As the number of displaced people seeking to enter the European Union, primarily via Greece and its Balkan and Mediterranean neighbors, continued to rise in 2015, the Dublin Regulation should have determined which countries would process their applications for asylum. The EU law designates that duty to the member state through which applicants enter the bloc. For the hundreds of thousands of people coming west to the European Union after being displaced by the civil war in Syria, that country was generally Greece.

On August 21, 2015, the Federal Office for Migration and Refugees suspended the Dublin Regulation for Syrian nationals allowing displaced people who could reach the borders to apply for asylum within Germany. Domestic opponents of immigration said suspending the rule would encourage more Syrians to make the country their destination. However, Chancellor Angela Merkel said the old regulations were “obsolete” given the scope of the problem. “We can do this,” she told Germans. Before long, the rule was reinstated — and remains in force today.

Read more: ‘The EU’s halfhearted asylum policy has become apparent,’ a DW editor wrote in 2019

There still exists no comprehensive mechanism for distributing displaced people throughout the European Union. It was a missed chance for member states to “learn from the crisis and create systems to act with more solidarity,” Damian Boeselager, a German member of the European Parliament from the blocwide Volt party, which advocates for EU federalism, told DW. “But, no,” he said, “the interior ministers of the member states were not capable of sitting at the same table.”

‘Compliance — not reform’

The current system does not need an overhaul, said Catherine Woollard, the director of the European Council on Refugees and Exiles (ECRE), an alliance of more than 100 NGOs with the mission of protecting and advancing the rights of displaced people: It would suffice for member states to adhere to the existing rules. “A lot could be done with the current legal framework,” she said. “So we argue for compliance — not reform. Rather than putting efforts into reforms that would reduce protection for refugees, the EU’s focus should be on ensuring compliance with the law that is in place.”

Read more: ‘I would be out of a job’ with Merkel’s migration policy, Hungarian PM Viktor Orban said in 2018

Hungary and Poland have refused to implement measures agreed to in 2015, and, along with Slovakia and the Czech Republic, have ignored rulings by the European Court of Justice (ECJ) that compelled them to take in displaced people. And, after the brief early suspension of the Dublin rules, Germany and certain countries on the Balkan route to the European Union placed restrictions on their borders: Some tried to make them impenetrable. Thomas de Maiziere, Germany’s interior minister at the time, said it was important to regain the “control that had been lost.”
Read more: Refugee policy is EU’s ‘biggest inadequacy,’ German Foreign Minister Heiko Maas says  

Greece had already built a high fence on its border with Turkey in 2012. There is also a fence along part of Bulgaria‘s border with Turkey.

In summer 2015, Hungary started building a fence on its border with Serbia in order to seal the EU’s external border. There were only a few points at which displaced people could enter Hungary to submit their asylum applications. Though the European Commission and the ECJ criticized this model, Hungarian officials were satisfied with the results: The number of people transiting the country en route to more prosperous EU member states dropped significantly.

Woollard said the past five years had shown that countries such as Hungary and Poland could dictate policy with their noncompliance. “One of the lessons that was learned is that certain member states don’t believe in asylum,” she said. “They don’t believe in offering protection to refugees. That means the temporary solidarity mechanism has to be based on a coalition of the willing member states.”   

A ‘failed’ idea 

By the beginning of 2016, a transit camp at Idomeni in northern Greece, close to the border with Macedonia, was extremely overcrowded. A deal struck in March 2016 between the European Union and Turkey led to a considerable decrease in the number of displaced people who made it to the European Union via Greece. Turkey’s government agreed to take back displaced people who had arrived in the European Union via Turkey but had bypassed the asylum process en route. In return, the EU agreed to accept displaced Syrians who had settled in Turkey. The idea was that they should arrive by plane and be resettled across the European Union. The EU also agreed to give Turkey €6 billion in aid. The deal remains in place today.

In 2016, the European Union also introduced its Hotspot Approach to process asylum applications at the point of entry to the EU in reception centers in Greece or Italy. In April 2016, Merkel said the procedure should take three to six weeks, with displaced people who did not meet EU asylum requirements deported to Turkey. 

Read more: ‘Europe without Angela Merkel is possible’

“The idea of hotspots, of processing asylum applications on the Greek islands, has failed,” Boeselager said. “People are being treated inhumanely” at the Moria asylum center on the island of Lesbos, which he has visited and where there are some 15,000 people living in cramped conditions as they wait for months, sometimes years, for their applications to go through. 

