Luxembourg, 28/09/2007 (Agence Europe) - In his conclusions of 27 September, Advocate General Luis Miguel Poiares Maduro recommends that the European Court of Justice partially cancel Council Directive 2005/85/EC on procedures for granting or withdrawing refugee status in member states. At this stage, his support went to the European Parliament (EP) in that it had submitted an appeal for the reason that the directive in question had been adopted by the Council without taking co-decision procedure into account.
“This is an important victory for the European Parliament”, said Wolfgang Kreissl-Dörfler (PES, Germany), EP rapporteur on asylum matters. “We referred this matter to the Court in the first place and while the Attorney-General's opinion is not a full judgement, it is, nevertheless, a very significant development”, he said. In 2005, the Parliament initiated court action against the Council. The EP reproaches the Council (Justice and Home Affairs) for having adopted, on 1 December 2005, the directive on procedures for granting or withdrawing refugee status, without taking into account the 102 amendments submitted by Parliament. The EP placed particular emphasis on two amendments concerning the minimum common list of third countries that member states consider as safe countries of origin.
Opponents to such a list protest that the list would not respect the rights of asylum seekers in the real world. “Each case must be analysed individually”, said Mr Kreissl-Dörfler. “A country can be considered very safe but an individual in that country is not automatically in great safety”, he said. He takes as an example the principle of “refoulement”, where several asylum seekers in the Netherlands are threatened with extradition to Greece, the place where they first set foot in Europe. The individuals in question cannot be certain that they will be able to enjoy the same protection of their fundamental rights in Greece as in the Netherlands, Mr Kreissl-Dörfler explains. What is more, the situation in each country is constantly changing, and the NGOs which are concerned stress that such a list would have to be regularly updated. “We consider that no country is absolutely safe for everyone all of the time”, stressed Richard Williams, EU Representative for the European Council on Refugees and Exiles (ECRE).
In addition to this problem of “categorisation”, there is the problem of the political dimension. During negotiations between member states, the different priorities of each are strikingly obvious. France, for example, suggested countries in a large part of French-speaking Africa should be declared “safe”, which would have the double advantage of allowing France to refuse asylum requests from anyone coming from those countries, and also to offer a “diplomatic favour” to these countries, Mr Williams explained. Mr Kreissl-Dörfler went on to add that there are various reasons why some countries have been put forward for the list, although it is well known that genital mutilation of girls is current practice there.
Procedure to the service of human rights. According to the Parliament, whose argument is upheld by the advocate general, the development of lists is an essential part of the legislation aimed at harmonising procedures. If such is the case, codecision procedure is necessary before the directive is adopted - and this procedure involves taking the Parliament's amendments into account, review of the draft directive, and also a second reading. The Council has dispensed with such an approach, simply following consultation procedure, which allows for direct adoption without the Parliament's amendments being taken into account. According to the Council, such an approach is justified as these lists are only “implementing measures'” and do not affect refugee policy in substance. The advocate general is not of this opinion. In his view, such lists are an “essential element” of the legislation given that they engage the legislations of member states with heavy consequences for asylum seekers. The Council cannot therefore adopt the directive without full cooperation from Parliament as a joint decision-maker.
If the Court were to follow these conclusions (as is the case 75% of the time), Articles 29 and 36 (concerning the lists of “safe” countries) of Directive 2005/85/EC would therefore be cancelled. Nonetheless, given the delay in transposition of this directive, the effect on European legal ground would not be staggering. Still more important is the affirmation of the principle of codecision in this arena, a principle that is already applied in the broad interinstitutional lines of the next directive. “We are in the middle of codecision” for the harmonised regulation foreseen for 2010, Kreissl-Dörfler was pleased to point out, adding: “The Parliament must be involved in developing legislation in this respect. It cannot be determined by the Council acting behind closed doors”. (cd)