Zuzana Vikarska, Post-graduate research student, University of Oxford*
*This post is written in the author's academic capacity and does not represent the view of any of her past, present or future employers
On Wednesday 2 December, Slovakia
filed an action for annulment to the Court of
Justice (pending
case C-643/15), challenging the legality of
the Asylum-Seekers Relocation Decision (“the
contested decision”) adopted on 22 September 2015. Just
one day later, on Thursday 3 December, Hungary did the same (pending
case C-647/15).
Steve Peers has already discussed
some of the (anticipated) legal arguments against the validity of the
challenged EU measure in his
recent blog-post. In the following post, I
briefly discuss the arguments on which the Slovak government’s case rests and I
explore whether they are likely to succeed before the Court of Justice. Unfortunately,
I do not have access to the full text of the Slovak action, nor to the
arguments of the Hungarian government. I am therefore only commenting on the summary
of the six arguments, which has been published on the
webpage of the Slovak Ministry of Justice.
1. Division of competences and
institutional balance
“First plea in law, alleging
breach of Article 68 TFEU, as well as Article 13(2) TEU and the principle of
institutional balance: The Council by adopting the contested decision exceeding
the previous guideline of the European Council, being therefore in
contradiction to the mandate of the latter, infringed Article 68 TFEU as well
as Article 13(2) TEU and the principle of institutional balance.”
In its first claim, the Slovak
government argues that the measure was adopted in contradiction to the
guidelines set by the European Council, an institution made up of heads of
state and government (as distinct from the Council, made up of national
ministers), whose role is to “define the general political directions and
priorities” of the Union (Article 15 TEU), as well as to “define the strategic guidelines for
legislative and operational planning within the area of freedom, security and
justice” (Article 68 TFEU). Let us therefore have a look at the “strategic
guidelines” determined by the European Council in its most recent meetings.
On 23 April 2015, the European
Council stated that there was a need to “consider options for organising
emergency relocation between all Member States on a voluntary basis” and to
“set up a first voluntary pilot project on resettlement across the EU,
offering places to persons qualifying for protection.” Furthermore, at its
meeting of 25 and 26 June, the European Council agreed on “the temporary and
exceptional relocation over two years from the frontline Member States Italy
and Greece to other Member States of 40.000 persons in clear need of
international protection, in which all Member States (except the UK) will
participate,” as well as “the rapid adoption by the Council of a
Decision to this effect; to that end, all Member States will agree by consensus
by the end of July on the distribution of such persons, reflecting the specific
situations of Member States.” No particular conclusions have been adopted
as to the 120.000 further asylum-seekers whose situation forms the subject
matter of the contested relocation decision.
a. European Council promising “that
no quota would be adopted”?
In his recent explanation of this
first plea, the Slovak Prime Minister said that the European Council had
allegedly “stated that no quota would be adopted” and that the Council of
Ministers had disrespected this agreement. Having read the conclusions of the
European Council summarised above, the Prime Minister’s statement seems to be
rather inaccurate. The Council has not acted contrary to the European Council’s
conclusions, which makes the first part of the first claim moot.
Hypothetically, however, if there
truly was a clear conflict between the conclusions of the European Council and
the actions of the EU lawmakers (the Commission, the Parliament, and the Council),
such situation could indeed raise some interesting questions concerning the
institutional balance in the Union. What if the European Council had expressed
a clear consensus that relocation of asylum-seekers was an undesirable, or even
unacceptable way of addressing the current crisis, and despite such consensus,
the Commission would subsequently propose a relocation measure (like the one
adopted on 22 September), which would be passed by the Council and the
Parliament?
It is necessary to realise that
the conclusions of the European Council are endowed by political, rather than
legal significance (see Article 15(1) TEU). That being said, if the Commission
acted in direct opposition to the “general political directions” (Art 15 TEU)
and “strategic guidelines” (Art 68 TFEU) adopted by the European Council, such
action could violate the principle of institutional balance, since it would deprive
the European Council’s decisions and conclusions of any effect. This shows that
although the European Council’s conclusions are not legally binding, they
should be endowed with political significance, therefore requiring the
Commission either to act in line with them, or to provide an elaborate and
politically acceptable explanation of any other action.
Still, this analysis remains hypothetical,
since the quotations above suggest that the draft of the contested decision did
not disrespect any of the political directions outlined by the European Council
in the past couple of months.
b. European Council requiring
that the vote in the Council be unanimous?
The second interesting question
concerns the European Council’s wish that the relocation decision be reached by
consensus, as expressed in the conclusions of 25 and 26 June. It is important
to point out that this wish only concerned the first 40,000 asylum-seekers, and
therefore remains irrelevant for the validity of the contested decision. That makes
the second part of the first argument moot as well. However, let us see (once
again, hypothetically) whether the European Council could, by its (political) decision,
require a different threshold for adopting a decision in the Council, in contrast
with the (legal) threshold required by the Treaties.
