4. US-CHINA LAW REVIEW
VOLUME 14, NUMBER 12, DECEMBER 2017 (SERIAL NUMBER 144)
CONTENTS
ARTICLES
CHANCES FOR MORE SOLIDARITY IN THE REFORM OF THE COMMON EUROPEAN ASYLUM
SYSTEM?
Ulrike Brandl 795
A MODEL FOR OPTIMIZING THE WORK OF ETHICS COMMITTEES IN THE HEALTHCARE
SYSTEM IN BULGARIA: AN INSTRUMENT FOR MORE EFFECTIVE DISTRIBUTION OF
HEALTHCARE SERVICES
Petya Trendafilova & Neli Gradinarova 815
THE LEGAL PROFESSION IN ITALY AND THE RULES FOR OUTSOURCING LEGAL SERVICES
Marco Mazzeschi & Yunxia Li 821
PARTICIPATORY MANAGEMENT OF CONSERVATION AREAS
José Manuel Elija Guamba, PhD 832
BLOCKCHAIN, DIGITAL MUSIC AND LEX MERCATORIA
Ewa Fabian 852
5. Editorial Board Members
Africa
Prof. Obeng Mireku (University of Fort Hare, South Africa)
Pacharo Kayira (Ministry of Justice and Constitutional Affairs, Malawi)
Asia
Prof. Jianfei Li (Renmin University of China, China)
Dr. Mohsen Abdollahi (Shehid Beheshti University, Iran)
Dr. Qi Ming (Jilin University, China)
Dr. Sheetal Chopra (Federation of Indian Chambers of Commerce and Industry, India)
Prof. Shenting Tsai (National Taipei University, China Taiwan)
Prof. Shlomit Yanisky-Ravid (Yale Law School, Israel)
Dr. Sibel Hacımahmutoğlu (Hacettepe University, Turkey)
Prof. Usha Tandon (University of Delhi, India)
Litigator Vira Kammee (SCL Law Group, Thailand)
Prof. Young Hoa Jung (Chonbuk National University, Korea)
Europe
Prof. A. F. M. Maniruzzaman (University of Portsmouth, UK)
Dr. Andrew Agapiou (Strathclyde University, UK)
Prof. Aniceto Masferrer (University of Valencia, Spain)
Post Doctoral Annalisa Triggiano (Università degli Studi di Salerno, Italy)
Dr. Dana Sramkova (Masaryk University, Czech)
Prof. Dobrinka Ivanova Chankova (South-West University, Bulgaria)
Dr. Gabrielle McIntyre (Office of the President for the International Criminal Tribunal,
The Netherlands)
Prof. Gordana Kovaček-Stanić (University of Novi Sad, Serbia)
Prof. Kristine Strada-Rozenberga (University of Latvia, Latvia)
Prof. Mária Patakyová (Comenius University Bratislava, Slovakia)
Dr. Michal Radvan (Masaryk University, Czech)
Dr. Pavel Koukal (Masaryk University, Czech)
Prof. Titti Mattsson (Lund University, Sweden)
Dr. Tonye Clinton Jaja (American University of London, United Kingdom)
North America
Associate Prof. Dawn F. Jourdan (University of Oklahoma, USA)
Dr. Nicole Lawrence Ezer (The Ezer Law Group, USA)
Prof. Paul F. Hodapp (University of Northern Colorado, USA)
6. US-CHINA LAW REVIEW
VOL. 14 December 2017 NO. 12
795 doi: 10.17265/1548-6605/2017.12.001
CHANCES FOR MORE SOLIDARITY IN THE REFORM
OF THE COMMON EUROPEAN ASYLUM SYSTEM?
Ulrike Brandl
The contribution focuses on the notion solidarity in the Common
European Asylum System (CEAS), noting examples of deficits and lack of
solidarity in practice, with a particular emphasis on the events in the course of
and following the mass arrival of migrants to Europe since 2014. It analyses
the possibilities to invoke solidarity in the present system (such as the early-
warning mechanism as part of the Dublin system, the Temporary Protection
Directive and provisional measures in situations of emergency based on
Article 78 (3) TFEU). In order to illustrate what would be required to improve
solidarity in practice, the term solidarity is interpreted. Though the notion is
frequently used, it is neither defined in public international law treaties, nor in
EU law. The interpretation of the word solidarity shows that it means working
together, sharing responsibilities and duties, and also comprises that positive
effects of actions based on solidarity are shared in the community. It is a value,
a concept and a legal principle, which requires acting together in order to
reach common aims. The contribution continues with an analysis of the
possibilities to invoke solidarity in the reform of the CEAS.
INTRODUCTION............................................................................................796
I. SOLIDARITY DEFICITS IN PRACTICE .........................................................796
II. SOLIDARITY AS A LEGAL BASIS FOR THE COMMON EUROPEAN ASYLUM
SYSTEM.......................................................................................................801
A. Definition of Solidarity in Public International and European
Union Law, Consequences Deriving from the Notion Solidarity...............803
B. Specific Clauses and Mechanisms for Situations of Emergency ....
..................................................................................................805
III. CHANCES FOR IMPROVEMENT OF SOLIDARITY IN THE REFORM OF THE
COMMON EUROPEAN ASYLUM SYSTEM? ....................................................810
A. Proposal for a Recast of the Dublin Regulation and Relocation
Quota ..................................................................................................810
Dr. Ulrike Brandl, Ass.-Prof., Department of Public Law, Public International and European Union
Law, University of Salzburg. Research fields: Human Rights, Migration and Refugee Law, Law of
International Organisations, Sanctions in International Law, Sources of Public International Law.
7. 796 US-CHINA LAW REVIEW Vol. 14: 795
B. Other Proposals to Allocate Responsibility and Enhance
Solidarity ..................................................................................................812
CONCLUSIONS .............................................................................................813
INTRODUCTION
In September 2017 the Court of Justice of the European Union (CJEU)
dismissed the two actions for annulment of the relocation decisions from
September 2015 filed by the Slovak Republic and Hungary. 1
In the
judgment the Court explicitly stressed the importance of solidarity as a legal
principle in the Common European Asylum System (CEAS).2
The events in the course of and following the mass arrival of migrants
to Europe since 2014 have revealed numerous examples of deficits and lack
of solidarity in practice. This article deals with these practical deficits and
analyses the existing possibilities to invoke solidarity in the present system
(such as the early-warning mechanism as part of the Dublin system, the
Temporary Protection Directive and provisional measures in situations of
emergency based on Article 78 (3) TFEU). Subsequently the contribution
refers to the current negotiations about the reform of the CEAS and the
potential to improve the possibilities to enact solidarity in practice.
I. SOLIDARITY DEFICITS IN PRACTICE
The increasing numbers of applicants for international protection in the
EU Member States between the end of 2014 and 2016 created pressure on
national asylum systems and reception capacities in several states, especially
in the main arrival States Italy and Greece,3
and in the main receiving States
Germany, Sweden and Austria. 4
Political reactions in Member States,
1
Court of Justice of the European Union (CJEU), judgment of 6 September 2017, Slovak Republic
and Hungary v. Council of the European Union, Joined Cases C-643/15 and C-647/15 (hereafter
Judgment Slovak Republic and Hungary v. Council).
2
Supra, para. 291: “Thus, in the circumstances of this case, there is no ground for complaining that
the Council made a manifest error of assessment when it considered, in view of the particular urgency
of the situation, that it had to take—on the basis of Article 78(3) TFEU, read in the light of Article 80
TFEU and the principle of solidarity between the Member States laid down therein—provisional
measures imposing a binding relocation mechanism, such as that provided for in the contested
decision.”
3
For the relocation process from these two states see below in this contribution, Section II.2.c.
4
See for statistics: Eurostat, “Asylum and first time asylum applicants by citizenship, age and sex,
Annual aggregated data (rounded)”,
http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyappctza&lang=en. In 2015, 476,510
applications were filed in Germany, in Austria 88,340 and in Sweden 162,450, in 2016 in Germany
745,155, in Sweden 28,790 and in Austria 42,266.
8. 2017 CHANCES FOR MORE SOLIDARITY 797
restrictions in national asylum and aliens law legislation, the reluctance to
participate in the relocation process and the actions against the relocation
decisions5
demonstrated the lack of solidarity. The following short overview
of important events points to certain deficits in exercising solidarity.
The mass flight from Syria started in 2011/2012. The reasons are
manifold, people have been fleeing from the civil war and generalised
violence,6
from the Assad regime, or from fear of opposition and extremist
groups, from IS terrorism, and for other reasons. Initially, the countries in
the region (Lebanon, Turkey, Jordan, Palestinian territories, Iraq, Egypt)
were the main destination countries for persons fleeing Syria. The general
situation in the states neighbouring Syria, the duration of the conflict and
ensuing violence, and the hope to find a safe place in Europe caused the
onward move to Europe.
The situation in the first countries of arrival differed. In Turkey, where
two million or even more persons found a certain form of shelter, the
situation became increasingly difficult with the length of the sojourn, and
many Syrians did not consider staying in Turkey as a long-term solution.7
The Turkish Government enacted a temporary protection regime in 2014,8
but early reports attested that it was only implemented with a certain delay.9
5
Slovak Republic v. Council of the European Union, Case C-643/15 in [2016] OJ C38/41 and for
Hungary v. Council of the European Union, Case C-647/15 in [2016] OJ C 38/43. See Judgment
Slovak and Hungary v Council.
6
See H. Lambert, The Mass Flight of Syrian Refugees: What Are the Legal Obligations of States?,
OXHRH BLOG (2015), http://ohrh.law.ox.ac.uk/the-mass-flight-of-syrian-refugees-what-are-the-legal-
obligations-of-states/. The author argues that a customary rule of public international law to protect
persons fleeing from international and internal armed conflict emerges.
