POLICY STUDY September 2024 THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? Philippe De Bruycker

Policy Study published in September 2024 by THE FOUNDATION FOR EUROPEAN PROGRESSIVE STUDIES(FEPS) European Political Foundation- Nº 4 BE 896.230.213 Avenue des Arts 46, 1000 Brussels(Belgium) www.feps-europe.eu @FEPS_Europe FRIEDRICH EBERT STIFTUNG(FES) EU OFFICE BRUSSELS Rue du Taciturne 38, 1000 Brussels(Belgium) www.brussels.fes.de @FES_Europa EUROPEAN POLICY CENTRE(EPC) 14-16 rue du Trône, 1000 Brussels(Belgium) www.epc.eu @epc_eu This policy study was produced with the financial support of the European Parliament. The European Policy Centre benefits from an operating grant provided by the Europe for Citizens grant of the European Union as well as support from the King Baudouin Foundation. This policy study was developed in the context of the project"What next for the EU's migration and asylum system after the New Pact?", which involves a collaboration between FEPS, the Friedrich-Ebert-Stiftung(FES), and the European Policy Centre(EPC). This paper only represents the opinion of its author and not necessarily the views of FEPS, EPC or FES. The responsibility of FEPS and FES is limited to the publication inasmuch as it is considered worthy of attention by the global progressive movement. The support the EPC receives for its ongoing operations, or specifically for its publications, does not constitute an endorsement of their contents, which reflect the views of the authors only. Supporters and partners cannot be held responsible for any use that may be made of the information contained therein. Copyright© 2024 by Foundation for European Progressive Studies(FEPS) and Friedrich-Ebert-Stiftung(FES). FEPS and FES grant perpetual use to the European Policy Centre(EPC). Front page image: elaboration by Helena Hahn Copy editing: Helena Hahn, Evangelia(Lilian) Tsourdi, Alberto-Horst Neidhardt Graphic design: Triptyque KBR deposit number: D/2024/15396./44 ISBN: 978-2-931233-65-8 Suggested citation: De Bruycker, P.(2024)."The new European solidarity mechanism: Towards a fair sharing of responsibility between member states?". Policy Study, Foundation for European Progressive Studies, Friedrich-Ebert-Stiftung and European Policy Centre, Brussels.

TABLE OF CONTENTS EXECUTIVE SUMMARY .................................................................................................................................................................................................... 2 INTRODUCTION ........................................................................................................................................................................................................................ 4  EMERGENCE OF SOLIDARITY IN EU MIGRATION AND ASYLUM POLICIES ............. 6  ORIGINAL IMBALANCE BETWEEN RESPONSIBILITY AND SOLIDARITY .................... 8  OPERATIONALISATION OF SOLIDARITY .................................................................................................................... 10  HE DETERMINATION OF SOLIDARITY LEVELS AND THE IDENTIFICATION OF BENEFITING AND CONTRIBUTING MEMBER STATES ............................................................................................ 13 5. THE FLEXIBILITY OF THE TYPES OF SOLIDARITY CONTRIBUTIONS ............................................... 15  INSTITUTIONAL FRAMEWORK FOR IMPLEMENTING SOLIDARITY .................................... 18 7. CONCLUSION AND FORWARD-LOOKING REFLECTIONS .............................................................................. 20 ENDNOTES ..................................................................................................................................................................................................................................... 22 ABOUT THE AUTHOR, FEPS& PARTNERS ..................................................................................................................................... 23 ABOUT THE AUTHOR ....................................................................................................................................................................................................... 24 ABOUT FEPS, FES& EPC ............................................................................................................................................................................................. 25 THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES?

