Browsing by Author "Saarikoski, Atlas"

In March 2016, the EU and Turkey agreed on ending irregular migration from Turkey to the EU through the adoption of the EU-Turkey Statement. Even though the EU-Turkey Statement has been one of the key measures of implementing the EU’s external asylum and migration policy, the legal nature of the measure is far from clear. This became apparent when three asylum seekers brought an action of annulment in accordance with Article 263 to the General Court of the European Union and challenged the legality of the EU-Turkey Statement. The General Court found that the EU-Turkey Statement was not an EU measure, but a measure between the Member States and Turkey, and therefore it did not have jurisdiction to review the matter. The cases were appealed to the ECJ that rejected the appeals as inadmissible. The thesis assesses the legal nature of the EU-Turkey Statement under EU law. The research question of the thesis is whether the statement is an EU measure or a Member State measure. The thesis asks if it is possible for the Member States to make commitments with third states in the field of EU exclusive competence and to involve the EU institutions in the process, yet leaving the instrument itself out of reach of the CJEU and the Treaties. The method of the thesis is legal dogmatic research. The thesis aims to answer its research question through assessing case law of the CJEU on external competence of the Member States and on the possibilities of the Member States to confer powers to the EU institutions outside the Treaties. The thesis concludes that the adoption of the EU-Turkey Statement by the Member States was against CJEU case law especially concerning the principal of conferral and the principle of sincere cooperation. This is because significant parts of the fields where the statement is applied is under EU’s exclusive competence. CJEU case law also forbids the EU institutions to participate in Member State action that encroaches on EU’s exclusive competence. When the General Court did not consider these questions that follow from the CJEU’s interpretation of the Treaties, its orders that became final led to the creation of an inconsistent legal situation of EU law. Through the assessment of the EU-Turkey Statement, the thesis brings forward the development that has led to agreements adopted in accordance with Article 218 TFEU being replaced with informal agreements. The other conclusion of the thesis is that the bypassing of the procedural rules of the Treaties on the conclusion of agreements leads to the weakening of legal guarantees of the Treaties, especially when commitments are made similarly as in the EU-Turkey Statement. The thesis suggest that the assigning of measures that implement EU policies, and that are intended to be binding, as unofficial agreements of the Member States can lead to a development where it is increasingly difficult for the CJEU to make sure that the law is observed in the interpretation and application of the Treaties. Even though the General Court orders are final, the ECJ has not reviewed the EU-Turkey Statement in substance. It is therefore possible that the Court will still rule on the question of the EU-Turkey Statement or a similar measure. The thesis suggests that the partly incoherent state of EU law can be solved using the meta-teleological approached used by the CJEU. By recognizing the connection of a single decision to the entire system of EU law and its development, it is possible to avoid the risk of a creation of a parallel legal sphere, where EU policies are applied, but legal protection is not available.