Tackling Migration Externally Through the EU Common Foreign and Security Policy: A Question of Legal Basis

Table of Contents: I. Introduction. – II. Background: setting CFSP/CSDP missions on migration. – III. CFSP/CSDP missions versus AFSJ instruments. – III.1. Competence question. – III.2. Institutional implications for decision–making procedures. – III.3. ECJ competences and judicial protection. – IV. The ECJ doctrine on the choice of the appropriate legal basis and the delimitation between CFSP and migration policy. – IV.1. Revisiting the ECJ doctrine on the choice of the appropriate legal basis. – IV.2. Applying the ECJ doctrine to CFSP/CSDP missions on migration. – IV.3. Alternatives to the “centre of gravity test”. – V. Conclusion.

Abstract: The response of the EU’s external action to migration challenges is not limited to the use of its migration competences under Title V TFEU, but also extends to CFSP/CSDP instruments, governed by the TEU. As a further illustration of the securitisation approach evidenced in the EU’s management of migration, the Union deploys CSDP missions with components and objectives related to strengthening border controls, fighting human trafficking and migrant smuggling, and promoting third countries’ capacity-building in these purposes areas. Using CSDP instruments, mainly foreseen to preserve international security, for migration purposes touches upon the horizontal demarcation of EU competences and raises an essential question related to the choice of the correct legal basis in cross-Treaty cases, at a time in which the CFSP still presents some intergovernmental features. This Article firstly reviews the legal implications of the recourse to the CFSP instead of AFSJ instruments for migration purposes, addressing and comparing the competence question, decision-making and judicial protection in both policies. This shows how the increasing “normalisation” of the CFSP does not match yet the degree of integration of the AFSJ and its corresponding safeguards. Secondly, the ECJ doctrine on the choice of the appropriate legal basis and its “centre of gravity test” is revisited to clarify how its criteria apply to the linkages between CFSP and migration policy. Although a simultaneity of inextricably linked objectives complicates this cross-Treaty delimitation, a strict application of the “centre of gravity test”, by which a CFSP tool is instrumentalised to pursue an AFSJ objective, may provide the answer to this controversy.

Keywords: Common Foreign and Security Policy – CSDP missions – migration – Frontex Agency – European Court of Justice – choice of the appropriate legal basis.

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European Papers, Vol. 8, 2023, No 2, pp. 959-984
ISSN 2499-8249 - doi: 10.15166/2499-8249/696

* Associate Professor of Public international law and European Union law, Universidad Pontificia Comillas (ICADE), pgandrade@comillas.edu.