The allocation of competence in asylum procedures under EU law: The need to take the Dublin bull by the horns

Resumo

The aim of the Dublin system is to prevent positive and (most commonly) negative conflicts of competence regarding the determination of a peculiar prsonal status, by rapidly identifying a single responsible Member State (MS). This article discusses the performance of this set of rules, drawing inspiration from other áreas where a need for coordination of State powers arises and aims to ascertain whether the current Dublin III Regulation complies with the relevant guidelines and principles spelled out in EU primary law, in the Geneva Convention, and in the international regime on Search and Rescue at Sea. After having determined the unsatisfactory outcomes of the present rules, the essay takes a different approach, partially echoed in a report recently adopted by the European Parliament on the reform of the Dublin system and based on several indispensable and mutually reinforcing elements: an enhanced recourse to connecting criteria inspired by a genuine link approach; the introduction of a permanent system of mandatory shares of applications, according to a proper reading of art. 80 TFEU; the adoption of reasonable incentives for States and applicants to fully participate in the system (including a qualified freedom of movement for work purposes); the simplification of the procedures. In doing so, the article takes the recent case law of the European Court of Justice into due account.