7
For the situation and the Temporary Protection system in Turkey see, Struggling to Survive:
Refugees from Syria in Turkey, AMNESTY INTERNATIONAL (2014),
https://www.amnestyusa.org/files/eur_440172014.pdf, p. 21: “[h]owever, for three and a half years
the government of Turkey failed to provide clarity as to the legal status and entitlements of refugees
from Syria once they entered Turkey. With the exception of free access to healthcare, refugees from
Syria remained unsure of what they could expect in terms of support from the Turkish authorities and
how long they would be welcome in the country. The situation was not helped by frequent statements
from the authorities referring to Syrians as „guests‟ rather than refugees […] The authorities took an
important and welcome step in addressing this situation when the Council of Ministers passed the
Temporary Protection Directive in October 2014 […] This long-awaited move replaces an
unpublished circular from March 2012 setting out the terms of temporary protection. The Directive
grants a secure legal status for refugees from Syria and enables them to receive identity cards. If fully
and promptly implemented, it should help refugees to access a range of rights and entitlements. The
Temporary Protection Directive—the secondary legislation envisaged by Turkey‟s April 2013 asylum
law—was finally passed by the Turkish Council of Ministers in October 2014, … and applies to all
Syrian refugees in Turkey (Provisional Article 1) […] Although an important step forward, the
Directive has shortcomings. It is framed principally in terms of opportunities rather than obligations”.
8
See A. İçduygu, Syrian Refugees in Turkey: The Long Road Ahead, MIGRATION POLICY INSTITUTE
(2015), http://www.migrationpolicy.org/research/syrian-refugees-turkey-long-road-ahead.
9
Supra.
9. 798 US-CHINA LAW REVIEW Vol. 14: 795
In other countries in the region, the reception of refugees had been financed
and organised by International Organisations and their partner agencies,
mainly by the World Food Programme. In recent years—especially since
2015—the amounts were reduced dramatically,10
and this lack of aid caused
a situation where more and more persons decided to seek an alternative. The
conclusion is that the lack of solidarity with the neighbouring states of Syria
led to a massive increase of prospective applicants for protection who
decided to move to Europe.
Because of the ongoing conflict and the volatile situation, there was
and still is an increased demand to move onward from these first countries
of asylum to other states, mainly to Europe. Flight routes 11
however
changed due to increased border controls, the closure of the Balkan route,
and also the EU-Turkey deal.12
The main route until 2014 was via the
Mediterranean Sea, from Libya, Egypt and Tunisia, towards Italy (and
Malta). A further route was the way to enter the EU via Greece from Turkey.
This route changed after the land border between Greece and Turkey was
closed and smugglers used the sea borders between Turkey and various
Greek islands.13
The main onward route used during the peak of the so-called crisis was
the Balkan route to Greece and from there to Macedonia, Serbia and
Hungary, or later Croatia, Slovenia and Austria to Germany. The majority
of persons in search of protection were just transiting these countries. Very
few applied in states outside the EU or in Slovenia and Croatia. Quite a
considerable amount however filed asylum applications in Austria. For
many others, Germany and Sweden were the main target countries. In
several EU Member States, the overall number of applications did not raise
significantly.14
There are various reasons for this unbalanced distribution,
many of which are directly or indirectly influenced by the lack of solidarity.
With the arrival of increased number of applicants in Europe, the
situation in Hungary, where thousands of applicants were stranded in
10
Forced to Make Deeper Cuts in Food Assistance for Syrian Refugees due to Lack of Funding,
WORLD FOOD PROGRAM (2015), https://www.wfp.org/news/news-release/wfp-forced-make-deeper-
cuts-food-assistance-syrian-refugees-due-lack-funding.
11
See information on the flight routes in the website of FRONTEX, http://frontex.europa.eu/trends-
and-routes/migratory-routes-map/.
12
See the Statement of the EU Heads of State or Government, 7 March 2016,
http://www.consilium.europa.eu/en/press/press-releases/2016/03/07-eu-turkey-meeting-statement/.
13
U. Brandl, Asyl und Einwanderung, in JAHRBUCH EUROPARECHT 16, 353-380, 354-357 (G. Herzig
(ed.), NWV Verlag 2016).
14
See for statistics Eurostat, Asylum and First Time Asylum Applicants by Citizenship, Age and Sex,
Annual Aggregated Data (rounded),
http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyappctza&lang=en.
10. 2017 CHANCES FOR MORE SOLIDARITY 799
substandard reception conditions, caused the German announcement not to
apply the Dublin III-Regulation for applicants from Syria.15
This was an act
of solidarity, and a humanitarian reaction towards persons in need of
protection. This new policy development, however, also encouraged other
prospective applicants to decide to move onwards to Europe.
In January 2016 Austria announced to limit the number of new
applicants for international protection (the so-called caps) and introduced
border controls on the Austrian-Slovenian border.16
The Austrian measures
and the predicted limit were intended to warn the neighbouring states that
Austria could close the borders for applicants when the limits are reached,
and was also meant to serve as a signal accompanying Austria‟s demand for
more solidarity in Europe. It was also intended to cause a domino effect in
the states on the Balkan route.
The closure of the Western Balkan route was agreed on the occasion of
a meeting held in Vienna on 24 February 2016. The Ministers present at the
Conference agreed on a Joint Declaration.17
A few days later, the domino
effect already reached the Macedonian-Greek border, which was completely
closed. Slovenia, Croatia, Serbia, Macedonia, Bulgaria, Kosovo, Albania,
Bosnia and Montenegro as states directly on the main route, or on an
alternative route took part upon the invitation of Austria. Neither Greece,
nor Turkey was asked to attend the conference, which led to massive
criticism from Greece, and was also seen as a negative signal vis-a-vis
Turkey, the intended main cooperation partner of the EU.
The immediate closure led to the precarious situation that many
applicants and family members of persons already present in a Member
State of the EU—either as applicants for protection, or as persons already
having a status—stranded in Greece. There was a lack of solidarity with
Greece, and again a lack of solidarity with individual applicants.
Another set of measures was aimed at negotiating with Turkey and
other third countries, from where high numbers of protection seekers made
their way to Member States of the EU. On 23 September 2015, a European
15
BAMF, Verfahrensregelung zur Aussetzung des Dublinverfahrens für syrische Staatsangehörige,
Az. 411-93605/Syrien/2015, 2015. 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 [2013] OJ L 180/31 (hereafter Dublin III-Regulation). Zeitonline, Deutschland setzt Dublin-
Verfahren für Syrer aus: Flüchtlinge aus Syrien dürfen künftig in Deutschland bleiben. Sie werden
nicht mehr in den EU-Staat zurückgeschickt, in dem sie zuerst registriert wurden, 25 August 2015.
16
See U. Brandl, In Search of a Legal Basis for the Austrian Asylum Caps, EU IMMIGRATION AND
ASYLUM LAW AND POLICY/ODYSSEUS NETWORK (31 May 2016), http://eumigrationlawblog.eu/page/2/.
17
Managing Migration Together 24 February 2016, Vienna Declaration,
http://www.bmi.gv.at/cms/cs03documentsbmi/1813.pdf.
11. 800 US-CHINA LAW REVIEW Vol. 14: 795
Council informal meeting took place where it was agreed to start negotiating
with Turkey and to “reinforce the dialogue with Turkey at all levels,
including at the upcoming visit of the Turkish President […,] in order to
strengthen our cooperation on stemming and managing the migratory
flows”.18
The EU-Turkey Statement was agreed on 18 March 2016.19
Civil
society and academic commentators expressed harsh criticism, as the
implementation of the agreed returns would lower the standards for the
treatment of applicants, given that the Turkish system is not comparable
with that of the EU.20
The arrangement was beneficial for the EU Member
States and was—as its unofficial name indicates—a “deal”, which aimed at
reducing pressure on the receiving states, and at serving the purpose of
preventing potential applicants from crossing over from Turkey to Greece.
Several states have introduced temporary border controls on internal
borders within the Schengen area since 2014 so as to prevent persons who
do not carry the necessary documents from crossing their borders. The
Schengen Border Code allows such a temporary reintroduction of border
controls at internal borders21
for a limited period of no more than 30 days, or
for the foreseeable duration of the serious threat, if its duration exceeds the
period of 30 days. Such a reintroduction requires a serious threat to public
policy, or internal security. Meanwhile, these border controls have been
18
Informal Meeting of EU Heads of State or Government on Migration, Statement (23 September
2015), http://www.consilium.europa.eu/en/press/press-releases/2015/09/23-statement-informal-
meeting/.
19
See EU Heads of State or Government, EU-Turkey Statement, (18 March 2016) point 1: “[a]ll new
irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to
Turkey. This will take place in full accordance with EU and international law, thus excluding any
kind of collective expulsion. All migrants will be protected in accordance with the relevant
international standards and in respect of the principle of non-refoulement. It will be a temporary and
extraordinary measure which is necessary to end the human suffering and restore public order. … The
costs of the return operations of irregular migrants will be covered by the EU”; point 2: “[f]or every
Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to
the EU taking into account the UN Vulnerability Criteria. A mechanism will be established, with the
assistance of the Commission, EU agencies and other Member States, as well as the UNHCR, to
ensure that this principle will be implemented as from the same day the returns start” […]; point 3:
“[T]urkey will take any necessary measures to prevent new sea or land routes for illegal migration
opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this
effect”.
20
See E. Collett, The Paradox of the EU-Turkey Refugee Deal, MIGRATION POLICY INSTITUTE (2016),
http://www.migrationpolicy.org/news/paradox-eu-turkey-refugee-deal.
21
Regulation (EU) 2016/399 of 9 March 2016 on a Union Code on the rules governing the movement
of persons across borders (hereafter recast Schengen Borders Code) [2016], OJ L 77, p. 1. See the
previous version of the Schengen Border Code in force until 2016, Regulation (EC) No 562/2006 of
the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the
rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105, p. 1.
