2.2 The external arena: coalitions, forces, interests in the framework of the preliminary rulings procedure of decision-making

In the polity of the European Union there are several dichotomies concerning its architectural structure. One of the most evident is the following dichotomy: the principle of division of powers and the system of checks and balances. We have raised the question of this relationship earlier and pointed out that the original idea of this construction was not successful. However, in order not to ruin the governing system of the EU and all the networks, independent institutions with a set of functions, powers and, what is more important, independent interests should find a compromise. Equilibrium in the game allows them to preserve the status and act in accordance with agenda and list of tasks. The European Court of Justice has become a force, which formulates the legal parameters for all the participants of the European decision-making process which they have to obey in order to promote their interests (Dehousse, 1998). It is true, that the actions of the Court are not predictable ones. However, from another side, the field of potential conflict between autonomous actors in Europe is so high, that there is no another way but to go the judicial arbiter that has an authority to solve the dispute. In addition, there are no alternative means of conflict's resolution. Within the Community system there are no political forums or other platforms of bargaining and negotiation as the role of political parties is too weak. The arena of the Court of Justice automatically has been transformed into the appropriate environment where actors can operate and pursue their strategies. The value of the `rule of law' and a special legal order of the EU are additional reinforcements that strengthen the positions of the Court (Piattoni, 2015). Heretofore, we have agreed to analyze the interests, coalitions and forced of the multiple actors who participate in the process of decision-making in the framework of the preliminary rulings procedure. In the chapter before, we have shown, how important it is to observe the motivation of the judicial behavior in the case, but it is not enough. Here, we are going to look on the process of interaction between the Court and other actors who influence its behavior and at the same are influenced by it. The table 6 represents the typical scheme of the ECJ work procedural mechanism.

Whatever the type of the case, the key procedural rules (concerning the behavior of the judges and the advocates general, organizational moments and procedures) are outlined in the Statute of the Court of Justice of the European Union laid down in the Protocol № 3 on the Statute of the Court of Justice of the EU. There are two stages of procedure in the Court: written and oral. As well, there is the third stage, which must be mentioned: judges' deliberations. However, this part of procedure involves only judges and should remain secret for all the other participants of the case. On the first step the Court is in a very close connection with national courts of the Member States (actors) who makes an application for a preliminary ruling. After the registration of request and its translation into all the languages of EU the Register notifies it to the parties of the case, all the Member States, and institutions of EU who can make written observations on the case and submit it to the Court in two month. During this stage, the President and the first Advocate General make an appointment of the Advocate-General and the Judge-Rapporteur on the case who examine the points of the application and the defense. The figures of these actors are crucial as in most of the cases the opinion of the Advocate General and the preliminary report of the Judge are the foundations of the final decision. The oral procedure starts normally in a few weeks after hearing the preliminary report. The proceedings in the case on this stage are opened for the public. Public hearing is a good opportunity for the parties to support the dialog with judges, to finalize the arguments and to make `the precise point of the case' (Darmon, 1988). At the same time, Burrows is more critical on the point. He claims that the significance of this stage is overestimated, as in reality the oral procedure has a little effect on the case's result in comparison with the role of the Advocate General and the Judge-Rapporteur (Burrows, & Greaves, 2007, p. 27). Eventually, we return on the initial point of this chapter - influence on the judicial policy of ECJ caused by the actions of Advocate General and Judge - Rapporteur.

Talking about the institutions that can be involved in this process by their wish we firstly mention the Commission. This institute plays one of the central control roles. It has an authority to initiate the infringement procedure against the Member States depriving them of the possibility to choose a dispute resolution measure and ignore Community obligations (Dehousse, 1998). The Council and the Parliament usually submit written observations when a question concerns the validity of their legal acts See, for instance, case C-42/02 Lindmann v. Finland , the interpretation of the international agreement (Broberg & Fenger, 2010). Member States and Council of Ministers are also in the list of the actors whose actions can provoke the judicial process or influence it. However, political bodies are not the only ones who try to use the legal space to promote their interests. Socio-economic groups (private litigants) also have a chance to defense their position before the court. National Courts as interlocutors of the Court and the ECJ found their relationship on the co-operative base (Dehousse, 1998, p. 135). We shouldn't forget about the other courts in the European legal field. Case-law practices of the European Court of Human Rights and the EFTA Court are highly interconnected with the decisions of the Court of Justice. This observation allows us to include these two courts into the list of actors who play an important role on the external side of the judicial arena. Thus, it is worth to start exactly with these figures, judicial partners of the ECJ.