EXECUTIVE SUMMARY

EXECUTIVE SUMMARY For a long time, the allocation of responsibilities over asylum seekers among EU member states has been a bone of contention in the functioning of the Common European Asylum System(CEAS). Unfair responsibility-allocation rules under the'Dublin system' and lack of compliance have resulted in deteriorating trust among member states. As part of the New Pact on Migration and Asylum, the recently adopted Asylum and Migration Management Regulation(AMMR) seeks to remedy the dysfunctionality of this system. Yet, it preserves the criterion of the country of first entry. At the same time, it also establishes a new mandatory but flexible solidarity mechanism. Under this new mechanism, member states will be obligated to provide contributions either in the form of relocations, financial contributions, or in-kind contributions. Despite this innovation, questions remain as to whether it will suffice to counterbalance the disproportionate responsibilities of member states at the EU's external borders. Therefore, the fundamental political choice of keeping the Dublin system largely intact requires an equally strong political and practical commitment to implementing solidarity. As such, the AMMR also introduces a new annual migration management cycle, defining concrete steps for determining member states under pressure and solidarity needs, based on a comprehensive approach and assessment of migration, reception and asylum capacity. This focus on management, with a heightened role for the European Commission, reflects the EU's desire to proactively anticipate and respond to migration flows. As member states will continue to face migratory pressure in the future, the proper implementation of the solidarity mechanism and, more broadly, the good functioning of the CEAS will depend on this new management system, as well as on the development of adequate implementation plans. Against this background, this Policy Study focuses on the solidarity provisions under the AMMR. After highlighting the slow emergence of solidarity in EU asylum policy, the Study examines the operationalisation of the newly introduced solidarity mechanism as part of the new annual migration management cycle. It then unpacks the system for determining solidarity and the types of contributions states will be able to benefit from. THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 3

INTRODUCTION

INTRODUCTION For many years, the EU asylum system has been marked by an imbalance between member states' responsibility over asylum seekers based on the 'Dublin' rules and the provision of solidarity to counteract their effects. The recently adopted New Pact on Migration and Asylum reforms address this imbalance through a new mandatory, but flexible solidarity mechanism as part of the Asylum and Migration Management Regulation(AMMR). 1 However, despite this innovation, it remains to be seen whether the changed system around solidarity will be enough to overcome the systemic imbalances once the AMMR begins to apply in mid-2026. This is because the minimal changes to the responsibility determination system left the country of first arrival principle intact, such that there is a risk that the reinforced solidarity provisions will not sufficiently alleviate the burden placed on member states. This Policy Study examines the solidarity provisions under the AMMR. After shedding light on the emergence of solidarity in the policy debate, the study unpacks how the solidarity mechanism will be operationalised as part of a new annual migration management cycle. The subsequent sections focus on the determination of solidarity needs at EU and national levels, how the benefiting and contributing member states will be identified as well as the new broader institutional governance framework. This will be followed by an analysis of the types of solidarity contributions, whose flexibility is fundamental for the acceptance of this new mechanism by the different groups of member states. THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 5

EMERGENCE OF SOLIDARITY IN EU MIGRATION AND ASYLUM POLICIES

EMERGENCE OF SOLIDARITY IN EU MIGRATION AND ASYLUM POLICIES What is remarkable is less the creation of the solidarity mechanism than the fact that the EU and the Schengen area functioned without it for 34 years. Such a system was needed since 1990 when the Schengen and Dublin conventions were adopted without integrating any kind of solidarity. The Schengen convention places the responsibility for control to member states located at the external borders, while the Dublin convention also obligates them to examine asylum applications. Despite the congenital defects of Schengen and Dublin, solidarity was a non-issue during the 1990s. Article 63 of the Amsterdam Treaty envisaging the "promotion of a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons" was ignored. The 1999 Tampere Conclusions, despite their remarkable forward-looking character, also disregarded the issue. Some modest forms of solidarity emerged during the 2000s with the creation of a dedicated fund for"Solidarity and management of migration flows" in 2007. Operational solidarity emerged with the creation of Frontex in 2004 and the European Asylum Support Office(EASO) in 2010, but these agencies were considered primarily as vectors for practical cooperation between the EU and member states. Finally, relocation first emerged via a project to support Malta; however, it remained small-scale, with only 600 persons relocated between 2009-2013. The authors of the Constitutional Treaty were perceptive when in 2004 they included in the project a provision on solidarity that with the Lisbon Treaty, later in 2009, became Article 80 of the Treaty on the Functioning of the European Union(TFEU). Following this provision, solidarity must be implemented in view of a"fair sharing of responsibility". However, it took until the so-called"migration crisis" of 2015/16 for solidarity to become an important political issue. 2 Two 2015 Council decisions on the relocation of 34,700 asylum seekers from Greece and Italy provoked a constitutional crisis with the 'Visegrád Four Group' – a political alliance of four Central European countries, the Czech Republic, Hungary, Poland and Slovakia – radically opposing the mandatory nature of the scheme. After this period, relocations were only conducted voluntarily, resulting in the transfer of only 5,000 asylum seekers between 2022-2024. 3 The failure of voluntary solidarity led the European Commission to propose a mandatory but flexible solidarity mechanism featuring three options of equal weight(relocation, financial solidarity and alternative measures) in 2020 as part of the New Pact. Due to the divisions among member states, the system is organised on a flexible basis – following a North/ South line about the balance between responsibility and solidarity but also following a West/East line with member states from Central Europe opposed to relocation – to enable solidarity through funding and not relocation. While the adoption of the mechanism is a real novelty and a major achievement for the EU, some of the political tensions remain unresolved. As such, its implementation will be the real measure of its success. THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 7