12. 2017 CHANCES FOR MORE SOLIDARITY 801
prolonged several times and are still in force on various borders.22
These
controls do not reveal a spirit of solidarity, but exceed—at least after several
prolongations—the limit of what is strictly necessary for security reasons
and also exceed the maximum time limit of two years.23
In September 2015 the European Council adopted two relocation
decisions. 24
These decisions, which can legitimately be qualified as
measures of solidarity in an emergency situation in favour of Greece and
Italy, are dealt with in more detail below. 25
The legal basis for these
decisions is Article 78 (3) TFEU,26
allowing emergency action. Four EU
Member States voted against the adoption of the decisions, essentially
wishing to block the “sharing” of applicants, and thus refusing to act in a
spirit of solidarity.27
As mentioned above two states brought actions of
annulment against these decisions.28
II. SOLIDARITY AS A LEGAL BASIS FOR THE COMMON EUROPEAN ASYLUM
SYSTEM
The following delineation shows that contrary to the lack of solidarity
in practice, the founding treaties and the legal acts establishing the CEAS
contain the principle of solidarity as a legal basis and refer to solidarity in
22
See for the state of play of border controls information available at the European Commission
website, Notifications of the Temporary Reintroduction of Border Control: Current Temporarily
Reintroduced Border Controls, https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-
visas/schengen/reintroduction-border-control_en. See Council Implementing Decision (EU) 2017/818
of 11 May 2017 setting out a Recommendation for prolonging temporary internal border control in
exceptional circumstances putting the overall functioning of the Schengen area at risk [2017] OJ L
122, p. 73.
23
See recast Schengen Borders Code, Article 25, para. 1: “[t]he scope and duration of the temporary
reintroduction of border control at internal borders shall not exceed what is strictly necessary to
respond to the serious threat”.
24
See 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 L 239 and
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 L 248.
25
See below Section II.2.c.
26
Article 78 (3) TFEU reads: “[i]n the event of one or more Member States being confronted by an
emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on
a proposal from the Commission, may adopt provisional measures for the benefit of the Member
State(s) concerned. It shall act after consulting the European Parliament” (emphasis added).
27
G. Gotev & L. Bednárová & Z. Gabrizova, Visegrád Countries Oppose Commission’s Revamped
Asylum Policy, EURACTIV (2016), https://www.euractiv.com/section/justice-home-
affairs/news/visegrad-countries-oppose-commissions-revamped-asylum-policy.
28
Slovak Republic v. Council of the European Union, Case C-643/15 in [2016] OJ C38/41 and for
Hungary v. Council of the European Union, Case C-647/15 in [2016] OJ C 38/43. See Judgment
Slovak and Hungary v. Council.
13. 802 US-CHINA LAW REVIEW Vol. 14: 795
the preambles and the texts.29
In EU law, solidarity is mentioned in a number of provisions in the
founding treaties, either as a general basis for cooperation, or in a specific
context and wording in certain policy areas. Article 2 TFEU enumerates the
basic values of the European Union and also highlights that the societies in
EU Member States are based on pluralism, non-discrimination, tolerance,
justice, equality between women and men and also on solidarity. Solidarity
is stressed twice in Title V of the TFEU (area of freedom security and
justice), in Article 67 TFEU and especially in Article 80 TFEU. Article 80
TFEU stipulates that solidarity and fair sharing of responsibilities should be
the governing principle for all policies in the Chapter on border checks,
asylum and immigration.30
This special solidarity clause for the asylum
system was only inserted into the TFEU by the Treaty of Lisbon. Though
the Council Conclusions constantly stress solidarity31
and Article 80 TFEU
demands solidarity for the area of international protection, there are no
direct mechanisms to implement solidarity in the legal acts establishing the
CEAS.
Art. 80 TFEU provides for a possibility to enforce solidarity by legal
means. Some commentators argue that Article 80 TFEU does not have the
character of a justiciable provision.32
They mainly base their reasoning on a
29
See Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 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 (recast), [2011] OJ L 337, Recital 9; Directive
2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards
for the reception of applicants for international protection (recast), [2013] OJ L180/96, Recitals 2 and
5, Directive 2013/32/EU on Common Procedures for Granting and Withdrawing International
Protection (Recast), [2013] OJ L 180/60, Recitals 2 and 8, and Dublin III-Regulation, Recitals 7, 8, 9,
22 and 25, as well as Article 34 (for the mechanism on early warning).
30
Article 80 TFEU states: “[t]he policies of the Union set out in this Chapter and their
implementation shall be governed by the principle of solidarity and fair sharing of responsibility,
including its financial implications, between the Member States. …”.
31
Since the beginning of the creation of the Common Asylum System, solidarity was demanded by
the European Council, and was constantly mentioned and highlighted as the underlying principle by
the legislative acts. The Tampere Conclusions and the following Conclusions adopted by the
European Council, included solidarity in the development goals for the CEAS. In the Stockholm
Programme, the European Council reiterated its commitment to the objective of solidarity by
formulating that: “a common area of protection and solidarity, based on a common asylum procedure
and a uniform status” should be established by 2012. European Council, The Stockholm
Programme—An open and secure Europe serving and protecting citizens, [2010] OJ C 115, p. 1.
European Council, Presidency Conclusions: Tampere European Council, 15 and 16 October 1999,
para. 4 states: “[t]he aim is an open and secure European Union, fully committed to the obligations of
the Geneva Refugee Convention and other relevant human rights instruments, and able to respond to
humanitarian needs on the basis of solidarity”.
32
See D. Thym, Art. 80 AEUV, in E. GRABITZ, M. HILF, M. NETTESHEIM (EDS.), DAS RECHT DER
EUROPÄ ISCHEN UNION: EUV/AUV (C. H. Beck, 2011).
14. 2017 CHANCES FOR MORE SOLIDARITY 803
general assumption that solidarity is solely an underlying value. As Article
80 states: “whenever necessary, the Union acts adopted pursuant to this
Chapter shall contain appropriate measures to give effect to this principle”,33
it might be legitimate to qualify the provision as justiciable.34
In practice, no
cases were brought to the CJEU forwarding this argument, and it is quite
unlikely that this will happen, but it could be an option. This provision
might be enforced by legal action, especially in cases where states are
overburdened, and no rules are foreseen in the legal acts adopted. The most
obvious example is the Dublin III-Regulation (or its successor under
negotiation, the Dublin IV Regulation), 35
which most often allocates
responsibility to deal with an asylum claim mainly to the states where
persons seeking refuge enter the EU first—these are the states with external
borders to the south and east. Since, however, these states agreed to the
present allocation system, it seems to be unlikely that an action will be
brought before the Court. Italy and Greece agreed to the system and finally
accepted the obligations, and unfair balance of responsibilities.
A. Definition of Solidarity in Public International and European Union
Law, Consequences Deriving from the Notion Solidarity
Though solidarity is the basis for cooperation in the area of freedom,
security and justice and is a frequently used notion in public international
and EU law in general, it is neither defined in international law treaties, nor
in EU primary or secondary law. Especially in international human rights
law, solidarity plays an outstanding role and is contemplated to build the
basis for the development of third generation human rights.36
These rights
can be considered to have a collective or communal nature and are, as such,
underpinned by the solidarity principle.
The interpretation of the word solidarity in its ordinary meaning
according to Article 31 of the Vienna Convention on the Law of the
Treaties 37
reveals that solidarity requires working together, sharing of
responsibilities and duties, including positive results. In order to get some
further indication about the content of the notion, we can use the text of
33
Article 80 TFEU states: “… Whenever necessary, the Union acts adopted pursuant to this Chapter
shall contain appropriate measures to give effect to this principle”.
34
See U. Brandl, Loyalität und Solidarität in der EU-Asylpolitik, 70 ZÖ R, 491-510, 497 (2015).
35
See below Section III.1.
36
See P. Alston, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of
International Human Rights Law?, 29 NETHERLANDS INTERNATIONAL LAW REVIEW 307-322 (1982);
See also W. KÄ LIN & J. KÜ NZLI, THE LAW OF INTERNATIONAL HUMAN RIGHTS PROTECTION 32-33
(Oxford University Press, 2009).
37
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331.
15. 804 US-CHINA LAW REVIEW Vol. 14: 795
resolutions adopted by the United Nations (UN) General Assembly. UN
General Assembly Resolution 59/193 on the “Promotion of a democratic
and equitable international order” defines solidarity in an illustrative way.
Solidarity is seen as: “a fundamental value, by virtue of which global
challenges must be managed in a way that distributes costs and burdens
fairly, in accordance with basic principles of equity and social justice, and
ensures that those who suffer or benefit the least receive help from those
who benefit the most”.38
This wording makes clear that solidarity as such is
not conditional. It does not per se relate areas, which are not otherwise
related. The notion does not include bargaining about how to share duties
and responsibilities by bringing other areas into play, formulate demands,
and even create a link between areas where no conditional relation exists.
The only exception is directly related to the content of solidarity, and
involves that partners in a solidarity system apply solidarity whenever it is
needed.
Solidarity requires long-term perspectives. Results of exercising
solidarity do not appear immediately, or instantly (with the exception of
emergency actions in solidarity systems created to cater for special
situations) but only in a mid-term, or even long-term perspective. Only a
stable solidarity system can have the desired sustainable results. This
interpretation of the term solidarity requires that measures resulting from a
solidarity-based approach have to be included into the long term
perspectives of EU‟s policies in general.
According to the provisions in primary law and according to the
interpretation of the term, solidarity is required in the conceptual structure of
the CEAS. Thus the system itself should be based on mechanisms which are
designed to reach a fair balance of responsibilities. 39
Furthermore a
mechanism for situations of emergency has to be foreseen, where asylum
systems might not work adequately because of extraordinary events, most
likely mass arrivals of persons. The legislative acts have to provide for
mechanisms which are designed to support state efforts in a first stage of
emergency, as well as ultimately solving such situations in a spirit of
solidarity. There is no difference between the asylum system and other
systems of cooperation and sharing of duties and positive outcomes. As long
as a system is in normal use without exceptional pressure, it works. In cases
of threats to the system leading to an unfair distribution of duties with
38
UN General Assembly, Promotion of a Democratic and Equitable International Order, 20
December 2004, A/RES/59/193.