Established in 1959 the European Court of Human Rights was aimed to protect the rights and freedoms of individuals violating by the Members of the Convention. Whereas the Court of Justice of the European Union was build for needs of the European Community that were mostly economic. Nevertheless, different purposes of creation were not a barrier for the Courts to build a judicial dialog (`cross fertilisation', Rosas, Levits & Bot, 2013) basing on the cooperation, respect and support. The Convention and the Charter have become the juridical instruments of equal value aimed to construct the special legal space in the United Europe (Rosas, Levits & Bot, 2013). In the beginning, decisions of the Strasburg Court were used by ECJ as a reference point in the sphere of fundamental rights defense (i.e. case J. McB. v L. E., case Volker); the Convention was recognized as a special catalog of fundamental rights that should be protected. With time, the situation has been changed; and now the ECtHR solves the disputes looking over the shoulder of ECJ and the Charter (i.e. case Goodwin v. the United Kingdom). However, the Courts have developed the common doctrine of `equivalent protection' and tried to stay in the framework of own jurisdictions. Today the dynamic of influence between the Courts has a positive direction.

The EFTA Court is considered to be the third Court in the line of the European Courts after the ECJ and the European Court of Human Rights. This judicial body was established in accordance with the agreement on the European Economic Area (EEA); nowadays it operates in parallel with the ECJ. The main principle of interaction between two Courts is homogeneity (Baudenbacher, 2004). The Court of Justice has acted, as a role model for this court, has become its `large sister' with all the privileges of such a status (Baudenbacher, 2013). Thus, the ECJ has participated in the procedure of the EFTA Court organization. By introducing the Opinion 1/92 the Court practically blessed the EFTA Court for existence though before in the Opinion 1/91 its structure was strictly criticized. However, the Courts have found the ways of building a constrictive judicial dialog. For instance, the EFTA Court was the first one that dealt with the questions of labour law including equal rights, taxation, food safety law and then generously shared its experience with ECJ (Baudenbacher, 2004). At the same time, despite the similarity we can't speak about the total identity of two Courts or about subjection one court to another. The legal nature of the political bodies behind these two judicial structures is different. Though the EEA law took the roots from the European founding Treaties, the EEA agreement is not in the framework of the special legal order established by EU. Instead it has a nature of a public international treaty with specificities that allows to distinct its legal order from the one of EU. The Court of Justice is a powerful judicial structure which case law influences the international legal orders also. Despite this status, the Court permits the existence of the EFTA Court with the similar competence. The systematic dialog between the EFTA Court and ECJ witnesses the possibility of common future road based on the stability and professional support.

Another judicial actor that played a decisive role in the Court's fortune is National Courts. We have discussed the connection between the preliminary rulings procedure, its transformation into enforcement mechanism and national courts earlier. In this part we highlight the key points. From the very beginning (the time when the Treaty of Rome has come into force) there was a striking contrast between ECJ and national courts: the rules of the new order did not correspond to the national legal traditions of Members States (Dehousse, 1998). In addition, in the straight line `International law (in our case EU law) - national law' there was a third chain - national constitutional law, which could not be ignored. In order to eliminate the difficulties, the Court of Justice constructed a `judicial avenue' for the national courts - preliminary reference procedure, which gave them the opportunity to refer problems of EU law interpretation directly to ECJ omitting the higher instances and thus destroying the hierarchy principle. The national courts have received the right to control the access to the Court, to apply the EU law on the domestic level and to develop the EU law further (Tridimas, 2013). That set of circumstances as well as the establishment of the `direct effect' and `supremacy' founding principles of EU law made the Higher Courts worry on their gains, interests and position of dominant influence on the process of the national law development (Alter, 2009, p. 98). Nevertheless, in order to prevent development of ECJ as the major judicial instance in the European region the High courts (including Constitutional ones) sent to ECJ only narrow technical questions explaining their position by references to the Constitution, legal certainty, national Parliaments and national legal order. Among the most famous cases are the contradictions with the German, Italian and French Courts. Tensions between ECJ and the Italian Constitutional Court took the roots in 1962 with the Costa case (1964), gained strength with the Simmenthal (1978) case and finally burst after more than 15 years in the Granital case (1984). The decision of the German Constitutional Court on the Lisbon Treaty concerning the question of ratification has also become one of the longest and complex ruling. As a result, while the constitutional courts were looking for a compromise with ECJ during a long period of time the national courts reduced the costs and found the benefits in the cooperation with ECJ. The dialog between two legal orders (ECJ and national courts), the role of national courts as a safe partner who is responsible for initiating the procedure of preliminary reference have lead to the development of the supremacy doctrine, have build the way for both sides to become the parts of the policy process and to participate in the policy games with positive outcomes (Sweet, 2004). The influence of the union `ECJ-national courts' on the position of Member States and its governments is also undeniable.

