Resumen de Le deroghe alla direttiva rimpatri all'ombra del Patto: strumentalizzazione dei migranti e riforma del meccanismo di valutazione e monitoraggio di Schengen
Art. 2(2)(a) of the Directive 2008/115/EC (Return Directive) provides the conditions whereby the Member States can derogate from some provisions of the directive itself. An amendment to remove this clause is under discussion before the European Parliament, as part of the negotiations on the directive’s recast. Derogations from the scope of the directive challenge the monitoring of compliance with human rights obligations and the Charter of Fundamental Rights of the European Union. Meanwhile, the proposal on the reform of the Schengen Evaluation and Monitoring Mechanism (SEMM) aims for an effective monitoring of the respect of rights at external borders. This implies greater attention to the correct implementation of the Return Directive. However, in the new Pact for migration and asylum, the derogation clause is applicable to both the proposal for a Regulation on screening at external borders and the proposal for a common procedure for international protection. Derogations from the Return Directive are also contained in the proposals aimed at addressing situations of instrumentalisation of migration and asylum. The analysis of these provisions gives a picture of an incoherent normative system, whose antinomies may foster or further complicate the already troubled advancement of negotiations on the Return Directive and on the Pact.
