Judicial Review of the EU's Informal Migration Instruments - Admissibility in the case of the EU-Tunisia MoU

Abstract

The accountability of the EU in external migration management has become increasingly challenging due to the widespread use of informal instruments. Since the Amsterdam Treaty, the EU has exercised this competence mainly through readmission agreements. However, due to the urgency of the post-2015 migration crisis, coupled with the procedural and legal constraints of readmission agreements and the need for flexibility, soft law sources such as the EU-Turkey Statement (2016) have been favoured over hard law sources like readmission agreements. Judicial review of informal instruments has only been tested in the EU-Turkey Statement, where the CJEU dismissed the case at the admissibility stage. This article aims to assess the potential avenues for judicial review of the EU's informal migration instruments. It does so by examining the possible cases under EU law concerning the EU-Tunisia Memorandum of Understanding (2023) from a procedural perspective. It concludes that the current criteria regarding the status of applicants under action for annulment and the difficulty of initiating national proceedings under the preliminary ruling procedure complicate litigation before the CJEU. Therefore, there is an urgent need to reform the procedural rules of the CJEU in light of the ever-increasing use of informal migration instruments.

Keywords

• eu migration law
• informalisation
• soft law
• accountability
• actions for annulment
• ab göç hukuku
• informelleşme
• esnek hukuk
• hukuki sorumluluk
• iptal davası