6 2 The second exception consisted of the residual right of every Contracting

Member to process an asylum application even if not responsible under the terms of the SC, for ‘special reasons concerning national law’ (Art. 29.4). This provision was needed to accommodate the German constitutional formulation of the right to political asylum at the time (before the substantial reforms of July 1993). However, its formulation constituted a major potential disruption o f the whole framework of Art. 30. France, also supported the exception because of its constitutional provisions, which allowed asylum rights for a larger category of refugees than those defined in the Geneva Convention.

Given the importance o f the exception of Art. 29.4, it might be useful to briefly outline the German and French constitutional provisions on asylum. Prior to the reforms o f I July 1993, Art. 16.2.2 o f the German Basic Law provided that ‘persons persecuted on political grounds shall enjoy the right of asylum’. In its judgment of 7 October 1975, the Federal Administrative Court interpreted this provision as entailing a subjective right for foreigners arriving at the German border and claiming to be politically persecuted to enter the country and have their asylum application examined.'*^ Therefore, because o f its constitutional obligations, Germany could not have delegated a decision on an application for asylum on grounds of political persecution to another Schengen Contracting Member on the basis o f the criteria laid down in Art. 30. It should be noted that the German internal debate on the need to change the constitutional provisions in question was a considerable delaying factor in the Schengen ratification process.

In the French case specific references to a constitutional right of asylum could be found in the fourth line o f the preamble to the 1946 Constitution envisaging the granting of asylum to people fighting for the cause of liberty. This provision guaranteed a right to asylum for a larger category of refugees than those defined in the Geneva Convention and, similarly to the parallel German constitutional

For a critical assessment of the German asylum legislation before the modifications of July 1993 see C. Wisskirchen, ‘Germany; assault on the constitutional right to asylum - Part V (1994) 8 INLP, p. 87 et seq.

provisions, it entailed a subjective right for prospective refugees to have their applications examined.

In its judgment of 25 July 1991, the French Constitutional Council ruled that the Schengen Convention was entirely compatible with the French Constitution.'*^ In a subsequent judgment of 13 August 1993, the French Constitutional Council specified that the fourth line of the preamble of the 1946 Constitution entailed an obligation for the French authorities to examine asylum applications lodged under this provision.'*'* The French Government feared this interpretation would endanger the application o f the SC in so far as it transformed the discretionary power of national administrations to examine an asylum application according to the exception of Art. 29.4 SC into an absolute obligation on France's part. Even if the obligations on the French authorities were limited to the ‘actions in favour o f liberty’ clause, the potential for a disruptive loophole in the Schengen system was very high. Furthermore, in July 1993 Germany had finally carried through its own constitutional revision, thereby increasing pressure on the French Government to secure the Schengen application. After a very heated internal debate in November 1993, a new Art. 53-1 was introduced into the French Constitution, containing two main provisions. The first paragraph specifically allowed for European agreements to regulate the allocation o f States’ responsibility over asylum applications. The second paragraph granted discretionary power to the French authorities to consider asylum

It is not clear whether at that stage the Constitutional Council had analysed in depth the implications of Art. 30 o f the Schengen Agreement on the French constitutional right to asylum for actions in favour o f liberty, or whether it had considered the exception of Art. 29.4 a sufficient guarantee. For an analysis o f the French Constitutional Council’s Judgments of 1991 and 1993, see P. Keraudren, supra n° 30, p. 132 et seq.

Following the national elections of March 1993 the new centre-right French Government had introduced, in May 1993, a very controversial new law tightening both the conditions for the acquisition o f French nationality and the control of immigration. In its judgment of 13 August 1993 (the longest ever since its creation in 1958) the French Constitutional Council invalidated eight provisions o f the new law, provoking a particularly vehement response by the French Government (see P. Keraudren, supra n° 43).

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applications, notwithstanding the relevant European agreements, in the case of ‘actions in favour of liberty’ or ‘other reasons’/^

The potential ‘loophole factor’ of Art. 29.4 was also the subject of careful consideration on the part of the Dutch Government. In a Decision of 29 May 1987, the Dutch Court of Cassation ruled that it was the individual responsibility of the Dutch authorities to autonomously assess the refugee status of an applicant, even if the same applicant had had his application previously rejected by the German authorities. In July 1991, in order to overcome a possible incompatibility with the Schengen Convention a new Art. 15.2 was added to the existing Dutch Aliens Act. The new paragraph specifically excluded the possibility of examining an asylum application if another State was responsible for processing it under an international convention. Examination o f the application was to be exceptionally allowed only if the request was grounded on facts that could not have played a role in the previous decision by the competent country. This provision was criticised as ‘an unnecessary and unwanted restriction’ because it narrowed Dutch discretionary power to advocate the examination o f an asylum request well beyond the already limited exceptions granted by the Schengen Convention.

Arts 31 to 36 of the Schengen Convention dealt specifically with the obligations Member States had to meet in order to ensure the correct implementation of the rules concerning the determination o f responsibility for asylum applications. The underlying objective was to ensure that the responsible State would take full charge of the applicant. This entailed the duty to ‘take him back’ (Art. 33) in case of illegal presence in one of the other Contracting Members' territories, even if his

In fact, the French reform achieved no more than a general clarification of the matter, since France was still bound in a compulsory manner by the exception of Art. 29.4. On this point, see J. Rossetto, ‘La Convention de Schengen; controverses et incertitudes françaises sur le droit d ’asile’ (1994) 378 Revue du Marché commun et de l'Union Européenne, p. 315.

H.U. Jessurun D ’ Oliveira, supra n° 34, p. 175. The judgment of the Netherlands Court of Cassation of 29 May 1987, (1988) Nederlandse Jurisprudentie n° 56, is reported by J.J. Bolten, ‘From Schengen to D ublin...’, supra n° 27, p. 20.

application had in the meantime been rejected (Art. 34), or to transfer him to the responsible State (Art.31.2).

The two final provisions of Chapter 7 dealt mainly with exchanges of information, both concerning personal data on asylum applicants and national refugee legislation, statistical analysis of refugee flows and situations in countries of origin. Specific attention was given in Art. 38 to the protection of personal data concerning refugees, with explicit reference to the Council of Europe Convention of 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, but the setting up of a computerised data bank was only envisaged as optional.

The provisions of Art. 38 gave rise to concerns that refugees appeared to be less protected than other categories of aliens in relation to the transborder flow of data.'*^ Art. 126.4 specifically stated that the stringent guarantees for the protection of personal data listed in Art. 126 did not apply to transmission of data concerning refugees, but there was no evident explanation for this exclusion."* Furthermore, the setting up of a national supervisory authority instructed to monitor independently the processing of personal data (Art. 128) was again specifically excluded in the case of asylum seekers, while the parallel Art. 38.11 only provided for generic ‘effective checks’. No express legal remedy was envisaged for refugees in the case of exchange of incorrect information, as Art. 38.6-7 only established the obligation for Contracting Members to delete or correct wrong information, without even providing for measures to ensure compliance. It was only in the event of the information being automated that refugees might avail themselves of the legal remedies provided for by the Strasbourg Convention of 1981 on the protection of personal data. But since the

On this point see P. Boeles, ‘Data Exchange, Privacy and Legal Protection; Especially regarding Aliens’ in H. Schermers et alia (eds), supra n° 11, p. 52, at pp. 53-54.

On this point, see D. O ’Keeffe, ‘The Schengen Convention: a suitable model for European integration?’ (1991) 11 YEL, p. 185, at p. 207 et seq.

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