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

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.