Considerations on the Legal nature and validity of the eu-turkey refugee deal

AuthorConstanta Matusescu
Considerations on the legal nature and validity of the EU-Turkey refugee deal 91
Constana MTUȘESCU*
Equally concerned by migratory crisis, European Union and Turkey have negotiated a number
of instruments during the last year, including a Joint Action Plan in October 2015 and a statement
on 7 March 2016. The cooperation framework was completed on 18 March 2016, through the
adoption of a joint statement, which took effect on 20 March. The EU-Turkey statement of 18 March
2016 appears criticisable for several reasons. The question is, beyond the moral and ethical issues, of
the legal nature of this document and its legality in accordance with the rules of the European Union
law and international law. By making an examination of the applicable provisions of international
and European law, international and European jurisprudence and literature, the paper aims to
identify the main reasons for that the EU-Turkey statement can be described as treaty, but a treaty
whose legality is seriously affected.
Key-words: migratory crisis, the Eu-Turkey deal, legal nature, international law, European
Union law.
JEL codes: K33; K37
1. Introduction
It is obvious that today the European Union is facing major challenges related
to the large number of people who want to come to Europe, facing the challenge of
existing instruments for action being misfit. For approaching this unprecedented
migration pressures, the European Union has proposed a number of solutions
primarily intended to reduce the unprecedented influx of refugees and migrants
and aimed at strengthening the border control, stricter European rules on asylum
and the involvement of the third States in controlling migration. Under these
measures, special attention is paid to cooperation with Turkey, the country that
hosts on its territory over 2.5 million refugees, mostly Syrians, and where they
came to Europe only in the year 2015 nearly 860,000 refugees and migrants.
* Associate Professor PhD, “Valahia” University of Targoviste, Faculty of Law and
Administrative Sciences.
Law Review vol. VI, special issue, December 2016, p. 91-101
On 15 October 2015, the EU and Turkey agreed on a Joint Action Plan to
prevent irregular migration from Turkey to the EU. Activated at the meeting
between the EU and Turkey of 29 November 20151, this action plan contains
Turkey’s commitment to intensify its efforts to restrict the movement of people
through its territory to Europe and to readmit from the EU all irregular migrants
who had transited through Turkey and who were found not to be in need of
international protection by EU member states. Whereas in the months following
the activation of the plan of action have not been shown notable developments, for
the purpose of significantly reducing the uncontrolled arrival of persons from
Turkey towards the EU, the dialogue between the two parties regarding the
approach of the migration issue has been intensified in the spring of 2016. The
culmination of this dialogue was the conclusion on 18 March 2016, of an agreement
between the EU and Turkey for the purpose of “deepening Turkey-EU relations as
well as addressing the migration crisis”. Having regard to the stated goal of
reducing incentives for migrants to seek as irregular routes to the EU and to put in
place a system of legal and controlled air inlet, the understanding was presented as
the only feasible option to curb uncontrolled flow of migrants through the Aegean
and the Balkans, thus putting an end to countless shipwrecks and dead into
the sea.
The EU-Turkey deal of 18 March 2016, officially qualified as “statement” and
given to publicity in the form of a press release of the European Council2, has
sparked intense criticism from the civil society and scholars.
A first category of criticism aimed at the deal are considering the questionable
character by point of view moral, ethical, and compatible character of this with the
international law of human rights, with the international standards for the
protection of refugees and the European Union. According to the agreement, “all
new irregular migrants crossing from Turkey into Greece islands as from 20 March
2016 will be returned to Turkey”. In exchange, the EU undertook to resettle one
Syrian refugee from Turkey to the EU for each Syrian refugee returned from
Greece to Turkey (the “one to one” mechanism), up to a maximum of 72,000
people. The European Union also committed to pay up to EUR 3 billion to Turkey
(in addition to 3 billion already agreed in the EU-Turkey deal of November 2015)
in order to manage the refugees in its territory. It also agreed to lift the visa
requirement for Turkish nationals by the end of June 2016 and revive the stalled
negotiations for Turkey to accede to the EU. The criticism expressed by a number
1 Meeting of heads of state or government with Turkey - EU-Turkey statement, 29/11/2015, in
European Council Press releases and statement 870/15, available at: http://www.consilium.