What happens if the procedure
envisaged by Article 78(3) TFEU requires a qualified majority vote in the
Council (which it does), while the European Council imposes a requirement of a
unanimous vote? While the Treaties remain silent about a change of procedures
from QMV to unanimity, they do include a provision governing a move in the
opposite direction: from unanimity to QMV. Pursuant to Article 48(7) TEU, “where [TFEU] or Title V of [TEU] provides for
the Council to act by unanimity in a given area or case, the European Council
may adopt a decision authorising the Council to act by a qualified majority in
that area or in that case.” A change from unanimity to QMV is therefore
possible, but it comes with significant procedural guarantees, such as
obtaining the consent of the European Parliament and giving national
parliaments 6 months to block such action. It follows that changes of Treaty
voting mechanisms require more than just a unanimous decision of the European
Council. Furthermore, while a change from unanimity to QMV is at least foreseen
by the Treaties, a change in the opposite direction is not. That leads to a
conclusion that such an instruction given by the European Council would only
have political significance, but would remain legally irrelevant.
Therefore, even if the
requirement of a unanimous vote extended to all legal measures adopted under
Article 78(3) TFEU, quod non, I hold
the opinion that such an agreement would remain a gentlemen’s agreement, rather
than a legally binding requirement. Therefore, the second part of the first
plea put forward by the Slovak government does not seem to offer a good reason
for the annulment of the contested decision, either.
2. Legislative vs. non-legislative
acts
“Second plea in law, alleging
breach of Article 10(1 and 2) TEU, Article 13(2) TEU, Article 78(3) TFEU,
Article 3 and 4 of the Protocol (No.1) and Article 6 and 7 of the Protocol
(No.2), as well as the principles of legal certainty, representative democracy
and institutional balance: Such kind of act as the contested decision cannot be
adopted on the basis of Article 78(3) TFEU. Regarding its content, the
contested decision is in fact of a legislative character and should therefore
be adopted by legislative procedure, which, however, is not foreseen in Article
78(3) TFEU. By adopting the contested decision on the basis of Article 78(3)
TFEU, the Council not only breached the latter, but it also interfered with the
rights of national parliaments and the European parliament.”
This second plea opens a very
interesting question of the nature of “legislative acts” in EU law: what does a
measure need in order to be “of a legislative character”? The Slovak
government seems to invoke a material
understanding of a legislative act, suggesting that some things are too
important to be governed by a non-legislative act. This, however, is not how EU
law seems to work. The concept of a legislative act seems to be a formal one, as follows from Article 289(3)
TFEU: “Legal acts adopted by legislative procedure shall constitute
legislative acts.”
Although EU law surely doesn’t
work with a material concept of
“legislative acts”, it remains unclear what a legislative act really is. Two formal
interpretations are still feasible: a narrow textual one and a procedural one.
According to a narrow textual interpretation, favoured e.g. by Lenaerts, by Craig &
De Burca, as well as by Advocate-General Kokott in her opinion in C-583/11 Inuit
Tapiriit Kanatami, the (non-) legislative nature of an act depends on one
and only factor: whether its legal basis refers to a “legislative procedure” in
its wording or not. Pursuant to this interpretation, an asylum measure adopted
under Article 78(3) TFEU will be a non-legislative act, while a measure on
diplomatic protection adopted under Article 23(2) TFEU will be a legislative
act, although the procedure of their adoption is exactly the same: a proposal
from the Commission and a qualified majority vote by the Council, after
consulting the European Parliament. This interpretation seems to be supported
by Article 289(2) TFEU, which states that special legislative procedure is only
used “in the specific cases provided for by the Treaties,” which simply
isn’t the case for measures adopted under Article 78(3) TFEU. Another argument
for this narrow textual interpretation is the practical functioning of the EU
institutions: Eur-Lex categorises the contested decision as an “NLE”, which
stands for “non-legislative procedure”. On a practical level, this textual
interpretation thus seems to be a well-established one.
