On Friday, 7 January, the European Parliament’s Legal Service issued a relatively moderate opinion on measures—based on Article 78.3 of the EU Treaty—to aid Poland, Lithuania, and Latvia against Belarus (see EUROPE 12844/11).
Not objecting to these measures, the Legal Service nevertheless raises some questions as to the justification behind these measures, which envisage targeted derogations from the directives on reception conditions for asylum seekers or on returns.
It thus requires Member States to be beyond reproach in the statement of the facts justifying these exceptional measures, according to the opinion seen by EUROPE. It also wanted clarification on certain articles, especially those on the extended registration periods for asylum applications as well as on the derogations from the ‘Returns’ Directive where “the temporal scope seems to be unlimited” whereas the measures are supposed to remain temporary.
“A measure based on Article 78, paragraph 3, TFEU can only be adopted when one or more Member States are confronted with an emergency situation in the context of such measures”, and, “in principle, recourse to Article 78, paragraph 3, TFEU is not excluded in order to cope with an emergency situation”, the department initially concludes.
The Council of the EU has a wide power of discretion to determine whether an emergency situation exists within the meaning of Article 78, paragraph 3, TFEU; however, “in its decision, the Council [of the EU] must state the material facts that have led it to conclude that such a situation exists”.
The opinion stresses that there “must be a sufficiently close link between an emergency situation within the meaning of Article 78, paragraph 3, and the sudden influx of third-country nationals”, and the Council of the EU can base its decision on the available statistics.
However, the Legal Service generally considers that the various derogations from legislative acts submitted by the proposal “appear to be appropriately circumscribed”.
The European Parliament, which has been consulted, will debate these measures on Thursday. (Original version in French by Solenn Paulic)