solidarity but further enriched it. For example, by interpreting that the Member States have to prioritize European interests over their national interests or by the primacy of EU law over national law.16 We know now that prior to entering into supranational cooperation, nation states need to establish solidarity. After their union, the community members agree on concrete legal norms to realize their common objectives. In order to ensure the reliable and primary adherence to those norms, a solidary conduct is a necessary condition, and hence the question arises, how solidarity should manifest itself within the Union. In that regard, a “procedural principle of solidarity” has evolved which can be traced to Art. 4 (3) of the TEU: “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. 13 European Court of Justice: Judgment of the Court of 7 February 1973, Commission of the European Communities v Italian Republic, Case 39-72, para 24 f. 14 Bieber, Roland: Solidarität als Verfassungsprinzip der Europäischen Union, p. 42: „Ohne Bereitschaft zur Solidarität kann ein auf Demokratie und Recht gegründetes Gemeinwesen nicht bestehen.“ [translation by D.S.]. 15 See Lais, Martina: Das Solidaritätsprinzip im europäischen Verfassungsverbund, Baden-Baden, 2007, pp. 46f. 16 See Marias, Epaminondas A.: Solidarity as an objective of the European Union and the European Community, in: Legal Issues of European Integration, Vol. 21, No. 2, 1994, pp. 85-114, pp. 90ff. 43 The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.” This passage specifies the principle of sincere cooperation17, a fundamental norm in Union law. It is paramount for the functioning of the EU as the overarching legal principle and the authoritative constitutional structure principle.18 The passage can be traced back to the ECSC Treaty and has been developed into a common constitutional principle in the Lisbon Treaty.19 The loyalty principle applies to all of the Union’s policy areas and to the relations among the Member States, between the Member States and the Union, and among the institutions.20 It obligates the addressee to loyalty in the pursuit of common objectives.21 Moreover, it protects the results of European law-making from possible retroactive political challenges by the Member States.22 Overall, the duty to loyal cooperation is supposed to secure the functioning of the EU, wherefore it is only logical that the principle has been featured in all of the Community and Union Treaties. It must be complied with by every Member State even if they face disadvantages by following certain measures to realize 17 Hereafter also used: „principle of loyal cooperation” or “loyalty principle”, see Blanke, Hermann-Josef: Art. 4 TEU, in: Blanke, Hermann-Josef & Mangiameli, Stelio (eds.): The Treaty on European Union (TEU). A Commentary, Berlin, 2013, para 81 ff. 18 See Calliess, Christian, Kahl, Wolfgang & Puttler, Adelheid: Art. 4 EUV, in: Calliess, Christian & Ruffert, Matthias (eds.): EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 4th edition, München, 2011, para 31f. 19 See Schill, Stephan & von Bogdandy, Armin: Art. 4 TEU, in: Grabitz, Eberhard, Hilf, Meinhard & Nettesheim, Martin (eds.): Das Recht der Europäischen Union. EUV/AEUV, Loseblattausgabe, 60. Ergänzungslieferung, München, 2016, para 50f. 20 See Blanke, Hermann-Josef: Art. 4 TEU, in: Blanke, Hermann-Josef & Mangiameli, Stelio (eds.): The Treaty on European Union (TEU). A Commentary, Berlin, 2013, para 86ff. 21 See Bieber, Roland: Gegenseitige Verantwortung – Grundlage des Verfassungsprinzips der Solidarität in der Europäischen Union, in: Calliess, Christian (ed.): Europäische Solidarität und nationale Identität. Überlegungen im Kontext der Krise im Euroraum, Tübingen, 2013, pp. 67-82, p. 76. 22 See Von Bogdandy, Armin: Grundprinzipien, in: Von Bogdandy, Armin & Bast, Jürgen (eds.): Europäisches Verfassungsrecht. Theoretische und dogmatische Grundzüge, 2nd edition, Berlin, 2009, pp. 13-71, p. 55. 44 common goals.23 It becomes clear why the Member States’ political interests must subordinate to the Union-wide interests, since otherwise the whole logic of the integration project would be undermined. It is paramount to distinguish the loyalty principle from the solidarity principle. Unfortunately, most of the research does not differentiate between the two principles adequately or even worse: claims them equivalent.24 The TEU itself, though, reinforces the fact that the two principles must be separated from one another in Article 24 (3): “The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area.” [emphasis added] That unequivocally proves that the Treaties do not use loyalty and solidarity synonymously, but: “The principle of sincere cooperation is rather a special manifestation of the autonomous general constitutional solidarity principle that stems from, inter alia, the 6. recital of the TEU’s preamble.”25 [original emphasis] In conclusion, we can find a differentiation of the solidarity principle in the European Union: On the one hand, we are dealing with a general descriptive solidarity principle, addressing why solidarity must necessarily exist in the EU to begin with. On the other hand, there is a procedural, normative solidarity 23 See Hieronymi, Tonia: Solidarität als Rechtsprinzip in der Europäischen Union, Frankfurt a.M., 2003, p. 44. 24 See i.a.: Timmermans, C.W.A: The Basic Principles, in: among others, Kapteyn, P.J.G. (eds.): The Law of the European Union and the European Communities, 4th ed., Alphen an den Rijn, 2008, pp. 115-174, p. 147; see also Terhechte, Philipp: Prinzipienordnung der Europäischen Union, in: Hatje, Armin & Müller-Graff, Peter- Christian (eds.): §7: Europäisches Organisations- und Verfassungsrecht, Enzyklopädie Europarecht, Band 1, Baden-Baden, 2014, para 44f.; Hatje, Armin: Loyalität als Rechtsprinzip in der Europäischen Union, Baden-Baden, 2001; Zuleeg, Manfred: Der rechtliche Zusammenhalt der Europäischen Union, Baden-Baden, 2004; Blanke, Hermann-Josef: Art. 4 TEU, in: Blanke, Hermann-Josef & Mangiameli, Stelio (eds.): The Treaty on European Union (TEU). A Commentary, Berlin, 2013, para 81ff. 25 Calliess, Christian, Kahl, Wolfgang & Puttler, Adelheid: Art. 4 TEU, in: Calliess, Christian & Ruffert, Matthias (eds.): EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 4th edition, München, 2011: „Der Grundsatz der loyalen Zusammenarbeit ist vielmehr eine Spezialausprägung des selbstständigen allgemeinen verfassungsrechtlichen Solidaritätsprinzips, das sich unter anderem aus dem 6. Erwägungsgrund der Präambel des EUV […] ergibt.