Papers in books and journals by Iris Goldner lang
European Constitutional Law Review, 2021
Principle of non-refoulement protected by EU law-National practices-Deterrence-Pushbacks-Border p... more Principle of non-refoulement protected by EU law-National practices-Deterrence-Pushbacks-Border police deterrence-Reaction of EU institutions-Legal uncertainties-'Safe country of origin'-'First country of asylum'-'Safe third country'-EU values-New Pact on Migration and Asylum
European Journal of Risk Regulation, 2021
On 17 March 2021, the European Commission put forward its Proposal for a Regulation on Digital Gr... more On 17 March 2021, the European Commission put forward its Proposal for a Regulation on Digital Green Certificates, which would facilitate European Union (EU) cross-border movement during the COVID-19 pandemic. The Regulation on the EU Digital COVID Certificate was adopted on 14 June 2021 and it will start to apply from 1 July 2021. This article examines the main declared goals of the new Regulationthe first being that Digital COVID Certificates facilitate safe cross-border movement, the second being that they preclude more restrictive national measures, the third being that they prevent discrimination and the fourth being that they coordinate Member States' actions. In so doing, it highlights the main benefits and weaknesses of the Regulation, but it also goes beyond the Regulation by tackling broader questions of EU law that will be of relevance even once the pandemic is over. In this respect, the paper highlights the importance of science in assessing the proportionality of pandemic-related measures and of choosing the least restrictive and the most individualised options when restricting free movement due to public health reasons. It also identifies the effects EU certificates will have on Member States' regulation of national COVID-19 certificates, notably those designed for other purposes than cross-border travel, and it shows that there is a thin line between the EU's and national competences in this area.
Iris Goldner Lang, Obveze Republike Hrvatske temeljem europskog prava pri donošenju zaštitnih mjera protiv bolesti COVID-19, u objavi u knjizi «Primjena prava za vrijeme pandemije COVID-19» (ur. J. Barbić), HAZU, 2021, 2021
Croatian Abstract: Republika Hrvatska je u proteklih godinu dana donijela niz mjera s ciljem borb... more Croatian Abstract: Republika Hrvatska je u proteklih godinu dana donijela niz mjera s ciljem borbe protiv COVID-19 pandemije. Velik broj hrvatskih anti-COVID mjera utjecao je na funkcioniranje unutarnjeg tržišta Europske unije ograničavajući ili otežavajući slobodu kretanja osoba, roba i usluga. Cilj je ovog rada objasniti obveze Republike Hrvatske temeljem europskog prava pri donošenju mjera s ograničavajućim učinkom na slobodu kretanja građana Unije. Analizom mjera koje je Hrvatska u ovom području donijela u proteklih jedanaest mjeseci, ukazat će se na pravila europskog prava koja je prilikom donošenja nacionalnih ograničenja nužno poštivati, te dati preporuke za daljnje postupanje tijekom ove i eventualnih budućih zdravstvenih kriza.
English Abstract: Over the past year, the Republic of Croatia adopted a series of measures aimed at combating the COVID-19 pandemic. A significant number of Croatian anti-COVID measures have affected the functioning of the European Union's internal market by restricting or impeding free movement of persons, goods and services. The aim of this paper is to examine Croatian obligations, based on EU law, when adopting restrictions to free movement of EU citizens. The analysis of the adopted measures in the past eleven months will point to EU rules that have to be respected when adopting national restrictions, and provide recommendations for further action during this and possible future health crises.
Iris Goldner Lang (2021). “Laws of Fear” in the EU: The Precautionary Principle and Public Health Restrictions to Free Movement of Persons in the Time of COVID-19. European Journal of Risk Regulation, 1-24. doi:10.1017/err.2020.120, 2021
COVID-19 has demonstrated the fragility of EU free movement rules when faced with an unknown viru... more COVID-19 has demonstrated the fragility of EU free movement rules when faced with an unknown virus of such magnitude and strength that it threatens our lives, health systems, economies and society. The aim of this text is to show the dynamics between the threat of COVID-19 and the rules imposed as a response to the pandemic, which have impacted the functioning of the EU internal market and the Schengen area. The text will concentrate on the application of precautionary principle and public health restrictions, caused by COVID-19, to free movement of persons in the EU. The analysis will lead to three conclusions. First, it will be shown that the decisions to apply free movement restrictions and the logic followed in the EU COVID-19-related documents can be viewed as a triumph of precautionary principle. Second, it will be argued that the implementation of precautionary principle has a transformative effect on the application of the principle of proportionality in EU law. Finally, it will be shown that COVID-19 has emphasized and increased the difference between the conditions for the applicability of public health restrictions, when compared to restrictions based on public policy and public security grounds.
