Luisa Marin

Can a part of the territory of the European Union be turned into a "non-territory" where the fundamental rights of the migrants and asylum seekers to appeal and to remain in their destination country while their applications are examined, and the right for an individual assessment in line with international standards, are as it were contracted, owing to the very attributes of this "non-territory"? This article argues that the Pact on Migration and Asylum, in particular with the pre-entry screening and the new border procedures, subtly develops and consolidates policies and rules aimed at "deterritorializing" the territory of the EU while reinforcing its practices of externalization. Moreover, this unprecedented deterritorializationexternalization combination, in order to produce tangible policy results, presupposes the cooperation of third countries on expulsion and readmission, as well as more solidarity among the Member States. Having critically examined these two dimensions, the authors conclude that the new measures contained in the Pact might be conducive to the enhanced precarization of the legal positions of migrants and asylum seekers and to potential tensions with strategic third countries.

ABSTRACT: Solidarity is a core value of European integration which is highly invoked at the political level as the ‘binder’ to fix the several crises the EU has faced. It has been as well put forward as a core pillar of the Pact on Migration and Asylum. Despite the narrative of the Commission stressing the novelty of the Pact, yet the Pact has been criticized, by scholars and practitioners alike, as being short-sighted on solidarity. The aim of this article is to contribute to the current debate on the Pact by demonstrating that by being modest on the implementation of the principle of solidarity, the Commission is also not fulfilling the principle of subsidiarity. The article proceeds by first unpacking the principle of subsidiarity, particularly its side of requiring a European added value of legislative proposals, which has been recently highlighted. It develops then an analysis on the meaning of the principle of solidarity, which should have a corrective dimension in the sense of fairly redistributing the effort between Member States. It emerges that, in today’s asylum policy, subsidiarity and solidarity are interlocked, so that requiring a “European added value” of the new rules calls for increasing the degree of solidarity. In the second part, the article analyses the Commission’s proposals on the screening, the new border procedures, the asylum management, and the return sponsorship mechanism, to show where the low degree of solidarity that they enshrine corresponds to a failure of the positive dimension of the subsidiarity test.

This Insight assesses the impact of the COVID-19 pandemic on the external borders of the EU. It first presents measures enacting the EU travel ban and also their implications on the European asylum system, as implemented by Member States' administrations. In this context, it discusses some of the challenges which emerge: these concern mainly the soft law instruments deployed and their relation with the EU legal order, and the complex achievement of solidarity within the EU. KEYWORDS: COVID-19 and the EU-EU travel ban-closure of external borders-asylum-seekers-soft law-solidarity. I. The COVID-19 emergency, borders and asylum-seekers The outbreak of COVID-19 pandemic has tested the responsiveness of the European Union as a governance system on many fronts. 1 This Insight is focussing on the implications of the "closure of the external borders" against the background of the European principle of solidarity, with specific attention to the way EU and Member States have interacted on borders' closure and its impact on asylum-seekers, during the pandemic. As known, the external border of the EU is a composite entity because it results from the juxtaposition of the external borders of the single Member States. With Schengen, a Member State's function to control (its) external borders acquired a double significance: the state controls its borders "for itself" and also in a process of delegation, since other Member States might be affected by another state (good or bad) behaviour. There is an implicit process of delegation between states, which presupposes mutual

The aim of this article is to investigate whether the cooperation of Frontex with third countries in information sharing is in compliance with EU's constitutional normative rules and values. Since more than a decade, border control and surveillance have been developed as policies instrumental to migration control. The shift towards risk management in many areas of public governance has implied that EU's action at the external borders is built upon a combination of policies of securitization of migration and externalization of border management. Against this theoretical background, the article focuses on the external competences or powers of Frontex, mapping in particular practices of information sharing with third country authorities, which are functional to risk analysis, one of the core tasks of Frontex. It analyses working arrangements, intelligence sharing communities and cooperation taking place within the context of technical assistance. The article further discusses the legal challenges these types of cooperation brings to the EU, as a governance system based on the rule of law. These are indicated in transparency and accountability, respect for fundamental rights and privacy challenges.

What is left of the principle of solidarity in the context of EU asylum law?
The aim of this article is to analyze the follow-up of the solidarity crisis the EU has experienced with the failure of relocation schemes. Relocation schemes have tried to alleviate the consequences of the so-called migration crisis of 2015-2016, but did not prove to be successful, because of the low relocation rates, in addition to open contestation by states of the Visegrad group. 
Against the background of the stalemate of the reform of the Dublin Regulation, the article analyzes ‘measures’ adopted after the failure of relocation schemes, focusing in particular on administrative arrangements to counter secondary movements and ‘ad hoc’ temporary disembarkation schemes. Both measures are aiming at fixing longstanding questions (e.g., limiting secondary movements, providing safe disembarkation for irregular migrants): in the first case, States proceed at bilateral level with arrangements creating fast-track returns and stopping secondary movements; in the second case, the EU is trying to support states’ arrangements for disembarkation of migrants after SAR operations. 
The article shows that, while reforms of legislative instruments are not progressing, Member States and, to some extent, also EU institutions are going down the lane of ‘operational and informal arrangements’, which are ‘bricolage solutions’ to counterbalance undesired effects of the status quo, while waiting for structural solutions that are necessary but not in sight.
The article discusses the dangers of such a trend toward informal operational solutions, as a challenge to the EU as a system of governance based on the rule of law.