ORIGINAL IMBALANCE BETWEEN RESPONSIBILITY AND SOLIDARITY

ORIGINAL IMBALANCE BETWEEN RESPONSIBILITY AND SOLIDARITY The Dublin system unfairly allocates responsibility for examining asylum applications. The criteria of first entry into the EU being the most applicable one in practice, the burden for processing claims falls upon the member states located at the external borders. This is primarily the case for Southern member states for the moment but could, depending on migratory developments, also apply to those at the Eastern borders. The emphasis on the principle of solidarity and fair sharing of responsibility by the AMMR is welcome, but the way it is defined by Article 6 is rather surprising. Under the elements quoted, four refer to responsibility and only one to solidarity. 4 This is curiously the object of the brief point e) following which member states shall"provide effective support to other Member States in the form of contributions on the basis of(their) needs". One will notice that the goal of Article 80 TFEU aiming at a fair sharing of responsibility has disappeared. This approach which is based on responsibility rather than solidarity is not a surprise as the Dublin system of responsibility allocation was largely left untouched under the AMMR. The fundamental political choice to keep Dublin instead of amending it in favour of a fairer system requires a very strong mechanism of solidarity. This is a major characteristic of the Pact to keep in mind when evaluating the efficiency of the new solidarity mechanism. THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 9

OPERATION‑ ALISATION OF SOLIDARITY

OPERATIONALISATION OF SOLIDARITY The EU and its member states are this time around attempting to manage migration and asylum through a"comprehensive approach" announced by the first chapter of part II of the AMMR. The goal is to ensure"consistency between asylum and migration management policies in managing migration flows to the Union(…) with the overall aim of effectively managing migration and asylum". The insistence on the idea of management shows the willingness of the EU to more proactively anticipate and respond to migration flows. This Prometheus task is exemplified by the internal 5 and external 6 components of this comprehensive approach. The AMMR requires member states to prepare national strategies"to ensure their capacity to effectively implement their asylum and migration management systems", including"preventive measures to reduce the risk of migratory pressure as well as information on contingency planning", and"information as regards legal obligations stemming(…) at national level". These national strategies will be followed by a long-term European Asylum and Migration Management Strategy to be adopted by the Commission for five years. Given the effective implementation of the Pact as of mid-2026, the Commission presented on 12 June 2024 a Common Implementation Plan 7 that will serve as a basis for member states to develop their own National Implementation Plans. 8 This interaction between the national and European levels will lead to a kind of coordination between the EU and its member states that the Commission had proposed twenty years ago, albeit without success. 9 Being only at an embryonic stage – for example, compared to the European employment policy based on the open method of coordination, which gives a prominent role to the Council tasked by making recommendations to member states about the implementation of their national policy 10 – it remains to be seen how the new coordination mechanisms will develop in the area of migration and asylum. The European and annual strategies, reminiscent of the Schengen and of the external borders policy cycles or even the European Semester yearly cycle of economic policy coordination, are part of an "annual migration management cycle". The critical moment will be 15 October of every year, when the Commission will adopt an implementing decision determining the member states under migratory pressure and a proposal for a Council implementing act establishing the Annual Solidarity Pool. The process starts with the European Annual Asylum and Migration Report that the Commission will adopt. This amounts to a stock taking exercise culminating in an assessment of the overall migratory situation based, among others, on the number and nationalities of asylum seekers, persons granted protection, illegally staying migrants, return decisions and persons who left the territory, persons apprehended crossing irregularly the external borders and the number of attempted irregular border crossing. Interestingly, it will also include a forward-looking projection for the coming year as well as information on member states' level of preparedness(in particular, their reception capacity). Curiously, it does not refer explicitly to the criterion of external borders as if their type and length had no impact on the burden that their control represents for the member states depending upon their geographical location. All these steps indicate that the EU's role has expanded beyond its classical legislative function as an executive arm to take on a more active role in THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 11

