Sergio Carrera, Juan Santos Vara and Tineke Strik
In this introduction to the book, the editors explain the relevance of analysing the constitutional aspects of the external dimension of EU migration and asylum policies. They argue that the labelling of the large arrival of refugees in 2015 as a crisis has severely affected the principles of the rule of law and the interinstitutional balance, which were just established with the Lisbon Treaty in 2009. The authors substantiate that the contributions in the book move beyond the state of the art in the literature by connecting the internal and external dimensions of EU migration and asylum policy and by analysing old and new patterns of external cooperation on migration. Through that lens, they identify a tendency of informalisation of the external cooperation, leading to ‘de-constitutionalisation’ of the EU decision-making in this field. This process raises questions on the EU’s legitimacy of the external cooperation on migration, which are dealt with in the book. The third part of the introductory chapter summarises the contributions in the book.
Sergio Carrera, Leonhard den Hertog and Marco Stefan
The EU-Turkey deal represents one of the most emblematic EU responses to the refugee crisis. Over two years since its adoption, profound doubts still exist as to the legality of the deal under EU law. This chapter illustrates the peculiar processes through which the initiative was concluded and implemented, and highlights the negative impact that such measures produced on the coherent application of EU primary law and fundamental rights. The non-legally binding and intergovernmental nature of the deal fundamentally challenges the constitutional rules that, in a post-Lisbon Treaty framework, govern the EU external dimension of the Area of Freedom Security and Justice. Acting outside the Treaties, the EU institutions, and most notably the European Commission, the European Council, and the Council of the European Union, managed to circumvent the democratic and judicial guarantees that, in the EU legal system, should apply to the fields of borders, asylum, and readmission.