RESEARCH PROPOSAL

Asylum, Law and Crisis

Author: Mag.a Julia Kienast (0807011)

Supervisor: Univ.-Prof. Dr. Franz Merli
Institute: University of Vienna
Study: Law (A 783 101)
Aspired Title: Doctor iuris (Dr. in iur.)

Vienna, 20 December 2016

Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

Table of Content

I. Introduction and Problem 3

II. Legal Frame 4

III. Goals and Methods 12

IV. State of Research 12

V. Research Questions and Hypotheses 13

VI. Provisional Structure 13

VII. Expected Time Frame 14

VIII. Selection of Literature 15

Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

I. Introduction and Problem

Crisis is a broad and fluid term with varying definitions and facets depending on the subject and frame of usage.
According to the encyclopaedia of crisis management a crisis ‘is associated with urgent, high-stakes challenges in
which the outcomes can vary widely (and are very negative at one end of the spectrum) and will depend on the actions
taken by those involved.’1 In this general view, a crisis is determined by a period of heightened strain, a divergence
from the status quo, creating uncertainty for the future of its stakeholders, who are therefore forced to act. The topic
has been subject to broad discussions in the areas of social and political sciences as well as economics long since.2 A
crisis requiring the legal actions of states and governments, however, must be subject to a legal discourse as well.3
This legal discourse, which has been somewhat neglected in Europe during the last decades of stability and
prosperity, resurrected due to the pressure of recent crises. For instance, the United States used the threat of terrorism
as a reason to reduce data protection rights and to send military units into several countries. France, also in response to
several terror attacks, declared an emergency state and eased restrictions on house searches.4 In Turkey, President
Erdoğan, after an attempted coup d’état, declared an emergency state allowing him to govern by decree and to
derogate from fundamental rights, such as press freedom and the right to liberty, without a possible review by the
constitutional court.5 Also the European Union (EU) took on several obligations in the aftermath of the financial crisis
posing additional burden on its Member States (MS). This ongoing list of incidents indicates that, in spite of each
crisis’ uniqueness, they might have certain legal symptoms and dynamics in common.
In 2015, Europe experienced a strong inflow of refugees caused by the ongoing war in Syria and the unstable
situations of Afghanistan and Iraq. During this time Austria became the bottleneck on their path from Greece or Italy
to the West with a peak of 20.000 daily arrivals in September 2015, which led to rather chaotic scenes at train stations
and asylum reception centres. Eventually, a total of 89.000 persons applied for asylum in Austria.6 This situation and
its management will serve as a guiding example for the crisis-analysis in the proposed paper. Using the
aforementioned definition by the encyclopaedia of crisis management, it very well can be argued that Europe and
Austria were facing a “refugee crisis” in September 2015 regarding the upheaval it has caused. This does not confirm,
however, that the wording of the according legal provisions, such as a “threat to public policy and internal security”,
were reached and whether the measures taken stayed within their limitations or which long- and short-term
consequences they will have on the respective legal order. The subsequent paragraphs will outline the main questions
for the analysis of this problem.
First, there is a problem in the rhetoric of crisis: Talking about crises can serve politicians or other actors to spread
fear and hysteria in order to convince the public of a certain cause. In this regard, a crisis might sometimes simply be a
social construction to legitimize unpopular measures according to cultural requirements.7 However, it can also work
the other way around. Hysteria in the public can push governments to take a certain path even against their rational
conviction. Migration in general and asylum particularly, are very demonstrative examples for both. Obviously the
latter dynamic has severe effects on the legal order as well. This political influence will be assumed in the proposed
study and will not be the subject of separate analysis.
Secondly, it became a relevant legal question, not only if refugees can per se pose a threat to national security and
public order, but also when a risk becomes an imminent threat and, thus, prevails over the regular system and its
balance of interests, and, most importantly, who is the competent authority to decide this question.8 The Austrian
government’s controversial justification of its emergency regulation illustrated this issue very well, when it referred to

1
K. Bradley Penuel, Matt Statler and Ryan Hagen, Encyclopedia of Crisis Management (SAGE 2013).
2
See eg Wolfgang Gratz, Das Management der Flüchtlingskrise: Never let a good crisis go to waste (NWV 2016); Ansgar Thießen (ed),
Handbuch Krisenmanagement (2nd edn, SpringerVS 2014).
3
See also Lamiss Khakzadeh-Leiler, ‘Recht und Krise’ in Manuel Aigner et al (eds), Krise und Recht (forthcoming in Jan Sramek 2017) 2.
4
Isabelle Boucobza and Charlotte Girard, ‘Constitutionnaliser l’état d’urgence ou comment soigner l’obsession d'inconstitutionnalité?’ (2016)
La Revue des droits de l’homme. Actualités Droits-Libertés 1.
5
‘Nach Putschversuch in der Türkei: Das bedeutet der Ausnahmezustand’ NZZ.ch (21.07.16) <http://www.nzz.ch/nach-putschversuch-in-der-
tuerkei-das-bedeutet-der-ausnahmezustand-ld.106813> accessed 18.11.16.
6
UNHCR, ‘Following the humanitarian crisis in Europe: Estimated daily arrivals’ <http://data.unhcr.org/mediterranean/country.php?id=502>
accessed 16.12.16; Bundesministerium für Inneres, ‘Asylstatistik 2015’ <http://www.bmi.gv.at/cms/BMI_Asylwesen/statistik/start.aspx>
accessed 16.12.16.
7
Swaran Sandhu, ‘Krisen als soziale Konstruktion: zur institutionellen Logik des Krisenmanagements und der Krisenkommunikation’ in
Thießen 95.
8
See Khakzadeh-Leiler 10.
3
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

an overload of the social system, the labour market, the administrative jurisdiction and the budget in general. 9 Yet, the
question of what constitutes a crisis and who is eligible to determine a “state of emergency” is not new, but has been a
question for scholars long since.10 Depending on the type of crisis or the severity of its cause, the word can have
different meanings and legal implications, which are relevant for the scope of measures falling within its purpose, as
the provisions named in Chapter II will indicate. Likewise it is important to know when the state of crisis has ended to
observe the temporary nature of exemptive provisions. By definition the crisis must either end by returning to the
original or progress into a new state of normal. 11 Hence, the differentiation and comparison of respective legal
provisions is necessary to solve the preliminary question of when and how crisis mechanisms may be triggered or at
least to create guidelines for this determination and find a common threshold.
Finally, crises might pose a problem to the legal order. Under the pressure of a state of crisis, legislative and
administrative acts usually neglect the regular precautionary procedures and rationales with their thorough
considerations, which might foster shortcomings and reduce their legitimation.12 This might include a shift of power
from legislative to executive organs and, thus, reduce, blur or shift responsibility for decisions. 13 Hence, the legal
circumstances for a crisis situation should be clearly defined in advance such as the applicable competences and
limitations to crisis measures.14 If not, or when the respective rules are not applied narrowly enough, it might have
detrimental effects on existing procedural and substantive standards or lead to ill-conceived changes in the legal
system. Especially for the EU, which is often faced with allegations of undermining the democratic principles of MS,
these effects might cause severe troubles. 15 Therefore, legal effects as well as limitations and possible control
mechanisms need to be reviewed in order to capture the crisis’ consequences.16
The proposed study will attend to the last two issues – the determination of a crisis of mass immigration in legal
terms and its impact, limitations and overall consequences – on the basis of the refugee crisis in full awareness of its
overlapping and sometimes contradicting discussion in other disciplines. Therefore, the study will concentrate on legal
issues and only refer to political and social symptoms, where indicated by a factual nexus. The term refugee crisis, in
the context of this study, is thus to be understood as a crisis of Austrian and European refugee law. Occasionally,
reference to other crises will be made, where common determinants or rationales are observed.17 Furthermore, the
general results of crisis measures might indeed be comparable beyond their respective purpose as they follow similar
mechanisms.18
In order to outline the aforementioned legal issues the proposed study will in its first chapter analyse applicable
exemptive provisions in an attempt to determine a crisis threshold for situations of mass immigration. In its second
chapter it will review the impact of these provisions on state obligations, competences and individual rights as well as
possible limitations thereof. The third chapter will offer a broader discussion of critical observations, including the
legal analysis of the refugee situation in 2015 and general implications of the discussed crisis mechanisms. The
proposed study argues that the application of crisis mechanisms might have secondary effects detrimental to the legal
order: On the one hand, issues seeking a long-term solution might be dealt with in a short-term manner through
emergency regulations as a “quick fix”. On the other hand, amendments of regular legal provisions adopted under a
situation of crisis might jeopardize existing standards by becoming a permanent possibility and, thus, creating a
downwards spiral. Furthermore, possible impacts on the rule of law, democracy, the balance of powers and
responsibility will be pointed out.
The subsequent chapter of this proposal will serve to set out the legal frame regarding relevant provisions and
innovations of Austrian and European law as a point of origin for later analysis. Problems will be addressed where
deemed appropriate, but will remain to be assessed in greater detail in the course of the proposed study. Especially, the
named third chapter can only be introduced here as it will mainly contain observations on the basis of the analysis in
the first and second chapter of the study.

