To limit the number of refugees, the EU member states are relying on agreements with countries on the Mediterranean Sea, the agreement with Tunisia should be the blueprint. From the EU’s point of view, the Tunisian President is a strategic partner on migration issues, and probably the most important at the moment. On July 16, EU Commission President Ursula von der Leyen, Dutch Prime Minister Mark Rutte and Italy’s Prime Minister Giorgia Meloni met with Saied in Tunis to conclude a deal that is intended to establish a “comprehensive partnership package”.
“Team Europe is back in Tunis,” von der Leyen tweeted about the second visit in five weeks. The deal provides for economic aid and cooperation in areas such as air transport, trade and the energy transition. The agreement aims to stabilize the economically ailing country in the long term and thus combat the causes of flight.
However, more than 100 million euros were paid immediately so that the Tunisian authorities could put a stop to the smugglers and thus prevent irregular migration towards Europe. The repatriation of irregular migrants to their African countries of origin is also part of the agreement. The Commission says it is urging the Tunisian authorities to stop these deportations from being atrocious as they were at the Libyan border in July.
“We want to work together on border protection, fighting smugglers, returning home and fighting the causes of flight,” von der Leyen said in Tunis. “In full respect of international law.” According to the EU, the agreement with Tunisia could serve as a model for agreements with other North African countries, first with Morocco and above all with Egypt. Similar to Tunisia, the country is threatened with a devastating debt crisis. In the EU, there are therefore fears of economic upheavals that will drive even more people to flee.
However, the agreement with Tunisia should probably not have been signed in this form – for formal reasons. It may even be void because the EU Council has not previously been officially involved in it.
The excitement was correspondingly great a few days after the second trip to Tunis. In July, the permanent representatives of the EU states met for regular meetings. According to an ambassador, the actions of the Commission and the omission of official procedures are absolutely unacceptable, according to several people familiar with the processes. A dozen member states, including France and Germany, joined the criticism. The Commission should have followed the official procedures for non-binding instruments. They stipulate that the Council must approve such agreements before signing them. Because this was not done, the Commission may have exceeded its powers and violated the EU Treaty. Article 16, paragraph 6 states that the Council “shapes the Union’s external action in accordance with the strategic guidelines of the European Council”. A spokeswoman for the Council declined to comment when asked.
Tunisia’s Foreign Minister Mounir Ben Rjiba and Enlargement Commissioner Olivér Várhelyi signed the “Memorandum of Understanding” – a declaration of intent from which legally binding guidelines for the EU are yet to follow – the latter thus on behalf of the European Union. And while the Commission did keep the Council informed, member states were not formally involved in the deal before “Team Europe” flew back to Tunis. “We only found out about this trip a short time before,” says a diplomat.
You have to rewind a few years to understand why this is problematic. It was in autumn 2013 when the Commission at the time bypassed the Council in a similar way. At that time, Croatia had just become a member of the EU. And the Commission concluded an additional agreement with Switzerland, which had concluded a number of agreements with the EU over the years, for example in 2006 in the course of the first eastern enlargement with regard to financial contributions for the new EU members. When Croatia joined, Swiss money was also supposed to flow to Zagreb – and the Commission signed an agreement on this with the Swiss.
The Council then sued the Commission – and was right. The corresponding ECJ ruling (C-660/13) in July 2016 was clear: “It cannot be assumed that the Commission was authorized to represent externally within the framework of the power granted to it by Art. 17 (1)”, the guidelines state, “to sign a non-binding agreement resulting from negotiations with a third country.” The fact that the content of such an agreement “corresponds to the negotiating mandate given by the Council” is not enough to allow the Commission to sign such a non-binding legal act without the Council’s prior approval. The decision is void.
As a result of the judgment, the Commission, the Council and the EU External Action Service committed themselves to common rules. Before signing or adopting a non-binding agreement, “the negotiator must submit to the Council the draft legal act together with a supporting letter,” the relevant document from December 2017 states. This must be done at least five weeks before signature, “unless duly justified urgent cases”.
Is the agreement with Tunisia particularly urgent? What is certain is that the Commission was keen to sign it before the summer break. Meloni and Rutte, who were the key mediators at the EU summit in February so that the heads of state and government of the 27 EU states could find a common language on the subject of migration, were also in a hurry. The summit declaration from June is also clear: the European Council welcomes the negotiations with Tunisia, it says. It is important to develop comparable strategic partnerships with countries in the region.
According to the judgment and the criticism made in the Council, however, it is probably not enough. “Things can’t go on like this with Egypt,” says a diplomatic representative of a large EU country, referring to the next country the Commission is targeting. In the Council, representatives of the Commission are said to have promised improvements. Member States “were kept informed by the Commission throughout the process of the status of the MoU negotiations before they were signed,” said a spokeswoman.
Some governments of the EU member states also criticize the agreement with Tunisia in its current form on humanitarian grounds. They would have liked to link it more closely to the observance of human rights in Tunisia. They don’t want to be associated with the images of people dying in the desert. But for the majority of member countries, it is all about one thing: reducing the number of refugees.
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