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The Europeanization of Refugee Policies: Normative

Challenges and Institutional Legacies

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Journal of Common Market Studies Vol. 39, No. 5
December 2001 pp. 851–74

The Europeanization of Refugee Policies:

Normative Challenges and
Institutional Legacies

SANDRA LAVENEX
University of Bern

Abstract
Under the Treaty of Amsterdam, and in response to the experience of the
Kosovo refugee crisis, the establishment of a Common European Asylum
System has become a priority in the European Union. This project constitutes
a major departure from the former transgovernmental mode of co-operation
in asylum matters and addresses a normative question embedded in national
constitutions and international notions of human rights. In this article I
examine the institutional and normative challenges facing the integration of
this highly political policy field by highlighting the contradictions inherent
in domestic reforms and the Europeanization of refugee policy.

Introduction
At the Tampere European Council in October 1999, the EU heads of state and
government called for the establishment of a ‘common European asylum
system’. Fourteen months later, the European Council in Nice voted against
one of the basic requirements for establishing such a system, that is, the
introduction of qualified majority voting (QMV) in the Council of Ministers.
For many observers of co-operation in justice and home affairs (JHA), this
outcome was less surprising than the wish expressed in the Tampere proceed-
ings to move beyond loose transgovernmental co-operation and to subject

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852 SANDRA LAVENEX

domestic asylum provisions to supranational law. The outcome of the Treaty

of Nice reveals the limitations of this endeavour, and highlights fundamental
paradoxes intrinsic to the Europeanization of refugee policies.
These paradoxes emerge along two dimensions: the tension between state
sovereignty and supranational governance, and the tension between internal
security considerations and human rights’ issues. Much of the European
integration literature has tended to focus on the first, more vertical, dimension
of levels of governance, whereas the process of Europeanization also consists
of a more substantive dimension which concerns the contents of governance.
The study of this substantive dimension of Europeanization is particularly
crucial in the field of refugee policy which in contrast, for example, to
economic migration, cannot be justified on the basis of material interests, but
is strictly normative in character. Refugee protection in liberal democracies is
a ‘republican’ notion which touches the core of state sovereignty and is derived
from universal human rights.
This article demonstrates how, apart from changing the locus of political
activity, an increasingly political European Union has ideational implications
for domestic (constitutional principles) and international (refugee regime)
normative contexts, and that it is the combination of this substantive dimension
with the vertical organization of governance which determines the EU’s
institutional capacity to establish a common European asylum system. By
adopting a multi-level perspective on the process of Europeanization, I argue
that the realization of this goal is constrained by the legacies of transgovern-
mental modes of co-operation and the absence of a shared, supportive policy
frame. Thus, the degree to which a common European refugee policy is likely
to be realized depends not only on institutional reforms in the sense of a
reaffirmation of the ‘Community method’, but also on the Union’s ability to
develop a ‘community of values’, and the degree to which new normative
frameworks, such as the Charter of Fundamental Rights, become a point of
reference for political actors and the courts.
The analysis is structured as follows. After a presentation of the theoretical
framework in Section I, Section II analyses the framing of European refugee
policies, and Section III scrutinizes the impact of Europeanization on the
Member States. The question of how far the Treaties of Amsterdam and Nice
will foster a common European asylum system is discussed in Section IV. The
article concludes with some reflections on the implications of these develop-
ments for the broader process of political unification in Europe.

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 THE EUROPEANIZATION OF REFUGEE POLICIES 853

I. Europeanization as an Institutional and Ideational Process

In this analysis, the capacity of the EU to establish a common refugee policy
is linked with newer approaches to European integration that investigate the
institutional conditions for problem-solving or ‘governance’ within the EU
(Jachtenfuchs and Kohler-Koch, 1996; Kohler-Koch and Eising, 1999; Grande
and Jachtenfuchs, 2000). These approaches shift the focus of analysis beyond
the classic concern of integration theories with general causes and goals of
European integration at the ‘super-systemic level’ to the institutional precon-
ditions of political action at the ‘systemic level’ of the governing institutions
(Peterson and Bomberg, 1999). The EU is thus conceived as a dynamic multi-
level system, where the development of supranational institutions goes hand-
in-hand with the differential adaptation of domestic structures in the Member
States (Green Cowles et al., 2001; Knill and Lehmkuhl, 2002).
Although heterogeneous, these approaches converge in their institutional-
ist perspective and in the underlying assumption that the institutional context
has an impact on governance activity including the definition of the underlying
problem, the choice of problem-solving approaches, the constellation of
conflicts, and the substance of policies adopted (Jachtenfuchs, 2000). Without
being deterministic, these approaches assume that institutional contexts con-
dition the choice of political action and thereby exert a strong influence on the
capacity to realize specific goals. Despite agreement on the substantive impact
of institutions, empirical analyses conceive of the multi-level institutional
context in predominantly organizational terms, referring to the vertical and
horizontal entanglement of tasks, powers, resources, and responsibilities
across and within governmental arenas. The ideational impact of Europeani-
zation on the content of public policies has received less attention, but is
important if we accept that Europeanization refers not only to the institution-
alization of action, but also to the institutionalization of meaning (March and
Olsen, 1989; Olsen, 2000). The more the European project evolves from a
limited project of economic interaction and exchange to a political union and
a ‘community of values’, the more the analysis of ideational factors becomes
vital.