9
Eg ‘Flüchtlinge: Scharfe Kritik an “Notverordnung” in der Begutachtung’ DerStandard.at (04.10.16)
<http://derstandard.at/2000045364285/Fluechtlinge-Scharfe-Kritik-an-Notverordnung-in-der-Begutachtung> accessed 19.12.16.
10
See eg Carl Schmitt, Politische Theologie (1922).
11
Khakzadeh-Leiler 13.
12
Wolfang Hoffmann-Riem, Innovation und Recht – Recht und Innovation: Recht im Ensemble seiner Kontexte (Mohr Siebeck, 2016) 182.
13
See eg in reference to the Euro crisis Hoffmann-Riem 174, 176, 184.
14
See Khakzadeh-Leiler 8.
15
See eg Hoffmann-Riem 176.
16
See Khakzadeh-Leiler 10, 12.
17
See Hoffmann-Riem on “crisis intelligence” 194.
18
See eg Hoffmann-Riem 172.
4
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

II. Legal Frame

1. Exemptive Provisions
Law as a means for crisis management can have various forms. It might anticipate general provisions for
emergency situations or specific exemptive provisions to prevent a crucial situation from emerging to an actual crisis.
They might also be of interventional character, for example conveying power to one organ (usually the executive) to
take measures in an already acute situation of crisis. Such provisions generally serve the purpose of reducing the
complexity of norms and decision mechanisms and thereby allowing a faster course of action. 19 Furthermore,
legislators might react to a situation of crisis in hindsight by creating new provisions. This section attempts to give an
overview of national and European Union provisions, either generally relevant in situations of crisis or concerning
exemptions of refugee law. They illustrate their common or at least comparable objective, which is often to wield a
threat to national security and public order. Similar provisions and measures will need to be considered in the course
of the proposed study. Conceivably, these will be provisions and measures from the area of disaster management and
general hazard defence, possibly provisions concerning threats originating from individuals in the national and
European context and many more.20
On the level of EU law, Art 4 para 2 TEU ensures MS’ competences touching upon their sovereignty, such as
‘territorial integrity […], maintaining law and order and safeguarding national security. In particular, national security
remains the sole responsibility of each Member State.’21 Although this provision remains disputed, just as the nature
of competences conveyed to the EU in the Area of Common Foreign and Security Policy, the prevailing doctrine
agrees that the provision’s last sentence must rather be seen as a tool for interpretation than an exemptive provision to
directly rely on. Furthermore, it needs to be assessed in connection with respective provisions in Title V TEU, where
Arts 28 para 4 and 30 para 2 TEU, for example, also foresee rapid procedures in ‘cases of imperative need’ or
‘requiring a rapid decision’. Also Arts 69 and 72 TFEU in its Title V concerning the Area of Freedom, Security and
Justice are relevant in this regard22 ensuring the responsibility of MS regarding the maintenance of law and order and
the safeguarding of internal security.23 In this connection Art 347 TFEU might be taken into account, which obliges
MS to consult each other in order to ensure the functioning of the internal market ‘in the event of serious internal
disturbances affecting the maintenance of law and order.’24
Furthermore, Title V of the TFEU in its Chapter 2 holds specific provisions for policies on border checks, asylum
and immigration in accordance with the goal to create a ‘common policy on asylum, immigration and external border
control, based on solidarity between Member States, which is fair towards third-country nationals.’ 25 Within this
Chapter, Art 78 para 1 TFEU foresees a common asylum policy in accordance with the Geneva Convention.26 Even
for situations of massive inflow, Art 78 para 2 lit c TFEU prescribes the creation of a common system and in its para 3
conveys the power to adopt provisional measures for the benefit of MS ‘confronted by an emergency situation
characterized by a sudden inflow of nationals of third countries’27 to the Council.
Moreover, many provisions within European refugee law provide for derogation in the case of crisis or emergency
with varying descriptions, often using terms like “threat” or “risk” to national security, public order, internal security
etc. Similarly, the Schengen Borders Code in its Chapter II lays down rules for the temporary reintroduction of border

19
Khakzadeh-Leiler 4, 9.
20
For general examples of crisis regulations in Austria see Khakzadeh-Leiler 9.
21
Art 4 para 2 Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ
C202/1 (hereinafter: TEU and TFEU).
22
See eg Karl Stöger and Haider in Heinz Mayer and Karl Stöger (eds), EUV/AEUV: Art 4 EUV (rdb.at 2012) MN 44.
23
See Walter Obwexer and Bernd-Christian Funk, ‘Gutachten: Völker-, unions- und verfassungsrechtliche Rahmenbedingungen für den beim
Asylgipfel am 20. Jänner 2016 in Aussicht genommenen Richtwert für Flüchtlinge’ (29.03.2016); Kay Hailbronner and Daniel Thym,
‘Grenzenloses Asylrecht? Die Flüchtlingskrise als Problem europäischer Rechtsintegration’ (2016) 71 Juristen Zeitung 15/16, 762; Daniel
Thym, ‘Part B.I, Legal Framework for Entry and Border Controls’ in Kay Hailbronner and Daniel Thym (eds), EU Immigration and Asylum
Law (2nd edn, CH Beck/Hart/Nomos 2016) MN 25 – 27, 28.
24
Art 347 TFEU.
25
Art 67 para 2 TFEU.
26
UN General Assembly, Convention Relating to the Status of Refugees (28 July 1951) 189 UNTS 137 and UN General Assembly, Protocol
relating to the status of refugees (31 January 1967) 606 UNTS 267 (hereinafter: Geneva Convention).
27
Art 78 TFEU might appear to override the general provision of art 72 TFEU as lex specialis. However recital 51 of Directive 2013/32/EU of
26 June 2013 of the European Parliament and of the Council on common procedures for granting and withdrawing international protection
(recast) [2013] OJ L180/60 (hereinafter: Asylum Procedures Directive, APD) explicitly excludes its effect on responsibilities under art 72
TFEU.
5
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

controls at internal borders, when there is a ‘serious threat to public policy or internal security in a Member State.’28
However, these provisions often concern individuals who constitute such a threat, for instance in the exceptions of the
Reception Standards Directive29 and the Asylum Procedures Directive.30 Certainly, human rights instruments such as
the Charta of Fundamental Rights (CFR) and the European Convention of Human Rights (ECHR) recognise
derogations due to threats to national security and public order in various provisions as well.31 Also Art 33 para 2 of
the Geneva Convention determines an exception of the principle of non-refoulement for individuals who constitute a
threat to the security of a country.32
It is to be questioned, whether some of these provisions may serve to develop guiding principles for situations of
mass immigration, since the dangers originating from individuals might be very different from those originating from
a mass. The proposed study will not only discuss this question, but also whether a mass influx of refugees can arise to
the level of a threat to national security and public order and whether this was the case in 2015. Especially so, as
specific procedures for situations of mass immigrations exist within Union Law and have been drafted for exactly the
circumstances, which Europe encountered in 2015.33 These provisions foresee, for instance, a faster procedure and a
temporary residence permit but have not been applied.34
However, despite these many possibilities to derogate from standards and norms, absolute limits might exist. For
instance, Arts 2 and 3 ECHR as non-derogable rights according to Art 15 para 2 ECHR can set such absolute
limitations. Furthermore, most provisions require a derogation to be necessary and proportional.35 Hence, the interests
at stake must be considered and there must not be any lighter means to cope with the particular threat. Under the
precondition of necessity, it might be possible to question, whether a State that contributed to the escalation of a risk,
by not applying existing law, can rely on the reservation at all. Also, in the light of existing Union law and the fact that
MS have conveyed certain competences in the Area of Freedom, Security and Justice to the EU, it is debatable
whether MS can act on a national level, when the EU’s scope of action has not been exhausted yet.36 It has been
argued that national solutions can be justified, in cases where the EU’s action would come too late, but these measures
must be of temporary nature until supranational solutions are found.37 Still, other MS that are affected by the decision
must be considered under Union law and its principles of solidarity and shared responsibility, loyalty, mutual trust and
sincere cooperation under Art 4 para 3 TEU, 38 especially solidarity in policies on border checks, asylum and
immigration as governed by Arts 77 to 80 TFEU.39
Also the Austrian constitution provides several general provisions for a state of emergency. Art 18 para 3 B-VG
conveys to the president the power to issue emergency decrees in times of restraint of the ordinary legislative
procedure in parliament, if immediate measures are necessary to prevent an evident, irreversible damage from the
general public. These measures, however, must be supported by the consent of government and must be

