Andrea Maria Pelliconi

On 16 June, 2021, the City Law School hosted a virtual launch of Dr Tamás Molnár’s new book The Interplay between the EU’s Return Acquis and International Law. The webinar, chaired by Dr Andrew Wolman, was organised by City’s International Law and Affairs Group (ILAG) and the Institute for the Study of European Laws (ISEL), and saw Professor Paul James Cardwell (University of Strathclyde) and Professor Elspeth Guild (Queen Mary University of London) as expert discussants. This post summarises the discussion and provides some reflections on Molnar’s book.

Dr Molnár is a legal research officer at the EU Agency for Fundamental Rights (FRA) in Vienna, where he works in the field of EU migration law, fundamental rights of irregular migrants, return and readmission, administrative detention of migrants, anti-smuggling, EU asylum acquis and visa policy, as well as other areas of public international law and human rights. He is also a visiting lecturer of international migration law at the Corvinus University of Budapest. Before joining FRA, he worked for a decade in various ministries in Hungary in the fields of EU and international migration law and their domestic implementation. This new book, as Molnár explained, combines the experience acquired over the years working in both research and policy-making at the international, EU and national level and explores the interaction of EU law and international law, particularly in the field of return of migrants.

‘Autonomy’ of the EU legal order & interaction with international law

The book comprises a general part and a more specific one. The first part outlines the relationship between EU law and international law in general terms. The traditional doctrine on the ‘autonomy of EU law’ as an independent, sui generis legal order is tested against the EU’s universality ambitions and the objective to become a prominent actor in the making of international law. The author looked at how EU law is positioned within – or outside – international law, and how the EU attempts to shape the formation of rules of the international legal order and standard-setting actors such as the UN, the Council of Europe or the case-law of the European Court of Human Rights (ECtHR).

The EU acquis on return

The second part focuses more specifically on the interaction of the two legal orders through the lens of migration law, and return in particular. It provides an in-depth analysis of how the EU legislative developments and the expanding jurisprudence of the EU Court of Justice (CJEU) on return are a reflection of international law, and vice versa. The author aims to induce the reader to adopt two points of view at the same time: to grasp how international migration and human rights law influence the EU’s return acquis and how this body of EU law has shaped international law-making relating to the removal of non-nationals. The interplay of the EU and EU law with the international legal order is thus critically discerned through the prism of migration law, although this perspective also allows for more general observations on how the two legal orders mutually interact in other fields of law.

Relevance of the research and methodology

The discussants note that because of its specificities, the book complements other scholarship and fills an existing gap in international legal knowledge on the topic of the EU acquis on return, which was yet to be explored thoroughly. Professor Cardwell praised the methodological choices, noting how the author adopted a bottom up approach: instead of starting from general principles, the book emphasises the practical aspects of the legal issues at stake, proving very useful not only for academics and researchers, but also for practitioners and policy-makers.

Discussion: EU as legal order and EU as political actor

The webinar discussion gave the chance to delve deeper into specific aspects. One of the questions raised, among many, was how to effectively draw the distinction between the EU as legal order and the EU as an actor in its external relations. Admittedly, this is a very difficult task, considering the fluid, chimerical nature of the EU’s external action. In Molnár’s perspective, the EU generally acts as its own legal order and tries to sell its own legal solutions, and institutional and regulatory framework; nonetheless, political arguments and approaches prevailed over legal aspects when came to design the Global Compact on Migration. In that context, the contribution of the EU was far from a legalistic one if compared with that of other actors, for example the International Law Commission. In the author’s take, the EU behaved as a political body in that specific process. In fact, it seems that the Union’s approach in its external action to advance its acquis varies on a case-by-case basis. In this, the distinction between the legal system and political actor is blurred, or rather integrated and multifaceted.

Internal implementation of EU migration acquis

Professor Guild noted how EU Member States often disregard fundamental rights in matters of return and expulsions, or diverge significantly from international standards in their implementation (see e.g. the Opinion of the Committee on Enforced Disappearances of 25 September 2020 in L.A. v France). At the same time, the constant interaction of international and European legal systems means that divergences are likely to entail adverse consequences and trade-offs. Deviations from international standards might turn out to be negative for the functioning and stability of the global legal system, contributing to the fragmentation of international law and disregard for human rights. For instance, Professor Guild argued, the proposed recast Returns Directive seems to pose numerous issues in this respect. Among the problematic aspects of the proposal, Professor Guild mentioned the excessive reliance on Member States’ own implementing procedures and rules, potential violations of the prohibition of refoulement, and limited guarantee of effective remedies. It was then asked how the Union can increase Member States’ implementation of the EU acquis.