implementing the migration and asylum policies on the ground. The allocation of EU funding to implement the Pact, as well as the increasing role played by EU agencies, point in the same direction. This management exercise is particularly interesting as it will make clear to which extent member states implement EU law, for instance, whether they put in place the necessary number of reception places regarding their obligations deriving from the Reception Conditions Directive. The policy debate will thus not be limited to solidarity but include the issue of responsibility. Finally, there seems to be a weakness in the operationalisation of solidarity. Notably, no evaluation of its results is, at least explicitly, foreseen. Except for the classical general monitoring and evaluation clause under the AMMR and the monitoring function attributed to the EU Agency for Asylum, no reporting and evaluation phases are included in the policy cycle. This lacuna contrasts with the Schengen cycle which, based on an evaluation mechanism, leads to recommendations followed up by a monitoring phase to check their effective implementation, and involves each year the Schengen Council in reporting about the state of implementation of the Schengen roadmap. 12 THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES?

HE DETERMINATION OF SOLIDARITY LEVELS AND THE IDENTIFICATION OF BENEFITING AND CONTRIBUTING MEMBER STATES

DETERMINATION OF SOLIDARITY LEVELS AND THE IDENTIFICATION OF BENEFITING AND CONTRIBUTING MEMBER STATES In comparison to the 2016 recast Dublin III Regulation proposal, 11 which envisaged a corrective allocation mechanism based on the number of asylum applications and a very simple – if not simplistic – reference key that was rejected by the member states, the AMMR establishes a sophisticated and complex solidarity mechanism. The first element of the mechanism is the establishment of the Union-wide responsibility to be shared among all member states, based on numerous and diverse qualitative and quantitative criteria, particularly the number of arrivals, the average recognition rate and the average return rate. The second element relates to the total solidarity contributions to be shared among the benefiting member states, i.e., the Solidarity Pool. This pool must be established in a"balanced and effective manner" that"reflects the annual projected solidarity needs of the Member States under migratory pressure". Minimum annual thresholds are set to 30,000 relocations and€600 million for financial contributions. The number of 30,000 relocations – reflecting the 30,000 places to be made available in the asylum border procedures – may seem quite low, but would, if well implemented, considerably surpass past numbers of relocations. Compared to the assessment of needed relocations based on the number of arrivals of asylum seekers in the EU, evaluating the amount of financial solidarity will be much more complicated. The third element concerns the determination of the member states under migratory pressure. This refers to"a situation brought about by arrivals or applications of third-country nationals(…) that are of such a scale that they create disproportionate obligations on a Member State,(…) even on well-prepared asylum, reception and migration system and require immediate action, in particular solidarity contributions". Considering the specificities of the geographical location of a member state, it covers situations with a large number of arrivals. This process leaves wide discretionary power to the Commission as there is no reference to a calculation based on the total number of arrivals at the EU level. It will, however, lead to a more objective basis than it used to be the case previously, reflecting as much as possible the real burden faced by member states. This crucial element was missing prior to the AMMR's adoption, enabling member states to claim that they were overburdened without impartial and reliable parameters in place. The evaluation of the burden of member states will be set against their level of preparedness for the arrivals on their territory. As such, they may be required to increase their asylum or migration capacities prior to being able to benefit from solidarity. In this context, a member state not identified as under migratory pressure can require the Commission to examine its situation by a notification and take a decision regarding its case. The fourth element is about the contribution that the benefiting member state will receive. The AMMR specifies that it is about indicative contributions, the discretion of the Commission being this time limited by a precise reference key indicated in Annex II to the AMMR. This takes into account the population of member states in relation to the total population of the EU as well as the national Gross Domestic Product(GDP) against the Union's GDP. 14 THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES?

