The EU-Turkey Deal in Front of the Court of Justice of the EU: An Unsolicited Amicus Brief

Abstract

The EU-Turkey Statement of 18 March 2016, widely known as “the deal” or the EU-Turkey deal, has been one of the most controversial policy steps taken by the EU in recent years. This policy brief, which also aims to serve as an amicus curiae brief, examines two interrelated aspects of the deal. Firstly, at an institutional level, it focuses on the process that led to the conclusion of the deal, which was in complete disregard of the procedure laid down in the EU Treaties (Art. 218 TFEU), thereby denying the European Parliament and the Court of Justice their constitutional roles. Secondly, at an individual level, it discusses how the legal form and nature of the deal made it very difficult for those who are most affected by it to challenge it, effectively denying their right to access to justice. The cases brought by asylum seekers affected by the deal (NF, NG, and NM) in front of the General Court of the EU (GC) help to illustrate the latter point. Now that these cases have been appealed to the Court of Justice of the EU (CJEU), the Court is called upon to assume jurisdiction and establish that the GC erred in law in ruling that the deal was not an act of Union institutions, but that of Member States. This brief argues that Member States had no competence to act in this field as the EU had already exercised its competence by concluding a Readmission Agreement with Turkey. However, even if the Court were to acknowledge that the GC erred in law on that point, fulfilling the strict admissibility requirements under Art. 263(4) TFEU would remain a challenge for the applicants. Therefore, in applying the admissibility requirements, the Court is advised to take into account the importance of the principle of non-refoulement as a norm of customary international law and the gravity of the consequences of refoulement for the applicants. In short, the Court is called upon to uphold the values on which the Union is founded, namely, respect for human dignity, the rule of law and human rights (Art. 2 TEU).

Keywords: Migration, Asylum, Refugee Crisis, Migration Crisis, Eu-Turkey Deal, EU-Turkey Readmission Agreement

JEL Classification: K33, K39