I. INTRODUCTION
In the last years, the principle of sincere cooperationFootnote 1 has proven crucial in disciplining the action of EU Member States on the international plan. The principle requires ‘the Union and the Member States … [to] assist each other in carrying out tasks which flow from the Treaties’ and it has formed the basis of several judgments rendered by the Court of Justice of the European Union (‘Court’) on external action. In the name of the ‘unity in the international representation’Footnote 2 of the Union, the Court has asked EU Member States to refrain from taking international action capable of affecting the Union's position. This obligation of abstention has been found to apply even in case of potential and future conflicts between the international conduct of a Member State, on the one hand, and the EU acquis, on the other.Footnote 3 In other words, sincere cooperation has emerged from recent case-law as a formidable disciplining tool with respect to the Member States’ capacity to act internationally. Nonetheless, the present article argues that the effects of sincere cooperation have not been felt equally in all policy fields. In particular, the development of the external aspects of the common migration policy has been characterised by a lack of cooperation and coordination between EU and national initiatives.
External action of both the Union and the Member States in the area of migration has focussed on obtaining readmission cooperation from third countries. The latter have been asked to systematically ‘take back’ their own nationals irregularly present on a Member State's territory, as well as certain categories of third country nationals (for example, those who have transited through their territory to reach the EU). Notwithstanding their common readmission objective, the Union and its Member States have acted in an uncoordinated manner, negotiating a multitude of formal and informal readmission deals in parallel. The article claims that this practice has developed along patterns which are incompatible with the principle of sincere cooperation, as interpreted by the Court in the context of the Union's external action. This hypothesis is tested in two stages. Part II defines the principle of sincere cooperation and its workings in the context of the Union's external action, while Part III describes the different international cooperation tools related to readmission concluded by the Union and its Member States and assesses these tools in light of the principle of sincere cooperation, as previously defined. Concluding thoughts follow in Part IV.
II. SINCERE COOPERATION AND THE UNION'S EXTERNAL ACTION
Sincere cooperation is codified in Article 4(3) TEU as a two-way principle,Footnote 4 imposing obligations on both the Union and the Member States with a view to completing tasks, fulfilling obligations and achieving objectives which flow from the EU Treaties. The principle essentially requires the Union and its Member States to behave in a cooperative manner with a view to reaching pre-established common goals. As noticed, for example, by De Baere and Roes,Footnote 5 sincere cooperation is in essence an obligation to interpret and apply the Treaties in good faith. In a highly integrated legal system such as that of the Union, good faith application of the Treaty framework entails the respect of significant obligations. To say it with AG Mazák, ‘an enhanced obligation of good faith … [is] incumbent upon Member States of the European Union as regards their relations with one another and with the institutions of the European Union as a result of their membership of the EU’ (emphasis added).Footnote 6 This is hardly surprising. The EU is conceived as an organisation of indefinite duration, with a set of institutions and extensive competences that were voluntarily transferred upon it by its Member States to reach complex common goals. Good faith interpretation of Treaty rules in a system of this kind necessarily implies the setting aside of immediate national interest considerations in favour the long-term common interests that the EU has been built to protect. In other words, it necessarily implies the type of ongoing commitment to a common cause that Eckes refers to as loyalty.Footnote 7
Against this background, sincere cooperation has the essential function of ensuring the long-term viability of the EU system, by keeping its main actors on board and forcing them to take the common interest into consideration at all times. Unsurprisingly, sincere cooperation constitutes the rationale of a series of key derivative principles governing the relation between national and supranational legal orders, including primacy, equivalence and effectiveness of national remedies, as well as the requirement to give full effect to EU norms.Footnote 8 Sincere cooperation also serves as an ‘inspiration’ for many Treaty articles, such as Article 267 TFEU setting out the preliminary ruling procedure and Article 344 TFEU on the prohibition for Member States to submit disputes on EU law to other fora.Footnote 9 With respect to the relation between EU and national legal systems, those emanations of sincere cooperation give rise to a number of enforceable duties of action and abstention, often revolving around the role of national judges as EU judges.Footnote 10 Naturally, in the realm of external relations, disloyal behaviour by a Member State cannot simply be prevented through judicial cooperation mechanisms, nor can its consequences be erased through such mechanisms. Each of the Union's Member States maintains an individual international presence and can enter into international commitments with third parties which do not belong to the EU legal system and are not bound by any form of loyalty to its institutions and objectives. In this context, the consequences of disloyal behaviour by a Member State cannot simply be erased through judicial cooperation mechanisms. For this reason, the Court has drawn particularly far-reaching consequences from sincere cooperation in the domain of external action: when it comes to the international realm, conflicts between different sets of commitments are more easily prevented ex ante than resolved ex post. The unity of the Union's international representation can be sufficiently guaranteed if Member States abstain from acting whenever the opposite would affect the Union's position—or its possible evolution—albeit only potentially. The sincere cooperation-based obligation to avoid clipping the wings of the Union's international action cuts across all policy fields and it is so pervasive that it can at times limit the Member States’ leeway even in areas of retained national competence.Footnote 11 However, in different factual and legal configurations, sincere cooperation gives right to different sets of positive and negative obligations.
