Did Italy have to tell the Commission about its asylum deal with Albania?
Last week, Italy’s prime minister Giorgia Meloni announced Italy had made an agreement with Albania that would allow Italy to set up camps on Albanian territory. Asylum seekers rescued at sea by Italian ships would be sent to Albania, where their asylum claims would be processed. If a claim is accepted, the refugee is allowed to enter Italy. If it is rejected, the individual would be sent back to his or her country of origin.
The Italo-Albanian agreement looks a bit like the deal the UK had concluded with Rwanda, and which a UK court had suspended pending further judicial review by the UK’s Supreme Court. Human rights campaigners have criticized the agreement for running foul of Italy’s obligations under the Geneva Conventions, which prohibit deporting asylum seekers to third countries with which they do not have any connection.
The compatibility of the agreement with Italy’s international obligations under the Geneva Conventions and other human rights instruments is an important topic. In this post, I would like to zoom in on another, perhaps more esoteric aspect of last week’s events. In reporting on the agreement, it was mentioned that Italy had taken the European Commission by surprise. Mrs Meloni had not notified Mrs von der Leyen, at least not before the deal was announced to the press.
This is perhaps surprising. After all, only a couple of months ago Mrs Meloni and von der Leyen, together with Dutch prime minister Mark Rutte, had announced a ‘deal’ with Tunisia whereby Tunisia committed, among other things, to make a bigger effort to prevent asylum seekers from reaching Italian shores in exchange for EU money. The deal was made by ‘Team Europe’, an entity not mentioned in the EU Treaties, but which seems to include at least one EU institution, the Commission.
How is it possible that Italy is able to secretly negotiate an international agreement with Albania on an issue that is clearly of European concern, given that the protection of the EU’s external borders and the management of migration flows has been on the EU’s political agenda ever since the surge in asylum claims in 2015 following the horrendous events in Syria? Given this backdrop, should Italy have told the Commission about its deal with Albania before it announced it to the press?
A matter of loyalty
On Bluesky, a social media platform, I made the point that Italy had violated its loyalty obligations vis-à-vis the European Commission by making the agreement with Albania without telling the Commission of its intention to do so before the fact. In the remainder of this post, I further develop this point, as the point is perhaps less self-evident than I initially considered it to be.
By loyalty obligations, I mean those legal obligations Member States and the EU institutions have vis-à-vis one another on the basis of Article 4(3) of the Treaty on European Union (TEU). This provision codifies the so-called ‘duty of sincere cooperation.’ The duty entails that ‘the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.’ The duty has both a positive and a negative component: it requires that the Member States ‘facilitate the achievement of the Union’s tasks’, and that they ‘refrain from any measure which could jeopardise the attainment of the Union’s objectives.’
In the foreign relations context, the duty has also been understood to have both a procedural and a substantive component. Procedurally, it requires the Member States and the EU to inform one another of initiatives they are undertaking, or planning to undertake. Substantively, the duty may in some instances preclude Member States from taking certain actions, such as making a treaty with a third country, or making a submission to an international organization.
When do loyalty obligations kick in? The answer is not easy. The Treaties don’t offer any guidance, and the case law of the Court of Justice is sporadic. From the 2010 PFOS case, we know that Member States are under a duty not to act when there is a ‘start of a concerted [EU] action at international level’, and there is a common EU position that can be established to what the Court somewhat cryptically referred to as the ‘requisite legal standard.’ In that case, the Court concluded on the basis of an investigation of the Council’s decision-making process that there was, at the relevant time, a ‘common strategy’ not to make a certain proposal to an international body—a strategy Sweden then ignored by making that exact proposal to the international body.
Was Italy sufficiently loyal?
Back to the Italo-Albanian agreement. Here, it seems clear that there was no common strategy at EU level to either make or not make a similar agreement with Albania. Contrary to the fact patterns in PFOS, there is no Commission proposal on the table to start negotiating a similar agreement with Albania. It follows from the case law that Italy was not under a ‘duty to abstain’ from making the agreement. (I assume, for the sake of the argument, that Italy was not precluded from acting because competence to act in the area had been transferred to the EU pursuant to the ERTA principle.) If we read Article 4(3) TEU in light of the existing case law, all seems well.
Yet I think Italy did violate Article 4(3) TEU. It did not violate the provision’s substantive leg, i.e. the duty not to act. It did, however, violate the provision’s procedural leg, i.e. the duty to inform.
The procedural leg of Article 4(3) TEU and the duty of sincere cooperation which it codifies, kicks in sooner than the substantive leg. I would argue that for Italy to be under an obligation to inform the EU of its plan to make a deal on the offshore processing of asylum claims, there needs to be neither a start of a concerted action at the international level (e.g. a Commission proposal to start negotiations), nor a fully fleshed out ‘common EU position’ that can be established by the ‘requisite legal standard’ (e.g. a Council decision or even Council conclusions). Rather, all it takes for the procedural obligation to inform to kick in, is that the topic of the agreement and the policy choice it encapsulates are under discussion at EU level.
This much lower threshold was met in this case. We know that last year, Denmark had wanted to conclude a similar deal with Rwanda, following the UK model. It had not gone through with the deal, as it was under the impression that there was growing support across the EU for the policy of offshoring the processing of asylum claims.
We know, also, that in the framework of the negotiations on the new migration and asylum pact, a consensus is emerging on a more expansive interpretation of the ‘safe third country’ concept. Such a wider reading of the notion would make it easier for Member States to return individuals whose asylum claims have been rejected. It would also pave the way for the type of agreement Italy now already concluded with Albania.
While at this point in time there may not be a common EU position on the desirability of agreements with third countries to host offshore asylum processing facilities, it does seem clear to me that the notion is very much under discussion within the Council and between the institutions. By jumping the gun and forging ahead with its deal with Albania, Italy takes a different course than Denmark did. As discussed, EU law does not preclude it from doing so. Italy is under no loyalty obligation not to act. However, I would say it was at the very least under a legal obligation to tell the Commission about its plans. This is not only the courteous thing to do. It is also a legal duty.
A sliding scale of loyalty obligations
By distinguishing between the substantive and procedural legs of the duty of sincere cooperation, the duty reveals itself as a sliding scale. The closer the EU comes to a common position on a given issue, the more teeth the duty acquires, and the more we move from a duty to inform and share information toward a duty not to take actions that run counter that common position.
Such a conception fits well with the spirit of Article 4(3) TEU, which is all about facilitating the EU in the fulfilment of its tasks, and it does not contradict the Court’s case law. In PFOS, as well as in the Inland Waterways cases that predated it, the Commission had taken issue with the substance of the actions undertaken by the Member States involved, not their lack of prior communication with the Commission. It is thus possible, and necessary, to distinguish those cases from Italy’s behaviour. Italy violated its loyalty obligations, not by making the agreement with Albania, but by not telling the Commission about it before the fact. Such a lack of information sharing is embarrassing for the Commission, and ultimately undermines the credibility of the EU in a policy area in which it has been trying to play a central role for a number of years.
