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The effects of the Arab Spring on the European Union: Neighbourhood Policy and Solidarity between Member States in the light of Article 80 TFEU

di - 30 Maggio 2014
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The EU’s reaction was prompt. Therefore, on 20th February 2011, in response to the large amount of Tunisian and North African migrants arriving to Lampedusa, the European Agency for the Management of Operational Cooperation at the External Borders (Frontex) launched the Joint Operation Mission “Hermes”[5]. The Hermes mission was part of a broader framework of measures adopted by the European Commission to tackle the exceptional migratory flows. This mission provided other actions also including cooperation with local authorities, identification of financial emergency package and assistance by the European Police Office (Europol). The European Union also provided financial assistance within the framework of two EU funds: the External Borders Fund and the European Fund for Refugees[6].
However, as pointed out above, the Arab Spring led to reflections on the relationships between Member States whenever they meet and stand up to an international challenge regarding exceptional migration flows towards Europe. In fact, from a brief analysis of the developments after the Arab Spring, there seems to be evidence of a lack of trust between Member States[7] looking at the principle of burden sharing responsibilities. This issue will be developed in the next paragraph.

III. The principle of solidarity between Member States in the light of Article 80 TFEU
Finally, it could be interesting to consider which way would be the best to follow in order to expand the solidarity between Member States especially while dealing with historical changes and consequences like those emerging in the Northern part of Africa. In particular, we must not forget that the concept of solidarity has a relevant role inside the European Union since the Schuman Declaration[8] on 9th May 1950 where, the French foreign minister Robert Schuman stated that:
« L’Europe ne se fera pas d’un coup, ni dans une construction d’ensemble: elle se fera par des réalisations concrètes, créant d’abord une solidarité de fait ».[9]
After more or less fifty years, the Treaty of Lisbon, which came into force in December 2009, has strongly reaffirmed the principle of solidarity[10], notably for external border control, asylum and immigration policies.
Indeed, art. 67, paragraph 2, TFEU provides that:
“[The Union] shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.”
Moreover, this provision is strictly linked to Article 80 TFEU[11] stating that:
The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this chapter shall contain appropriate measures to give effect to this principle”.
These are two significant provisions establishing that, in particular matters as asylum, border checks and immigration, solidarity seems to be more than a general principle but a specific legal obligation which Member States have to respect by adopting, when necessary, appropriate measures to give effect to it (it might be noted the use of the verb “shall”).[12]
Moreover, it is interesting to deepen the role, and eventually the added value, of Article 80, second sentence, TFEU within the policies of the Union pursuant to Articles 77-79 TFEU (asylum, immigration and external border control).
The key question is the following:
Does Article 80 TFEU only represent a redundant provision which repeats a general principle or, on the contrary, a clear new legal basis giving the European Union specific powers to implement solidarity between Member States, in areas where cooperation and responsibility sharing is fundamental?
In order to answer this question, it is useful to recall the works carried out during the European Convention for the adoption of the “Treaty establishing a Constitution for Europe”. In fact, even if it never came into force, this Treaty contained several provisions which were subsequently inserted in the Treaty of Lisbon without any changes, such as Article 80 TFEU[13], and the related working group reports help us to understand the ratio beyond those provisions.
In particular, the Final report of Working Group X “Freedom, Security and Justice”[14], adopted on 2nd  December 2002, stated that:
“…, the group recommends that the Treaty should reflect explicitly the objective agreed at the Seville European Council, and therefore contain a legal basis allowing the adoption of all necessary measures needed for the gradual development of a common system of external border management. This provision could serve as legal base for the adoption of measures such as promoting co-operation, training, and exchange of information and financial solidarity.”
In other words, it seems that the Working Group, being aware of the difficulties to implement solidarity in certain sensitive areas, wanted to give Member States a specific legal basis in order to adopt all necessary measures, at least for the gradual development of a common system of external border management. Thus, the aim was not only to repeat an important European principle but enabling the EU  a specific power to put it into effect.

Note

5.  More specifically, Frontex experts’ tasks consisted in gathering information needed for analysis, making assumptions concerning migrants’ nationalities, enabling early detection, preventing of possible criminal activities at the EU external borders and giving assistance during return operations to the countries of origin.

6.  The European Commission’s response to the migratory flows from North Africa, 8th April 2011, available at: http://europa.eu/rapid/press-release_MEMO-11-226_en.htm

7.  It is sufficient to recall the tensions arisen between Italy and France regarding the so called permits for humanitarian reasons allowing circulation in the Schengen area. See, in particular, the Decree of the President of the Council of 5th April 2011, Misure di protezione temporanea per i cittadini stranieri affluiti dai Paesi nordafricani.

8.  The Schuman Declaration proposed the creation of a European Coal and Steel Community (ECSC). The founding members of this Community were France, West Germany, Italy, the Netherlands, Belgium and Luxembourg which decided to pool their coal and steel production. It is considered the first step for the construction of what become today the European Union. The full text is available at: http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/

9.  The importance of the solidarity amongst Member States was also recalled by the Court of Justice some years later, in 1972. In fact, at paragraph 25 of the Case C-39/72 (Commission v. Italy, 7th February 1972), the Court ruled that: “This failure in the duty of solidarity accepted by Member States by the fact of their adherence to the Community strikes at the fundamental basis of the Community rules”.

10.  To deepen the principle of solidarity within European Union see: C. Boutayeb, La solidarité dans l’Union européenne : éléments constitutionnels et matériels : pour une théorie de la solidarité en droit de l’Union européenne, Paris, Dalloz, 2011.

11.  To study in depth Article 80 TFEU and its implementation see: The Implementation of Article 80 TFEU – on the Principle of Solidarity and Fair Sharing of Responsibility, Including its Financial Implications, between the Member States in the Field of Border Checks, Asylum and Immigration, European Parliament, 2011. The document is available at: http://www.europarl.europa.eu/committees/en/studies.html

12.  It is interesting to point out that the solidarity principle also regards other areas of European Law such as energy (Article 194 TFEU), defence (Article 42, paragraph 7, TEU), internal security (Article 222 TFEU), but, in these cases, the Treaties seem to express it in a softer way by using the term “in a spirit of solidarity between Member States”.

13.  Indeed, Article 80 TFEU corresponds to Article III-268 of the Treaty establishing a European Constitution.

14.  Final report of Working Group X “Freedom, Security and Justice”, 2nd December 2002, CONV 426/02, p. 17. The text is available at: http://european-convention.europa.eu/pdf/reg/en/02/cv00/cv00426.en02.pdf

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