Judicial Review of the EU's Informal Migration Tools - Admissibility in Cases of Tunisia and Türkiye Deals

Abstract

Accountability of the EU in external migration management has become increasingly challenging due to the widespread use of informal tools. Since the Amsterdam Treaty, the EU has exercised this competence primarily through readmission agreements. However, following the urgency of the migration crisis post-2015, coupled with the procedural and legal constraints of readmission agreements and the necessity for flexibility, informal tools like the EU-Turkey Statement (2016) have gained preference over hard law sources. Judicial review of these instruments has only been tested in the case of Türkiye, where the CJEU rejected the case during the admissibility stage. This article evaluates the judicial review of informal migration tools within this context. It does so by examining the potential for annulment against the EU-Tunisia Memorandum of Understanding (2023) from a procedural perspective, drawing upon criteria derived from the Türkiye case and relevant CJEU jurisprudence. It is concluded that the current criteria regarding the status of applicants are insufficient to bring the EU before the CJEU. Therefore, given the ongoing increase in the use of informal tools, there is a pressing need to reform the procedural rules concerning actions for annulment.