Jaya Ramji-Nogales & Iris Goldner Lang (2020) Freedom of movement, migration, and borders, Journal of Human Rights, 19:5, 593-602, DOI: 10.1080/14754835.2020.1830045, 2020
COVID-19 policies in the European Union and the United States have severely restricted free movem... more COVID-19 policies in the European Union and the United States have severely restricted free movement, migration and asylum rights, in particular putting into jeopardy the human rights of refugees. This chapter addresses these implications, while indicating the particularities of anti-COVID-19 mobility measures on both sides of the Atlantic. The chapter will disclose that COVID-19 mobility measures represent extraordinary challenges to fundamental principles of both the EU and the US; free movement of persons without border controls is a central reason for the existence of the EU and protection of individuals fleeing persecution has been a core commitment of the US since its founding. The human rights implications of all of these border closures are alarming, putting at grave risk vulnerable populations who are ostensibly protected by these domestic and international legal obligations.
I. Goldner Lang, Towards “Judicial Passivism” in EU Migration and Asylum Law?, forthcoming in T. Ćapeta, I. Goldner Lang & T. Perišin, The Changing European Union: A Critical View on the Role of Law and Courts, Hart Publishing, 2020., 2020
The title of this text suggests that in the past several years the Court of Justice has been show... more The title of this text suggests that in the past several years the Court of Justice has been showing signs of passivism in some of its most prominent cases related to the 2015/2016 refugee influx into the EU. Such Court's behaviour will be labelled as «judicial passivism». The aim of this paper is, first, to define the term “judicial passivism”, second, to identify examples of the Court’s passive behaviour and, third, to determine the reasons for such behaviour and its impact on the future development of EU law in general and EU migration and asylum law in particular. The phenomenon of judicial passivism will be discussed by looking at the judgments of the Court of Justice in the area of migration and asylum: the judgments on the EU-Turkey Statement, the judgment on humanitarian visas in X & X,4 and the judgments on the Western Balkans route in A.S. and Jafari. The text will connect the judgments on the EU-Turkey Statement and in A.S. and Jafari with the February/March 2020 developments at the Greek-Turkish border and the EU leaders’ reaction thereto. It will also consider future Member States’ and CJEU’s behaviour by discussing the implications of the ECtHR’s judgment in N.D. and N.T.
Goldner Lang, Iris, The Child’s Best Interests as a Gap Filler and Expander of EU Law in Internal Situations, in K.Ziegler, P. Neuvonen and V. Moreno-Lax (eds.), Research Handbook on General Principles of EU Law , Edward Elgar Publishing, forthcoming in 2019
Goldner Lang, Iris, The European Union and Migration: An Interplay of National, Regional and International Law, American Journal of International Law (AJIL) Unbound 111, 2018, 509-513.
If global migration law “includes all levels of the law,” then the European Union represents the ... more If global migration law “includes all levels of the law,” then the European Union represents the most developed instance of the interplay of national, regional and international law. Migration law in the EU involves the interaction of EU Member States’ national laws, European Union regional law, and international law. This complex interchange of different migratory legal regimes is the consequence of diverse, and sometimes conflicting, objectives and interests of the Union and its Member States, and the nature of EU law itself. This essay explores the impact of these three levels of the law on the four migratory regulatory categories – EU citizens, “desirable” third-country nationals, asylum seekers, and all other third-country nationals – and the three objectives associated with these categories. The predominance of one legal regime over another varies depending on the regulatory category of migrants and the objectives associated therewith. While describing the existing legal systems, the essay outlines their attributes and shortcomings, the most prominent being: a clear rift between the rights granted to EU citizens and to third-country nationals; EU Member States’ determination to reserve to their respective national territories a high level of national control over labor migration; and significant deficiencies of the EU asylum law which were brought to the surface by the recent refugee influx into the EU.