39
The CEAS itself is based on mutual trust that the other partners of the system fulfill their human
rights, as well as other obligations, arising from the CEAS.
16. 2017 CHANCES FOR MORE SOLIDARITY 805
negative consequences for all actors, adequate emergency measures have to
be foreseen. These measures must be suitably designed, allowing for their
adoption and implementation within a short timeframe.
B. Specific Clauses and Mechanisms for Situations of Emergency
The CEAS legal acts do contain such possibilities to react when
situations occur, where asylum systems of states are under extraordinary
pressure because of a mass arrival of persons. There are two main
possibilities to activate additional mechanisms in such cases of emergency.
In practice however, the available possibilities have never been invoked.
The only emergency measures adopted were the two relocation decisions
from 2015 in favor of Greece and Italy. One could perhaps also qualify the
support for the hotspot administration in Italy and Greece as a kind of
emergency support.
1. Article 33 Dublin III-Regulation, Exceptional Clause for Early
Warning, Preparedness and Crisis Management
The Dublin III-Regulation contains a kind of emergency clause, which
was created to allow a reaction in situations of an increased arrival of
applicants creating pressure on the asylum system of a Member State. Its
Article 33 sets out the mechanism for early warning, preparedness and crisis
management. This mechanism provides for that if the Commission
establishes that the application of the Regulation may be jeopardised due to
a substantiated risk of particular pressure on a Member State‟s asylum
system, it could make recommendations to that Member State.
The Member State should then react by presenting a preventive action
plan in order to overcome the pressure. In a second step, a crisis
management plan should be established.40
The responsibility still lies with
this Member State and other Member States are not directly involved. The
clause is not a solidarity clause stricto sensu, but could be qualified as an
exceptional clause, which should prevent that the application of the
Regulation may be jeopardised. The clause has not been invoked during the
increased arrival in 2015 and 2016.
40
See Dublin III-Regulation, Article 33 stating: “where there is a serious risk that the asylum situation
in the Member State concerned develops into a crisis which is unlikely to be remedied by a preventive
action plan”.
17. 806 US-CHINA LAW REVIEW Vol. 14: 795
2. The Temporary Protection Directive
The EU has a legal act created for situations of mass influx. The
Temporary Protection Directive41
is a pre-Lisbon directive, still containing
minimum standards and was adopted on the basis of unanimity in 2001.
From the viewpoint of the present author, it would have provided a suitable
option to deal with the crisis.42
As the full title reveals the granting of
temporary protection in the event of a mass influx and measures promoting
a balance of efforts between Member States in receiving such persons and
bearing the consequences thereof, encompasses protection, as well as fair
sharing of responsibility based on solidarity. The Directive was adopted
with the experiences from previous mass influxes of applicants in mind,
mainly from Bosnia and Kosovo. Though it was already adopted in 2001, it
was never applied in practice. The Commission never proposed its
application as it would be necessary for a subsequent Council decision.43
The Directive contains a suitable basis for a distribution key for
emergency situations. Temporary protection is defined as: “a procedure of
exceptional character to provide, in the event of a mass influx or imminent
mass influx of displaced persons from third countries who are unable to
return to their country of origin, immediate and temporary protection to
such persons, in particular if there is also a risk that the asylum system will
be unable to process this influx without adverse effects for its efficient
operation, in the interests of the persons concerned and other persons
requesting protection.”44
In Article 2 (d), the Directive defines mass influx
as: “the arrival […] of a large number of displaced persons, who come from
a specific country or geographical area, whether their arrival in the
Community was spontaneous or aided, for example through an evacuation
programme”.45
41
Council Directive 2001/55/EC of 20 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 L 212 (hereafter Temporary Protection Directive), p. 12.
42
See also M. Ineli-Ciger, Time to Activate the Temporary Protection Directive: Why the Directive
can Play a Key Role in Solving the Migration Crisis in Europe, 18 EJML 1-33 (2016).
43
Temporary Protection Directive, Article 5, para. 1 stating that: “[t]he existence of a mass influx of
displaced persons shall be established by a Council Decision adopted by a qualified majority on a
proposal from the Commission, which shall also examine any request by a Member State that it
submit a proposal to the Council”.
44
Temporary Protection Directive, Article 2 (a).
45
Temporary Protection Directive, Article 12.
18. 2017 CHANCES FOR MORE SOLIDARITY 807
Both the Commission proposal for the Directive, and the Directive
itself, contain frequent references to the notion of solidarity, and to the spirit
of solidarity that should prevail among Member States. The Directive‟s
Explanatory Memorandum confirms that it should be a tool in the service of
the CEAS, based on solidarity between the Member States.46
There was not much debate about the reasons why the Directive was
not applied during the arrival of increased numbers of applicants in 2014
and 2015. It might be assumed that there was uncertainty about the
definition of mass arrival. The main reason seems to be the fact that the
Commission did not see a realistic possibility that the Council would adopt
a decision to activate it.
There would be certain advantages in activating the temporary
protection system, which might—at present—just be estimated since no
practice exists. Its application would have lowered the immediate pressure
on the capacity of national decision making systems as the granting of a
temporary protected status does not require the full assessment of the merits
of individual applications. The status would have been granted for a certain
period (maximum three years), and meanwhile national asylum systems
could be prepared for effectively processing high numbers of asylum
applications. A time limited status would have been a convincing argument
against potential disagreements regarding the overall volume of protected
persons and would have possibly created a higher acceptance by the
population. The Directive would allow access to the labour market from the
beginning, which would be favourable for the applicants.47
There are of course counterarguments to its activation. The granting of
a temporary status would only postpone the pressure on national asylum
systems. The possibility to work would have created pressure on national
systems, and labour market administrations. The necessary integration
measures would only start later, and would lower the chances to fully
integrate persons who finally stay in the country.48
46
Proposal for a Council Directive 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, COM/2000/0303
final [2000] OJ C 311, p. 251.
47
See for the rights attached to the temporary protected status, A. Schmidt, Die vergessene Richtlinie
2001/55/EG für den Fall eines Massenzustroms von Vertriebenen als Lösung der aktuellen
Flüchtlingskrise, 7 ZAR 205-212, at 208 (2015).
48
See for an assessment H. Beirens et al., Study for the European Commission on the Temporary
Protection Directive: Final Report (2016), http://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-
library/documents/policies/asylum/temporary-protection/docs/final_report_evaluation_tpd_en.pdf.
19. 808 US-CHINA LAW REVIEW Vol. 14: 795
The Temporary Protection Directive was negotiated carefully.
Experience gathered already during the Bosnian and Kosovo crises was
taken into account. The Directive was designed for emergency situations
and would be a suitable mechanism to react in a spirit of solidarity
following a mass arrival of applicants. It is not a long-term solution, but a
useful emergency tool. As it has never been applied, it could never prove its
utility in practice.
3. Relocation Decisions
The relocation decisions49
could legitimately be qualified as measures
of solidarity in an emergency situation in favour of Greece and Italy. The
legal basis for these decisions, which were adopted in September 2015 is
Article 78 (3) TFEU,50
allowing emergency action. Decision making under
this provisions is based on qualified majority. The initial aim to reach
consensus could not be realized. The Council decisions establishing the
measures, however, were finally adopted with four states voting against and
one state abstaining.51
According to these decisions, a total of 160,000 persons should be
relocated from Italy and Greece to other EU States participating in the
CEAS.52
Additional co-operation has been foreseen with associated Member
States of the European Economic Area, and with Switzerland. These states
take part in the ongoing relocation process on a voluntary basis.53
Such a
transfer to another state requires that there is mutual trust on each other‟s
asylum systems. The relocation mechanism only applies to those nationals
who have an average EU-wide asylum recognition rate equal to, or higher
than 75% (basis of EUROSTAT data for the previous quarter). In 2014, two
49
See 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 L 239 and
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 L 248.
50
Article 78 (3) TFEU reads: “[i]n the event of one or more Member States being confronted by an
emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on
a proposal from the Commission, may adopt provisional measures for the benefit of the Member
State(s) concerned. It shall act after consulting the European Parliament” (emphasis added).
51
Czech Republic, Hungary, Romania, and Slovakia voted against the decisions. See N. Nielsen & E.
Zalan, EU Forces “Voluntary” Migrant Relocation on Eastern States, EU OBSERVER 41 (2
September 2015), https://euobserver.com/migration/130374.
52
A set of differentiated integration arrangements regarding the measures of the CEAS applies for the
United Kingdom, Ireland and Denmark. Ireland has chosen to opt in the relocation decisions, while
the UK and Denmark are not bound by them.
53
European Commission Press release, Relocation and Resettlement: Commission Calls on All
Member States to Deliver and Meet Obligations, 16 May 2017, IP/17/1302.
20. 2017 CHANCES FOR MORE SOLIDARITY 809
nationalities had a recognition rate above 75%: Syrians, and Eritreans.
According to the data for the second quarter of 2015, the 75% threshold was
passed by Syrians, Eritreans and Iraqis.