The question of the relationship between Member States and the Court of Justice is still polemic today. From one point of view, ECJ is a judicial structure that autonomy is restricted as it depends on the interests and actions of the Member States (principal-agent scheme, Garrett & Weingast, 1993). From another, the dominant role of the Court is to support and lobby the Community interests even to the prejudice of the national interests of Member States (Weiler, 1991). The last one (supranational point of view) seems to be a more widely spread tendency nowadays. There are some objective reasons why we have come to that conclusion. At first, it is a recognized fact that the first years of Community existence were dedicated to the struggle for its survival supported by the ideas of the European integration and new legal order. The Court of Justice has become one of the crucial figures in promoting the EU goals. Then, the position of political parties in the Union is weak, national means of control on the decision-making processes are not efficient. In addition, the Court acts in the interests on the whole Union, including common interests of Member States that defined them previously in the founding treaties of Community they build for themselves. For instance, the Court played a key role in the organizing of the single market without borders within the European space (Dehousse, 1998). However, any success of EU as a new polity do not allow the Member States to forget about their sovereignty. That is the reason for the Court to be very accurate in balancing between the requirements of the EU and interests of the Member States. From case to case the correlation of forces is not stable. Generally, J. Schwarze (2013) marks out three kinds of the judicial decisions in ECJ. At first, there are well-balanced decisions where the Member States enjoy the portion of discretion within the legal order of EU (i.e. case Omega v. Oberbьrgermeisterin der Bundesstadt Bonn, case Oliver Brьstle v. Greenpeace). In the second row there are cases not so well-balanced where we can observe the dominance of Community interests (i.e. case Mangold v Helm, case Kreil v Germany). The third category of cases takes the position in the middle of the two mentioned as it includes the cases on the principle `dog in the manger' (i.e. cases on the notary question). Summarizing, the Court does his best by preserving the basis of EU and national competences of Member States against the background of permanent political constraint from legislative and executive bodies (i.e. the threat of non-compliance and override from Member States) (Carrubba, Gabel & Hankla, 2008). However, it is still up to the Court position of which party to accept or to make a choice in favor of own reasoning.

One more actor (not so powerful as others) who can provoke policy change with the help of the Court of justice is Socio-economic groups. Using the litigation strategy (and EU legal instruments), these actors force the national governments to change the vector of development in the national policy. The influence can be successful when there are 4 main suppositions: a point of European law that can be favorable for the actors (positive case law practice); mobilization of litigants, usage of EU law argumentation in national courts; judicial support of domestic courts by sending a reference request to ECJ; political follow-through, the litigants should show to other actors that they will use the results of the trial in order to pressure the national governments (Alter, 2009, p. 184). This scheme was tested by some private and group actors. The most successful attempt was made in Great Britain. In the mid-1980s EOC (Equal Opportunities Commission) and trade unions using the resources of the European legal system (article 119 of Treaty of Rome, the Equal Treatment Directive) forced the Conservative British Government to change public policy - to make the reforms in the sphere of gender equal treatment in compliance with the EU social policy. Additionally, the positive experience of EOC encouraged other representatives of private sector (i.e. business groups) to rely on the Community tools and to make attempts of policy change in accordance with their interests. However, not all the legal decisions of ECJ were favorable to their interests. In turn, the litigant strategy is a specific measure requiring the observance of all the factors. The private actors do not have a direct opportunity to affect the decision-making process as they are deprived on the locus standi right in ECJ. At the same time, the practice shows, Socio-economic groups can interfere into the balance of powers in the policy field.

Moving to the actors in the institutional system of EU, we will start the observation with the European Parliament or the European Assembly as it was set up initially. The main functional role of this body is to be a public forum or the central arena for negotiation processes between ordinary people and the representatives of authority. However, in the European Union there is an evident phenomenon of national parliaments which existence and political role are more influential that the supranational one (the European Parliament) (Piattoni, 2015). From the very beginning (in comparison with other European institutions) the Treaty of Rome gave to the Parliament only advisory function in the law-making process that is the whole contradiction to the essence of this organ which interests lay in the sphere od states' interests and functional of EU (Dehousse, 1998). As would be expected, the Parliament has had to fight, at first, in order to gain just the access to the European Court of Justice as an arena of dispute resolution and protection of interests with the participation of other actors (cases Roquette v. Council (Isoglucose), Parliament v. Council); at second, in order to receive finally the authority to challenge the actions and negligence of other European institutions before ECJ (the rights under article 263, 265 TFEU; cases Les Verts, Parliament v. Council (Comitology)). The Parliament used the litigation strategy (case by case) as a mean of pressure on the other institutions. The Court has helped the Parliament to become a meaningful political figure in the European filed (i.e. to obtain the status of the privileged applicant under art. 263 TFEU)(Chalmers, Davies & Monti, 2014, p. 443). Without the Court as a guarantor of law it is unpredictable what will be the disposition of powers within EU now.