The Institutionalization of Action: Community Method v. Intensive

Transgovernmentalism
In JHA the organizational dimension of Europeanization refers primarily to
how far supranational elements are introduced into this formerly intergovern-
mental area of co-operation. Although recent studies indicate the coexistence
of a number of different methods of policy-making, the traditional framework
of co-operation within the EC has specific features which may be referred to
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as the ‘Community method’ of integration (Wallace, 2000, pp. 28–9). This

method is based on a strong agenda-setting role for the Commission, the right
of the European Parliament (EP) to amend proposals, decision-taking by QMV
in the Council of Ministers, in some cases co-decision by the EP, and judicial
oversight by the ECJ. With the Maastricht Treaty and the introduction of
sensitive issues of state sovereignty in the EU framework, a new mode of
policy-making has emerged which Helen Wallace refers to as ‘intensive
transgovernmentalism’. This mode is characteristic of most parts of policy-
making in economic and monetary union (EMU), the common foreign and
security policy (CFSP) and justice and home affairs (JHA) and depends
‘mainly on interaction between the relevant national policy-makers, and with
relatively little involvement by the EU institutions’ (Wallace, 2000, p. 33). In
contrast to intergovernmentalism, the term transgovernmental refers to the
activities of governmental actors below the level of chiefs of government
(COG), such as ministerial officials, law-enforcement agencies, and other
bureaucratic actors. These officials act with a certain degree of autonomy vis-
à-vis their chief executives and are free to develop their own policy agenda
(Keohane and Nye, 1974). In the EU context, transgovernmental co-operation
may occur both within and outside the framework of the Treaty. In any case,
the role of the Commission is limited and the EP and ECJ normally have no
powers in these areas. This implies that – unlike supranational EC legislation
– common policies developed in transgovernmental relations will take the
form of either international treaties or legally non-binding agreements. Al-
though the Treaty of Amsterdam has shifted asylum and immigration from the
intergovernmental third pillar to the Community pillar, this analysis shows that
intensive transgovernmentalism still prevails at several levels, thus limiting
the scope for defining a common European asylum system.

The Institutionalization of Meaning: The Ideational Impact of

Europeanization
Even in the areas falling under the Community method, multi-level approaches
have often stressed the existence of heterogeneous actors at the sub-national,
national and European level, where coherence of action is provided by shared
principles and concepts in dealing with specific subject matters (Eising and
Kohler-Koch, 1999, p. 276). Thus, the emergence of European governance in
a specific issue area goes hand-in-hand with the development of shared policy
frames which structure the interpretation of underlying problems and help
direct action (Rein and Schön, 1991, p. 264). These policy frames may be
regarded as the ideational basis of European governance, as they integrate
shared factual knowledge on the causes and consequences of the underlying

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 THE EUROPEANIZATION OF REFUGEE POLICIES 855

social problems and normative value-orientations with which to evaluate the

desirability of political action.
Given the heterogeneity and multiplicity of the political arenas involved in
EU policy-making and the openness of the integration process, European
integration is a most interesting area for the analysis of framing processes
(Kohler-Koch, 2000). The analysis of framing processes is particularly rele-
vant in policy fields characterized by a high degree of political controversy
over the desirability of European legislation and the nature of the underlying
social problem. In such circumstances, European integration not only trans-
forms the locus of political deliberation but may also redefine the way in which
political actors perceive and interpret the underlying social problem. Refugee
policies are a paradigmatic example of such a policy field, where supranational
and transgovernmental actors disagree not only as to the scope of European-
ization, but also about the factual representation of the refugee problem and the
normative orientation of a common policy. With the current ‘crisis’ of the post-
war refugee regime, this disagreement arises over precisely who constitutes a
refugee deserving protection, what kind of protection should be offered, and
by whom. An understanding of the competing frames in European asylum
discourse allows us to highlight the cognitive and normative challenges
implied in contemporary ‘policy controversies’ (Rein and Schön, 1991).
Coupled with the continuity of transgovernmental co-operation, Europeaniza-
tion has tended to favour the implementation of a ‘securitarian’, state-centred
policy frame which, paradoxically, poses severe constraints on the EU’s
capacity to develop a common refugee policy. By privileging the sovereignty
of the Member States vis-à-vis both European integration and refugee protec-
tion, this securitarian policy frame has impeded a substantive harmonization
of national asylum policies. Notwithstanding this limited impact on material
asylum law, the European asylum frame has affected traditional refugee
regimes by facilitating the limitation of formerly liberal asylum systems in the
main refugee-receiving countries, mobilizing the traditional transit countries
of southern and eastern Europe, and shifting the emphasis of international co-
operation in refugee policy away from the internal aspect of refugee reception
towards the external and – from the point of view of sovereignty – less sensitive
aspect of flight prevention in the region of origin.

Ideas and Institutions in the Process of Europeanization

From an institutionalist perspective, the organizational and ideational dimen-
sions of Europeanization are interdependent (March and Olsen, 1989). Inten-
sive transgovernmentalism enables the advocates of specific ideas to enter the
policy-making process, whilst excluding others. At the same time, this organ-
izational context may strengthen the position of one particular advocacy
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coalition to the detriment of another, thereby favouring the implementation of

its promoted policy frame. In addition to structuring the impact of advocacy
coalitions, however, Europeanization may also shape the range of available
framing devices by delimiting the range of viable cognitive and normative
orientations. From this perspective, the EU acquis has a constitutive impact in
the following ways: (i) by acting as a source of framing devices; (ii) by
excluding specific ideas by depriving them of a constitutional basis; and (iii)
by increasing the resonance of particular devices whilst weakening others.
Once institutionalized in the EU acquis, policy frames become independent of
underlying power relations and continue to shape the course of political action
even after the advocacy coalitions that facilitated their emergence have
changed. The degree to which Europeanization leads to convergent develop-
ments in the Member States is, however, contingent on the scope of the
European policy frame, the domestic configuration of the asylum problem, and
differing national institutional and normative contexts.