28
Art 25 para 1 of Regulation 2016/399/EU of 9 March 2016 of the European Parliament and of the Council on a Union Code on the rules
governing the movement of persons across borders [2016] OJ L77/1 (hereinafter: Schengen Borders Code, SBC).
29
See eg art 8 para 3 lit e of Directive 2013/33/EU of 26 June 2013 of the European Parliament and of the Council laying down standards for the
reception of applicants for international protection (recast) [2013] OJ L180/96 (Reception Standards Directive, RSD).
30
See eg art 31 para 8 lit j and recital 20 APD.
31
European Union, Charter of Fundamental Rights of the European Union [2012] OJ C326/02 (hereinafter: CFR); Council of Europe, European
Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (4 November 1950) CETS
194 (hereinafter: ECHR).
32
Recommendations for mass influx are contained in the UN General Assembly Resolution 58/169 (22 December 2003) UN Doc
A/RES/58/169; see also UNHCR, ExCom Conclusion No 22 (XXXII) ‘Protection of Asylum-Seekers in Situations of Large-Scale Influx’
(1981).
33
Arts 72, 78 para 2 lit c and para 3 TFEU; arts 25-30 SBC; see also recital 5 of Regulation (EU) 1051/2013/EU of 22 October 2013 of the
European Parliament and of the Council amending Regulation (EC) No 562/2006 in order to provide for common rules on the temporary
reintroduction of border control in exceptional circumstances [2013] OJ L295/1; Directive 2001/55/EC of July 2001 on minimum standards for
giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member
States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12 (hereinafter: Temporary Protection Directive, TPD).
34
See eg art 8 para 1 TPD; see also Nika Bačić Selanec; ‘A Critique of EU Refugee Crisis Management: On Law, Policy and Decentralisation’
(2015) 11 CYELP 94.
35
See eg art 15 para 1 ECHR.
36
Art 5 TEU; art 77-80 TFEU.
37
Hailbronner/Thym 763.
38
Slovakia v Council C-643/15 (ECJ) and Hungary v Council C-647/15(ECJ) challenging Council Decision 2015/1601/EU of 22 September
2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2015] OJ L248/80 (Relocation
Decision).
39
Phillippe De Bruycker and Evangelia L. Tsourdi, ‘The Bratislava Declaration on migration: European irresponsibility instead of solidarity’
(EU Immigration and Asylum Law and Policy, 27 September 2016) <http://eumigrationlawblog.eu/the-bratislava-declaration-on-migration/>
accessed 04.10. 2016.
6
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

retrospectively approved in parliament.40 Art 79 para 5 B-VG limits the autonomous action of the Austrian military
force to cases, where the respective authority appropriate to command the military action is unable to do so and a
delay would cause irreversible damage to the general public. It also refers to the military force’s general purposes,
amongst them the prevention of damage to national security and public order.41 Austrian refugee law is largely based
on Union law and, thus, foresees similar provisions as previously discussed. Many exceptions are provided for
individuals constituting a threat to national security, yet mostly in the sense of criminal activity. 42 Furthermore,
national security is often mentioned in bilateral agreements regarding police and military cooperation in the context of
data exchange etc.43

2. New Measures and Proposals in Reaction to the Refugee Influx of 2015

The refugee influx of 2015 triggered several new proposals by the European Commission within the political
programme of a “European Agenda on Migration”.44 The implementation package of this Agenda included several
legal proposals and operational measures. 45 These can be categorized according to their three purposes: the
management of the crisis internally, securing the external border and cooperation on the international level.
Internally, the instrument of relocation was introduced to assist Italy and Greece (and subsequently also Hungary)
in their significant asylum pressure by distributing applicants in clear need of international protection to other MS. 46
This included the establishment of “Hotspots” in Greece47 and Italy48 operated by Migration Management Support
Teams (MMST)49 and the proposal of the extension of the European Asylum Support Office (EASO) to a genuine
European Union Agency for Asylum (EAA).50 Similarly, a resettlement programme was introduced to allow refugees
qualifying for protection and waiting at the borders a legal and safe way to asylum in the EU. 51 So far these
programmes have not been very successful: Of the designated 160,000 refugees only 8,162 were relocated from
Greece and Italy by December 2016.52 Later on a proposal for the amendment of the Dublin-regulation introducing a
permanent crisis relocation mechanism with fixed quotas for MS was issued.53 However, the dispute amongst MS

40
Art 18 para 3 Austrian Constitution BGBl 1930/1 as amended by BGBl I 2016/106 (Bundesverfassungsgesetz, hereinafter: B-VG). Due to the
federal structure of Austria, similar provisions exist conveying power to state governments (art 97 para 3 B-VG) and state governors (art 102
para 5 B-VG). Furthermore, the president may change the place of residence of the supreme federal authorities and of the parliament’s
convening according to arts 5 para 2 and 25 para 2 B-VG.
41
Art 79 para 2 cit 1 lit b and para 5 B-VG.
42
See eg § 21 (2) Z 12, § 41, § 53 Fremdenpolizeigesetz BGBl I 2005/100 as amended by BGBl I 2016/24 (hereinafter: FPG); see also § 11 para
4, § 28 Niederlassungs- und Aufenthaltsgesetz BGBl I 2005/100 as amended by BGBl I 2015/122 (hereinafter: NAG).
43
See eg art 4 of the Treaty between the Republic of Austria and the Republic of Germany on Transnational Cooperation in Hazard Defence of
the Police and Criminal Matters (Vertrag zwischen der Republik Österreich und der Bundesrepublik Deutschland über die grenzüberschreitende
Zusammenarbeit zur polizeilichen Gefahrenabwehr und in strafrechtlichen Angelegenheiten) BGBl III 2005/210; art 20 Military Authority Act
(Militärbefugnisgesetz, MBG) BGBl I 2000/86 as amended by BGBl 2013/181; § 8 para 3 “ZIS-AbfrageV” BGBl II 2016/339 on the basis of
the Austrian Telecommunication Act 2003 (Telekommunikationsgesetz, TKG 2003), BGBl I 2003/70 as amended by BGBl I 2016/6; §§ 1, 6
Police State Protection Act (Polizeiliches Staatsschutzgesetz – PStSG) BGBl I 2016/5.
44
Commission, ‘A European Agenda on Migration’ (Communication) COM (2015) 240 final.
45
Commission, ‘European Agenda on Migration – Legislative documents’ <https://ec.europa.eu/home-affairs/what-we-do/policies/european-
agenda-migration/proposal-implementation-package_en> accessed 19.12.16.
46
Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the
benefit of Italy and of Greece [2015] OJ L239/146; later Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional
measures in the area of international protection for the benefit of Italy and Greece [2015] OJ L248/90.
47
Commission, ‘Progress Report on the Implementation of the hotspots in Greece’(Communication) COM (2015) 678 final.
48
Commission, ‘Progress Report on the Implementation of the hotspots in Italy’ (Communication) COM (2015) 679 final.
49
Commission, ‘Managing the refugees crisis: immediate operational, budgetary and legal measures under the European Agenda on Migration’
(Communication) COM (2015) 490 final/2 – Annex II: Migration Management Support Teams working in ‘hotspot’ areas.
50
Regulation (EU) 439/2010 of 19 May 2010 of the European Parliament and of the Council establishing a European Asylum Support Office
(EASO); Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum
and repealing Regulation (EU) No 439/2010’ COM (2016) 271 final (EAA).
51
European Council, ‘Conclusions of the Representatives of the Governments of the Member States meeting within the Council on resettling
through multilateral and national schemes 20 000 persons in clear need of international protection’ (Conclusions) Council Doc 11130/15, 22 July
2015; Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a Union Resettlement Framework and
amending Regulation (EU) No 516/2014 of the European Parliament and the Council’ COM (2016) 468 final.
52
Commission, ‘Eighth report on relocation and resettlement’ (Communication) COM (2016) 791 final.
53
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a crisis relocation mechanism and
amending Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and
mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the
Member States by a third country national or a stateless person’
COM (2015) 450 final.
7
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