“ [Translation by D.S.] 45 principle that reveals itself through the loyalty principle and determines how solidarity must be shaped. Moreover, the ECJ has made unambiguous statements to the principle of loyal cooperation in several case rulings, hence perpetuating the notion that the two principles have to be differentiated from one another.26 In conclusion, the need for each Member State’s political willingness to confer national competences to the supranational level, to implement the derived legal norms, and to accept the supervision of the adherence to those norms by the supranational institutions is what makes the principle of solidarity indispensable for the European Union.27 Derived from what has been demonstrated in this section, we can now establish that the solidarity principle is European Integration’s “conditio sine qua non”. Therefore, it extends to all policy fields and all dimensions of institutional relations in the EU. In what follows, I will present how the principle of solidarity in the form of solidarity between the Member States manifests itself in the Treaty of Lisbon by taking into account the areas of economic and foreign policy respectively. 3 The principle of solidarity’s status quo Today, incremental internationalisation in the course of globalisation increasingly limits the nation state’s capability to provide the common good for its citizens by itself.28 The legitimacy of its constitution, i.e. the ability to manage all matters relating to its territory autonomously, erodes steadily.29 In that respect, it is not able to fulfil all its government tasks autonomously anymore and is forced to cooperate with supranational institutions and other countries in specific policy fields in order to achieve its own objectives.30 In the case of the European Union, that scenario holds true not only regarding peacekeeping 26 See Obwexer, Walter: Art. 4 EUV, in: Von der Groeben, Hans, Schwarze, Jürgen & Hatje, Armin (eds.): Europäisches Unionsrecht. Vertrag über die Europäische Union. Vertrag über die Arbeitsweise der Europäischen Union. Charta der Grundrechte der Europäischen Union, 7th edition, Baden-Baden, 2015, para 60. 27 See Gussone, Peter: Das Solidaritätsprinzip in der Europäischen Union und seine Grenzen, Berlin, 2006, p. 244. 28 See Pernice, Ingolf: Solidarität in Europa. Eine Ortsbestimmung im Verhältnis zwischen Bürger, Staat und Europäischer Union, WHI Paper, No. 01, Walter- Hallstein-Institut für Europäisches Verfassungsrecht, Berlin, 2013, p. 5. 29 See Volkmann, Uwe: Solidarität – Programm und Prinzip der Verfassung, Tübingen, 1998, p. 408. 30 See Kirchhof, Paul: Der europäische Staatenverbund, in: Von Bogdandy, Armin & Bast, Jürgen (eds.): Europäisches Verfassungsrecht. Theoretische und dogmatische Grundzüge, 2nd edition, Berlin, 2009, pp. 1009-1043, p. 1025. 46 anymore, but also regarding other matters influential to the common good like economic stability and growth, security, migration management, or environmental protection. These operational goals, among others, are inscribed in Art. 3 TEU and account for the idea of a Union-wide common good.31 On that basis, I will provide a brief analysis of two major areas of Union-wide cooperation, i.e. economic and foreign policy, in order to demonstrate the crucial importance of the solidarity principle in the European Union and prepare the way for an in-depth analysis of the asylum policy field. In the Lisbon Treaty’s preamble, the contractual parties in recital 6 express their desire “to deepen the solidarity between their peoples”. This recurring theme in primary law first found in the ECSC Treaty lives on up to this point. Although the preamble lays down the constitutional principles, no immediate rights or duties can be derived from it.32 However, in general it has programmatical character, in that it reflects the political guiding themes of the contractual parties.33 In order to identify the whole scope of the European understanding of solidarity, the preamble has to be understood in combination with Article 2 TEU34, which reads: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” On the one hand, this section claims that solidarity, in principle, already prevails between the Member States; that confirms the assertion of solidarity as a prerequisite demonstrated in section 2. On the other hand, the preamble states 31 See Hatje, Armin & Müller-Graff, Peter-Christian: §1: Europäisches Organisationsund Verfassungsrecht, in: Hatje, Armin & Müller-Graff, Peter-Christian (eds.): Europäisches Organisations- und Verfassungsrecht, Enzyklopädie Europarecht, Band 1, Baden-Baden, 2014, para 17. 32 See Streinz, Rudolf: Präambel, in: Streinz, Rudolf (ed.): EUV/AEUV. Vertrag über die Europäische Union und Vertrag über die Arbeitsweise der Europäischen Union, 2nd edition, München, 2012, para 3. 33 See Terhechte, Philipp: Präambel, in: Grabitz, Eberhard; Hilf, Meinhard & Nettesheim, Martin (eds.): Das Recht der Europäischen Union. EUV/AEUV, Loseblattausgabe, 60. Ergänzungslieferung, München, 2016, para 2. 34 See Calliess, Christian: Art. 2 EUV, in: Calliess, Christian & Ruffert, Matthias (eds.): EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 4th edition, München, 2011, para 31. 47 that solidarity shall be deepened beyond the status quo, meaning it needs specification through integration in the common policy fields. Overall, the Union members commit themselves to the principle of solidarity as a tenet that is given but that has to be strengthened as well. What remains, however, is the fact that derived only from this part of the Lisbon Treaty, the principal of solidarity is hardly justiciable and thus needs concrete substantiation.35 This is carried out in the following policy fields, which I will discuss in order to highlight the meaning, purpose and rationale behind the solidarity principle. 