II. The Framing of Asylum Co-operation

At their meeting in Tampere in October 1999, the European Council stressed
the need to establish a common European asylum system as part of an ‘area of
freedom, security and justice’ firmly rooted in a ‘shared commitment to ...
human rights’ and based on ‘the full and inclusive application of the Geneva
Convention’ (European Council, 1999). With these conclusions, the European
Council drew the consequences from an embarrassing European response to
the Kosovo refugee crisis and, faced with the critique of a ‘fortress Europe’,
recognized the need for a shared commitment to humanitarian values. They
also moved beyond the original pragmatic credo of transgovernmental co-
operation that ‘harmonization has not been regarded as an end in itself but as
a means of reorienting policies where such action makes for efficiency and
speed of intervention’ (Ministers Responsible for Immigration, 1991, p. 3).1

The Emergence of Transgovernmental Co-operation

The post-war system of refugee protection was based on a clearly separated
dual structure: the codification of general principles and norms at the interna-
tional level; and the individual commitment of sovereign states to grant
protection at the national level. All EU Member States codified the right of
asylum in domestic laws, and some even enshrined it in their national
1
In this article, the term ‘asylum-seekers’ refers to persons seeking asylum under the 1951 Geneva
Convention and national asylum laws, while the term ‘refugees’ refers to the broader group of forced
migrants who may not necessarily lodge an asylum application in a Member State (e.g. de facto refugees
or persons granted protection within their area of origin).
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 THE EUROPEANIZATION OF REFUGEE POLICIES 857

constitutions. Although Germany was alone in implementing an explicit

subjective right to asylum, the extent of protection afforded by the western
European countries was comparable in practice (Oellers-Frahm and Zimmer-
mann, 1995). The policy frame embedded in the Geneva Convention (GC) on
the status of refugees and its 1967 New York protocol, together with other key
international treaties, is based on the notion of asylum as a redress for
violations of human rights. It incorporates the principles of international
solidarity and co-operation and the norm of non-refoulement, which prohibits
the sending back of persons in need of protection (Art. 33 GC and Art. 3 ECHR)
(Goodwin-Gill, 1996).
In contrast to the human rights’ context dominant in the constitutive phase
of the post-war refugee regime, the emergence of transgovernmental co-
operation among EU Member States was the result of three developments: the
politicization of asylum in influential Member States, most notably
Germany;2 the failure to address this emerging dissatisfaction within interna-
tional organizations such as the UNHCR and the Council of Europe; and the
subsequent linkage of these domestic concerns with the planned abolition of
internal border controls within the EU. As a consequence, co-operation in
asylum and other matters, referred to as JHA – including immigration and a
range of criminal activities – was framed in terms of formulating ‘compensa-
tory’ measures to safeguard internal security in a border-free Europe (Geddes,
2000).
This securitarian approach (Bigo, 1996; Huysmans, 2000; Kostakopoulou,
2000) was reinforced at the end of the 1980s when the rising number of
refugees and asylum-seekers was increasingly perceived as a threat to national
stability within the individual Member States and to security within Europe in
general. At the same time, the collapse of communism neutralized the cold war
ideology which had functioned as a powerful normative backbone of the post-
war refugee regime (Loescher, 1993). Notwithstanding these external devel-
opments, most parts of the second Schengen agreement of 1990, which
established the key components of today’s refugee policy, had already been
established by 1988, that is, well before the general perception of the existence
of a global refugee ‘crisis’.3

2 In Germany attempts to limit the constitutional asylum right of Art. 16 of the Basic Law were from the
very beginning linked with the project for the free movement of persons within the EU. This is documented
in a report by the Standing Conference of Interior Ministries of the Länder from 1984 which stated that
the abolition of internal border controls would make a revision of the constitutional asylum right necessary
(Bericht der Ständigen Innenministerkonferenz der Länder of 27.11.1984). In 1985, the CSU Federal
Minister of the Interior, Friedrich Zimmermann, managed to introduce a footnote into the coalition
agreement of the new Christian-Liberal government, designed to establish a consensus for an amendment
of Art. 16 in the context of the removal of internal border controls.
3 See Second Draft Schengen Agreement of 1988, cited in Hailbronner (1989).

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Towards a Securitarian Asylum Frame

Although the impetus for co-operation came from JHA officials within the
Member States, the absence of countervailing humanitarian provisions in the
EU treaties favoured the securitarian approach. In contrast to the UNHCR and
the Council of Europe, which were created with a mandate to protect refugees
and human rights in general, the EC was set up as a primarily economic
construct and its founding treaties contained no provisions regarding the
individual rights of third-country nationals not resident in one of the Member
States.4 Whilst the EC acquis thus delimited the range of available framing
devices, the emergence of a securitarian frame was strongly promoted by the
organizational set-up of co-operation, which afforded particular influence to
those advocating restrictive policies. The ‘first generation’ of transgovern-
mental co-operation prior to the Maastricht Treaty was characterized by the
dominance of main refugee-receiving countries and the exclusive involvement
of transgovernmental JHA officials. Table 1 illustrates the key differences
between the Member States and selected non-Member States with regard to the
numbers of asylum-seekers.
The dominance of the main refugee-receiving countries was a consequence
of ‘closer co-operation’ in the Schengen group, originally composed of the
Benelux countries, France and Germany, which was able to transpose its
agenda on to the Ad Hoc Group Immigration which included the JHA officials
of all Member States. These transgovernmental groups operated with a high
degree of autonomy and secrecy and developed their own agenda in JHA,
relatively independent of, and sometimes even contrary to, the activities of the
COG. This independence was supported by the prior co-operation between
these officials, especially within Trevi (Monar, 2001). The development of an
own agenda is most salient in the Schengen group. While the first Schengen
agreement of 1985, concluded on the initiative of German Chancellor Helmut
Kohl and the French President François Mitterrand, focused on the abolition
of internal border controls and contained no mention of asylum-seekers or
refugees, in the second Schengen agreement of 1990 only one of the 142
articles deals with the introduction of free movement, whereas 36 articles
relate to immigration and asylum. After setting the guidelines for future EU co-
operation, the Schengen group expanded to include all Member States with the
exception of the UK and Ireland. The Maastricht Treaty formalized transgov-
ernmental co-operation in its third pillar, and the Schengen group continued to
operate as a form of ‘closer co-operation’ outside the EU framework until the
EU officially incorporated its acquis in the Treaty of Amsterdam. Throughout
4 In fact, earlier efforts to adopt restrictive instruments such as the safe third country rule in the framework

of the Council of Europe failed due to both the human rights orientation of this organization and its wider,
heterogeneous composition, including both receiving and transit countries (Lavenex, 2001, pp. 76–82).
© Blackwell Publishers Ltd 2001
© Blackwell Publishers Ltd 2001 Table 1: Asylum Applications in Europe, 1986–2000
Country 1986 1988 1990 1992 1994 1996 1998 2000