The distribution key is based on the size of the population (40%), the
total Gross Domestic Product (GDP, 40%), a corrective factor based on the
average number of asylum applications per one million inhabitants over the
previous five years (10%), and a corrective factor based on the
unemployment rate (10%). The first relocation flights took place on 9
October 2015. The Council decisions do not require the consent of asylum
seekers to the allocation and there are no remedies against relocation. It
seems that it was estimated from the beginning that relocations will in
practice only be carried out on a voluntary basis. The measures entail a
temporary derogation from the allocation on the basis of the country of first
entry rule set out in Article 13 (1) of the Dublin III-Regulation, as well as a
temporary derogation from the procedural steps, including the time limits,
laid down in Articles 21, 22 and 29 of the Regulation. Article 10 of the
decision foresees financial support, a smaller amount for Greece and Italy to
cover the transport costs of individual asylum seekers, and a lump sum to be
received by the relocating states. Commission reports on the
operationalisation of the schemes attest that progress is made, especially
compared to the initial slow start of the relocation process. It was however
never really realistic to transfer the planned number of 160,000 applicants
within the period foreseen.54
The relocation process continues even after the
initial period of two years elapsed. The Commission reported that as of 4th
September 2017 27,700 people have been relocated (19,244 from Greece
and 8,451 from Italy).55
The CJEU made a number of interesting interpretative statements with
regard to the notion solidarity in the judgment dismissing the annulment
actions.56
The Court again repeated the various documents where solidarity
was stressed and where EU Member States were asked to act in a spirit of
solidarity towards the mostly effected states Italy and Greece. The Court
then concluded that “in the circumstances of this case, there is no ground for
complaining that the Council made a manifest error of assessment when it
considered, in view of the particular urgency of the situation, that it had to
take—on the basis of Article 78 (3) TFEU, read in the light of Article 80
TFEU and the principle of solidarity between the Member States laid down
54
See European Commission, Fifteenth report on Relocation and Resettlement, COM (2017) 465
final, 6th
September 2017.
55
Ibid.
56
Judgment Slovak Republic and Hungary v. Council.
21. 810 US-CHINA LAW REVIEW Vol. 14: 795
therein—provisional measures imposing a binding relocation mechanism,
such as that provided for in the contested decision.”
The judgment confirms that Member States are obligated to participate
in the relocation of applicants for international protection. Several states
however still refuse to act accordingly and the European Commission
initiated proceedings against them.57
III. CHANCES FOR IMPROVEMENT OF SOLIDARITY IN THE REFORM OF THE
COMMON EUROPEAN ASYLUM SYSTEM?
As has been shown above there were massive deficits in the practical
exercise of solidarity despite the possibilities already foreseen in the
existing legal acts. Since 13 July 2016, when the Commission presented the
missing part of the new asylum package under the heading “Reform
of the Common European Asylum System: towards an efficient, fair and
humane asylum policy” all proposals for recasts of the legal acts are on the
table and complex discussions and negotiations in the trilogue system are
ongoing.
The proposed legal acts contain one additional solidarity clause—an
amended corrective mechanism in the recast of the Dublin Regulation—,
which is highly disputed and opposed by some Member States.58
Further
solidarity provisions are not proposed and it is even questionable whether
such additional clauses would add any further value for the improvement of
solidarity in the practice of Member States.
A. Proposal for a Recast of the Dublin Regulation and Relocation Quota
The Proposal for the recast of the Dublin Regulation (Dublin IV)59
57
Commission launches infringement procedures against the Czech Republic, Hungary and Poland,
Brussels, 14 June 2017, available at http://europa.eu/rapid/press-release_IP-17-1607_en.htm.
58
Ö sterreich und Slowakei gegen Flüchtlingsquoten, WIENER ZEITUNG (9 January 2018).
59
Proposal for a Regulation 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), (hereafter Proposal Dublin-
IV), COM/2016/0270 final, 4 May 2016. Already in 2015, the Commission had proposed a crisis
relocation mechanism and an amendment of the recast Dublin Regulation. See Proposal for a
Regulation 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 persons,
COM/2015/0450 final.
22. 2017 CHANCES FOR MORE SOLIDARITY 811
leaves the basics of the allocation system unchanged.60
The mechanism for
early warning, preparedness and crisis management however shall be
replaced by a corrective allocation mechanism (Chapter VII of the proposed
Regulation). The corrective allocation scheme is—as far as the criteria for
allocation numbers are concerned—similar to the present emergency
relocation system, which has been analysed in detail above.61
The allocation
shall be applied for the benefit of a Member State where that Member State
is confronted with a disproportionate number of applications for
international protection.62
Member States would be obliged to accept the
quota. The Commission promotes the proposed system as it contains a
“reference key to determine when a Member State is under disproportionate
asylum pressure” and includes a “fairness mechanism to address and
alleviate that pressure”.63
The Proposal intends to establish “a conditionality link between
cooperation with the allocation mechanism and the benefit of the European
60
See K. 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/. The Dublin system as such was never designed as a model reaching a fair
distribution of applicants for protection and it has never been an instrument of burden sharing, or
solidarity. It creates a direct link between responsibility to deal with an application for international
protection and the fact that a state is responsible for the presence of the person in that state (for
example illegal entry via external borders, or via issuing residence permits). Alternatives have always
been on the table, there was however not any political will to move away from the system as such.
During the negotiations of the Dublin II and Dublin III-Regulation other options for the determination
of responsibility were discussed; however the system remained as it was originally designed. See
Proposal for a Council Regulation establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application lodged in one of the Member States
by a third-country national, COM/2001/0447 final [2001] OJ 304 E 30/10, Explanatory Memorandum,
para. 2.2, stating: “[t]he most credible alternative scenario, in which responsibility would depend
solely on where the application was lodged, would probably make it possible to set up a clear, viable
system that meets a number of objectives: rapidity and certainty; no „refugees in orbit‟; resolution of
the problem of multiple asylum applications; and a guarantee of family unity […]. However, as the
Commission pointed out, it would require harmonisation in other areas […]. At this stage of the
construction of the common European asylum system, there are significant differences between the
Member States […]. It would therefore not be realistic to envisage a system for determining the
Member State responsible for examining an asylum application which diverges fundamentally from
the Dublin Convention” (emphasis added). […] As the Commission indicated in its communication
“Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons
granted asylum”, COM (2000) 755 final, “a system based on different principles could probably only
be envisaged in the context of establishing a common procedure and a uniform status, i.e. at a later
stage”.
61
See above Section II.2.c.
62
Proposal Dublin-IV, Article 34.
63
See Committee on Civil Liberties, Justice and Home Affairs, Reform of the Dublin System, EU
LEGISLATION IN PROGRESS BRIEFING 3 (2017), http://www.statewatch.org/news/2017/mar/ep-eprs-
dublin-reform.pdf.
23. 812 US-CHINA LAW REVIEW Vol. 14: 795
Structural and Investment Funds […] Similarly, it is proposed to incite the
border States by linking their performance in controlling the external border
with the benefit of the allocation mechanism”.64
This reasoning reveals that
the solidarity clause is combined with a conditional link to other areas,
especially the benefit of the European Structural and Investment Funds.
Even if a solidarity system requires that burdens, obligations and benefits
are shared and compensatory measures are agreed, it does not legitimize
connecting unrelated policy areas.
The Proposal faced harsh criticism from many commentators. Positions
in the Council are still diverging. The Parliament adopted a report65
with
amended criteria and two new features added, which intend to promote
acceptance and cooperation on the applicants‟ side.66
Already in all previous negotiations the Member States with external
borders demanded flanking measures preventing prospective applicants
from arriving. Many of these measures have been adopted. These include
projects on an enhanced co-operation on effective control at the external
borders of Member States, airport control, control of the sea borders, exit
controls in third states, control of Eastern external land borders, and visa
control in Schengen international airports. During the current negotiations
again an effective border control is one of the key issues.67
B. Other Proposals to Allocate Responsibility and Enhance Solidarity
Quite a number of other proposals for more solidarity have been
suggested by academics and practitioners. Some of them have already been
considered during the negotiations about previous EU asylum legislation.
Among them the proposal to allocate the responsibility to deal with a claim
for international protection based on a fixed distribution key (taking various
factors into account) is the most prominent one. This system could be
64
Proposal Dublin-IV.
65
Committee on Civil Liberties, Justice and Home Affairs, “Report on the 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)0270),
Rapporteur: Cecilia Wikström, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//NONSGML+REPORT+A8-2017-0345+0+DOC+PDF+V0//EN,
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A8-2017-
0345+0+DOC+PDF+V0//EN.
66
F. Maiani, The Report of the European Parliament on the Reform of the Dublin System: Certainly
Bold, but Pragmatic?, EU IMMIGRATION AND ASYLUM LAW AND POLICY/ODYSSEUS NETWORK (20
December 2017), http://eumigrationlawblog.eu/the-report-of-the-european-parliament-on-the-reform-
of-the-dublin-system-certainly-bold-but-pragmatic/.
67
Proposal Dublin-IV.
24. 2017 CHANCES FOR MORE SOLIDARITY 813
combined with an easier possibility for persons who have been granted a
protected status to move to other Member States.68
As even the corrective mechanism, which would allow a reaction in
case of an increased arrival of applicants in certain Member States, is likely
to be not accepted,69
such a fixed permanent distribution key seems to be
unrealistic in the moment.
The possibility that persons who have been granted asylum or
subsidiary protection are allowed to exercise freedom of movement in the
EU is suggested in legal literature and seems to be a good option to enhance
solidarity. The freedom of movement should be combined with a mutual
recognition of the status granted by another Member State. 70
Mutual
recognition has already been suggested by the Commission, 71
Member
States however oppose this option.
CONCLUSIONS
The increasing numbers of applicants for international protection in the
EU Member States since the end of 2014 demonstrated that Member States
only reluctantly act based on solidarity, as stipulated by the TEU and the
TFEU, especially by Article 80 TFEU. Escalating numbers greatly
challenged a spirit of solidarity in the Common European Asylum System.
Despite the existing solidarity clauses in the TEU and TFEU and in the legal
acts establishing the CEAS the practical application of solidarity clauses
does not work as one could expect in a Common Asylum System.
The CJEU confirmed the importance of solidarity and justified the
relocation decisions based on Art. 78 (3) TFEU. Despite the solidarity
clauses in primary law and despite the judgment of the CJEU stressing the
importance of solidarity, the corrective clause contained in the proposal for
a recast of the Dublin Regulation is strictly opposed by several states. The
chance for an improvement of the solidarity clauses in the CEAS are limited
and it is questionable whether any improvement could be agreed. The
conclusion that solidarity requires even a redesign of the asylum instruments
68
Mitsilegas argues how the application of the principle of mutual recognition in the field of EU
refugee law can contribute towards humanising solidarity in this context. V. Mitsilegas, Humanizing
Solidarity in European Refugee Law: The Promise of Mutual Recognition, 24 MAASTRICHT JOURNAL
OF EUROPEAN AND COMPARATIVE LAW 721-739 (2017).
