The European Border and Coast Guard in Need of Solidarity: Reflections on the Scope and Limits of Article 80 TFEU

in: Mitsilegas V, Moreno-Lax V and Vavoula N (eds): Securitising Asylum: Extraterritoriality and Human Rights Challenges (Brill 2017, Forthcoming)

20 Pages Posted: 4 Apr 2017  

Herbert Rosenfeldt

University of Passau - Law Faculty

Date Written: March 31, 2017

Abstract

The principle of solidarity informs EU policy on external border management. Recently the Schengen System of external border controls and the Common European Asylum System is put on trial by extraordinary strains. The new legislation pertaining to the European Border and Coast Guard serves to illustrate the principle of solidarity (Article 80 TFEU) at work.

To remedy deficiencies in EU external border control the European Commission proposed a European Border and Coast Guard consisting of national border guards and a reinforced EU border agency. The new agency would have been entitled to deploy border guards even against the will of the Member State concerned in crises situations. This envisaged ‘right to intervene’ relied on the idea of trusteeship of the Schengen borders to the respective States. If they did not effectively implement the Schengen acquis they would risk to forfeit their sovereign right to national border protection. The EU legislator opted for an attenuated version: decisions on urgent actions are taken by the Council. Interstate solidarity and fair sharing of responsibilities through voluntary co-operation will partly be replaced by a system allocating responsibilities in border control with EU institutions in an almost supranational fashion.

This compulsory form of solidarity deduced from ‘shared responsibilities’ is not rooted in EU law. Nor does the principle of solidarity justify restrictions on EU constitutional principles such as conferral of powers. On the other hand, solidarity and fair sharing of responsibilities are only loosely defined legal concepts and political in nature thereby arguably lacking direct effect. Invoking these concepts to introduce supranational exercise of power might affect their future reading in turn.

Keywords: European Union, migration, external borders, Schengen, solidarity, Article 80 TFEU, shared responsibilities, fair sharing of responsibilities, mutual trust, European Border and Coast Guard, Frontex, integrated border management

Suggested Citation

Rosenfeldt, Herbert, The European Border and Coast Guard in Need of Solidarity: Reflections on the Scope and Limits of Article 80 TFEU (March 31, 2017). in: Mitsilegas V, Moreno-Lax V and Vavoula N (eds): Securitising Asylum: Extraterritoriality and Human Rights Challenges (Brill 2017, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2944116

Herbert Rosenfeldt (Contact Author)

University of Passau - Law Faculty ( email )

Innstraße 39
Passau, 94032
Germany

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