Austria 8,640 15,790 22,790 16,240 5,080 6,990 13,810 18,280

Belgium 7,640 5,080 12,960 17,650 14,350 12,430 21,960 42,690
Czech Rep. – – 1,790 820 1' 190 2,160 4,080 8,770

THE EUROPEANIZATION OF REFUGEE POLICIES

Denmark 9,300 5,280 18,990 19,070 6,990 6,390 6,080 10,080
Finland 20 60 2,740 3,630 840 710 1,270 3,320
France 26,290 34,350 54,810 28,870 25,960 17,410 22,370 38,590
Germany 99,650 103,080 193,060 438,190 127,210 116,370 98,640 78,760
Greece 4,230 8,420 6,170 1,850 1,300 1,640 2,950 3,000
Hungary – – 3,970 860 440 670 7,370 7,800
Ireland – – – 40 360 1,180 4,630 10,920
Italy 6,480 1,240 4,830 6,040 1,790 680 11,120 18,000
Netherlands 5,640 7,490 21,210 20,350 52,570 22,170 45,220 43,890
Norway 830 6,600 3,960 5,240 3,380 1,780 8,370 10,320
Poland – – – 590 600 3,210 3,370 4,290
Portugal 70 330 80 690 770 270 370 200
Slovenia – – – – – 40 500 9,240
Spain 2,280 4,520 8,650 11,710 11,990 4,730 6,650 7,040
Sweden 14,600 19,600 29,420 84,020 18,640 5,750 12,840 16,370
Switzerland 8,550 16,730 35,840 17,960 16,130 18,000 41,300 17,660
UK 4,270 4,000 26,210 24,610 32,830 29,640 46,020 97,860

Source: UNHCR (2001). For a critical analysis of asylum statistics, see Crisp (1999).

859
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Table 2: Restrictive Elements in the EU Asylum acquis

Stage of the Asylum Procedure Measures

1. Limitation of access to EU • Visa policies

territory
2. Limitation of access to asylum
procedures
3. Downgrading of procedural
safeguards
4. Protection outside the framework
of the Geneva Convention
5. Enhancement of return facilities
• Carrier sanctions
• ‘Reception in the region’
• ‘First host country’ rule in the Schengen and
Dublin conventions
• ‘Safe third country’ rule
• Rules on ‘manifestly unfounded’ asylum
claims
• ‘Safe country of origin’ rule
• ‘Temporary protection’
• ‘Reception in the region’
• Readmission agreements

this process, the linkage of the asylum question with the foundational norm of
free movement in the EU increased the resonance of the securitarian asylum
frame and justified limitations on the post-war refugee regime in the name of
European integration.
A comparison of the policy frame of transgovernmental co-operation with
the international refugee regime reveals that its driving principles are not
universal human rights, nor the desire to establish a common asylum policy at
the European level, but that asylum was framed as a side issue of the single
market project, with co-operation occurring only insofar as it was deemed
necessary to safeguard internal security. Given the lead taken by the major
refugee-receiving countries, in particular Germany, co-operation focused on
reducing the number of (bogus) asylum-seekers in Europe. Indeed, an analysis
of the EU acquis in the area of refugee policy – including measures adopted in
the framework of legally binding intergovernmental agreements such as the
Schengen and Dublin conventions5 and ‘soft law’ adopted under the third
pillar of the Maastricht Treaty6 – reveals an emphasis on restrictive elements
(see Table 2).

III. The Domestic Impact of Europeanization

The securitarian frame described above has been firmly implemented in
domestic immigration and refugee policies across the Member States and
5 The 1990 Dublin convention determining the Member State responsible for examining an asylum claim

contains the asylum provisions of the Schengen agreement. With its entry into force in 1997, the parallel
provisions of the Schengen agreement became obsolete.
6 For a comprehensive analysis of and commentary on the EU asylum and immigration acquis, see

Hailbronner (2000).
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 THE EUROPEANIZATION OF REFUGEE POLICIES 861

hampers the prospects for deeper integration. Immediately after signing the
Schengen and Dublin agreements, the participating countries realized that the
system of responsibility allocation based on the principle of ‘first host country’
would require further harmonization (Ministers Responsible for Immigration,
1991), but despite this neither the definition of who constitutes a refugee nor
the asylum procedures have been subsequently harmonized. This lack of
commitment to Europeanization is reflected not only in the limited scope of co-
operation, the use of soft law, and the disparate responses to the Kosovo
refugee crisis (van Selm, 2000a), but also in the absence of an effective co-
ordination of domestic legislative reforms.
A comparative view of the development of asylum policies in the Member
States reveals convergence with regard to the limitation of access to (full)
asylum procedures and the use of subsidiary forms of ‘temporary’ protection,
whereas the concrete implementation of these measures varies significantly.
The institutional framework for examining asylum claims, the substantive
criteria employed, and the status accorded to refugees are still highly divergent
(European Parliament, 2000; Council, 2000a).7 Although all the Member
States, with the exception of Sweden, have introduced ‘accelerated’ asylum
procedures, these procedures vary with regard to the categories of persons
covered, their scope of application, and the opportunity for appeal against
negative decisions (Council, 2000b).
This lack of consensus as to precisely who constitutes a refugee and what
form of protection to grant not only obstructs the system of exclusive respon-
sibility allocation under the Schengen and Dublin conventions, which presup-
poses the interchangeability of asylum systems, but also impedes the establish-
ment of a common European asylum system. Instead of promoting integration,
Europeanization has had two effects on the Member States: it has helped limit
liberal regimes in traditional refugee-receiving countries, and has led to a
redistribution of asylum-seekers ‘by default’, thereby limiting the scope for
solidarity and co-operation.