In certain cases, sincere cooperation allows the Court to determine that an external competence of the Union is or has become exclusive in nature, forbidding Member States' action in all instances, with the only exception of national action which has been previously authorised by the competent EU institution(s).Footnote 12 For example, to prevent Member States from jeopardising the effectiveness of EU rulesFootnote 13 and their foreseeable development through international action, sincere cooperation allows the EU to claim exclusivity when an international agreement would affect common rules or alter their scope,Footnote 14 as expressly provided for in Article 3(2) TFEU. This type of exclusivity does not depend on the existence of any potential conflict between internal EU rules and envisaged international agreement. In particular, even in the absence of any such conflict, the Union is exclusively competent to act internationally in areas which, internally, are ‘largely covered’ by EU law.Footnote 15 In addition, shared competences of the Union can become exclusive directly through their external exercise, following a mechanism analogous to internal pre-emption.Footnote 16 This is an obvious consequence of sincere cooperation: once the Union has entered into a set of commitments with a specific third country, those can be neither altered nor prevented from evolving over time by Member States’ international action. Thus the competence to act internationally in relation to the area and third country covered by such commitments cannot but rest exclusively with the Union.
When a claim of exclusivity over an entire area of competence is not needed to preserve the EU legal system from disloyal international action, sincere cooperation still determines to what extent their external competences can be exercised by the Member States in any given case. In this respect, the need for Member States’ international action to avoid compromising the effectiveness of EU law and the unity of the Union's external representation can have very far-reaching consequences. Coordinated action and information exchanges are crucial in areas of shared competence.Footnote 17 Yet, sincere cooperation can sometimes bear heavier implications, translating into a straightforward duty of abstention incumbent upon Member States. For example, the adoption by the Council of a decision authorising the Commission to negotiate an international agreement in an area of shared competence deprives Member States of the possibility to unilaterally pursue parallel negotiations.Footnote 18 This duty of abstention on the part of the Member States can only be lifted on a case by case basis after consultation between national and supranational level.Footnote 19 These consultations must be continuous, and concern the whole treaty-making process, from negotiation to implementation, as confirmed, for example, by the reasoning developed by the Court in Commission v Germany:Footnote 20
[A]lthough the consultations between the German Government and the Commission did in fact take place at the time of the negotiation and signature of the agreements … that is to say, before the adoption of the Council Decision of 7 December 1992, it is common ground that after that date the Federal Republic of Germany proceeded to ratify and implement those agreements without cooperating or consulting with the Commission. By acting in that manner, that Member State jeopardised the implementation of the Council Decision of 7 December 1992 and, consequently, the accomplishment of the Community's task and the attainment of the objectives of the Treaty.Footnote 21
It should be added that not only the adoption of a common position,Footnote 22 but also the existence of concerted strategy concerning the conduct to adopt in an international forum (even if this strategy coincides with the decision not to make a proposal) prevents Member States from unilaterally deviating from it. Doing so might have consequences for the Union and would, in any event, compromise the unity of its external representation.Footnote 23
Importantly, the obligations deriving from sincere cooperation are incumbent not only upon each Member State individually, but also upon all of them collectively. As explicitly noticed by the Court in the ERTA case, collective action by Member States is certainly prohibited in areas of exclusive external competences. ‘[E]ach time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules’ (emphasis added).Footnote 24 It is submitted that the Member States’ duty to cooperate closely with the Union would also be contradicted, in areas of shared external competence, by collective action by all Member States capable of bypassing the EU's legal framework. This seems to be confirmed by an early Court ruling related to the EURATOM TreatyFootnote 25 according to which: ‘unilateral action by the Member States …, even if it were collective and concerted action, would have the effect of calling in question certain of the essential functions of the Community and in addition of affecting detrimentally its independent action in external relations’.Footnote 26 This notwithstanding, sincere cooperation does not prevent Member States, at certain conditions, from engaging in external action individually or ‘in smaller group’ in areas of shared competence, as confirmed by the formulation of Article 20 TEU on enhanced cooperation.Footnote 27 Member States are equally allowed to take collective action outside the Treaty framework in areas where the Union has neither shared nor exclusive competence: arguably, the Court validated collective Member States’ action in the Pringle case precisely because the Union would have had no competence upon which to ground the establishment of a stability mechanism analogous to that built collectively by the Member States.Footnote 28
Finally, one should not forget that the identified far-reaching implications of sincere cooperation in shared competence domains rest on the premise that international action by the Member States might compromise the achievement of the Union's objectives. Coherently, pre-emption of Member States’ action through the exercise of EU competences is explicitly ruled out by the Treaties when the parallel pursuit of national and supranational action on the international stage would not run counter a sincere cooperation logic,Footnote 29 such as in the sphere of development cooperation and humanitarian aid.Footnote 30
This overview shows that the sincere cooperation logic is supposed to inform any international initiative of the Union and its Member States, which are always required to bear in mind their commitment to the supranational legal system. The next section shows that this premise is belied by national and EU conduct in the field of readmission.