Deaths at sea

In 2016, the European Commission proposed changes to the Dublin Regulation and EU migration policy that would have more equitably distributed asylum applicants among member states. That plan was rejected by countries in the bloc’s north and east and has been ever since. “Even though there were positive efforts to respond in 2015, including Angela Merkel’s decision, that more positive collective approach was later abandoned in favor of a strategy that we call externalization: strategies with the objective of keeping people out,” Woollard said. She added that Turkey, Libya, Lebanon and Jordan had taken in the displaced people kept from the European Union.

Read more: Are Germany and the EU prepared for a new influx of displaced people?  

The European Union has almost put an end to its patrol operations on the Mediterranean, relying heavily now on Libya’s coast guard to prevent people from departing from the North African country’s shores and arriving at EU borders by sea. Still, hundreds of people attempt the crossing each week. According to the UN’s International Organization for Migration, 514 people have died attempting the crossing so far in 2020. The governments of Italy, Malta, France and Spain are reluctant to open their ports to nongovernmental rescue ships that carry people who have been saved from drowning — doing so only on a case-by-case basis.

From a high of 1.3 million in 2015, the number of first-time asylum applicants in the European Union fell to 670,000 in 2019.  

The European Commission is vigorously pursuing its attack on low-tax countries, despite the slap-down it received when the EU’s second-highest court quashed its €14.3 billion lawsuit against Apple on July 16.

The Commission argued that Apple was receiving unfair state aid, under the terms of the Treaty that founded the EU. The court, however, said that the EU did not prove its case.

At that time, the Commission said that it would “reflect on future steps.”

But the Commission did not take long to reflect. On 31 August 2020, the Commission published the opening of the official procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (state aid), against Belgium related to a series of regimes benefiting more than 20 multinational companies.

“We have every reason to believe that despite the Apple debacle, the Commission will continue its aggressive effort against the schemes of Member States offering preferential tax regimes to multinationals under the state aid legislation which gives to it the full executive power to pursue without needing the legislative approval of the Member States,” comments Antigoni Pafiti, an associate with the Elias Neocleous law firm in Brussels.

“But the publication of the official procedure in Belgium — post Apple — demonstrates that the Commission, after some eventual adjustments, sticks to its strategy. One should remember that the Commission has won some of the cases against Member States on this basis, having cut deals with multinationals on taxation,” Pafiti points out.

The Commission had already notified Belgium of its decision to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union with a letter dated 16 September 2019 (i.e. before the Apple Judgment).

The press release accompanying the letter addresses the issue of “excess profit” tax rulings issued by Belgium between 2005 and 2014 in favour of Belgian companies belonging to multinational groups. Most of these multinational groups are headquartered in Europe.

Belgian company tax rules require companies, as a starting point, to be taxed based on profit actually recorded from activities in Belgium. However, the Belgian “excess profit” tax rulings, relying on the Belgian income tax code (Article 185 §2, b of the ‘Code des Impôts sur les Revenus/Wetboek Inkomstenbelastingen’), allowed multinational entities in Belgium to reduce their corporate tax liability by so-called “excess profits” that allegedly result from the advantage of being part of a multinational group.

“The Commission argues that the excess profit measures provide for a reduction of a company’s taxable base, although there is no legal basis to do so in Belgian tax law. The “excess profit” measures therefore favour them as compared to all other corporate taxpayers in Belgium, who are taxed, as a starting point and notwithstanding possible adjustments provided by law, on their accounting profit,” Pafiti explains.

“On the other hand, even if Article 185(2)(b) BITC could be said to provide a basis to exempt profit allegedly derived from synergies and economies of scale, which the Commission contests, the Commission provisionally considers the measures to discriminate in favour of them, since the ‘excess profit’ exemption is not available to all corporate taxpayers that generate what Belgium deems to constitute ‘excess profit,” Pafiti adds.

So one should understand the Commission’s strategy as an effort to try the limits of the state aid tool in the Court. “Every inch that the Commission gains in this way is considered to be pure benefit, given the very limited competence the Treaties give to the Commission on corporate taxation,” she adds.

The Commission is trying to address a serious challenge. Jurisdiction shopping to get the best tax rate has become endemic among major corporates. In the UK, more than 50 per cent of the subsidiaries of foreign multinational companies reported no taxable profits, according to a 2019 study by Oxford university research fellow Katarzyna Bilicka, the Financial Times reports. In the US, 91 companies on the Fortune 500 index, including Amazon, Chevron, and IBM, paid an effective federal tax rate of zero in 2018.

The European Union’s (EU) top diplomat and France called on Thursday for Washington to reverse its sanctions on International Criminal Court (ICC) prosecutor Fatou Bensouda and another member of the ICC, calling the measures “unacceptable and unprecedented”.

