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by Mauro Gatti, Research Associate, University of Luxembourg, Faculté de Droit, Economie et Finance

Europe is notoriously divided regarding its internal policies on migration. But when it comes to making deals on migration with other States, EU Member States and institutions tend to be surprisingly united. This external unity might be threatened by populist leaders as shown by the decision of Hungary to refuse the Global Compact on Migration like the USA: if so, there would be little the Union may do to restore cohesion on the international stage.

1. The Surprising Unity of the Union

The acrimonious debate on refugee quotas or the Aquarius and Lifeline affairs may suggest that Europe is irremediably divided on the issue of migration. Despite the apparent alliance between far-right leaders in Italy, Austria, and Hungary, the interests of EU Members seem to be at odds. While some seek European solidarity, others reject any mutual support and pursue purely national solutions. Considering the fragmentation of internal policies, the EU’s external unity may come as a surprise.

The ongoing negotiations of the UN Global Compacts on Refugees (GCR) and on Migration (GCM) are a case in point. The New York Declaration for Refugees and Migrants (2016) set in motion a process of intergovernmental consultations and negotiations that are expected to culminate in the adoption of both global compacts. The Global Compact on Migration, in particular, will be adopted in an intergovernmental conference in Marrakech in December 2018.

The EU and its Member States are taking part in these discussions, each with its diplomatic representatives. Like migration, international representation is a thorny issue. EU institutions and organs – notably, the Commission, the High Representative, and the presidencies of the Council, European Council, and Parliament – compete to take the floor on the Union’s behalf (see inter alia García Andrade). Furthermore, the position of the Union is often accompanied by those of the Member States. The Union speaks with one voice only in the areas falling within its exclusive competence, which are few and do not include the entire area of migration. In the other cases, each Member State can generally have a sit at the table. The fragmentation in the EU’s representation periodically generates conflicts among EU actors, sometimes over arcane issues such as the name one should write on the EU’s speaker nameplate (“EU” or “EU and its Member States“).

At first sight, the discussions on the UN Global Compacts might seem to confirm the plurality of European voices.  Individual Member States occasionally provided independent contributions (e.g. the non-paper by the Netherland on the GCR) or made “some additional remarks” that complemented the common EU position (e.g. written contribution by Italy in the consultation on the GCR). However, the Union was generally cohesive during these discussions.

On the one hand, EU institutions had a single speaker: the delegation, i.e. the EU’s embassy. As EU delegations are functionally attached to the main EU representatives (the Commission and the High Representative; see the ruling of the CJEU in Elti, para 37), they can make international statements about any issue within the scope of EU competences, from migration to security policy. On the other hand, EU delegations spoke on behalf of the Union and its Member States, which means that all EU Member States approved the delegations’ statements (cf. Gatti). For instance, the Union and the Member States welcomed the “non-legally binding nature of the GCR” (Coordinated comments from the EU and its Member States on the draft GCR). The EU and its Member States also stressed that cooperation under the Global Compact on Migration must “include international cooperation on return, fighting trafficking/smuggling, border management” (EU statement, GCM 4th round of negotiation). Therefore, the international community should “strengthen international border management and control cooperation” and States should “accept without condition the return and readmission of their nationals” (EU statement, GCM 3rd thematic session). The Union seems thus to have finally achieved “unity” of its international representation (cf. inter alia Opinion 2/91, para 36).

Such unity is not unprecedented in the EU’s external migration policy. EU institutions and Member States demonstrated a great degree of convergence through numerous recent initiatives, to the point that they often adopted joint initiatives. Mobility Partnerships constitute an obvious example: the Union and some interested Member States have entered into informal arrangements with neighbouring countries, committing inter alia to implement projects in the territory of third states – projects managed by the Union or the Member States (see e.g. the Mobility Partnership with Tunisia). Another example is the Italy-Libya memorandum of understanding signed on 2 February 2017. Italy had uncharacteristically pledged EU funds in favour of Libyan authorities, in exchange for Libyan support “to stem  the illegal migrants’ fluxes” (see also Palm). The following day, the Union endorsed Italy’s commitments through the Malta Declaration, affirming that it was “ready to support Italy in its implementation of the Memorandum of Understanding” with Libya. A third example is provided by the famous EU-Turkey Statement, an informal arrangement that commits EU funds for the benefit of Turkey, but which – according to the EU General Court – was jointly adopted by the Member States, not by the Union, knowing however that an appeal is pending in this controversial case commented on our blog by Paula Garcia Andrade to introduce a workshop devoted to this case.

It would seem that all EU actors support the same pragmatic strategy: offering benefits, notably money, to third States, in exchange for a reduction of migration fluxes. The unity displayed by the Union and its Members has the obvious advantage of ensuring an effective coordination of the resources at the disposal of the Union and its Member States, without the time-consuming fights over the distribution of competences that usually characterise EU external relations. The drawback is that the EU’s recent initiatives are based on instruments having dubious legal nature. Their legal effects is uncertain and so are the possibilities for judicial recourse (cf., e.g., Cannizzaro, Corten, Fernández Arribas and Gatti). The implementation of joint initiatives by the Union and its Members casts doubts over the authorship of the instruments employed in the area of migration, thereby reducing legal and political accountability (see inter alia Cannizzaro; Carrera, den Hertog and Stefan; Danisi). Furthermore, the use of soft law instruments means that the procedures set in EU Treaties are bypassed, to the detriment especially of the European Parliament, which had no say on the EU’s initiatives, while it should have a power of co-decision over the EU’s migration policy (see European Parliament resolution, 5 April 2017, para 70).