One of the main specificities of the European institutional space is the absence of the unified European government (i.e. in comparison with the European Parliament). Instead, the phenomenon of deep fragmentation in the executive branch of power gives birth to the European Commission, the supranational body playing the `government'-like role in most of the policy areas with a wide variety of functions. Defense of the general interest of the Community gives the Commission a broad discretion enforcement authority. Being regarded as the `Guardian of Treaties' with a competence of pursuing the violations of the European legal order the Commission received a status of the privileged actor (Dehousse, 1998, p. 18). Thus, this body can initiate the infringement procedure when it has a suspicion that Member State does not fulfill its obligations under the Treaties (Art. 258 TFEU). This procedure has two stages, the second one is judicial. However, when the court receives the opportunity to participate, it realizes the constitutional function by ensuring the strict implementation of European law by national states. Objectively speaking, the Commission uses different ways to strengthen is position, including the litigation processes in ECJ. In order to protect its interests, the European Commission is the most often amicas curiae in the cases, participating in oral and in written parts of the preliminary rulings procedure (Dehousse, 1998, p. 107). There is an opinion, that the Commission uses its position in the Court in order to influence the Member States or to overturn the Council thus changing the pattern of the final policy outcome (Schmidt, 2000). In the majority of cases, the Court takes the Commission's part (Conant, 2007). In such a way, the European Commission can avoid using the legislative measures by applying the judicial means and changing the status quo for a desirable result. As empirical evidence, there is the process of the building of social security system for migrants (cases Piscitello, Commission of the European Communities v French Republic, case Newton) (Hofmann, 2009).

The Council of Ministers is an intergovernmental body that balances the supranational institutions (the European Parliament, the Commission, the Court of Justice) and represents the territorial interests of Member States. The Council (consisted of the ministers of national states) shares the legislative power with the European Parliament and the executive power with the Commission that is exonerated from the national pressure and enjoys more individual discretion. Additionally, the Council of Ministers is a collective notion as it combines more than 10 sub-councils with different responsibilities and accountability (Staab, 2013). This European body is also included into the list of the privileged applicants under the article 263 TFEU. However, in most of the cases the Council holds the defendant position, as national states prefer to be the individual applicants 9Dehousse, 1998).

One of the bodies that was not originally established in the institutional system of the Community by the Treaty of Rome but reached a high level of influence nowadays is the European Council or the Summit. It has become the motor of integration by “providing the Union with the necessary impetus for its development” (Article D of the Maastricht Treaty, 1992). De facto due to its set of functions including the most significant - agenda-setting power the European Council can be recognized as a top-level leader of the European Union (Piattoni, 2015). By using the conclusions of the summits as a strategy guide (usually 4 times a year) this body directs the policy of the EU, controls the other institutions (Puetter, 2014). The composition of the Council (political leaders of the States, the President of the Commission) logically defines its priority in promoting the national interests and preserving the European order as well. However, in comparison with the Council of Ministers it is more multi-functional as can deal with majority of policy areas in EU. The European Council is `a thorn in the eye' for supranational Commission and the European Parliament (Staab, 2013, p. 59). It presses the Commission from its leading position in the legislative processes (agenda-setter) and excludes the Parliament from the working processes of the Council totally. Distantly, the European Council can influence the appointment procedure of the judges of the ECJ (through the governments of national states, article 19 (2) TFEU). However, the actions of the Council can be subject to the review of the Court of Justice. At the same time the European Council is deprived of the status of the privileged or semi-privileged applicant under the articles 263, 265 TFEU. Generally speaking, the Court of Justice and the European Council do not have a lot of common ground. The history of their interaction is quite young and do not have a big number of salient cases.

