Marie-Laure Basilien-Gainche

Institut Universitaire de France - Université Jean Moulin Lyon 3
Faculty of Law
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Marie-Laure Basilien-Gainche is professor in public law at the Faculty of Law of the University Jean Moulin Lyon 3. The researches she works on (in constitutional law and EU law) deal with the evaluation of the European political regimes’ legitimacy - those of the EU and its Member States. Theses analyses are based on the reference to the Rule of law, the considered questions being both formal and substantial. The former lead to study the separation of powers, more precisely the ways the EU norms are elaborated. The latter questions concern the guarantee of fundamental rights. In order to appreciate the political regimes’ legitimacy, her works are focused on the analysis of the exceptions: the situations of serious crises which allow the concentration of powers and the restriction of rights, and the areas of juridical confinement which can conduce to power abuses and rights infringements. As member of the Institut Universitaire de France, Marie-Laure Basilien-Gainche is pursuing a research project on “The finis and the limes - Thoughts about a constitutionalised EU from the asylum and immigration policy view”: the purpose is to highlight the dialectical tensions that exist between the substantial (political) components and the formal (geographical) elements of the EU identity, thanks to a critical approach of the immigration and asylum policy of the EU and its Member States.

Basilien-Gainche, Marie-Laure and Slama, Serge. (2011). "Report on the Implementation of Directive 2008/115/CE in France". Karin Zwaan (ed.). The Returns Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (pp. 115-127). Centre for Migration Law: Radboud University of Nijmegen.
Abstract: France was one of the 20 Member States that have received a letter of formal notice sent by the Commission, because they did not notified on 27 January 2011 measures fully transposing the Directive on common standards and procedures in Member States for returning illegally staying third-country nationals 2008/115/EC (the Return Directive), and one of the 14 Member States that did not complied with such an obligation of transposition before the 24th of December 2010 fixed by Article 20 of Directive 2008/115/EC. Yet the implementation of the European text was at the core of the French political agenda during spring 2011. The then French Minister for Immigration, Integration and National Identity, Eric Besson, presented on 31 March 2010 to the French National Assembly a draft of the Immigration, Integration and Nationality Act that was supposed to be composed of measures transposing three Directives: Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 the on common standards and procedures in Member States for returning illegally staying third-country nationals; Directive 2009/50/EC of 25 May 2009 of the Council on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment; and Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. The bill was adopted in first reading by the National Assembly on 12 October 2010, then by the Senate on 10 February 2011. As the positions of the two assemblies were differing, a second reading was needed. As this second phase of examination of the draft bill started, a new Interior Minister was nominated on 27 February 2011. After being for years (from 2007 to 2011) Secretary General of the Presidency of the French Republic, Claude Guéant became member of the French government. Thus the text was examined by the National Assembly on 15 March 2011, then by the Senate on 12 and 13 April 2011. To put an end to this legislative “navette” to obtain the adoption of the text in identical terms by the two assemblies, the conciliatory procedure introduced by Article 15 § 2 and § 3 of the 1958 French Constitution was used. A joint committee was established, that was composed of seven members and seven alternates from each assembly, and that had to seek an agreement proposing where possible a joint text on the provisions still under discussion. On 4 May 2011, this joint committee reached a compromise between the divergent positions of the two assemblies. So a new reading by both assemblies occurred: the National Assembly on 10 May 2011 and the Senate on 11 May 2011 adopted such a text. Notwithstanding, the 17 May 2011, more than 60 members of the national assembly and 60 member of the Senate asked, in virtue of Article 61 of the 1958 Constitution, the Conseil Constitutionnel to examine the constitutionality of the Immigration, Integration and Nationality Act then adopted. As the French constitutional judge affirmed most provisions of such a law were in conformity with the national constitution , the text was promulgated the 16 June 2011. In order to give a comprehensive and critical approach of the way France has considered the transposition of the Return Directive, we think that it is necessary to examine the text the two French assemblies adopted, putting into the light the main tensions that have arisen and the key problems that remain. Thus, we propose to focus our attention on five topics of the French law that, on our opinion, deserve a specific analysis: 1) the limitation of the scope of the text; 2) the organization of removal decisions and entry bans; 3) the importance of the detention measures; 4) the restriction of the procedural guarantees and legal safeguards; 5) the incomplete reinforced protection granted to vulnerable people.
Basilien-Gainche, Marie-Laure. (2011). “Sécurité des frontières, protection des droits: un couple impossible aux portes de l’Union?” 46: 45-66.
