Stathis Poularakis, Legal advisor - Advocacy Officer Médecins du Monde – Greece*
* Reposted from the EDAL blog. A previous version of this article was published in Greek on the immigration.gr blog. The opinions in this article belong to the author and don’t represent the official stance of Médecins du Monde – Greece. Thank you to Evangelia Tzironi, PhD Candidate at the Law School of the National and Kapodistrian University of Athens, for proofreading.
In August 2018, Germany, Greece, and Spain reached an agreement on the initial migration deal made at the EU Summit in Brussels in June 2018. The Ministers of Migration from Germany and Greece reaffirmed their commitment to finding shared European solutions and avoiding unilateral actions regarding migration and asylum.
Both countries stressed their support for finalizing the revision of the Common European Asylum System by the end of 2018, with the goal of achieving a fair distribution of responsibility and solidarity. If a crisis arises—defined as a situation where asylum applications exceed a certain percentage (e.g., 140%) of a country’s fair share based on factors like population and GDP—Germany pledged to advocate for additional support measures for Greece within the Council of the European Union. Germany also acknowledged the need for support and development measures on the five Greek islands implementing the hotspot approach to assist local communities. Lastly, Germany affirmed its commitment to increasing EASO (EU Asylum Support Office) personnel in Greece to strengthen the asylum system.
The operational details of this agreement were included in an annex titled “Administrative Arrangement.” This post will highlight the key points of this “Arrangement,” examine its legal nature, arguing that it constitutes a bilateral treaty exceeding the scope of the Dublin Regulation, and assess its impact on EU asylum policy.
Analyzing the Administrative Arrangement
The Administrative Arrangement consists of 15 articles divided into three sections. The first section covers the readmission to Greece of individuals identified during [temporary checks at the German-Austrian border](file:///C:/Users/kiran/Downloads/(https:/ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en) who previously sought asylum in Greece. The second section outlines provisions for concluding pending Dublin cases for family reunification from Greece to Germany. The final section addresses the agreement’s implementation review, mutual dispute resolution, and the commencement and termination of cooperation.
The “Administrative Arrangement” includes the following agreements:
Germany will return any adult third-country national identified at the German-Austrian border seeking international protection to Greece if they previously applied for asylum in Greece. This applies when a Eurodac (EU fingerprint database for asylum-seekers) entry indicates a prior protection request in Greece from July 1st, 2017, onwards. Unaccompanied minors (under 18) are excluded from this readmission policy.
German authorities will notify Greece of the refusal of entry using a standardized form sent via fax or email. The return should occur within 48 hours of apprehension unless Greece objects within six hours of receiving the notification, providing reasons why the agreement’s conditions weren’t met. If Greece demonstrates within seven days that the conditions weren’t met (erroneous refusal of entry), Germany will immediately readmit the individual.
Germany commits to swiftly concluding family reunifications from Greece under the Dublin III Regulation by the end of 2018 for “take charge” requests accepted by the German Dublin Unit before August 1st, 2018. Due to the high volume of Dublin transfers from Greece to Germany, asylum seekers eligible for transfer under the Dublin III Regulation were “blocked” in Greece beyond the six-month deadline stipulated in Article 29 of the Regulation. Germany will examine all pending “take charge” requests submitted before August 1st, 2018, within two months of the agreement’s implementation. The monthly transfer cap is set at 600 individuals, with family reunifications finalized by December 2018.
German authorities will also promptly examine and respond to all re-examination requests submitted before August 1st, 2018. Greece will provide a list with case numbers and submission dates. Supporting documentation includes passports, IDs, marriage and birth certificates, family booklets, and interview transcripts. These documents are to be submitted in their original language, with an English translation if available. Notably, the lack of an English translation cannot be used to justify rejecting a re-examination request.
Cooperation under this agreement begins on the date of acceptance by the Greek Minister of Migration Policy (August 18th, 2018), with a review every three months. Either party can withdraw with three weeks’ written notice. The agreement automatically terminates upon the revised Common European Asylum System’s implementation.
Administrative Arrangement or International Treaty?
The first question this “Administrative Arrangement” raises concerns its legal classification.
Based on public statements and the document’s title, it could be interpreted as an informal, non-treaty instrument—an arrangement on operational procedures aligned with EU law. This argument aligns with Article 36 of the Dublin III Regulation, allowing Member States to establish bilateral administrative arrangements for practical implementation details to enhance efficiency. Such arrangements might involve exchanging liaison officers and streamlining procedures.
However, considering that states can choose between formal and simplified expressions of consent to be bound by a treaty (in this case, through an exchange of instruments as per Article 13 of the Vienna Convention on the Law of Treaties (VCLT)) and examining the content, the “Agreement” could be considered an international treaty in simplified form. These treaties don’t require state ratification or parliamentary approval; ministers or authorized entities typically sign them, addressing technical, administrative, or military matters.