III. THE EU READMISSION POLICY: UNPRINCIPLED AND UNCOOPERATIVE?
A. The Evolution of the EU Readmission Policy
Since the Treaty of AmsterdamFootnote 31 and its conferral to the EU of competences on migration and asylum,Footnote 32 cooperation with third countries on readmission has occupied a prominent place in the Union's migration management strategy.
Initially, the Union centred its readmission policy on the conclusion of standardised international treaties, called readmission agreements, enshrining an obligation to readmit own nationals (and, at times, also third country nationals) irregularly present in the EU's territory.Footnote 33 Nonetheless, the unbalanced nature of readmission cooperation, entirely geared towards the Union's interests, slowed down the progress of this type of negotiations: the Commission recognised early on that ‘readmission agreements work mainly in the interest of the Community, [thus] third-countries are naturally very reluctant to accept such agreements’.Footnote 34
Whilst negotiations struggled to proceed, the political salience of irregular migration management kept increasing, especially as a result of the so-called migration crisis of 2015. As the calls for effective cooperation with third countries on readmission multiplied, the EU started looking for strategies to obviate the impasse. Albeit not completely abandoned, as shown by the recent negotiations of an EU-UK readmission agreement,Footnote 35 formal treaties have become increasingly marginal in the face of the progressive diversification of the tools used to obtain third countries’ cooperation on readmission.Footnote 36
In 2007, well before the migration crisis, non-binding cooperation tools called Mobility Partnerships were introduced by the Commission and presented as the standard framework to encase migration cooperation with third countries from that moment on.Footnote 37 Such instruments bore a double advantage. First, Mobility Partnerships are asymmetrical tools, concluded between a third country, on the one hand, and the EU together with some (but not all) of its Member States, on the other. By involving some Member States in the relevant negotiating process, Mobility Partnerships are capable of bringing to the table incentives related to legal migration for the purpose of employment, which remains largely within the national remit. In fact, according to Article 79(5) TFEU, Member States retain the right ‘to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed’. Secondly, because of their non-binding nature, Mobility Partnerships are comparatively easier to conclude than formal international agreements, while still retaining the capacity to produce concrete results, by means of bilateral projects listed in their annexes and backed by Union's funds.Footnote 38
Notwithstanding these advantages, Mobility Partnerships were initially not intended to substitute traditional readmission agreements, but rather to prepare the ground for their successful negotiation.Footnote 39 The opposite holds true for non-binding cooperation deals in the area of readmission concluded since 2016, when the EU-Turkey StatementFootnote 40—and its (real or perceived) effectiveness in curbing migration flows from Turkey to Greece in the midst of the migration crisisFootnote 41—opened the gate for informal instruments meant to be concluded instead of readmission agreements.Footnote 42 These instruments, such as the EU-Afghanistan Joint Way Forward on Migration Issues,Footnote 43 the EU-Bangladesh Standard Operating Procedures,Footnote 44 and the EU-Ethiopia Admission Procedures,Footnote 45 do not differ in content from formal readmission agreements.Footnote 46 However, having been presented as non-binding by their signatories, they could be concluded more quickly and less transparently than their formal counterparts, escaping a series of primary law requirements related to negotiating procedures and reviewability.Footnote 47
While the Union was starting to adopt the above experimentalist approach to readmission, cooperating with third countries on irregular migration remained a priority also at the national level, leading to the parallel conclusion of bilateral deals and agreements between individual EU Member States and third countries. For example, the UK concluded, among others, a formal readmission agreement with Algeria in 2006Footnote 48 and informal deals related to readmission with Ethiopia in 2008,Footnote 49 as well as Morocco in 2011.Footnote 50 In other words, readmission agreements and arrangements have proliferated at two different levels: national and supranational. These two plans have not only acted in parallel in the field, but also backed each other's’ initiatives: some of the bilateral deals concluded by EU Member States, such as the Memorandum of Understanding between Italy and Libya,Footnote 51 have been actively supported by the Union, notably through funding.Footnote 52
Interestingly, national and supranational efforts have hardly led to an increase in the effectiveness of readmission cooperation: return rates have remained relatively stable notwithstanding the multiplication of cooperation tools.Footnote 53 Still, the web of bilateral and multilateral agreements on readmission has kept expanding within the legal space of the EU.
