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EU-Turkey deal: who is responsible? Not the EU, says the Court of Justice

01 March 2017

EU-Turkey  
EU-Turkey deal: who is responsible? Not the EU, says the Court of Justice
1.3.17
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The European Court of Justice has ruled that it has no competence to judge the legality of the March 2016 EU-Turkey deal on migrants and refugees as "neither the European Council nor any other institution of the EU decided to conclude an agreement with the Turkish Government on the subject of the migration crisis." The case was brought by three individuals seeking asylum in Greece, who sought to challenge the legality of the deal as it posed a risk that they might be returned to Turkey.

Press release: The General Court declares that it lacks jurisdiction to hear and determine the actions brought by three asylum seekers against the EU-Turkey statement which seeks to resolve the migration crisis (28 February 2017, pdf)

The orders issued by the court: NF (T-192/16), NG (T-193/16), NM (T-257/16) (pdfs)

And the "deal": EU-Turkey statement, 18 March 2016 (pdf)

As summarised in the court's press release (emphasis in original):

"In the orders made today, the General Court declares that it lacks jurisdiction to hear and determine the actions pursuant to Article 263 TFEU, and, accordingly, dismisses them.

In those orders, the Court states, first of all, that there were inaccuracies in the press release of 18 March 2016 regarding the identification of the authors of the ‘EU-Turkey statement’ as the press release indicates, first, that it was the EU, and not its Member States, which had agreed on the additional action points referred to in that statement and, secondly, that it was the ‘Members of the European Council’ who had met with their Turkish counterpart during the meeting of 18 March 2016 which gave rise to that press release.

The Court takes the view that the evidence, provided by the European Council and relating to the meetings on the migration crisis held successively in 2015 and 2016 between the Heads of State or Government of the Member States and their Turkish counterpart, shows that it was not the EU but its Member States, as actors under international law, that conducted negotiations with Turkey in that area, including on 18 March 2016.

(...)

The Court holds that it was in this latter capacity that, on 18 March 2016, the Heads of State or Government of the Member States met with their Turkish counterpart to discuss the migration crisis and proceeded to adopt the ‘EU-Turkey statement’, the main points of which were set out in the press release of the same day.

The Court therefore considers that neither the European Council nor any other institution of the EU decided to conclude an agreement with the Turkish Government on the subject of the migration crisis. In the absence of any act of an institution of the EU, the legality of which it could review under Article 263 TFEU, the Court declares that it lacks jurisdiction to hear and determine the actions brought by the three asylum seekers."

Further reading: The today’s Court (non) decision on the (non) EU “deal”(?) with Turkey(FREE Group, link)

"Even assuming that the Court has no competence to intervene in such a case, the real problem is that apparently the General Court does not object on the fact that all the members of an EU institution can adopt measures falling in the EU competence without being bound by the EU law (procedural and material). This fuzziness on the legal nature of ‘the EU-Turkey statement’ paves the way on further questions. Do the EU Member States have the power to act in a matter which is already covered by EU measures such as the EU-Turkey readmission agreement? Does this behavior comply with the principle of sincere cooperation between the MS and the EU institutions and notably the European Parliament which will be under the moral obligation to implement measures which it has not approved?"

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