Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
Three similar applications for annulment against the EU-Turkey Deal were lodged with the General of the EU Court of Justice under Article 263 TFEU.
Two Pakistanis and one Afghan national asked for the annulment of the EU-Turkey Deal.
Applicants, in separate proceedings, N.F., N. G.; N.M. explain how they have run from their countries due to fear of persecution and serious harm to them.
The applicant, NF, entered Greece by boat from Turkey on 19 March 2016. On or about 11 April 2016, he submitted an application for asylum to the Greek authorities. He was then detained in a detention facility until 18 April 2016, the date on which he fled to the Island of Lesbos (Greece).
The applicant explains that he submitted his application for asylum only because of pressure put on him by the Greek authorities to submit that application. However, he claims that he never wished or had the intention to submit such an application in Greece because of the length of time for the processing of applications for asylum and systematic deficiencies in the implementation of the European Asylum System both at the level of that Member State’s administration and at the level of its judicial system. Finally, the sole purpose of the applicant’s presentation of his application for asylum in Greece was, he claims, to prevent him being returned to Turkey with, as the case may be, the risk of being detained there or being expelled to Pakistan.
NG entered Greece on a date later than 18 March 2016, having the intention of introducing an application for asylum in the Federal Republic of Germany. The applicant explains that he submitted his application for asylum in Greece under coercion, owing in particular to the existence of the ‘challenged agreement’. However, he never wished or had the intention to submit such an application in Greece. Finally, the sole purpose of the applicant’s presentation of his application for asylum in Greece was, he claims, to prevent him being returned to Turkey with, as the case may be, the risk of being detained there or being expelled to Afghanistan.
NM entered Greece on or about 10 March 2016, having the intention to reunite with members of his family, namely, his parents and two of his brothers, residing in the Federal Republic of Germany and to obtain family reunification in that Member State. The applicant explains that he reluctantly accepted having his fingerprints taken in Moria (Greece), which was necessary in the context of submitting his application for asylum in Greece. That application was rejected by the Greek authorities, he claims, in particular because he explained to them his intention to continue his journey towards Germany. However, the applicant never wished or had the intention to submit such an application in Greece because of the bad reception conditions in that Member State, particularly in terms of infrastructure, and the length of time for the processing of applications for asylum and systematic deficiencies in the implementation of the European Asylum System both at the level of that Member State’s administration and at the level of its judicial system. The sole purpose of the applicant’s presentation of his application for asylum in Greece was, he claims, to prevent him being returned to Turkey with, as the case may be, the risk of being detained there or being expelled to Pakistan.
Three asylum seekers brought actions before the General Court of the European challenging the legality of the ‘EU-Turkey Deal’ under Article 263 TFEU. They claimed that statement is an international agreement which the European Council, as an institution acting in the name of the EU, concluded with the Republic of Turkey. The General Court declared that it lacks jurisdiction to hear and determine the actions pursuant to Article 263 TFEU, and, accordingly, dismisses them.
The Court notes that it was not the EU but its Member States, as actors under international law, that conducted negotiations with Turkey, including on 18 March 2016 (as attested by several official documents produced by the European Council on 17 and 18 March 2016).
In the absence of any act of an institution of the EU, the legality of which it could review under Article 263 TFEU, the Court declares that it lacks jurisdiction to hear and determine the actions brought by the three asylum seekers. For the sake of completeness, with regard to the reference in the ‘EU-Turkey statement’ to the fact that ‘the EU and [the Republic of] Turkey agreed on ... additional action points’, the Court considers that, even supposing that an international agreement could have been informally concluded during the meeting of 18 March 2016, something which has been denied by the European Council, the Council of the European Union and the European Commission in the present cases, that agreement would have been an agreement concluded by the Heads of State or Government of the Member States of the EU and the Turkish Prime Minister. In an action brought under Article 263 TFEU, however, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by the Member States.
The action is dismissed on the ground of the Court’s lack of jurisdiction to hear and determine it.