This proliferation has been characterised by: (1) parallel national and EU external action; (2) an apparent lack of coordination between the two levels of actions; and (3) the coexistence of formal and informal cooperation tools. The next pages delve into the compatibility of these features with the principle of sincere cooperation between EU and its Member States on the international stage.
B. Parallel EU and Member States Action
The 2009 reform of the EU Treaties expressly framed the Union's (now explicit) readmission competence as concurrent.Footnote 54 The Union's readmission competence belongs to Title V TFEU, dedicated to the Area of Freedom Security and Justice (‘AFSJ’), which is mentioned in Article 4(2)(j) TFEU as a shared competence field. This notwithstanding, the determination of the nature of the Union's competence to act internationally in the field of readmission requires an analysis going beyond the letter of this provision. Precisely by virtue of the principle of sincere cooperation, external exclusivity can arise also by exercise of originally non-exclusive competences, according to Article 3(2) TFEU.Footnote 55 As mentioned above, a shared competence can become exclusive by exercise either when national external action would fall within an area largely covered by EU law internally or when it has been pre-empted directly through the exercise of the Union's external competence. In both cases, the finding of exclusivity does not depend on the existence of an incompatibility or conflict between the envisaged Member State's initiative and EU internal or external measures. Even national action that is perfectly compatible with the existent EU acquis would be proscribed in the two instances mentioned above, essentially because EU legislation and its international cooperation framework must be allowed to evolve.
With this in mind and with respect to the field of readmission, part of the literature has suggested that the 2008 Return DirectiveFootnote 56 was intended as a first step towards total harmonisation of return procedures, which in turn would trigger exclusivity in the field of readmission based on the ‘area largely covered’ test.Footnote 57 For the moment, total harmonisation in the field of return remains an aspiration,Footnote 58 although the drive towards it is clearly visible in the text of the recast Return Directive, proposed in 2018 and containing extremely detailed procedural standards.Footnote 59 Moreover, even if further harmonisation was achieved, it is far from certain that harmonisation in the area of return would imply that the area of readmission is largely covered by EU law, triggering exclusivity of external action. The Court's definition of an ‘area’ relevant to determine exclusivity is not clear-cut, but it revolves around the ‘safeguard[ing of] a coherent scheme of Union regulatory activity’.Footnote 60 On the one hand, the Return DirectiveFootnote 61 occupies the area of procedural law linked to the determination that a migrant has no right to remain in the territory of a Member States. On the other hand, readmission agreements govern relationships between States, ie between a Member State willing to return third country nationals and a third country willing to admit them on their territory. The readmission procedure (dealing with exchanges of documents, proofs of nationality, time-limits to request readmission, and conditions to readmit non-nationals) either runs parallel the return procedure or follows it. The two do not overlap, precisely because they organise two divergent set of relations (Member State-third country for readmission agreements, and Member State-third country national for return legislation).Footnote 62 Provisions on immediate readmission of migrants intercepted at entry points and coming directly from third countries might certainly adversely affect non-refoulement obligations and other fundamental rights of migrants. However, they arguably do not fall in a field covered to a large extent by EU return legislation at its current stage. In fact, apprehension of irregular migrants at the borders is explicitly left out of the (already limited) harmonising reach of the current Return Directive, whose Article 2(2) reads:
Member States may decide not to apply this Directive to third-country nationals who: (a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.
To summarise, independently of the level of harmonisation reached, it is not obvious that internal legislation in the field of return could ever largely cover the area of readmission, which is intrinsically external and not suitable for internal regulation. This notwithstanding, individual readmission agreements establishing particularly extensive forms of cooperation might be capable of affecting specific EU rules and, if so, they might be classified as falling exclusively within the Union's competence, upon a specific examination of their content. It is nonetheless submitted that this conclusion will always need to be drawn on a case-by-case basis.
