Juan F. López Aguilar
Socialist MEP, Chairman of the EP’s Committee on Freedoms, Justice and Home Affairs and collaborator of Fundación Alternativas
In the final stretch of the Spanish Presidency of the Council of the EU, the EU Pact on Migration and Asylum added to its list of achievements and completed legislative procedures – due to its imposing density.
In the years in which I have devoted body and soul to the European Parliament – a unique institution, as it is a result of the universal suffrage of European citizens with supranational scope and legislative power – I have never before experienced such complex, difficult and multifactorial negotiations as the one that has led, in extremis, almost agonisingly, after years of hard work, to a political agreement between the Council (the European Parliament and the Council of Ministers) and the Council of Ministers (the European Parliament and the Council of Ministers), to a political agreement between the Council (the body representing the governments of the 27 Member States/EEMM) and the European Parliament, which will channel the entry into force of the five interlinked Regulations of which the Pact is composed, in addition to three others pending from the last 2014/2019 Legislature, stalled after the failure of the efforts made at the time to approve them.
In many of my publications – not only opinion forums, but also in specialised legal journals and in my books on EU law – I have endeavoured to explain (in the hope of making it easier to understand) the specificities of the inexorably sophisticated European legislative procedure. Its completion requires the integration of so many wills that it is not only unrealistic but childish to pretend that a single point of view, a single interest or priority, can prevail from start to finish. On the other hand, in a directly elective EP, which by its original democratic legitimacy represents the pluralism of the open societies of 27 Member States, there has never been a group or political force that can legislate on its own without reaching agreements (“compromises”, we call them) on several sides with other formations. Moreover, once the legislation in question has been approved by the EP plenary, a final phase of tense negotiation with the EU Council is still necessary, and its approval is a prerequisite for its entry into force.
The general validity of these premises is particularly relevant to the understanding of the EU Pact on Migration and Asylum, both in terms of its contents and its limitations. Firstly, because it means opening its channel of possibility to five Regulations, which are directly binding European laws for the Member States (unlike the Directives, they do not need to be transposed into their domestic law within two years) and generate rights that can be invoked by their courts and tribunals before the CJEU as the guarantor of their primacy, direct effect and uniform interpretation (Art. 19 CJEU). And this in itself is already an advance with respect to the situation from which we are coming: absence or lack of sufficient common rules, or national non-compliance with Directives that have not been transposed or are exposed to serious differences in standards of response to common challenges.
The scheme articulated by the five Regulations not only fulfils a mandate of the Treaty of Lisbon (articles 77 and 78 TFEU) – a European Migration and Asylum System – but also subjects the Member States to common rules, where there have been none until now. It also provides a European response cushion, where for so many years and from so many quarters it has been called for. At many external borders (Greek Islands, Pelagic Islands in Italy, Canary Islands in Spain…) we have heard the cry “Where is Europe?”, in the face of the arrival of thousands of people via illegal trafficking routes and exploitation of people, following their Rescue & Rescuers (S&R). From its entry into force, the agreed system will finally be able to strike an acceptable balance between shared responsibility and binding solidarity (art. 80 TFEU), which in itself represents progress – for the better – in terms of where we have come from and where we are.
It should be stressed once again that the last 2014/2019 Parliamentary term failed to strike an acceptable balance: it was not possible to overcome divergences and contradictions, despite the hard work of the EP and its Committee on Freedoms, Justice and Home Affairs (LIBE), which I have the honour of chairing. That is why this 2019/2024 Legislature began with the express commitment – formulated and assumed during her investiture by President Von der Leyen – to agree on common rules that provide legal certainty where until now there have only been Member States fighting each battle on their own, using their own resources, with the bitter feeling, and the resounding complaint, of having been abandoned to their fate, one by one, by the rest of the EU. With all the limitations of a political struggle as complex and exhausting as this one, with a final stretch of three days and two nights of non-stop, relentless, dog-eat-dog negotiations, it now becomes possible – and, in emergency situations, particularly those regulated by the Crisis Regulation, it will be particularly demanding – for the EU as a whole to respond in solidarity, where it has not existed until now. This in itself is also a step forward.
Putting one’s feet on the ground, recognising the ground one is treading on from an awareness of the principle of reality, is an essential condition for political action. No one with public representation or responsibility can disregard, or be alienated from, the landscape described by reality as it is, or from the rules of the game by which this office is exercised on loan from our citizens. In an EP in which there are eight groups (three of them to the extreme right of the PP), and in an EU Council in which progressive governments are the smallest minority in the history of the EU (in contrast, with a growing number of right-wing governments intervened by the far right), and where nothing indicates that this correlation of forces will improve any time soon (consider the prognosis of how many socialist and left-wing Commissioners, out of a total of 27, It must be recognised that the possible agreements may not be optimal, they may be open to criticism, but as long as they involve adopting legislation that imposes common obligations, effective solidarity in emergency situations (crises, even on a regional scale, following S&R landings), they represent progress, and progress in this area is an objective in itself, European, pro-European, of the kind that is worthwhile. Without ignoring its limits, agreement in this divisive and difficult area is preferable to failure.
I hear and know the criticisms. I have experienced them first-hand over the years, I have made them my own in the course of the tough rounds of negotiations that have been fought tooth and nail. I have always taken a humanitarian approach to migration and the right to asylum, respectful of international law and the European Charter of Fundamental Rights/CFREU. This has not been the case for a significant number of EU governments, whose weight in the Council has prevented the compulsory relocation programmes for which I have advocated from always being accepted as the only expression of solidarity: in crisis situations, the European Commission may impose them, yes, and this is also an undeniable major advance on the status quo; but those governments reluctant to relocation as a general rule of the European System have demanded to offer alternative contributions (financing the EU Internal Solidarity Fund and the EU Migration & Asylum Fund, in order to provide assistance and equipment). Furthermore, the mechanicism prevailing in the so-called “Dublin Regulation” has been overcome, whereby the responsibility for the asylum application and protection of the applicant has rested exclusively on the MS of “first entry”, which is unfair for those who, like Spain, have so many maritime and island borders exposed to irregular entries. It is by no means true that the Pact serves the agenda of the extreme right: its priority is to deny the European scale of response, to return to the national starting points (“regain sovereignty”) with a xenophobic discourse, thus failing any legislation that imposes common obligations and rights that can be claimed before the courts of the respective judicial systems of the Member States.
In crisis situations (suffice it to say that, in the Canary Islands, 2023 will end with a dramatic historical peak of more than 40,000 desperate people arriving by sea, and an estimated 6,000 tragic deaths in the attempt), it will now be possible to initiate from the European Commission (and its newly created EU Housing Coordinator) an executive programme of solidarity-based redistribution linking the Member States and the EU as a whole. This is an undeniably useful innovation. With all the limitations imposed by the complexity and scale of the procedures and conditions of European legislation, a Pact and an EU System are a better alternative than the chronification of the vacuum, the cross accusations and the frustration resulting from perpetual protest.
It is therefore better to conclude the 2019/2024 Parliamentary term with a concrete result – an EU Pact on Migration and Asylum, consisting of five regulations directly binding on the Member States – as real as we are aware of its scope and limits, than to conclude it with no result at all. That outcome – the one we have avoided – would indeed have been an incentive, as sinister as it is predictable in its negative impact, for the dystopian discourse of the extreme right and anti-European forces.
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