3.1 Economic cooperation The objectives of the European Union are comparable to any nation state’s objectives and are to be realized by integration.36 One of those objectives is the promotion of solidarity between the Member States: “It [the EU, D.S.] shall promote economic, social and territorial cohesion, and solidarity among Member States.”37 The location of the solidarity principle as a structural principle of Union law is exactly here. This passage constitutes the “general clause” that clearly subsumes solidarity among the Member States under the objectives of the EU.38 Moreover, in this passage the solidarity principle is shaped with regard to the economic cooperation by aiming at working towards similar economic and social conditions among the Member States which are meant to strengthen the territorial cohesion within the Union and thereby solidarity.39 35 See Heintschel von Heinegg, Wolf: Art. 2 EUV, in: Heintschel von Heinegg, Wolff & Vedder, Christoph (eds.): Europäisches Unionsrecht. EUV, AEUV, Grundrechte- Charta. Handkommentar, Baden-Baden, 2012, para 12. 36 See Ruffert, Matthias: Art. 3 TEU, in: Calliess, Christian & Ruffert, Matthias (eds.): EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 4th edition, München, 2011, para 2. 37 Art. 3 (3) TEU. 38 See i.a.: Ohler, Christoph: Art. 222 AEUV, in: Streinz, Rudolf: EUV/AEUV. Vertrag über die Europäische Union und Vertrag über die Arbeitsweise der Europäischen Union, 2nd edition, München, 2012, p. 1; Petrus, Szabolcs & Rosenau, Henning: Art. 80 TFEU, in: Heintschel von Heinegg & Vedder: Europäisches Unionsrecht., para 1; Ruffert, Matthias: Art. 3 EUV, in: Calliess, Christian & Ruffert, Matthias (eds.): EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 4th edition, München, 2011, para 41. 39 See Heintschel von Heinegg, Wolff: Art. 3 EUV, in: Heintschel von Heinegg, Wolff & Vedder, Christoph (eds.): Europäisches Unionsrecht. EUV, AEUV, Grundrechte- Charta. Handkommentar, Baden-Baden, 2012, para 16. 48 In a specific part of economic cooperation – energy policy – we find another specification of solidarity between the Member States: “In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to […]."40 Already in the beginning of European integration, there was a desire to coordinate the energy sector, an objective manifested by the ECSC and EAEC Treaties, which up to the Lisbon Treaty has been incrementally expanded.41 Article 194 TFEU is a newly introduced norm in the EU’s primary law, merging the existing provisions and competences in order to achieve political and judicial clarity in an increasingly prominent policy field that makes an EU-wide coherent and hence common legal basis utmostly important.42 The insufficiency of European energy resources, for example, makes the EU dependent on supply by third countries, which leads to the necessity to provide a security of energy supply for all the Member States.43 In order to guarantee security of energy supply, energy policy shall be conducted “in a spirit of solidarity between Member States”, which aims at a common action of the Union and a prevention of unilateral approaches of Member States.44 All four objectives of Article 194 TFEU must be achieved under the three guiding principles of the internal market, environmental protection and solidarity: „In this development, solidarity functions as a catalyst between a growing, actual desideratum of common action and a (yet) insufficient duty of mutual assistance through positive law. Therefore, it is expression and basis of the 40 Art. 194 (1) TFEU. 41 See Nettesheim, Martin: Art. 194 AEUV, in: Grabitz, Eberhard, Hilf, Meinhard & Nettesheim, Martin (eds.): Das Recht der Europäischen Union. EUV/AEUV, Loseblattausgabe, 60. Ergänzungslieferung, München, 2016, para 2ff. 42 See Hamer, Jens: Art. 194 AEUV, in: Von der Groeben, Hans, Schwarze, Jürgen & Hatje, Armin (eds.): Europäisches Unionsrecht. Vertrag über die Europäische Union. Vertrag über die Arbeitsweise der Europäischen Union. Charta der Grundrechte der Europäischen Union, 7th edition, Baden-Baden, 2015, para 5f. 43 See Bings, Sophie: Art. 194 AEUV, in: Streinz, Rudolf (ed.): EUV/AEUV. Vertrag über die Europäische Union und Vertrag über die Arbeitsweise der Europäischen Union, 2nd edition, München, 2012, para 34. 44 See Hamer, Jens: Art. 194 AEUV, in: Von der Groeben, Hans, Schwarze, Jürgen & Hatje, Armin (eds.): Europäisches Unionsrecht. Vertrag über die Europäische Union. Vertrag über die Arbeitsweise der Europäischen Union. Charta der Grundrechte der Europäischen Union, 7th edition, Baden-Baden, 2015, para 10. 49 entanglement of objectives and provisions of this policy field and in this function gains a significance for the interpretation, implementation and understanding of the regulation that is not to be underestimated.”45 By introducing the solidarity principle in this Article, the contractual partners make another concrete specification in a policy field where a deepened cooperation is sought because it adds to the Union-wide common good. The European economies heavily depend on energy security, and the introduction of Article 194 TFEU is a strong signal for future integration on the basis of solidarity in this policy field. 3.2 Cooperation in EU’s external action In the field of common foreign policy, as we have already seen in the Davignon Reports above, solidarity also plays a prominent role: “Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.”46 Whilst developing a deeper integration in common foreign policy, the Union seeks to strengthen solidarity among the Member States. Moreover, “The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.”47 What we find here is a two-sided assignment. First of all, it is the Union’s task to develop mutual solidarity among the Member States. Secondly, the Member 45 „Die Solidarität fungiert in dieser Entwicklung als Katalysator zwischen einem wachsenden tatsächlichen Bedürfnis nach gemeinsamem Vorgehen und (noch) unzureichenden positivrechtlichen Beistandspflichten. Sie ist dadurch Ausdruck und Grundlage der Ziel- und Maßnahmenverschränktheit dieses Politikbereichs und gewinnt in dieser Funktion eine nicht zu unterschätzende Bedeutung für die Auslegung, die Anwendung und das Verständnis der Vorschrift.