{"id":27982,"date":"2017-03-18T07:45:01","date_gmt":"2017-03-18T06:45:01","guid":{"rendered":"https:\/\/www.access-info.org\/?p=27982"},"modified":"2018-11-13T10:03:40","modified_gmt":"2018-11-13T09:03:40","slug":"one-year-later-what-we-still-dont-know-about-the-eu-turkey-agreement-and-accountability","status":"publish","type":"post","link":"https:\/\/www.access-info.org\/es\/2017-03-18\/one-year-later-what-we-still-dont-know-about-the-eu-turkey-agreement-and-accountability\/","title":{"rendered":"One year later: what we (still don\u2019t) know about the EU-Turkey agreement and accountability"},"content":{"rendered":"

Madrid, 18 March 2017<\/em> – As I sat at the Access Info Europe offices on the 1st<\/sup> of March reading the latest Order of the General Court of the European Union, I could not help but shake my head every other minute in disbelief. In a case brought by an Afghan refugee<\/a> threatened with expulsion from Greece against the European Council, the Court had just proclaimed that the EU-Turkey agreement is not a measure adopted by the European Council or any EU institution for that matter, but rather by the EU Member States.<\/p>\n

\"\"

<\/p>\n

<\/p>\n

Luisa Izuzquiza,
Communications Officer<\/h4>\n

 <\/p><\/p><\/div>\n

If you, like me, have during the past year heard the media referring to an agreement between the EU and Turkey to return refugees from Greece, then you are probably either frowning, or raising your eyebrows right now (or perhaps raising a single eyebrow for our most talented readers).<\/p>\n

For Access Info, which has not only been following the EU-Turkey agreement (officially known as \u201cEU-Turkey statement<\/a>\u201d or \u201cPress Release No 144\/16\u201d) for more than a year now but also is litigating<\/a> to obtain access to the European Commission\u2019s legal analysis about this agreement, this is just another bizarre and confusing twist in the story.<\/p>\n

Yet at the same time, the 1 March ECJ Order provides a unique insight into the perverse complexity of the EU-Turkey agreement.<\/p>\n

This is a case that was initially meant to clarify the nature \u2013 and legality \u2013 of the text (what<\/em> is the decision: is it a statement or an international agreement?). Instead, the Court was forced to take a step back and look for a response to a prior, apparently unanswered question: who<\/em> took the decision.<\/p>\n

The Court’s Order highlights how the EU-Turkey agreement\u2019s severe lack of transparency is increasingly raising difficulties when it comes to holding someone accountable for it. It also brings up inevitable questions about what we actually understand by accountability, how we conceive the process of decision making, and how transparency can and should help to solve this.<\/p>\n

Indeed, the only thing that\u2019s becoming clear is how very little we really know about this deal.<\/p>\n

Anatomy of a press release: who to point the finger at\u2026<\/h2>\n

When in April 2016 a number of refugees launched court cases against the EU-Turkey statement for violation of their right to asylum, the European Council, rather than assuming responsibility, pleaded \u2018not guilty\u2019 and told the Court that the agreement was in fact between each of the EU\u2019s 28 Member States and Turkey.The four judges were then left with no option but to become avid press-release detectives, the key question being: did the participants in \u00a0the European Council meeting of the 17 and 18 March 2016 act as \u2018Members of the European Council\u2019 or as \u2018Heads of State and Government\u2019?<\/p>\n

And because no EU-Turkey deal-themed debate starts without someone finding it hard to believe that there is nothing more than a mere two-page press statement, the case started off with the court asking the European Council for the \u201cwritten agreement\u201d. What the judges learned, as Access Info was also \u00a0told shortly after the deal was reached when we checked, is that there is no \u201cwritten agreement\u201d, the EU-Turkey deal is<\/em> Press Release No 144\/16.<\/p>\n

Being left with nothing but the online and PDF versions of the 18 March statement, the Court tried to extract an answer to its question from elements in the press release such as the website section where it had been categorised in. Noting that both versions of the statement differed in this aspect, the Court stated: \u201cno conclusion can be drawn regarding the presence of those indications\u201d, and proceeded to its next level of examination: the language of the EU-Turkey statement.<\/p>\n

\u2026 or how we got to shoot the messenger<\/h2>\n

If there is something that might be able to explain how we all came to conclude \u2013 mistakenly, it seems \u2013 that this agreement was concluded by the EU is the phrasing of the 18 March statement itself: A quick word search shows constant references to the EU and the \u2018Members of the European Council\u2019, while \u2018Heads of State and Government\u2019 are not mentioned at all.<\/p>\n