concerning the so-called “Dublin-system” is not new. The crux of the Dublin-system is that it principally provides for
the competence and responsibility for asylum applications of the State of first entrance.54 The recent decades of failing
implementation, even during low pressure periods and more so in the year 2015, have made evident that this concept
is not well conceived.55 Yet, the subsequent recast proposal (“Dublin IV”)56 repeats the system, in spite of pragmatic
solutions suggesting that its approach prevents spontaneous compliance and, therefore, might be rather
counterproductive.57
Furthermore, prevailing doctrine is that the right to asylum and non-refoulement do not guarantee an individual
right to choose the country of asylum, since this would infringe states’ right to control the entry of non-citizens.58
Amongst others, the notion of “safe third countries”59 plays an important role here and the Commission also issued a
proposal to establish an EU common list of safe countries of origin to harmonize recognition rates in the MS and
allow for faster procedures.60 Nowadays, this notion might even become relevant within the EU in view of the current
development of the mutual trust amongst MS.61 Due to the issue of secondary immigration and the malfunctioning of
the Dublin-system, a “race to the bottom” amongst MS has emerged in an attempt to deter potential asylum applicants.
This affects reception conditions, procedural standards, quotas, as well as MS’ willingness to participate in
resettlement and relocation.62
To tackle these issues that threaten to increase the seemingly irreconcilable West-East and North-South division of
the EU on the topic of asylum, in July 2016, the European Commission has presented its ‘proposals to complete the
reform of the Common European Asylum System in order to move towards a fully efficient, fair and humane asylum
policy – one which can function effectively both in times of normal and in times of high migratory pressure.’63 These

54
Art 3 para 2 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and
mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the
Member States by a third-country national or a stateless person (26 June 2013) OJ L180/31 (hereinafter: Dublin III).
55
See Elspeth Guild et al, New approaches, alternative avenues and means of access to asylum procedures for persons seeking international
protection (Study for the Directorate-General for Internal Policies of the European Parliament – Policy Department C: Citizens’ Rights and
Constitutional Affairs, 2014); Constantin Hruschka, ‘Dublin is dead! Long live Dublin! The 4 May 2016 proposal of the European Commission’
(EU Immigration and Asylum Law and Policy, 17 May 2016) <http://eumigrationlawblog.eu/dublin-is-dead-long-live-dublin-the-4-may-2016-
proposal-of-the-european-commission/> accessed 12.10.16.
56
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for
determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a
third-country national or a stateless person (recast)’ COM (2016) 270 final; see also Francesco Maiani, The Reform of the Dublin III Regulation
(Study for the Directorate-General for Internal Policies of the European Parliament – Policy Department C: Citizens’ Rights and Constitutional
Affairs, 2016).
57
It might create additional complications such as the waste of financial resources in repressive actions, diplomatic tensions, fostering
smuggling services and lack of integration, social exclusion and frustration on the side of asylum seekers. See Marcello Di Filippo, ‘Dublin
“reloaded” or time for ambitious pragmatism?’ (EU Immigration and Asylum Law and Policy, 12 October 2016)
<http://eumigrationlawblog.eu/dublin-reloaded/> accessed 12.10.16, who suggests either a “free choice” or “personal characteristics” approach.
See also UNHCR, Stabilizing the situation of refugees and migrants in Europe (Proposals to the Meeting of EU Heads of State or Government
and Turkey on 7 March 2016, 3 March 2016); Pro Asyl (ed), Memorandum- Allocation of refugees in the European Union: for an equitable,
solidarity-based system of sharing responsibility (K+E Druck, Frankfurt am Main, 2013).
58
See eg Hailbronner/Thym 753, 754; see arts 35 und 38-39 APD.
59
See eg Valentina Moreno-Lax, ‘The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’ in G.S.
Goodwin-Gill and P. Weckel (eds), Migration & Refugee Protection in the 21st Century: Legal Aspects - The Hague Academy of International
Law Centre for Research (Martinus Nijhoff 2015) 665-721.
60
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing an EU common list of safe countries of
origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and
withdrawing international protection, and amending Directive 2013/32/EU’ COM (2015) 452 final.
61
For conditions in Hungary see eg Mohammed v. Austria App no 2283/12 (ECtHR, 6 June 2013); Jean-Paul Marthoz, ‘UN review of Hungary
shows country “treats human rights as a public enemy”’ (Committee to Protect Journalists, 13 May 2016) <https://cpj.org/blog/2016/05/un-
review-of-hungary-shows-country-treats-human-ri.php> accessed 04.10. 16; for infringements of the common asylum system by other Member
States see eg European Commission ‘Implementing the Common European Asylum System: Commission escalates 8 infringement proceedings’
(Press release, 10 December 2015) IP/15/6276.
62
Throughout the last year, many MS (especially the Visegrád Group) have voiced their restraint to participate in a fair sharing of responsibility
and to practice solidarity towards frontline States in spite of the obligations conveyed by Art 80 TFEU. They argue that these countries would
need to fulfil their responsibility under the Schengen agreement first and secure the external borders, only then they would offer solidarity. See
eg De Bruycker /Tsourdi; see further Jens Vedsted-Hansen, ‘Reception Conditions as Human Rights: Pan-European Standard of Systemic
Deficiencies?’ in Vincent Chetail, Philippe De Bruycker, Francesco Maiani (eds), Reforming the Common European Asylum System : The New
European Refugee Law (2016) 39 Immigration and Asylum Law and Policy in Europe 317.
63
Commission, ‘Completing the reform of the Common European Asylum System: towards an efficient, fair and humane asylum policy’ (Press
release, 13 July 2016) IP/16/2433 < http://europa.eu/rapid/press-release_IP-16-2433_en.htm> accessed 19.10.16; see also Hailbronner/Thym
761.
8
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

proposals include a common procedure, 64 uniform standards of protection and rights 65 and the harmonization of
reception conditions 66 - partially in form of regulations instead of directives. However, these proposals stand in
opposition to many national developments and, hence, it remains to be seen whether they will be approved in the
legislative process.
In order to safeguard the protection of external borders further action has been taken, such as the proposal for a
renewed Schengen Borders Code.67 Already in December 2015, the Commission proposed the establishment of a new
European Border and Coast Guard on the basis of Frontex with supranational competences to intervene in cases of
structural deficits.68 This proposal was adopted in a rapid legislative process and the new agency is working already
since October 2016.69 Moreover, a new operational plan for the sea operation Triton, formally Poseidon, by Frontex
was established and its budget was raised to the amount of the Italian operation Mare Nostrum already in early 2015.
Also, EUNAVOR Med, the first EU military operation, was launched in May 2015 and expanded under the name
Operation Sophia, in October 2015.70 By land, apart from the support of MS through hotspots, MMST and EASO, the
capacities of the Frontex-operated Rapid Border Intervention Teams (RABIT) were strengthened and deployed in
several MS along the Balkan route.71
In the connection of safeguarding the external borders, the Agenda focuses on combating migrant smuggling. It is
set out in the “EU Action Plan against migrant smuggling”72 and was supported, for example, by the establishment of
a European Migrant Smuggling Centre (EMSC) by Europol, which made smuggling one of its nine priority crime
areas.73 To assist the safeguarding of borders and combat smuggling, the EU also reinforced the collection of data at
the border, for instance through national authorities taking finger prints of asylum applicants according to
EURODAC,74 the surveillance programme by Europol EUROSUR,75 the proposal of a creation of European Travel
Information and Authorisation System (ETIAS) for visas and the proposal of a general establishment of “smart
borders” for data collection regarding entry and exist of the Schengen area of third country nationals (EES).76