Asylum Reforms in the Member States8

An analysis of the parliamentary debates on asylum reforms in the Member
States reveals that the securitarian frame of transgovernmental co-operation,
with its emphasis on ‘compensatory measures’, fuelled national fears of porous
borders in Europe, and focused the national debate on the problem of asylum
7 For instance, persecution by non-state agents constitutes a criterion for granting refugee status in all
Member States, with the exception of Germany and Austria. Similarly, gender-based persecution is
accepted in some countries, such as the UK, while in others, such as Sweden, it is accorded a ‘category
B’ status outside the framework of the Geneva Convention.
8 For an analysis of the interaction between Europeanization and domestic asylum reforms in France and

Germany from the 1970s until today, see Lavenex (2001).

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‘shopping’ within the single market. In Germany and France, the two motors
of co-operation within the EU in these matters, the advocates of restrictive
reforms managed to reframe the domestic asylum problem into one of negative
redistribution in a ‘porous’ Europe passoire. According to this argument, the
liberal domestic asylum legislation would act as a magnet and transform the
countries into the Reserveasylland or refugee haven of Europe, attracting all
otherwise rejected asylum-seekers. In France, this argument only entered
political discourse with the attempts by the Minister of the Interior, Charles
Pasqua, to ‘reduce immigration to zero’,9 whereas in Germany it drove reform
ambitions from the mid-1980s and was directly linked to Germany’s leading
role in the formulation of common measures at the European level.10 The main
advocates of these restrictive reforms at the national level were the same
officials who were driving co-operation at the European level, that is, the
ministries of the interior. The opaque nature of transgovernmental co-opera-
tion strengthened their domestic position, enabling them to present European
agreements to their national parliaments as faits accomplis and to frame
domestic concerns in terms of European integration. The consequent amend-
ments of the French and German national constitutions which linked the
limitation of the constitutional asylum regulations with the implementation of
European agreements document the important normative impact of European-
ization on domestic refugee regimes. Whereas the impetus for restrictions
clearly came from national constituencies, the legitimation of these restrictions
with the ‘need’ to implement European agreements, notably the Schengen
agreement and the ‘safe-country’ rules, provided the normative context for the
consent of the pro-European opposition.11 In Germany, this normative legit-
imation was confirmed in a Federal Constitutional Court ruling which justified
the ‘safe third country rule’ as a basis for a comprehensive European refugee
policy aiming at the establishment of a system of burden-sharing among the
participating states.12
The realization of these goals is still a long way off, and a look at the latest
asylum reforms in the Member States reveals little attempt to harmonize the
9 See Minister of the Interior, Charles Pasqua, in the National Assembly debate of 15.6.1993, pp. 1613–
14.
10 See note 1 above. See also Der Bundesminister des Innern (1986), former Minister of the Interior,

Wolfgang Schäuble (1989) and the 1992 ratification debate on the Schengen agreement, in which the
CDU/CSU presented their motion of an amendment of the constitutional right to asylum as a precondition
for ratifying the Schengen agreement and a necessary step towards European unification (Plenary Protocol
of the German Bundestag 12/89 of 30.4.1992).
11 Whereas in Germany, the reform of the national constitution required the votes of the SPD and FDP in

order to meet the requirement of two-thirds of votes in both chambers of parliament, in France this reform
required the consent of socialist President François Mitterrand in the cohabitation with the conservative
government.
12 Rulings of the German Federal Constitutional Court, BVerGE 2 BvR 1938/93 and 2 BvR 2315/93 of

14.5.1996, §1.

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 THE EUROPEANIZATION OF REFUGEE POLICIES 863

more substantive aspects of refugee law. After suspending the full implemen-
tation of the Schengen agreement for several years, France claimed a ‘return’
to its republican tradition (Jospin, 1997) and in 1998 introduced a new
definition of ‘refugee’ in direct contrast to attempts to find a common approach
at the European level.13 Similarly, the Dutch government anticipated an
increasing refugee burden following the entry into force of the Dublin
convention by passing a new Aliens Act that may well ‘hinder rather than
promote an EU common approach’ (van Selm, 2000b, p. 74).
Depending on the prior domestic configuration of the asylum problem, the
impact of Europeanization takes one of three forms. For the main refugee-
receiving countries, Europeanization and the linkage of restrictive European
asylum policies with freedom of movement within the EU was a means to
legitimize restrictions of formerly liberal domestic asylum regimes in the face
of domestic institutional and normative constraints. The framing of the asylum
problem as an issue of internal security and redistribution in a border-free
Europe has, however, developed a dynamic of its own, which also supports
restrictive domestic reforms in other traditional refugee-receiving countries,
where the asylum issue had been less politicized. Yet the impact of European-
ization is most salient in the traditional transit countries for asylum-seekers and
refugees in the south such as Italy, Greece or Spain, where asylum regulations
are not particularly well developed and the adaptation of domestic legislation
to the EU asylum acquis is mainly a function of the redistributive effects of
European policies (Schuster, 2000).