3. Law and Policy. The Political power of the European Court of Justice

Defining the policy process, the scholars usually give the notion of the interactions between public policy and its individual or collective actors, events, contexts, outcomes over time (Sabatier & Weible, 2014). There is no chance to study all the theories or approaches that one way or the other deal with the named process. However, we will concentrate on the one that suits ideally for our purposes the `policy cycle' approach. The choice is caused by the main idea of the theory, which states that decision-making process is resulted from the problems in search of solutions (Araral, Fritzen & Howlett, 2013). That is the main essence of any judicial process, as litigation is the last mean in the chain of the instruments providing a person or an institution with the help in solving the disputes. The main reason to provide a short observation of this theory is the necessity to organize the framework of the current research. Harold Lasswel has become the first researcher who was engaged into exploration of `the policy cycle' phenomenon as a separation field in the policy process studying (Lasswell, 1956). Further, this idea of policy-making process as a set of decision steps was modified by a galaxy of authors, including Anderson (1975), Brewer & de Leon (1983) and Sabatier (1999), the last was quite critical to that approach. Moreover, the theory was evaluated by the people's community as the most clear and suitable for explanation of any process happened in policy (Sabatier & Weible, 2014). Some authors regard `policy cycle' as the leading approach in the policy process analysis See, for instance, Hill, M. (2012). Public policy process (6th ed.). New York: Routledge; Parsons, D. W. (1995). Public policy: An introduction to the theory and practice of policy analysis. Aldershot, UK: Edward Elgar; Peters, B. G. (1986). American public policy: Promise and performance. Chatham, NJ: Chatham House. . The most typical scheme of policy process in this model is the 5-stage circle of policy-making: agenda-setting, policy formulation, decision-making, policy implementation, policy evaluation (Araral, Fritzen & Howlett, 2013). Generally, the main pluses of this approach are the particular number of stages, strict identification of the main actors, their actions, level of influence and models of behavior, definition of technical tools used during the process. In most of the cases the main actor on each stage is the government, the governmental bodies, parts of the administration structure. In our case we are going to test the working hypothesis stated above - the Court of Justice is an actor in the policy-making process within the European Union which can fulfill any role in the cycle due to its status. What is more, the decision-making process in the Court complies with the policy cycle, introduced by Luigi Bobbio in 2007. In our research we will apply this model, the stages of which include: 1) problem definition (agenda setting), 2) formulation of policy solutions, 3) adoption of policy solution, 4) policy implementation (rule enforcement) (Bobbio, 2007).

In the following chapter we concentrate on the labor and migration law spheres in European region and the role of the Court of Justice in these fields. The cases have been selected by the random sample based on the significant sources Database from Sweet A.S.(2004). The judicial construction of Europe. Oxford: Oxford University Press. . Chosen policy sectors provide with the cases of large variance, the patterns of which are of all kinds allowing revealing the particular role of the Court in the case. The free movement of persons is considered to be one of the four fundamental freedoms in the EU in parallel with the free movement of goods, services and capital. However, the questions of migration have been included in the jurisdiction of European Court of Justice only in 2009 after the Lisbon Treaty came into force. It means, the law-making processes in the migration sphere are not stabilized and do not have a unified scheme of formation. Over the situation, the Court of Justice using the specific juridical tools is obliged to react on the life's reality. By its decisions ECJ creates a new legal tendency in the building process of the migration policy of the EU. We observe how legal acts of the EU in this sphere (i.e. the Dublin III Regulation) are implemented by the Court, modified by it. Social policy of the EU in the recent years has got a more prominent status than ever before. The question of equal treatment of men and women at work is also in the center of our research. The principle of equality on the ground of sex has been developed over the years through legislation, judicial action, Treaties, policy change. This sphere is a good illustration of the interaction and negotiations between Community's political, judicial, administrative bodies in the law-making process. During long period of time this principle was limited though it deserves a special attention from power authorities. However, now in the European region the problem of gender equality has become a mainstream. Charter of Fundamental rights gave a great support to this movement. The case law of ECJ, soft law make a great contribution to the development of European law in this sphere directly influencing the procedures of law-making or staying an alternative to legislation (i.e. judicial precedents).