With respect to the possibility that the Union might have acquired exclusivity directly through exercise of its originally shared competence in the field of readmission, the conclusion to reach is essentially dependent on the third party to the envisaged readmission agreement at stake. If the third country involved in an envisaged readmission agreement is one with which the EU has already concluded a similar agreement, then Member States are certainly prohibited from launching or pursuing the relevant negotiations.Footnote 63 As mentioned, this conclusion is independent on the compatibility of the envisaged national agreement with the pre-existent EU agreement, precisely because the logic of sincere cooperation implies the adoption of a long-term perspective which encompasses the need to allow the current EU legal framework to evolve. Concluding readmission agreements with a third country who is already a party to a similar agreement with the EU would run counter this perspective, to the extent that Member States would have the possibility to alter or ‘freeze’ unilaterally what has been agreed upon collectively in accordance with the procedures identified in the Treaties.Footnote 64 This conclusion is quite uncontroversial in theory and the Council itself has reached it early on, by recognising that ‘a Member State can continue to conclude readmission agreements with third States provided that the Community has not concluded an agreement with the third State concerned or has not concluded a mandate for negotiating such an agreement’.Footnote 65 However, it is not possible to affirm that it is consistently respected in the policy area examined by the present contribution.
First, if considered as a Member States’ deal,Footnote 66 the EU-Turkey Statement would constitute an example of collective violation of sincere cooperation. The Statement includes specific readmission commitments, expressed by the opening announcement that ‘[a]ll new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey’. The commitments expressed in the Statement not only expand those included in Arts 3 and 4 of the pre-existing EU-Turkey Readmission Agreement.Footnote 67 They go so far as to alter the temporal scope of Article 4 of the EU-Turkey Readmission Agreement, concerning the obligation to readmit third country nationals as defined in Article 24(3) of the same Agreement and originally planned to enter into force only in 2017. It is only ex post, with a view to bringing EU law in line with the Statement, that the Joint Readmission Committee decided to move forward the date of entry into force of the obligation to readmit third country nationals enshrined in the EU-Turkey Readmission Agreement.Footnote 68 These elements of the EU-Turkey Statement clearly step within the terrain of the EU's readmission competence, which has become exclusive with respect to Turkey by virtue of the conclusion of a readmission agreement in 2014. This incursion by the Member States into a domain of exclusive EU competence cannot be considered as having been implicitly authorised by the Union by virtue of the involvement of the President of the European Council and of the Commission in the negotiation process of the EU-Turkey Statement. In fact, this type of authorisation would have required a delegation of powerFootnote 69 that could have been legitimately carried out only by the authorities competent to conclude the relevant international agreement on behalf of the Union. In the case of an agreement on readmission with Turkey, these authorities would have been the Council and possibly—given its role under Article 218 TFEU—the European Parliament.
Secondly, at the bilateral level, agreements and arrangements related to readmission proliferate to a point that it is hard to monitor them and their relation to EU readmission agreements.Footnote 70 To complicate the situation, readmission agreements often make provision for the conclusion of bilateral implementing protocols between the Member States and the relevant third country.Footnote 71 Thus, an assessment concerning sincere cooperation would need to distinguish between implementing tools, which are authorised by the Union, and unrelated bilateral readmission arrangements, which were not. Nonetheless, this distinction is far from straightforward in practice, as implementation of EU readmission agreements can occur through different types of instruments.Footnote 72 The resulting thick web of arrangements and agreement on readmission stipulated at the national level, partly to implement EU deals and partly to conduct national policies, blurs any sincere cooperation assessment.
In short, even if the rules surrounding exclusivity by exercise and the consequent duties of abstention befalling the Member States are relatively straightforward, their application in a domain dominated by informal and varied practices and by a notable lack of coordination between the national and supranational levels of action remains problematic. The relationship between supranational and national readmission agreements is further complicated by the practice to include so-called non-affectation clauses in EU-level readmission agreements. These clauses read: ‘[n]othing in this Agreement shall prevent the return of a person under other formal or informal arrangements’Footnote 73 and appear to allow for the continued application of pre-existing bilateral arrangements and agreements between Member States and the relevant third country.Footnote 74
C. Close Cooperation in the Field of Readmission
As discussed above, the determination that readmission is a shared area of competence is not a sufficiently solid basis upon which to draw conclusions on the leeway left for international action by the Member States in the field. A duty on the Member States to abstain from negotiating with a specific third country can also result directly from the application of the principle of sincere cooperation to areas of non-exclusive Union competence.
