Is the European Council responsible for the so-called “EU-Turkey Agreement” ? The issue is on the Court of Justice table…

by Emilio DE CAPITANI

Until now the legal nature of so called “EU-Turkey Agreement” has been debated at academic level (see the posts here and here ) and briefly presented and debated before the Civil Liberties Committee of the European Parliament following a presentation by the legal service of that institution (see the transcript here). The latter has considered that the so called EU-Turkey “deal” is not legally binding but is just a political catalog of measures  adopted (or to be adopted) on their own specific legal basis (no matter if in their recitals reference is made to the EU-Turkey deal).

Other scholars and even Institution representatives (such as the European Council President Tusk and the President of Turkey Erdogan) have presented the “deal” as a binding measure what means that it has to be “implemented” in all its parts in compliance with the bona fide principle which should govern international relations.

On its side the European Parliament has until now followed its legal service approach by considering that, no matter of what had been “negotiated” at head of state level, it remain free to adopt or not the legislative budgetary and operational measures implementing the agreement. It has then decided, as budgetary authority, to finance the first three billions transfer to Turkey but, as legislative authority  has still to decide what to do with the amendment to the Visa legislation granting the visa waiver to the Turkish nationals and on the implementation of the so called “1 per 1 “principle. The impression is that on this issue the EP prefers more barking than biting by endorsing the Machiavellian project (launched at the end of 2015 by Germany, the Dutch Presidency, the Commission Vice President Timmermans) to ask Turkey support to  overcome the opposition to the EU migration and asylum policies inside the EU of the Visegrad Countries.

Now a new event could possibly create some movement.  The European Council has been notified on 31 May and 2 June 2016 of three similar applications for annulment lodged under Article 263 TFEU with the General of the EU Court of Justice.[1]

The three applications are directed against the European Council and request the Court to annul the “EU-Turkey statement” which was issued following the meeting of 18 March 2016 of the Members of the European Council and their Turkish counterpart (See press release 114/16 of 18 March 2016).

The applications in Cases T-192/16 and T-257/16 state that they are brought on behalf of individuals who are nationals of Pakistan and who are currently staying at the “No Borders Refugee Camp”, in Lesbos, Greece. The application in Case T-193/16 states that it is brought on behalf of an individual who is a national of Afghanistan and who is currently staying at the “Onofiyta Refugee Camp”, in Athens, Greece.  All three applicants have applied for anonymity to the Court, requesting that their names should not be rendered public.

The applicants challenge the “EU-Turkey statement” of 18 March 2016.

They consider that the “EU-Turkey statement” constitutes an agreement entered into by the European Council with Turkey and  claim that it is an act that produces legal effects adversely affecting the applicants’ rights and interests. The applicants argue, inter alia, that this act  rendered them at risk of refoulement to Turkey or ‘chain refoulement‘ to Pakistan or Afghanistan and hence compelled them to make their applications for international protection in Greece, against their will.

In support of their request for annulment of the “EU-Turkey statement” the applicants raise a number of pleas, among which:

  • failure to comply with the procedures set out in Article 218 TFEU and/or 78(3) TFEU;
  • failure to apply Council Directive 2001/55/EC of 20 July 2001;[2]
  • incompatibility with EU fundamental rights, notably with Articles 1, 18 and 19 of the Charter of the Fundamental Rights,
  • invalidity on the grounds that the case law of the European Court of Human Rights[3] and the Court of Justice[4] shows that there are serious flaws in the present Greek asylum system at all levels, including absence of an effective remedy and deficient reception facilities;
  • incompatibility with the prohibition of direct and indirect refoulement;
  • invalidity on the grounds of being based on the unlawful conclusive assumption that Turkey is a safe country;
  • invalidity on the grounds of breach of the prohibition of collective expulsion.

The applicants have requested that the case be adjudicated under an expedited procedure, in accordance with Article 152 of the General Court’s rules of procedure. The European Council will therefore have to lodge its defence within one month of the service of the applications unless the General Court decides to reject the application for expedition. In that latter case the Court may extend the deadline by one month.

So let’s see if there is Judge in Berlin…

NOTES

[1]           Cases T-192 and T-193 were notified on 31 May 2016 and Case T-257/16 was notified on 2 June 2016.

[2]           Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, O.J., 7.8.2001, L 212/12.

[3]           M.S.SS v Belgium and Greece (application no. 30696/09) Judgment of the ECtHR Grand Chamber, dated 21 January 2011.

[4]           Joined Cases C-411/10 and C-493/10, N. S. and Others, Judgment of the CJEU (Grand Chamber) of 21 December 2011 ECLI:EU:C:2011:865

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