The idea of ensuring adequate protection for refugees entered fully into the political agenda in Brussels the adoption of the “Dublin Convention I”, June 15, 1990 and, especially, following the European Council held in Tampere (Finland), in October 1999, when the leaders of the European Union agreed to establish a Common European Asylum System (CEAS) based on the full application of the Geneva Convention of 1951 on the status of refugees, supplemented by the New York Protocol of 1967; and based on the principle of non-refoulement.
With the change of century, a Commission Communication [COM (2004) 410, of June 4] advocated a program of resettlement [of refugees] at European level, which would involve all the Member States draw up, but so flexible and not mandatory. As a result of this policy initiative, the Union had to provide a legal response to approximate the provisions on the recognition and content of refugee status of its Member States through two Council Directives that set the minimum standards and requirements for recognition common procedures for granting such status: Directives 2004/83 / EC of April 29, and 2005/85 / EC of December 1; which they were repealed by the current directives 2011/95 / EU of 13 December, and 2013/32 / EU of 26 June respectively.
But these all- just like directives require each Member State as to the result to be achieved, leaving a margin of maneuver to the national authorities to be the ones who choose the form and means of achieving, as required by Art. 288 of the Treaty on the Functioning of the European Union.
In practice, the existence of that margin means that the States of the Union have to comply with these common minimum standards but, from that basis, each country is free to develop to a greater or lesser degree, according to their own circumstances . That is the reason that so incongruous situations like that have lived on the borders of Austria and Hungary when, seeing the treatment they have received refugees to cross the two nations, it seems that the governments of Vienna and Budapest are part occur the same European family.
That broad discretion that the EU recognizes its Member States is causing a great legal uncertainty because refugees Clearly the twenty national legal systems have not been estimated as much as expected if asylum seekers are forced to tempt lucky in that country that will be more responsive (Germany, for example) and not others (either East); wandering as refugees in orbit through half of Europe or simply addressing an idealized destination (Sweden) where they believe they will have more chances of success (which in Community jargon is called asylum shopping) but then end up moving to Berlin.
It is very commendable that the EU take care of refugees loyalty to their common humanitarian tradition but, beyond those minimum standards, it is time to think legislar–and with greater ambition to avoid these inequalities and changes in criteria.