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Andrea Ott

EU-Turkey bilateral relations are characterized by complexity, mutual ambivalence and a three-layered structure: a 50 year-long association relationship based on a customs union; a Turkish candidate status since 1999 (practically frozen since December 2006); a more recent compartmentalization of policy fields such as migration, aviation and energy cooperation. This latter development has two explanations: to serve the EU’s short- and mid-term interests and to streamline the approach to Turkey with the other accession candidates. Under the renewed consensus on enlargement since 2006, difficult administrative and judicial issues will be addressed at an early stage of the negotiations and the more systematic use of benchmarks will be applied, with concrete criteria for the negotiation chapters. While since 2015 new dynamics in EU-Turkey relations appear to develop for all other layers, with the political events of 2016 in Turkey the delicate balance in the multi-layered relationship is threatened and both sides are returning to old habits of reciprocal mistrust and ambivalence.

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Andrea Ott

This chapter addresses the practice of the European Commission in concluding international agreements with international organizations and third countries. These international agreements are not based on the treaty-making norms under Article 218 or 219 TFEU but resemble internal delegated rule-making in line with Articles 290 and 291 TFEU in nature and relate to these non-legislative acts in their implementation. The chapter addresses constitutional theory underlying the delegation of legislative powers, which is followed by analysing the specific circumstances under which the delegation and the limits to delegation in EU law and EU external relations law operate. Consequently, the question arises how far delegated treaty-making by the Commission differs from or relates to delegated and implementing non-legislative acts adopted by the Commission and how far sufficient political, procedural and judicial safeguards are applied to protect other external actors and respect EU primary law.

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Mauro Gatti and Andrea Ott

The EU-Turkey Statement of 18 March 2016 (Statement) is by now a famous but controversial instrument that aims to tackle the influx of migrants and asylum seekers into the EU. The Statement is indeed an enigmatic instrument, which cannot be effortlessly typified according to the categories of EU and international law. This chapter analyses the legal nature of the Statement and shows that there are good reasons to argue that this instrument is binding, but there are also valid arguments that support the opposite thesis. It seems clear, in any event, that the Statement has to be attributed to the EU – and not to the Member States, as the EU General Court found in the joined cases NF, NG, and NM. The rule of law is in any case difficult to uphold in face of the ambiguities of the Statement. Any judicial action against it is likely to encounter substantive or procedural difficulties, caused by the lacunae of EU Treaties regarding the procedures for the adoption of soft law instruments, the rules on locus standi of individuals and the admissibility of preliminary references.

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Andrea Ott and Guillaume Van der Loo

This chapter will analyse the nexus between the EU’s trade policy and Common Foreign and Security Policy (CFSP). The chapter is structured by highlighting the dichotomy between trade-restrictive and trade-facilitating measures to achieve CFSP aims. This nexus operates against the backdrop of detrimental forces in which the politicization of trade is strengthened through the standardization of EU external relations principles and values, but is limited by the EU’s commitment to the WTO rules prohibiting a politically tainted trade policy. This chapter will first explore the legal and policy dimension of the CCP–CFSP nexus. Then, the trade-restrictive measures are discussed, focusing on the essential elements clauses in international agreements, measures that implement international law obligations, and the EU’s value-based trade agenda. Finally, the trade-facilitating measures are analysed. In particular, the EU’s GSP+ scheme and autonomous trade measures (ATMs) as foreign policy instruments are discussed and compared.

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Edited by Bruno De Witte, Andrea Ott and Ellen Vos

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Bruno De Witte, Andrea Ott and Ellen Vos

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Between Flexibility and Disintegration

The Trajectory of Differentiation in EU Law

Edited by Bruno De Witte, Andrea Ott and Ellen Vos

Differentiation was at first not perceived as a threat to the European project, but rather as a tool to promote further integration. Today, more EU policies than ever are marked by concentric circles of integration and a lack of uniform application. As the EU faces increasingly existential challenges, this timely book considers whether the proliferation of mechanisms of flexibility has contributed to this newly fragile state or whether, to the contrary, differentiation has been fundamental to integration despite the heterogeneity of national interests and priorities.