In the field at stake, sincere cooperation entails an obligation for the Member States to abstain from negotiating with a third country, once the Commission has received a mandate to negotiate a readmission agreement with that country from the Council.Footnote 75 This has been confirmed by the Member States themselves as early as in 1999.Footnote 76 Obligations of close cooperation arise even earlier, whenever the Commission submits a recommendation to the Council directed at obtaining a negotiation mandate. These obligations can be very far-fetched and translate, in certain cases, in an outright prohibition for the Member States to adopt a specific external conduct. In fact, according to the Court, the Commission's recommendation constitutes the point of departure of the Union's concerted action, imposing on the Member States ‘special duties of action and abstention’.Footnote 77
In conclusion, Member States, must be considered as having lost their competence to act autonomously, without coordinating closely at the level of the Union, at least when it comes to bilateral relations with countries that are in the process of negotiating a readmission agreement with the Union. In addition, they are under an obligation to cooperate closely with the Commission—an obligation which might itself lead to a duty of abstention—as soon as the Commission addresses a recommendation to the Council concerning the opening of negotiations. Finally, in my view, it would be contrary to sincere cooperation for Member States to act collectively on the international stage in an area of shared competences such as readmission, as doing so would amount to circumventing the Treaty framework.Footnote 78
The above rules of conduct are not easily monitored as to their application. The network of agreements surrounding readmission would require stronger oversight and notification procedures to ensure effective coordination, allowing both the Union and the Member States to be informed in real time of the intention to start negotiating on readmission with a particular country, as well as of the development of the negotiations.Footnote 79 In the absence of any such mechanism, parallel negotiations at the national and supranational level have kept unfolding. This practice is contrary to the sincere cooperation logic which underpins the pre-emptive effects attached by Article 2(2) TFEU to the exercise of shared competences by the Union.
Examples of dubious conduct abound: the EU was granted a mandate to negotiate a readmission agreement with Tunisia in 2000, but France continued to pursue readmission negotiation with that third country and managed to conclude a bilateral readmission agreement in 2009.Footnote 80 Similarly, notwithstanding the granting to the Commission of the mandate to negotiate a readmission agreement with Algeria in 2002, Italy proceeded to ratify its readmission agreement with this third country, which entered into force in 2006.Footnote 81
It has been argued that the possibility for third countries to engage in forum shopping as a consequence of this practice has weakened the Union's negotiating position, reducing its chance to produce any added value in the negotiation with ‘difficult’ partners.Footnote 82 A closer look at the current web of agreements and arrangements on readmission shows that the countries for which parallel negotiations have occurred to a largest scale (eg Morocco, Tunisia, or Algeria) are also the countries with respect to which readmission negotiations at the EU level have been less successful. This can be read as confirming that the possibility of forum shopping has decreased the willingness of third countries to cooperate with the Union. Conversely, it can be seen as a sign that parallel negotiations occur especially when the Union's efforts to obtain readmission cooperation prove ineffective. In any event, the drafters of the EU Treaties seem to have considered parallel national negotiations as at least potentially harmful to the added value of the common readmission policy. If they had concluded otherwise, they would have framed the relevant competence as parallel rather than shared, much like they did for development cooperation and humanitarian aid. In this respect, it is worth remembering that the Union has obtained a competence to negotiate on readmission precisely because of its potential as a stronger negotiator vis-à-vis difficult third countries.Footnote 83 Thus, parallel negotiations at the bilateral level not only run counter the logic of sincere cooperation. By decreasing the added value of EU intervention, they also undermine the subsidiarity logic underpinning the very conferral of competence to the supranational level in this area.
D. Sincere Cooperation and Informalisation in the Field of Readmission
As described above, the multiplication of the tools and levels of action in the field of readmission has gone hand in hand with an increased reliance on purportedly non-binding deals to obtain third countries’ cooperation. This tendency towards informalisation raises the question of the interplay between soft external deals and sincere cooperation. The latter certainly applies to EU's and Member States’ action no matter its binding or non-binding character.Footnote 84 Nonetheless, because sincere cooperation entails different consequences when applied to different situations, its application to soft deals and to formal readmission agreements, respectively, might lead to divergent outcomes.
Article 3(2) TFEU lists a series of cases, including the affectation of internal rules discussed above, which grant the Union ‘exclusive competence for the conclusion of an international agreement’. If interpreted narrowly, this provision would imply that exclusivity of a Union's competence does not, in principle, preclude the adoption by Member States of non-binding international commitments in the same area. Nonetheless, this does not seem to be easily reconciled with the rationale behind exclusivity by exercise, ie sincere cooperation and the related need to protect the unity of the Union's international representation. The need to interpret the wording ‘international agreements’ extensively is confirmed by the case law on the adoption of positions in the context of international conventions or organisation, which are covered by this type of exclusivity even if they do not constitute international agreements.Footnote 85
Be this as it may, it is in any case clear that Member States can be prevented from adopting specific non-binding instruments through a direct application of sincere cooperation. As the intensity of the requirements deriving from sincere cooperation depends on the specificities of each situation, including the nature of the competence that is exercised in the relevant context, such a nature ends up having consequences upon non-binding instruments as well. Undoubtedly, as soon as the Union has acquired exclusive competence in a specific field, Member States must refrain from pronouncing non-binding declarations on the international stage or concluding soft deals that contradict the Union's position.Footnote 86 Moreover, even in the absence of any claim to EU exclusivity, sincere cooperation entails a duty to refrain from acting, including through non-binding measures, when doing so would likely have an impact on the EU's acquis and/or on the unity of the Union's external representation. The Court's judgment in PFOS perfectly illustrates this dynamic. Sweden was found in breach of the principle of sincere cooperation for having tabled a proposal within the context of a multilateral convention. Key elements to establish that there had been a breach were the fact that the proposal, if adopted, would have led to consequences for the EUFootnote 87 and, in any event, that its simple tabling compromised ‘the principle of unity in the international representation of the Union and its Member States and weaken[ed] their negotiating power with regard to the other parties to the Convention concerned’.Footnote 88 The Court's reasoning implies that non-binding instruments are capable of triggering duties of close cooperation between national and supranational level. Such duties might go as far as preventing autonomous Member States’ action tout court, to the extent that the EU soft measures in question are recognisable as expression of a strategy.Footnote 89 These considerations can be transposed to the field of readmission.