“ Calliess, Christian: Art. 194 AEUV, in: Calliess, Christian & Ruffert, Matthias (eds.): EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 4th edition, München, 2011, para 5 [translation by D.S.]. 46 Art. 24 (2) TEU. 47 Art. 24 (3) TEU. 50 States are obligated to unreservedly support the Union’s foreign policy by not putting their respective national interests above the Union’s interest and also to actively work on strengthening solidarity amongst themselves. The salient wording of this passage referring to solidarity is remarkable. It seems that the contractual partners phrased it in full awareness that integration in this policy field has been extraordinarily difficult because the Member States watch vigilantly over their national sovereignty. Also, this is in line with the findings above, namely that back in the 1970s the focus on developing solidarity was recognized as a prerequisite in this policy field. The Article reinforces and shapes the solidarity principle by providing concrete specification. The fact that almost fifty years later, steps towards an integration in common foreign policy have been very limited, not only confirms the need for more solidarity, but also underlines the problematic process of getting towards the convergence of interests in this area. Hence, the duty to solidarity is necessary in order to bring the national foreign policies in line with the common positions of the Common Foreign and Security Policy.48 A new introduction to the Lisbon Treaty is Article 222 TFEU – called the “solidarity clause”: “The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States […]”.49 The Article does not entail an obligation to military assistance, as found in Art. 42 (7) TEU.50 It does, however, provide further evidence that the solidarity principle is a universal legal principle of Union law and must be considered a 48 Kaufmann-Bühler, Werner: Art. 24 EUV, in: Grabitz, Eberhard, Hilf, Meinhard & Nettesheim, Martin (eds.): Das Recht der Europäischen Union. EUV/AEUV, Loseblattausgabe, 60. Ergänzungslieferung, München, 2016, para 41. 49 Art. 222 (1) TFEU. 50 „If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.”; Geiger, Rudolf: Art. 222 TFEU, in: Geiger, Rudolf; Khan, Daniel-Erasmus & Kotzur, Markus (eds.): European Union Treaties. Treaty on European Union, Treaty on the Functioning of the European Union, München, 2015, para 2. 51 constitutional principle.51 Systematically, the clause concludes the fifth part of the foreign policy realm within the TFEU, though it is not targeted at the Union’s external action but rather at the internal action in the phrased cases.52 The stipulated solidarity bears on the relation between the Member States as well as between the Union and the Member States. Just like in the example of energy policy with regard to the economic cooperation, this constitutes additional evidence for a specification and an accentuation of the solidarity principle in the Treaty of Lisbon. What remains to be demonstrated now is how all of these findings play out in the CEAS and why this policy field has salient relevance in that regard. 4 Solidarity in the Common European Asylum System The CEAS is part of the interior and justice policy, which has been communitarised through the Lisbon Treaty, and is denoted by the term “Area of Freedom, Security and Justice” (AFSJ) within which the community method now prevails.53 The European Council launched the creation of the CEAS in the Tampere Programme of 1999.54 In the corresponding conclusions, the heads of state and government urged the Council “to step up its efforts to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States.”55 To base the implementation of common policy goals explicitly on solidarity is a recurring theme that we have already seen multiple times in the sections above. Subsequently, the set of rules and regulations that the CEAS consists of – known as the “asylum package”56 – was implemented. The first concrete action was the implementation of 51 See Vedder, Christoph: Art. 222 AEUV, in: Heintschel von Heinegg, Wolff & Vedder, Christoph (eds.): Europäisches Unionsrecht. EUV, AEUV, Grundrechte-Charta. Hand-kommentar, Baden-Baden, 2012, para 6. 52 See Lachmeyer, Konrad: Art. 222 AEUV, in: Von der Groeben, Hans, Schwarze, Jürgen & Hatje, Armin (eds.): Europäisches Unionsrecht. Vertrag über die Europäische Union. Vertrag über die Arbeitsweise der Europäischen Union. Charta der Grundrechte der Europäischen Union, 7th edition, Baden-Baden, 2015, para 2. 53 See Herrnfeld, Hans-Holger: Art. 67 AEUV, in: Schwarze, Jürgen et al. (eds.): EU- Kommentar, 3rd edition, München, 2012, para 3. 54 See European Council: Presidency Conclusions – Tampere European Council, 15 & 16 October 1999, Art. 13, available at: http://www.europarl.europa.eu/summits/ tam_en.htm#c (11 April 2017). 55 Ibid., Art. 16. 56 The „asylum package“ consists of the Asylum Procedures Directive (2013/32/EU), the Reception Conditions Directive (2013/33/EU), the Qualification Directive (2011/95/EU), the EURODAC Regulation (603/2013), and the Dublin-III- Regulation (604/2013). 