2 EU-Turkey Statement of 18 March 2016, in European Council Press Release and statements
144/16, available at:
Considerations on the legal nature and validity of the EU-Turkey refugee deal 93
of international organizations3, non-governmental organizations4 and numerous
analysts (Peers, 2016; Spijkerboer, 2016; Labayle and De Bruycker, 2016; Fernández
Arribas, 2016) to this agreement mainly aimed at that may be subject to rapid
return towards Turkey and migrants who are potentially eligible for obtaining the
asylum (people in real danger in their home States) and Turkey cannot be
considered a “safe third country” in terms of access to the asylum procedure, nor
in respect of the protection granted. In conditions in which the fundamental rights
in this State have not ceased to degrade, there are serious risks of deportation of
such persons by their country of origin (for example, Syria or Afghanistan), where
life is put into danger. In these circumstances, the Rapporteur of the Parliamentary
Assembly of the Council of Europe5 considers that the EU-Turkey Agreement
represents “at best and at worst strains exceeds the limits of what is permissible
under European and international law”.
The second category of criticism, that we will stop in the following,
considering the ambiguous character of the EU-Turkey agreement from the point
of view of the legal nature and the procedure followed for its adoption. The official
name of “statement” given to this agreement and the fact that, at least at first
glance, was not followed the procedure laid down in the article 218 of the Treaty
on the Functioning of the European Union (TFEU) for the conclusion of
international agreements by the Union (which implies the involvement of the
European Parliament and the publishing in the Official Journal of the European
Union), of a part of the doctrine (Peers, 2016; Fernández Arribas, 2016) to believe
that this does not constitute a binding international agreement, but a simple
political agreement or a declaration of intent. Starting from the content of the
document and its implications, other authors (Corten and Dony, 2016; Gatti, 2016;
Spijkerboer, 2016; Cannizzaro, 2016; Favilli, 2016) considers that the EU-Turkey
3 The situation of refugees and migrants under th e EU–Turkey Agreement of 18 March 2016, Resolution
2109/2016 adopted on 20 April 2016, Parliamentary Assembly of the Council of Europe, available at: en; UNHCR
Redefines Role in Greece as EU-Turkey Deal comes into Effect, United Nations High Commissioner for
Refugees (UNHCR), 22 March 2016, available at: briefing/2016/
4 Turkey: Illegal Mass Returns of Syrian Refugees Expose Fatal Flaws in EU-Turkey Deal, Amnesty
International, 1 April 2016, available at:
turkey-illegal-mass-returns-of-syrian-refugees-expose-fatal-flaws-in-eu-turkey-deal; Turkey: Border
Guards Kill and Injure Asylum Seekers, Human Rights Watch, 10 May 2016, available at:;
Seeking Asylum in Turkey: A Critical Review of Turkey’s Asylum Laws and Practices, Norwegian
Organisation for Asylum Seekers, 17 April. 2016, available at:
5 Report of the Committee on Migration, Refugees and Displaced Persons, rapporteur: Ms Tineke
Strik - „The situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016”,
Parliamentary Assembly of the Council of Europe, Doc. 4189 of 18 April 2016, available at:
deal represents an international treaty and, as such, would be affected by illegality,
being adopted with disregard of the rules of the European Union concerning the
negotiation and conclusion of treaties with the third countries.
2. The legal nature of the EU-Turkey deal
The definition of the legal nature of the EU-Turkey agreement of 18 March
2016 represents a serious challenge. This is the result of a complex dialogue
between the Union and Turkey, the Commission itself stated that “Turkey-EU
Declaration of 18 March 2016”, which ”was preceded by six principles set out in
the Declaration of the Heads of State or the Government on 7 March”6 and which is
based on the Joint action plan of EU-Turkey on 29 November 2015, represents ” a
new phase in the EU-Turkey relationship”7.
This document, which according to its terms it is “concluded” by the European
Union, and that aims to strengthen the existing cooperation, instituting at the same
time a number of new commitments for the Union (such as, for example, the “one
to one” mechanism or the additional financial support assumed in favour of
Turkey), has a similar content to that of an international agreement, the purpose of
the article 216 of the TFEU. However, its official name is “statement” and not
“agreement” and does not have the typical form of an international agreement and
has not been concluded in accordance with the procedures laid down for this
purpose in treaties.