The progressive emergence of EU policies on migration, asylum and visa is based upon the Schengen integration process, which has conceptualized the EU’s common external border as a juxtaposition of the MS ones. Upon this premise, the EU has developed the Common European Asylum System (C.E.A.S.) with several instruments, without putting solidarity at the core of the system, but rather holding onto the ‘chacun pour soi’ logic, which implies that states geographically bordering with the Global South are also the ones that deal with the irregular migration phenomenon first. The aim of this article is to take stock of the attempts to operationalize solidarity in the last few years, after the so-called migration crisis of 2015-2016, which soon turned into a political battlefield. The article discusses this difficult path of solidarity, together with the stalemate of the reform of the Dublin system, and the challenges it represents for the EU integration process, since states increasingly look for ad hoc or bricolage solutions besides EU law.

Abstract: This article aims at inquiring on the relation between mutual trust and fundamental rights in the functioning of mutual recognition instruments with special reference to EU constitutionalism, suggesting the emergence of and the need to frame a ‘temperate’ vision of mutual trust. After the introduction highlighting the focal moments of the success of mutual trust in European integration process (I), the article discusses the emergence of a more temperate interpretation of mutual trust by the CJEU (II). It discusses then these developments in the constitutional framework of the EU, suggesting with a three-tier argumentation that only a temperate declination of mutual trust can fit harmoniously the composite constitutional framework of the EU, besides guaranteeing the enforcement of the mutual recognition instruments it aims to support (III), before concluding (IV).

This paper deals with policing the external borders of the European Union (EU), an issue that recently has witnessed significant developments in connection with the externalisation of the fight against undocumented migration. After a presentation of the conceptual elements underpinning the research (1), the paper presents the EU agency Frontex and its origin, tasks and responsibilities (2). The next section will focus on Frontex-led operations carried out at the southern maritime border (3), in order to critically look at issues arising in this context (4), with reference to their legal framework. The results of my analysis will be discussed in connection with the externalisation of migration policies, arguing that the EU and Member States (MSs) have engaged into a multiple exercise of venue shopping, to conclude with a (hopeful) outlook on the future, with the Lisbon Treaty providing new possibilities to fix current problems (5).

The article examines the European Arrest Warrant (EAW) and the issues which have emerged in its fi rst 10 years of practice. After a first section explaining the choice for the principle of mutual recognition as expression of eff ectiveness and subsidiarity in judicial cooperation in criminal matters, the articles discusses questions such as (ab)uses of the EAW as a mutual legal assistance instrument, the question of petty crimes and the proportionality test, the relation between mutual trust, fundamental rights and judicial review, and, lastly, nationality and residence clauses. It concludes on the importance of addressing these issues in the appropriate legal setting, be it legislative or judicial, with the aim of strengthening the eff ectiveness and legitimacy of the EAW.

Removing illegal or harmful material from the internet has been pursued for more than two decades. The advent of Web 2.0, with the prominent increase and diffusion of user-generated content, amplifies the necessity for technical and legal frameworks enabling the removal of illegal material from the network. This study deals with different levels and methods of Internet ‘cleansing’ measures, comparing government regulated and Internet service provider based removals of illegal Internet content. The paper aims at putting the regulatory option of internet blocking measures into the broader perspective of the legal framework regulating the (exemption from) liability of Intermediary Service Providers (ISPs) for user-generated contents. In addition, the paper suggests proposals on which regulatory options can better ensure the respect of freedoms and the protection of rights. The paper introduces several significant cases of blocking online copyright infringing materials. Copyright relate...

Next to the rule of law ‘crises’ within Member States, this article discusses the emergence of a new facet of the rule of law crisis at the external borders of the EU. This crisis, internal to the European administration, sees the EU border agency Frontex as its epicentre. This article illustrates the multiple facets of this crisis which concerns Frontex’ functioning and activities, discussing a form of ‘agency capture’ occurred under the mandate of the former Executive Director, and a legal framework ensuring limited monitoring and transparency on operations. The article delves into the constitutional meaning of the rule of law for an agency such as Frontex, both for its significance on relations between authorities and individuals and for the interplay between the rule of law and accountability. The article concludes by calling for a rethink of the accountability instruments in place, in order to effectively constrain the exercise of discretion by agencies.