Redistribution by Default
Although the idea of establishing a system of burden-sharing at the EU level
continues to encounter strong opposition from several Member States, domes-
tic reforms in the main refugee-receiving countries and the coming into force
of the Schengen and Dublin conventions have led to a redistribution of asylum-
seekers ‘by default’. The central rule of these conventions is to establish a co-
ordinated system to handle asylum claims based on the ‘first host country’
principle which determines the exclusive responsibility of the first signatory
state enabling the entry of an asylum-seeker to examine their claim. Coupled
with the restriction of formerly liberal asylum provisions in the main receiving
countries, these measures have changed the relative shares of asylum-seekers
in Europe (see Table 1).14 Until 1993, 50–70 per cent of all asylum applications
in the EU were lodged in Germany, but this number dropped to 17 per cent in
13Art. 2 of the Asylum Law of 8.4.1998 modifying the law of 25.7.1952 ‘concerning asylum’.
14This redistributive effect is even more salient if one takes the number of asylum-seekers per capita.
According to UNHCR statistics, in 2000 Germany had less than one asylum application per 1,000
inhabitants (0.96). This is much less than the UK (1.66), Switzerland (2.39) or the main destination country
per capita, Slovenia (4.65) (Süddeutsche Zeitung, 1.2.2001, p. 6).
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2000, with the UK taking the lead with 21.6 per cent of all asylum applications.
At the same time, one can observe an increasing involvement of the former
transit countries of the south, such as Italy, Spain or Greece, and the gradual
approximation of their border control and asylum policies to the stricter
standards developed in the Schengen framework (Baldwin-Edwards, 1997;
Pastore, 1999). In addition, the extension of the principle of ‘first contact’
under the Schengen and Dublin conventions to all potentially ‘safe third
countries’15 outside the Union, and tighter western border controls have led to
rising numbers of asylum-seekers in central and eastern Europe. A look at
recent reforms of asylum regulations in neighbouring, non-EU Member States
confirms the self-proliferating dynamic of this redistributive system where
domestic restrictions are justified by the need to minimize the negative
externalities of EU policies and to avoid becoming Europe’s Reserveasylland
(BFF, 1998–99; Lavenex, 1999).
Apart from the political tensions implied in these redistributive effects, the
limitations on access to domestic asylum procedures, the downgrading of
procedural standards, and the self-proliferating dynamic of the ‘safe third
country’ rule have been seen to constitute an effective violation of the spirit of
the 1951 Geneva Convention (Hathaway, 1993; Goodwin-Gill, 1995). The
European Commission has recognized the limits of these redistributive prin-
ciples – at least for the internal allocation of responsibility within the EU – and
has proposed a comprehensive overhaul of the Dublin convention (Commis-
sion, 2000a).

IV. Towards a Common European Asylum Policy?

The reforms of the institutional framework of co-operation in asylum and
immigration matters in the Amsterdam Treaty were a reaction to the growing
critique of co-operation under the third pillar of Maastricht. The European
Commission (1995) and the Parliament (1995), but also the Council (1995)
converged in their critique of the secrecy and exclusivity of intergovernmental
co-operation, together with the use of informal and non-binding instruments in
a cumbersome organizational structure, which would create a lack of transpar-
ency and undermine accountability, but also inefficient problem-solving and
co-operation à la carte.
The Treaty of Amsterdam transferred asylum and immigration matters
from the intergovernmental third pillar to the supranational first pillar and
stipulates a timetable for the development of a common European asylum
policy. In the short term, this shall include the full implementation of the
15London Resolution of 30.11/1.12.1992 on a harmonized approach to issues concerning host third
countries.
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(revised) Dublin convention determining the Member State responsible for the
examination of an asylum application, including the Eurodac system for the
digital identification of asylum-seekers, the adoption of common minimum
standards for asylum procedures and the reception of asylum-seekers, and the
approximation of rules on the recognition and content of refugee status and
other forms of temporary protection (Arts. 61–63 TEC). In the long term,
Community rules will lead to a common asylum procedure and a uniform status
for those granted asylum, valid throughout the Union (Tampere Conclusions,
para. 15, COM 98/0459).

Community Method Prejudiced

Despite the creation of a new Directorate General on JHA in the Commission
(Uçarer, 2001), the Amsterdam reforms still bear the mark of past organiza-
tional forms and the legacy of 15 years’ intensive transgovernmentalism.16 The
clearest indication of the transgovernmental legacy is the transitional period of
five years, during which the Maastricht rules of interaction are basically
maintained (unanimous Council voting, shared right of initiative of the
Commission, and mere consultation of the EP). After five years, the only
guaranteed change will be the exclusive right of initiative on the part of the
Commission. In the literature, this right is often seen as implying control over
the negotiation agenda and facilitating the common interest. Nevertheless, in
the event of unanimous voting in the Council, the Commission will anticipate
the position of the most reluctant government (Garret and Tsebelis, 1996), thus
perpetuating harmonization with the lowest common denominator.17
The decision of the European Council in Nice against the introduction of
QMV in asylum matters confirms the enduring reluctance of the Member
States to transfer sovereignty and hints at the existence of a deep conflict of
interest in this area, expressed in the fear of being outvoted. Rather than
promoting QMV, the Treaty of Nice has made its introduction even more
difficult by adding a new clause in Art. 67 (TEC) which makes QMV
conditional on the prior (unanimous) adoption of ‘Community legislation
defining the common rules and basic principles governing these issues’. The
role played by Germany in the rejection of QMV18 is ironic considering the

16 For an analysis of the main institutional reforms of the Amsterdam Treaty, see Kostakopoulou (2000).
17 Since the ratification of the Treaty of Amsterdam, the Commission has submitted several proposals
which are currently being discussed in the Council and the European Parliament (Commission, 2001). In
the few instances where these proposals exceed the current status quo, several Member States have already
announced their veto (see the Austrian, British and German position at the informal ministerial JHA
meeting in Stockholm, 8–9 February 2001 and Ständige Konferenz, 2000).
18 The reiteration of ex-Chancellor Kohl’s rejection of QMV at the Amsterdam summit by Germany’s new

SDP/green government at Nice indicates that changing governmental majorities have little influence over
refugee policy.
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influence exerted by Germany in asylum co-operation, and would seem to