69
Ö sterreich und Slowakei gegen Flüchtlingsquoten, WIENER ZEITUNG, 9 January 2018.
70
V. Mitsilegas, Humanizing Solidarity in European Refugee Law: The Promise of Mutual
Recognition, 24 MAASTRICHT JOURNAL OF EUROPEAN AND COMPARATIVE LAW 721-739, 737 (2017).
71
Communication from the Commission to the European Parliament, the Council, The European
Economic and Social Committee and the Committee of the Regions on an Open and Secure Europe:
Making it Happen, COM (2014) 154 final, p. 8.
25. 814 US-CHINA LAW REVIEW Vol. 14: 795
as such, and possibly of the system‟s implementation modes is legitimate.72
Current negotiations however do not lead to optimistic expectations.
With regard to other areas it is important to stress that the suggested
interpretation of the term solidarity requires that solidarity perspectives have
to be included into the external dimensions of the CEAS and the external
policy in general. Extended development aid aiming to reach sustainable
results and improvements for states of origin of migrants, human rights
education, establishment of stable administrative structures and elimination
of corruption, access to adequate medical treatment and access to education
should play a key role within these actions.
Solidarity requires long term perspectives. The benefits of acting on the
basis of internal and external solidarity do not appear immediately, or
instantly, but only in a mid-term perspective. Co-operation and collective
work could help to reach the desired sustainable result. The World Summit
where the New York Declaration for Refugees and Migrants73
was adopted
revealed several perspectives for a new solidarity between UN Member
States, and between various regions. One central aim is to achieve “a more
equitable sharing of the burden and responsibility for hosting and supporting
the world‟s refugees by adopting a global compact on refugees in 2018”.
These developments might have a decisive influence on the movement of
persons from countries in the crisis regions to Europe.74
72
As argued by E. Tsourdi, Solidarity at work? The Prevalence of Emergency Driven Solidarity in the
Administrative Governance of the Common European Asylum System, 24 MAASTRICHT JOURNAL OF
EUROPEAN AND COMPARATIVE LAW 667-686, 675 (2017).
73
UN General Assembly, New York Declaration for Refugees and Migrants A/71/L.1 (19 September
2016).
74
On December 3, 2017, the Trump administration declared to withdraw from the global migration
compact process, claiming that it could undermine the sovereignty of the United States. See E.
Yayboke, The Strategic Implications of Exiting the Global Migration Compact Process, December 22,
2017, available on https://www.csis.org/analysis/strategic-implications-exiting-global-migration-
compact-process.
26. 815 doi: 10.17265/1548-6605/2017.12.002
A MODEL FOR OPTIMIZING THE WORK OF ETHICS
COMMITTEES IN THE HEALTHCARE SYSTEM IN
BULGARIA: AN INSTRUMENT FOR MORE
EFFECTIVE DISTRIBUTION OF HEALTHCARE
SERVICES
Petya Trendafilova
& Neli Gradinarova
Achieving a positive result in creating a model for optimizing the work
of ethics committees in the healthcare system in Bulgaria is based on an in-
depth analysis of the established international experience in implementing
ethics committees as well as the current national practice in solving case
studies of relevant ethics committees operating on the territory of the
country. A survey was conducted to examine the opinion of medical
professionals on their awareness of the existence of an ethics committee in
their health care facility; The awareness of the specialists about the
functions, power and activities of the ethics committee in the medical
establishment; The interaction of the medical specialists at the hospitals
with the Ethics Committee; The need to introduce training of the medical
specialists within the hospitals on topics considered by the Ethics
Committee. A model for optimizing the activities of ethics committees in the
healthcare system in Bulgaria has been developed. Members of Ethics
Committees in Bulgaria should be actively involved in the training of
researchers and all categories of specialists and non-specialists involved in
clinical research, drawing on experience from participating in a European
Research Infrastructure Consortium (ERIC).
INTRODUCTION............................................................................................815
I. ANALYSIS AND DISCUSSION.....................................................................817
II. CONCERNING ETHICAL COMMITTEES IN HOSPITAL HEALTH CARE
SETTINGS ....................................................................................................818
CONCLUSION...............................................................................................819
INTRODUCTION
As early as in the 1950s, issues such as whether there are ethical limits
that should not be crossed or scientific and technological development
Petya Trendafilova, Associate Professor of Health Technology Assessment, Faculty of Public Health,
Medical University-Sofia, Bulgaria. Research fields: HTA, Health Policy and Health Services
Research, Injury and Violence Prevention.
Neli Gradinarova, Chief Assistant Professor of Health Law, Department of Medical Ethics and Law,
Faculty of Public Health, Medical University-Sofia, Bulgaria. Research fields: Health Law, Health
Regulations, Health Policy and Health Services Research.
27. 816 US-CHINA LAW REVIEW Vol. 14: 815
destroy traditional values, engage in intense debate with the involvement of
professionals from different fields, as a result of which is formed the
modern medical ethics.1
Moral issues are the subject of a public debate outside the narrow
limits of the medical profession.2
Ethical committees in medical settings are based on the principles of
medical ethics and medical law and have several basic functions: preparing
opinions on patients’ complaints or their representatives, as well as carrying
out checks on unethical relationships between hospital staff and patients or
between them and the students and specialists in the health care facility.3
They are committed to drafting opinions and monitoring compliance
with the legal requirements for clinical trials of medicines, medical
equipment and medical supplies.
The legal regulation of the activities of these committees is not
exhaustive, as there are conflicting practices in the activities of the
commissions to the various medical institutions in the country. That is why
we think it is necessary to create a model for optimization of their activities.
It can serve as a basis for synchronizing the activities of ethics committees
in the healthcare system in Bulgaria, which would improve the quality of
assessment of ethical behavioral norms in healthcare establishments and
improve the quality of the medical activity performed within the healthcare
establishments in the country.
Research programs implemented within the EU are adopted without
prejudice to the Member States’ research activities. The reason is that under
primary EU law—the Lisbon Treaty, there is parallel competence in
research. In accordance with Article 4 (3) TFEU,
in the areas of research, technological development and space, the Union has
competence to take action, in particular to develop and implement programs, the
exercise of which is not such as to prevent States Member States to exercise their
competence.
The approach taken in the Horizon 2020 EU Research and Innovation
Program is in line with the social challenges and is geared towards
addressing the main concerns that cause concern among the citizens of
Europe and other parts of the world. For healthcare, this includes, for
1
Bernard Lo, MD, FACP, RESOLVING ETHICAL DILEMMAS: A GUIDE FOR CLINICIANS (4TH EDITION) 6
(Lippincott Williams & Wilkins, a Wolters Kluwer business, ISBN-13: 978-0-7817-9379-7, ISBN-10:
0-7817-9379-3, 2009).
2
H. BIGGS, HEALTHCARE RESEARCH ETHICS AND LAW REGULATION, REVIEW AND RESPONSIBILITY 1-
17 (Published by Routledge-Cavendish, 2010).
3
S. DERR, HOSPITAL ETHICS COMMITTEES: HISTORICAL DEVELOPMENT, CURRENT ISSUE, AND
RECOMMENDATIONS 216 (Biblio Bazaar, ISBN 1244038954, 2011).
28. 2017 A MODEL FOR OPTIMIZING 817
example, research into cancer, diabetes, Alzheimer’s disease and
Parkinson’s disease. In the implementation of its research programs, the
Commission shall not publish calls for proposals specifically for research on
human embryonic stem cells. On the bottom-up principle, scientists
themselves offer the best possible approaches for carrying out a particular
research. Research projects at EU level also include projects that may
provide for the comparison of different types of cells, including human
embryonic stem cells and induced pluripotent stem cells, leaving a wide
field for scientific research in the light of scientific progress.
The attitude towards patients and participants in clinical trials shows
the existence in Bulgaria of communication difficulties, putting a certain
group of people in a disadvantaged position compared to other members of
society. This calls for targeted and consistent action through the deepening
of research and the promotion of health education and the realization of
innovative research projects with a focus on bio-ethical aspects in the
provision of medical activity.
I. ANALYSIS AND DISCUSSION
The analysis of the regulation of the activities of ethics committees in
the healthcare systems within the EU and in the health system in Bulgaria
shows that there is a need to optimize the activity of ethics committees
operating on the territory of the country.
Based on our analysis, a model for optimizing the work of ethics
committees in the healthcare system in Bulgaria has been prepared:
Concerning Ethical Commissions for Clinical Trials4
.
Table 1 Assisting in the implementation of activities prior to the start of the study.
Stage Role of the ethical commission
1 Planning and preparation of projects
Providing information according to the needs of
the research team
2 Review of the relevant documentation Ethical evaluation of the project proposal
Table 2 Assistance in implementing activities after the start of the study.
Stage Role of the ethical commission
1 Implementation of the study
Project follow-up to a specific ethical aspect
(possibility of re-evaluation-if necessary)
2 Completion of the study
Review of the reports perpared by the research
team on th basis of the survey
4
Градинарова Н., Mодел за подобряване дейността на етичните комисии в системата на
здравеопазването в България. Автореферат, 63 стр (2017).
29. 818 US-CHINA LAW REVIEW Vol. 14: 815
II. CONCERNING ETHICAL COMMITTEES IN HOSPITAL HEALTH CARE
SETTINGS
5
1. Organize and hold regular training sessions (ex. once a month) with
the staff of the health care facility.
Regular meetings can discuss both general theoretical issues related to
the ethics committee’s work and practical aspects of everyday practice.
Through presentations the audience can be acquainted with the main
functions and competencies of the ethics committee, and by solving
practical cases, the staff of the medical establishment will be able to put
themselves in a real situation.
2. Conducting a survey of the healthcare staff on the level of awareness;
the nature of the issues of interest to the providers of medical services; as
well as the ability to deal with conflict situations and solve problems in
bioethics.