The U.S. blacklisted Bensouda on Wednesday over her investigation into whether American forces committed war crimes in Afghanistan, under sanctions authorised by President Donald Trump in June that allow for asset freezes and travel bans.

Sanctions were also imposed on Phakiso Mochochoko, the Head of the Hague-based ICC Jurisdiction, Complementarity and Cooperation Division.

““The sanctions … are unacceptable and unprecedented measures that attempt to obstruct the court’s investigations and judicial proceedings,” Josep Borrell said in a statement.

Washington should “reconsider its position and reverse the measures it has taken,” he added.

The U.S. sanctions reflect the Trump administration’s view that the tribunal threatens to infringe on U.S. national sovereignty.

They are the latest move by Washington to go against the stance of long-standing European allies, which have largely supported American policy and whose trade and security ties are intertwined with the U.S.

The EU condemned Trump’s decision to halt funding to the World Health Organisation in April and said the U.S.’ withdrawal from other treaties and accords undermined Western priorities.

Similarly, France called on the U.S. to withdraw sanctions on ICC prosecutor Bensouda.

French Foreign Minister Jean-Yves Le Drian said on Thursday that the measures announced were “a grave attack against the court … and put into question multilateralism and the independence of the judiciary.”

Le Drian pledged France’s unwavering support for the court and its staff.

Related

BRUSSELS: The European Union will defend the International Criminal Court against attempts to undermine it, a spokesman for the bloc said on Thursday after Washington slapped sanctions on the Hague-based tribunal’s top prosecutor.

US Secretary of State Mike Pompeo on Wednesday announced sanctions against ICC chief prosecutor Fatou Bensouda and another senior court official, Phakiso Mochochoko, over a war crimes probe into US military personnel in Afghanistan.

Washington has long rejected the ICC’s jurisdiction over US citizens, but the court’s investigation into allegations of atrocities in Afghanistan has seen President Donald Trump’s administration turn low-level opposition into a concerted campaign against the institution. “The International Criminal Court is facing persistent external challenges and the European Union stands firm against all attempts to undermine the international system of criminal justice by hindering the work of its core institutions,” Peter Stano, spokesman for EU diplomatic chief Josep Borrell, told reporters.

“We are committed to strengthen our support to the ICC because this is key factor in fighting against impunity. We are standing by the ICC and we are not happy to see steps which are going against the activities of the ICC.

“Pompeo has dismissed the ICC as a “kangaroo court” and the US insists it has its own procedures for investigating allegations against its troops.

The European Union has added lithium, used in batteries that power electric vehicles (EVs), to a list of critical materials as part of a strategy to reduce its reliance on imports.

The group of 27 nations will need about 60 times more lithium and 15 times more cobalt for EV batteries and energy storage by 2050, analysts estimate. The EU’s demand for rare earths, used in high-tech devices and military applications, is predicted to increase 10-fold over the same period.

The European Commission, the EU’s executive arm, said on Thursday that the coronavirus pandemic had highlighted the world’s increasing reliance on electronics and technology for remote work, education and communication.

As a result, shortages of the key elements needed to manufacture those items threaten to undermine critical industries and expose the bloc to supply squeezes from China and other resource-rich countries, the Commission said.

“We have to drastically change our approach,” vice-president Maros Sefcovic said in a statement. “We cannot allow to replace current reliance on fossil fuels with dependency on critical raw materials.”

The E.U. imports around 98% of rare earths from China. Turkey supplies 98% of its borate and Chile meets 78% of Europe’s lithium needs. South Africa provides 71% of its platinum, and Brazil supplies 85% of its niobium, a crucial part of steel alloys used in jet engines, girders and oil pipelines.

“We cannot afford to rely entirely on third countries,” European industry commissioner Thierry Breton said. “By diversifying the supply from third countries and developing the EU’s own capacity for extraction, processing, recycling, refining and separation of rare earths, we can become more resilient and sustainable.”

The Belgium-based body, which first drew up an inventory of critical raw materials in 2011, in response to soaring commodity prices, also added bauxite and titanium — used in aerospace and for orthopaedic implants — and strontium — an ingredient for EV magnets — to the list. The body also eliminated helium from the group of 30 materials.

As part of the strategy unveiled on Sept. 3, the European Commission vowed to create a raw-materials alliance by year-end.

The coalition will include industry members, investors, the European Investment Bank, E.U. countries and others that can help secure raw mineral supply chains.

The Commission also plans to promote the recycling of vital elements, particularly rare earths. It said that while recycling works well in Europe, less than 1% of products containing the components are actually recovered.

The activity would drive investment and innovation within Europe, it noted.

The commission also said it wants to start a partnership with Canada and interested African countries next year.

— This article first appeared in MINING.com.