The third thinkable alternative
is a procedural interpretation (that
seems to be preferred e.g. by Chalmers), according to which an act is to be
labelled as “legislative” if both the Council and the Parliament are involved
in its adoption, no matter whether the specific legal basis speaks of a
“legislative procedure” or not. There are in fact a number of solid arguments
for this broader interpretation of legislative acts. Firstly, Article 289(3) TFEU
(technically) does not say anything about the nature of acts that are not
adopted by a legislative procedure. In the terminology of formal logic, Article
289(3) is an implication; therefore, turning it around (and stating that “legal
acts not adopted by legislative procedure shall constitute non-legislative acts”)
would be a logical flaw. Secondly, the endorsement of the textual
interpretation would lead to a situation where entire areas of EU law (such as
competition law!) would not contain any legislative measures whatsoever, which
is rather curious. Thirdly, the textual interpretation would have vast
consequences for the procedural standing of non-privileged applicants under
Article 263(4) TFEU who would be able to challenge a much broader category of acts
without having to establish individual concern. Fourthly, if we were to link
the legislative nature of a measure with its democratic legitimation, the
procedural interpretation would make much more sense than the textual one. Yet,
despite all these arguments (and despite the hopes of some academics, as well
as practitioners), it seems that (at least at present), the narrow textual
interpretation of “legislative acts” seems to prevail.
Be that as it may, both the narrow
textual interpretation and the procedural interpretation are formal in their
nature. It makes no sense to claim that the measure at stake is “of a
legislative character” and that Article 78(3) TFEU is therefore not a correct
legal basis for such measure, if it cannot lead to the adoption of a
legislative act. The conditions of the said article have been fulfilled both
materially (emergency situation, sudden inflow of third country nationals,
benefit to the Member States concerned) and procedurally (proposal from the
Commission, consulting the Parliament, QMV in the Council). Therefore, the
second plea of the Slovak government seems to be unfounded as well.
3. Procedural conditions in case
the contested decision is indeed a legislative act
“Third plea in law, alleging
breach of essential procedural requirements governing the legislative
procedure, established in Article 16(8) TEU, Article 15(2) TFEU, Article
78(3) TFEU, Article 4 of the Protocol (No.1) and Article 6 and 7(1 and 2)
of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU
and the principles of representative democracy, institutional balance and sound
administration: If the Court of Justice contrary to the submissions of the
Slovak Republic within the second plea in law came to the conclusion that the contested
decision was adopted by legislative procedure (quod non), the Slovak Republic
in the alternative alleges the breach of essential procedural requirements,
established in Article 16(8) TEU, Article 15(2) TFEU, Article 78(3) TFEU,
Article 3 and 4 of the Protocol (No.1) and Article 6 and 7 (1 and 2) of
the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and
the principles of representative democracy, institutional balance and sound
administration. In particular, the requirement of public discussion and voting
within the Council was not respected, the participation of national parliaments
in the process of adopting the contested decision was limited and the
requirement of consultation of the European parliament was breached.”
This is where the distinction
between a textual and a procedural reading of “legislative acts” becomes
relevant. If the Court endorses the narrow textual reading of the concept
(which is, in my opinion, more probable), then the classification of the
contested decision as a non-legislative act will be confirmed and the
procedural guarantees invoked by the Slovak government will be inapplicable. Yet,
should the Court wish to reassess the notion of “legislative acts” and change
it to a procedural one, then the contested decision will have to be seen as a
legislative act that has not fulfilled the requirements listed above, namely
public voting in the Council (Article 16(8) TEU) and participation of national
parliaments (Protocols 1 and 2), which would lead to its annulment.
4.
Repeated consultation by the European Parliament
“Fourth plea in law, alleging
breach of essential procedural requirements, established in Article 78(3) TFEU
and Article 293 TFEU, as well as Article 10(1 and 2) TEU, Article 13(2) TEU and
the principles of representative democracy, institutional balance and sound
administration: Before adopting the contested decision, the Council
substantially amended the proposal of the Commission in several ways. When
doing that, the Council breached essential procedural requirements, established
in Article 78(3) TFEU and Article 293 TFEU, as well as Article 10(1 and 2) TEU,
Article 13(2) TEU and the principles of representative democracy, institutional
balance and sound administration. It is because the European parliament was not
properly consulted and the Council did not decide on the amendments of the
Commission’s proposal unanimously.”
This fourth point has already
been addressed by Steve Peers in his recent post and I agree that this indeed
seems to be the strongest procedural argument against the validity of the
contested decision. The original Commission draft concerned not just Italy and
Greece, but also Hungary, which in the final version of the contested decision refused
to be included in the group of external border States. As argued by Steve, this
is a change of an essential element, which probably should have been subjected
to a repeated consultation by the European Parliament. Possibly, the emergency
nature of the contested decision could serve as an argument against an
obligation to re-consult, which is, admittedly, a rather weak argument. However,
as Steve has already argued, even if this argument were to succeed, it would
only lead to a procedural redress (meaning that the outcome would be the same
even if the European Parliament were to be re-consulted) while the contested
decision would probably remain in force in the meantime. It therefore seems
that the fourth plea will not suffice either to have the contested decision
annulled.