Goldner Lang, Iris, Human Rights and Legitimacy in the Implementation of EU Asylum and Migration Law, In Silja Vöneky and Gerald L. Neuman (eds.), Human Rights, Democracy and Legitimacy in a World of Disorder, Cambridge University Press, 2018, pp. 234- 262.
This text discusses the 2015/2016 crisis regarding the mass inflow of refugees into Europe caused... more This text discusses the 2015/2016 crisis regarding the mass inflow of refugees into Europe caused by turmoil in Africa and in the Middle East. It suggests that the existing and newly adopted EU migration and asylum measures and policies may not only jeopardise asylum seekers’ rights, but also destabilise the EU regime of fundamental rights and lead to a changed paradigm of EU law.
Goldner Lang, Iris, Croatia and EU Asylum Law: Playing on the Sidelines or at the Centre of Events?, in V. Stoyanova and E. Karageorgiou (eds.),The New Asylum and Transit Countries in Europe During and in the Aftermath of the 2015/2016 Crisis, Brill, 2018, pp. 93-112.
This text discusses the most important recent developments in asylum law and practice in Croatia.... more This text discusses the most important recent developments in asylum law and practice in Croatia. It concentrates on the major legal and reality challenges in the context of the recent refugee influx and, in particular, on the legal consequence of the creation of the Western Balkans route by means of discussing the decisions of the Court of Justice of the European Union in A.S. and Jafari and in Mengesteab. Despite the fact that in the past few years Croatia has been playing on the sidelines of EU asylum law and policy, the development of asylum law and practice in Croatia can only be understood in the context of EU asylum rules, the events on the Western Balkans route, and the tension between human- rights-related ambitions, on the one hand, and a combination of security concerns and xenophobic fears, on the other hand. For this reason, the challenges discussed in this paper are the result of the interaction among four factors: first, EU-level legislative harmonisation; second, Croatian national-level legal and practical issues; third, the refugee situation in the EU and on the Western Balkans route; and fourth, the legal implications of the Western Balkans route, as interpreted by the Court of Justice of the European Union in A.S. and Jafari.
Goldner Lang, Iris and Lang, Maroje, Mračna strana slobode kretanja: kada su u koliziji interesi pojedinca i društva, Migracijske i etničke teme, 2019, broj 1, str. 89–116.
Pravo na slobodu kretanja jedno je od najpozitivnijih postignuća europske integracije. Ovaj rad ... more Pravo na slobodu kretanja jedno je od najpozitivnijih postignuća europske integracije. Ovaj rad želi ukazati na kontradiktorne učinke tog prava, posebice u novim državama članica Srednje i Istočne Europe, uključujući i Hrvatsku. Pravo na slobodu kretanja radnika stvara brojne pogodnosti za radnike migrante i za EU u cjelini jer omogućuje slobodno kretanje radnika iz područja s visokom nezaposlenošću u područja u kojima postoji potražnja za radnicima. Međutim, ne treba podcijeniti socijalne, ekonomske i političke učinke tog prava na države članice iz kojih radnici odlaze. Cilj je ovog rada istražiti što je do sada učinjeno i koje nove mjere na europskoj razini treba uvesti kako bi se ublažili negativni učinci te slobode. Autori obrazlažu da rješenje nije u ograničenju slobode kretanja, već – upravo suprotno – u viziji snažnije europske integracije koja bi imala za cilj smanjenje razlika olakšavanjem razvoja regija koja zaostaju. U tom se kontekstu tekst osvrće na korištenje postojećih i mogućnost uvođenja novih EU fondova, na mogućnost rekonceptualizacije pojma građanstva Unije i upućuje na potrebu potpune primjene Europskog stupa socijalnih prava. Rad se sastoji od četiri dijela. Nakon uvodnog poglavlja, u drugom se dijelu opisuju nedavni trendovi te pokretači i učinci mobilnosti unutar EU-a. Treći dio istražuje koje su mjere do sada korištene kako bi se umanjili negativni učinci slobode kretanja radnika. Zaključno poglavlje iznosi prijedloge novih politika te objašnjava zašto bi kombinacija nacionalnih i europskih mjera bila optimalna.