Performing a survey would increase the level of awareness among
members of ethics committees as well as health care managers about the
ethical issues and challenges faced by medical staff at the health care facility.
The results of such a study could serve as a basis for developing
training panels for the different categories of staff involved in the provision
of medical services.
3. Targeting annual objectives to be achieved through the work of the
ethics committee in order to improve the awareness and quality of medical
activity in the health care facility.
The formulation of annual objectives to be attained by the Ethics
Committee implies a periodic evaluation of the Committee’s work, thus
clearly showing progress towards the objectives set.
4. The implementation of training and practical activities by the
members of the ethics committee within a pre-approved monthly schedule
for visits of individual clinics and wards within the medical establishment.
By establishing an individual monthly schedule of commitment of the
individual members of ethics committees, the representatives of the
individual clinics and wards in the structure of the medical institution will
be given the opportunity to bring to the attention of the commission specific
issues related to the specific medical field, in which the specific structural
Unit provides medical care.
5. Representatives of the Ethics Committee to monitor the activity of
the individual structural units within the medical establishment in
connection with recommendations and prescriptions issued to limit and
5
Ibid.
30. 2017 A MODEL FOR OPTIMIZING 819
prevent cases of unethical and immoral behavior by employees.
The specific prescriptions and recommendations should reflect the
specifics of the medical activity, the types of specialists working in the
clinic/department and the contingent of patients seeking medical care at the
relevant unit of the medical establishment.
6. Preparation of information materials (brochures, prospectuses)
intended for patients, their family members and their escorts, the decision-
making stages of the medical-diagnostic activity, as well as the ethical
aspects and problems that may arise in connection with the provision of
medical services within the medical establishment.
The introduction of information materials into the day-to-day service of
patients in the hospital would facilitate the communication between the staff
of the medical establishment and the patients and their relatives, as this kind
of initiative would also have a preventive character in view of the issues
raised before the ethics committee of the medical settings. When the patient
is aware of the options available to him to resolve ethical conflicts, this
would limit the indiscriminate referral to the Ethics Committee, especially
in cases where they are not factually and legally complex.
7. Development and introduction of a short specialized training panel
for nurses working in hospitals.
The necessity of introducing a specialized Nursing Training Panel
stems from the fact that, in a significant percentage of cases, the nurse
initially contacts the patient and/or his or her relatives, and usually the
patients usually refer to the nurse for assistance on matters of any kind.
Through the introduction of a dedicated training panel, it is possible to
prevent many conflicts between patients and medical professionals based on
an ethical basis.
The preparation of a training panel should be based on a preliminary
study (through a questionnaire) among nurses on the nature of the issues
that are being addressed by them.
CONCLUSION
Members of ethics committees in Bulgaria should be actively involved
in the training of researchers and all categories of specialists and non-
specialists involved in clinical research, drawing on experience from
participating in a European Research Infrastructure Consortium (ERIC).
The current legislation allows only a certain range of medical,
biological and other research to be regulated, which requires the
synchronization of the existing ethics committees with the medical
31. 820 US-CHINA LAW REVIEW Vol. 14: 815
institutions in Bulgaria and the elaboration of a model for optimizing their
activities.
In order to raise awareness of the role, functions and powers of ethics
committees established within the country, it is necessary to lay down a
more detailed regulation. There are cases where it is possible to draw up
unified recommendations to achieve synergy in the work of the different
types of ethics committees.
The attitude towards patients and participants in clinical trials shows
the existence in Bulgaria of communication difficulties, putting a certain
group of people at a disadvantage compared to other members of society.
This requires targeted and coherent action through the deepening of research
and the promotion of health education and the implementation of innovative
research projects with a focus on bio-ethical aspects in the provision of
medical activity.
32. 821 doi: 10.17265/1548-6605/2017.12.003
THE LEGAL PROFESSION IN ITALY AND THE RULES
FOR OUTSOURCING LEGAL SERVICES
Marco Mazzeschi
& Yunxia Li
In recent years, given the rise of the globalized digital economy and
the increasing profile of multinational companies, the practice of legal
outsourcing has become more common. Outsourcing of legal services often
involves a parent or multi-national company retaining the legal services of
attorneys registered with bar associations different to the home country of
the parent company or client. As there are few internationally registered
attorneys who are fluent in Italian, this practice is less common in the
Italian legal system. At the same time, Italian multinational companies
and/or international law firms—may on occasion find it necessary to
outsource some or all of legal services. Additionally, Italian law firms or
attorneys may collaborate with legal professionals in other countries on
multinational client cases. This paper will outline the legal decrees and
ethical codes regulating the practice of legal outsourcing in Italy and in so
doing establishes how companies can do so in accordance with
international and domestic laws while ultimately serving client needs.
INTRODUCTION: PRACTICING THE LEGAL PROFESSION IN ITALY.................821
I. PROFESSIONAL ASSOCIATIONS AND ATTORNEY PARTNERSHIPS ..............822
II. OUTSOURCING OF LEGAL SERVICES .......................................................824
III. OUTSOURCING OF LEGAL SERVICES FROM PUBLIC BODIES...................826
IV. THE ETHICAL CODE OF CONDUCT.........................................................827
V. PRIVACY PROTECTIONS ..........................................................................828
VI. LAWYERS AND ANTI-MONEY LAUNDERING PROVISIONS......................830
CONCLUSION...............................................................................................830
INTRODUCTION: PRACTICING THE LEGAL PROFESSION IN ITALY
To understand the extent to which legal services can be outsourced to
third parties, it is important to outline first the rules that regulate the legal
profession in Italy. Articles 2229 to 2238 of the Civil Code discipline all
intellectual professions and set forth the professions for which it is
necessary to be registered with special associations or registers. For these
Attorney at Law practicing in Italy (Milan Bar Association), registered as foreign practicing lawyer
with the Taipei Bar Association. Research fields: Business Immigration, Citizenship and Commercial
Law.
Professor of Private Law at the School of Law of China Shandong University of Finance &
Economics (Jinan), Ph.D. degree of Roman Law and Integration, Roma University of “Tor Vergata”.
Research fields: Comparative Law, Roman Law.
33. 822 US-CHINA LAW REVIEW Vol. 14: 821
professions the identification of the requisites to be registered and the
disciplinary powers are granted to the relevant bodies, which for lawyers are
the local bar associations (Consiglio dell’Ordine) and the National Bar
Council (Consiglio Nazionale Forense).
The legal profession is still regulated by Decree 1578/33, Law 36/1934,
Decree 37/1934 and by the most recent Law 247/2012 (hereinafter
“Professional Law”). According to the Professional Law, no one can
exercise the functions of attorney without being registered with the local Bar
Association, which is established in the jurisdiction of any Court (Tribunale).
The conditions to be registered with the relevant Bar include: (i) to be
an Italian citizen, a citizen of a EU State, or a foreign citizen legally residing
in Italy, in possession of a title that qualifies him as a lawyer duly
recognized in Italy; (ii) to have a law degree with an Italian University or
recognized by the Italian Ministry of Justice; (iii) to have practiced the legal
profession for a 18 months apprenticeship, among which 6 months can be
carried on in any other EU country, accordingly to recent Decree 70/2016;
(iv) to have taken and passed the State exam for admission to the Bar
Association; (v) to be resident in the Court’s jurisdiction; (vi) not to have
convictions or disciplinary sanctions.
Furthermore, in order to avoid being removed from the Bar Association
register, lawyers must accomplish other requirements, including: (i) exercise
the legal profession on an ongoing and prevalent basis; (ii) fulfill the
obligations of professional updating; (iii) subscribe to an insurance policy to
cover civil liability arising from the profession.
The following are considered elements of incompatibility for the
registration with the Bar Association and the practice of the legal profession:
(i) to practice of commercial activities; (ii) to be hired a subordinate-worker,
either public or private; (iii) to practice other regulated professions. This
rule is derogated for in-house lawyers working with Public Bodies, who are
registered in a special section of the register and for professors (University
and Public Secondary Schools). In-house counsels working for private
companies cannot be registered with the relevant Bar Associations.
I. PROFESSIONAL ASSOCIATIONS AND ATTORNEY PARTNERSHIPS
Attorneys duly registered with the Bar Association are allowed to
practice their profession jointly. The Professional Association is not a legal
entity and cannot substitute for its single members that represent specific
clients in cases where by law this is not permitted, such as where there is a
power of attorney to represent a client in front of a Court. The Professional
34. 2017 THE LEGAL PROFESSION IN ITALY 823
Association can issue invoices for the services performed, and it has its own
fiscal autonomy. The partners are however solely responsible for criminal
and civil liabilities.
Law 183/2011 provided new rules for practicing the legal profession
using Partnerships of Attorneys, called “Società tra professionisti” (STP)
and introduced the possibility of establishing multidisciplinary STPs, that is
companies established by differently qualified professionals, such as
lawyers and CPAs. All partners must follow the ethical rules of their own
professional body.
To that end, an STP can be incorporated only by individuals who are
enrolled with professional associations (lawyers, accountants, etc.), and
partnership can be extended to any EU citizen who has the necessary
qualifications. A further relevant aspect introduced by Law 183 is the
possibility to establish STPs also with partners who contribute only capital
funds.
In STPs, partners only contributing capital funds may enter but must
always retain minority shares with respect to practicing attorneys. In fact,
this law stipulates that two-thirds of partners must be practicing attorneys
and compose the majority of managing partners who hold the office of
directors. Partners must inform clients in writing and provide all information
on how the mandate shall be carried out and clients must be given the power
to choose the professionals who will carry out the activities, as well of any
possible conflict of interest. Clients must always be informed if the selected
professional/s shall be replaced for some activities, of any auxiliaries and of
the names of “non-professional” partners (i.e. those who only contribute
capital to the STP).