A thorough examination of the circumstances surrounding the exchange of letters is crucial to determine the “administrative arrangement’s” nature. A “treaty” is a written international agreement between states governed by international law, regardless of its format or specific name (Article 2(1)(a) of the VCLT). Whether it’s called a convention, accord, protocol, exchange of letters, or memorandum of understanding, the intent to create legally binding obligations distinguishes treaties from informal instruments. Even an exchange of letters can constitute an international treaty.
A closer look at the “Arrangement’s” content reveals that it’s not just an informal agreement on technical aspects of implementing the Dublin Regulation. Instead, it establishes new, binding rules exceeding the Dublin III Regulation’s scope.
The “Arrangement’s” first part contains clauses typically found in readmission agreements, which Germany and Greece have never signed before. These clauses define conditions for readmission, competent authorities, procedures, cost allocation, and even include a template form. It doesn’t merely streamline “Dublin transfers” (the term “transfer” isn’t used) but establishes a fast-track readmission procedure for individuals denied entry at German borders, similar to any irregular migrant.
The specific provisions on family reunification further solidify this “Arrangement’s” nature as a legally binding instrument. These provisions establish commitments and obligations extending beyond the “Dublin III” Regulation. The obligation to accept asylum seeker transfers from Greece after the six-month deadline under Article 29 of the Regulation, where responsibility usually ceases, is a new obligation for Germany under this agreement.
The same applies to the obligation to re-examine rejected “take charge” requests. It’s important to distinguish between Germany’s potential responsibility for violating the Dublin III Regulation’s deadlines (breaching EU law) and its legal obligation to accept transfers where its responsibility ended under “Dublin.” The “Administrative Arrangement” explicitly establishes these obligations.
It’s worth noting that Greece and Germany reached a similar informal arrangement last year, capping Dublin transfers to Germany at 70 per month. However, this was more of a “gentleman’s agreement” without binding obligations. Even then, its compliance with the Dublin Regulation was debatable as the Regulation doesn’t allow such caps for administrative convenience.
It’s unlikely that Merkel and Tsipras concluded a formal treaty during their Brussels meeting, with the “administrative arrangement” serving as a simplified implementation mechanism.
Therefore, the “administrative arrangement” isn’t merely a “gentleman’s agreement” or an administrative arrangement under Article 36 of the Dublin III Regulation. It’s a binding bilateral treaty establishing obligations extending beyond the Dublin III Regulation’s scope. This agreement falls under international law, making it an international treaty between Greece and Germany, which contradicts EU law. EU law prohibits national legislation or bilateral agreements in areas of shared competence where the EU has exercised its competence, as it did with the Dublin III Regulation (see TFEU Art 2(2), TEU Art. 4(3), third indent, and Protocol 25 to the TFEU).
Revisiting Dublin or Further Violating EU Law?
Another concern is this agreement’s impact on EU asylum policy.
Is this “Administrative Arrangement” an updated, enhanced version of the Dublin rules reflecting current realities—a bilateral agreement strengthening the Dublin principles? Or is it another agreement outside the Dublin Regulation’s scope, governed by international law?
One could argue that such agreements are symbolic, signaling that EU-level compromises are possible. As discussions on revising the Dublin III Regulation stagnate, interim measures among willing Member States (“enhanced cooperation”) might be the only way forward. However, such enhanced cooperation must occur within the EU legal framework, not through bilateral agreements.
Does this agreement constitute such EU cooperation? While the ministers express commitment to pursuing common EU solutions and avoiding unilateral actions, this agreement is another derogation from the EU acquis. By creating this “Quasi-Dublin” system with a key entry point Member State, Germany establishes obligations (extending responsibility beyond 12 months) and limitations (transfer caps) not found in the Dublin III Regulation. This system mirrors the Dublin Regulation’s philosophy (first country of entry principle) but bypasses safeguards for asylum seekers, such as family unity, right to appeal, and deadlines, to expedite returns.
Southern Member States, serving as primary entry points for third-country nationals, desperately need EU solutions based on solidarity and responsibility-sharing. Revising the Dublin III Regulation and implementing a permanent relocation mechanism is crucial for Greece. However, Germany might be less inclined to reform the Dublin Regulation if a more convenient “Quasi-Dublin” system catering to its needs is already in place. Bilateral agreements like this could hinder a positive Dublin Regulation revision for Southern Member States.
This “administrative arrangement” represents a concerning development for Greece’s migration policy. Greece has signed readmission agreements requiring the standard treaty process: signing, parliamentary ratification (Article 36 of the Greek Constitution). This agreement, however, is the first readmission agreement concluded through an exchange of letters between ministers. While internationally valid and binding, its conclusion without parliamentary scrutiny or publication in the Government Gazette, given its human rights implications, raises transparency and rule of law concerns.
Barnard & Peers: chapter 26
JHA4: chapter I:5
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