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By Paula García Andrade, Universidad Pontificia Comillas ICAI-ICADE (Madrid)

The decision in cases T-192/16, T-193/16 and T-257/16, NF, NG and NM v European Council) where the General Court considered that it is not competent to rule about the action for annulment brought by several asylum seekers against the EU-Turkey Statement of 18 March 2016 is well known. People often get shocked by the Court’s decision considering that it did not dare ruling on this burning issue when it affirmed that the European Council did not adopt the statement with Turkey. But there is much more than the question of the authorship behind that case raising the overall issue of the distribution of competences between the EU and its Member States (1) with the risk for the CJEU to contradict one of its fundamental decisions about the external powers of the EU in the ERTA case. This issue is also linked to the external representation of the EU, whose implications can also be examined in the current negotiations of the Global compacts on migration and on refugees under the auspices of the United Nations (2).

Both questions are significant due to the sensitivity of the combination of migration and foreign affairs for national sovereignty, and complex due to the still ambiguous provisions governing EU external action in EU primary law, particularly those codifying the CJEU doctrine on implied external powers (see art. 3.2 and 216.1 TFEU).

In order to understand what is at stake in EU law, one has to keep in mind that the different objectives pursued by the external dimension of the EU migration policy, according to the Global Approach to Migration and Mobility and the new Partnership Framework, correspond to a complex intertwining of powers between the Union and its Member States.

Firstly, the EU enjoys exclusive external competences on short-term visas and borders on the basis of the ERTA case-law as the adoption of common internal rules in these fields prevents Member States from concluding international agreements which may affect their uniform application.

Secondly, Union competences are concurrent with those of Member States on readmission. The exercise by the Union of this explicit external competence will exclude Member States’ external action from the moment the Union concludes an agreement with a given third country or even since the adoption by the Council of a negotiation mandate for that purpose. Union competences can also be qualified as concurrent regarding legal migration and migrants’ integration, fields in which the conclusion of Union agreements is subject to legal and political constraints.

Thirdly, decisions on the volumes of admission of economic migrants from third countries still pertain to the exclusive remit of Member States.

Fourthly, maximising the synergies between migration and development calls for the use of development cooperation, a policy in which EU and Member States’ powers are parallel, without the former’s action having pre-emption effects over the latter’s.

Consequently, cooperation with third countries necessitates a very close cooperation between the EU and its Member States to address those diverse aspects.

A similar degree of cooperation is needed when it comes to the procedural aspect of organising the representation of the Union’s and Member States vis-à-vis their partners. According to Art. 17 TEU, the Commission is in charge of ensuring the external representation of the Union, with the exception of the Common Foreign and Security Policy (CFSP) whose representation falls into the common competence of the President of the European Council and the High Representative – Vice President (art. 15 §6, penultimate paragraph, TEU). Deciding who is in charge of representing the  EU internationally in the field of migration therefore does not depend on the category of authorities at the level of which the dialogue is being held.  On the contrary, it merely follows from the policy addressed as I explained previously on this blog. It therefore appears that the Commission should represent the Union in negotiations leading to an international agreement in the field of migration. This equally holds true for deliberations within an international organisation or any other forum.

The external representation of EU Member States in areas for which they are still competent is not regulated in the Treaties. It therefore needs to be clarified if it is about their exclusive competence or about a concurrent competence that the Union has not yet exercised. Whilst each Member State is entitled to present its own position in those cases, alternatives for a concerted representation should be looked for in view of ensuring the unity of the international representation of the EU as the ECJ requests (see, inter alia, Case C-246/07, Commission v Sweden (PFOS), para. 73).

  1. THE CONTROVERSIAL AUTHORSHIP OF THE EU-TURKEY STATEMENT AND THE GENERAL COURT’S ORDERS

On 28 February 2017, the General Court issued in cases T-192/16, T-193/16 and T-257/16, NF, NG and NM v European Council) three identical orders in reply to the annulment actions brought by several asylum seekers against the EU-Turkey Statement of 18 March 2016 when the EU convinced the Turkish authorities to stop the high influx of migrants crossing the Aegean sea to get to Europe. The most important commitments agreed include the readmission by Turkey of all new irregular migrants arriving in Greece; resettling, for every Syrian national returned to Turkey, another Syrian from Turkey to the Member States (1 to 1 scheme); accelerating the visa liberalisation roadmap and speeding up the disbursement of the money allocated under the Refugees Facility for Turkey (see the comments by Henry Labayle, by Henry Labayle and Philippe De Bruycker and by Daniel Thym on this blog).

The applicants took the view that the EU-Turkey Statement was an act attributable to the European Council establishing an international agreement between the EU and Turkey. Accordingly, they claimed that this act should be annulled by the Court as being non compliant with the Charter of Fundamental Rights of the EU as well as EU secondary law on asylum and would furthermore run counter the procedural requirements for the conclusion of international agreements on behalf of the EU as specified in art. 218 TFEU.

The General Court dismissed the actions on the ground of its lack of jurisdiction. In the Court’s view, whilst the content of the Statement “could, admittedly, imply that the representatives of the Member States of the European Union had acted […] in their capacity as member of the European Council,” the explanations given by the latter and the documents sent to Member States and Turkey in preparation for the meeting of 18 March 2016 indicate otherwise. The Court therefore concluded that  “notwithstanding the regrettably ambiguous terms of the EU-Turkey Statement […] it was in their capacity as Heads of State or Government” that the Member States’ representatives met the Turkish Prime Minister in the Justus Lipsius building. As a consequence, its members switched hats with the result that the European Council did not adopt the statement. The Court explained further that “even supposing that an international agreement could have been informally concluded during the meeting”, it would have been concluded by the Member States with Turkey, and thus constitute an act falling outside its jurisdiction.

