Chapter 6 Legal Narratives of the EU External Action in the Field of Migration and Asylum: From the EU-Turkey Statement to the Migration Partnership Framework and Beyond
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Abstract
Amidst the so-called ‘refugee crisis’, the EU-Turkey Statement was presented as a measure of last resort to stem the flows by impeding the perilous journeys. Having regard to both its form and content, and the modality of its implementation, this Statement represents a turning point for the European Union (EU). This chapter analyses the impact of the EU-Turkey Statement two years after its adoption, in light of both its function as a blueprint for the new Migration Partnership Framework (mpf) and the recent decision of the European Court of Justice (ecj) on its legitimacy. It shows how the proliferation of cooperative models designed after the EU-Turkey Statement is capable of affecting both the procedural and substantive parameters of the EU external action on migration and asylum, together with the balance of the Union’s and its Member States’ external powers in this field of shared competences. The first part of the chapter explores the impact of the so-called ‘de-formalisation’ of the EU external action on the structural principles underpinning the EU external institutional balance (Section 2), giving account of the reasons why the formalistic approach adopted by both the European General Court and the ecj in the case NF and Others v European Council has been particularly unsuited (Section 3). The second part investigates the substantive provisions of the EU-Turkey Statement, shedding light on the inconsistency inherent to an ‘integrated approach’ blurring the legal boundaries between border management, migration and asylum policies (Sections 4–6). Finally, the analysis extends to the outcomes of the mpf, showing that they reflect the same twofold strategy pursued by the EU-Turkey Statement. It is characterised by: (i) a direct externalisation through informal deals with multiple purposes and legal bases; and, (ii) an indirect or ‘mediate’ externalisation obtained by prompting frontline Member States to conclude bilateral agreements with third countries of transit, to which the responsibility for border surveillance at the Union’s Southern borders is discharged (Section 7).