HE FLEXIBILITY OF THE TYPES OF SOLIDARITY CONTRIBUTIONS

FLEXIBILITY OF THE TYPES OF SOLIDARITY CONTRIBUTIONS A critical characteristic of the AMMR compared to the 2016 Commission proposal – wherein relocation was the only solidarity tool proposed – is the flexibility of the mechanism. Following Article 57,"Member States shall have full discretion in choosing between the different types of solidarity measures(…) or a combination" of them. This flexibility is welcome: not only can it persuade member states that are reluctant to relocate to agree to participate in the system, but also because physical transfers like relocations are much more difficult to implement than other forms of solidarity like financial transfers. There are three types of different solidarity measures, all considered of equal value: •  – in other words, physical solidarity, i.e., the transfer of persons between member states. This usually pertains to asylum seekers, but it can also concern beneficiaries of international protection, if member states bilaterally agree. Receiving member states may indicate preferences for the profiles of people to be relocated, after which the benefiting member state shall identify eligible persons. Such a system grants asylum seekers no right to choose a specific member state of destination.  use of coercion to relocate asylum seekers against their will may constitute an incentive for secondary movements that will probably continue. 12 Other elements driving them, like the different levels of reception conditions for asylum seekers depending upon the wealth of member states, will also not automatically disappear with the Pact. At the same time, meaningful links between the asylum seeker and the receiving member state like family links or cultural considerations must be taken into account. Where the member state has relocated an applicant for whom the member state responsible has not yet been determined, the receiving member state shall determine the responsible member state based on the Dublin criteria, with some exceptions. It is worth asking if a potential double transfer(one for relocation and another one for Dublin purposes) constitutes an effective solution in this context. •  contributions – transfers of money from one contributing member state to the Union budget for the benefit of another member state. The money can be used for various purposes, including migration, reception, asylum, pre-departure reintegration, border management and operational support, though is the benefiting member state that shall determine the actions to be funded. The possibility of funding border management through financial contributions has been criticised by NGOs considering that it can lead to measures making the exercise of the right to asylum more difficult for asylum seekers. This should not be the case if provisions under the AMMR requiring member states to take all measures necessary and proportionate to prevent and reduce irregular migration"in full compliance with fundamental rights" are respected. It will be interesting to see if the Commission will extend its opposition to using EU funds for the construction of border walls to the use of financial contributions for border management purposes.  contributions may also provide support for actions within third countries upon the 16 THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES?

condition that they"might have a direct impact on the migratory flows at the external borders of Member States or improve the asylum, reception and migration systems of the third country concerned, including assisted voluntary return and reintegration programmes". The AMMR specifies that financial contributions for projects in third countries shall in particulars focus on"enhancing the capacity of asylum and reception in third countries". These solidarity measures within third countries should be implemented for the benefit of EU member states, but also in a spirit of true solidarity with third countries. 13  this not being a legal requirement of international refugee law,"support(ing) partners hosting large numbers of migrants and refugees in need of protection" is one of the external components of the Comprehensive Approach in line with the principle of solidarity guiding the Union's external actions and Common Foreign and Security Policy following Article 21(1) of the Treaty on European Union (TEU). This should be the case as"promoting legal migration and well-managed mobility, including by strengthening(…) partnerships on migration, forced displacement, legal pathways and mobility partnerships" is one of the elements upon which financial contributions in third countries should focus.  is worth noting that the Commission must maintain a ratio between 30,000 relocations and€600 million in financial contributions when proposing the content of the Solidarity Pool. The idea that member states refusing relocation must pay€ 20,000 14 per person they refuse to relocate has often been quoted as part of the political deal, but it is not reflected by the text of the AMMR, maybe because of the opposition of Eastern member states refusing what they consider as a penalty. If this calculation had not been abandoned, it could have been considered as one point of reference for the calculation of the financial solidarity or alternative solidarity measures that member states refusing relocation would have to implement. •  a third option, alternative solidarity measures focus on operational support, capacity building, services, staff support, facilities, and technical equipment, in other words in kind solidarity. These contributions will be counted as financial solidarity, their concrete value being established jointly by the contributing and benefiting member states. It is the benefiting member states that will make a request for this kind of solidarity. At the end of a given year, unused contributions will be converted into financial contributions. THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 17

