ISSUE NO. 1 February 2017

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Feb 1, 2017 - The Right to Access to Higher Education in Albania ...... KEY WORDS: Suspension Mechanism, Schengen Policy
ISSUE NO. 1 February 2017

EDITOR IN CHIEF Holta Ymeri BOARD OF EDITORS Perikli Zaharia Zhani Shapo Florian Xhafa AUTHORS OF ISSUE NO. 1 Florian Xhafa Gledis Gjipali Holta Ymeri Nirvana Deliu Suela Hasani The Albanian Law Journal – is an online non for profit law journal, with open and free access to the legal community and other interested professionals, businesses or citizens. It began as a joint idea of a group of legal and policy professionals discussing on the necessity to extend the participation in the legal and policy debate regarding hot topics impacting citizens, businesses, state officials and the society in general and to contribute to doctrinal creation. Its realization was possible due to the hard work of the Editorial Board, Editor in Chief, European Movement Albania and the grant issued by the Albanian Embassy of the Kingdom of the Netherlands. The goal of the Albanian Law Journal is to help the creation of a public debate about important aspects of the Albanian legal and institutional framework; to lay the foundations of the creation of a more elaborated Albanian legal and policy doctrine; to deal with issues of EU integration of Albania and in general to help the improvement of Albanian legislation and institutional framework. Therefore ALJ aims to publish high quality articles on dealing with four main topics which will constitute the thematic pillars of ALJ: Legislation; Practical and Administrative Issues; Human Rights and EU integration. ALJ aims to attract an extensive number of authors, Albanian and foreign, from the students community, legal professionals, lawyers, law professors, judicial professionals, policy experts etc. During the first two years of activity, authors will not be charged with any publication costs. The quality of articles submitted to the ALJ will be evaluated through a two evaluation phase by the Editor in Chief and the Board of Editors which has the final saying. Rules and procedures for publishing, copyright issues, quality and evaluation of articles are found in the Author’s Guidelines published in the respective ALJ website: http://lawjournal.al/?q=page/authorsguidelines

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TABLE OF CONTENTS

INTRODUCTION TO ISSUE NO. 1 Summary of the issue By the Editor in Chief …………………………………………………………………………….4 PILLAR I - ALBANIAN LEGISLATION Legal and Policy Developments of import of Non-Hazardous in Albania by Av. Florian Xhafa...…………………………………………………………………...………..5 PILLAR II - PRACTICAL AND ADMINISTRATIVE CASES The Right to Appeal a Court Decision Refusing the Issuance of an Injunction Order by Av. Suela Hasani …………………………………………………………………………….12 PILLAR III - HUMAN RIGHTS The Right to Access to Higher Education in Albania by Av. Holta Ymeri ……………………………………………………………………………....16 PILLAR IV – EUROPEAN UNION AND INTEGRATION Suspension Mechanism as a Last Resort to Protect the Schengen Area by Gledis Gjipali and Nirvana Deliu……………………………………………………………26

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INTRODUCTION TO ISSUE NO. 1

By the Editor in Chief Issue No. 1 of the Albanian Law Journal coincides with a period of important changes both internationally and in Albania. This first issue of the ALJ will address some of these important changes currently undergoing in Albania and those impacting the European area where Albania intends to participate as a member state. The Albanian Legislation Pillar introduces the topic of import of waste in Albania which caused great debates and public concerns. The article explains in detail the legislative history of import of waste in Albania, points out legal contradictions and gaps and provides recommendations for regulating the subject matter. The Practical and Administrative Cases Pillar is dedicated to a topic, which is very important for attorneys dealing with court proceedings and specifically those court proceedings regarding Injunction Orders. The article explains the nature and ratio of injunction orders and identifies and discusses a procedural gap which has the effect to impair the very right to a fair trial. The Human Rights Pillar is focused on another hot topic in Albania, that of the education reform, which was currently in the center of the public debate. The article’s main topic is the right to access to higher education and it analyzes how access was impacted by the education reform by comparing the old and the new system and also by analyzing whether parts of the reform regarding access to higher education were compliant with the right to education as determined by the European Convention of Human Rights. The European Union and Integration Pillar, presents an article dealing with one of the most debated topics in the European arena, and beyond, migration. More specifically the article focuses on and analyses the Schengen agreement and the recently introduced emergency mechanism.

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PILLAR I ALBANIAN LEGISLATION

Legal and Policy Developments of import of Non-Hazardous in Albania by Av. Florian Xhafa I. ABSTRACT This paper deals with a topic which has been very much debated within the Albanian arena for the last years: that of import of non-hazardous waste. It lately came again under the public opinion’s attention due to further legal changes and raised the same old Albanian fears regarding the issue of waste import and waste management. This Paper intends to examine the developments on this subject which have taken place throughout the years, and provide the analysis of the latest legal changes and recommendations on future operations. KEYWORDS: Environment; Waste Management; Treatment; Recycling; Regulation; Policy; Hazardous; Non-Hazardous Abbreviations ACW Basel Convention DCM DCM 806

DCM 99 DCM 835

DCM 825

DCM 608

DCM 418 EU Law 9299

Law 9537 Law 10431

Albanian Catalogue of Waste on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, 22 March 1989 Decision of Council of Ministers DCM No. 806, dated 4.12.2003 “On the approval of the rules and procedures for the import of waste for the purpose of use, processing and recycling” DCM No. 99 dated 18.02.2005 “On the approval of the Albanian catalogue on the classification of waste” DCM No. 835, dated 28.12.2005 “On the approval of the list of waste, hazardous waste, and other waste, prohibited to be imported for purposes of conservation, depositing, and disposal” DCM No. 825, dated 13.10.2010 “On the approval of the list of waste that is permitted to be imported for purposes of use recycling and processing” DCM no. 608, dated 17.09.2014 “On development of necessary measures for collection and treatment of bio-waste as well as criteria and rules for their reduction” DCM No. 418 of 25.06.2014 “On separate collection of waste at source” the European Union Law no. 9299 dated 28.10.2004 “On adhering of the Republic of Albania to the Decision III/1, amendment of Basel Convention “On the transboundary transfer of hazardous waste and their disposal”. Law no. 9537 dated 18.5.2006 “On hazardous waste management” Law No.10431, dated 09.06.2011 “On environment protection”. 5

Law 10463 Law 156/2013 Law 92/2016 Law 8934 Law 9010 LGU PIA POP PRT Register RIA SAA

Law no. 10463, dated 22.09.2011 “On integrated waste management”, as amended by the law 156/2013; Law no. 156/2013 “On amendments to the Law no. 10463/2011 “On integrated waste management” Law no. 92/2016 “On amendments to the Law no 10463/2011 “On integrated waste management” Law no. 8934 dated 5.9.2002 “On environment protection” Law no. 9010 dated 13.2.2003 “On environmental management of solid waste” Local Government Units Policy Impact Assessment Persistent Organic Polluters Pollution, Release and Transfer Register Regulatory Impact Assessment Stabilization and Association Agreement

II. INTRODUCTION During the last decades, as far as it concerns the environment, Albania has undergone an intense and rather chaotic social and economic development. The main reason is not having properly taken into account the principle of “Sustainable Development”, which requires the balance between the economic and social development with the environmental media (air, water, land, biodiversity). This situation has been created by the following main elements: i. uncontrolled business investments, including in agriculture activity; ii. uncontrolled exploitation of natural resources; iii. lack of coordination between central and local government in formulation and implementation of development policies. The lack of attention to environment matters, during the adoption and implementation of development policies, has led to alarming indicators of pollution1. In addition, another important aspect that highly influences environment is social apathy and disregard toward environmental protection and natural resources. The main pollution causes have been identified throughout a considerable number of projects, financed by international donors (EU; WB; UNDP; etc.) as follows: i. ii. iii. iv.

the lack of collection and recycling of waste in urban and rural areas; the use of streets, rivers, and lakes as dumpsites for urban waste; the un-controlled use of POPs; the lack of inter-institutional coordination as a direct consequence of inappropriate segregation of official control functions; v. the lack of monitoring waste production and its release into the environment as a consequence of the non-functioning of the PRT Register2. During the recent years, the environmental policies and the respective legal instruments for their implementation have acquired particular attention of the central government and also of the general public, but administrative and technical resources for their implementation remain yet insufficient.

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http://www.akm.gov.al/cil%C3%ABsia-e-mjedisit.html#monitorime As required by the article 32 of the Law 10431/2011 and UNECE Protocol on PRTR.

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III.

ANALYSIS OF THE CRONOLOGY OF THE REGULATORY FRAMEWORK ON WASTE MANAGEMENT The Albanian policy and legal framework, addressing waste collection and treatment, has undergone several important shifts in the last decades. These changes, regarding policy options, legal instruments, or administrative solutions, have been driven by three main factors: i. the political will to attract favourable public opinion or citizens’ attention and raise concerns on this matter; ii. the international pressure, due to the cross-border impact of environment pollution; iii. the integration processes of Albania in various international organisations (UN; EU; WTO, etc.); iv. the emergency reaction to hazardous waste and hot-spots, due to industrial pollution (mainly inherited from past chemical industries). These factors, despite their wide range of focus in regard to waste collection and treatment, have not provided enough political vision and structured endeavour to develop a sustainable policy and create harmonised instruments necessary to solve the waste collection and treatment issue, at the central and local level. 1. 2002-2006 Period The first major regulatory effort in the area of environment protection, and specifically, waste management, was made during the 2002 – 2006 period. It provided the general framework as well as some procedures on waste management, on import and export. Law 8934 (now repealed), laid down the basic requirements for addressing the relation between human activity and the environment, by ensuring the protection of the environmental media and the implementation of the constitutional objective to have an ecologically sound environment for current and future generations3. Regarding waste management, Law 8934, established in its article 22 that import of non-hazardous waste, in the territory of the Republic of Albania, for the purpose of use, processing and recycling, was allowed only after a case by case approval issued through a specific DCM. The mentioned waste could be only of the type included in the approved list of wastes, allowed to be imported for such purposes. Necessary sub legal acts were issued based on Article 22 of Law 8934 and specifically: (i) DCM 806 (now repealed), which regulated the import of non-hazardous waste for the purpose of use, process and recycle; (ii) DCM 99 (now repealed), which divided wastes into “hazardous” and “non-hazardous”, compliant to the provisions of the EC Directive 2000/532/EC (now repealed); (iii) DCM 835 (now repealed), compliant with the ACW. Law 9010 (now repealed) followed in 2003, providing a full regulatory framework for solid waste management. Through its Articles 8 and 26, Law 9010, banned the import of any kind of waste (hazardous and non-hazardous) for purposes other than use and recycling, and specifically for the purposes of conservation, depositing and disposal, thus being in harmony with the provisions of the Law 8934. In 2004, Albania ratified the Basel Convention through Law 9299, making the country compliant with the international standards of division between wastes of the Green list and wastes of the Basel list. Following the ratification of the Basel Convention, in 2006, Law 9537 (now repealed) was enacted and established the norms that regulated safe management of hazardous waste and their collection, transport, recovery, treatment, disposal and export. Article 20 of Law 9537 banned the import of hazardous waste for any purpose in the territory of Albania. As a result of the abovementioned legal framework adopted during 2002-2006, the situation related to the import of waste was as follows: i. waste was divided into hazardous and non-hazardous; 3

Article 59 (1) (d) of the Albanian Constitution.