5. The ‘provisional’ nature of
the contested decision
“Fifth plea in law, alleging
breach of Article 78(3) TFEU by not fulfilling the conditions for its
applicability: In the alternative to the second plea in law, the Slovak
Republic argues that there was a breach of Article 78(3) TFEU because the
conditions for its applicability, which concern the provisional character of
the measures adopted, as well as the emergency situation caused by a sudden
inflow of nationals of third countries, were not fulfilled.”
The fifth plea can be seen from
two points of view again: on the one hand, “the
provisional character of the measures” can be assessed from a formal
viewpoint, looking at the time period for which the measure remains applicable.
On the other hand, the plea invites the Court to assess whether the EU finds
itself in an “emergency situation”, facing a “sudden inflow” of migrants, which
opens up a more substantive analysis of the contested measure.
As for the more formal part of
the argument, the provisional character of the measures could be derived from
the fact that the contested decision is limited in time - it only applies until
26 September 2017. Is a provision that remains applicable for two years
“provisional” enough? The pre-Lisbon version of this provision was Article
64(2) TEC, which limited the duration of such provisional measures to six
months. Compared to this past requirement, two years seem to be quite long. On
the other hand, the current wording of the Treaties imposes no time limit
whatsoever, so two years cannot be seen as a priori illegal. (Yet, this
will be very similar to the data retention case: if 6 months are fine and 2
years are too much, how do we feel about one year? The criteria for assessment
are not clear.) Still, the contested decision’s provisional character could also
be derived from the fact that it only applies to those asylum-seekers who are
already present on the European Union territory or who are likely to come in
the very near future, while a long-term, sustainable solution is being sought
by a legislative proposal, which is currently in the legislative process
and which will presumably take quite some time.
As for the more substantive
analysis, it is rather difficult to predict what criteria will be chosen by the
Court to assess whether the EU really finds itself in an emergency situation.
The current migrant crisis is undoubtedly one of the most serious crises that the
EU has faced in the past couple of decades, but it remains to be seen how the
Court tackles the interpretation of the notions in Article 78(3) TFEU.
6. Principle of proportionality
“Sixth plea in law, alleging
breach of the principle of proportionality: The contested decision is
manifestly incompatible with the principle of proportionality, as it is
manifestly neither suitable nor necessary to achieve the desired end.”
The principle of proportionality
can certainly serve as a very strong argument – it can open the door for a
thorough assessment of the very core of any measure by the Court of Justice.
Obviously, this assessment is much more likely to be political than legal, with
the Court enjoying very wide discretion in balancing the values at stake. It is
a huge pity that the Slovak government has not worked out this sixth plea in
more detail, since any chance of success of this action is potentially hidden
in this last argument. The action could have put forward an argument that the
contested measure is not suitable to reach the desired aim (i.e. to relieve the
burden borne by the external border states and to show “solidarity and fair sharing of responsibility between the Member
States,” as outlined in the decision’s preamble), since relocating people
is too difficult and their further movement is too unpredictable. Furthermore,
under the heading of necessity, it could have been argued that a less
restrictive measure could have been adopted in order to solve the problem, such
as denying entry to migrants (although that could violate the basic principles
of EU law, particularly EU asylum law), triggering the regime of the Temporary
Protection Directive, or other forms of help (e.g.
financial, material or personal help) to the affected states. Last but not
least, the proportionality argument could have been coupled with other
quasi-political arguments, such as a claim under the national identity clause
in Article 4(2) TEU.
It can be concluded that the
Slovak government has missed a great chance to actually make a point under the
sixth plea, since a mere claim of manifest incompatibility with the principle
of proportionality does not give the Court anything to build on. That being
said, if the Court wants to annul the measure, it can always use this plea to
build a strong argumentation under the principle of proportionality.
Conclusion
Based on the analysis above, it
seems to me that the first three pleas have almost no chance of success (unless
the Court decides to reinvent a new understanding of “legislative acts”), the
fourth and the fifth pleas raise interesting issues that could lead to minor
interferences, such as the need to re-consult the Parliament, a limitation of
the contested decision’s application to a shorter period of time, or a very
narrow interpretation of the concepts of “emergency situation” or “sudden
influx of migrants”. The sixth plea, however, opens Pandora’s box and invites
the Court to exercise broad discretion in its assessment of the current
solution to the migration crisis. While proportionality leaves most scope for
the creativity of the Court, it is hard to see it replacing its own judgment
for the judgment of the Member States, especially in a situation where good,
plausible alternatives are quite hard to find.
Barnard & Peers: chapter 3,
chapter 5, chapter 26
JHA4: chapter I.5
Image credit: news.yahoo.com
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