First, if a third state has already concluded a readmission agreement with the Union, sincere cooperation entails a duty of coordination with respect to envisaged non-binding deals, most likely resulting in an obligation on Member States to refrain from adopting soft readmission commitments. In this respect, the EU-Turkey Statement would be problematic, if characterised as a non-bindingFootnote 90 Member States’ deal, considering that it is undoubtedly capable of producing consequences on EU law (in particular, on the EU-Turkey Readmission Agreement, but also the EU asylum acquis).Footnote 91 One could argue that the involvement of the President of the European Council and of the Commission in the relevant negotiationsFootnote 92 epitomises the idea of coordination and of respect for the logic of sincere cooperation along the vertical axis. However, that argument would run against problems of sincere cooperation along the horizontal axis that go beyond the scope of the present contribution, because the European Council and the Commission would be arrogating to themselves policy-making prerogatives of the Council and European Parliament, who should have been the interlocutors of the Member States in such a context.
Secondly, sincere cooperation entails duties of coordination between Union and Member States with respect to the conduct of further readmission negotiations with those third countries having already concluded soft readmission deals with the Union. In other words, the conclusion of soft deals (by the Union alone or together with some Member States, as is the case for Mobility Partnerships) can be read as signalling the start of a concerted strategy with respect to the third country partner, triggering duties of coordination between national and supranational level on the EU side. This does not mean that Member States are in all instances precluded from concluding readmission agreements or arrangements with third countries with which the EU has already established a soft cooperation framework. Yet, it does mean that they are precluded from doing so whenever acting otherwise would compromise the unity of external representation of the Union. For example, since the 2011 Global Approach on Migration and Mobility, Mobility Partnerships are specifically framed as ice breakers, paving the way for parallel readmission and visa liberalisation negotiations between the EU and the relevant third country.Footnote 93 Thus, in case of a Mobility Partnership explicitly preparing the ground for an EU-wide readmission agreement, Member States should arguably refrain from engaging in subsequent bilateral readmission negotiations. Their disregard for this prohibition might lead to venue shopping on the part of the third country concerned and undermine its incentives to engage fully in the negotiations with the Union. Furthermore, the practice of parallel EU and bilateral negotiations with third countries has also been accused of leading to a race to the bottom in fundamental rights standards for third country nationals, as third countries are more likely, ceteris paribus, to engage with the counterparty that requires the least commitments in this sense, encouraging every actor involved to lower their standards in order to increase its chances of successful negotiation.Footnote 94 In light of the above, it is possible to conclude that even non-binding instruments, such as Joint Declarations or Mobility Partnerships, are capable of entailing hard consequences with respect to the exercise of external competences along the vertical axis. Consequently, in coherence with the principle of sincere cooperation, the leeway to conclude bilateral agreements or arrangements on readmission cooperation should be further reduced every time the Union sets up platforms of cooperation with a specific third country. Nonetheless, the practice bears little sign of these—arguably desirable—cooperation dynamics. In fact, the conclusion of Mobility Partnerships has not prevented the pursuance of parallel bilateral negotiations by interested states.Footnote 95
Finally, based on the Court's reasoning in PFOS, one might argue that the choice of the EU not to launch readmission negotiation with a specific third country by virtue, for example, of its poor fundamental rights records could be considered as a concerted strategy. If this was the case, Member States would have to abstain from pursuing bilateral negotiations with the same third country. Unfortunately, this argument remains quite theoretical, as the Union has so far explicitly encouraged—and even backed through EU funds—bilateral cooperation on readmission with third countries where well documented and systemic fundamental rights violations occur.Footnote 96
IV. CONCLUDING THOUGHTS
The observations developed in the previous sections might lead to the conclusion that the system set up by the EU Treaties, as interpreted through the lens of sincere cooperation, is inevitably geared towards more centralisation. Sincere cooperation along the vertical axis seems to emerge from the case law as a centripetal force, increasing the space for EU action while, at the same time, tying the hands of the Member States.Footnote 97 Especially in the field of external action, its application often leads to the conclusion that the national level should refrain from acting, preserving not only existent EU norms, but also leeway for their further development.Footnote 98 Still, this apparent bias is counterbalanced by the need to apply it in synergy with a complementary principle governing the exercise of the Union's non-exclusive competence along the vertical axis: subsidiarity.
