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What exactly is the new Migration and Asylum Package?

The new Migration and Asylum Package builds on the European Commission’s European Agenda on Migration of 2015 and on subsequent proposals made in 2018. Since then, the negotiations on a Common European Asylum System, in particular, as a major pillar of European migration policy, have been deadlocked, owing to a lack of agreement between the EU member states.

The European Commission, under its new president Ursula von der Leyen, has now presented its Migration and Asylum Package, which contains a Communication and a number of new legislative and non-legislative proposals seeking to reorient and modernise Europe’s asylum and migration policy.

Initially, the European Commission had announced it was going to present proposals for a new package reforming European migration policy early this year. Why has the process taken so long?

The European Commission adopts an annual Work Programme which sets out its key initiatives for the year ahead. In its Work Programme for 2020, the Commission announced a Communication on a new Migration and Asylum Package and accompanying (legislative and non-legislative) proposals for the first quarter of 2020. The COVID-19 pandemic, however, delayed the process.

What is the legal nature of the Migration and Asylum Package?

The Communication and the legislative proposals are based on Articles 78 and 79 of the Treaty on the Functioning of the European Union. The reform package is an initiative of the European Commission published in the form of a Communication. As such, it has no legislative effect.

The Commission’s Communication on the new Migration and Asylum Package of 23 September 2020 is accompanied by legislative proposals and a roadmap, that is, an indicative timetable for the further steps associated with negotiating and implementing the reform package. The reform package includes five legislative proposals (regulations) and four non-legislative proposals (three recommendations and a guidance document).

The legislative proposals contained in the Migration and Asylum Package are regulations – binding legal acts which must be fully implemented by all EU member states. By contrast, EU directives are legal acts defining an objective to be reached by all EU member states. In this case, however, it is up to the individual states to adopt legal provisions to reach this objective.

The European Commission posted the relevant documents on its website on 23 September 2020.

Which subjects do the European Commission’s Communication and the accompanying proposals address?

The reform package, which consists of the legislative and non-legislative proposals newly presented by the European Commission, addresses the reform of the Common European Asylum System; the fight against organised facilitators of unauthorised entry, transit and residence and irregular migration; legal migration; resettlement and humanitarian admissions; and return and integration.

What is the Common European Asylum System and why should it be reformed?

To date, the Common European Asylum System (CEAS) consists of seven European legal acts. Its main elements include the Asylum Procedures Directive, which governs minimum standards for the access to asylum procedures and the examination of applications in the member states, and the Reception Conditions Directive, which governs the accommodation and care of asylum seekers. Another element of the CEAS is the Eurodac Regulation: the Eurodac database enables authorities to compare the fingerprints of asylum seekers in order to identify the EU member state where an asylum seeker was registered for the first time. This is relevant for the Dublin Regulation, another important element of the CEAS, which has so far governed which member state is responsible for examining an individual's application for asylum. The CEAS seeks to harmonise the asylum systems of the EU member states to make sure that asylum seekers are treated the same no matter where they apply for asylum. The Qualification Directive fleshes out the reasons for granting international protection.

The Resettlement Regulation is also part of the CEAS. It is designed to create a framework within European law for the resettlement and admission of persons from non-EU countries or stateless persons needing international protection for humanitarian reasons. Admissions will continue to be voluntary under the proposed package. Already under the existing rules, the European Asylum Support Office (EASO) has assisted the EU member states in implementing the CEAS. The European Asylum Support Office is to be expanded into a full-fledged agency for asylum (which is the subject of the EUAA Regulation).

EU asylum policy continues to face numerous challenges, such as the fact that the member states on the EU’s external borders are responsible for processing most of the asylum applications, and that migrants travel onward unlawfully to other member states, such as Germany. The system of responsibility under the Dublin Regulation has failed to correct this imbalance, also because not all member states implement all of the CEAS the same way. The events in the Moria refugee camp on the Greek island of Lesbos have thrown once again into sharp relief these shortcomings, showing that a fresh start for a crisis-proof asylum and migration system is urgently needed.

As a first step, the European Commission presented the new Migration and Asylum Package on 23 September 2020, paving the way for a fresh start in the debate over Europe’s asylum and migration policy. The package forms the basis for negotiations between EU member states, which will be started without delay in an effort to push for reforms and find a good solution for a crisis-proof system that functions well.

Has the European Commission involved the general public in the process of drafting the reform package?

Before the Commission proposes a new policy or law, it describes the initiative in a roadmap.  Roadmaps address the problem at hand and the desired objectives. They also explain the political options and the main features of the consultation strategy, and why legislative action is needed.

On 30 July 2020, the European Commission published the roadmap for the new Migration and Asylum Package on its website, kicking off a public consultation process which ended on 27 August 2020. During this period, all stakeholders and interested persons had the opportunity to give feedback on the European Commission’s plans. In total, 1,829 comments were received, which can be accessed on the Commission’s website.

Who had the final say on the content of the Migration and Asylum Package?

The responsible directorates-general of the European Commission work out draft proposals, taking into account all feedback received in the public consultation process (see above). The draft proposals are then the subject of consultations within the European Commission – a process similar to the consultations between the Federal Government ministries in the law-making process in Germany.

The Communication and the accompanying legislative and non-legislative proposals were adopted by the Commission, i.e. the 27 members of the College of Commissioners, at its meeting on 23 September 2020.

What is next for the legislative proposals to implement the Migration and Asylum Package?

The legislative proposals will be discussed by the responsible ministers of justice and home affairs of the EU member states. To be enacted, the proposals require a qualified majority in the Council of the European Union and approval by the European Parliament. In the negotiating process, the legislative proposals will be regularly revised and amended by the Council and the European Parliament.

The German Bundestag will be involved in the process in line with the Act on Cooperation between the Federal Government and the German Bundestag in Matters Concerning the European Union, which means that the Federal Government will keep the Bundestag updated on the legislative process, giving the parliament opportunities to comment. The Federal Government will feed any input by the Bundestag into the negotiations.

What is Germany’s role during its Presidency of the Council of the European Union and what are the next steps for the proposed reform package?

The member state holding the Presidency of the Council of the European Union leads the work within the Council and makes sure that decisions are taken. The Presidency of the Council of the European Union rotates every six months. Germany’s Presidency started on 1 July 2020 and will end on 31 December 2020. During this period, Germany leads and moderates the work of the Council of the European Union in meetings of EU ministers responsible for specific subject areas. This means that Federal Interior Minister Horst Seehofer is chairing the Council of Home Affairs Ministers of the European Union until the end of the year. The Presidency also leads and moderates the numerous working parties which negotiate the legislative proposals.

The Council of Home Affairs Ministers will discuss the Commission’s reform package for the first time at its online meeting on 8 October 2020. It will not be possible to finalise all the new legislative proposals during Germany’s Presidency. Nevertheless, the Federal Government will push for rapid progress. The two EU member states which will hold the Council Presidency after Germany – Portugal in the first six months of 2021 and Slovenia in the second six months of 2021 – will work closely with Germany to drive the reform process forward.

What is the difference between the newly proposed Migration and Asylum Package on the one hand and the UN’s 2018 Global Compact on Migration and Global Compact on Refugees on the other?

The documents differ as to their legal subjects (European Union vs. United Nations), their legal nature (envisaged European law vs. non-binding recommendations) and their addressees (European Union vs. the international community).