INSTITUTIONAL FRAMEWORK FOR IMPLEMENTING SOLIDARITY

INSTITUTIONAL FRAMEWORK FOR IMPLEMENTING SOLIDARITY The institutional framework laid out by the AMMR establishes two new fora at EU level as well as the new appointment of a Solidarity Coordinator. If some observers will deplore the development of what they consider as bureaucracy, one must acknowledge that this is necessary to make the new solidarity mechanism work. As mentioned above, the Commission retains the responsibility for identifying member states under migratory pressure. This executive prerogative could obviously not be retained by the Council because member states would not have been impartial, and it has therefore been attributed to the Commission as an independent institution. On the contrary, the Council has decided to keep the power to adopt the implementing act establishing the Solidarity Pool upon a Commission proposal. The Council has discretionary power but must respect the ratio mentioned above between relocation and financial solidarity. Keeping such a decision in the hands of the Council is not a surprise due to its sensitivity for member states, and it will help to ensure mutual ownership over the process. The AMMR also creates two fora where member states will be represented. The first one is the High-level EU Solidarity Forum, which is made up of member state representatives"at the level of decision-making power" and chaired by the Presidency of the Council. This forum will prepare the ground for the adoption of the Council implementing act, but it will have more than a purely preparatory role and fulfil a political task. It will have to come to a conclusion to be endorsed by the Council about the content of the solidarity pool regarding the number of relocations and financial contributions as well as the pledges of each contributing member state to be made in the framework of this forum. The second one is the Technical-Level EU Solidarity Forum, which will be made up of representatives of member states at the senior level but chaired by the Solidarity Coordinator. As indicated by its denomination, this forum will oversee and operationalise the solidarity mechanism between the member states. Even if its role appears technical, it will be essential to link the solidarity measures pledged by the contributing member states with the needs expressed by the benefiting member states and ensure a balanced distribution of the solidarity contributions available among the benefiting member states. Finally, regarding the Solidarity Coordinator, this marks the fourth appointment of this kind in the area of migration and asylum, following the Schengen, Return and Anti-Trafficking coordinators that are all linked to the Commission. The position corresponds to an operational role by facilitating the best interaction and cooperation among benefiting and contributing member states. Its importance is shown as this person will be assisted by an office"provided with the necessary financial and human resources" which is not the case with the three other coordinators, all of whom work with very limited means. THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 19

AND FORWARD-LOOKING REFLECTIONS

AND FORWARDLOOKING REFLECTIONS While the Dublin system has so far regulated member states' responsibility for asylum seekers, it now features alongside solidarity provisions in the AMMR. This is the result of a long process marked by the crisis of 2015 and the failure of voluntary solidarity. The introduction of a solidarity mechanism was necessary because the Dublin system of unfair distribution of responsibility has been left almost untouched by the AMMR. The adoption of this mechanism goes together with the creation of a new policy cycle for the operationalisation of solidarity. Its creation translates into a complex system determining the level of solidarity needed and identifying the benefiting member states considered to be under migratory pressure. The system is based on flexibility with a choice given to member states based on three different types of solidarity. The institutional framework set up led to the creation of new European forums and of a new function of solidarity coordinator. The overarching question is whether the new rules and the way they will be implemented can achieve a fair sharing of responsibility among member states. In this vein, the following points for further reflection could feed the thinking of EU and national institutions and policy makers. On the balance between solidarity and responsibility: ‣ institutions should ensure that the right balance is established between responsibility and solidarity within the Common European Asylum System. ‣ and national policymakers should keep in mind that the fundamental political choice to maintain the Dublin system of responsibility determination requires a very strong level of solidarity between member states. On the determination of solidarity levels: ‣ European Commission should adequately use its discretionary power to determine the member states under migratory pressure. On operationalising the different types of solidarity contributions: ‣ ember states should identify the asylum seekers to be relocated by considering their links with member states as much as possible to avoid secondary movements. ‣ ember states should ensure that financial transfers linked to projects to be implemented through the solidarity mechanism do not obstruct the exercise of the right to asylum. ‣ ember states should ensure that financial contributions supporting actions within third countries are not exclusively in the interest of the EU but also in the interest of third countries. Funding should be designed and implemented in a spirit of solidarity with those countries hosting large numbers of asylum seekers and refugees, in line with the"Comprehensive Approach guiding the Union external actions and Common and Foreign and Security Policy". On the governance of the solidarity cycle: ‣ facilitate the operationalisation of effective coordination between the EU and member states, inspiration should be drawn from pre-existing coordination mechanisms, such as in the realm of the European employment policy. ‣ institutions and member states should make all necessary efforts to develop the new annual migration management cycle effectively, particularly regarding ex-post reporting and evaluation of its results. ‣ Commission should ensure that the office of the Solidarity Coordinator is provided with all the necessary financial and human resources to work efficiently. THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES? 21

