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The EU-Turkey Statement: A Treaty That Violates Democracy (Part 2 of 2)

Published on April 19, 2016        Author: 

In yesterday’s post, I discussed why the EU-Turkey joint statement should be regarded as a treaty under international law, replete with consequences on EU Member States as a matter of international law.  In this concluding post, I argue that EU Parliamentary prerogatives were violated in the substance of this agreement and the manner by which such agreement was reached.

…That Violates the Parliament’s Prerogatives

Since the 18 March statement is an international agreement binding on the Union, it should have been adopted, on the EU’s side, on the basis of Article 218 TFEU. This provision never mentions the European Council: it is the Council that authorises the opening of negotiations and that concludes (i.e. ratifies) them. More importantly, Article 218(6) TFEU stipulates that, in most cases, the Council may conclude an agreement only after obtaining the consent of the European Parliament.

The Parliament’s consent is required, in particular, when the international agreement covers fields to which the ordinary legislative procedure applies. This is the case of the 18 March statement, which concerns the readmission of citizens of third countries (although the statement does not explicitly mention the word ‘readmission’, it clearly refers to this concept, cf. the definition of ‘readmission’ in the EU-Turkey readmission agreement, Article 1). The EU’s competence to enter into readmission agreements is explicitly acknowledged by Article 79 TFEU, which regulates the EU’s ‘common immigration policy’. In this field, the ordinary legislative procedure applies (ex Article 79(2) TFEU). Hence, pursuant to Article 218(6) TFEU, the Council may conclude readmission agreements only after having obtained the consent of the European Parliament. The EU-Turkey readmission agreement was indeed concluded after having obtained the consent of the European Parliament – but that was not the case for the 18 March statement.

One may wonder whether the statement, by virtue of its specific features, could have been legitimately concluded in the form of an ‘executive agreement’, that does not require Parliamentary approval. It would seem, in fact, that EU institutions sometimes enter into executive agreements with foreign authorities, especially for the management of relatively ‘technical’ issues, such as the establishment of EU Delegations or the conduct of relations with international organisations. Be that as it may, I would argue that a readmission agreement cannot be concluded as an ‘executive agreement’. This argument is supported by a literal and systematic reading of the TFEU. Readmission agreements (envisaged by Article 79(3)) can be concluded only after having obtained the consent of the Parliament (Article 218(6)), since the ordinary legislative procedure applies in this area (Article 79(2)). If an EU institution could enter into a readmission agreement through another procedure, Article 218(6) would be deprived of its content.

The importance of the letter of Article 218(6) is reinforced by the case-law of the Court of Justice. According to an established jurisprudence, Article 218 TFEU ‘constitutes, as regards the conclusion of international treaties, an autonomous and general provision of constitutional scope, in that it confers specific powers on the EU institutions’ (Negotiating directives, para 62). Since Article 218(6) establishes a balance between the Council and the Parliament, the adoption of agreements in the simplified form, such as the 18 March statement, tips the balance against the Parliament. This can hardly be accepted: the Parliament’s involvement in the treaty-making area ‘is the reflection, at EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly’ (Mauritius, para 81).

It emerges from the above considerations that the 18 March statement was concluded in infringement of the Parliament’s prerogatives, and is consequently vitiated by violation of the essential procedural requirements imposed by Article 218(6) TFEU.

Conclusion

The EU-Turkey statement of 18 March appears criticisable for several reasons. Not only is it ethically questionable and problematic in terms of human rights protection, but it also challenges the democratic principles on which the EU is founded. The good news is that this statement might be subject to judicial review. Being a binding act, vitiated by violation of essential procedural requirements, the agreement may possibly be annulled under the procedure of Article 263 TFEU (cf. France v Commission, paras 16-17). It is also possible, at least in principle, that the agreement may be incompatible with substantive primary rules, notably those concerning fundamental rights protection.

If the Court of Justice is to review the legality of the 18 March statement, someone must obviously bring action against it. The European Parliament is the ideal candidate. Hopefully, (some of) its members might be more sensitive to humanitarian concerns than the governments of EU States. The European Parliament may also wish to defend the democratic principle at large, since they constitute the basis of its own legimacy. Moreover, the Parliament has an interest in protecting its own prerogatives: there is indeed the risk that the Member States, left to their own devices, may decide to ignore Article 218(6) TFEU in the future, too.

The Parliament may perhaps be tempted to turn a blind eye to the 18 March statement, to avoid exposing itself to criticism. The EU-Turkey deal is a hot potato that politicians are likely to avoid, if at all possible: political and legal uncertainty may seem preferable in the short term. Backroom deals of this sort are not uncommon in the history of the EU, but, in my view, they are no longer acceptable. If the EU’s democratic deficit is to be filled, political leaders – notably, the members of the European Parliament – should take responsibility for the EU’s actions. That is especially the case when the lives of thousands of people are at stake. Not only does the Parliament have a right to bring action against the 18 March statement, but it has also a moral duty to do so.