3.1 The actions of the Court of Justice in the migration policy field

It has to be admitted that the phrase “European refugee crisis” has become common. The number of applications in 2014 increased by nearly 195 thousand comparing to the previous year reaching approximately 626 thousand, from which more than 562 thousand are first-time applications. Transformed into a `snow slide' in 2015 and continued in 2016, accompanied by migrants' deaths, such a dramatic increase is unprecedented in recent EU history. However, it is evident, that the refugee crisis is not bound by the European borders, it is a world crisis: 86% of world's refugees are hosted by developing countries. For instance, in 2014 Turkey granted international protection to approximately 1.6 millions of Syrians, which broadly exceeds the number of Syrians applied for protection in the EU (120,000). What is more, it can be regarded as a fact that the refugee flood was a predictable phenomenon. As an evidence, from 2010 the number of asylum seekers coming to Europe has been growing in a geometric progression. As well, the events in North Africa and Syria have hardly given reasons to think that the influx of refugees would stop. Feeling the threat from the unstoppable increase of refugees and witnessing the escalation of the conflict within the Syria territory, the European Union created Common European Asylum Policy (CEAP) to contradict problematic tendency. The term “international protection” in the EU is an umbrella term for the protection of refugees and beneficiaries of subsidiary protection. International protection in the EU is a matter of the Common European Asylum System (CEAS). Since 1999 the EU has been working on the development of a policy that would ensure fair, equal and high quality standards for participants of this protection with the respect of international obligations deriving from Geneva Convention (1951) and New York Protocol (1967). The provisions of these documents are implemented through the national legislation of each member state. In this context the CEAS is an attempt to harmonize the ways in which EU member states treat asylum seekers and holders of international protection status. The current legal base of the CEAS is composed of Qualification Directive, Asylum Procedures Directive Directive 2013/32 of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast). OJ L 180, 29.6.2013 , Reception Conditions Directive Directive 2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. OJ L 180, 29.6.2013, Dublin Regulation Regulation 2013/604 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast). OJ L 180, 29.6.2013 and Eurodac Regulation. 1999 has become a remarkable date for the whole European society when the European Union has formulated the framework of the CEAS with the leading role of the so-called Dublin system. This set of legal instruments is one of he most significant as it establishes minimum common standards regarding the reception of asylum-seekers, asylum procedures and mechanisms, criteria to be met in order to be recognized as being in search of international protection, rules for determining which Member-State is responsible for examining an application for asylum. At the same time the Dublin system is integrated into the European human rights protection system and cannot function out of its borders in isolation. That means two independent juridical structures, the European Court of Human Rights (ECtHR) and European Court of Justice (ECJ), are obliged to be involved in the decision-making process on this issue, as in the core essence of their activity are two fundamental primary legal acts - Convention and Charter.

In 2008 the European asylum system entered into a reform phase, the same year the European Commission proclaims the prerogative direction of the system development - substantially strengthening the protection of the fundamental rights of asylum-seekers and implementing a temporary suspension of transfers under the Dublin Regulation to avoid asylum-seekers being sent back to member States unable to offer them a sufficient level of protection of their fundamental rights (Case M.S.S. vs. Belgium ad Greece). However despite the stated aims and development procedures over the past years the amount of Courts litigation increases that means that the system does not work properly though it was announced that Dublin will provide fundamental advantage in speeding up the examination of applications. What is more, it is prescribed, that the core of Dublin regulation is the respect of the principle of non-refoulement defined in the international law. As UNHCR mentioned this principle is considered to be the “cornerstone of asylum and of international refugee law”, reflecting the obligation of the world community (without any exceptions) to provide all people with guarantee of respecting their human rights including “the rights to life, to freedom from torture or cruel, inhuman or degrading treatment or punishment, and to liberty and security of person”. Unfortunately, this question has become (in one row with others) a stumbling block between countries obliging the Court of Justice to act in it's discretion.