64
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international
protection in the Union and repealing Directive 2013/32/EU’ COM (2016) 467.
65
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on standards for the qualification of third-country
nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary
protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the
status of third-country nationals who are long-term residents’ COM(2016) 466 final.
66
Commission, ‘Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants
for international protection (recast)’ COM (2016) 465 final.
67
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council amending Regulation No 562/2006 (EC) as regards
the reinforcement of checks against relevant databases at external borders’ COM (2015) 670 final.
68
See Hailbronner/Thym 753, 761.
69
Regulation (EU) 2016/1624 of 14 September 2016 of the European Parliament and of the Council on the European Border and Coast Guard
and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the
European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L 251/1.
70
Council Decision (CFSP) of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR
MED) [2015] OJ L122/31; Council Decision (CFSP) 2015/1926 of 26 October 2015 amending Decision (CFSP) 2015/778 on a European Union
military operation in the Southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L 281/13
71
Commisssion, ‘Managing the refugees crisis: immediate operational, budgetary and legal measures under the European Agenda on Migration’
(Communication) COM (2015) 490 Final/2 – Annex III: The Rapid Border Intervention Teams mechanism (RABIT); the mechanism was
established by Regulation (EC) 863/2007 of 11 July 2007 of the European Parliament and of the Council establishing a mechanism for the
creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating
the tasks and powers of guest officers [2007] OJ L199/30; see also Leaders’ Meeting on Refugee Flows Along the Western Balkans Route,
‘Leaders’ Statement’ <http://ec.europa.eu/news/2015/docs/leader_statement_final.
pdf> accessed 18.12.16.
72
Commission, ‘EU Action Plan against migrant smuggling (2015 - 2020)’ (Communication) COM (2015) 285 final.
73
Europol, ‘Europol launches the European Migrant Smuggling Centre’ (Press Release, 22 February 2016)
<https://www.europol.europa.eu/newsroom/news/europol-launches-european-migrant-smuggling-centre> accessed 19.12.16; Europol, ‘EU
Policy Cycle – EMPACT’ <https://www.europol.europa.eu/crime-areas-and-trends/eu-policy-cycle-empact> accessed 18.12.16.
74
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the establishment of 'Eurodac' for the comparison
of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the
Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country
national or a stateless person], for identifying an illegally staying third-country national or stateless person and on requests for the comparison
with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast) COM(2016) 272 final.
75
Regulation (EU) No 1052/2013 of 22 October 2013 of the European Parliament and of the Council establishing the European Border
Surveillance System (Eurosur) [2016] OJ L295/11.
76
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 as regards the
use of the Entry/Exit System’ COM (2016) 196 final.
9
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

Focusing on the execution of existing law, an Action Plan on Return77 and recommendations therefor in the form
of a Return Handbook78 and a proposal for a European travel document for the return of illegally staying third-country
nationals79 were developed and enforced by the new European Border and Coast Guard. In the international sphere, a
Trust Fund for Africa, 80 a partnership framework with third countries 81 and a recommendation on a voluntary
admission scheme with Turkey were established.82 Also, integration and legal entry possibilities for key workers were
part of the agenda, for instance by the suggestion of a Blue Card Directive.83
This summary of proposals and measures shows that most efforts were oriented towards the enforcement of
external border controls and the defence against the refugee inflow and migrant smuggling. Furthermore, the EU
targeted harmonization to foster a balance of burdens amongst MS and reduce secondary migration. Although many
measures were proposed by the Commission and heads of states in the course of the crisis, it could be argued that they
constitute rather political tranquilizers than actual crisis management measures. 84 By December 2016, most of the
legislative measures, apart from the regulation amending Frontex, are still in the origination process. The implemented
measures mostly concerned the effective implementation of the already established system and were within the
competence of EU agencies, such as Europol or EASO, or decided by heads of states.85 If the legislative acts do not
serve the acute management of the crisis and, moreover, are unlikely to be adopted in the current political atmosphere,
it is to be questioned whether they should have been subject to a more thorough scrutiny and serve the coherent
renewal of the system at a later point.
Also on a national level, in Austria, the refugee influx of 2015 provoked several new provisions. First of all, over
the course of 2015 the accommodation of asylum seekers became a seemingly unsolvable issue. Thus, the government
proposed a temporary amendment of the constitution introducing the “BVG-Unterbringung” in order to allow for it to
directly use properties in the competence of Austria’s federate states without following the regular administrative
procedures.86 The adoption of this law allowed for the government to create new accommodation swiftly in the present
times of increased demand and reduced the reviewing mechanism to a concentrated procedure binding the minister of
interior only to indispensable minimum requirements.87 Similar simplifications can be observed on the level of federal
states, for instance in Vorarlberg, which also introduced a special procedure to its building law.88
Furthermore, in July 2015 the new “Fremdenrechtsänderungsgesetz 2015” entered into force. It introduced several
amendments of Austrian asylum and migration law. 89 These concerned competences, procedures and substantive
provisions alike for the purpose of a more flexible and efficient system, next to the implementation of EU legislation
and jurisdiction.90 Already in September 2015 another amendment of the Austrian Asylum Act was under discussion.
The government sought to reduce the refugee influx into Austria and considered introducing a temporal limitation for
residence permits on the ground of asylum to three years as one measure.91
After a lengthy legislative procedure the amended Asylum Act entered into force in May 2016 including not only
temporary asylum and restrictions to family reunification but also a new exemptive provision for asylum procedures at

77
Commission, ‘EU Action Plan on return’ (Communication) COM (2015) 453 final.
78
Commission, ‘Recommendation of 1.10.2015 establishing a common "Return Handbook" to be used by Member States' competent authorities
when carrying out return related tasks’ C (2015) 6250 final.
79
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council n a European travel document for the return of
illegally staying third-country nationals’ COM (2015) 668 final.
80
Commission, ‘Decision of 20.10.2015 on the establishment of a European Union Emergency Trust Fund for stability and addressing root
causes of irregular migration and displaced persons in Africa’ C (2015) 7293 final.
81
Commission, ‘On establishing a new Partnership Framework with third countries under the European Agenda on Migration’ (Communication)
COM (2016) 385 final.
82
Commission, ‘Recommendation of 15.12.2015 for a voluntary humanitarian admission scheme with Turkey’ C (2015) 9490.
83
Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third -
country nationals for the purposes of highly skilled employment’ COM (2016) 378 final (hereinafter: Blue Card Directive).
84
See Selanec 94.
85
Eg Valletta Summit, ‘Action Plan’ (11.-12. November 2015) <http://www.consilium.europa.eu/en/meetings/international-
summit/2015/11/action_plan_en_pdf/> accessed 17.12.16.
86
Constituional law on the accommodation and allocation of aliens in need of protection (Bundesverfassungsgesetz über die Unterbringung und
Aufteilung von hilfs- und schutzbedürftigen Fremden) BGBl I 2015/120 (hereinafter: BVG-Unterbringung).
87
Valentina Arnez and Tamara Völker, ‘Legistische Maßnahmen zur Bewältigung der Flüchlingskrise’ in Gerhard Baumgartner, Öffentliches
Recht: Jahrbuch 16 (NWV 2016) 14.
88
§ 20a VbG BauG LGBl 2001/52 as amended by LGBl 2015/54; see Khakzadeh-Leiler 10.
89
Amendment of the Austrian migration and asylum law 2015 (Fremdenrechtsänderungsgesetz 2015) BGBl I 2015/70.
90
See Arnez/Völker 19-22.
91
Arnez/Völker 22.
10
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

the border in times of reintroduced internal border controls due to mass immigration. 92 In the explanations
accompanying this newest amendment, the Austrian government argued that it is currently facing a threat to public
order and internal security and that this emergency state would legally allow Austria to derogate from existing
international, European and constitutional standards.93 This explanatory notes and the somewhat heated discussion
between the government’s coalition partners, however, revealed that the determination of a crisis situation was
ambiguous to them as well. Eventually, their reasoning had to face accusations of being a mere means to circumvent
obligations imposed by EU law.94 Also the applicability of the announced maximum limits for asylum applications is
unclear. Although the limit of 37.500 was not reached in 2016 and, hence, the government did not make use of its
competence to activate § 36 AsylG, this might be the case in 2017.95 Most probably, it will then be reviewed by the
Austrian constitutional court and possibly also the European Courts.96
Furthermore, border control officers received the authority to take finger prints and photographs in the course of
border controls and compare them with the police data base.97 This amendment was part of the reintroduction of
(internal) border controls at the Hungarian and Slovenian borders enacted by a regulation of the Austrian minister of
interior to ensure public order and safety. The border controls were supposed to only last several months in
accordance with the Schengen Borders Code, but were prolonged several times.98 Unsurprisingly, Austria is not alone
in taking this direction. Also Belgium, Denmark, Germany, Hungary, Slovenia, Sweden and Norway reintroduced
their internal border controls invoking Art 25 of the Schengen Borders Code.99 France temporarily reintroduced border
controls, however, referring to the occurred terrorist attacks not to the refugee influx. 100 Although, the European
Commission confirmed the necessity of border controls in autumn 2015, it later urged the respective countries to
resolve this situation swiftly and return to the ordinary Schengen system. 101 In this regard, Austria is acting in a
sensitive political atmosphere since its affected neighbouring countries carry contradictious interests and the concept
of solidarity within the EU’s member states is currently being put to the test once again.102 Whether the conduct of
Member States was legitimate will also be decided by the outcome of several pending infringement procedures.103