This ruling of the General Court raises several questions closely connected to the subjects referred to above. Firstly, it is necessary to inquire whether the content of the Statement and the circumstances of its adoption – the criteria at which the Court pointed at – really support the lack of EU involvement. Secondly, one may wonder if Member States are really able to decide, when they meet in the premises of the European Council, whether they are acting as Heads of States and Governments of the 28 or qua European Council. If that decision can be taken freely by Member States, could the collective action of Member States in fields within the scope of Union external competences be considered to be lawful? In this regard, two different issues are at stake.

On the one hand, the EU has already exercised its external concurrent competence on readmission with regard to Turkey, introducing common rules in the EU legal order through the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation, done in Ankara on 16 December 2013 and in force since 1 October 2014, excepted regarding third-country nationals for whom readmission obligations are applicable only since 1 October 2017). Are the commitments assumed allegedly by Member States lawful due to the pre-emption effects of this Agreement with Turkey? And what about the commitments on asylum procedures and the visa liberalisation process which are areas “already covered to a large extent by Union rules” in the sense of the ERTA case law (see, e.g, Opinion 1/03)?

On the other hand, in areas of EU concurrent competence in which the Union has not yet exercised its competence (which could be the case for resettlement), one may wonder whether the “collective action” by Member States can be legally exercised. Wouldn’t it be at odds with art. 4.3 TEU? Can Member States choose to act outside the procedural framework foreseen in EU primary law in fields of Union competences?

If the General Court had taken the view that the European Council acted as counterpart of the Turkish authorities, the issue of the existence of a reviewable act within the meaning of article 263 TFEU would have had to be addressed. If one accepts that the EU-Turkey Statement is not a treaty (on this issue, see the post of Olivier Corten and Marianne Dony on this blog), could we argue that this non-legally binding agreement has nonetheless legal effects on third parties within the meaning of article 263 TFEU? Furthermore, in case the Court accepts the European Council’s authorship, the question whether the signature of the Statement by this institution is in conformity with the procedural requirements of EU primary law should also be examined. Predominantly, these are determined by article 218 TFEU, outlining the procedure for concluding international agreements and articles 16 and 17 TEU specifying the respective powers of the Commission and the Council as recently clarified by the Court in the Swiss MoU case. Finally, the annulment actions would additionally have to pass the  admissibility threshold, the complex question of whether or not the Statement, as an act of general application, is of individual and direct concern to the applicants in accordance with article 263 §4 TFEU.

These are the questions to which the Court of Justice may have to reflect upon when replying to the appeal introduced by the applicants (case C-208/17 P) apart of the question of the authorship of the EU-Turkey statement.

  1. THE REPRESENTATION OF THE EU IN THE NEGOTIATIONS OF THE UN GLOBAL COMPACTS

Current discussions within the United Nations regarding the adoption of the Global Compacts on refugees and on safe, orderly and regular migration, in which both the Union and its Member States are taking part, raise issues of a similar nature regarding the external representation of the EU and its Member States

In the New York Declaration for Refugees and Migrants, adopted at the summit hosted by the UN General Assembly in September 2016, States decided to launch a process of intergovernmental negotiations leading towards the adoption of two instruments in 2018. On the one hand, the Global Compact on Refugees would outline a comprehensive response framework and a programme of action to be applied to large-scale refugee movements, in view of its adoption by the General Assembly as a resolution. On the other hand, the Global Compact for safe, orderly and regular migration would set out principles, commitments and understandings on all dimensions of migration, and present a framework for enhanced international cooperation. The compacts will be presented for adoption at an intergovernmental conference on international migration to be hosted by the General Assembly in 2018. The elaboration of the Migration Compact, which started in April 2017, is being carried out through a process of intergovernmental negotiations, whose modalities have been determined by the General Assembly and following the work plan developed by the UN Secretary General in consultation with the OIM . At the same time, the Refugees Compact is to be drafted by the UNHCR in cooperation and consultation with UN Member States and other relevant stakeholders.

Looking at the annexes of the New York Declaration, where the main elements of the future Global Compacts are outlined, it is quite obvious that these instruments will cover areas corresponding to both EU and Member States’ competences: reception conditions, refugee admission procedures, resettlement and other legal pathways for admission, refugee status, border management, prevention and fight against human trafficking and migrant smuggling, return and readmission, migrants’ admission, migrants’ status, and development and humanitarian assistance, among others. In these fields, neither the Union nor the Member States can adopt measures on their own, even if the resulting instruments will not be legally-binding.

Current discussions and negotiations related to both Compacts therefore invite us to look at how the European participation is being orchestrated therein and who is precisely taking part in those talks on behalf of the Union and of its Member States, on the basis of the respective delineation of competences involved. Is the European Commission representing the Union in accordance with art. 17.1 TEU? And does that representation cover all fields corresponding to Union competences or only to its exclusive and already exercised concurrent competences? Which role is attributed to the HR – VP and the EEAS bearing responsibility for the coordination of different aspects of the Union’s external action in conformity with article 18.4 TEU? How is the international representation of EU Member States being organised? By virtue of the Treaties, have they assigned that role to the rotating Presidency of the Council, to the Commission, or have they decided to be individually present in the negotiations? In this regard, it should also be interesting to examine how the respective positions of the Union and of its Member States have been coordinated before and during the negotiations leading to the Global Compacts, as required by the imperative to ensure the unity of the international representation of the EU and the consistency of its external action.

All these and other questions will be critically addressed in the forthcoming workshop on the “External Competence and Representation of the EU and its Member States in the Area of Migration and Asylum” organised in the framework of the 2018 Odysseus Annual Conference.