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ii. import of hazardous wastes in Albania was banned; iii. import of non-hazardous waste for the purpose of use, processing and recycling, was allowed; iv. import of non-hazardous waste for the purpose of conservation, depositing and disposal was banned. It is worth noting that the abovementioned legislation and policy regarding waste management, including import and export of waste, provided a basic framework, which was only partially implemented due to lack of comprehensive sub-legal acts, administrative procedures and infrastructure regarding for instance, separation and collection of waste at the source, landfills, recycling, etc., as well as due to lack of financing capacities and public awareness. This situation was additionally deteriorated because of the complex distribution of functions between various institutions involved and the ambiguity of the behaviour of economic operators and households, toward the Environment as a whole. On the other hand, import of non-hazardous waste for the permitted purposes, during this period, was carried out by private operators, based on the interpretation of the DCM 835, which listed the hazardous waste which were banned and could not be imported, while leaving open the right to import almost all the other waste listed as non-hazardous. This regulatory framework and the respective procedure, was not in line neither with the EU legal provisions established by means of the EU Commission Decision 94/721/EC (now repealed), which established the Green List of Waste including about 168 products, nor with the Green List4 of the Basel Convention, which included about 179 products. Therefore there existed a legal gap in Albania regarding this issue. In addition, the regulatory framework, regarding waste management and waste water treatment, was rather limited and didn’t provide enough procedural frameworks to implement the general obligations established by it. The waste management situation was worsened also because of the limited resources and infrastructure, making the “dumpsite” as almost the only alternative for waste management. 2. 2008 Period Another important step toward proper waste management, especially related to import and export of waste, was made in year 2008, with the approval of DCM 825. This DCM adopted the EU Green List of waste that included non-hazardous waste products that could be imported and exported for the above mentioned purposes. The list of waste permitted to be imported in the Albanian territory, as provided by DCM 825, was more restrictive that the EU Green List, allowing the import and export of only 55 products out of 168 products included in the EU’s list. Regarding procedural aspects, another improvement brought by DCM 825 to the situation at that time, was the differentiations in the Custom Nomenclature Code of the waste that could be imported (G-Green) and the waste that could not be imported (B-Basel), which enabled the custom authorities to perform proper controls to the borders. Moreover, this procedure was completed by requiring the documents of “notification” and “movement” for the transfers/cross-border movements of waste as established by the Basel Convention, which were required to operators participating in the process of import, export and transport of waste. Despite the general provision of DCM 825, the authorization of import of waste was issued case by case for each operator and quantity only after compliance with the specific requirements of the DCM no. 806. 3. 2011-2014 Period The third regulatory reform on environment and waste management was realized during the 2011-2014 period, and it is currently governing the subject area. A large number of norms were approved during this period, as a direct requirement of Article 70 of the SAA Agreement, regarding approximation of environmental legislation with the “acquis”. The organic law on environment protection, Law 10431 was approved, along with the organic law on waste management, Law 10463, and their respective sub-legal

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Annex IX of the Basel Convention

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acts5. This legal package introduced in the Albanian legal framework, basic principles on environmental protection such as (i) the obligation of polluters to pay for the waste they produce; (ii) the waste end-life status6 ; (iii) various procedures and requirements regulating a different type of waste management and treatment; (iv) as well as and the obligation of the public authorities regarding waste management. Regarding import and export of waste, the situation regulated by DCM 825, was further elaborated by Law 10463 in terms of further restriction and control procedures. Nerveless during the elections period of 2013, one of the main promises of the Socialist Party, was to block all waste imports. This promise was based on two main arguments: that Albania does not comply with the required standards, and does not have the infrastructural and administrative capacities to control and manage the import of waste; that Albania should guarantee standards for the treatment of its own waste, and should develop the necessary systems for monitoring import and export of waste. Also relying on these arguments, environmental organizations and a considerable number of citizens, collected thousands of signatures, with the purpose of holding a referendum abolishing the respective Article of Law 10463, which permitted the import of 55 waste products (out of 168 products foreseen by the EU list, as established by DCM 825). The referendum was never held as the Socialist Party winning the elections, promised to abolish that article through a legal initiative (the amendment to the Law 10463). In fact, the new Government drafted and the Parliament enacted Law 156/2013, which banned the import of any hazardous and non-hazardous waste in Republic of Albania. This law also provided that any Albanian disposition conflicting with the ban on import was abolished, meaning that DCM 825 was also abolish. There is no data that such drastic changes, in the legislation and policy regarding waste import in Albania, was conducted following a prior PIA or RIA on the subject, which would had provided enough argument for such a decision. Without entering on pros and cons of the policy decision, from the legal analysis point of view, it presented certain constrains and specifically: (i) it took a step back the process of approximation of environmental legislation the acquis, as provided in the Article 70 of the DCM 825; (ii) it unilaterally placed more restrictive measures to trade between parties, compared to those established by the Interim Agreement of the SAA, therefore it breached its provisions7. 4. 2013-2016 Period There were no major changes in legislation or policy, regarding waste management, during 2013-2015. Few landfills investments were made, while the system of separate collection of waste at source was not carried out by the municipalities until currently. Even now, this process is made only in few cities, such as Tirana or Korça. During 2016, there was a new governmental proposal drastically shifting legislation and policy related to waste import, from the absolute ban to the contrary direction. Law 92/2016 was issued, allowing the import of waste included in the Green list. This action first required the approval of the Green list, 5

DCM no. 175, dated 19.01.2011 “On the approval of National Strategy of waste management and National Plan on Waste Management”; DCM no. 177, dated 06.03.2012 “On waste packaging”; DCM no. 178, dated 06.03.2012 “On waste incineration”; DCM no. 452, dated 11.07.2012 “On Landfills”; DCM no. 705, dated 10.10.2012 “On waste management from end life vehicles”; DCM no. 765, dated 07.11.2012 “On the approval of rules for differentiated gathering and treatment of used oils”; DCM no. 866, dated 4.12.2012 “On waste batteries and accumulators”; DCM no. 957, dated 19.12.2012 “On waste from electric and electronic devices”; DCM no. 798, dated 29.09.2010 “On the management of hospital waste”; DCM no. 229, dated 23.04.2014 “On approve of the rules for non-hazardous waste transfer and other requirements for the information to be included in the transfer document”; DCM no. 371, dated 11.06.2014 “On approve of the rules for hazardous waste consignment and their consignment notes”; DCM No. 418 of 25.06.2014 “On separate collection of waste at source”; DCM No. 608, dated 17.09.2014 “On development of necessary measures for collection and treatment of bio-waste as well as criteria and rules for their reduction”; DCM No 641 of 1.10.2014 “On approve of rules for waste export and non-hazardous waste or inert waste transit”. 6 Waste end-life status meaning: a waste product shall not be referred as such, at the moment when it complies with the technical requirements established for the row products or when the market requires it as such. 7 Nevertheless no evidence of notification or denunciation of such act by the parties have been found.

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containing the list of waste permitted to be imported, which previously existed but was abolished in 2013 together with DCM 825. Despite lack of the list, Law 92/2016 amended Article 48/1, paragraph 1 of Law 10463, providing the right to import non-hazardous solid wastes, for purposes of usage as raw materials, in the recycling industry and other industries, not excluding waste incineration activities. At the same time, the government issued several permits for incineration activities. The enactment of this act was followed by considerable reaction of the public, based on which the President, did not approve the Degree for its entering into force. The argument of the government to the public opinion, for such a shift, was that these new legal changes did not permit entrance of waste but of primary products necessary for the recycling industry. Secondly it was explained that the country was now ready to administer and control the import process through its administrative procedures and facilities. IV. CONCLUSIONS AND RECOMENDATIONS The legislative, policy and regulatory reform regarding waste management in Albania, implemented within the last decade, has improved substantially, nevertheless it was not accompanied by the necessary financing on infrastructure, human resources, and administrative capacities. A major issue was that it lacked transparency and was often used as a political tool by the Albanian political actors. All these elements have produced the general public perception that these reforms were only taken for political purposes, serving certain economic sectors. This perception has been also fed by the unclear arguments provided by the political actors, when lining in favour or contrary to the drastic shifts of legislation regarding this subject matter. In any case, on a strictly legal point of view, the shift taken in 2013 totally banning the import of waste was a clear breach of international law, which could be adjusted only by the pending approval of Law 96/2016. This does not exclude the responsibility of Albania to priory assess its rights and obligations, as well as the internal capacities to properly implement the international law. That being said, any process of ratification of international agreements or conventions should be preceded in any case by a PIA and a RIA, as well as by a feasibility study regarding implementation capacities of the country. These processes would hinder the misuse for any political or populist reasons, of policy and regulatory norms, as well as of the ratification of international law instruments. In concrete terms, in order to ensure proper waste management, as well as a controlled import of waste, Albanian public authorities should guarantee at least the following: i. the establishment of a well-functioning procedure, for the separation of waste at source; ii. establishing landfills for waste that cannot be recycled and reused, with proper environmental protection standards; iii. standardizing incinerating operations, prohibiting any incineration activity of harmful/ hazardous wastes, conforming these operations to the highest technological standards, with the requirement of making them at the same time useful to the community where they are placed, by providing energy (electric energy; heating & cooling energy etc.); iv. implementing official control of imported wastes guaranteeing that no other products other than those provided for in the Green List, may enter the territory of Republic of Albania, and guaranteeing that entrance is permitted only for the permitted uses. v. Implementing Environmental protection principals, such as “polluter pays” and “end-life status of waste” leading waste management policies and procedures. vi. Implementing transparent processes for any adopted government policy related to waste management, providing the opportunity to the affected communities to express their opinions and participate in the decision making procedures. This is more important when considering that waste management is a

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highly sensitive issue, not only to the local communities, but to the cross border-communities as well, due to its expansion potentials. Lastly, it is necessary to point out that another crucial element strictly related to and impacting waste import, is waste management at the local level. While the public and political debate on waste import is still vigorously ongoing, the debate on the obligation of local government, LGUs, to properly gather, remove and treat waste in their respective territory is totally obscured. This important aspect of the issue has not received any major attention. To clarify, LGUs are obliged to manage territorial waste due to Paragraph 4 of DCM 608establishing that “the timeframe for the differentiated collection of bio waste from LGUs is: (a) within year 2017 for municipalities (at the centre of the region); (b) within 2018 for the other municipalities”. Moreover, pursuant to Chapter IV of DCM 418 the “Municipalities of 1st category, should assign within the 31st of December 2016, the appropriate measures for the differentiated collection of waste, at least for: a) Paper; b) Metal; c) Plastic; and d) Glass;” and “The other municipalities, should assign these measures, within 31st of December 2018,”. In addition Law 10463 establishes that any district has the obligation to develop and approve the regional integrated waste management plan for the territory in its jurisdiction, in compliance with National Plan for Integrated Waste Management. As a result, the issue of waste import does not have to be regarded as an isolated problem or the main problem of environmental protection and waste management. Import of waste is only one aspect of the bigger Albanian problem regarding waste management procedures and capacities. Therefore legal and policy dealing with waste, should be comprehensive and regulate all aspects of the subject, from internal collection, treatment, disposal etc. to import-export, transport, transition etc. Waste can be dealt with, only within a coherent legal and policy framework.

