Towards 'Judicial Passivism' in EU Migration and Asylum Law?

Abstract

The title of this text suggests that in the past several years the Court of Justice has been showing signs of passivism in some of its most prominent cases related to the 2015/2016 refugee influx into the EU. Such Court's behaviour will be labelled as «judicial passivism». The aim of this paper is, first, to define the term “judicial passivism”, second, to identify examples of the Court’s passive behaviour and, third, to determine the reasons for such behaviour and its impact on the future development of EU law in general and EU migration and asylum law in particular. The phenomenon of judicial passivism will be discussed by looking at the judgments of the Court of Justice in the area of migration and asylum: the judgments on the EU-Turkey Statement, the judgment on humanitarian visas in X & X,4 and the judgments on the Western Balkans route in A.S. and Jafari. The text will connect the judgments on the EU-Turkey Statement and in A.S. and Jafari with the February/March 2020 developments at the Greek-Turkish border and the EU leaders’ reaction thereto. It will also consider future Member States’ and CJEU’s behaviour by discussing the implications of the ECtHR’s judgment in N.D. and N.T.

Keywords: Court of Justice of the European Union, EU migration law, EU asylum law, A.S. and Jafari, X & X, EU-Turkey Statement, Greek-Turkish border crisis, N.D. and N.T.