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MONIKA FOREJTOVÁ CYIL 7 ȍ2016Ȏ
Procedures Directive.4 The Directive requires adequate and fair procedures for the
effective exercise of the rights that EU regulations guarantee. The case law of the
Court of Justice concerning the right to effective procedural safeguards including
remedy has considerably reduced the autonomy of Member States. Influence of the
Court of Justice thus affects even the asylum procedure. The need for procedural
safeguards is as big in asylum procedures as in any other area of EU law.
Excursion into the content and meaning of Directive 2005/85/EC
Directive 2005/85/EC can be looked at in many ways. Firstly, it can be
considered as a non-functional, highly difficult EU legislation, which is affected by
the efforts of the Member States to retain their competence in asylum procedures.
It may be a provision which includes a few minimum standards and is not entirely
clear. It is a norm that includes protection gaps and consequently creates the risk of
a breach of both international and European law.5 The Commission and the UN
refugee agency (UNHCR)6 have in their survey about the implementation of the
Procedures Directive actually found out that there are still fundamental differences
between the individual asylum procedures of the Member States,7 which is not
anything new even in relation to the transposition of directives in other than the
asylum area. As a consequence, asylum applicants have still very different prospects
of finding international protection depending on where in the EU their request is
examined.8 Both the Commission and UNHCR were worried about the level of
protection provided by these asylum procedures. In 2009 the Commission regarding
the proposal to amend the proceedings was expressed as follows:
“Contributions received by stakeholders in response to the Green Paper consultation
have pointed to the proliferation of disparate procedural arrangements at national level
and deficiencies regarding the level of procedural guarantees for asylum applicants
which mainly result from the fact that the Directive currently allows Member States
a wide margin of discretion. Consequently, the directive lacks the potential to back up
adequately the Qualification Directive and ensure a rigorous examination of applications
for international protection in line with international and Community obligations of
4 Recitals 3 and 11 Preamble Directive 2005/85/EC and recitals 4, 8, 11 and 18 Preamble Directive
2013/32/EU.
5 UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice
(March 2010) accessed 25 September 2013.
6
7 “Report from the Commission to the European Parliament and the Council on the application of
Directive 2005/85/EC” COM (2010) a UNHCR, Improving Asylum Procedures.
8 “Staff Working Document accompanying the Proposal for a Directive of the European Parliament and
of the Council on minimum standarts on procedures in Member States for granting and withdrawing
international protection”, more at
part1_v121_319_en.pdf.