52 directive 2001/55/EG – the Temporary Protection Directive – which aimed at providing a temporary protection mechanism for displaced persons in case of a mass influx.57 In recital 20, this provision calls for a “solidarity mechanism”, and Article 25 (1) states that “The Member States shall receive persons who are eligible for temporary protection in a spirit of Community solidarity.” What we can detect here is an approach that is not (yet) aimed at certain Member States, but refers to the EU as a whole. However, the characteristics of a mass influx are not explicitly specified. Additionally, an event can only be specified as a mass influx by a Council decision – which could be the reason why the directive has actually never been activated. In 2004, the European Council presented the Hague Programme as the followup to Tampere and stated therein: “The second phase of development of a common policy in the field of asylum, migration and borders started on 1 May 2004. It should be based on solidarity and fair sharing of responsibility including its financial implications and closer practical cooperation between Member States: technical assistance, training, and exchange of information, monitoring of the adequate and timely implementation and application of instruments as well as further harmonisation of legislation.”58 In this consolidation phase of the CEAS we do not only find the reiteration of solidarity as the basis for strengthened integration, but also some specifications in terms of how to achieve this goal. Furthermore, the Hague Programme called for “a European support office for all forms of cooperation between Member States relating to the Common European Asylum System.”59 After the Commission adopted this idea60 and the European Council agreed to implement the proposed agency by 200961, the European Asylum Support 57 See Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof. 58 European Council: The Hague Programme. Strengthening Freedom, Security and Justice in the European Union, 2005/C 53/01, p. 3. 59 Ibid., p. 4. 60 See Commission of the European Communities: Green Paper on the future Common European Asylum System, COM (2007) 301 final, p. 9. 61 See Council of the European Union: European Pact on Immigration and Asylum, 13189/08, ASIM 68, 2008, p. 11. 53 Office (EASO)62 was eventually born in 2010. In the corresponding regulation, recital 7 of the preamble reads: “For Member States which are faced with specific and disproportionate pressures on their asylum and reception systems, due in particular to their geographical or demographic situation, the Support Office should support the development of solidarity within the Union [...]” Not only in its name, but also in its concrete tasks and objectives EASO represents a specification of the solidarity principle within the asylum policy. By acknowledging the fact that there are certain Member States which are burdened more than others, this passage constitutes a departure from the more general approach of the Temporary Protection Directive. This is a line of thought within the EU which has been an official law-making instruction since the Treaty of Lisbon. Passed in 2007 and implemented in 2009, it reflects the objectives of the Hague Programme regarding the interior and justice policy. Article 67 TFEU characterizes how the AFSJ shall be realized programmatically in the EU. Part of it is that “It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards thirdcountry nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.”63 Once again, we find that solidarity between the Member States is the basis upon which a certain policy field, in our case asylum policy, shall be expressively implemented. It is striking that the special mention of the solidarity principle in this Article only incorporates asylum, immigration and external border control and not the other parts of the AFSJ. We have established, however, that the principle of solidarity is an overarching and underlying tenet that encompasses every aspect of the Union, and that specifications are made when deemed necessary. In the field of asylum policy, this is also the case – maybe more salient than in any other area of Union-wide cooperation. Article 80 TFEU emphasizes this notion by stating: “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. 62 See Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office. 63 Art. 67 (2) TFEU. 54 Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.” This solidarity clause is extraordinarily positioned within the constitutional framework. It points out the fact that there is obviously a particularly high necessity to call for solidary cooperation in this field – which is due to the geographical reality in the European Union. Member states at the southern periphery, for example, bear a prominent role in coping with migratory flows coming from the global south, no matter the cause. The logic of the Dublin system which deems the country of first entry responsible for the asylum procedure, exacerbates the pressure on them. In its “Green Paper on the future of the Common European Asylum System”, the Commission admitted: “The Dublin system (Dublin and EURODAC Regulations) was not devised as a burden sharing instrument.”64 Instead, it assigns the responsibility for the asylum procedure to the Member State which caused the entry to the Dublin area.65 The consequence is a “costs-by-cause principle” that reveals the rationale behind the Dublin system. In light of this apparent imbalance, Art. 80 TFEU points at the disproportionate burden-sharing of responsibilities among the Member States which all parties are obviously aware of. The Article commands them to find a compensation mechanism in order to cope with this imbalance. Accordingly, the text explicitly demands the application of the solidarity principle as well as the fair sharing of responsibility among the Member States. However, a specific mention of concrete measures only relates to financial implications. The corresponding Asylum, Migration and Integration Fund (AMIF) constitutes the realization thereof. Within the Regulation establishing the Fund, the term solidarity is used eleven times, eight times of which it is explicitly used with regard to the solidarity between the Member States.66 Inter alia, a common European asylum policy is “based” on solidarity between the Member States,67 the Fund should 64 Commission of the European Communities: Green Paper on the future Common European Asylum System, COM (2007) 301 final, p. 10. 65 See Hruschka, Constant & Maiani, Francesco: Dublin III Regulation (EU) No 604/2013, in: Hailbronner, Kay & Thym, Daniel (eds.): EU Immigration and Asylum Law, Commentary, 2nd Edition, Art. 1, München, 2016, para 3. 66 See Regulation (EU) No 516/2014 of the European Parliament and of the Council, 16 April 2014, establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC. 67 See Ibid., recital 1. 