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PILLAR II PRACTICAL AND ADMINISTRATIVE CASES

The Right to Appeal a Court Decision Refusing the Issuance of an Injunction Order by Av. Suela Hasani I. ABSTRACT This article examines the right to appeal a court decision refusing an injunction order in a civil lawsuit. The first paragraph explains the definition of injunction and the main criteria on which to request it. The second paragraph deals with the specific appeal procedure against injunctions and in particular with the issue of appealing a court ruling that refuses the issuance of an injunction order. In the last paragraph conclusions and recommendations for the necessary legal amendments are presented. KEYWORDS: Injunctions; Fumus Boni Iuris; Periculum in Mora; Interim decision Abbreviations Administrative Courts Law

CPC ICPC ICC

law no 49/2012 “On the organisation and functioning of administrative courts and adjudication of administrative disputes” Civil Procedure Code Italian Civil Procedure Code Italian Constitutional Court

II. INTRODUCTION TO INJUNCTION ORDERS IN CIVIL LAW JUDGMENTS The injunction is a legal instrument which aims to maintain the status quo, pending the final decision on a case, in order to avoid potential harm that may be caused to the rights of the plaintiff, by the impossibility or difficulty to execute a court ruling. The injunction is an immediate, but temporary remedy, requested by one of the parties of the trial, closely linked to the subject of the lawsuit. A temporary injunction does not decide the merits of the case, but rather prevents further harm from being caused for a period of time. Articles 202-212 of the CPC stipulate the cases when an injunction can be issued. Article 202 CPC stipulates that: “On the request of the plaintiff, the court allows within 5 days the granting of an injunction, when there are reasons to doubt that the execution of the decision, regarding the rights of the plaintiff, shall become impossible or difficult. The injunction is allowed when: a) the lawsuit is based on evidence in writing; b) the plaintiff gives guarantees to the degree and kind determined by the court for the damage that may be caused to the defendant by granting the injunction. The guarantee can be requested also for the case provided in the letter “a” of this article”. The interpretation of this article points out the main conditions on which a court may grant an injunction. Firstly, a court may decide to grant an injunction only if such a request has been submitted, meaning that an injunction cannot be issued without a prior request8. Secondly, there are two conditions based on which a court can allow an injunction request: (i) the possibility that the right for which protection is 8

Dr. Flutura Kola-Tafaj , Asim Vokshi LLM , “Civil Procedure”, Law Faculty of Tirana University, 2011, page 164.

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claimed exists (fumus boni iuris) and (ii) when there are reasons to doubt that the execution of a ruling regarding the right to be protected, could become impossible or difficult (Periculum in mora). With regards to the first condition, fumus boni juris, to allow an injunction, the court should at least establish that there is a right for which temporary relief is sought. The existence of this right should not be determined fully, as this constitutes the merits of the case, but a judgment should be made regarding the likelihood of its existence based on a quick and superficial reading of the case (summaria cognitio), which is why the lawsuit should be based on written evidence9, as stipulated in art. 202 (a) of the CPC. To this effect, the Joint Chambers of the Supreme Court, in their unifying decision no. 10, date 24.03.2004 state that: “Courts should not base their decision to grant a temporary injunction on the facts and actions, or their legal definition; that has to do with the hearing and resolution of the case. Also, an injunction request should be treated in such way as to avoid any perception of prejudgment or bias on the part of the court”. The second condition, (Periculum in mora) refers to the existence of reasonable doubts that the execution of a court decision in relation to the right to be protected will become impossible or difficult. This is related to the harm that can be caused to the rights of the plaintiff. It is important to note that these are doubts based on reasons and not on complete certainty and proven facts, as it is the persuasion arising in a judge after the case is heard in its entirety10. Art 202 (a) of the CPC also requires the plaintiff to submit written evidence, a condition without which an injunction cannot be granted. This condition serves to assess whether both afore-mentioned criteria are fulfilled: fumus boni iuris and periculum in mora. The Albanian case-law also reflects the importance of submitting written evidence. In its decision, the Supreme Court states: “in granting an injunction pursuant to art 202 (a) of the CPC, the court should take into account the simultaneous fulfilment of two conditions: the plaintiff should submit written evidence and have the doubt that the execution of a court decision will become impossible or difficult. The court however has no right to assess the written evidence submitted by the plaintiff, because such an act would lead to the predetermination of the case, which is in breach of the important principle of a fair trial, established in art 4 of the CPC11”. Letter (b) of art 202 of the CPC also stipulates that: “the plaintiff gives guarantee to the degree and kind determined by the court for the damage that may be caused to the defendant by allowing the injunction”. The legislator has foreseen another condition for the granting of injunctions; requiring the plaintiff to place a guarantee for the compensation of any potential damages incurred to the defendant. The kind and amount of the guarantee is left at the discretion of the court. The court also sets the deadline within which the guarantee shall be given12. With respect to the judicial practices, interpreting letters (a) and (b) of art 202 of the CPC, the Supreme Court decision no. 227, date 08.05.2012 states: “From the above-mentioned legal disposition, it becomes clear that the injunction is granted on two occasions; when there is written evidence and when a financial guarantee is given... when written evidence exists, the financial guarantee is not necessary, although it is at the discretion of the court whether to issue or not the guarantee”. III. APPEAL PROCEDURE OF AN INJUNCTION 9

Article 202 (a) CPC. Dr. Flutura Kola-Tafaj, Asim Vokshi LLM, “Civil Procedure”, Law Faculty of Tirana University, 2011, page 165. 11 High College of High Court, Decision No. 227, Dated 08.05.2012. 12 Alban Abaz Brati, “Civil Procedure”, Dudaj Publications, 2008, page 196. 10

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The appeal procedure of an injunction order is stipulated in articles 209-210 of the CPC. Article 209 states: “A separate appeal for changing or dissolving an injunction may be made against the decision of the court which has granted the injunction request. The appeal against the above decision does not hinder the continuation of the consideration of the lawsuit”. The code defines very clearly that only rulings granting, changing or annulling an injunction may be appealed through a separate appeal. This disposition however does not specify the case when an appeal is made against the decision to refuse the issuance of an injunction order; that is whether a separate appeal against such a decision is allowed or not. It is important to remember that pursuant to article 125 of the CPC, an injunction order, is an interim decision. As such it is also regulated by article 470 of the CPC, which stipulates the rules and procedures for appealing interim decisions: “Interim decisions issued by a court of first instance may be changed or withdrawn during the trial. These decisions may be subject to appeal together with the final decision. Nevertheless, in the cases expressly provided for in this Code, a separate appeal may be made to the court of appeals against interim decisions within 5 days of their announcement or communication”. Thus, by not explicitly mentioning in the law the right of the parties to submit a separate appeal, the interim decision rejecting an injunction can only be appealed together with the final decision. Practically, the court, faced with an injunction request can decide the following: (i) to grant the injunction request, in which case the party enjoined can appeal the decision within five days from its announcement; (ii) to reject the injunction request. In this case the party requesting the injunction does not have the right to a separate appeal within five days. Their only chance to appeal the interim decision is to file an appeal against the final court ruling, despite their claims of periculum in mora and fumus boni iurus which are the core elements of an injunction. Consequently, Article 209 of the CPC does not provide a separate appeal against a court ruling rejecting an injunction and article 470 of CPC, which provides the right to appeal such a decision, it postpones it to the final court decision. In some cases the first instance courts have acknowledged the right of appeal against a decision rejecting the injunction request, while some others have not allowed such an appeal 13. Tirana Appeal Court also has conflicting case law regarding the right to appeal, as can be seen by decision no 27, date 25.02.2013, which states: “As can be seen, from the content of the dispositions presented above, but also based on the understanding of art 125 of the Civil Procedure Code, a court ruling can be considered an interim decision to which the right of a separate appeal is foreseen within five days as stated in article 443”. Decision no.123, date 03.04.2013 states: “In relation to the appeal submitted by the plaintiff, without examining the reasons claimed in the complaint, the Civil College of the Tirana Appeal Court finds that the complaint submitted to the main secretary of the first instance court pertains to a ruling, that according to legal provisions, art 209 of the CPC cannot be appealed”14. This fact is also noted by the Civil College of the Supreme Court, which has stated that: “... the court has not explicitly foreseen the right to appeal against an interim court ruling that has rejected the injunction request; instead the injunction refusal can be appealed only together with the final court ruling”15. Italian courts faced a similar phenomenon, when until 1995, Article 669-terdecies of the ICPC did not allow the separate appeal against rulings rejecting injunctions. Later on this article was considered unconstitutional by the ICC, which argued that “based on the principles of full equality between parties, 13

Silvana Çinari, “Injuctions measures in courts and arbitration proceedings”, Law Faculty of Tirana University, 2015, page 60. 14 Silvana Çinari, “Injuctions measures in courts and arbitration proceedings”, Law Faculty of Tirana University, 2015, page 61. 15 Civil College of the High Court, Decision No. 445 dated 17.04.2007.