The main purpose of this chapter is to analyse and assess how the EU has reacted to the pandemic, considering that no Treaty reform has been undertaken and that a pivotal role has been played by the principle of solidarity. Solidarity can assume a special role in the governance of crises. Secondly, it is precisely through the prism of solidarity that I will look at the COVID-19 crisis as a governance crisis and at its meaning for European integration. This chapter will focus on the role played by the principle of solidarity, which is one of the vectors of flexibility of the European legal system, and on how it is used to mitigate the negative effects that competing sovereignties display on the functioning of the EU. Solidarity is invoked as the principle to fix integration fractures, precisely like in the Japanese kintsugi technique, where a gold fluid is used to put together the pieces of broken ceramics; solidarity is supposed to reconcile the EU and its Member States when conflicts emerge in a traumatic manner and, consequently, to boost the legitimacy of the EU, in the sense of capacity to deliver policy reforms and public goods when needed. Solidarity is also meant to supplement the capacity of the EU to deliver to citizens’ expectations irrespective of the limited or sectoral (depending on the context considered) competences it has been vested with – an expression of the incompleteness of the integration process, which finds expression in its similarly incomplete constitution.

The Pact on Migration and Asylum of September 2020, presented as innovative, consolidates policies in place since time (externalization) and projects them within the Area of Freedom, Security and Justice, through the proposals for pre-entry screening, amended border procedures, and with the proposal on the return sponsorship: these measures will strengthen the borders in their function of containing and controlling the migratory phenomenon, however consolidating the administrative burden that already insists on these countries, without having resolved the new ‘formula’ of inter-state solidarity. These developments present problematic aspects due to the role given to countries most exposed to the phenomenon of migration, as well as to the uncertain prospects of cooperation with third countries, but above all due to the possible consequences of the precarization of the rights of migrants and protection-seekers. In conclusion, the post underlines the limited ‘European added value’ of the measures: the European added value constitutes one of the paradigms through which the respect and the implementation of the subsidiarity principle is assessed.

The EU's approach to the so-called 'refugee crises', and more in general to the governance of irregular migration, is one of most politically debated and challenging domains of the EU. This chapter deals with EU's response to the crisis on the basis of the EU's Agenda on Migration of 13 May 2015 and its implementation. It will map the evolutions of the different policies in questions and their main legal innovations: which ideas and solutions have been developed in order to manage a phenomenon whose morphology has radically changed in the past couple of years? If indeed the arrivals of migrants were so far confined to the Southern European States (mainly Italy and Greece), the reality of many Syrians fleeing their torn-war country and the emergence of the Balcanic route have brought the phenomenon at the heart of Europe. The EU's response is centered around several axes: first of all, the EU acknowledges that some of the migrants landing the European shores are persons fleeing persecution and, as such, in need of international protection; another component of the EU's approach is concerned with strengthening border surveillance; a third one consists in externalizing migration control policies to Third Countries (TC): the EU-Turkey Agreement of 2015 is a prominent example of this trend. This chapter deals with some of the policies concerned with this societal challenge: first, it focuses on the system of border management and its reforms (2), looking-secondly-as well at the militarization of border management (3); third, it discusses the main reforms of the asylum system (4), before concluding on questions on how to move forward (5).

This chapter focuses on the deployment of drone technology (DT) in border surveillance and addresses some of its implications for the security-privacy dilemma. In the last few years, we have witnessed and we are witnessing the deployment of all sorts of technological equipment in the different policies of the AFSJ. SIS, VIS, EURODAC, and most recently, ABC (Automated Border Controls) Smart Borders (EES and RTP), EUROSUR. The literature has captured it with images of the EU as dominated by " greedy information technology " (Besters, 2010), or, looking at the impact of those surveillance systems, of cyber-fortress Europe (Guild, 2008) and high-tech fortress Europe (Marin, 2011). The deployment of DT in the domain of border surveillance seems part of this never-ending process. In it the focus lies on using all the technologies available, in order to 'defend' borders from the 'threat' represented by migration, without an open public debate on desirability, costs and benefits. This chapter will focus on the deployment of drone technology (DT) in border surveillance. The aim is to explore how it affects the relation between security on the one side, and privacy and data protection on the other. Having introduced the theory of techno-securitization (1), the chapter then presents and analyses the impact of drone technology on the techno-securitization of borders (2). It starts by examining how the metamorphosis of the drone from a battlefield tool to a civilian asset is taking place (2.1), and then it focuses on the border surveillance network EUROSUR (2.2) and on actual cases of deployment of drones in border surveillance operations (2.3). The analysis of the current practices aims at providing information on the deployment of drones and, secondly, at elaborating on the impact of DT on privacy and data protection obligations (3). What challenges for privacy arise from the current regulation on surveillance at the borders (3.1)? Is the legal framework equipped for those challenges (3.2.)? The chapter concludes by recalling the challenges posed by the techno-securitization of its borders for privacy and data protection (4).