55 “express solidarity through financial assistance” to the Member States,68 should “enhance” solidarity between the Member States,69 or should “effectively pursue the objectives of solidarity and responsibility sharing between the Member States referred to in Article 80 TFEU”70 [emphases added]. It seems unequivocal that the Union understands the financial implications as an indisputable solidarity measure within the common asylum policy. It is probably not surprising that a financial measure is implemented in such an unequivocal manner both in primary and secondary law since it may well be the easiest area in which the Member States can agree on when it comes to mutual assistance. Also, looking at the phrasing regarding solidarity, we find another recurring theme: Solidarity is an a priori requirement for common policy, but must at the same time be enhanced and strengthened. Implicitly, this wording admits that the poor functioning of the common asylum system can be attributed to a lack of solidarity. In my view, this unveils evidence that deficiencies in Union-wide cooperation directly correlate with deficiencies relating to the application of the principal of solidarity – even in the eyes of the Union. As we have seen above, compensation measures include information sharing, training measures, or technical support. Moreover, the mutual assistance of national agencies subsumed under Article 80 makes the European Border and Coast Guard (Frontex) an important pillar of the solidarity principle within the asylum policy. In recital 10 of the corresponding regulation, the parties recognize an “overarching principle of solidarity” within which Frontex is supposed to act.71 More concrete, Regulation 656/2014, which establishes the working rules for Frontex, states: “The policies of the Union in border management, asylum and immigration and their implementation should be governed by the principle of solidarity and fair sharing of responsibility between the Member States pursuant to Article 80 of the Treaty on the Functioning of the European Union (TFEU). Wherever necessary, Union acts adopted in the framework of those policies are 68 Ibid., recital 7. 69 See Ibid, recital 44; Art. 3(d). 70 Ibid, Art. 18. 71 See Regulation (EU) 2016/1624 of the European Parliament and of the Council, 14 September 2016, on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC, recital 10. 56 to contain appropriate measures to give effect to that principle and promote burden-sharing […].”72 This explicit reiteration of the duty to apply Article 80 TFEU is remarkable and reinforces the leitmotif of my paper. What makes this passage all the more significant is the fact that strictly speaking, Frontex is part of the field of border management and not the field of asylum. However, the borders between the two areas blur, are strongly intertwined and cannot be separated from one another – they overlap.73 This is why the Frontex regulation highlighting the duty to comply with Article 80 TFEU is highly relevant for the asylum system. It is evident that any provision of secondary law influencing the regulation of asylum policies must abide to the principle of solidarity. That fact is contradicted by the costs-by-cause principle of the Dublin system. Overall, politically highly contested measures and provisions are the main reasons why Article 80 TFEU is phrased so vaguely, which undermines its normative effect and hence its justiciability.74 Its predominantly appellative nature seems deliberate and reveals the complex decision-making in the field of asylum. Nevertheless, the Stockholm Programme of 2009 reflected the need for more concrete solidarity measures in support of those Member States which bear a heavier burden than others by stating: “The European Council calls for the development of a comprehensive and sustainable Union migration and asylum policy framework, which in a spirit of solidarity can adequately and proactively manage fluctuations in migration flows and address situations such as the present one at the Southern external borders.”75 72 Regulation (EU) No 514/2014 of the European Parliament and of the Council of 16 April 2014 laying down general provisions on the Asylum, Migration and Integration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management, recital 2. 73 See Guild, Elspeth: The Complex Relationship of Asylum and Border Controls in the European Union, in: Chetail, Vincent, De Bruycker, Philippe & Maiani, Francesco (eds.): Reforming the Common European Asylum System. The New European Refugee Law, Leiden & Boston, 2016, pp. 39-54. 74 See Kotzur, Markus: Art. 80 AEUV, in: Geiger, Rudolf, Khan, Daniel-Erasmus & Kotzur, Markus (eds.): EUV/AEUV. Vertrag über die Europäische Union und Vertrag über die Arbeitsweise der Europäischen Union. Kommentar, 6. Auflage, München, 2017, para 1. 75 European Council: The Stockholm Programme. An open and Secure Europe Serving and Protecting Citizens, 2010, p. 28. 57 This statement is a reference to the increasing migratory movements over the Mediterranean in light of the imminent Arab Spring which challenged the European Union’s solidarity heavily.76 As a result of the migratory movements to Europe in 2011, the guidelines of the Stockholm Programme were put to the test. The Commission drafted a communication in which it stated that “Solidarity […] has been a guiding principle of the common European asylum policy since the start of its development in 1999” and that “Solidarity has been recognised as an essential component of the Common European Asylum System (CEAS) since the outset.”77 Additionally, the Commission underlined the importance of EASO and expressed great hopes for its capabilities to be the solidarity mechanism for Member States coping with disproportionate pressures.78 However, the costs-by-cause principle of the Dublin system which – as we have seen above – is explicitly not in line with the principle of solidarity – was not intended to be altered.79 The Council’s reply included only very unspecific remarks to concrete solidarity measures.80 However, it admitted that there is “the need for genuine and practical solidarity towards the Member States most affected by asylum and mixed migratory flows resulting in an extraordinary burden on their asylum and migration systems”.81 The Council followed the Commission’s plan for strengthening EASO’s capacities and suggested a strengthened cooperation between EASO and Frontex,82 thus calling upon bringing the two agencies together that were created as solidarity mechanisms in and of themselves. 