A first manifestation of this synergy emerges when we consider that sincere cooperation binds not only the Member States, but also the Union, which is itself called to ‘assist [the Member States] in carrying out the tasks which flow from the Treaties’.Footnote 99 When applied to the Union, sincere cooperation points, inter alia, to a good faith application of the principle of subsidiarity and, in particular, of the presumption the latter introduces in favour of national action in areas of non-exclusive competence. Counterintuitively, in the area of readmission, the frequent acknowledgment by EU institutions of the lack of added value of Union action in many instances has in practice led to a multiplication, rather than a limitation, of EU-level instruments.
Secondly, subsidiarity translates first and foremost into an obligation to give reasons as to the added value of EU action.Footnote 100 It is precisely the existence of such reasons that justifies the triggering of the sincere cooperation obligations incumbent on the Member States according to Article 4(3) TEU. Member States are required to cooperate in good faith in order to ‘fulfil … the obligations arising out of the Treaties’ and to avoid ‘jeopardis[ing] the attainment of the Union's objectives’Footnote 101 (one might add: as defined in the Treaties). In other words, sincere cooperation is only justified with reference to a common framework with pre-defined goals (in my view, it is in this sense that sincere cooperation as EU loyalty can be considered ‘rational and justifiable’, as described by Eckes).Footnote 102 Hence, to be able to trigger it, the supra-national level has to show that its intervention is capable of advancing these goals more efficiently than the national level.Footnote 103 The need to justify EU action is particularly pressing in the sphere of external relations, precisely because of the breadth of the consequences that sincere cooperation can have on the Member States capacity to act autonomously in the international stage.Footnote 104 Against this framework, respect for the subsidiarity logic constitutes the necessary platform upon which sincere cooperation obligations weighing on the Member States can stand. If EU-level negotiations have been identified as the most effective way to achieve the objective of obtaining readmission cooperation from a specific third country, in light of subsidiarity, then it follows logically that Member States should refrain from undertaking parallel and uncoordinated bilateral negotiations, as required by sincere cooperation. By breaching this sincere cooperation obligation, Member States would also be hindering the realisation of the added value whose materialisation subsidiarity preserves. In this respect, the practice of parallel negotiations on readmission is problematic according to both the subsidiarity and sincere cooperation paradigm. To say it otherwise, either EU action has added value, which the Member States should refrain from jeopardising, or it does not. In this second case, it should simply not be taken.
Finally, determining the added value of a Union's intervention in the field of readmission requires a global evaluation of the situation of cooperation existing at the given time between the relevant third country and the different EU Member States. EU added value cannot be excluded only when all Member States have concluded a readmission agreement or arrangement with a specific third country. A correct application of the subsidiarity test requires a holistic assessment, which takes into account migration routes and historical patterns of cooperation between the relevant third country and the different Member States. In this respect, more regular information exchanges between EU and Member States on the web of readmission instruments that has been developing in the EU legal space are not only required by the principle of sincere cooperation, but also needed to conduct a satisfactory subsidiarity assessment.
To summarise, sincere cooperation is not necessarily a ‘gravitational force’Footnote 105 leading to an inevitable increase in the EU external powers. Its application requires, first and foremost, a good faith subsidiarity assessment, that should be translated in a solid—and explicit—justification for EU action. Once EU institutions have expressed their own loyalty to the EU legal system, by providing such a justification, Member States can coherently be required to comply with their share of sincere cooperation obligations. The latter entails ensuring a high level of coordination with the Union and refraining from jeopardising its interests, as well as its ability to maintain a coherent international presence. Both aspects are hardly reflected in the practice of the Union's experimentalist governance in the field of readmission, where tools of different natures multiply at different levels of action without much coordination and systemic reflection. This is arguably detrimental to the Union's negotiating outcomes and certainly harmful for the logic underpinning shared external competences.
The perceived urgency attached to readmission cooperation with third countries results in a sidestepping of good faith cooperation between the Union and its Member States, in favour of unprincipled, uncooperative, and, ultimately, no more effective practical outcomes.
