Micro-Harmonisation of the Fundamental Right to An Effective Judicial Remedy in the Proposed Return Directive and Beyond: a Dangerous Path?

Abstract

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

The Borders of the Law: Legal Fictions, Elusive Borders, Migrants’ Rights

“…This means that the person concerned might be returned to a third country before a final appellate judgment is rendered. Besides the problematic nature of this and other EU-level norms aiming at determining a maximum, rather than minimum, level of fundamental rights protection (Muir & Molinari, 2020), it is not difficult to see that this provision compromises the right to a judicial remedy and, as a consequence, places concerned migrants at risk of been returned to a place where they will be subject to inhuman or degrading treatment. The CJEU has itself recognised in Centre public d'action sociale v. Abdida (2014, para.…”