The policy-making process on the adoption stage is affected by the number of factors which could not been ignored. Among them there are the participating actors, how the problem is defined, the information about the problem, including its roots and consequences, the time available for the actor to make a decision (Forester, 1984). The case NS/ME examined in 2010 is one of the most salient cases in the practice of ECJ. The key issue the Courts addressed is the systematic breach of trust between the Member States in relation to the fundamental rights of asylums. Thus, ECJ pointed out that the Member States cannot be unaware that systematic deficiencies in the asylum procedure, in the reception and qualification conditions for the seekers of the international protection in the particular Member State can lead to the a real danger for the migrant of being subjected to inhuman and insufficient treatment. The Dublin Regulation presumed that the Member States respect the world-wide recognized principle of non-refoulement. In reality, the picture looks another way. The background of the main case is the following (the second case ME is similar to the first one): N.S, an Afghan national, came to the United Kingdom, where he made an asylum application. However, before that action, he travelled through Greece, where he was arrested and did not make an application, expelled to Turkey, escaped from the detention center there and moved to the final point on his way mentioned above. The Secretary of State, an appropriate authority on this question in the UK, decided to make a removal of N.S. to Greece, as the Regulation 343/2003 allowed to rely on the presumption that the Hellenic Republic (or any other national state) would fulfill the obligations within EU law though there was an evidence of fundamental rights abuses in this country in the migration sphere. Going through all the appeal instances, N.S. brought the Court of Appeal (England and Wales) to send a preliminary reference to the Court of Justice. The case has become a resonance one attracting the attention of the following powerful actors: Amnesty International, the AIRE Centre, UNHCR, EHCR, Ireland, the Governments of the United Kingdom, Belgium, the Czech Republic, Germany, the Hellenic Republic, France, Italy, the Netherlands, Austria, Poland, Slovenia, Finland, The European Commission, the Swiss Confederation. One of the main questions in the reference concerned the discretionary power of the Member State (the EU has a shared competence in this sphere): whether its decision under the article 3 (2) of Regulation 343/2003 had to fall within the European law and to be corresponded with the Charter (article 51). By passing the written observations, the actors in the litigation process have been divided into two opposite groups. The first one, represented by the applicant, EHCR, Amnesty International, the AIRE Centre, UNHCR, the French, Netherlands, Austrian and Finnish Governments, the European Commission, claimed that the mentioned decision had to be in accordance with EU law. The Commission offered to ask a consent of the applicant on the question of transfer under the article 3(2) of Regulation. Others made an accent on the idea of human rights protection, the unified system of EU, procedural obligations of Member States. The second group of actors (Ireland, UK, the Belgian and the Italian Government) marked out that such a decision couldn't be regarded as falling into the borders of the EU law due to some reasons: clarity of the Regulation's norms and the logic of the system, sovereignty status of the national states. The UK even noticed that legal orders of states included the norms of the Geneva Convention and the ECHR that was enough even without the Charter. Regarding the arguments of the sides, the Court agreed with the ones of the first group and developed the independent position on this issue. Using the discretionary power within the article 3 (2) of the Regulation, the Member State, responsible for the asylum application, has become an element of the CEAS which is based on the provisions of the EU legal order. The Court defined, that in the case of a conflict between secondary EU legislation and fundamental rights guaranteed by EU law (including the general principles of the special European legal order) the last one has a priority. Making that statement based on the settled case-law, the Court practically bring the judicial practices to the level of an official legal source having an ability to influence the legislation. However, the principle of mutual confidence The principle of mutual confidence means that Member States can have a confience in each other on the issue of the fundamental rights protection. This principle automatically allows Member States to asume that the treatment of asylum seekers is organised in accodance with the Charter, the Geneva Convention, the ECHR. aimed “to rationalize the treatment of asylum claims” and to avoid blockages in CEAS is criticized by the Court of Justice as it is not an absolute. The doctrine of `safe countries' can be taken as an approval. The notion `safe country of origin” and “safe third country” applies to “a country whose own citizens are not persecuted, whereas the latter refers to a transit country considered safe for providing international protection” European Parliament Briefing on EU Legislation in Progress, Safe countries of origin: European Commission Press release, State of Play: Measures to Address the Refugee Crisis (Brussels, 15/12/2015) . This concept has an aim of restricting and speeding up the examination of asylum request. Due to the Asylum Procedures Directive the Member States have received a conditional possibility not to examine the asylum claim from safe countries of origin This can be the case only if an individual examination of the application is given and the country is considered “safe” for the applicant in terms of his or her qualification as a beneficiary of international protection in accordance with Qualifications Directive. Nevertheless, the safe country principle includes a lot of sharp moments transforming into an unbalanced and unsafe concept which gives base for the multiple debates. To illustrate, there are no Member States that have the same list and no country is on the list of all Member States. Secondly, some Member States doesn't have any list at all (according to the Commission only 12 MSs have it Austria, Belgium, Bulgaria, Czech Republic, Denmark, France, Germany, Ireland, Luxembourg, Malta, Slovakia, United Kingdom: European Agenda on Migration Factsheets, Second implementation package (09/09/2015), “An EU Safe Countries of Origins List”.). Moreover, the criteria by which Member States conduct safety assessments are far from homogenous in practice. The Annex I of the Procedure Directive states too general criteria, which doesn't assure the respect of the human rights in that country and consequently, is far from guarantee the safety of the applicant The countries have to be based on a stable democratic system and be in compliance with international human?rights and fundamental freedoms. In parallel, there are such criteria as the number of European Court of Human Rights (ECtHR) rulings finding violations, the Copenhagen criteria (criteria for candidates for EU Membership).. In synthesis, at the moment the EU legislation doesn't provide a single approach on the issue and the lists are defined at national level, which leads to different recognition rates of similar asylum applications. For this reason, on 9 September 2015 the European Commission presented a preliminary list of safe countries, a proposal for a regulation establishing a common EU list of safe countries of origins, amending the Procedure directive and in the meanwhile trying to harmonize the use of MSs SCO lists. The same time, the Commission data emerge that around 17% of the total number of applications lodged in the EU come from citizens of the 7 countries on the list proposed on 9 September 2015: Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia and Turkey. However, in 2008 when the Council offered to establish the minimum common list of safe countries of origin, the Commission was on the side of the Parliament which brought the application of annulment to the Court of Justice. The provisions were annulled (case C-133/06 European Parliament v Council). Nevertheless, the United Nations High Commission for Refugees says that no country can be declared 100 per cent safe and that the presumption of safety is unacceptable on a human right ground. In the analyzing case NS/ME the ECJ ruled the status of the country as Safe country could not be a conclusive presumption. The Court defined the criteria of applicant's transfer from one Member State to another and claimed that Greece could not cope with the situation of asylum influx. The Court turned to the case law of ECtHR (earlier case M.S.S. vs. Belgium and Greece) where the multiple infringements of asylum procedure in Greece were revealed. The Member State (the UK) got an opportunity to evaluate the risks of transfer before but it did not. There is the crash of the Dublin regulation system, as it could not be applied universally. Later ECtHR would state categorically that “the presumption that a State participating in the «Dublin» system will respect the fundamental rights laid down by the Convention is not irrebuttable” (Case Tarakhel v Switzerland, 2014). We have to admit that the Dublin System directed seekers for international protection in unfavorable conditions and risk of refoulment in contradiction with the international principles and norms. There is no agreement between States themselves, as well as between national courts and European Courts how to deal with the migration problem. Lack of solidarity, sovereignty proclamation, and unfair asylum distribution criteria increases the amount of risk of violation of fundamental rights. Domestic laws and prescription to international treaties are not more guarantees for stability in the protection system. In this framework only the courts (especially Court of Justice) can respond to the current situations as rulers and decision-makers.

