EU interior ministers are meeting on Thursday 8 December for a formal meeting dominated by the enlargement of the Schengen free movement area to Bulgaria, Romania and Croatia, the latter being best placed to achieve a positive outcome.
Ministers will also be asked to take note of the state of play of the regulation on the instrumentalisation of migrants, which will allow Member States facing such situations of instrumentalisation to temporarily derogate from EU asylum rules.
They will also be asked to approve the negotiating mandates of three old texts of the 2016 ‘Asylum Package’ in order to start new trilogues with the European Parliament on the more recent texts of the ‘Pact on Migration and Asylum’, namely the Eurodac and ‘Screening’ regulations. They will take stock as well of the regulation on the removal of child pornography online.
Green light for Croatia is close
On the enlargement of Schengen, the discussions within the Member States on Wednesday 7 December in the morning did not change much compared to the discussion on 30 November (see EUROPE 13075/9), with several countries such as Austria and the Netherlands still having fundamental reservations, respectively on Romania and Bulgaria for Austria, which fears more secondary migratory flows from the Western Balkans route, and Bulgaria, for the Netherlands. Other reservations exist and have not allowed the Czech Presidency of the EU Council to achieve unanimity on the three countries, even if the horizon seems clear for Croatia.
The Czech Presidency should continue to make progress with two decisions, a joint one for Bulgaria and Romania, the other for Croatia. Romania’s fate will therefore depend heavily on that of Bulgaria. The Presidency proposed a final compromise on Tuesday evening, allowing Romania and then Bulgaria to be integrated under a phased approach, but there was still no support for this on Wednesday.
According to another source, it would be possible, from a legal point of view, to separate the two countries, but “from a practical point of view, it doesn’t make sense”, explained the Presidency on 6 December, as the two countries have been linked since the beginning and could not be separated by a new border, if Romania joined Schengen. According to another source, Bulgaria is not in favour of this ‘decoupling’ either.
One likely scenario is that the EU Council will give Croatia the green light on Thursday and postpone its decision on Bulgaria and Romania “until March”, although “a lot will depend on how the Czech Presidency handles the discussion”, added another source. If Austria lifts its veto on Romania, another decision could be presented.
Instrumentalisation of migrants
The ministers will also be invited to take stock of the instrumentalisation of migrants, as was the case at the end of 2021 for the actions of Belarus. The latest text, dated 6 December, was however not supported on Wednesday morning, with several delegations pointing to a problem with the overall balance of the text, between concerns about the proportionality of measures and derogations for asylum seekers, but also on the mandatory nature of border procedures. Other delegations were opposed because of the very voluntary use of relocations in case of solidarity measures for countries under intense pressure due to instrumentalisation. The fact that the text is also closely linked to other elements of the Pact did not help the Czech Presidency either.
According to the last text, the registration period for applications for international protection by arriving migrants was still 3 weeks, compared to 4 weeks in the Commission text. On the criminalisation of NGO operations, the text continues to state that “humanitarian aid operations should not be considered as instrumentalisation of migrants when they do not aim at destabilising the Union or a Member State”.
Asylum: several confirmations expected on the continuation of the work
The ministers should, in principle, as did the Member States on 7 December, give their approval to the finalisation of work on three texts of the ‘Asylum Package’, namely the EU Regulation on resettlement and the Directives on the ‘qualification’ and ‘reception conditions’ of asylum seekers. These would then be adopted in a new trilogue, allowing the first trilogues on Eurodac to be launched, followed by the ‘Screening’ regulation later in 2023. The aim is still to achieve this in December on Eurodac, but first the European Parliament has to approve its mandate.
The Czech Presidency will also ask the ministers to approve the progress made on the ‘Pact on Migration and Asylum’ and the Regulation on Asylum and Migration Management (ex-Dublin). Prague summarised these advances in a final note of 6 December in which it spells out the progress on balanced solidarity and responsibility.
Also seen by EUROPE, this note recalls that the proposed mechanism would allow for “a legally binding, but adapted and needs-based approach (compulsory, but flexible solidarity), reflecting the evolving migration challenges, including the structural phenomenon of disembarkation after search and rescue operations or secondary movements. The same balanced approach is followed for responsibility, in particular with regard to the border procedure and the rules for determining responsibility”.
The solidarity system remains based on annual migration reports with minimum thresholds for relocation each year. Precise figures (5,000 or 10,000) were included in earlier drafts, but the fact that the principle of a ‘fair share’ between Member States is introduced finally suits some southern EU countries. This fair share would be a binding principle. The note also mentions the possibility of turning the cessation of so-called ‘Dublin’ transfers into a solidarity measure.
However, this progress will not yet be approved to be directly translated into amendments in this regulation, a source said on Wednesday. For another, however, it shows that Member States are moving step by step towards reform of asylum and migration rules.
Regulation on combating child pornography
The ministers will also take stock of the progress made on the regulation on the prevention and removal of child pornography online, which was presented in May and is very sensitive in Germany. They will adopt a progress report on this issue which asks messaging services to detect such material or attempts to bully minors.
In its progress report, the Czech Presidency of the EU Council explains that it has presented a major conceptual change regarding the issuance of individual order types - detection orders and withdrawal and blocking orders. A new type of order, the delisting order on search engines, has also been introduced. Removal, blocking and delisting orders would be newly issued by the competent authorities of the Member States.
Detection orders, on the other hand, would be the only orders issued by a judicial or other independent administrative authority of a Member State, as this type of order is the most sensitive in terms of interference with the fundamental rights of the users of the online service providers concerned.
Pending the lifting of review reservations, it would appear that a majority of Member States could support this change, as it would allow them to maintain existing systems and structures to combat such child pornography, the report says.
On material detection technologies, the Presidency also organised workshops, including on age verification tools.
Among the open legislative issues, clarifications are needed on the scope and definitions, including the definition of “child user”. Another important change in this first chapter was the inclusion of a definition of “online search engines”, following the addition of delisting obligations to the chapter.
The Spanish rapporteur, Javier Zarzalejos (EPP), held the first meeting of the shadow rapporteurs last week. He presented them with his timetable: a report ready in April and a vote in the parliamentary Committee on Civil Liberties in July.
At the end of the day, the ministers will come back to the subject of critical infrastructure and Russian aggression in Ukraine. They will discuss the returns at lunchtime.
Link to the Asylum Package mandates: https://aeur.eu/f/4jc ; https://aeur.eu/f/4ja ; https://aeur.eu/f/4j9
Link to the note on the concept of solidarity: https://aeur.eu/f/4j6
Link to the progress report on asylum and migration: https://aeur.eu/f/4j7
Link to the ‘instrumentalisation’ Regulation: https://aeur.eu/f/4j8
Link to the report ‘Online Sexual Abuse’: https://aeur.eu/f/4jg (Original version in French by Solenn Paulic)