Thus, concerning the form, the Statement of 18 March does not contain any
signature and was not published in the Official Journal of the European Union,
appearing as a simple press release of the European Council. Regarding the
procedure followed to its conclusion, it is not the one set out in art. 218 of TFEU,
which constitutes the legal basis of the conclusion by the Union of international
agreements, in the sense of binding legal force commitments8. According to this
provision of primary law, the international agreements in areas where the ordinary
legislative procedure applies (such as migration and asylum, in accordance with
the provisions of the article 78-79 of the TFEU) are negotiated by the Commission
in principle based on the authorization and instructions given by the Council. On
the proposal of the negotiator, is the Council who adopts the decision of
concluding the agreement, in principle by a qualified majority and after obtaining
the approval of the European Parliament. Where the agreement would take
7 Communication from the Commission to the European Parliament, the European Council and
the Council - First Report on the progress made in the implementation of the EU-Turkey Statement,
COM(2016) 231 final, European Commission, Brussels, 20.4.2016, available at:
8 CJEC, Opinion of the Court of 11 November 1975 given pursuant to Article 228 of the EEC
Treaty - Avis 1/75. ECLI:EU:C:1975:145.
Considerations on the legal nature and validity of the EU-Turkey refugee deal 95
exclusively or primarily for foreign policy and common security (what we
appreciate that it is not the case in this case), the European Parliament “shall be
informed immediately and fully throughout all stages of the proceedings”9. This
procedure has not been followed in the present case, the Statement of 18 March has
been negotiated informally by the President of the European Council, sometimes
with the direct involvement of Heads of State and Government, and not by the
Commission, and, apparently, was reached during a joint meeting of the European
Council and of the representatives of Turkey, making it the subject of a
communication by the European Council and not a decision of the Council. The
European Parliament not only that it was not called upon to approve the
understanding, but it was not at all involved.
Taking into account the lack of form and specific procedure, that there is no
provision of EU law authorizing the European Council to conclude international
agreements, while the Union treaties do not contain provisions on the procedures
for the conclusion of other international non-binding acts, you might say, at first
sight, that the Declaration of the EU-Turkey on 18 March represents a non-binding
international instrument. In this regard has been pronounced and European
authorities, the Legal Service of the European Parliament presenting at 9 May 2016,
in front of the Commission for Civil Freedoms, Justice and Home Affairs (LIBE), a
point of view on the legal nature of the EU-Turkey deal showing that the
Statement is not a binding agreement and that it “was nothing more than a press
communiqué”10. Having regard to the form and the language used (the description
of the commitments of the parties through the use of the term “will” instead of the
word “shall”, specific to the international agreements binding), it says that “it is
very difficult conclude that both the European Union and Turkey wanted to be
legally bound under international law by this declaration.” As such, the Statement
represents a simple political commitment between the two parties and all legal
changes stemming from this deal will have to follow the usual procedures, which
in some cases involve Parliament, such as visa liberalization or disbursing funds
for assisting refugees in Turkey. It is also clear that despite the lack of clarity
behind the statement, it still conforms to EU law. This opinion is not shared,
however, by a part of the EP members that since the conclusion of the agreement
had raised a number of questions about its compatibility with the Union law and
the international law, and the lack of democratic control, demanding answers from
the Council (without receive them) if it considers that the Statement is a treaty,
9 Consolidated version of the Treaty on the Functioning of the European Union, Official Journal
of the European Union, C 326/47, 26.10.2012, art. 218, para. 10.
10 Legal aspects of the EU - Turkey statement of 18 M arch 2016, European Parliament - Committee on
Civil Liberties, Justice and Home Affairs, LIBE/8/06399, 9 May 2016, available at:
-LIBE; Nikolaj Nielsen, “EU-Turkey Deal Not Binding, Says EP Legal Chief”, EU Observer, 10 May
2016, available at:
and, if not, to what extent the Turkish part was informed of its non-binding
Despite the lack of the name and form specific of the international agreements,
a number of arguments in the light of the international law and the European
Union law advocates for the qualification of the Statement of 18 March as the
international treaty. As shows in most of the works devoted to this subject (Corten
and Dony, 2016; Gatti, 2016; Spijkerboer, 2016; Favilli, 2016), the name and form of
the document is not a decisive criterion in the assessment of its legal nature.
