This past year, Tunisia became the primary country of departure for migrants attempting to reach the European Union via Italy through the Central Mediterranean route. With a sharp increase of arrivals in the first few months of 2023, which further accelerated during the summer, cooperation with Tunisia has turned into a key priority in the EU’s efforts to limit migration inflows.
On July 16, 2023, after complicated negotiations, Olivér Várhelyi, the EU Commissioner for Neighborhood and Enlargement, and Mounir Ben Rjiba, Secretary of State to the Minister of Foreign Affairs, Migration and Tunisians Abroad, signed a memorandum of understanding (MoU) on “a strategic and global partnership between the European Union and Tunisia,” published in the form of a press release on the European Commission’s website. President Ursula von der Leyen labeled the deal as a “blueprint” for future arrangements, reiterating the commission’s intention to work on similar agreements with other countries. The MoU, however, in terms of its content, form, and the human rights concerns it raises, falls squarely within current trends characterizing EU cooperation on migration with third countries.
The content of the agreement
Known as the “migrant deal,” the MoU covers five areas of cooperation: macro-economic stability, economy and trade, green energy transition, people-to-people contacts, and migration and mobility. The EU agreed to provide €105 million to enhance Tunisia’s border control capabilities while facilitating entry to highly-skilled Tunisians, and €150 million in direct budgetary support to reduce the country’s soaring inflation. It further foresees an extra €900 million in macro-economic support conditioned on Tunisia agreeing to sign an International Monetary Fund bailout. In exchange, Tunisia committed to cooperate on the fight against the smuggling and trafficking of migrants, to carry out search and rescue operations within its maritime borders, and to readmit its own nationals irregularly present in the EU—an obligation already existent under customary international law. Much to Italy’s disappointment, and unlike what happened in the case of Turkey in 2016, Tunisia refused to accept the return of non-Tunisian migrants who transited through the country to reach the EU, in line with the position it has occupied since the onset of the negotiations.
What was agreed on seems to be all but new, seemingly reiterating past commitments
Overall, what was agreed on seems to be all but new, seemingly reiterating past commitments. As for funding, the EU had been providing support to Tunisia to strengthen its border management capabilities since 2015. More broadly, and despite its flaws, the MoU embeds the current carrot-and-stick approach to EU cooperation with third countries, systematically using other external policies of interest to these nations, such as development assistance, trade and investments, and energy—coupled with promises of (limited) opportunities for legal mobility—to induce third countries to cooperate on containing migration flows.
The legal nature of the agreement
The MoU embeds the broader trend of de-constitutionalization and informalization of EU cooperation with third countries, which first appeared in the 2005 “Global Approach to Migration” and the 2011 “Global Approach to Migration and Mobility”, and substantially grew in the aftermath of the 2015 refugee crisis, with the EU-Turkey Statement and the “Joint Way Forward on migration with Afghanistan” being the most prominent examples, in addition to several Mobility Partnerships. The common denominator among these informal arrangements consisted of the use of instruments outside the constitutional framework established for concluding international agreements, notably Article 218 on the Treaty of the Functioning of the European Union (TFEU), to agree on bilateral commitments that usually consist in the mobilization of different EU policy areas to deliver on migration containment goals.
Recourse to informal arrangements can have its advantages, as they are capable of adapting quickly to new realities and allow for immediate implementation without requiring parliamentary ratification or authorization procedures, as highlighted by the EU Court of Auditors. However, they might fall short of constitutional guarantees, as they do not follow standard EU treaty-making rules. EU treaties are silent as to how non-binding agreements should be negotiated and concluded, and thus often lack democratic oversight, transparency, and legal certainty. They might also pose issues in terms of judicial review by the Court of Justice of the EU (CJEU), in accordance with Article 263 of the TFEU.
In the much-debated judgment “NF”, the General Court—the jurisdiction of first instance of the CJEU—refused to assess the legality of the 2016 EU-Turkey Statement, which was published as a press release on the website of the European Council. Indeed, the Court concluded at the time that the deal was one of member states acting in their capacity as heads of state and government, and not as part of the European Council as an EU institution, rendering the deal unattributable to the EU. The Court did not specifically refer to the legal nature of the agreement, despite all EU institutions stressing that the document was “not intended to produce legally binding effects nor constitute an agreement or a treaty” (para. 27), it being “merely ‘a political arrangement’” (para. 29).
