Montaldo, S., Kelch, V., Mailand, C., & Poncini, S.” The past and the future of readmissions in the EU: From the AFFUM, ARIB and ADDE case law to the reform of the Schengen Borders Code” Freedom, Security & Justice: European Legal Studies 3 (2024): 188-204

Abstract

The interplay between formal return procedures under Directive 2008/115 and readmissions based on bilateral inter se treaties unveils the Member States' recurrent ambition of disposing of irregular migrants quickly and through minimum formalities. Over the last decade, with the line of cases originated with Affum and developed further by Arib and ADDE, the Court of Justice has maintained that the Member States cannot exercise their reserved powers on readmissions to reduce or circumvent the guarantees provided by Directive 2008/115. In this context, the recent reform of the Schengen Borders Code provides further food for thought, as it introduces a new voluntary transfer procedure aimed at replacing traditional readmissions and to place them under the umbrella of EU law. The proposed analysis addresses this normative development in the light of the case law of the Court of Justice. While discussing the continuing topicality of the Court’s position, the article briefly highlights the inherent potential of the revised Schengen Borders Code and the legal and operational knots ahead.