Table of Contents: I. Introduction. – II. Subsidiarity. – II.1. Subsidiarity and the exercise of the Union’s external competences. – II.2. The Union’s readmission policy to the test of subsidiarity. – III. Institutional balance. – III.1. Institutional balance in the area of readmission according to the Treaties. – III.2. The Union’s readmission policy to the test of institutional balance. – IV. Conclusion.
Abstract: Migration governance entails the enactment of a bordering process, drawing lines of inclusion and exclusion, through legal instruments, policy tools and funding decisions. The level of experimentalism through which this process is increasingly carried out by the EU demands constant reflection on its overall limits and constraints, on the part of those working on it from a constitutional perspective. The present Article aims at contributing to that reflection effort by analysing the EU’s readmission policy from the standpoint of two principles governing its exercise as a shared competence: subsidiarity and institutional balance. Both principles require EU institutions to engage with the constitutional logic which underlies Treaty choices. On the one hand, subsidiarity reminds the institutions of the need to consider the input and output legitimacy of their intervention in areas of non-exclusive competences. On the other hand, institutional balance contributes to such a legitimacy, by maintaining institutional action and interaction within pre-defined boundaries. In the strongly politicised arena of the common readmission policy, characterised by a high degree of experimentalism, the flexible anchoring in the Treaty framework provided by these two principles would constitute a sound foundation for legitimate EU level action, including through soft law. So far, this potential has been underexploited.
Keywords: readmission policy – soft deals – EU external action – subsidiarity – institutional balance – legitimacy.
* Doctoral Fellow, Research Foundation–Flanders (FWO)/KU Leuven Institute for European Law, email@example.com.