CÓDIGO DEL SISTEMA

One of the first challenges in the aftermath of the Amsterdam Treaty was the crisis in Yugoslavia. The growing number of asylum applications due to the Yugoslavian conflict highlighted the necessity of cooperation and burden sharing of asylum matters among EU Member States. As early as 19 January 1994 the European Parliament had published a Resolution on the general principles of European refugee policy which emphasized the need for refugees to be distributed evenly among EU Member States. The Council Resolution of 25 September 1995 on burden-sharing with regard to the admission and residence of displaced persons on temporary basis urged Member States to continue to give temporary protection to persons whose life was in danger as a result of armed conflict or civil war. With regard to the application of burden sharing mechanisms, the Council gave no explicit instructions as to how it ought to be implemented. The Council only stated that, “the Council agrees that the burden in connection with the admission and residence of displaced persons on a temporary basis in a crisis could be shared in a spirit of solidarity”. A similar tone was heard in the Council Decision of 4 March 1996 on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis. The Council acknowledged the need to admit additional displaced persons on a temporary basis, but avoid referring directly to the materialization of such a policy.

On 26 June 1998, the Commission presented two proposals concerning temporary protection of displaced persons: one on the establishment of a temporary protection regime and the other on solidarity measures to be arranged among Member States. On the

Proposal for a joint action concerning solidarity in the admission and residence of beneficiaries of the temporary protection, the Council emphasized the importance of solidarity among Member States when making major decisions concerning the admission of large numbers of displaced persons from crisis regions, but abstained from suggesting any specific arrangements or measures to be taken to ensure that the above solidarity

would in fact take place. Instead, it made a proposal for financial assistance from the Community budget to assist Member States which received large numbers of refugees.

On a special meeting held in Tampere on October 15 and 16, 1999, under the Finish Presidency, the European Council called for further cooperation in the area of freedom, justice and security. The main conclusion was that the EU should cooperate with the country of origin through trade development and cooperation policies. Moreover, closer cooperation on border controls and measures to combat illegal immigration were offered. A financial reserve to handle emergency situations was recommended as one of the main provisions to cope with the mass influx of displaced persons or asylum seekers497. Indeed, one of the results of this meeting was the Council Decision, on 28 September 2000, for the establishment of a European Refugee Fund. One of the major objectives of this Fund was to ease the burden on Member States by granting financial support in order to provide appropriate reception conditions (such as accommodation, legal advice, etc.) to persons asking for refugee status or temporary protection. Moreover, the fund assists Member States with the integration and adaptation process of refugees and displaced persons and provides support for repatriation and resettlement of those persons in their countries of origin498.

In the Proposal for a Council Directive 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 thereof499,the Commission suggested that Member States adopt minimum standards in the case of the mass influx of displaced persons. The Commission stressed once again the idea of solidarity, suggesting that the successful admission of a considerable number of displaced persons is largely dependent on solidarity and cooperation among Member States. In the formulation of the Commission, “the Directive

497 _{See Presidency Conclusions, Tampere European Council 15 and 16 October 1999, European} Commission SI (1999) 800, Brussels, 16 October 1999.

498_{It should be noted that this decision does not apply to Denmark. Denmark, in accordance with its} Protocol annexed to the Treaty of the European Union, decided not to adopt this decision. See Council Decision of 28 September 2000 establishing a European Refugee Fund, 2000/596/EC, Official Journal of the European Communities, L 252/12.

