Treaty on the functioning of the European Union ('TFEU') opens with the following statement: "the Union shall constitute an area of freedom security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States." This affirmation, contained in art. 67 TFEU sets the Union's shared competence in the Area of freedom security and justice ('AFSJ') on a path of caution, immediately highlighting two features of the field: (i) its far reaching fundamental rights implications; and (ii) its potential for conflicts with national legal system.This contribution turns the spotlight on a regulatory technique that amplifies both features, namely detailed (or 'micro'-)harmonisation of standards of judicial protection at the EU level.Micro-harmonisation of this kind can be limited to minimum standards, or go as far as to impose maximum standards of protection. It is a characteristic of several EU measures the asylum and migration fields of the AFSJ field and it culminates in the surprising level of procedural detail of the proposed recast of the Return Directive (Commission 2018 -'Proposed Return Directive').The following analysis will explore and problematise the consequences of the use of this regulatory technique. It will identify examples of micro-harmonisation of rules of judicial procedure in the Proposed Return Directive and other instruments in the area of migration and asylum, and then explore its implications for fundamental rights and the legal systems of the member states. Micro-harmonisation of rules on judicial protection in the Proposed Return Directive: examplesAs mentioned, the micro-harmonisation of standards of judicial protection reaches its apex in the Proposed Return Directive, which contains several examples not only of minimum, but also
Bordering processes take place through different means and are carried out by different actors. Laws and regulatory activities have a prominent place among border-drawing instruments: Their capacity to mobilise actors, allocate funds, and determine procedures and remedies make them a formidable and multifaceted bordering tool. It is therefore not surprising to notice that EU institutions have heavily relied on regulatory tools when the need to resort to new bordering processes emerged in the aftermath of the so-called migration crisis. This article delves into a particular (re-)bordering process emerging from the legislative proposals attached to the Commission’s 2020 New Pact on Migration and Asylum: the attempt to uncouple the duty to fully respect and protect fundamental rights from the reality of migrants’ presence on national territory. This objective is pursued by the proposed legislative package through non-entry fictions, capable of untangling the legal notion of “border” from its physical reality for the purpose of immigration law (only). The analysis of the relevant provisions provides the reader with a number of insights into the transformation of EU borders. First, borders (as defined by the law) are subject to a peculiar legal regime. Secondly, the legal notion of borders is increasingly independent of its physical/geographical correspondence. Thirdly, legal border lines are not linked to any place on the ground, but rather follow irregular migrants as they move, confining them to areas of less law, no matter their location.
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