indicate that a truly supranational refugee policy may not be the goal of such
co-operation. The Commission recently recognized the challenges implied in
its attempts to meet the work programme stipulated in the Amsterdam Treaty
when it stated that ‘the timetable has already slipped somewhat and shows a
lack of visible, concrete actions in certain areas’ (Commission, 2001, p. 4).
The new powers attributed to the ECJ may provide new impetus for the
‘harmonization’ of refugee policies. In the past, the Court has been a motor of
European integration and has shaped the guiding principles upon which to
develop common policies. Nonetheless, the legacies of transgovernmentalism
are also salient in the role of the ECJ, particularly the limitations placed on the
preliminary ruling procedure (Art. 234 TEC) which has been described as the
cornerstone of Community law establishing its primary principles and ensur-
ing its uniform application and interpretation throughout the Union (Fennelly,
2000). The Amsterdam Treaty limits the power to make references for
preliminary ruling under Title IV of the TEC to courts of the Member States
against whose decisions there is no judicial remedy under national law (Art. 68
(1) TEC), and precludes jurisdiction in cases relating to ‘the maintenance of
law and order and the safeguarding of internal security’ (Art. 68 (2) TEC). This
formulation exceeds other public order clauses in the Treaty and may have far-
reaching consequences, especially in the light of Art. 6 (2) TEU which obliges
the Union to respect fundamental rights, as guaranteed by the European
Convention on Human Rights and as general principles of Community law.
The third limitation is contained in Art. 68 (3) TEC, which excludes the
retroactive impact of ECJ rulings on (previous) rulings by national courts.
Moreover, the driving role of the ECJ is circumscribed by the adoption of the
special protocols exempting most of Title IV of the TEC from application to
Denmark, Ireland and the UK. In addition, the Court has no jurisdiction over
the non-binding resolutions and conclusions adopted under the third pillar
unless these are translated into binding directives. In the end, the role of the ECJ
in asylum policy will also depend on the evolution of the Charter of Fundamen-
tal Rights and the ECJ’s competence to interpret its pertinent norms.

Continuity of Intensive Transgovernmentalism

In addition to the limitations on the application of the Community method, the
EU’s institutional capacity to act is hampered by the organizational fragmen-
tation of the relevant provisions under all three pillars of the Union. The new
Title IV of the TEC deals only with the admission of asylum-seekers and
refugees, entry and visa regulations and status-determination procedures. The
increasingly important body of co-operation regarding the implementation of
readmission agreements with third countries; the enhancement of expulsion
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capabilities; the attempts to regionalize refugee protection in the countries or

areas of origin of asylum-seekers and refugees; and attempts to address the root
causes of forced migration all pertain to the second pillar on foreign and
security policy, with its own intergovernmental co-operation procedures.
Under the lead of the purely intergovernmental high level working group on
asylum and migration (HLWG),19 this foreign policy co-operation is develop-
ing into one of the most dynamic aspects of a ‘common’ EU refugee policy.
While claiming to follow a comprehensive approach to the reduction of forced
migration, the European Parliament has criticized the HLWG for being
inconsistent and placing too much emphasis on protectionist instruments such
as readmission agreements and protection away from the EU’s territory within
the regions of conflict.
In much the same way, the confines of what is left of the third pillar are far
from clear. This is particularly the case when refugee flows are associated with
illegal immigration and are affected by the intensifying police co-operation in
the fight against the (illegal) transportation of undocumented migrants and
‘human smuggling’. This transgovernmental co-operation among law and
order officials was the source of European co-operation in the mid-1980s and
may well continue to form the priority of co-operation efforts, even if outside
the framework of the EU in purely intergovernmental fora such as the Budapest
group or the intergovernmental consultations.20
Together with the imperfect communitarization of policy-making proce-
dures, this organizational fragmentation of justice and home affairs indicates
the continuity of intensive transgovernmentalism within and beyond the EU
system. The most influential actors in this organizational setting are the
national ministries of the interior which have driven transnational co-operation
since the early 1970s (den Boer and Wallace, 2000). Their position has been
strengthened at both the European and national level. At the European level,
the ministries of the interior were strengthened through the formalization of
their deliberations in the JHA Council, the support they receive from a certified
Council secretariat, and in particular the staff of the DG H (JHA), the
absorption of the Schengen group, and the attachment of staff from the
ministries of the interior and of justice to the permanent representations of the
Member States. This measure was designed to mitigate the rivalry which had
developed under the third pillar between Coreper, consisting of the permanent

19 The HLWG was created on 7 December 1998 by the General Affairs Council and is mainly composed
of senior JHA officials from the Member States.
20 The Budapest group comprises the ministers of the interior of more than 30 countries and focuses on the

fight against illegal immigration and organized crime with a particular emphasis on eastern Europe. The
intergovernmental consultations on asylum, refugee and migration policies in Europe, North America and
Australia are a loose consultation forum of 16 western European governments, the USA, Canada and
Australia.
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representatives of the Member States, and senior officials from the ministries
of the interior and the ministries of justice meeting in the ‘K4 committee’,
responsible for the co-ordination of co-operation in JHA and now renamed the
‘Art. 36 Committee’ after the pertinent article in the Amsterdam Treaty. The
leading role of the national ministries of the interior at the European level has
gone along with a weakening of other ministries dealing with asylum and
immigration matters in the Member States, notably the ministries of foreign
affairs and the ministries of social affairs (Guiraudon, 2000).
The continuity of intensive transgovernmentalism undermines the thrust of
the Tampere conclusions. The declarations of the European Council are
usually presented as setting the parameters for future co-operation, but a multi-
level perspective on past experiences in JHA would seem to indicate the
contrary. In this field, the aims of the COG have repeatedly encountered the
opposition of the ministries of interior. This antagonism had been apparent
from the outset of the Schengen process, with JHA co-operation emerging as
an attempt to limit the initiative of Chancellor Kohl and President Mitterrand
to abolish internal controls at their common border (the Saarbrücken Accord
of 1984). It was also salient at the Maastricht European Council in December
1991, where the ministers for immigration presented a working programme
which was clearly less ambitious than the European Council’s mandate
(Monar, 2000, p. 8), and at the last IGCs leading to the Amsterdam and Nice
Treaties, when the German Ministry of the Interior, backed by the Länder, put
pressure on Chancellor Kohl and later Chancellor Schröder to reject the
introduction of QMV for Title IV issues under the TEC.

