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Mauro Gatti

Southern Mediterranean countries are among the principal partners of the European Union in the field of migration. The EU is seeking to ‘externalize’ migration control to its neighbours by inducing them to stop the flow of migrants and asylum seekers before they reach its borders. This chapter analyses the tools the Union uses to implement this externalization: negotiating readmission agreements, supporting projects on irregular migration in partner countries, and seeking cooperation in border-management operations. The analysis shows that the EU has succeeded in eliciting cooperation from Libya, but not from other states. It also suggests that existing and potential cooperation initiatives may have a severe impact on human rights. The Union, it is argued, should re-evaluate its strategy by making a pragmatic assessment of costs and benefits and giving greater weight to human rights concerns, as well as to its partners’ priorities.

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Domenico Delli Gatti and Mauro Gallegati

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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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Eleftheria Neframi and Mauro Gatti

In the first place, the chapter investigates the interaction between the delimitation of the EU’s external competence in the area of trade and investment and the requirement to preserve the essential characteristics of the EU legal order. It follows from the joint reading of Achmea and of Opinion 2/15 that the competence to approve dispute settlement provisions in free trade agreements (FTAs) finds its limits in the preservation of the systemic dimension of the autonomy. On the other hand, the specific balance between competences and objectives reinforces the substantive autonomy of the EU legal order through a dynamic interpretation of external competences. Secondly, the chapter focuses on the EU’s capacity to exercise independently its competences, which is challenged by the recent FTAs. Despite the insertion of clauses on the right to regulate, there is no guarantee of the interpretation of investment protection standards in view of the preservation of the regulatory autonomy of the Union.

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Tiziana Assenza, Domenico Delli Gatti and Mauro Gallegati