In summary, the EU has pragmatically found unity on the international stage, but at the expense of the rule of law and democracy. These concerns are surely additional to those regarding respect for the human rights of migrants and asylum-seekers, which have already been highlighted ad abundantiam elsewhere (e.g. UN High Commissioner for Human Rights; Frei and Hruschka; Giuffré; Labayle and De Bruycker; Skordas).

2. Looming Risks for the EU’s Unity

Though the Union seems generally cohesive, recent developments suggest that unity cannot be taken for granted. On 2 May 2018, representatives of the EU and its Member States participated, alongside the ministers of several African countries, in the fifth Euro-African Ministerial Conference on Migration and Development in Marrakesh, which took place in the framework of the Rabat process. The conference led to the adoption of the “Marrakech declaration”, a non-binding document inspired by a “human rights-based approach”, which identifies several domains of international cooperation, including the fight against irregular migration, but also legal migration and asylum.

The Hungarian minister of foreign affairs vehemently opposed the Marrakesh declaration, alleging that it “could lead to a fresh wave of migration”. Hungarian opposition remained without practical consequences, as the Marrakesh declaration was adopted by the other States and the EU. Hungary’s stance, however, signaled the possible dis-unity of the Union regarding the aspects of migration policy that go beyond the mere fight against irregular migration. The idea of a “rights-based” external policy on migration evidently does not match Fidesz’ priorities.

Given the generic content of the Marrakech declaration, one may hypothesise that the main objective of the Hungarian government was not to steer policy, but to issue an anti-migration and anti-EU message for the benefit of public opinion. Other governments might adopt a similar strategy in the near future. This may be the case, for instance, of the new far-right Italian government, whose minister of Home Affairs, Matteo Salvini, frequently issues anti-migrants if not racist statements. Should this kind of rhetoric proliferate, the conduct of common external actions, other than simple anti-migration measures, might become complicated.

May the Union counter populist messages and preserve the unity of its policy? Probably not.

Migration and asylum are competences shared by the Union and its Member States. The latter may therefore exercise their competences until the adoption of common rules by the Union. And the Union has not yet entirely “occupied the field”. Recent international initiatives on migration, such as the Rabat process or the UN Global Compacts, have broad substantive scope, and are likely to affect issues falling within the scope of Member States’ competences (García Andrade). Hence, Member States can participate in international conferences and make their own statements. Even if 27 Member States agreed on a course of action, the 28th might decide to adopt another stance, as Hungary did in Marrakesh and most probably will do again in view of the adoption of the GCM in upcoming December as recently announced by the Hungarian Foreign Minister.

There are only two exceptions to this rule. Firstly, the Member States cannot express autonomous positions on issues falling within EU exclusive competences: however, that is an unlikely circumstance, given the breadth of topics discussed. Secondly, a single Member State cannot dissociate itself from a strategy agreed upon in the Council, in a Council preparatory body, or – possibly – in a coordination meeting of diplomatic representatives. Such a dissociation would indeed amount to a violation of the duty of sincere cooperation that binds EU Member States to the Union (see the ruling of the CJEU in PFOS, para 91).

Member States might discuss the EU strategy before an international meeting on migration and reach a “common position”. It is indeed possible to reach a common position in an area where the Union has shared competences (such as migration and asylum) and in respect of issues that do not form the object of previous acts of the Union ( see the ruling of the CJEU in COTIF, paras 62-68). In other words, the Union may adopt statements and enter into non-binding instruments in respect of most areas of migration and asylum – though, of course, it may not regulate the volumes of admission of third-country nationals (Article 79(5) TFEU) and may not affect the Member States’ exercise of the responsibilities regarding the maintenance of law and order and internal security (Article 72 TFEU).

Given the current political climate, one may wonder whether common positions may be easily found. Also, it may be doubted whether the Member States may wish to coordinate their policies in areas of national competence. And even if such a coordination took place, the question may be asked whether the duty of sincere cooperation of the Member states would be enforceable. In principle, the Commission can bring infringement proceedings against a Member State that departs from a common position. However, a judgement that merely certifies the infringement of EU Treaties is unlikely to discourage the likes of Orbán or Salvini, especially because it would be issued months or years after the facts. Political reactions might possibly be more effective than judicial proceedings, but one may doubt whether any resistance to populist governments will be mounted in the near future: Fidesz, for example, remains a member of the European People’s Party, notwithstanding the policies it implemented in Hungary.

In the best of all possible worlds, the Union would forge a common external policy on migration, centered on the human rights of migrants, and respectful of democratic procedures and the rule of law. Several recent initiatives of the Union and its Members were truly “common”, though they might have been less than respectful of human rights, democracy, and the rule of law. The rise of populist leaders will hardly enhance respect for European values and might even sabotage the unity of the EU’s external migration policy.