Abstract: The purpose of such an article is to set up – with all the needed modesty - a list (of course a non-exhaustive one) of the problems the fundamental rights protection has to struggle with in the EU immigration and asylum European context. The EU competence in home affairs has been recognized in the Maastricht treaty, and consolidated in the Amsterdam treaty (integration of the Schengen acquis, communautarization of the free movement of persons and some related measures). The objectives the realisation of the Area of freedom, security, and justice AFSJ is aimed at are worrying, as they are dictated essentially by security concerns. The growing cross-border challenges the EU has to face are not only linked to the problems related to growing cross border crime, organised crime, and terrorism; according to the EU Commission, they are also associated with the problems that are related to man-made and natural disasters and to the migrations thus generated. So the third country nationals TCNs tend to be considered not as the ones that need our help and hospitality, but as the ones that causes our fear and hostility. The European immigration and asylum policies are then essentially conceived to limit TCNs’ reception possibilities and to promote drastic management of the TCNs’ migratory influx. But, in so doing, the EU appears to infringe some human rights, endangering the main element of its constitutional identity. Concerning the possibilities the TCNs have to entry the EU territory, it must be underscored that the right to family reunification is then often ignored, and the situation of the asylum seekers is really critical. Yet, the structural dysfunctions the asylum systems of some member States register (i.e. Greece) are denounced (especially by the European Court of Human Rights): the degraded and degrading conditions the detained migrants and asylum seekers face are to be noticed. Moreover, the management of the TCNs’ migration influx tends to prevent their arrival on the territory of the EU member States and, if not possible, organizing their departure from the territory of the EU. That is why the EU immigration and asylum policies insist in promoting the reinforcement of the EU external borders control (the importance of the rationalisation of the methods thanks especially to the efficacy the new technologies offer has to be noted in such a perspective). They furthermore support the negotiation and conclusion of more and more readmission agreements with third countries. In so doing, the EU tends to affect the principles and the values it is founded on. Thus the security argument turns a way round: the EU immigration and asylum policy generates some insecurity not only for the TCNs, but also for the Union and for its citizen.
Basilien-Gainche, Marie-Laure. (2012). “The EU immigration and Asylum Policy in the Post-Lisbon Institutional Context." Luca Rubini et David Robertson (ed.), The Treaty of Lisbon and the Future of European Law (pp. 355-378). London: Edward Elgar Publishing.
Abstract: The legal grounds o for the European asylum and immigration policy are undisputable: the Schengen agreement (1985); the Maastricht Treaty (1992); the Convention implementing the Schengen Agreement (1990); the Amsterdam Treaty (1996) which ‘communautarises’ migration-related issues. The orientations are clear: the European Council put these subjects on the top of the agenda, as it appears in the conclusions of the summits of Tampere in 1999, Seville in 2002, and The Hague in 2004. The objective is to create an Area of Freedom, Security and Justice AFSJ in general, to draw up a European immigration and asylum policy in particular. The latter saw its directions established under the French presidency by the pact adopted on October 16, 2008 which makes the following commitments: to organise legal immigration and encourage integration taking into account the priorities, needs and reception capacities of each Member State; to control illegal immigration by ensuring that illegal immigrants return to their countries of origin or to a country of transit; to reinforce the effectiveness of border checks; to create a comprehensive partnership with the countries of origin and of transit; to build a Europe of asylum. As the achievement of this fifth commitment has been delayed by the Belgian presidency, the European focus seems to be on the struggle against illegal residence and working. What sort of solidarity between the EU Member States? What sort of solidarity with the migrants and displaced people? What about the responsibility in sharing the burden of the reception of migrants’ flows? What about the responsibility in guaranteeing to the migrants the protection of their fundamental rights? Analyzing the European immigration and asylum policy in the new institutional context the Lisbon treaty has established, seems then of utmost importance. In immigration and asylum fields, the powers of the European Parliament and of the European Court of Justice have been increased. Thus, the Lisbon Treaty could appear as opening the door to a new phase in European integration. But it would be hazardous to forget that the Lisbon treaty provisions let the intergovernmental approach encroach upon the supranational ambitions. And it would be adventurous to neglect that the objectives of the European Pact on immigration and asylum let the States’ security priorities overcome the respect for the migrants’ dignity. The common ambition of a truly European immigration and asylum policy is contradicted by nationalist trends; the fundamental rights of all are afflicted by the irrational fear of some. The solidarity in the EU and of the EU, as well as the responsibility of the Member States for migrant populations, seem for the moment to be sacrificed for the sake of fortress Europe.

Substantive Focus:
Law and Policy PRIMARY
Environmental Policy
Governance SECONDARY
Defense and Security
International Relations
Social Policy
Comparative Public Policy

Theoretical Focus:
Agenda-Setting, Adoption, and Implementation SECONDARY
Policy Analysis and Evaluation PRIMARY