ENDNOTES (EU) 2024/1351 of the European Parliament and of the Council of 14 May 2024 on asylum and migration management, amending Regulations(EU) 2021/1147 and(EU) 2021/1060 and repealing Regulation(EU) No 604/2013. PE/21/2024/REV/1. OJ L, 2024/1351, 22.5.2024.  the Crisis and Force Majeure Regulation and how the New Pact tries to address the shortcomings revealed by previous "migration crises", see, as part of this series, the policy study by Alberto-Horst Neidhardt.  Commission(2024)"Voluntary Solidarity Mechanism: 5,000 asylum seekers relocated ahead of the mechanism's transition to the new solidarity framework." 14 June.  States are supposed to maintain"national effective asylum and migration national systems including return"; ensure that"necessary resources and sufficient competent personnel are allocated";"apply correctly and expeditiously the rules on the determination of the Member States responsible";"take effective measures to reduce incentives for and to prevent unauthorised (secondary) movements between the Member States".  others under Article 4"effective management of the Union's external borders","swift and effective access to fair and efficient procedure for international protection", effective management of the return of illegally staying third-country nationals".  others under Article 5"effectively prevent irregular migration and combat migrant smuggling and trafficking","support partners hosting large numbers of migrants and refugees and build their operational capacities in migration, asylum and border management","address the root causes and drivers of irregular migration and forced displacement","enhance effective return readmission and reintegration".  from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Common Implementation Plan for the Pact on Migration and Asylum, COM(2024)251 final, 12.6.2024.  Communication of 12 March 2024"Striking a balance on migration: an approach that is both fair and firm", COM(2024)126, pp.3-4.  the Commission Communications of 11 July 2001 on an open method of coordination for the community immigration policy COM(2001)387, and of 28 November 2001 on the common asylum policy, introducing an open method of coordination COM(2001)710.  Article 148 of the Treaty on the Functioning of the European Union(TFEU)  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 thirdcountry national or a stateless person(recast), COM(2016)270 final, 4.5.2016.  as part of the separate series on the New Pact reforms by the European Policy Centre(EPC) and the Odysseus Network on Asylum and Immigration, the EPC Discussion Paper by Daniel Thym.  n the goals to be pursued through cooperation with third countries see, as part of this series, the policy study by Andreina De Leo and Eleonora Milazzo.  amount is the result of the division of the€600 million foreseen as minimum amount for financial solidarity by the number of 30,000 foreseen for the minimum number of relocations in the Solidarity Pool. 22 THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES?

ABOUT THE AUTHOR, FEPS& PARTNERS

ABOUT THE AUTHOR Philippe De Bruycker Philippe De Bruycker is Professor at the Law Faculty and Centre for European Studies of the Université Libre de Bruxelles(ULB) where he teaches and does research in the areas of migration and asylum at EU and Belgian levels. He was previously administrator at the European Commission in the Directorate-General for Justice and Home Affairs. He is Jean Monnet Chair for Immigration and Asylum Law and Policy and is the founder and coordinator of the Academic Network for Legal Studies on Migration and Asylum in Europe known as the"Odysseus Network". After having extensively published on issues of constitutional and administrative law as Head of the Centre for Public Law of the ULB and associated member of the C.N.R.S. in France, his more than one hundred publications now focus on EU migration and asylum law. 24 THE NEW EUROPEAN SOLIDARITY MECHANISM: TOWARDS A FAIR SHARING OF RESPONSIBILITY BETWEEN MEMBER STATES?

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For many years, the EU asylum system has been marked by an imbalance between member states' responsibility over asylum seekers based on the'Dublin' rules and the provision of solidarity to counteract their effects. The recently adopted New Pact on Migration and Asylum reforms address this imbalance through a new mandatory but flexible solidarity mechanism as part of the Asylum and Migration Management Regulation(AMMR). Under this new system, member states will be obligated to provide contributions either in the form of relocations, financial contributions, or in-kind contributions. This Policy Study examines this mechanism as well as the new governance structures that suggest more precise and reliable steps for determining solidarity needs at EU and national levels, situations of migratory pressure, and the respective contributions to be made. Following an analysis of the operationalisation of solidarity and the newly introduced institutional framework for implementing it, the Study concludes with forward-looking reflections on achieving fairer sharing of responsibility among member states going forward. POLICY STUDY PUBLISHED IN SEPTEMBER 2024 BY: Copyright© 2024 by FEPS and FES ISBN: 978-2-931233-65-8