The annulment of the 18 March statement may not have immediate consequences, since it would hardly prevent Greece from considering asylum-seekers’ applications as ‘inadmissible’ and, ultimately, from sending them back to Turkey. The annulment of the 18 March statement may nonetheless serve a twofold purpose. It would draw attention to the consequences of statement, in terms of human rights protection and democratic governance. It may also contribute to stigmatise the action of the Member States, thereby discouraging them from seeking similar solutions in the future. The recent non-paper on readmission to Afghanistan, that prefigures the deportation of 80.000 people, suggests that further ‘questionable’ agreements may be on their way.

Filed under: EJIL Analysis
 

The EU-Turkey Statement: A Treaty That Violates Democracy (Part 1 of 2)

Published on April 18, 2016        Author: 

While the terrorist attacks in Brussels understandably attracted most of the attention during the last weeks, migration issues, and particularly the situation in Greece and Turkey, remain high on the EU’s agenda. The EU and Turkey recently stepped-up their cooperation in migration matters by adopting a joint statement, that soon appeared questionable in terms of international and European asylum law (Chetail 2016; Labayle and de Bruycker 2016; Mandal 2016; Peers 2016; Roman 2016). Through this contribution, I intend to demonstrate that the EU-Turkey statement is problematic also because of another reason: it was adopted in violation of the European Parliament’s powers and of the democratic principle at large. Therefore, the Parliament has the right, and the moral duty, to bring action against the statement before the Court of Justice.

Bad for Refugees

Both Turkey and the EU are concerned by the migratory crisis prompted, inter alia, by the Syrian civil war. They have negotiated a number of instruments during the last few months, including a Joint Action Plan in October 2015 and a statement on 7 March 2016. The cooperation framework was completed on 18 March, through the adoption of a joint statement, which took effect on 20 March.

Through the latter statement, Turkey committed to readmit migrants who have not applied for asylum in Greece or whose application has been found ‘inadmissible’ or unfounded under the EU’s Asylum Procedures Directive. On the other hand, the EU accepted that, for every Syrian being returned to Turkey from Greek islands, a Syrian will be resettled from Turkey to the EU (the so-called ‘1:1 scheme’), with a maximum of 72.000 persons. The EU also committed to accelerate the visa liberalisation for Turkish citizens and to ‘speed up’ the disbursement of 3 billion euros allocated under the Facility for Refugees in Turkey (a fund constituted by the EU and its Members, which provides humanitarian assistance to refugees in Turkey and their host communities).

It has been argued that the 18 March statement is ‘Kafkaesque’ and ‘morally wrong’ (ECRE 2016), because it sets up a ‘trade in human misery’ (Peers 2016). The statement may also run afoul of European and international law, since it might lead to collective expulsions and may not give asylum-seekers an effective opportunity to apply for international protection in the EU. If Greece defined Turkey as a ‘safe third country’, it would be able to consider any application for international protection by asylum-seekers transiting through Turkey as ‘inadmissible’, after a simple interview (see Articles 33, 34 and 38 of the Asylum Procedures Directive). It would seem that Greece indeed considers Turkey as a ‘safe third country’ (see Commission’s 10 February Communication, footnote 38). Hence, Greece may send back to Turkey any asylum-seeker whose application it considers to be ‘inadmissible’ – that is, virtually any asylum-seeker.

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Filed under: EJIL Analysis
 

Who Do I Call If I Want to Give Europe a Nobel Prize?

Published on October 14, 2012        Author: 

Mauro Gatti is a PhD candidate in EU law at the University of Bologna and the University of Strasbourg. His article, “‘External representation of the European Union in the conclusion of international agreement” (with Pietro Manzini) recently appeared in (2012) 49 Common Market Law Review, Issue 5, pp. 1703–1734.

The awarding of the Noble Peace Prize to the European Union is a welcome event, especially in the context of the economic, social and political crisis facing the EU. The choice of the Nobel Committee also raises an interesting legal question: who should physically go to Oslo on December 10th and deliver a speech on behalf of the Union? This is a variation of the eternally unanswered question, attributed to H. Kissinger, “who do I call if I want to call Europe?”

This sort of question is often derided as exceedingly technical or formal. In international relations, however, forms may coincide with substance. The external representation of the Union grants elevated visibility and it ensures some discretion as to the content of the message to be delivered or, at least, in respect of the way the message is provided. Since institutional power games and personal struggles for visibility render external representation extremely contentious, this issue has been the object of turf wars for decades.

The Lisbon Treaty modified some specific arrangements, but it did not simplify the general representation framework. On the contrary, it introduced some novel uncertainties, which have already led to legal confrontation (see e.g. case C-28/12) and are likely to raise new issues in the case of the Peace Nobel Prize. The numerous declarations of EU leaders, issued subsequently to the announcement of the Nobel Committee, provide for a glimpse of the insterinstitutional battles that will be fought in the next few weeks: a statement came from the Cyprus Rotating Presidency, another from the European Parliament, a third from the High Representative, a fourth from the President of the European Council, a fifth from the President of the Commission, and a sixth from…the two Presidents together. It is likely that all these leaders strongly desire to deliver a speech in Oslo and be associated with this prestigious Prize. Therefore, the identification of the EU speaker will probably be laboriously performed through a legal battle concerning the interpretation of their respective competences.

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Filed under: EJIL Analysis, European Union
 
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