From 7 March 2016, the day when a pre-agreement with Turkey was reached, to 12 April 2016, when the deal was already under implementation, the European Commission consulted with its legal services on a wide range of issues related to the legality of the EU-Turkey agreement.
These consultations resulted in a total of 11 documents – sometimes produced at late hours in the night – which were exchanged between the different actors involved in the making of the deal, accompanied with telephone conversations.
Access to that information was challenged by Access Info Europe in two cases before the General Court of the European Union, and throughout the legal dispute, namely through the final judgements, we were able to gain valuable insight into what these documents contain, and what were the EU’s main legal concerns regarding the implementation of the EU-Turkey deal.
This is what we now know about the EU Commission’s legal advice on the EU-Turkey deal.
A Legal Service and DG Home joint note of 7 March 2016 for the attention of the cabinet of Commission President Juncker.
The note focuses mainly on “on the question of the return of asylum seekers to Turkey”.
The document “essentially sets out the political objectives of the European Union in the management of the migration crisis and included a risk analysis”. It also contains “a paragraph referring cursorily to the scope of Articles 33 and 38 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60) (‘the Asylum Procedures Directive’)”
Document reference: Ares(2016) 2453347
An email of 9 March 2016 from the Legal Service to DG Home, various members of the Commission’s cabinets and the Secretariat-General, with two attachments, containing Legal Service comments in track changes.
“It is presented as setting out the ‘initial thinking [of that DG] of how to implement the points on return … and resettlement … in the statement of the EU Heads of State or Government’ and was returned to it by the Legal Service accompanied by comments clarifying certain points.”
The first attachment “describes the manner in which illegal migrants and asylum seekers whose applications have been rejected may be returned to Turkey from Greece, inter alia under Articles 33 and 38 of the Asylum Procedures Directive, and gives an overview of a set of operational arrangements for discussion and adoption by those two States.”
The second attachment “canvasses the legal options available for the implementation of the EU-Turkey statement of 8 March 2016, including use of the Voluntary humanitarian admission programme with Turkey and the possibility of amending Decision 2015/1601, along with the ensuing budgetary implications.”
Document reference: Ares(2016) 2453181
A series of emails of 10 March 2016 from the Legal Service to DG Home, the cabinet of the President and the Secretariat-General, with an attachment.
The e-mails “[relate] directly to the content of the European Union’s position in its relations with the Republic of Turkey concerning the migration crisis.”
Document reference: Ares(2016) 2443418
An email of 16 March 2016 from the Legal Service to DG Home.
The e-mail focuses “on the return of asylum seekers to Turkey.”
It is “part of an exchange of emails by which DG Home put questions to the Legal Service in order to obtain clarification as to whether ‘[the Hellenic Republic could] apply the inadmissibility procedures before carrying out the Dublin procedure’.”
Document reference: Ares(2016) 2447514
Two email exchanges of 18 and 21 March 2016 from the Legal Service to DG Home, to which the Commission nevertheless granted the applicant partial access.
The document focuses “on the question of the Greek Appeal Committees.”
In this exchange, “that DG, in preparation for a meeting to be held with the Greek authorities, sought the opinion of the Legal Service on various aspects of the Greek legislation in the light of the requirements of Article 46 of the Asylum Procedures Directive and Article 47 of the Charter of Fundamental Rights of the European Union.”
Document reference: Ares(2016) 2447359
Document 6 and Document 7
An email of 29 March 2016 from the Legal Service to DG Home, with an attachment, and two emails of 28 and 29 March 2016 from the Legal Service to DG Home.
The e-mails focus on “the readmission of asylum seekers.”
They are “part of an exchange between DG Home and the Legal Service concerning the detailed rules for the implementation of the EU-Turkey statement of 18 March 2016, in order to respond to the query from the Netherlands authorities, who at that time were in charge of the Presidency of the Council of the European Union, so as to formulate a response to the Turkish authorities on one of the detailed rules opposed by them in the frame of drawing up an explanatory memorandum between the Hellenic Republic and the Republic of Turkey, which memorandum was attached to that email exchange.”
Document 6 reference: Ares(2016) 2444871
Document 7 reference: Ares(2016) 1901172
An email of 31 March 2016 from the Legal Service to DG Home.
The document “is purported to contain Legal Service comments on sharing information with the Turkish authorities.”
It is part of an “email exchange between DG Home and the Legal Service, in which the latter is asked to assist the DG in its understanding of the specific detailed rules on how the Asylum Procedures Directive is to be implemented in certain States, in the light of their national legislation and practices, as the DG understood them to be at that time. That document constitutes detailed legal advice on those matters.”
Document reference: Ares(2016) 1901080
A series of four emails sent on 8 April 2016 from the Legal Service to the Directorate-General for Neighbourhood and Enlargement Negotiations (‘DG NEAR’), containing Legal Service comments on a letter attached to those emails.
The e-mails “[relate] to assurances concerning the treatment to be accorded by the Republic of Turkey to Syrian nationals.”
They “[contain] the observations of the Legal Service on a letter, attached to those emails, relating to the assurances provided by the Republic of Turkey concerning the treatment to be given by it to Syrian nationals.”
Document reference: Ares(2016) 2655082
An email of 11 April 2016 from the Legal Service to the cabinet of Mr Timmermans, First Vice-President of the Commission, and to DG Home and DG NEAR.
The e-mail focuses “on the question of the Greek Appeal Committees and following up on a question put by the Dutch Presidency of the EU by email of 9 April 2016.”
It “concerns solely the question whether the Greek Appeal Committees put in place by the new Greek legislation on asylum could be considered to be courts or tribunals for the purposes of Article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).”
Document reference: Ares(2016) 2655468
A series of two emails of 12 April 2016 from the Legal Service to DG.
These e-mails “[concern] essentially the Greek Appeal Committees, except for the email on the last page of that document, which refers to negotiations with the Turkish authorities.”
Document reference: Ares(2016) 2655140