92
§§ 36-41 Austrian Asylum Law 2005 (AsylG 2005) BGBl I 2005/100 as amended by BGBl I 2016/24.
93
Explanatory Notes (ErlRV) 1097 BlgNR 25. GP 13; see Walter Obwexer and Bernd-Christian Funk, Gutachten: Völker-, unions- und
verfassungsrechtliche Rahmenbedingungen für den beim Asylgipfel am 20. Jänner 2016 in Aussicht genommenen Richtwert für Flüchtlinge (29.
March 2016).
94
See eg Iris Bonavida, ‘Asyl-Notverordnung mit Hindernissen’ DiePresse.com (16.08.16)
<http://diepresse.com/home/politik/innenpolitik/5069801/AsylNotverordnung-mit-Hindernissen> accessed 20.12.16;
95
See Republik Österreich, ‘Gemeinsame Vorgangsweise von Bund, Ländern, Städten und Gemeinden’ (Asylgipfel, 20. Jänner 2016)
<www.bka.gv.at/DocView.axd?CobId=61858> accessed 20.12.16; Obwexer/Funk 42; see also explanatory notes to the draft of a regulation by
the government for the determination of a threat to public order and internal security (Verordnung der Bundesregierung zur Feststellung der
Gefährdung der Aufrechterhaltung der öffentlichen Ordnung und des Schutzes der inneren Sicherheit, NotVO)
<http://www.bmi.gv.at/cms/BMI_Begutachtungen/2016_09_07/Erlaeuterungen_VO_BReg_Feststellung_der_Gefaehrdung_doeO.pdf> accessed
20.12.16.
96
Hailbronner/Thym 754.
97
§ 12a para 2 Austrian Border Control Act (Grenzkontrollgesetz, GreKoG) BGBl 1996/435 idF BGBl I 2016/25. This amendment stood in
direct connection with the entry of refugees as the explanations the comments to the amendment reveal; see IA 1531/A 25 GP 2.
98
Regulation of the Austrian Minister of the Interior concerning the temporary reintroduction of internal border controls BGBl II 2015/260 as
amended by BGBl II 2016/311.
99
Art 25 SBC; see Commission, ‘Back to Schengen – A Roadmap’ (Communication) COM (2016) 120 final 9.
100
APA, ‘EU-Kommission strebt Ende interner Grenzkontrollen bis Jahresende an’ (APA, 04.03.16) <http://www.apa.at/News/6328549444/eu-
strebt-ende-interner-grenzkontrollen-bis-jahresende-an.html> accessed 20.09.16.
101
Commission, ‘Opinion of 23.10.2015 on the necessity and proportionality of the controls at internal borders reintroduced by Germany and
Austria pursuant to Article 24(4) of Regulation No 562/2006 (Schengen Borders Code)’ C (2015) 7100 final; Commission, ‘Back to Schengen’.
102
Jean-Claude Juncker, ‘Towards a better Europe - a Europe that protects, empowers and defends’ (State of the Union Address, 14 September
2016) <http://europa.eu/rapid/press-release_SPEECH-16-3043_en.htm> accessed 18.12.16; European Council, ‘The Bratislava Declaration’
(Statement and Remarks, 16 September 2016).
103
See Commission, ‘More Responsibility in managing the refugee crisis: European Commission adopts 40 infringement decisions to make
European Asylum System work’ (Press release, 23 September 2015) <http://europa.eu/rapid/press-release_IP-15-5699_en.htm> accessed
20.12.16; Commission, ‘Implementing the Common European Asylum System: Commission acts on 9 infringement proceedings’ (Press release,
10 February 2016) <http://europa.eu/rapid/press-release_IP-16-270_en.htm> accessed 20.12.16.
11
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

III. Goals and Methods

This wide range of seemingly hysteric reactions with provisions and measures issued both, on Union and national
level, indicates the adoption of the typical conduct under a crisis situation omitting the regular consideration process.
Thus, there is a need to systemise and classify the occurrences, look at their nature, targets, application and long-term
consequences, which constitutes one principal aim of the proposed study. In order to do so, the study will assess the
possibility of generating guidelines for the determination of a crisis of mass immigration in European and Austrian
law, or in the absence of such, a general threshold thereof. The analysis will rely on a textual and systematic
interpretation of relevant provisions. Furthermore, related jurisdiction of the European Court of Human Rights
(ECtHR), the European Court of Justice (ECJ) and Austrian courts will be assessed. Also, state practice might be
regarded where found applicable. In a second step, the study will review potential impacts of crisis management
provisions on competences and procedures, state obligations and individual rights, categorise them according to their
temporal application and inspect possible limitations. Finally, the third chapter will hold critical observations on the
basis of the foregoing dogmatic analysis regarding general crisis law and the refugee crisis in comparison to other
crises.

IV. State of Research

The consideration of emergency allowances as a potential threat to the regular legislative process and its risk of
misuse is not new. It has been a topic for philosophers, political scientists and legal theorists alike throughout the last
century.104 In the last decade, however, much attention of the legal discourse on crises has circled around terrorism
and data protection on an international level and the financial crisis on a European level.105 Now in the face of the
European refugee crisis, many of their conclusions prove to be valid during these circumstances as well. However, the
refugee crisis comes with some unique characteristics, such as a distinct legal basis, specific root causes and particular
political sensitivity. Almost weekly, conferences are held on the topic of the refugee or other crises and a certain
perplexity is always present. 106 The statements range from moral appeals to solidarity amongst MS and towards
refugees to calls upon politicians to restore control over internal borders and ensure a firm regulation of migration
flows by introducing hotspots in North African countries, dispose of “pull-factors” etc. Although, there is indeed a
constant output of articles in academic journals and legal blog-posts on the topic,107 increasingly so since 2014/15,
they usually only assess singular issues or reveal the political agenda of their respective author. In this context,
however, it is necessary to mention that the phenomenon is not only very recent, but also ongoing. Hence, more
comprehensive work is presumably still in progress as well as the publication of various conference proceedings of the
year 2016.108 So far, Gratz reviewed the occurrences of autumn 2015 in Austria holistically from the perspective of
political sciences109 and also the legal scholars Depenheuer and Grabenwarter reviewed the same period broadly.110
Yet, the problem and its long-term consequences have not been considered in a coherent and holistic manner from a
legal point of view with regard to current developments in Austrian and European refugee law in comparison with
other crises. Hence, there is an apparent demand for the proposed comprehensive legal analysis.