Molnár held that an effective implementing strategy is the Schengen evaluation mechanism, which monitors the implementation of the Schengen acquis and the consistent application of the common Schengen rules to all Member States. This mechanism, in the author’s view, can significantly change policies, legislation and human rights practices. Molnár highlighted that a few years ago, the European Commission has reformed this mechanism, which now includes the two pillars of return and readmission, and has recently launched a new Schengen strategy, alongside a legislative proposal to revamp the Schengen evaluation  mechanism which will place fundamental rights at the core of the evaluation. However, as the European Parliament’s (EP) Rapporteur Tineke Strik commented during the discussion, this approach is hardly efficient to address issues such as return, since a public, systematic, centralised reporting mechanism on the concrete implementation of the Return Directive by Member States is currently lacking. This is therefore a possible area for further developments, should Member States show political willingness.

Another strategy to increase implementation of the EU return acquis is litigation. Molnár conceded that recourse to the CJEU is not always satisfactory in this regards, due to various factors such as the limited individual locus standi, the inconsistent and politically-influenced recourse to infringement procedures, the lack of fact-finding powers by the Commission, and the potential non-compliance with the CJEU’s decision by the affected Member State. A landmark example is Commission v Hungary (decision of 17 December 2020), where the Court found that Hungary has failed to fulfil its obligations under EU asylum and return law. As Hungary ignored the ruling, the Commission is now seeking a second ruling on financial sanctions for failure to comply under Article 260 TFEU. Nonetheless, Molnár surmised, litigation before the ECtHR and UN treaty bodies can prove to be effective as it is more easily accessible to individuals and has a more favourable, lower burden of proof. This last consideration, it seems to me, shows once again the strong interrelation between the EU and the international legal systems. International human rights courts appear prone to apply EU law when relevant. This, however, is not a symmetrically bilateral approach: as Molnár pointed out, although the CJEU tends to expand its jurisdiction and competence to various areas of international law, it is carefully selective when it comes to applying it to concrete cases and/or giving direct effect to international rules.

New roles for EU agencies and Member States

Looking forward, Molnár holds, the role of Member States within the Union may evolve. This is also true with regards to migration management. For example, removal operations are still predominantly carried out by state authorities, despite it being an area of shared competences. The EU exercises its competence by focusing on legal aspects, i.e. setting out common rules, while the executive competence remains with the states. This may change with the increased powers and obligations of Frontex, which is emerging as a new EU actor in border control and return management. As return operations are increasing, and Frontex’s competences enlarging, the agency may be called to operate on a more executive level in return activities.

The role of the EU in the global political landscape

The value of Molnár’s book today is extremely noteworthy. The themes of returns and migration more broadly are very topical and the EU’s acquis and positioning are likely to impact the lives of hundreds of thousands of people in a very concrete way. Arguably, the ability or inability of the EU to influence and shape international law and policy-making in this respect will be crucial to establish international standards and define the trajectories of legal developments in this field worldwide. Migration is increasingly at the centre of the EU political, home affairs and economic agenda. The recent talks on the renewal of the EU-Turkey deal on asylum seekers until 2024 and related financial arrangements are a clear example. Another example is the debates around the possible externalisation of asylum procedures in third countries and the informalisation of EU readmission agreements with third countries.

Questions arise, however, not only about whether these strategies are in line with established international human rights standards, but whether they even align with the objectives that the EU should aim to achieve. It may be questioned if the EU’s efforts to shape international law in this field are compatible with the goal of being a virtuous actor on the international stage. In my opinion, these agreements rather show the Union’s weakness. Instead of requiring third countries to respect human and asylum rights, the EU is signing agreements and arrangements with well-known right violators. Concerns have even been raised by the civil society and the European Ombudsman about Frontex’s alleged failure to respect human rights. EP Rapporteur Strik, in fact, observed that Frontex is still supporting Hungary regarding returns, despite the abovementioned CJEU decision finding clear human rights violations. The risk, in my view, is that the EU will lose its advantaged position and becomes more influenced by – regressive – international trends than being able to influence them.

This extends, of course, beyond migration and includes other areas such as climate change and energy transition, social and labour protections, extraterritorial application of fundamental rights in international trade agreements, corporate liability and mandatory due diligence. This also extends to the Brexit political gamble: the UK, now emancipated from EU constraints, is exploring possible departures from international human rights standards and commitments on various levels; the Union will have to choose, and show to the world, whether pursuing human rights protections can be a winning bet in a neoliberal globalised world.

Conclusion

Molnár’s book brilliantly helps us understand how the EU has been and will be able to influence the international law making in the field of migration and human rights. Moving forward, the challenge for the Union will be deciding how to use this leverage. This certainly requires a self-reflective reconsideration of its political ambitions and constitutional foundations. The upcoming years will be decisive for the solution, in one direction or the other, of the EU’s existential crisis.

Andrea Maria Pelliconi is a research student at City Law School.

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