Overall, it is apparent that the lack of clarity regarding the procedure to be followed and the actors to be involved when it comes to the conclusion of non-binding agreements by the EU is problematic from a rule of law perspective
The EU-Tunisia MoU, on the other hand, was signed by the European Commission alone, making it fully attributable to the EU. This means that it could be potentially challenged before the CJEU, if there is reason to believe that the content of the agreement renders it a legally-binding one, infringing on the procedure foreseen by the EU treaties, or if the competencies of the Council and the Parliament, the two other EU institutions usually involved in the conclusion of international agreements, were otherwise breached. In another case, the CJEU indeed found that, while the treaties do not regulate the matter and thus Article 218 on the TFEU does not apply, the Commission should nonetheless seek prior approval of the Council before signing an MoU in the exercise of its competencies, pursuant to Article 17 (1) of the Treaty on the European Union (TEU), due to the Council’s “policy-making” powers provided by Article 16 of the TEU. The Court, however, did not clarify whether the Commission should have likewise involved the European Parliament in light of its power to exercise “political control,” provided by Article 14 TEU. With regard to the MoU with Tunisia, however, neither of the two institutions seemed to have been involved. Overall, it is apparent that the lack of clarity regarding the procedure to be followed and the actors to be involved when it comes to the conclusion of non-binding agreements by the EU is problematic from a rule of law perspective.
Concerns over protection of fundamental rights
The EU-Tunisia MoU has been harshly criticized by both civil society organizations and different members of the European Parliament (MEPs) in light of the Tunisian authorities’ documented abuses and hostilities against migrants, amidst a political climate of broader democratic crisis. While vaguely referring to “respect for human rights,” the MoU does not specify how the Commission intends to ensure compliance with fundamental rights. Concerns over the agreement led the European Ombudsman—a body of the EU that investigates instances of maladministration by EU institutions—to ask the EU’s executive arm whether it had conducted a human rights impact assessment before its conclusion, as well as if it intended to monitor its implementation, and if it envisaged the suspension of funding if human rights were not respected. This adds to the growing discontent over the EU’s prioritization of securing its borders over ensuring the protection of fundamental rights of migrants, through the externalization of border controls to third countries with poor human rights records and authoritarian governments, such as Libya, Turkey, Morocco, Egypt, and Sudan, among others.
These episodes exemplify the paradox of externalization, with the EU trying to shield itself from the risk of instrumentalization of migration by third countries on one hand, and making itself dependent upon these actors’ willingness to contain migratory flows, and thus vulnerable to forms of repercussion and bad faith tactics, on the other
In an unprecedented move, Tunisia denied entry to a group of MEPs who were due to visit the country on official duty on September 14. While no official explanation was given, the move was seen as a reaction for speaking out against the agreement. Despite this, and the fact that there is still a lack of clarity as to how compliance with fundamental rights will be guaranteed, the Commission announced that the first tranche of EU funding would be released by the end of September. However, Tunisia declared to have rejected the money precisely over the EU’s excessive focus on migration containment, although Várhelyi stated that the refusal related to budget support is unrelated to the MoU. These episodes exemplify the paradox of externalization, with the EU trying to shield itself from the risk of instrumentalization of migration by third countries on one hand, and making itself dependent upon these actors’ willingness to contain migratory flows, and thus vulnerable to forms of repercussion and bad faith tactics, on the other. Similar deals, posing similar risks, are currently envisaged with Egypt and Morocco. Moving forward, the EU should instead make efforts to create partnerships with third countries based on genuine mutually-shared interests, restoring credibility in its international relations which should be based on support for its founding values: democracy, human rights, and the rule of law.
Andreina De Leo is an Early Stage Researcher (ESR) within the LIMES doctoral program’s project “EU’s Shifting Borders – Scrutinizing Externalization of Migration Management and International Protection Responsibilities.” She is based at the Department of International and European Law of the Faculty of Law of the University of Maastricht, in the Netherlands. The project has received funding from the European Union’s Horizon 2020 research and innovation program under the Marie Skłodowska-Curie grant agreement No 847596.
This analysis was originally published as a feature piece in Issue 3 of the Rule of Law Developments in the Middle East and North Africa newsletter, produced by Konrad-Adenauer-Stiftung Rule of Law Programme Middle East & North Africa and TIMEP.