104
See eg Carl Schmitt, Politische Theologie (1922); for Austria see eg Gernot D Hasiba , Das Notverordnungsrecht in Österreich (1848-1917)
(VÖAW 1985) 37 as cited in Khakzadeh-Leiler 8; for a recent discussion see William E Scheuerman, ‘Die Globalisierung von Carl Schmitt?’
(forthcoming in Kritische Justiz, 2017).
105
See eg Hoffmann-Riem; Andrew W. Neal, ‘Normalization and Legislative Exceptionalism: Counterterrorist Lawmaking and the Changing
Times of Security Emergencies’ (2012) 6 International Political Sociology 260.
106
See eg Ludwig Boltzmann Institute for Human Rights, ‘Human Rights Talks: Human rights under pressure - Exceptional circumstances as
the new normal in Europe?’ (YouTube, 21. October 2016)
<https://www.youtube.com/watch?v=v8R4FUz7vYE&t=8s&list=PLAkT9w2Bzm2mxOrYS_lKX1e3q7IkcqwJH&index=2> accessed 18.11.16;
Universität Innsbruck, ‘EU und Immigration’ (Conference, 14.-15.11.16);
107
See eg EU Migration and Asylum Law and Policy <http://eumigrationlawblog.eu/> accessed 18.12.16; Legal Tribune Online
<http://www.lto.de/recht/hintergruende/> accessed 18.12.16; Verfassungsblog – On Matters Constitutional <http://verfassungsblog.de/>
accessed 18.12.16.
108
See eg Violeta Moreno-Lax, Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law (forthcoming
Oxford University Press) and other forthcoming articles mentioned in the selection of literature of this proposal.
109
For a political analysis of the Austrian crisis management in 2015 see Gratz.
110
Otto Depenheuer and Christoph Grabenwarter (eds), Der Staat in der Flüchtlingskrise: zwischen gutem Willen und geltendem Recht
(Schöningh 2016).
12
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

V. Research Questions and Hypotheses

Research Question 1: Is it possible to capture the term “refugee crisis” in a legal context?
Hypothesis 1: The term refugee crisis can have a legal significance in regard to several exemptive
provisions in European and Austrian refugee law.

Research Question 2:
Hypothesis 2:
What is the impact of crisis provisions and measures on the legal order of Austrian and
Union law? How does crisis law function in the example of the refugee crisis?
Crisis mechanism often trigger a shift of power to the executive and derogation from
procedural and substantive standards having an evident impact, not only on
competences, the rule of law, the balance of power and the democratic principle, but also
on individual rights and burdens as well as state obligations and responsibilities.

Research Question 3: Does the application of crisis management provisions show detrimental effects that could
be avoided?
Hypothesis 3: In the long run, these shifts and derogations might become an integral part of the legal
order, ie the crisis become the new normal, and thus, cause a long-term alteration of
existing standards without the designated precautionary mechanisms of the regular
legislative and administrative process and thereby reduce these standards leading to a
downwards spiral. Vice versa, due to the use of short-term emergency measures, issues
requiring a long-term solution do not experience the well-conceived systematic change
necessary to their sustainable solution.
VI. Provisional Structure
I. Introduction
1. The Term Crisis
i. Historical Incidents and Refugee Situation of 2015
ii. Communicative and Political Questions
2. General Legal Aspects
II. The Crisis in Refugee Law
1. Analysis of Exemptive Provisions
i. Provisions for General Emergency Situations
(1) European Union
(2) Austria
ii. Provisions in Refugee Law
(1) European Union and ECHR
(2) Austria
iii. Sub-Conclusion
(1) Common Characteristics and Functionality
(2) Common Threshold
(3) Prerogative of Interpretation
2. Legal Reactions since 2015
i. European Union
ii. Austria
III. The Crisis and its Legal Implications
1. Possible Impact and Consequences
i. Functional and Substantive Consequences
(1) State Obligations
(2) Competences, Jurisdiction and Procedures
13
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

a. Legislation
b. Administration
(3) Individual Rights and Burdens
ii. Temporal Impact
(1) Temporary Measures
(2) Non-Temporary Measures within Crisis Law and the Regular Legislative Procedure
2. Limitations
i. Non-Derogable Provisions
ii. Proportionality
IV. Observations
1. Crisis Rationale, Crisis Law and Crisis Reality
i. General
ii. The Refugee Situation 2015
2. Crisis and the Legal Order
i. Rule of Law
ii. Democracy
iii. Balance of Powers
iv. Responsibility
3. Crisis as a Downward Spiral?
i. The State of Crisis Becoming the New Normal
ii. Solving Long-Term Issues with Short-Term Solutions
4. [Others
i. Mutual Trust and Solidarity within the EU
ii. Allegations of Hypocrisy/Undermining EU’s Position as “Human Rights Defender”
iii. Weak standing of Interest Group]
5. Possible Revision and Control Mechanisms
i. Judicial Revision in Austria and Europe
ii. Commission Infringement Proceedings
iii. Others [eg. Monetary Control?]
V. Conclusion

VII. Expected Time Frame

Until November 2016
January/February 2017
Summer Semester 2017
Winter Semester 2017/18
Summer Semester 2018
Winter Semester 2018/19
Summer Semester 2019
September 2019
 Mandatory courses and seminars
 Literature and judicature research/Choice of topic
 Preparation of the research proposal
 Presentation of the topic in a seminar
 Submission and publication of the research proposal
 Dissertation agreement with supervisor
 Detailed draft
 Chapter II
 Regular consultation of supervisor
 Chapter III
 Regular consultation of supervisor
 Chapter IV
 Regular consultation of supervisor
 Introduction and Conclusion
 Regular consultation of supervisor
 Finalising and submitting thesis
 Defence

14
Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

VIII. Selection of Literature

Arnez V and Völker T, ‘Legistische Maßnahmen zur Bewältigung der Flüchlingskrise’ in Gerhard Baumgartner (ed),
Öffentliches Recht: Jahrbuch 16 (NWV 2016) 11.
Bauerschmidt J et al, Konstitutionalisierung in Zeiten globaler Krisen (Nomos 2015).
Bogumil J, Hafner J and Kuhlmann S, ‘Verwaltungshandeln in der Flüchtlingskrise: Vollzugsdefizite und
Koordinationschaos bei der Erstaufnahme und der Asylantragsbearbeitung’ (2016) 49 Die Verwaltung 2, 289.
Boucobza I and Girard C, ‘Constitutionnaliser l’état d’urgence ou comment soigner l’obsession
d'inconstitutionnalité?’ (2016) La Revue des droits de l’homme. Actualités Droits-Libertés 1.
Brandt P (ed), Verfassung und Krise (BWV 2015).
Calhoun C, ‘A World of Emergencies: Fear, Intervention and the Limits of Cosmopolitan Order’ (2004) 41 Canadian
Review of Sociology and Anthropology 373.
Curtin D, ‘Challenging Executive Dominance in European Democracy’ (2014) 77 Modern Law Review 1.
De Bruycker P and Tsourdi EL, ‘The Bratislava Declaration on migration: European irresponsibility instead of
solidarity’ (EU Immigration and Asylum Law and Policy, 27 September 2016).
Den Heijer M, Rijpma J and Spijkerboer T, ‘Coervion, Prohibition, and great Expectations: The continuing failure of
the Common European Asylum System’ (2016) 53 Common Market Law Review 3.
Depenheuer O and Grabenwarter C (eds), Der Staat in der Flüchtlingskrise: zwischen gutem Willen und geltendem
Recht (Schöningh 2016).
Di Filippo M, ‘Dublin “reloaded” or time for ambitious pragmatism?’ (EU Immigration and Asylum Law and Policy,
12 October 2016) .
Eisenberger I, Innovation im Recht (Verlag Österreich 2016).
Falkner G, ‘The EU’s problem-solving capacity and legitimacy in a crisis context: a virtuous or vicious circle?’ (2016)
39 West European Politics 5, 953.
Falkner G, EU policies in times of crisis: Mechanisms of change and varieties of outcomes (forthcoming in Routledge
London 2017).
Falkner Gerda, ‘The EU’s current crisis and its policy effects: research design and comparative findings’ (2016) 38
Journal of European Integration 3, 219.
Finke J, ‘Krisen und die Dynamik des Rechts’ (Habilitation, Johann Wolfgang Goethe-Universität Frankfurt am Main
2015).
Finke J, ‘Funktion und Wirkung der Ausnahme im Recht’ (2015) 140 AöR 4, 514.
Gratz W, Das Management der Flüchtlingskrise: Never let a good crisis go to waste (NWV 2016).
Costello C et al, ‘Enhancing the CEAS: “Dublin without Coercion” and Access to Protection’ (forthcoming in Journal
of Immigration, Asylum and Nationality Law).
Hailbronner K and Thym D (eds), EU Immigration and Asylum Law: A Commentary (2nd edn, CH Beck/Hart/Nomos
2016).
Hailbronner K and Thym D, ‘Grenzenloses Asylrecht? Die Flüchtlingskrise als Problem europäischer
Rechtsintegration’ (2016) 71 Juristen Zeitung 15/16, 753.
Hanrieder T and Kreuder-Sonnen C, ‘Who decides on the exeption? Securitization and Emergency Government in
Global Health’ (2014) 45 Security Dialogue 331.
Hatje A, Die Einheit des Unionsrechts im Zeichen der Krise (Nomos 2013).
Heath BJ, ‘Global Emergency Power in the Age of Ebola’ (2015) 57 Harvard International Law Journal 1.