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and equal treatment during a civil trial, the inability of the party requesting an injunction, to appeal against a decision rejecting it, constitutes a violation of the right to be protected by favouring the party against which the injunction is requested. This situation clearly demonstrates that parties are not in equal positions during the civil trial. A ruling allowing or rejecting an injunction order is in violation with the interest of each party; therefore it is not reasonable for the decision rejecting the injunction to be considered a priori more grounded than the decision allowing it. Allowing the right to appeal only the decision granting an injunction creates inequalities16”. But apart from the comparative Italian case, the most valuable example regarding the rules around injunctions is to be found in the Albanian administrative court proceedings. In 2012, the Administrative Courts Law entered into force. “The aim of this legislative initiative was to reform the judicial proceedings regarding the administrative disputes in terms of pace and quality by establishing an autonomous specialized court system with administrative judges”17. What is worth mentioning in the context of this analysis, are the rules governing injunctions in administrative judicial proceedings. Article 32 of the Administrative Courts Law foresees: “A special appeal to a higher instance court may be made against a decision of the court accepting or rejecting an injunction request [or] for the removing, change or substitution of the injunction ruling”. Consequently, the administrative court proceedings, as opposed to the civil proceedings, ensure full equality in terms of legal means to appeal an injunction ruling, because the legislator has, in this case, specified the same procedure, that of a separate appeal, for appealing a court decision granting, rejecting, removing or substituting an injunction order. IV. CONCLUSIONS AND RECOMMENDATIONS At the start of this article we explained that an injunction request was based on the argument that the execution of a court ruling with regards to a right breached can become impossible or difficult; therefore the main aim of injunctions is to prevent potential harm from being caused during the trial, until its conclusion. Failure to stipulate the right for a separated appeal against the rulings that refuse an injunction request are in breach of the very essence of the injunction. It also creates disparity in terms of legal means available to the parties, since article 209 foresees the right to a separate appeal in case the injunction request is approved, changed or removed, but not when it is rejected, thus leading to a violation of the right to protection and above all a serious breach of the right to a fair trial. What is worth mentioning is that a crucial feature of the injunction is its emergency and the necessity to “freeze” the situation until the right is established through a fair trial. In cases when an injunction is refused, this emergency element does not find equal legal protection, resulting in potential irreparable harm being caused by the court ruling. The logic that has led the legislator to create said disparity of legal means, aimed at protecting the rights of the parties in front of the Albanian courts is unclear and unconstitutional. In order to avoid a further breach of the right to a fair trial it is necessary to amend article 209 of the Civil Procedure Code to include the right of appeal against a court ruling rejecting the injunction by reformulating it as follows: “A separate appeal can be made against a court ruling granting, refusing, changing or removing an injunction. Said appeal does not impinge the continuation of the trial”. 16 17

Italian Constitutional Court, Decision no. 253 dated 23.06.1994. Analysis of the Albanian justice system, Special Parliamentary Commission for the reform in the justice sector, 2015, page 52.

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PILLAR III HUMAN RIGHTS

The Right to Access to Higher Education in Albania by Av. Holta Ymeri I. ABSTRACT The right to access to higher education is a hot topic being discussed around the world, which involves a series of legal, policy and human rights issues. This paper will deal with the right to access to higher education in Albania, analyzing the new education reform and its impact on access to higher education under the light of the ECHR convention. KEYWORDS: Access to Higher Education; ECHR; Foreseeable; Legitimate Aim, Merit; Preference; Proportionality; Reform Abbreviations DCM DCM 407

Decision of the Council of Ministers Decision of the Council of Ministers, No. 407, dated 1.6.2016 “Establishing the criteria of average grade for the admission of candidates to the study programs of first cycle and integrated programs of second cycle, at the high education institutions for Academic Year 2016-2017”. ECHR European Convention of Human Rights and Fundamental Freedoms ECtHR/Court European Court of Human Rights HEI Higher Education Institution Instruction no. 27 Instruction of the Minister of Education no. 27, dated 19.08.2015 “On the admission and registration procedures to the first and second round of successful candidates, for the full-time, first cycle of studies, professional study programs, and integrated study programs of the second cycle of studies, in the high education public institutions, for the academic year 2015-2016”. Law 9741 Law no. 9741, dated 21.5.2007 “On higher education in Albania” Ministry of Education The Ministry in charge of education, despite the specific name used under each period. New HE Law Law No. 80/2015 “On Higher Education and Scientific Research in the Higher Education Institutions in the Republic of Albania” SAE State Agency of Exams II. INTRODUCTION During 2015, Albania adopted the reform on the higher education system by approving the New HE Law which repealed and replaced the old law, introducing some important changes to the education system as a whole. As it was held in the explanatory Report18 of the draft-law on higher education, the reform was necessary in order to increase the quality of the education system and at the same time, provide access to

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Report on the Draft-Law “On Higher Education and Scientific Research in the Higher Education Institutions in the Republic of Albania”, Council of Ministers. https://www.parlament.al/wp-content/uploads/2015/11/relacion_arsimi_i_larte_21943_1.pdf

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higher education to a maximum number of students19. In terms of access to higher education, the transitional provisions of the New HE Law20, established that it would start producing its effects only on students applying for higher education during academic year 2016 – 2017. These effects became noticeable shortly after the results of the first round of applications to higher education for academic year 2016 – 2017 were revealed to the students. Several protests of high school graduates followed21, under the claim that the new admission procedures, adopted as a result of the New HE Law, impaired their right to access to higher education despite their merits (high average grades). Believing that higher education is a milestone toward a developed society, this article intends to address and analyze this topic which has been very much debated in the Albanian arena. The aim of the analysis will be that of providing an objective overview of the impact that higher education reform produced on access to higher education in Albania. It will be first inquire whether the reform achieved its aim of providing access to a maximum number of students. Secondly, a broader angle of the issue, going beyond the local debate, and rather focused on the right to higher education seen as a human right will be introduced. In order to answer the above questions it is necessary to analyze the new reform in a twofold way: how it impacted access to higher education and whether, when analyzed under the light of Article 2 Protocol no. 1 of the ECHR22 and through the criteria identified by the ECtHR in its related judgments, it complies with ECHR standards on access to higher education. III. ACCESS TO HIGHER EDUCATION FOR ACADEMIC YEAR 2015-2016 During academic year 2015-2016, access to higher education in Albania was regulated by the old admission system, through Law 9741 and its sub-legal acts. Law 9741 established that access to higher education for the first cycle of studies (bachelor) was limited to students fulfilling the criteria established in its Article 33 and specifically: (i) students having successfully concluded the maturity exams 23; (ii) students complying with the special admission criteria established by each HEI for specific courses24. The special admission criteria were to be assessed and evaluated by the Ministry of Education, having obtained the consultancy of the Conference of Chancellors and the Council of High Education and Science, and afterwards approved by Instruction of the Minister of Education25. This process resulted in the adoption of a complicated mathematic formula26 which was used to evaluate merits of each students based on several indicators (average grades of high school years; grade for specific compulsory and selected subjects; the coefficient of the high school profile; the coefficient of chosen subjects)27.The points collected by each student, decisive for admissions to selected HEI courses, were calculated through the formula. There is no legal act found during this research, which explains the ratio of the formula and why that specific formula was the best option for the assessment of the students’ merits. 19

Report on the Draft-Law “On Higher Education and Scientific Research in the Higher Education Institutions in the Republic of Albania”, Council of Ministers, pg. 1. 20 Article 135, New HE Law. 21 http://www.citynews.al/2016/10/maturantet-jofitues-protesta-para-kryeministrise/1 http://shqiptarja.com/m/aktualitet/maturant-t-para-kuvendit-zgjidhje-ose-protesta-t--tjera-373778.html 22 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Paris, 20.III.1952, Article 2, The Right to Education: “No person shall be denied the right to education…” http://www.echr.coe.int/Documents/Convention_ENG.pdf 23 Article 33 (1), Law no. 9741. 24 Article 33 (5), Law no. 9741. 25 Article 33 (5), Law no. 9741. 26 Guidelines for the Transparency Book, State Matura 2015, pg 2. Example of the formula, for courses which did not provide for entrance exams/tests: {[ 26 x M + 20 x (D1 + D2) ] x K + 17 x (Z1 x F1 + Z2 x F2 }) x 5 http://www.akp.gov.al/images/matura2015/libri_transparence/udhezues_perdorimi.pdf 27 The same formula was calid for academic year 2014-2015 http://www.akp.gov.al/images/matura2014/libri_transparence/udhezues_perdorimi.pdf

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In addition, the Council of Ministers was entitled to establish through a DCM and following the proposal of the Ministry of Education, the total number of access quotas for each HEI. When making the proposal on quotas, the Ministry of Education consulted with respective HEIs and obtain recommendations from the Council of High Education and Science regarding the availability of quotas for each HEI28. The admission procedures to higher education, for academic year 2015-2016, were guided by Minister’s of Education Instruction, no. 27, which provided admissions principles, rules and procedures. The main principle was that successful candidates would be evaluated pursuant to merit and preference. Merit was measured based on the above mentioned mathematic formulae. Preference was expressed through 10 course choices of the candidate, from the highest choice to the lowest one29. Based upon the admission criteria and the established formula, the National Exams Agency, compiled the preliminary list of admissible candidates, pursuant to merits and preference, and published it. Following publication of the preliminary list of admissible candidates, the registration procedure, consisting of two rounds, was opened. During the first round of registration, students admitted in the preliminary list had to register on the online website and make two choices: (i) finally register in the awarded preference/course, by terminating further participation in the competition; (ii) continue the competition in order to be awarded a higher preference/course on the list of preferences, which was not awarded to the candidate during the first round30. The second round of registrations started on late September, and was valid only for the courses and quotas remaining available after the first round, published by the Ministry of Education31. The following categories of students were entitled to participate in the second round of registrations: (i) students who didn’t participate in the first round for several specified reasons32; (ii) students who participated in the first round of registrations, but were not awarded any of the selected courses 33; (iii) students who participated in the first round, were awarded one and/or some of the selected courses, but intended to continue the competition in order to be awarded a course which was higher on their list of preference34. It is important to point out that the evaluation of the second round was also based on the principles of merit and preference and that students who were competing for a higher preference, had the right to still register in the course awarded during the first round, should the higher preference was not awarded to them during the second round. It can be concluded that access to higher education during the academic year 2015-2016 was limited by the following conditions: i. A sufficient number of access quotas for each HEI; ii. Sufficient points awarded based on the mathematic formula and/or entrance exams/tests, when applicable. IV. ACCESS TO HIGHER EDUCATION FOR ACADEMIC YEAR 2016-2017 Access to higher education for academic year 2016-2017 was governed by the New HE Law and its sublegal acts. As it was explained above, the New HE Law intended to reform the higher education system, thus it introduced some important changes. It extended the principle of autonomy of HEIs 35, also 28

Article 33 (2), Law no. 9741. Article 2 (a) and (b) of Instruction no. 27. 30 Article 8 (a) and (b) of Instruction no. 27. 31 Article 15 of Instruction no. 27. 32 Article 17.1 (a), (b) and (c) of Instruction no. 27. 33 Article 17.2 of Instruction no. 27. 34 Article 17.2 of Instruction no. 27. 35 Article 3, New HE Law. 29