Law 247/2012, called “Professional Law” as previously mentioned,
regulates specifically the legal profession and confirms that lawyers can
exercise their profession: i) individually; ii) joining a lawyers’ professional
association (PA); iii) joining a multidisciplinary STP; and iv) joining an
STP whose members are solely lawyers. Lawyers can currently be partners
at the same time of more than one PA or STP, as well as a simultaneous
participation to a PA and an STP is currently allowed. In each case, the
professional service remains personal, even if the lawyer participates in a
STP or a PA. The lawyer, the partners and the company are all liable vis-a-
vis the client.
The latest laws 81/2017 and 124/2017 have given a further push to law
firms to increase their size and open up to different subjects, even outside
the world of the legal professions. The aim of the recent laws is to allow
professionals to participate in public tenders and to contribute to the
35. 824 US-CHINA LAW REVIEW Vol. 14: 821
assignment of tasks and tenders of large companies that, due to their
complexity, require the contribution of a plurality of professionals.
According to the law 31/1982 and Decree 96/2001, the Attorneys of another
EU country are allowed to practice the legal profession in Italy, upon the
admission to the local Bar Association1
.
EU attorneys have access to fast-truck procedures and may ask to the
Italian Ministry of Justice to have their professional title recognized; upon
completion, they can register with the local Bar Association in a special
section as “avvocato stabilito” and, after 3 years of regular practice in Italy,
they will become genuine and lawful practicing attorneys of the host
country, called “avvocato integrato” and will enjoy the same treatment
applied to an Italian lawyer2
.
II. OUTSOURCING OF LEGAL SERVICES
Outsourcing of legal services (i.e. the practice increasingly used by US
and UK law firms in outsourcing part of the services to foreign companies
or firms in countries including India and the Philippines) is a practice that is
still relatively uncommon for Italian companies and law firms.
This is mainly due in Italy to: a) restrictions and limitations set forth by
laws for the practice of the legal profession (which is strictly regulated as
outlined in this paper); b) the Italian language is spoken and used only in
Italy and therefore it is unlikely that non-Italian mother tongue workers
could effectively perform any services.
The outsourcing of legal services is not specifically regulated by Italian
law and we therefore reference the general principles set forth by the Civil
Code for the execution of service contracts, autonomous work and
intellectual professions. We will also take into account the rules set forth by
the National Bar Association in the Ethical Code of Conduct that applies to
lawyers and law firms.
It is worth noting that the Council of Bars and Law Societies of Europe
(CCBE) has also drafted a European Code of Conduct and has indicated
some guidelines on legal outsourcing which, though not mandatory,
constitute an interesting point of reference in assessing the principles and
rules which are advisable to follow in this field.
Among other things, CCBE has indicated that:
1
www.consiglionazionaleforense.it.
2
For an overview on the recognition in Italy of the professional qualification “Abogado” (Spanish
lawyer), see Prof. Mario Carta, Federalismi.it Rivista di diritto pubblico italiano, comparato,
Europeo, Quando i migranti sono avvocati (20.12.2017).
36. 2017 THE LEGAL PROFESSION IN ITALY 825
The protection of the outsourcing lawyer requires the application of specific
measures e.g. before undertaking legal outsourcing, it is advisable that the
outsourcing lawyer verifies with the external legal service provider that the core
values of the legal profession remain protected; the outsourcing lawyer should be
made aware of the importance of such measures; and it would also be useful to
provide the outsourcing lawyer with a “due diligence” template checklist.3
According to the Art. 1228 Civil Code, unless differently expressed by
the parties and where allowed, the debtor who makes use of a third party to
fulfill an obligation, is also responsible of the third party’s intentional or
culpable acts4
. With regards to the intellectual professions, such as the legal
profession, the Art. 2232 of the Civil Code provides that the attorney
responsible for the mandate can avail “under his sole direction and
responsibility” another professional or auxiliary, if the collaboration is
allowed by the contract itself or does not become incompatible with the
subject of the service.
The attorney is entitled to take benefit of the services of other
professionals or auxiliaries to carry out the mandate received (regardless of
whether they are partially or totally involved in the provision of services), as
long as the collaboration is provided by the contract’s terms and conditions.
In that case, the third parties involved in the mandate, do not have any
direct contractual relationship with the client and, therefore, the client does
not directly relate with them for the accomplishment of the service, nor can
they relate with the client for the offset to be paid. The auxiliary, moreover,
is not legitimated to act against the client for the payment, as this duty
pertains to the professional having delegated a third party for the
accomplishment of the service.5
If the use of substitutes or auxiliaries occurs with no agreement in
place with the client or if the contract’s terms do not allow it, the
professional will be responsible, due to breach of contract, of the potential
damages caused by the substitutes or auxiliaries, regardless of the intent.
On the other hand, if the use of the substitutes or auxiliaries occurs
with respect to the restrictions provided by the Art. 2232 Civil Code, the
professional will be objectively responsible, apart from the assessment of
his fault, for the damages inflicted to the client by the third party
collaborating.
Art. 2232 Civil Code, using the expression “under direction”, does not
3
CCBE Guidelines on Legal Outsourcing, www.ccbe.eu.
4
Amongst others, Judgement 20808/2010 of the Court of Cassation, confirmed that the debtor who
fulfills his obligation using the cooperation of a third party, is personally liable for the intentional and
negligent acts of the latter.
5
Cass. 27.08.1986, n. 5248; TAR Trento sect. I, 11.03.2010 n. 83.
37. 826 US-CHINA LAW REVIEW Vol. 14: 821
allude to a particular bond existing between the professional and the
substitutes or auxiliaries, but ratifies a duty for the professional who is
proposed by the client to handle the case.
Art. 1229 Civil Code outlines the exemption clauses for responsibility,
but also establishes that these clauses become invalid when the debtor has
not fulfilled the duties correctly, or in case of a serious fault, or a minor fault
if there has been a violation of the general order rules. Additionally, the
second paragraph of article 1229 Civil Code prohibits the clauses which
exonerate the debtor from compensation when the handling constitutes a
violation of the general order rules; in that case the exemption clause is null
even in the case of non-fulfillment for minor fault. As a matter of
responsibility, without doubts the professional is the only addressee for
complaints in case of unsatisfied clients for the services provided.
III. OUTSOURCING OF LEGAL SERVICES FROM PUBLIC BODIES
6
The new law governing public procurements (Legislative Decree.
50/2016, which implemented EC Directives n. 23, 24 e 25 of 2014)
regulates, amongst other things, the appointment of lawyers and legal
counsels by Public Office and entities7
. Such appointments are qualified as
“services” and no longer subject to the rules of art. 2330 of the Civil Code,
according to which there must exist a fiduciary relationship between the
customer and the lawyer.
With the new law is therefore no longer possible for Public bodies and
entities to appoint a lawyer without putting in place a procedure which
guarantees that the adjudication of the work is performed applying fair and
impartial procedures, an appropriate publicity is implemented and the rules
for a fair competition are safeguarded. Lawyers can be appointed taking into
account the principles of value for money, impartiality, equal treatment,
transparency, proportionality and publicity.
Public bodies can establish lists of qualified counsels from which they
can select—in an impartial way—the ones to be invited for the selection.
The criteria to be considered for the selection are the following: i) the
6
For a comprehensive analysis, see Enrico Folieri, Gli incarichi legali conferiti dalle pubbliche
amministrazioni Convegno organizzato da C.N.F. e Fondazione C.N.F. Roma 25 ottobre 2017; and
L’affidamento dei servizi legali, Documento di consultazione, issued by the Autorità Nazionale
Anticorruzione.
7
For an in-depth analysis on Legislative Decree. 50/2016, i.e. see Mario P. Chiti, The New Code on
Public Contracts, in GIORNALE DI DIRITTO AMMINISTRATIVO (n. 4) 436-521 (2016); A. Barbiero,
Appalti: per gli incarichi agli avvocati serve la «mini-gara», published on Il Sole 24 Ore (16 May
2016).
38. 2017 THE LEGAL PROFESSION IN ITALY 827
lawyer’s experience in the specific sector; ii) his professional and technical
capacity; iii) the dimension, organization and structure of his firm; iv) the
value for money.
For any appointments that exceed €750,000, the appointing body must
implement a procedure for the bid, adequately publicized in order to
guarantee a competition amongst all participants. The notice must contain a
description of the services required, of the relative procedure. The
appointing body can also implement procedures in order to limit, in a fair
and transparent way, the number of participants. In all events, the
appointing body is required to indicate in detail the reasons for which a
specific counsel was selected and appointed.
IV. THE ETHICAL CODE OF CONDUCT
In addition to the general rules of the Civil Code and to the ones ruling
the legal profession, the activity of an attorney is moreover ruled by the
norms of the Ethical Code of Conduct8
, which was recently amended in
2014 by the National Bar Council “Consiglio Nazionale Forense”. This
Code is composed of 73 articles and divided into seven parts: General
Principles, Relations with the Client and the Assisted Person, Relations
between Lawyers, Duty of the Lawyer before the Court, Relations with
Third and Opposing Parties, Relations with Forensic Institutions and Final
Provision9
.
Concerning the topic in question, among the norms to be mentioned,
there is Article 3 that regulates professional activity abroad and foreign
lawyers’ activity in Italy. In the practice of his or her profession abroad, the
Italian lawyer shall respect his or her home-country’s ethical rules, as well
as the ethical rules of the country where he or she is carrying out this
activity. In the case of a conflict between the two rules, the one of the
hosting country prevails, provided that it does not conflict with the public
interest to the correct practice of the professional activity. In the practice of
his profession in Italy, the foreign lawyer shall respect the Italian ethical
rules.
Furthermore, Article 7 stipulates the disciplinary responsibility for
actions carried out by the lawyer’s associates, collaborators and substitutes.
As outlined in this article, a lawyer shall be personally responsible for the
8
Ethical Code of Conduct (Codice Deontologico Forense), approved by the National Bar Association
on 31 January 2014 and entered into effect on 15 December 2014. For the official English translation
in www.consiglionazionaleforense.it.
9
For an analysis of the new code (in English), see the article published by Guido Alpa, Altalex, May
29, 2014.
