The Competence of the European Court of Justice in Assessing Member States Compliance with the Directives adopted in the field of Asylum.

Sammanfattning: The foundation of international Refugee Law was laid down in the early 1950s by the creation of UNHCR 1950 and the 1951 Convention relating to the status of refugees (1951 GC). Refugees and asylum seekers are not only protected through the relatively limited refugee law but also through general human rights instruments. The most significant Convention in Europe is the European Convention on Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR). The Member States are committed to the ECHR and the 1951 GC, which are binding instruments under international law. By transferring power from the Member States to the European Community, the power of the ECHR has decreased to the extent that it is the Member States who are bound by the Convention, not the European Community as such. There is no obligation for the European Court of Justice (ECJ) under the ECHR to apply the same principles on the interpretation of the ECHR that the European Court of Human Rights (ECtHR) is using. Since under Article 307 EC Treaty, rights and obligations arising from the ECHR shall not be effected by the provisions of the Treaty establishing the European Community, human rights obligations of EU Member States will have priority in case of a conflict. The idea of a common asylum system is relatively new within the European Community and the question is how common can the standards get with only minimum rules as guarantees. The Amsterdam Treaty moved the issue of asylum from the third pillar to the first pillar where EU institutions play a more prominent role. The fundamental change brought about by the Amsterdam Treaty is that influential legislative tools of Article 251 EC Treaty, such as regulations, directives and decisions, are available to use for harmonising EC asylum policy. Protocols to the Treaty give the UK, Ireland and Denmark possibility to ''opt out'' of participating in these measures. The ability of the UK, Ireland and Denmark to ''opt out'' means that adopted measures or interpretative decisions in the area of asylum, immigration and visas does not apply to them. There are already discussions that parallel Conventions may be entered into force, with countries that have ''opted out'', for example to extend the scope of the system of responsibility for asylum applicants to other countries. If an intergovernmental instrument would be created, the consequence would be that the interpretation of this instrument is left to national courts. Such differentiation in legislation and case law will lead to differences in judicial protection for individuals within EU. A fundamental element of EC law is the principle of supremacy. The Treaty signed in Rome on 25 March 1957 establishing the European Economic Community (EEC) did not explicitly establish the supremacy of Community law over the laws of the Member States. It was the ECJ that through its case law established the principle of supremacy. Another cornerstone of Community law that has been laid down by the ECJ is the principle of direct effect, which means that the Community constitutes a legal order that confers rights on individuals. An individual can rely on a directives direct effect against a state if the relevant provisions of the directive are unconditional, sufficiently precise and have not been adequately implemented into national law. The individual has, consequently, been made a direct participant in the European integration process, mostly, because of the principles of supremacy and direct effect. Article 63 (1c) EC Treaty obliges the Council to adopt minimum standards with respect to the qualification of third country nationals as refugees. The draft Directive on Qualification consists only of minimum standard, which means that the Member States can have more liberal rules on the definition of refugees. This is contrary to the idea of a harmonised refugee definition under the 1951 GC in Community law. It is difficult to see how agreements can be reached on the other directives without deciding whom they apply to. The main aim of the proposal is to ensure that laws and policies of the Member States are harmonised to provide a minimum level of protection to persons determined to be Convention refugees or beneficiaries of subsidiary protection. The goal of the harmonisation is to prevent refugee flows to certain Member States based solely on differing levels of protection in their legal framework The draft Directive on asylum procedure lies in the heart of the asylum system. The final Articles of the Directive are still under negotiation. The text represents improvements of procedure standards in some areas, but still allows for practices which put refugees in danger, hence, detention and safe country of origin lists that can harm the individual, the safe third country practice and accelerated procedures with insufficient legal and procedural safeguards to prevent refoulement are all allowed. Here the EU diverts from international principles such as the principle of non-refoulement, inter alia, when it comes to the extensive possibilities to derogate from the principle of suspensive effect of appeals, allowed under Articles 39(2) and (3) of the draft Directive, and in certain cases of border procedure where no minimum principles or guarantees appear to apply and access to the asylum procedure can be denied altogether. The provisions in these Directives are only minimum rules, but even minimum rules need to be interpreted in a uniform way. The Treaty of Amsterdam has accredited the ECJ to interpret and rule on the validity of Community instruments adopted in the field of asylum. The question of a uniform interpretation of the refugee definition will be one of the most important elements of the European harmonisation process where the ECJ will have an important role through its binding interpretations of Community rules. Under the EC Treaty the Court of Justice key functions are: 1. To rule at the request of the Commission, Article 226 EC Treaty. or of another Member State, Article 227 EC Treaty. on the alleged failure to fulfil an obligation under the Treaty&semic 2. to review the legality of Community acts&semic Article 230 EC Treaty. 3. to establish a failure to act by one of the institutions, Article 232 EC Treaty. 4. And to give preliminary rulings concerning the interpretation of the Treaty and the validity and interpretation of acts of the institutions of the Community. Article 234 EC Treaty. Article 230 provides a direct way for individuals to have standing. Another alternative for the individual is that to, at the national level, directly assert that the Member State has violated a Community law provision and that this provision would have given them rights that they could enforce at the national level. The national court may ask the ECJ whether the particular EC provision really gives the individual such rights. This is one way for an individual to invoke Community law in a national court and to claim that the Member State has violated EC law. In many ways the most important aspect of the work of the Court is its jurisdiction to give ''preliminary rulings'' under Article 234 EC Treaty. The direct applicability of EC law in combination with the preliminary ruling has developed into the most effective instrument for individuals to ensure that the Member States follow and apply EC law. The question that can be raised is whether the existing procedure established by the Amsterdam Treaty is adequate to provide for an efficient judicial review of an individual's rights in asylum matters. For Community law to be fully effective, it is not enough that certain rights can be relied on. It is as important that the individual relying on a Community right gets access to an effective remedy before a judge and that the court really tries his case. An individual must be able to rely on the right of access to judicial review, which is a fundamental right within the Community legal order. From the case law of the ECJ it is clear that when an individual has a right under Community law and that right might have been infringed, he or she has the right to have the case tried before a national court. It must be possible for an individual to get judicial control on any decision by a national authority, which deals with application of Community law at the national level. Indeed, this requirement of judicial control reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the ECHR. The role of evidence is a crucial part of a fair trial. The role of evidence in a procedure before the Court of Justice is to present the existence of facts from material which can be either primary or secondary. A primary fact constitutes a direct understanding of facts, and secondary means that the perception of facts is gained indirectly through a conclusion drawn from some other fact or general experience or practice. The general rule in Community law that determines the party on whom the burden of proof lies is that each party proves the fact upon which his claim is based. It is unclear what standard of proof is required by the ECJ. Clearly, the Court must be convinced of the existence of the facts in the case, but what is necessary to convince the Court? The ECJ does not seem to have decided on a specific formula for the standard of proof.