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enunciated by Law 9741, in a twofold way: (i) by establishing that admission criteria to HEIs were their sole responsibility, removing the obligation of the approval through ministerial instruction36 contained in the previous system; (ii) by establishing that the number of available quotas, were to be determined by HEIs pursuant to their capacity standards, as certified by the Ministry of Education, removing the obligation of approval of quotas through DCM37, contained in the previous system. Pursuant to the provisions of the New HE Law, access to higher education for the first cycle of studies (bachelor) was limited to students fulfilling the criteria established in its Article 74 and specifically: (i) students having successfully concluded high school38; (ii) students complying with the criteria of a generalized average grade, established each year through a DCM39; (iii) students complying with the special admission criteria established by each HEI for specific courses (merit/entrance exams/tests)40. Following the requirement of the generalized average grade, introduced by the New HE Law, DCM 407 was issued. It established that access to higher education, for academic year 2016-2017, was limited to students with an average grade of 641. The calculation methodology of the generalized average grade, established by the DCM consisted in the simple arithmetic average of: (i) the final grades of the subjects for every high school year42; and (ii) the final grades of the Maturity Exams43. It is worth mentioning that the requirement of an average grade of 6 is not applicable to students intending to participate in two-year professional study programs44. The admission procedures were then performed pursuant to Instruction No. 13 of the Ministry of Education, which was amended 5 times within a four month period45. Instruction no. 13 introduced important changes to the application and registration procedure. Similarly to the old system, the application procedure was performed on-line and divided in two rounds. Differently from the old system, only students who possessed the generalized average grade of 6 could register on-line and proceed with the application46 (apart from two-year professional studies programs). The State Agency of Exams managed and cooperated with HEIs during the application phase. During the first round, each student whose average grade was 6 or higher, could apply by selecting up to 10 courses47 offered by HEIs. The winning candidates of the first round were obliged to register in the awarded course through on-line registration and by providing documents to respective HEIs’ secretariats48. As it was mentioned above, the criteria and formula were not reconciled with the Ministry of Education. The criteria and formula used by HEIs for academic year 2016-2017 varied from course to course. For instance the Law Faculty of Tirana University established that admission criteria would be as follows: (i) 50% weight would be given to the average grade of all high school years including Maturity Exams; (ii) 36

Article 74 (2), New HE Law. Article 69 (3), New HE Law. 38 Article 74 (1), New HE Law. 39 Article 74 (1), New HE Law. 40 Article 74 (2), New HE Law. 41 Article 2, DCM 407. 42 Article 2 (a), DCM 407. 43 Article 2 (b), DCM 407. 44 Article 3, DCM 407. 45 Instruction no. 13, which was issued on 22.07.2016, was amended at least once every month, and three times only during October. Specifically amendments were made on: 01.08.2016; 06.09.2016; 07.10.2016; 12.10.2016; 27.10.2016. 46 Paragraph II, Article 8, Instruction no.13. 47 Paragraph II, Article 7, Instruction no.13. 48 Paragraph II, Article 18, Instruction no. 13. 37

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50% weight would be given to the average grades of the group of subjects, considered important for the Law Faculty, of all high school years. The groups of subjects relevant to the Law Faculty were: History, Citizenship, Literature, Economy and one optional subject among Sociology, Psychology and Philosophy. Each of these subjects had an own specific weight of 10%. After termination of the first round, the second round of registration followed. The category of students entitled to participate in the second round were: (i) students who were not able to apply during the first round49; (ii) students who applied during the first round but did not win50; (iii) students who won during the first round but could not register51. Differently from the old system, winning candidate who intended to continue competition in the second round in order to be awarded a higher preference, were not allowed to do so. As a result, winning the higher preference which was previously possible within the two registration rounds became a one shot opportunity. Another novelty was brought by the fourth amendment of Instruction no. 13, which provided for yet another registration phase, should there be any more free quotas. More specifically it was provided that, the registration process would continue with phases lasting 48 hours, if there were any free quotas left upon termination of the second round, up to completion of available quotas but no later than October 27, 201652. It can be concluded that access to education during the academic year 2016-2017, governed by the newly introduced reform, was limited by the following conditions: i. A sufficient number of access quotas for each HEI; ii. Generalized average grade of 6; iii. Sufficient points awarded based on the evaluation criteria and formula and/or entrance exams/tests, established by HEIs. V. THE RIGHT TO EDUCATION The importance of higher education is clearly expressed in the Preamble to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region. It states that “the right to education is a human right, and higher education, which is instrumental in the pursuit and advancement of knowledge, constitutes an exceptionally rich cultural and scientific asset for both individuals and society”53. In fact, the right to education has been considered as a human right and introduced in international human rights documents since early on. In 1948 the importance of the right to education was understood and expressed through these simple enunciations contained in the Universal Declaration of Human Rights: “Everyone has the right to education…higher education shall be equally accessible to all on the basis of merit”54. In 1950, the right to education was for the first time introduced into e legally binding international convention, the ECHR which established in its Article 2, Protocol no. 1 that “no person shall be denied the right to education”. In 1976, the right to education was included in yet another important 49

Paragraph III, Article 3, Instruction no. 13. Paragraph III, Article 3, Instruction no. 13. 51 Paragraph III, Article 3, Instruction no. 13 52 Paragraph III, Article 13, Instruction no. 13, changed by 4th amendment. 50

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Paragraph 2 of the Preamble to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region, 1997, pg 1. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168007f2c7 54 Article 26. The Universal Declaration of Human Rights. http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

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international convention, the International Covenant on Economic, Social and Cultural Rights which recognized “the right of everyone to education”55 and broadened the obligations of states regarding the right to access higher education by establishing that “higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education”56. But how does this right become effective into a complicated reality of means, opportunities and policy decisions? Naturally, there is no uniform answer to this question, since different states are currently living under different economic and political conditions, which necessarily impact decision makers when adopting their education policies. Nevertheless there are by now, some important criteria identified under the frameworks of the abovementioned international conventions, where states participate. These criteria are sometimes soft-laws serving as guidelines and other times, legally binding norms, obliging states to direct their policies toward guaranteeing and/or broadening the right to education and to remove policies which have the effect of impairing the very spirit of the right to education. This section will deal with the legally binding norms regarding the right to education, which are produced under the framework of one of the most active human rights Conventions, the ECHR, operating in the European area, to which Albania is a member state. Through its human rights court, the ECtHR, an important line of principles related to the right to access to higher education has been identified and constitute the framework within which every member state of ECHR should adopt its education policies related to this matter. When enunciating that “no person shall be denied the right to education” the ECHR has recognized that the right to education is a human right par excellence. The extension of this maxim has been better clarified throughout the years by ECtHR judgments which have been fundamental to the development of the human rights enshrined in the Convention. In fact, as it was held in its Ireland v. the United Kingdom judgment “The Court’s judgments serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties”57. Several important judgments of the ECtHR have elaborated by fare an important corpus of principles which are applicable to the right to education. First of all it is important to mention that States have a twofold obligation regarding the right to education: (i) to refrain from interfering to the right of education of citizens58; (ii) to ensure respect for the right to education59. Secondly, it is held in general that restrictive interpretation of such a fundamental right would not be consistent with its aims or purpose60. Restrictions to the right to education may exist and are accepted by the ECtHR, under the condition that such restrictions do not “curtail the right in question to such an extent as to impair its very essence and

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Article 13 (1) of the International Covenant on Economic, Social and Cultural Rights. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx 56 Article 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights. 57 Ireland v. the United Kingdom, Application no. 5310/71, Judgment of 18 January 1978, § 154. http://www.uio.no/studier/emner/jus/jus/JUS5710/h12/undervisningsmateriale/ireland-v-uk-court.pdf 58 “Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, Right to Education”, Council of Europe/European Court of Human Rights, 2015, par. 4, pg 5. 59 “Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, Right to Education”, Council of Europe/European Court of Human Rights, 2015, par. 4, pg 5. 60 “Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, Right to Education”, Council of Europe/European Court of Human Rights, 2015, par. 4, pg 6.

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deprive it of its effectiveness”61. Furthermore, there are three compulsory conditions that restrictions should comply with in order for them to be considered as not impairing the right to access to higher education, and specifically that restrictions are foreseeable, pursue a legitimate aim and are proportional to the legitimate aim pursued62. Lastly the right to education naturally includes the right to access to education and it is extended not only to elementary and secondary education but as it was held in its pivotal Leyla Şahin v. Turkey Judgment63, to higher education64 as well. As a result, when analyzing whether restrictions/admission criteriaon access to higher education are conform to the right to education as interpreted by the ECtHR, the Court will perform the following test: i. Was the restriction foreseeable? ii. Does the restriction pursue a legitimate aim? iii. Is the restriction proportionate to the legitimate aim? It is worth pointing out what do the principles of foresee-ability and proportionality mean pursuant ECtHR. For a law or regulation to be foreseeable under the ECHR, that law or regulation should be sufficiently precise and accessible in order to enable citizens to foresee its consequences. While proportionality of a measure with the pursued aims, means that there was no other available and less restrictive measure which could be used to achieve the same aim. VI. ANALYSIS OF THE ALBANIAN EDUCATION REFORM The education reform brought about several changes to the higher education system in Albania which produced an impact on access to higher education. The main differences between the old and the new system are the following: i. Access quotas to higher education are not anymore determined by the central government through a DCM, but by HEIs pursuant to their capacities as certified by the Ministry of Education; ii. Admission criteria to higher education are not anymore determined by Instruction of the Ministry of Education, but by HEIs themselves pursuant to their specific academic needs; iii. The registration process which provided opportunities of being awarded the higher preference on the students list, in both the first and the second round, has now become a one shot opportunity to obtain the highest preference, during only the first round; iv. The requirement of a generalized average grade of 6 has been introduced as a restriction to participate to admission procedures. The abovementioned novelties introduced through the education reform will be analyzed in this section in order to answer the main questions of this paper and specifically, whether access has been provided to a maximum number of students due to the reform and whether the New HE Law and access procedures are compliant with the ECHR test on the right to education. 1. Is access provided to a maximum number of students due to the New HE Law? Comparing the changes introduced by the New HE Law it can be easily identified that the reform has further restricted access to higher education in Albania in a twofold way: (i) by introducing the generalized average grade of 6; (ii) by removing the opportunity to continue competition in order to 61

“Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, Right to Education”, Council of Europe/European Court of Human Rights, 2015, par. 4, pg 7. 62 “Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, Right to Education”, Council of Europe/European Court of Human Rights, 2015, par. 4, pg 7. 63 Leyla Şahin v. Turkey, Application no. 44774/98, Judgment of 10 November 2005, § 141. 64 “Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, Right to Education”, Council of Europe/European Court of Human Rights, 2015, par. 4, pg 6.