76 See Saracino, Daniele: Dimensionen europäischer Solidarität: Die Antwort der EU auf die Migrationsbewegungen über das Mittelmeer während des „Arabischen Frühlings“, in: Zeitschrift für Politik, Vol. 61, No. 1, 2014, pp. 22-41. 77 European Commission: Communication from the Commission to the European Parliament, The Council, the European Economic and Social Committee and the Committee of the Regions on enhanced intra-EU solidarity in the field of asylum. An EU agenda for better responsibility-sharing and more mutual trust, COM (2011) 835 final, p. 1. 78 See Ibid., pp. 2ff. 79 See Ibid., p. 7. 80 See Council of the European Union: Council Conclusions on a common framework for genuine and practical solidarity towards Member States facing particular pressures due to mixed migration flows 7485/12, ASIM 28, 2012, Front 42. 81 Ibid., p. 1. 82 See Ibid., pp. 7ff. 58 The European Parliament’s (EP) riposte to the Commission’s communication was much more enriched in relation to solidarity, stating that “…solidarity has been recognised as an essential component and a guiding principle of the CEAS from the outset, as well as constituting a core principle in EU law according to which Member States should share both advantages and burdens in an equal and fair manner”83 Referring to the CEAS, the EP demanded greater financial and administrative assistance by the EU for Member States that are disproportionally burdened84 and “practical solidarity” with those Member States which represent entry points at the EU’s external border for asylum seekers by boosting their asylum systems’ preparedness.85 In addition, the EP pointed out “that Article 80 TFEU requires the activation of existing measures as well as the development of new measures so as to assist those Member States when necessary”86 and joined the other two institutions in reiterating its expectations in EASO’s role in being an adequate coping mechanism in emergency situations and a general solidarity mechanism for the CEAS.87 Currently, the Union negotiates a reform of EASO. The Commission issued a proposal in order to “develop it into an agency which facilitates the implementation and improves the functioning of the CEAS.”88 It remarkably states that “In the Commission's view, the Agency is one of the tools that can be used to effectively address the structural weaknesses in the CEAS which have been further exacerbated by large scale and uncontrolled arrival of migrants and asylum seekers to the European Union particularly during the past year.” In the proposal, we find the recurring theme of an existing tenet that must at the same time be strengthened: The CEAS should be “governed by the principle of solidarity”89 and the new agency “should support the development 83 European Parliament: Report on enhanced intra-EU solidarity in the field of asylum, 2012/2032 (INI), recital B. 84 See Ibid., Conclusion 5. 85 See Ibid., Conclusion 7. 86 Ibid., Conclusion 8. 87 See Ibid., Conclusions 13ff. 88 European Commission: Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 Proposal EASO, COM (2016) 271 final, p. 2. 89 Ibid., recital 1. 59 of solidarity within the Union.”90 It remains to be seen what the actual design of the new agency will look like. In the political unrest that has a grip on the CEAS following the events since 2015, the political debates are still very much going on and concrete legal outcomes have yet to surface. In that regard, it is important to note that Article 80 TFEU does not cover a binding duty to a distribution system for refugees among the Member States.91 The failed agreement towards a mandatory implementation of such a system is not limited to the current refugee crisis but has been negotiated and refused several times since the early 1990s.92 The Article does, however, provide a sufficient legal basis for a future implementation,93 which, considering the shortcomings of the Dublin system should be a dictate of political prudence. In light of the current so-called refugee crisis, the Commission in fact suggested a “mandatory and automatically-triggered relocation system to distribute those in clear need of international protection within the EU when a mass influx emerges”94 which never came to pass. Although, in the same Communication, the Commission admitted that the Dublin system “is not working as it should”95; again it did not intend to alter the costs-by-cause principle. More and more it seems that no matter the evidence of the numerous shortcomings of the Dublin system96 and its incompatibility with the principle of solidarity, its very core is deemed untouchable by the Union. Instead, accompanying 90 Ibid., recital 19. 91 See Weiß, Wolfgang: Art. 80 AEUV, in: Streinz, Rudolf (ed.): EUV/AEUV. Vertrag über die Europäische Union und Vertrag über die Arbeitsweise der Europäischen Union, 2nd edition, München, 2012, para 4. 92 See Progin-Theuerkauf, Sarah: Art 80 AEUV, in: Von der Groeben, Hans, Schwarze, Jürgen & Hatje, Armin (eds.): Europäisches Unionsrecht. Vertrag über die Europäische Union. Vertrag über die Arbeitsweise der Europäischen Union. Charta der Grundrechte der Europäischen Union, 7th edition, Baden-Baden, 2015, para 2. 93 See Thym, Daniel: Art. 80 AEUV, in: Grabitz, Eberhard, Hilf, Meinhard & Nettesheim, Martin (eds.): Das Recht der Europäischen Union. EUV/AEUV, Loseblattausgabe, 60. Ergänzungslieferung, München, 2016, para 6. 94 European Commission: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A European Agenda on Migration, COM (2015) 240 final, p. 4. 95 Ibid., p. 13. 96 See Maiani, Francesco: The Dublin III Regulation: A New Legal Framework for a More Humane System?, in: Chetail, Vincent, De Bruycker, Philippe & Maiani, Francesco (eds.): Reforming the Common European Asylum System. The New European Refugee Law, Leiden & Boston, 2016, pp. 101-142. 60 measures trying to circumvent these chief defects seem to be considered as the solution. 