But the European Council\u2019s explanation for this is simple: the EU-Turkey statement is a press release, and as such, it used \u201csimplification of the words used for the general public.\u201d<\/p>\n

During the Court process, the European Council argued that, in order to make themselves understandable, its press office had to use \u201csimplified wording, plain language and shorthand\u201d, which resulted in using the terms \u2018EU\u2019 and \u2018Members of the European Council\u2019 instead of the seemingly more complex \u2018Heads of State and Government\u2019. This, however, \u201ccannot bind the European Union in any way\u201d, the European Council told the Court.<\/p>\n

The Court accepted this line of argument, although not without criticizing the ambivalence of the language, and proceeded to \u00a0examine other documents related to the meetings held on the 17 and 18 of March, including more press material, an invitation to the meeting, and two notes.<\/p>\n

Member States for lunch, European Council for dinner<\/h2>\n

A reconstruction of the agenda of the events held on 17 and 18 March by the means of those further documents revealed that there were actually two intertwined meetings taking place.<\/p>\n

First, 17 March 2016 was dedicated to a meeting of the European Council, which the \u2018Members of the European Council<\/u>\u2019 attended.<\/p>\n

In the evening at 19:30 there was a dinner, although it\u2019s not clear if at that moment the diners were wearing their hats as Members of the European Council or as Heads of State and Government<\/p>\n

As for 18 March 2016, the documents tell us that:<\/p>\n

\u00bb<\/strong><\/span> At 9:15, the Heads of State and Government<\/u> arrived, and had (a very early) lunch at 10:00 with the Head of Government of Turkey;
\n\u00bb<\/strong><\/span> At 12:00, it was the Members of the European Council<\/u> who were scheduled to have a working lunch (as Members of the European Council) without Turkish representatives;
\n\u00bb<\/strong><\/span> And at 15:00, the Heads of State and Government<\/u> would re-enter the scene for a working session with the High Representative of the European Union and the Prime Minister of Turkey.<\/p>\n

From this timetable, the Court found that the Member State representatives were acting as \u2018Heads of State and Government\u2019, and not as \u2018Members of the European Council\u2019 during the conclusion of the agreement with Turkey on the 18 March.<\/p>\n

The questions that the Order leaves behind, asked for the sake of accountability<\/h2>\n

While the documents point to the 18 March key meeting as having been held among Heads of State and Government (even if the attendees to the meeting add up to, essentially, what the European Council consists of<\/a>: \u201cthe heads of state or government of the member states, together with its President and the President of the Commission\u201d), an essential question is whether a two and a half hour-meeting can be considered to be the entire decision-making process on the EU-Turkey agreement?<\/p>\n

How do we define who is responsible for a political decision? From conception of a decision, through the drafting process, to signature \u2013 or, in this case, the writing of a press release \u2013 what degree of involvement implies responsibility?<\/p>\n

Can the European Council or any other EU institution claim that, before, during, or after the 18 March 2016 meeting, they had no involvement at all in the decision-making process leading to the EU-Turkey agreement?<\/p>\n

If so, why does the European Commission hold 14 or more documents containing legal advice<\/a> from their Legal Services on the EU-Turkey statement?<\/p>\n

How is it possible that the paper trail<\/a> behind the EU\u2019s single most important decision in response to the refugee crisis is so scarce that it barely amounts to a number of press releases and protocol notes?<\/p>\n

Can there ever be transparency without record-keeping? Can there ever be accountability without transparency?<\/p>\n

How did the European Council, which apparently was clear from the beginning on the fact that the EU-Turkey deal was not an agreement, but a statement; that it was in no way legally-binding, but that it was undoubtedly compliant with EU and international law; and that it was agreed upon the EU Member States, not any EU institution \u2013 resoundingly failed to communicate and inform the public on these aspects?<\/p>\n

Seeing the high level of confusion, misunderstandings, and claims for greater clarity from the public in regards to the EU-Turkey statement, why is there still such a reluctance to be transparent about it, and how is that acceptable?<\/p>\n

One year after the conclusion of the agreement, the EU-Turkey deal still leaves too many important questions unanswered.<\/p>\n

As an organisation with a strategic focus on the transparency of decision-making processes<\/a>, Access Info Europe will continue its investigations in order to shine a light on how the decision on the EU-Turkey agreement was really arrived at and who has legal responsibility for its direct impacts on individual asylum seekers. To this end, are working with civil society organisations and investigative journalists, and submitting further access to documents requests.<\/p>\n

For more information, please contact:<\/h2>\n

Luisa Izuzquiza<\/strong>, Communications Officer | Access Info Europe
\nSend an e-mail<\/a> or call +34\u202f913\u202f656\u202f558

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