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obtain the highest preference on the list, during the second round. As a result, it is not possible to claim that the reform has reached its aim of providing access to a maximum number of students. Instead of broadening access, it has potentially narrowed it by introducing new restrictions on access to higher education in Albania. 2. Are the New HE Law and access procedures compliant with the ECHR test on the right to education? In order to perform the ECHR test on the education reform it is necessary to enquire whether the restrictions introduced by the reform were foreseeable; pursued a legitimate aim; and were proportionate to that aim. i. Foresee-ability It should be first pointed out that the old admission system to higher education was highly elaborated. As it was explained, a complicated mathematic formula was the basis for the calculation of students’ points. This formula included a variety of elements, such as average grades of high school years, grades for specific compulsory and selected subjects, the coefficient of the high school profile, the coefficient of chosen subjects. All these elements were inserted and calculated within the mathematic formula and provided the student with his/her points. Naturally, high school students intending to choose a study path or another, directed their study programs to specific subjects or focused more on some of them, at least during the two years preceding the reform. In 2016 the formula was repealed by the New HE Law which provided HEIs with sufficient autonomy to decide admission criteria. At that point, students of academic year 2016-2017 did not have any guide as to which admission criteria HEIs would apply, not until the last year of high school was terminated. Secondly, the new requirement of the generalized average grade of 6 was introduced and applied for students of academic year 2016-2017, who had started high school when this requirement was not present. The methodology of calculation of this average grade meant that average grades of each high school year should be 6 for a student to be permitted to even start admission procedures. This meant that students of high school year 2016, found themselves under the conditions that subjects on which they had not been extensively focused previously, due to the fact they did not intend to follow that study path, could lower their average grade, even risking their exclusion for competition to higher education. It is true that average grades were also included in the calculation of the mathematic formula of the previous system, but in that case, average grades were only one element of a variety of other indicators weighted within the formula. Under the New HE Law, the average grade of 6 became the first fundamental element of access to higher education. Lastly the registration procedure regulated by Instruction no. 13, changed five times during the registration process, three times only in October 2016, which was the final phase of registration. These changes impacted the opportunity of students to compete for their highest preference during the second round and introduced the third registration round consisting of registration opportunities lasting 48 hours. As it was mentioned above, foresee-ability requires two conditions: that there is access, meaning opportunity of knowledge of the norm and that the norm is sufficiently precise to be understandable and predictable of the results it will produce on the interested category. The new admission criteria established by HEIs around July 2016, were neither foreseeable nor accessible to students until their last high school year was completed. At that point it was too late for students to act accordingly and make any relevant choices which could increase their opportunity of access. The new criteria of the generalized average grade of 6 was accessible to students only shortly before the high school year ended, specifically in June 2016, this accessibility in that case had no real impact, since students could not impact in any way the effects that the norm was about to produce on them. Similarly Instruction no.13, through its continuous 23

amendments, especially the three amendments during the final registration phase (October 7, 12 and 27), severely impacted accessibility and foresee-ability of students. ii. Legitimate aim The explanatory report of the New HE Law indicated some of the aims of the reform. Relevant to this paper are the aim of increasing the quality of higher education, providing access to the maximum number of students and guaranteeing autonomy to universities65. All of these aims can easily be considered as legitimate aims of the state, pursued for the public interest. iii. Proportionality It is necessary to access whether the adopted measures were proportionate to the legitimate aim pursued, meaning assess whether there was the availability of adopting less restrictive measures to achieve the same aim. With regards to the legitimate aim of increasing quality of higher education, it may be held that such an aim was followed by introducing the generalized average grade of 6, which excludes low merits students from higher education institutions. While it is true that quality of a higher education institutions is impacted by the quality of its students, it also true that this is neither the main nor the most important element of quality for a HEI. Nevertheless, without deepening debate on how higher education quality is achieved, what interests us here is to evaluate whether the measure pursued the legitimate aim in a proportionate manner. Even before introducing the general average grade of 6, the mathematic formula contained elements of average grades for specific subjects important to specific HEIs. As a result, HEIs already had the opportunity to absorb only those students who had the necessary minimum merits to access that course. Similarly, with the new admission criteria introduced by HEIs, average grades of specific courses had a particular weight on calculating admission points of students. As a result, doubling the requirement of average grades, especially through a generalized and indistinctive average grade of 6, excessively restricting access to higher education, it is not a proportionate measure because it is not necessary to pursue the legitimate aim already pursued and achieved by HEIs through their own criteria. As regards the legitimate aim of increasing autonomy of HEIs, it may be held that this was pursued by establishing that admission criteria would be decided by HEIs. This positive development nevertheless resulted in amendments to the system which could retroactively impact students’ points. While the measure in itself was proportionate to the aim, better coordination was needed among HEIs and the Ministry of Education in order to ensure that the new criteria was early disclosed to the students and did not harm any category of students due to miss calculations. In addition to unforesee-ability and un-proportionality of the abovementioned norms of the education reform, some elements of discrimination as identified by the ECtHR in its Altınay v. Turkey judgment66, regarding students of Academic year 2016-2017, may be spotted. In fact as it was held by the Court in Altınay v. Turkey judgment “the fact of changing the rules governing access to university unforeseeably and without transitional corrective measures” may cause differential treatment and curtail the right to access to education, constituting a violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1”67. As it was held above, students of academic year 2016-2017, differently from those of the previous years, found their selves under a new admission system which retroactively impacted their study choices of high school years and gathered points, and under the impossibility to make any changes 65

Report on the Draft-Law “On Higher Education and Scientific Research in the Higher Education Institutions in the Republic of Albania”, Council of Ministers, pg.2. 66 Altınay v. Turkey, Application no. 37222/04, Judgment of 9 July 2013. 67 Altınay v. Turkey, Application no. 37222/04, Judgment of 9 July 2013, § 60.

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to their situation. In addition, the generalized average grade of 6, further restricted their right to access and no transitional or corrective measures where designed to prevent such situation. V. CONCLUSIONS AND RECOMENDATIONS Despite the positive intents of increasing quality of education and autonomy of HEIs, the new education reform brought about restrictions to access to higher education for academic year 2016-2017 and legal uncertainty for students as to criteria and applications procedures which as assessed above are contrary to the ECHR test. Consequently the following interventions are recommended:  Repeal the generalized average grade of 6 which has the potential to restrict access to education and doubles the requirement of average grade introduced in the access criteria autonomously established by HEIs. In addition to the technical legal assessment of lack of proportionality of this measure, there is another reason to repeal it: that of equal opportunities. Even though it may be held that this average grade is not that high as to excessively restrict access, nevertheless it has the potential to impact vulnerable categories of students of low income families. These students, may have to work in addition of studying, or may face other important constraints impacting their study results due to their economic situation. In the absence of specific studies in this regard, and in the current economic situation of Albania, these elements should be seriously considered when adopting higher education policies, which have a real impact on the future of students, and a real potential to ameliorate or adversely change their future.  Conduct a thorough enquiry in order to identify the number of students who were adversely impacted during the registration procedures, due to applicability of the new system , identify miss calculations of points and adopt specific corrective measures in this regards.  Identify the flaws of the system in order for the situation not to be represented for students of academic year 2017-2018.  Determine and settle well in advance admission criteria of HEIs (as is currently happening by some HEIs issuing criteria for 2017-2018) and establish a registration system which does not change several times when the process is on-going, and leave the latter to be administered by each HEI, without the intervention of state authorities, in the name of HEIs autonomy.

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PILLAR IV EUROPEAN UNION AND INTEGRATION Suspension Mechanism as a Last Resort to Protect the Schengen Area By Gledis Gjipali and Nirvana Deliu I. ABSTRACT This article focuses on the visa policy of the Schengen area and more specifically on the EC Regulation 539/2001 listing the third countries whose nationals must be in possession of visas and those whose nationals are exempt from this requirement while crossing the external borders. This Regulation has faced many amendments, whether adding and removing countries from the lists or the amendment of mechanisms and other tools. A peculiar feature of this policy is that even though a country can be exempted from visa requirement after achieving and fulfilling the required criteria, there are some scenarios or emergency cases that can force the reintroduction of the visa requirement for the concerned country, such as the increase of unfounded asylum applications or security concerns. The article will be focused on the recent changes that the mechanism used in such cases, known as Visa suspension mechanism, has undergone recently.

KEY WORDS: Suspension Mechanism, Schengen Policy, Visa Liberalisation Process, Western Balkan countries

Abbreviations B&H Council Regulation No. 539/2001

EC/Commission EU EP FYROM TEEC MEP WB

Bosnia and Herzegovina Council Regulation No. 539/2001 on “listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement”. European Commission European Union European Parliament the Former Yugoslav Republic of Macedonia Treaty Establishing the European Community Member of the European Parliament Western Balkans

I. INTRODUCTION TO THE SCHENGEN AREA AND SCHENGEN POLICY One of the fundamental rights guaranteed by the European Union, is the Free Movement of persons, giving the right to all EU citizens to travel, work, study or live in any other EU country with no need for special formalities or requirements. The Schengen Area fosters the free movement of citizens for tourism purposes, business purposes or family and study related matters. According to the official webpage of the EU, it is estimated that more than 400 million EU citizens are guaranteed with this opportunity. There are 26

almost 1.7 million people in Europe who work in a Schengen country different from that in which they live, and every day around 3.5 million people cross internal Schengen-area borders. In addition, there are circa 24 million business trips and 57 million cross-border goods movements within the Schengen area each year. It is estimated as well that every year, Europeans make more than 1.25 billion journeys within this area. A number of studies have demonstrated that economic benefits of Schengen states have been increased over time, while intra-European trade has reached more than €5 trillion in 2014.[1] The first feature of Schengen cooperation is that there is no border check in internal borders while citizens are crossing borders from one Schengen country to another. Yet, it is important to highlight that national authorities are allowed to carry out police checks which differ from border checks and are based on general police information. Abolishing the Union’s internal borders has tightened the controls on external ones, because the external borders of the countries are as well the external borders of the EU. To ensure and to secure this area a set of rules are set up covering several issues: i. ii. iii. iv. v.

harmonisation of the conditions of entry and rules on visas for short stays; enhancing police cooperation; enhancing judicial cooperation; establishing and implementing the Schengen Information System; a set of documents needed for travelling in Europe;