Goldner Lang, Iris, Intra-EU Mobility of EU Citizens and Third-Country Nationals Where EU Free Movement and Migration Policies Intersect or Disconnect?, in: Philippe de Bruycker and Evangelia (Lilian) Tsourdi (eds.), Research Handbook on EU Migration and Asylum Law, Edward Elgar, forthcoming in 2020
Free movement of persons is one of the cornerstones of EU law. It is considered that any restrict... more Free movement of persons is one of the cornerstones of EU law. It is considered that any restriction to free movement has detrimental effects on the functioning of the EU internal market and on economic growth. From this perspective it would seem only reasonable that the internal market logic would favour intra-EU mobility of all economically active persons legally residing on the EU territory. Yet, even though Article 3(2) TEU commits the Union to ensure “free movement of persons” in its “area of freedom, security and justice without internal frontiers”, EU free movement policy and the ensuing intra-EU mobility rights remain mainly reserved for EU citizens, whereas third-country nationals (further in text: TCNs) are generally not covered by the EU free movement policy. This opens up three questions that will be explored in the following pages. First, why is there such a visible divide between the EU free movement and migration policies in relation to intra-EU mobility of EU citizens and TCNs, knowing that the economic benefits of free movement of persons have been recognized in the EU for decades? Second, are there, nevertheless, areas where the two policies do merge? And, third, should a different approach to TCNs’ intra-EU mobility rights be more beneficial for their successful integration and/or for the process of EU integration?
Goldner Lang, Iris, No Solidarity Without Loyalty: Why Do Member States Violate EU Migration and Asylum Law and What Can Be Done?, European Journal of Migration and LawEuropean Journal of Migration and Law 22, 2020, p. 39–59.
The aim of his paper is twofold. First, it will display an ever-increasing phenomenon of Member S... more The aim of his paper is twofold. First, it will display an ever-increasing phenomenon of Member States’ infringements of EU migration and asylum law as an instance of the violation of the principle of solidarity and discuss the reasons behind it. It will be suggested that EU inter-state solidarity is just as much about respecting EU law, as it is about helping each other, as the latter cannot subsist without the former. Second, the paper will consider whether the existing mechanisms of reducing the number of violations are sufficient and discuss the new mechanisms that are being developed – particularly the rule of law conditionality and other conditionality instruments. When addressing the reasons behind the frequent violations, the text will identify two groups of reasons, the first group being applicable to the whole of EU law, and the second one specifically to EU migration and asylum law. In this context, Member States’ violations will be construed as the process of political withdrawal or retrenchment from certain parts of the commonly adopted EU migration and asylum law. This will be explained by relying on the notion of “spillback”or disintegration (as opposed to further European integration based on the neofunctionalist concept of “spillover” effect into more policy areas) and on the concepts of “exit” and “voice” conceived by Albert Hirschman and developed further by Joseph Weiler in his seminal work “The Transformation of Europe”.
Goldner Lang, Iris and Lang, Maroje, The Dark Side of Free Movement: When Individual and Social Interests Clash, in S. Mantu, P. Minderhoud and E. Guild (eds.), EU Citizenship and Free Movement: Taking Supranational Citizenship Seriously, Brill, forthcoming in 2020, pp. 382-409.
Free movement rights have been some of the most positive achievements of EU integration. However,... more Free movement rights have been some of the most positive achievements of EU integration. However, this paper would like to point to the contradictory effects of these rights, especially since the accession of Central and Eastern European countries. Free movement rights create numerous benefits for the emigrating population and for the EU as a whole as they enable free circulation of labour from places with high unemployment to places where there is a need for labour. However, the social, economic and political downsides for the sending Member States should not be underestimated. This paper aims to explore what has been done so far and which new EU-level measures need to be introduced to mitigate the negative effects of free movement, without restricting it. The text reflects on existing and potential new EU funds, the reconceptualisation of EU citizenship, and the full implementation of the European Pillar of Social Rights.
Goldner Lang, Iris, The Rule of Law, the Force of Law and the Power of Money in the EU, Croatian Yearbook of European Law and Policy (CYELP), Vol. 15, 2019, p. 1-26.