According to the definition contained in the article 2 (1) of the Vienna Convention
of 1969 on the law of treaties, which codifies the customary law in this field, the
definition to be found in the same terms in article 2 (1) of the Vienna Convention of
1986 on the law of the treaties concluded between the States and the international
organizations or between the international organizations, international agreement
means a treaty concluded between States or international organizations in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation. From
this definition, the International Court of Justice (ICJ) said that the international
agreements may take a number of forms and be given the diversity of names, and
that any international instrument which has been agreed between the parties and
containing a list of the commitments undertaken by them creates rights and
obligations in international law. Accordingly, it has recognized the quality of the
international treaty of atypical international instruments, such as a joint
communication11, a joint declaration12 or even the minute of a meeting13.
In turn, the Court of Justice of the European Union (CJEU) stated in a relatively
recent judgment14, referring to the Avis 1/75, referred to above, that the term
“agreement” used in article 218 of the TFEU “being understood in a general sense
to indicated any undertaking entered into by entities subject to international law
which has binding force, whatever its formal designation”. Accordingly, the Court
held that the Declaration on the granting of fishing opportunities in EU waters to
fishing vessels flying the flag of the Bolivarian Republic of Venezuela represents an
agreement within the meaning of the article 218 of the TFEU. In another case15, the
Court of Justice of the European Union has been called upon to decide the
likelihood that a document, hereinafter referred to as “the guidelines” and which
do not bear any signature to be considered an international agreement. Although
he said that is not the case in question, it was stated that the decisive criterion for
11 ICJ, Land and maritime boundary between Cameroon and Nigeria, [2002] ICJ Rep 303, para. 263.
12 ICJ, Aegean Sea Continental Shelf (Greece v. Turkey), [1978] ICJ Rep 3, paras 95-98.
13 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
[1994] ICJ Rep 112, para. 23.
14 CJEU, Parliament and Commission v Council, Joined cases C-103/12 and C-165/12,
15 CJEC, France v Commission, C-233/02, ECLI:EU:C:2004:173, paras. 42-45.
Considerations on the legal nature and validity of the EU-Turkey refugee deal 97
considering such a document as an agreement the intention of the parties to give
its binding force.
It follows, therefore, that according to the international jurisdiction and the
European one, the form of a document has less importance for its qualification as
an international agreement, its aim and content is the essential criteria in relation to
which it may determine if it contains commitments with binding force. The
intention of the parties may also be determined in relation to the concrete actions
taken to achieve the objectives. From this point of view, the doctrine is quite
categorical in considering that the Statement of the EU-Turkey constitutes an
international agreement, saying that, from the content point of view, “there is little
doubt that the Statement is not a mere declaration of principles, but rather a
full-fledged regulatory scheme, spelling out specific conduct for the parties”
(Cannizzaro, 2016), or that “the Declaration does not contain simply a series of
actions that the parties intend to apply on a voluntary basis, but even binding
commitments” (Corten and Dony, 2016).
The arguments supporting such a conclusion are related, first of all, by the
terminology used in both the text of the Statement, as well as in some of the
subsequent references to this document in the practice of the European institutions.
In the text of the Statement was expressly stated that EU and Turkey “decided” to
end the irregular migration from Turkey to the EU and, in order to achieve this
goal, they “agreed” on the following additional action points. Then, it describes the
content of these action points, thereby enumerating the commitments to which the
parties have consented, specifying that they will be brought accomplished “in full
compliance with the EU law and the international law.” Furthermore, in the period
immediately following the adoption of the Statement, even the European
Commission referred to it as an “agreement”16, it also stating that, ”under the
Statement, the EU will resettle a Syrian from Turkey to the EU for every Syrian
returned to Turkey from Greek islands”17.
