How Hungary is keeping Brussels' post-Cotonou agreement in limbo

When the European Union fêted its “renewed partnership” with the African Union at a major summit in Brussels last month there was no mention of a separate, painstakingly negotiated, deal with dozens of — often the same — African states that has been stuck in limbo for months. The Post-Cotonou Agreement covers legal, political and economic relations between the EU and 79 countries from the Organisation of African, Caribbean and Pacific States. Framing cooperation on issues like human rights, climate change, and crucially, migration, the EU commissioner responsible for development policy, Jutta Urpilainen, said in December 2020 that it marked a “new era” and will “allow us to better deal with the new realities and challenges as global actors.” Urpilainen spent much of the first half of her mandate negotiating the text, and was not afraid to remind the OACPS in the summer of 2020 that some in Europe had opposed replacing the previous 2000 Cotonou Agreement at all. With the EU-AU relationship taking greater political importance, and the new single EU instrument for 2021-2027 development spending now programmed separately, EU-OACPS relations risked looking like a colonial relic. In the end, the European Commission in place between 2014-2019 decided to press on with the format, albeit via a new structure including separate protocols for each region and one overarching set of principles. However, skeptical voices could resurface, the Finnish EU commissioner warned in 2020, unless the OACPS struck a compromise. This would include compromising on the touchy issue of how to balance greater legal pathways to Europe for migrants with OACPS countries’ obligations to readmit their nationals deemed ineligible to stay in the EU. Finally, a deal was announced in December 2020 and initialed (marking the formal end of negotiations) in April 2021, though it is yet to be signed, which would allow most of it to be provisionally applied. “The agreement is losing political importance every day.” --— EU member state official One reason for the delay was a dispute over the legal status of the text. The European Commission argued it should be an EU-only agreement, which would allow the commission to sign it on behalf of all 27 member states. But EU countries worried about setting a precedent that could dilute their power under European law vis-à-vis the commission and changed it to a “mixed” competency agreement like its predecessor, meaning it must be ratified in all EU states once it is signed. Another reason is Hungary. “Hungary does not support the signing of the Post-Cotonou Agreement due to the fact that we cannot support the facilitation of legal pathways of migration,” a spokesperson from the Hungarian foreign ministry emailed Devex last week. “We wish to highlight that legal migration belongs to the national competence of states. We do not believe that migration is an appropriate solution to address the demographic, economic and labour market challenges.” With parliamentary elections in Hungary next month and the country at risk of losing funds from the EU over concerns about the rule of law, some diplomats see its Post-Cotonou stance as an attempt to score political points at home while preserving a bargaining chip on unrelated topics in Brussels. All too aware of Hungary’s migration focus, the commission has been keen to promote the fact that Post-Cotonou goes much further to operationalize return and readmission procedures than the previous agreement. By blocking the signing, one member state official, speaking on condition of anonymity, told Devex that Hungary is also effectively stopping those enhanced provisions from entering into force. Another effect of the delay, however, is that Urpilainen’s warning now risks coming true. “The agreement is losing political importance every day,” the member state official told Devex. Tomas Tobé, the center-right Swede who chairs the European Parliament’s development committee, believes that the signature is “long overdue,” writing to Devex last week that: “Both EU Member States as well as the European Commission have had plenty of time to discuss and I see no point of further needless postponement of signature.” Asked by Devex at a press conference last week what purpose the Post-Cotonou Agreement serves, French foreign minister Jean-Yves Le Drian responded that the agreement is “essential,” but did not say why. He added that he hopes it will be signed under the French presidency of the Council of the EU, which ends on June 30. A commission spokesperson told Devex that the signing is a “priority” and it still expects this to happen in the first half of 2022. However, with French President Emmanuel Macron running for reelection against two anti-migration candidates next month, it remains to be seen whether France has the appetite for a battle over the balance between legal pathways and readmission in the coming weeks. If France does want a deal under its EU presidency then time is running short, the member state official warned. Unless Hungary changes its position this month, the official predicted that the necessary EU internal processes would not be able to be completed in time. If the new agreement has not entered into force by the end of June, then another extension of the 2000 Cotonou agreement will be required, necessitating a commission proposal and a joint EU-OACPS decision. And if no extension is forthcoming, then the EU-OACPS relationship would have no legal basis at all, potentially jeopardizing both the European Investment Bank’s mandate to lend in those countries and dialogue forums with the EU, the anonymous member state official warned. In a written statement to Devex last week, the OACPS side argued that while it would like the agreement signed as soon as possible, cooperation with the EU has not been seriously affected so far. OACPS Secretary-General Georges Chikoti pointed to the upcoming meeting of members of the European Parliament and parliamentarians from African, Caribbean, and Pacific states later this month. And as for the signature, “we are informed that some political events in some EU member states have delayed the completion of EU internal processes,” Chikoti wrote. “We hope this will be sorted out soon.”