This paper discusses the strengths and weaknesses of the rule of law conditionality contained in ... more This paper discusses the strengths and weaknesses of the rule of law conditionality contained in the Proposal for a Regulation on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States. The proposed Regulation establishes a link between a Member State’s violation of the rule of law and the suspension of EU payments. The text examines the effects of the connection between the rule of law and EU money, both for the erring Member State and for the EU as a whole. The discussion shows that, despite the fact that the EU- level approach to the rule of law has significant benefits, it, at the same time, creates new risks. It may undermine the balance of powers in the EU by expanding the political and economic power of certain Member States over others, the power of EU institutions over Member States, and the power of the European Commission over other EU institutions. It is also questionable whether there is a sufficiently strong causal relation between the rule of law deficiency and threats to the EU’s financial interests. Most importantly, it is uncertain to what extent the rule of law conditionality will lead to the true transformation of negative, anti-rule-of-law trends in some Member States, which raises the question of whether the Rule of Law Proposal is capable of responding to the current challenges.
Goldner Lang, Iris, Financial Framework, in P. de Bruycker, M. de Somer and J-L. de Brouwer (eds.), From Tampere 20 to Tampere 2.0: Towards a new European consensus on migration, European Policy Centre, 2019, p. 15. 25.
The 2021-27 Multiannual Financial Framework (MFF) is facing a number of challenges. This paper ad... more The 2021-27 Multiannual Financial Framework (MFF) is facing a number of challenges. This paper addresses the most pressing ones and offers suggestions and ideas on how to deal with them. The challenges addressed are:
A. solidarity, budget distribution and cost-sharing between the EU and member states;
B. flexibility tools and emergency measures;
C. a coherent external dimension of EU migration and asylum policies;
D. involvement of civil society and local authorities;
E. funding of asylum management and other activities that impact refugee rights; and
F. conditionality.
Goldner Lang, Iris, “Self-Organisation of Third-Country Nationals in the EU: Polycentric Governance by the 'Other'” in J. Van Zeben and A. Bobic (eds.), Polycentricity in the European Union, Cambridge University Press, 2019, pp. 186-207.
This paper sets out to identify centres of third-country nationals’ self-organisation in the EU, ... more This paper sets out to identify centres of third-country nationals’ self-organisation in the EU, specifically those centres that seek to increase their rights, and political and social influence. The discussion is placed within the framework of the theory of polycentricity, whereas the premise of this exercise is that such centres are an expression, and necessary feature, of the polycentric character of the EU. The paper confirms that third-country nationals’ self-organisation is indeed taking place in the EU by showing the paths through which it manifests itself, by examining the causes and objectives for their self-organisation, and by, finally, considering whether self-organisation of third-country nationals can be considered polycentric. The paper concludes that, since third-country nationals are usually excluded from formal political institutions and processes in the EU, it is questionable whether their self- organisation can be considered sufficiently polycentric. This suggests that polycentric governance in the EU remains reserved for ‘insiders’ – EU citizens – and a significant and growing number of individuals on the EU territory remains only partially included or even excluded. This points to a structural deficiency within the EU and raises the question whether the EU can be polycentric without including all individuals present on the EU’s territory.
The European Union has evolved from a purely economic organisation to a multi-faceted entity with... more The European Union has evolved from a purely economic organisation to a multi-faceted entity with political, social and human rights dimensions. This has created an environment in which the concept of solidarity is gaining a more substantial role in shaping the EU legal order. This book provides both a retrospective assessment and an outlook on the future possibilities of solidarity’s practical and theoretical meaning and legal enforcement in the ever-changing Union.
Solidarity in EU Law examines the less explored topics of the European solidarity debate, such as the practical enforceability of solidaristic obligations in EU law and non-EU investment into the economic services of general interest via ‘golden shares’, at the same time contributing to the ongoing debates on solidarity in the context of European financial crisis and immigration, asylum and border checks. The expert editors bring these fields together to create a cohesive analysis of the ways in which solidarity is becoming a principle of EU constitutional law rather than merely a philosophical or political concept.
Unique and insightful, this book is ideal reading for European law academics and research students. Its exploration of the current laws on solidarity regarding asylum and human rights would also benefit advisors in non-governmental organisations, as well as legal advice professionals working with EU citizens.
