Sur le site de EU Immigration and Asylum Law and Policy / Droit et Politique de l'Immigration et de l'Asile de l'UE : Who is in charge? The external representation of the EU on dialogues on immigration and asylum with third countries
The current refugee crisis the EU is experiencing has created quite a few divisions and disagreements among EU Member States and also among EU institutions. Discord does not however seem to focus only on the substance, but it has also reached the form. In recent months, a certain confusion has arisen with regard to the responsibility to convene and lead talks with third countries aimed at finding effective responses to the challenges posed to the EU by the constant arrival of people seeking international protection.
Last October, President Juncker organized a mini-summit with Western Balkan countries in order to agree “on common operational conclusions which could be immediately implemented in order to tackle the refugee crisis along the Western Balkans route”. The summit, held on the 25th October at the level of Heads of State and Government, was attended by Albania, Serbia and the FYROM, as well as by some EU Member States (Austria, Bulgaria, Croatia, Germany, Greece, Hungary, Romania, and Slovenia). The President of the European Council, the President of the European Parliament, the current and incoming Presidencies of the Council of the EU and the UNHCR also attended the meeting, along with representatives of the European Asylum Support Office (EASO) and FRONTEX.
The Presidency of the Commission has also taken the lead on strengthening EU-Turkey cooperation to address the refugee crisis, reflected in the Action Plan primarily aimed at supporting Syrians under temporary protection in Turkey and strengthening the latter’s cooperation to prevent migration flows into the EU (see Jean-Baptiste Farcy’s comments on this blog). After the call for a reinforced dialogue following a EU-Turkey working dinner on 17th May and the informal meeting of EU Heads of State or Government on 23rd September, the draft version of the Action Plan was presented by President Juncker to President Erdoğan during a meeting they both held in Brussels, on 5th October. A visit to Turkey by First Vice-President Timmermans and the ENP & Enlargement Negotiations Commissioner Hahn was foreseen for 11th October in order to continue negotiations over the Action Plan proposed by Juncker. The final EU-Turkey Action Plan was agreed ad referenda on 15th October and activated at the meeting of 29th November between the Heads of State or Government of EU Member States and Turkey.
On 17th December, another mini-summit took place between the Turkish Prime Minister, the President of the European Commission, the President of the European Parliament and leaders of some EU Member States inclined to follow the Commission’s recommendation to resettle Syrian refugees from Turkey. The EU and Turkey will meet again in February 2016, just before the European Council of that month, in order to evaluate the implementation of the EU-Turkey Action Plan. On this occasion, the invitation to the summit will most probably come from the EU rotating presidency of the Council held by the Netherlands in the first semester of 2016.
Clarifying the scope of the external representation of the EU
The prominent role that especially President Juncker has adopted in the organisation of these forms of political dialogue on migration cooperation has led some voices to argue that the call for high-level summits is a prerogative of the President of the European Council and not of the President of the Commission. This argument on a possible encroachment of functions seems to be based on the level of representatives involved. However, the attribution of the external representation of the EU does not necessarily depend on the category of authorities invited to the gatherings, but rather on the matter to be discussed.
According to the Treaties, the responsibility for the external representation of the Union follows the traditional division between the Common Foreign and Security Policy (CFSP) and the rest of the external action of the EU. Article 17(1) of the Treaty on European Union (TEU) vests in the Commission the duty to “ensure the Union’s external representation”, with the exception of the CFSP, field which corresponds to the responsibility of the President of the European Council according to Article 15 TEU. The same provision empowers the High Representative-Vice President (HR-VP) of the Commission to conduct the external representation of the Union as far as the CFSP is concerned. The distinction between the responsibilities of the President of the European Council and the HR-VP lies, in this case, on the level of representation, as the former corresponds to the level of Heads of State and Government, while the latter would refer to a ministerial level.
Consequently, the external representation is clearly different from the internal tasks of the Presidency of the European Council, who is responsible for convening regular summits of EU Member States at the level of Heads of State or Government, as well as special meetings when the situation so requires. As already stated, the issue addressed here, however, concerns the responsibilities of convening summits on dialogue and cooperation between the EU and its Member States with third countries. The question therefore primarily lies on the subject to be addressed in the corresponding meeting with third countries. As the above-mentioned summits with Turkey and the Western Balkan countries deal with the external dimension of migration and also with development cooperation and financial assistance – policies covered by the Treaty on the Functioning of the European Union (TFEU) -, they were rightly convened by President Juncker without infringing the mandates accorded in EU primary law. Nonetheless, one cannot overlook that the Commission’s power to convene and lead gatherings with third countries’ authorities is different from the power to determine the content of the Union’s position to be defended therein. Union policies and positions are formulated at the level of the Council, with the Foreign Affairs Council entrusted to elaborate the Union’s external action on the basis of the strategic guidelines and priorities laid down by the European Council, according to Article 16(6) TEU. Consequently, external representation does not amount to policy-making.
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