acknowledges the link between a mass influx of displaced persons and solidarity”. While referring to the way according to which solidarity will be organized (Article 24-27), the Commission made a distinction between two main categories of solidarity: financial solidarity and solidarity in physical reception. Financial solidarity was based on the proposal for the abovementioned Refugee Fund and suggested that EUR 216 Million be provided over a period of five years to finance Member States that need financial support for the reception, integration and voluntary return of displaced persons. The solidarity in physical reception, however, remained to a large extent a vague and abstract concept. Member States were not obliged to receive displaced persons or assist other Member States by taking on some of them, but were only required to give a general assessment indicating their capacity to receive displaced persons. Acts of solidarity with other Member States were to be expressed “on a voluntary basis”. In sum, Member States were not obliged to share the burden with their neighboring Member States. This proposal reflects once again the inability of the EU to set up specific criteria according to which the reception of displaced persons will be carried out (e.g. based on a correlation between the population of a Member State and the number of displaced persons it should receive). It leaves to the Member States the exclusive right to decide how many displaced persons it wishes to take on, based on a spirit of solidarity. As long as these burden-sharing mechanisms are not implemented in practice, even the introduction of qualified majority voting in the area of the EU’s common asylum policy would not represent a true remedy. In fact, from the German perspective it might even entail new risks, as the other EU Member States could in this case decide - hypothetically at least – on a more generous asylum or immigration policy, the brunt of the burden of which Germany itself – due to its geographic location and economic attractiveness – would be obliged to bear. This – along with the constitutional nature of the issue – best explains Germany’s otherwise seemingly paradoxical refusal to relinquish its veto in this field at the EU Summit in Nice in December 2000.

Clearly, the EU has thus far limited its burden-sharing discourse mainly to the financial arena. None of the above-mentioned proposals envisioned practical arrangements for sharing the refugees among the Member States themselves. In that respect, one can say

that the EU was avoiding tackling the real problem, namely, the distribution of asylum seekers among Member States. When Germany, the largest asylum receiver in Europe in the 1990s,500 repeatedly asked other Member States to share the asylum burden with her, it was not hoping for financial support, but primarily expected other Member States to share the persons who had found shelter in her territory. This, however, was refused by the other Member States501. The lack of solidarity is especially evident in the case of Yugoslavia502. Though Germany received by far the highest number of Bosnians and Kosovars503, other Member States refused to help her. The French Prime Minister, for example, who did not favor the admission of additional Kosovars to France, declared in April 1999: “Let us not add forced departure to deportation. We must assure them of their right to return to their country of origin”. Instead, additional financial assistance for Albania and Macedonia,which provided shelter to approximately 350.000504 Kosovars, was given. Even the Commission admitted in one of its reports that Member States had failed to reach an agreement on 7 April 1999 in Luxembourg with regard to the coordination of the admission of the displaced persons from Kosovo505. In light of this blatant lack of solidarity within the EU, it is not surprising that national governments are under public pressure to act to reduce the number of asylum seekers by introducing new legislation at the national level.

500 _{Between 1990 and 1998 more than 1.8 Million applications for asylum were registrated in Germany,} whereas in Britain and France the figures are much lower; 405,000 and 267,000 respectively. In United States, for example, the number of asylum requests stood on 928,000. See, Migrationsbericht 1999. Zu- und Abwanderung nach und aus Deutschland, Die Beauftragte der Bundesregierung für Ausländerfragen, Bonn 1999.

501 _{See Frankfurter Allgemeine Zeitung, 9. November 1998, „Schily fordert gerechtere Lastenverteilung bei} der Aufnahme von Flüchtlingen“.

502 _{Joanne van Selm-Thorburn (1997), Refugee Protection in Europe. Lessons of the Yugoslav Crisis, The} Hague, Martinus Nijhoff Publishers pp. 127-130.

503 _{France took only 6,300 and Britain hosted only 4,346. See UNHCR Country Profile- United Kingdom,} www.unchr.ch/world/euro/uk.htm, 28.11.2000 and UNHCR Country Profile- France, www.unchr.ch/world/euro/france.htm, 28.11.2000.

504 _{UNHCR Press release Geneva 4 April 1999 “Refugees as exodus grows”, 28.11.2000.} 505 _{See Commission proposal for a Council Directive, 24.5.2000, COM (2000) 303 final.}

6.4. Return policy of the EU via cooperation with third countries: readmission