If, from the point of view of terminology, there are little signs of doubt that the
commitments assumed through the EU-Turkey Statement of 18 March 2016 have a
normative and prescriptive character and not one of recommendation (Corten and
Dony, 2016), an argument frequently invoked by the European institutions
(including the opinion of the legal service of the European Parliament) to deny the
binding nature of the agreement is that it does not represent anything other than a
reconfirmation of the existing commitments (arising from readmission agreements
concluded between the EU and Turkey and between Turkey and Greece) without
16 Implementing the EU-Turkey Agreement – Questions and Answers, in European Commission Press
releases, MEMO/16/1221, Brussels, 4 April 2016, available at:
17 Communication from the Commission to the European Parliament, the European Council and
the Council - First Report on the progress made in the implementation of the EU-Turkey Statement,
COM(2016) 231 final.
containing new obligations that involve changing the legal framework of the
Union. Several authors have examined these aspects (Gatti, 2016; Spijkerboer, 2016;
Favilli, 2016), noting that, in reality, part of their commitments under this
Statement represents the new obligations. Mostly, it is about the return of “all” the
irregular migrants to Turkey, the “one to one” mechanism and additional financial
commitment assumed by the Union. Thus, the mechanism of repatriation
established by the Statement requires consideration of Turkey as the first country
of asylum or a ”safe” third country under the Directive 2013/32/EU on common
procedures for granting and withdrawing international protection, assuming that
it satisfies the conditions laid down in the directive. Consequently, Greece has
modified its legislation before the return to Turkey of the first applicants for
asylum (Spijkerboer, 2016). The idea that EU-Turkey Statement of 18 March does
not require any changes to the existing legal framework is contradicted by the
proposal of the Commission on 21 March 2016 on the amendment of the Council
Decision of 22 September 2015 concerning the imposition of the provisional
measures, in respect of international protection in favor of Italy and Greece18.
Although using a “switching tactically”, this refers to the statement of 7 March
2016 (representing a mere declaration of principles) as a basis for those changes, it
is obvious that it aims at ensuring the legal framework for the “one to one”
mechanism, referred to above.
3. The Implications of the EU law and the plan of the democratic
functioning of the Union
If, on the basis of the arguments presented above, the EU-Turkey Statement of
18 March 2016 can be defined as an international agreement, it raises a number of
questions about its legality and the existing legal possibilities to act against him,
but also from the point of view of the democratic considerations.
The qualification of the agreement as a treaty not only involves the obligation
of parties to meet their commitments arising out of this, but also opens up the
possibility of a judicial examination before the Court of Justice for any possible
conflicts with the provisions of the Union treaties or with other international
agreements to which it is a party. How to obtain an advisory opinion on the part of
the Court pursuant to article 218, para. 11 of the TFEU is no longer possible
whereas understanding has already been completed, the solution remains a
posteriori control path of direct actions, pursuant to art. 263 of the TFEU, or a
preliminary reference, pursuant to art. 267 of the TFEU.
18 Proposal for a Council Decision (EU) 2016/0089 of 21 March 2016 amending Council Decision
EU 2015/1601 of 22 September 2015 establishing provisional measures in the area of international
protection for the benefit of Italy and Greece, European Commission, COM/2016/0171 final -
2016/089 (NLE), available at:
Considerations on the legal nature and validity of the EU-Turkey refugee deal 99
Promoting an action in annulment before the Court might be founded on the
breach of essential procedural rules laid down in the article 218 of the TFEU and, at
least in principle, on the violation of the norms on substantial law on the protection
of fundamental rights. Regarding this latter argument, it seems rather difficult to
report in terms of understanding and wide enough freedom seems to be granted to
the Member States for the implementation of the obligations arising from this
(Spijkerboer, 2016). Although the Court of Justice stated in its jurisprudence19 that
“an action for annulment must be available in the case of all measures adopted by
the EU institutions, irrespective of their nature or form, provided that they are
intended to have legal effects”, the possibility that the Statement of EU-Turkey to
be aborted on the path of such shares arises however as quite unlikely. None of the
“privileged claimants”, namely the European Parliament, the Council, the
Commission or the Member States, does not seem concerned to use this route, and
the period within which the action can be promoted (two months after the entry
into force of the contested act) seems to be exceeded, if we relate, for example, the
early returns of the applicants for asylum from Greece by Turkey, which took place
at the beginning of April 2016. As regards the actions for annulment brought by
natural or legal persons, although a number of three such actions have already
been introduced by the applicants for asylum in Greece in order to prevent their
return to Turkey20, bearing in mind the requirement laid down in article 263 para. 4
of the TFEU as the act in question to regard them “directly and individually”, but
also how narrowly the Court made its interpretation in its previous jurisprudence,
it is difficult that the requirement will be fulfilled in these cases. In addition, as
noted in the doctrine (Corten and Dony, 2016), even in the case of acceptance of
such requests, the result of the constant jurisprudence of the Court, with reference
to the judgment of 9 august 1994 in France v Commission, cited above, that the Court
of Luxembourg will only be able to nullify or invalidate the decision concluding an
international agreement and not the agreement itself.