5 Conclusion An outstanding accomplishment of European integration is the legal commitment to common values and common objectives that manifests itself in the creation of common institutions that are incumbent upon realizing these objectives based on the principle of solidarity.97 I have shown that, although the use of the term solidarity is ambiguous in public discourse, a thorough analysis can narrow it down to a tangible research subject. In that regard, the significance of Union law should be acknowledged once more as a vital strength since solidarity is legally standardized and not a mere political claim. Within the realm of the European Union, it is possible to assign a specific content to solidarity and detect some established parameters. For instance, solidarity manifests itself as a two-fold principle: On the one hand, as a general prerequisite for the existence of the Union, answering the question, why a principle of solidarity is needed in the first place. On the other hand, as a procedural principle of sincere cooperation, answering the question, how solidarity must be shaped and implemented. Furthermore, the principle of solidarity’s scope is the entire European Union, hence its use spreads over all policy fields and the relationship among all institutions. Since it is indispensable for both the existence and the functioning of the European Union, I have shown that the principle of solidarity is the “conditio sine qua non” of the whole European integration project. Therefore, its impact is immense and its value cannot be estimated high enough. Concrete specifications of solidarity, though, must be carried out in the common policy fields, as demonstrated above by exemplifying the areas of economic and foreign policy cooperation. However, the role of the solidarity principle is particularly interesting within the CEAS, where the existing deficiencies require a salient stipulation of the solidarity principle in order to achieve the common objectives. I have shown that, apart from financial and operative compensation measures, the expression and relevance of solidarity in the CEAS consists of an accurate implementation of all secondary law provisions by the Member States. On the other hand, it consists of the support, assistance and development of a common asylum system that works for the benefit of the whole Union. So why is solidarity crucial to the asylum policy of the European Union? Because a violation of the solidarity principle in the especially vulnerable field 97 See Calliess, Christian: Art. 222 AEUV, in: Calliess, Christian & Ruffert, Matthias (eds.): EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 4th edition, München, 2011, para 9. 61 of the common asylum policy can have serious repercussions on the European Union as a whole. It is evident that violating the conditio sine qua non must lead to serious consequences. Therefore, a continuous breach of the solidarity principle in one policy field can shake the very core of the whole integration project and must be prevented by all means. As demonstrated above, the Dublin system has continuously breached the principle of solidarity ever since its creation – and there is no end in sight. Quite the contrary, in full awareness of the violation the EU has been treating the symptoms with accompanying measures instead of curing the illness, i.e. its costs-by-cause principle. This is why the modalities of the solution to the current refugee crisis can turn out to be crucial for the future of the European Union as we know it. It remains to be seen whether and how, for example, the intended development of EASO into a full-blown asylum agency will affect the serious shortcomings of the CEAS. In my assessment, however, without the dismissal of the costs-by-cause principle of the Dublin system or, at least, the implementation of an automatic and mandatory distribution mechanism that is fair to both the Member States and the asylum seekers, there will never be an adequate application of the solidarity principle and therefore no adequately working CEAS either.

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Abstract

The Nordic EU Member States are generally considered to have common perspectives and interests regarding European integration. A differentiated look reveals, though, that fundamental differences in the respective agendas towards certain policy fields exist. The increasing number of refugees seeking protection within European borders in the last years has unveiled a major divergence of interests particularly between Sweden and Finland regarding the common European asylum policy: Sweden has within a few years turned into one of the continent’s top destinations for asylum seekers, whereas Finland has characterized itself as one of Europe’s most restrictive asylum and migration management regimes. The openly stated differences of these two countries, both in terms of actual numbers and implemented national policy guidelines, are representative for the opposing political forces emerging within the European Union in shaping the common asylum policy. Due to the increasing internal and external pressure on the EU in managing the refugee crisis, this issue has not only gained significant importance and emphasis on a national level, but also from a European point of view.

This volume differentiates the Nordic perspectives on shaping EU asylum policies by focusing on the two contrasting country case studies of Sweden and Finland. Why have these neighbouring countries, characterized by similar economic and social welfare systems, chosen such different approaches in facing the challenges arising from the refugee crisis and in implementing asylum policies? For both countries, questions for the interests of key actors dominating the national debates on asylum policy are prevalent. The respective agendas of Sweden and Finland, their different political approaches and problems inside their respective societies as well as the national strategies at the European level in shaping the Common European Asylum System in light of the refugee crisis are in the focus of the contributions.