Continuity of the Securitarian Asylum Frame

As shown in the previous sections, the aim of co-operation in refugee matters
has not been to establish a common European asylum system, but to reduce
immigration pressure and to compensate for the perceived losses of internal
security in the wake of the full freedom of movement inside the Union.
Although the Amsterdam Treaty tries to break with the security continuum
established by past transgovernmental co-operation, the continuity of the
securitarian frame is still important. The clearest indication of this is the
adoption of the ‘Schengen approach’ in regarding action on asylum and
immigration issues as ‘compensatory’ and subject to the requirements of
ensuring the free movement of persons under the Amsterdam Treaty. Accord-
ing to Art. 61 TEC, co-operation under Title IV is designed to establish an ‘area
of freedom, security and justice’ in which, by virtue of Art. 2 TEU, ‘the free
movement of persons is assured in conjunction with appropriate measures
with respect to external border controls, asylum, immigration and the preven-

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 THE EUROPEANIZATION OF REFUGEE POLICIES 869

tion and combating of crime’ (emphasis added). According to Monar: ‘the

Schengen group has succeeded in implanting its relatively limited objective of
ensuring free movement as the main rationale of action in ... areas such as
asylum and immigration policy’ (Monar, 2000, p. 12). This rationale may not,
however, allow for much more than a rather narrow approach focusing more
on admission and control than on prevention, protection and integration.
Notwithstanding the Commission’s attempts to act as an agenda-setter,21
the comparison of the work programme of the Amsterdam Treaty with
Maastricht’s 1991 working programme (Ministers Responsible for Immigra-
tion, 1991) confirms the limited scope of innovation and the continuity of the
priorities of transgovernmental co-operation. Irrespective of the change in
governing coalitions in the Member States, and in particular the coming to
power of the original opponents of restrictive reforms on the political left, these
priorities resonate well with domestic asylum discourses and the constant calls
for further restrictions of the asylum law. The scope of this policy frame
became most salient during the Austrian Presidency in the Council in autumn
1998 when the Austrian Ministry of the Interior presented a draft ‘Strategy
Paper on Migration and Asylum Policy’ that proposed the dissolution of the
post-war international refugee regime. Calling for the abolition of the 1951
Geneva Convention and stressing the freedom of sovereign states to admit or
refuse refugees, the draft contained proposals to limit the UNHCR’s mandate
to that of facilitating repatriation and protection in the countries of origin
(Austrian Presidency, 1998).
The drafters of the Tampere conclusions may have recognized the risk of
a ‘fortress Europe’ when stressing the human rights’ base of a common
European refugee policy, a base which, until the Amsterdam Treaty, was more
implicit than explicit in the European treaties. This normative base of refugee
protection raises the question of whether a predominantly economic actor such
as the European Union has the institutional capacity to act in this field, and how
these new competences relate to the refugee regimes in the Member States.
One economic attempt to counter a possible erosion of the refugee regime is
the creation of monetary incentives for granting protection with the European
refugee fund established in 1999, but with a budget of only €30 million and
its focus on repatriation and emergency measures in the regions of origin of
refugees, it is unlikely to boost reception policies in the Member States.
Another avenue may be to strengthen the traditional principles and norms of
refugee protection in the European asylum frame. The Charter of Fundamental
Rights which confirms the commitment to the 1951 Geneva Convention and
the norm of non-refoulement in Arts. 18 and 19,22 is a first step in this direction.
21See n. 16 above.
22
Art. 18 states that, ‘the right to asylum shall be guaranteed with due respect for the rules of the Geneva
Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in
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However, it is not clear how far the affirmation of these general principles and
norms can redress the conceptual flaw and lack of orientation of current
European refugee policies. The Charter, adopted at the European Council in
Nice, is moreover of a merely declamatory character, and the exact scope of
jurisdiction of the ECJ is still to be defined.

V. Conclusion
The Europeanization of refugee policy lies at the heart of political unification
and highlights important developments in the evolution of the European
Union. In institutional terms, the analysis confirms the continuity of a specific
mode of policy-making in this field based on ‘intensive transgovernmental-
ism’ which differs significantly from the Community method, even after some
areas of asylum and immigration policy were transferred to the first pillar. The
continuity of intensive transgovernmentalism limits the scope for supranation-
al rule in this policy field and favours the deployment of Community action
only where this is least likely to offend the sovereignty of the Member States,
that is, at the EU’s external borders and in the regions of origin of asylum-
seekers and refugees. Coupled with the economic and political weight of the
EU in the world, the prevention-oriented foreign policy aspect is likely to
become the focal point of an eventual common European refugee policy.
Apart from affecting the distribution of competences between the EU and
the Member States, Europeanization has implications for the human rights’
base of refugee policy in national laws and constitutions and international
refugee law. This ideational impact of Europeanization is particularly impor-
tant given the current crisis of the refugee regime, expressed most clearly in the
confusion over how to define a refugee and what kind of protection to offer.
Coupled with the new rhetoric of an ‘area of freedom, security and justice’,
these processes indicate an important change in the character of the EU, which
is gradually transforming itself from a primarily economic entity into a
political construct with its own foreign relations and explicit political princi-
ples and values. Quite apart from the limited frame of free movement and
internal security, the redefinition of the refugee question in the context of the
emerging debate on fundamental rights, humanitarian obligations and political
unification may constitute the starting point for a more comprehensive per-
spective on the asylum problem. The opening up of the immigration debate and
the acceptance of an economic and demographic need for labour migration to

accordance with the Treaty establishing the European Community.’; Art. 19 relates to protection in the
event of removal, expulsion or extradition and prohibits ‘collective expulsions’ and the removal or
extradition of persons ‘to a State where there is a serious risk that he or she would be subjected to the death
penalty, torture or other inhuman or degrading treatment or punishment’.
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Europe may contribute to such a desecuritization of the asylum question. Yet,

events after 11 September 2001 have catapulted security considerations back
on to the front stage, and symbolize in poignant manner the normative
challenges implied in balancing domestic concerns with humanitarian com-
mitments. In sum, the difficulties identified in this article that face the EU in
establishing a common European refugee policy highlight the constraints
involved in shifting not only tasks and responsibilities, but also values and
normative accountability, from the national to the European level.

Correspondence:
Sandra Lavenex
Department of Political Science
University of Bern
Lerchenweg 36
CH 3000 Bern 9, Switzerland
email: lavenex@pw.unizh.ch

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© Blackwell Publishers Ltd 2001

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