The free movement has always been one of the fundamental pillars of the Union. In 1985 the signing of the Agreement on the Gradual Abolition of Checks at Common Borders was concluded between five European countries: France, Germany, Belgium, Luxembourg and the Netherlands, in a small village in Luxembourg called Schengen. This meant that signatory states had abolished all internal borders and had created a common area. Five years later, in 1990 it was signed the Convention of Implementing the Agreement, followed by the implementation of Schengen Agreements in 1995, firstly only in seven EU Member states. Despite the fact it started as an intergovernmental initiative, nowadays the Schengen Agreements have been incorporated within the EU Acquis. Yet, it should be made clear that not all EU countries are part of the Schengen area, as well as there are some non-EU states that have joined it. Hence, there are 26 Schengen countries, including 22 EU countries except Bulgaria, Croatia, Cyprus, Ireland, Romania and the United Kingdom. Other states like Iceland, Norway, Switzerland and Liechtenstein, have joined this area, even though as mentioned before, they are not part of the European Union.[2] Being an EU member state, does not make a country automatically part of the Schengen Area, because the membership in this area it is not just a political decision, but first of all it is linked with completing a list of pre-conditions, by covering all the capacity and expertise in such matters: i. responsibility to control the external borders on behalf of the other Schengen States; ii. a smooth and efficient cooperation with law enforcement agencies in other Schengen States; iii. implementing the Schengen acquis, all the rules consisting of border controls, issuing visas, police cooperation and protection of personal data; iv. connect with and use the Schengen Information System. II. VISA POLICY IN SCHENGEN AREA In March 2001, following the Schengen acquis and the Schengen Protocol of the European Union and based on Article 62, point 2 (b) of the TEEC, it was adopted the Council Regulation No. 539/2001 containing the list of third country nationals needing Visas and third country nationals exempted from Visas. . This Regulation replacing the former Council Regulation No 574/1999 is applied by all Member States including: Iceland, Liechtenstein, Norway and Switzerland. On the other hand, neither the United 27

Kingdom nor Ireland is subject of this Regulation. The determination of the third countries whose nationals are subject to the visa requirement (the so called negative list) and those who are exempted from it (the so called positive list), is conducted through a case-by-case assessment and evaluation based on a wide range of requirements linked directly to: illegal immigration, public policy and security, and EU’s external relations with third countries.[3] In legal terms, a third country enters a Visa Free Dialogue with the EU, to be removed from the negative list and to be included in the positive list. Bulgaria and Romania were the first two countries removed from the “negative visa list” in April 2001 and January 2002, respectively. Inclusion in the negative list appeared to increase the illegal migration from these countries within the Schengen area, mainly for job purposes. This experience was evaluated as problematic, but EU and Member States did not provide any instrument to tackle this issue.[4] All the nationals of the countries which are listed in the Annex 1 of the EC Regulation 539/2001, are required to apply for short stay visa if they intend to enter the Schengen area for a period less than 90 days, as stated at Article 1:“Nationals of third countries on the list in Annex I shall be required to be in possession of a visa when crossing the external borders of the Member States, while the nationals of third countries on the list in Annex II shall be exempt from the requirement set out in paragraph 1, for stays of no more than three months overall.” What is relevant to mention is that the composition of the negative and positive lists should be reviewed when appropriate, implying that the composition on both lists can be changed and updated time after time, regarding the visa liberalization process with third countries. Up to now the Regulation has been amended 13 times by other Regulations, including Regulation (EU) No 1091/2010 which adjusted the Annex 2 (Positive List), adding Albania and Bosnia & Herzegovina, as countries whose nationals will be exempted from visa requirements. The last amendment is made by the Regulation (EU) No 509/2014 of the European Parliament and of the Council of 15 May 2014. [5] III. VISA LIBERALISATION PROCESS Regarding the Western Balkans countries* the first concrete step towards the establishment of a visa free travel regime, was the conclusion of Visa Facilitation Agreements (including readmission agreements) in 2007. This step paved the road to start the structured dialogues on visa liberalization, including detailed roadmaps with clear benchmarks required to be accomplished by the five countries as the only way to progress on visa liberalization process.[6] The roadmaps prepared by the Commission consisted of 4 challenging and essential topics such as: document security (block 1), illegal immigration and readmission (block 2), public order and security (block 3), as well as external relations and fundamental rights (block 4), as stated at point (5) of EC Regulation No. 539/2001. Following the introduction of the Roadmap for the WB countries, the second phase was the submission by national governments of readiness reports, to help the EC to better understand the situation of each country while comparing it with the standards stated in the Roadmap. Based on these reports, the EC drafted the first Assessment Report which was discussed on 24 November 2008 in the EU Council on WB meeting, so called COWEB. During this meeting FYROM was considered as the frontrunner, followed by Montenegro and Serbia. Regarding Albania and B&H, it was evaluated that they need to put more efforts to undertake the essential reforms.[7] During 2009 the next phase started, incorporating organized field assessment missions, consisting of experts of the EC and EU Member States, to verify all the information provided by the governments of the WB countries while submitting the readiness reports. Based on field verifications the EC submitted the second Assessment Report, which served as a basis for EC Proposal of 15 July 2009. Almost 5 months later, the Council decided on 30 November 2009 to lift the visa obligation on citizens of the FYROM, Montenegro and Serbia starting from 19 December 2009. Regarding Albania and Bosnia & Herzegovina, despite their progress and efforts, the Council decided to not abolish the visa regime for 28

these countries. Even though the EU has always tried to hide the political dimension of this process, yet the Visa Liberalization process of WB countries had a political impact in internal and external relations and developments. Granting the visa waiver to only three countries, by not including B&H and Albania in December 2009, increased the criticism against the EU and showed the political dimension of this process alongside the technical and procedural one. Since ethnic Serbs can hold two passports in Bosnia and Herzegovina, the preferential treatment of Serbia was seen to put the already fragile stability of Bosnia further at risk. The EU was presented as being “anti-Muslim” given that Albania and B&H have bigger Muslim populations.[8] In the meantime, the situation after the visa-free regime with Serbia, FYROM and Montenegro was worsened due to the sudden increase of the number of asylum seekers coming from the three countries. In the first year after visa liberalisation, the asylum applications from Serbian citizens in the EU rose by 76%, and the ones of Macedonian nationals even seven fold, mostly aiming Schengen countries such as Germany and Belgium. This increase of asylum applications was not anticipated in the capitals of EU member states and caused EU politicians to call for new safeguards and emergency measures, which would allow a temporary introduction of visa restrictions in emergency situations.[9] Countries such as Belgium, Luxembourg, Germany, Austria and Netherlands were requiring EU Institutions to foster the process of security mechanisms. Their argumentation was that only by suspending visas the flow of asylum seekers and illegal migrants from Montenegro, Serbia and FYROM can be stopped or at least will be reduced. Given the situation, on one hand the increased number of illegal migrants abusing with the visa-free regime, and on the other hand the criticism regarding liberalisation process, EC found a solution for all the actors concerned: the Member States, the WB countries and the EU institutions. Thus, while the process of assessment continued for two of the WB countries, Albania and B&H in April 2010, when the EC proposed to EP and the Council to transfer Albania and Bosnia & Herzegovina to the positive list[10], it included as well the idea of a post-monitoring mechanism and implementation of a suspension clause. This safeguard clause was proposed as the main condition for the Netherlands and France to accept the inclusion of Albania and B&Hon the visa-free regime, aiming to avoid a repetition of what happened with Macedonia and Serbia. During the meeting of Justice and Home Affairs Council, while debating B&H and Albania’s Visa Liberalization process in November 2010, the EU Commissioner of Home Affairs explained the mechanism that would prevent an abuse regarding visa liberalization process: “With this decision Albania and B&H join, FYROM, Montenegro and Serbia who already joined the visa free regime. The Commission entered a statement to the minutes of the Council meeting on the establishment of a followup mechanism to the visa liberalisation process for the WB countries. This follow-up mechanism concerns the monitoring of the reforms which these countries need to continue to carry out. It also introduces emergency consultation arrangements to react in the best possible conditions to any specific difficulties which might arise with flows of persons from WB countries and states that the Commission may if necessary propose the suspension of visa free travel. The Commission will report back regularly to the Council and the European Parliament.”[11] Later on, in May 2011 the Commission presented its proposal on how to amend Council Regulation No. 539/2001 suggesting as well the creation of a safeguard clause for suspending temporarily the visa waiver. The new safeguard system was introduced for B& H and Albania, but became applicable for Serbia, Montenegro and Macedonia as well, which already had benefited from visa-free travel at that time. The monitoring of these countries should not only ensure that the countries continue to meet their obligations of the visa liberalisation dialogue but also act as an “alert and prevention mechanism” against abuses of the visa-free regime.[12] 29

IV. SUSPENSION MECHANISM The proposed amendments to the Regulation on visa requirements and exemptions in 2011 came to better manage the movement of third country nationals, while establishing a safeguard clause and allowing a temporary suspension of the visa waiver. This amending came at the moment when Visa Liberalisation process with WB countries was completed and many EU Member states were facing a huge number of persons from WB were abusing their right to travel visa free. In order to prevent the ‘abuse’ of the visa free regime the commission announced its aim to enforce the monitoring of post visa liberalization process for the WB countries. This safeguard mechanism would “preserve the integrity of the visa liberalisation processes and build credibility vis-à-vis the public. It would provide a general framework for the future, without being related to specific third countries.”[13] During this period there was a debate between the EP and the EC regarding this mechanism. This clause would have a political consequence and EP wanted to give more flexibility to WB countries and more time to react to the post-visa liberalisation context they were dealing with. Another discussion was linked with the comitology procedure regarding how suspension mechanism would be activated, whether with ‘delegated acts’ or with ‘implementing decisions’, as Commission had proposed. The difference between two proposals was that with delegated acts, the Parliament would have the possibility to block any decision on the reintroduction of visa requirement towards a third country. But this wasn’t accepted. After two years of negotiations, in June 2013 a compromise was reached. The suspension mechanism will be activated through implementing acts meaning that there is no need for a co-decision procedure, and the Parliament will only have to be informed. Yet, many members of EP did not agree with this agreement that would leave the EP out of the decision procedure. One of them was Tanja Fajon, the shadow reporter who showed her concerns regarding this new mechanism which could become a “political tool to be used by European Governments and puts in jeopardy the EU’s neighbourhood policy”.[14] On December 2013, with the European Parliament and European Council’s adoption of Regulation 1289/2013 which amends the former regulation 539/2001, the Suspension Mechanism was first introduced. The suspension mechanism established by the new Regulation is described as follows: “a mechanism for the temporary suspension of the exemption from the visa requirement for a third country listed in Annex II to Regulation (EC) No 539/2001 ("the suspension mechanism") in an emergency situation, where an urgent response is needed in order to resolve the difficulties faced by at least one Member State, and taking account of the overall impact of the emergency situation on the Union as a whole.”[15] This mechanism will play the function of an emergency brake to protect the members States and the Union, in cases where visa-free travel in the EU is assessed as being abused by certain non- EU nationals, whose countries have visa-free travel agreements with the EU. Three years later, it was the EC on May 4, 2016 that decided to present a proposal to amend the Regulation 539/2001, with the main focus of revising the current suspension mechanism. This was brought into spotlight given the situation of current migratory context in the EU and taking into account the proposals of the EC for visa liberalization with countries such as Georgia, Ukraine and Kosovo. According to suspension mechanism if a member state is facing one of the circumstances mentioned in the Regulation related to third countries nationals, causing an emergency situation, the Member State has the right to request the Commission to suspend for a short period of time the visa waiver for the nationals of that country. In the regulation is clearly mentioned that this mechanism, which can be applied to all existing visa liberalisation agreements, should be used only as a last resort: “the exemption from the visa requirement for nationals of a third country…shall be temporarily suspended in emergency situations, as a last resort, in accordance with this Article.”[16]