Papers by Iris Goldner lang
Zbornik Pravnog fakulteta u Zagrebu, 2003
The paper analyses the development of the European Union asylum, immigration, visa and border con... more The paper analyses the development of the European Union asylum, immigration, visa and border control policies, as the policies related to the free movement of third country nationals in the Union. The evolution of these policy fields is one of the most challenging tasks the European Union has been facing since they became part of its competencies a decade ago. The first part of the paper examines the development of these policies in the period from coming into force of the Single European Act to the changes introduced by the Treaty of Amsterdam. The author studies the progress achieved within the EU scope by the Treaty of Maastricht and through intergovernmental co-operation outside the EU scope. The second chapter takes an in-depth view of the changes introduced by the Treaty of Amsterdam in 1999 and analyses the achievements and disadvantages of the new Title IV of the EC Treaty, encompassing polices related to the free movement of persons that were previously dealt with under the EU Treaty. Additional attention is given to the Schengen acquis that in 1999 also became a consistent part of the European Union legal framework. In the final part of the paper, the author takes a look at the recent developments in the field of asylum, immigration, visas and border control by examining the Conclusions of the Tampere and Seville European Council and the novelties introduced by the Treaty of Nice. Particular emphasis is given to the current discussion in the Convention on the Future of Europe and the draft articles of the Constitutional Treaty that show signs of a compromise between a desire for further improvements and divergent visions of different EU Member States in the above policy fields.
Hart Publishing eBooks, 2021
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Papers in books and journals by Iris Goldner lang
English Abstract: Over the past year, the Republic of Croatia adopted a series of measures aimed at combating the COVID-19 pandemic. A significant number of Croatian anti-COVID measures have affected the functioning of the European Union's internal market by restricting or impeding free movement of persons, goods and services. The aim of this paper is to examine Croatian obligations, based on EU law, when adopting restrictions to free movement of EU citizens. The analysis of the adopted measures in the past eleven months will point to EU rules that have to be respected when adopting national restrictions, and provide recommendations for further action during this and possible future health crises.
A. solidarity, budget distribution and cost-sharing between the EU and member states;
B. flexibility tools and emergency measures;
C. a coherent external dimension of EU migration and asylum policies;
D. involvement of civil society and local authorities;
E. funding of asylum management and other activities that impact refugee rights; and
F. conditionality.
Solidarity in EU Law examines the less explored topics of the European solidarity debate, such as the practical enforceability of solidaristic obligations in EU law and non-EU investment into the economic services of general interest via ‘golden shares’, at the same time contributing to the ongoing debates on solidarity in the context of European financial crisis and immigration, asylum and border checks. The expert editors bring these fields together to create a cohesive analysis of the ways in which solidarity is becoming a principle of EU constitutional law rather than merely a philosophical or political concept.
Unique and insightful, this book is ideal reading for European law academics and research students. Its exploration of the current laws on solidarity regarding asylum and human rights would also benefit advisors in non-governmental organisations, as well as legal advice professionals working with EU citizens.
Papers by Iris Goldner lang
English Abstract: Over the past year, the Republic of Croatia adopted a series of measures aimed at combating the COVID-19 pandemic. A significant number of Croatian anti-COVID measures have affected the functioning of the European Union's internal market by restricting or impeding free movement of persons, goods and services. The aim of this paper is to examine Croatian obligations, based on EU law, when adopting restrictions to free movement of EU citizens. The analysis of the adopted measures in the past eleven months will point to EU rules that have to be respected when adopting national restrictions, and provide recommendations for further action during this and possible future health crises.
A. solidarity, budget distribution and cost-sharing between the EU and member states;
B. flexibility tools and emergency measures;
C. a coherent external dimension of EU migration and asylum policies;
D. involvement of civil society and local authorities;
E. funding of asylum management and other activities that impact refugee rights; and
F. conditionality.
Solidarity in EU Law examines the less explored topics of the European solidarity debate, such as the practical enforceability of solidaristic obligations in EU law and non-EU investment into the economic services of general interest via ‘golden shares’, at the same time contributing to the ongoing debates on solidarity in the context of European financial crisis and immigration, asylum and border checks. The expert editors bring these fields together to create a cohesive analysis of the ways in which solidarity is becoming a principle of EU constitutional law rather than merely a philosophical or political concept.
Unique and insightful, this book is ideal reading for European law academics and research students. Its exploration of the current laws on solidarity regarding asylum and human rights would also benefit advisors in non-governmental organisations, as well as legal advice professionals working with EU citizens.