Each actor has its own implementation style and the Court of Justice is not an exclusion. It is not an accident that the Court created the special network between itself and all national courts within the frames of the preliminary rulings procedure. Through the courts as policy tools the ECJ influences directly the development of the national policy in Member States (see Chapter 2). The courts of all levels are its main resource by which the Court's capacity to manipulate the policy subsystems is realized. Even the EU institutions recognize the role of preliminary references network as an essential interaction form between the Court and its national `partners'. It is mostly valuable in the migration sphere where the competence is shared between the Member states and the European Union giving the states a space for the discretionary or sovereignty rulings. The migration legal sphere with a background of international refugee crisis and a great amount of legislative acts is in need of interpretation and application measures providing by the Court. In order to be in the `avant-garde' of the policy construction in the European Union within this field using its semi-constitutional functions the Court created the Recommendations for national judges handling asylum-related cases. And though the name of this procedural document is Recommendations most of the norms in its content seems to be of an imperative character. The goal of sending the references is to decrease the legal uncertainty and divergence of law interpretations by national courts within the EU. Controversially the Court announces its status as not a fact-binding judicial structure for the domestic courts that has an authority to define the outcome of the main proceedings. At the same time, the Court of Justice underlines that its decisions concerning the EU asylum law are a governing case law, the guidance with a legal effect of erga omnes on the courts and tribunals. What is more, the guidance of ECJ has a two-side effect as it deliberately or inadvertently checks the national law on correspondence with EU law. Assuring itself and remembering the tensions with the higher courts, the Court of Justice in the case Cartesio(2008) assumes that national courts have the widest discretion power (especially on the asylum issue) in referencing questions to ECJ even passing over the higher instances. Often the Court is accused of being supranational and developing the too “Eurocentric” approach on the refugee question thus ignoring the global character of the Geneva Convention (Lambert & Goodwin-Gill, 2010, pp. 8-9). However, the Court denies this fact. It underlines, that UNHCR, NGOs, INGOs, representatives of civil society, Member States, the EU institutions are allowed to participate in the judicial procedure as interveners or amicus curiae. The Court `dodges' by proclaiming that it does not intersect the jurisdiction of national courts. However, there are the cases-proofs witnessing of the other behaviour of ECJ (Case C- 34/09 Zambrano; Case C-434/09 McCarthy). As another instrument of the implementation policy control, the Court recommends the judges to send the information about the further actions in the process. It looks like that freedom of courts on the implementation stage is rather restricted than let float freely.

The agenda-setting stage is a reflection of the dynamics in the decision-making processes within Community. This part of the cycle defines the problems attracting attention of the public society. In its decisions the Court of Justice also reveals the gaps in the legislation materials connected with refugees, asylum, international protection. The multiple Directives (i.e. Qualification Directive, Procedures Directive, Reception Directive) are only frame laws the statements of which need to be interpreted in one way. Thus, the Court of Justice has brought up the question about acts of persecution under article 9 of the Qualification Directive in the case Y&Z. The notion of the `armed conflict' (article 15 of the Qualification Directive) also was in the agenda list of the Court. The Commission and UNHCR agreed that the interpretation of this concept must be submitted to the international humanitarian law. In the case Diakitй the Court of Justice answered categorically: the term “internal armed conflict” had to be given its natural meaning independent from the IHL. Two legal systems (IHL and subsidiary protection) have different aims and mechanisms of exploitation.