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The visa requirements may be reintroduced for a non-EU country in one or more of the following cases: i. a substantial increase in the number of nationals of that country, refused entry or irregularly staying in the EU territory, staying in block longer than allowed; ii. a low recognition of asylum applications of around 3 or 4%; iii. a lack of cooperation on readmissions (returns of migrants); iv. a substantial increase in the risk to public policy or internal security of the member states.[17] The agreement between European Parliament and Council and Commission was reached on 7 December 2016 and it is assessed as positive regarding two matters: (i) it will make the suspension mechanism most adequate and flexible in addressing the challenges and (ii) it will open the door to further progress on visa liberalization with other countries. Nowadays the visa liberalisation process for countries such Ukraine or Kosovo, are directly connected to the visa suspension mechanism. This was evidenced recently when the EP approved on February 2nd 2017 the visa free regime for Georgian citizens to enter EU. The legislation needs to be formally approved by the Council and will enter into force at the same date as the revised suspension mechanism, showing once again the relevance this mechanism has for further advancement of the visa liberalisation process with third countries. The process of suspension mechanism allows member states to make their request to the Commission, while the Commission would have as well the power to trigger the mechanism on its own initiative. Another role the Commission has is the conduction of the Annual Reports submitted to two other EU institutions, the EP and the Council, regarding the process of third countries exempted by visa requirements. The period to implement the suspension mechanism will be shorter due to the fact that the reference periods and deadlines will foster the procedure. One fundamental amendment is the reducing of the period of the circumstances leading to suspension from six to two months. Thus, if in a third country one of the abovementioned scenarios happens, for instance a sudden increase of asylum seekers and a low rate of acceptance, may encourage one of the member countries mostly affected by this situation, for example Germany to notify the Commission. On the other hand the request may be conducted by a simple majority of member states, or even Commission itself based on its own report, may request this mechanism. After that the Commission will have one month to decide whether to suspend the visa waiver for a period of nine months for this country. If it agrees, the decision will take effect automatically, meaning that for the nationals of this country the visa regime will be reintroduced. Yet, during the suspension period, the Commission will try, together with the country concerned, to find solutions to the circumstances that led to the suspension.[18] If the circumstances continue the Commission will adopt (at the latest two months within the period of 9 months) a delegated act temporarily suspending the exemption from the visa requirement for a period of 18 months for the nationals of the third country concerned. This decision can be objected by either MEP’s or Member States.[19] To avoid the abuse with this mechanism, it is stressed that to activate the suspension mechanism it will take into account the number of member states affected, the overall impact of the increases on migrant numbers in the European Union and public policy and internal security issues[20]. If problems will persist, then the Commission can propose to move a third country from the European Union’s “positive list” to its “negative list”, implied that its nationals would always have to obtain visas to travel to the European Union. Another important amendment of the Regulation, is that even the delegated act will be used during the first 9 months of the procedure, after that the process to continue or to stop the suspension should be decided by a delegated act, meaning that the European Parliament will be part of the decisionmaking process.

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V. CONCLUSIONS Now that the agreement has been confirmed by the Permanent Representatives Committee, and the regulation has been submitted to the EP for a vote reading possibly during February or March, it is expected to be adopted by the Council and enter into force in the next three months. The flexibility of the new amendment, in suspending the visa free travel, also increases the likelihood to be applied for the WB countries. The threats coming from the “Balkan Route” migration of refugees, even though diminishing, still presents a high rate of asylum applications needs to be addressed with the highest attention. A suspension of visa free travel although temporary affects not only the citizens benefiting form it but also the credibility of the accession process of the WB countries in EU. The developments in this area are also heavily affected more than ever by the internal political dynamics in the Members States which are less friendly towards free movement and increasingly concerned about security. Such dynamics are out of the influence of the WB countries however we need to follow closely the policy and legislative developments in the EU and Member States and reflect accordingly in our policies and legislations. Albeit worries and concerns the extension of visa free policies towards other countries like Georgia, Ukraine and soon Kosovo demonstrates the goodwill and trust of EU institutions and Member States on the free movement of people. The Western Balkan countries should demonstrate the same level of engagement and trust in adapting and reforming their institutions and legislation to create a more secure and free region and at the same time European Union.

[1]European Parliamentary Research Service, The economic impact of suspending Schengen, March 2016, pg. 1-2, See also:http://www.europarl.europa.eu/RegData/etudes/ATAG/2016/579074/EPRS_ATA(2016)579074_EN. pdf [2] Official Webpage of European Commission:https://ec.europa.eu/home-affairs/what-wedo/policies/borders-and-visas/schengen_en [3] Council Regulation (EC) No 539/2001 of 15 March 2001 “listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement”, See also: Official Journal of the European Communities, L 81, 21.3.2001 [4]F.Trauner&E.Manigrassi,When visa-free travel becomes difficult to achieve and easy to lose: the EU Visa Free Dialogues after the EU’s experience with the Western Balkans, European Journal for Migration and Law, 16 (2014), 123-143. [5] Regulation (EU) No 1091/2010 of the European Parliament and of the Council of 24 November 2010, amending Council Regulation (EC) No 539/2001, See also:http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=celex:32010R1091 *All Western Balkan countries except Kosovo [6] Proposal for a Regulation of the European Parliament and of the Council of The European Union amending Regulation (EC) No 539/2001, pg. 3-4, See also: [7]European Movement Albania, Visa Liberalisation Implications of a proposal, 2009, pg. 4-5, see also: [8]F. Trauner& E. Manigrassi,When visa-free travel becomes difficult to achieve and easy to lose: the EU Visa Free Dialogues after the EU’s experience with the Western Balkans, European Journal for Migration and Law, 16 (2014), 123-143 [9] F. Trauner& E. Manigrassi,When visa-free travel becomes difficult to achieve and easy to lose: the EU Visa Free Dialogues after the EU’s experience with the Western Balkans, European Journal for Migration and Law, 16 (2014), 123-143 [10] European Movement Albania, Visa Liberalization Implications of a proposal, 2009, pg. 4-5, see also:

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[11]Council of the European Union, Visa liberalisation for Albania and Bosnia and Herzegovina 2010 15957/10 PRESSE 294, November 2010 [12]European Commission, Commission staff working paper on the post-visa liberalisation monitoring for the Western Balkan countries in accordance with the Commission Statement of 8 November 2010 SEC(2011) 695 final, May 2011 [13] European Commission, MEMO/11/328, 24 May 2011, See also: [14] Interview Euractiv, :https://www.euractiv.com/section/justice-home-affairs/news/legal-wranglinglooms-over-eu-plan-to-suspend-visa-free-travel/ [15] Regulation 1289/2013European Parliament and European Council:http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:347:0074:0080:EN:PDF [16] Ibid [17] European Parliament,http://www.europarl.europa.eu/news/en/news-room/20161128IPR53515/visasuspension-mechanism-parliament-and-council-negotiators-strike-a-deal [18]http://www.eppgroup.eu/press-release/Visa-free-travel%3A-new-suspension-mechanism-protects-theEU [19] European External Service,https://eeas.europa.eu/headquarters/headquartershomepage_en/16746/Visa%20suspension%20mechanism:%20Council%20confirms%20agreement%20w ith%20Parliament [20]http://europa.eu/rapid/press-release_MEMO-16-2506_en.htm

Bibliography: ·Council of the European Union, November 2010, Visa liberalisation for Albania and Bosnia and Herzegovina 2010 15957/10 PRESSE 294 ·Council Regulation (EC) No 539/2001 of 15 March 2001, “listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement”, see also: Official Journal of the European Communities, L 81, 21.3.2001 ·Euractiv, 2013, Legal wrangling looms over EU plan to suspend visa-free travel, see also:https://goo.gl/eVckGS ·European Commission, May 2011, Commission staff working paper on the post-visa liberalisation monitoring for the Western Balkan countries in accordance with the Commission Statement of 8 November 2010 - SEC(2011) 695 final, ·European Commission, May 2011, MEMO/11/328, 24, See also:https://goo.gl/AFmXZ1 ·European Movement Albania, 2009, Visa Liberalization Implications of a proposal, see also:https://goo.gl/9TrgYA ·European Parliament and European Council, December 2013, Regulation 1289/2013 amending Council Regulation (EC) No 539/2001, see also:https://goo.gl/A2li3x ·European Parliamentary Research Service, March 2016, The economic impact of suspending Schengen, see also:https://goo.gl/KubIQn ·European People Party, Visa-free travel: new suspension mechanism protects the EU, see also:https://goo.gl/q6DKRH ·F.Trauner&E.Manigrassi, 2014, When visa-free travel becomes difficult to achieve and easy to lose: the EU Visa Free Dialogues after the EU’s experience with the Western Balkans, European Journal for Migration and Law, 16 (2014), 123-143. ·Official Webpage of European Commission, July 2016, EU visa reciprocity mechanism - Questions and Answers, see also: https://goo.gl/ysA6xU ·Official Webpage of European Commission: https://goo.gl/Q3npR3 ·Official Webpage of European External Service:https://goo.gl/dQL6VH ·Official Webpage of European Parliament:https://goo.gl/zPdQgA 33

·Proposal for a Regulation of the European Parliament and of the Council of The European Union amending Regulation (EC) No 539/2001, see also:https://goo.gl/7b9CoE ·Regulation (EU) No 1091/2010 of the European Parliament and of the Council of 24 November 2010, amending Council Regulation (EC) No 539/2001, see also: Official Journal of the European Union, L 347/74,20.12.2013

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