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Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

Heikkilä M and Mustaniemi-Laakso M, ‘Seeing the Individual in the Midst of Large-Scale Phenomena: Some
Remarks on the European Approach to the Refugee Situation’ in Benedek W et al (eds), European Yearbook on
Human Rights: Yearbook 16 (NWV/Intersentia 2016).
Hoffmann-Rehnitz PR, ‘Zur Unwahrscheinlichkeit der Krise in der Frühen Neuzeit’ in: Schlögl R, Hoffmann-
RehnitzPR and Wiebel E (eds), Die Krise in der Frühen Neuzeit (2016).
Hoffmann-Riem W, Innovation und Recht – Recht und Innovation: Recht im Ensemble seiner Kontexte (Mohr
Siebeck, 2016).
Hurwitz AG, The Collective Responsibility of States to Protect Refugees (Oxford 2009).
Hruschka Constantin, ‘Dublin is dead! Long live Dublin! The 4 May 2016 proposal of the European Commission’
(EU Immigration and Asylum Law and Policy, 17 May 2016).
Isensee J, ‘Resilienz von Recht im Ausnahmefall‘ in Lewinski K (ed), Resilienz des Rechts – Zur Widerständigkeit des
Rechts in Krisen und Ausnahmefällen (Nomos 2015).
Jeandesboz J and Pallister-Wilkins P, ‘Crisis, Routine, Consolidation: The Politics of the Mediterranean Migration
Crisis’ (2016) 21 Mediterranean Politics 2, 316.
Khakzadeh-Leiler L, ‘Recht und Krise’ in Aigner M et al (eds), Krise und Recht (forthcoming in Jan Sramek 2017).
Kokott SJ, ‘Krisen im Recht’ in Hergenröder CW (ed), Krisen und Schulden: Historische Analysen und gegenwärtige
Herausforderungen (VS Verlag 2011).
Kreuder-Sonnen C and Zangl B, ‘Which Post-Westphalia? International Organizations between Constitutionalism and
Authoritarianism‘ (2015) 21 European Journal of International Relations 568.
Laffan B, ‘Europe’s union in crisis: tested and contested’ (2016) 39 West European Politics 5, 915.
Lawrence J, ‘EU in Crisis: Crisis discourse as a technique of government’ (2013) 44 Netherlands Yearbook of
International Law 187.
Léonard S and Christian K, ‘Beyond Stockholm: in search of a strategy for the European Union’s Area of Freedom,
Security and Justice’ (2016) 17 European Politics and Society 2, 143.
Maiani F, ‘The Reform of the Dublin III Regulation’ (Study for the Directorate-General for Internal Policies of the
European Parliament – Policy Department C: Citizens’ Rights and Constitutional Affairs 2016).
Matti E, ‘Entwicklungen im Europarecht 2015’ in Gerhard Baumgartner, Öffentliches Recht: Jahrbuch 16 (NWV
2016).
Menendez AJ, ‘The Existental Crisis of the European Union’ (2013) 14 German Law Journal 453.
Merli F, ‘Das Asylrecht als Experimentierfeld’ in Merli F and Pöschl M (eds), Tagungsband: Das Asylrecht als
Experimentierfeld (forthcoming in Manz 2017).
Moreno-Lax V, ‘The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’, in
Goodwin-Gill GS and Weckel P (eds), Migration & Refugee Protection in the 21st Century: Legal Aspects -
The Hague Academy of International Law Centre for Research (Martinus Nijhoff 2015) 665.
Müller P, ‘EU foreign policy: no major breakthrough despite multiple crises’ (2016) 38 Journal of European
Integration 3, 359.
Müllner J, Rechtliche Rahmenbedingungen der Katastrophenbekämpfung (Verlag Österreich 2016).
Neal AW, ‘Normalization and Legislative Exceptionalism: Counterterrorist Lawmaking and the Changing Times of
Security Emergencies’ (2012) 6 International Political Sociology 260.
Nettesheim M, ‘Krisen im Recht und Krise des Rechts – Oder: Ist die Finanzkrise auch eine Rechtskrise?’ (2016) 1
Europarecht 1.
Nowak M and Walter AE, ‘The Crisis of European Refugee Policy’ in Benedek W et al (eds), European Yearbook on
Human Rights: Yearbook 16 (Intersentia 2016).
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Research Proposal Julia Kienast
“Asylum, Law and Crisis” julia.kienast@univie.ac.at

Obwexer W and Funk BC, ‘Gutachten: Völker-, unions- und verfassungsrechtliche Rahmenbedingungen für den beim
Asylgipfel am 20. Jänner 2016 in Aussicht genommenen Richtwert für Flüchtlinge’ (Study for the Austrian
Ministry of Interior, 29. March 2016).
Papier FJ, ‘Asyl und Migration als Herausforderung für Staat und EU’ (2016) 33 NJW 2391.
Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 European Journal of
Migration and Law 33.
Penuel KB, Statler M and Hagen R, Encyclopedia of Crisis Management (SAGE 2013).
Posner EA and Vermeule A, ‘Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of
2008’ (2009) 76 University of Chicago Law Review 1613.
Pöschl M, ‘Part I.1: Migration und Mobilität’ in 19. Österreichischer Juristentag (Manz 2015).
Rehrl J (ed), Handbook for Decision Makers: The common security and defence policy of the European Union (2014).
Rosenberger S and König A, ‘Welcoming the Unwelcome: The Politics of Minimum Reception Standards for Asylum
Seekers in Austria’ (2011) 25 Journal of Refugee Studies 4, 537.
Sandhu S, ‘Krisen als soziale Konstruktion: zur institutionellen Logik des Krisenmanagements und der
Krisenkommunikation’ in Thießen A (ed), Handbuch Krisenmanagement (2nd edn, SpringerVS 2014).
Scheller H, ‘Fiscal Governance und Demokratie in Krisenzeiten’ (2012) in 62 APuZ 13, 9.
Scheuerman WE, ‘Die Globalisierung von Carl Schmitt?’ (forthcoming in Kritische Justiz, 2017).
Selanec NB, ‘A Critique of EU Refugee Crisis Management: On Law, Policy and Decentralisation’ (2015) 11 CYELP
73-144.
Stotz R and Skvarilova-Pelzl P, ‘§ 37 Europarechtliche Gesetzeskontrolle’ in Kluth W and Augsberg S (eds),
Gesetzgebung: Rechtsetzung durch Parlamente und Verwaltungen sowie ihre gerichtliche Kontrolle (CF Müller
2014) 989.
Thalmann P, ‘Der Raum der Freiheit, der Sicherheit und des Rechts’ in Klamert (ed), EU-Recht (Manz 2015) 161.
Thalmann P, ‘Meilensteine in der rechtlichen Entwicklung der Integration’ in Griller S et al (eds), 20 Jahre EU-
Mitgliedschaft Österreichs: Auswirkungen des Unionsrechts auf die nationale Rechtsordnung aus
rechtswissenschaftlicher, politikwissenschaftlicher und wirtschaftswissenschaftlicher Sicht (forthcoming in
Verlag Österreich 2016).
Trauner F, ‘Asylum policy: the EU’s ‘crises’ and the looming policy regime failure’ (2016) 38 Journal of European
Integration 3, 311.
Thießen A (ed), Handbuch Krisenmanagement (2nd edn, SpringerVS 2014).
Vedsted-Hansen J, ‘The European Convention on Human Rights, Counter-Terrorism, and Refugee Protection’ (2011)
29 Refugee Survey Quarterly 4, 45.
Vedsted-Hansen J (ed), The Refugee Law Reader: Cases Documents and Materials (7th edn, Aarhus/Budapest 2015)
Vilpišauskas R, ‘Eurozone Crisis and European Integration: Functional Spillover, Political Spillback?’ (2013) 35
Journal of European Integration 3, 361.
Wendekamm M, ‘Politikfelder im Wettstreit? Innere Sicherheit, Migration und Terrorismus’ (2016) 66 APuZ 43-45.
White JP, ‘Emergency Europe’ (2015) 63 Political Studies 300.
Wimmel A, ‘Die Mitwirkungsrechte des Bundestages in der Euro-Krise. Eine machtpolitische Analyse’ (2014) 12
Journal for comparative government and European policy (ZSE) 4.

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