However, the Court may, on the occasion of the trial of the alleged cancellation
requests above, provide clues as to how it relates to the judgement deduced
document, what could help clarify the legal nature of it. Moreover, in case of
reminded disputes, the Council was notified by the European Court to answer the
question if it has requested to state whether ‘additional action points’ referred to in
the ‘EU-Turkey Statement, 18 March 2016’ can be regarded as reflecting the
existence of an oral/unwritten agreement or of a written agreement. In the absence
of such an agreement, the European Council, the Council of the European Union
and/or the Commission are requested to send to the General Court any document
19 CJEU, Commission v Council, C-425/13, ECLI:EU:C:2015:483.
20 CJEU, Cases T-192/16 NF v. European Council, T-193/16 NG v. European Council and
T-257/16 NM v. European Council.
making it possible to determine the parties which agreed the ‘additional action
points’ referred to in the ‘EU-Turkey Statement, 18 March 2016’21.
An indirect possibility to obtain a solution of the Court is the formulation of
the national court who judges individual complaints of the persons subjected to
the measures laid down in the refund agreement and in which it was invoked by
the lack of validity of the agreement, of a preliminary reference of its validity, in
accordance with the article 267 of the TFEU.
Beyond the legal aspects of EU-Turkey agreement, which, undoubtedly do not
stop at the above stated, the most problematic issue related to this deal shall be that
of its consequences on the democratic foundations of the Union. From the point of
view of the EU rules, it appears pretty clear that the Statement of 18 March was
reached with the total disregard of the provisions of art. 218 of the TFEU, which
represents, according to the qualification given by the Court of Justice in the case
Commission v Council, cited previously, “an autonomous and constitutional
provision of constitutional scope, in that it confers specific powers on the EU
institutions” in order to have the “establishing balance between those institutions.”
The way it was adopted the agreement with Turkey clearly unbalanced
institutional balance to the detriment of European Parliament, affecting the
European governance, because the European Parliament’s involvement in the
process of concluding the international treaties „is the reflection, at EU level, of the
fundamental democratic principle that the people should participate in the exercise
of power through the intermediary of a representative assembly”22.
4. Concluding remarks
The EU-Turkey deal describes a new mode of action at the European level,
where often the alternative decision-making procedures are preferred to the
detriment of those established by the Treaties, and in which the centre of gravity is
moved towards the Member States, with the denial of the institutional pluralism
(Cannizzaro, 2016).
An undertaking by the heads of States and Governments of the international
commitments on behalf of the European Union, in a matter within the competence
of the Union, through recourse to various “legal engineering” to mask the
mandatory nature of the commitments, according to some authors with the
obvious intention to circumvent the democratic control, both European and
national level (Favilli, 2016; Corten and Dony, 2016), seems hard conciliating with
the democratic standards that the Union has assumed.
To paraphrase an author (Gatti, 2016), the EU-Turkey deal of 18 March 2016 is
“bad for refugees” and “bad for democracy”, representing a dangerous precedent
21 Information note from Legal Service of the Council of the European Union to Permanent
Representatives Committee (Part 2), 14355/16, Brussels, 11 November 2016, available at:
22 CJEU, Parliament v Council, C-658/11, ECLI:EU:C:2014:2025.
Considerations on the legal nature and validity of the EU-Turkey refugee deal 101
both in terms of standards of protection of the fundamental rights and the respect
of the democratic standards at the European level.
An additional reason for concern is the lack of reaction of the European
Parliament, whose prerogatives have been infringed by the adoption of the
Statement of 18 March and which has not bring action against it. Regardless of the
outcome of such actions, it would have at least meant to discourage the European
Council to replace the democratic debate and other delicate issues.
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