Niels Kirst, Ph.D. Researcher in
European Union Law at the School of Law and Government of Dublin City
University*
*Reblogged
from the Bridge Network blog
Introduction
In a
recent judgment, the CJEU confirmed that Poland, Hungary, and the
Czech Republic breached European Union law (EU law) by not implementing two
Council Decisions (here and here; discussed in detail here) for the relocation of asylum seekers after the European
refugee crisis in the Mediterranean. In this seminal judgment, the
Court of Justice of the European Union (CJEU) rejected the arguments of the
parties who alleged that the European Union’s relocation mechanism could not be
implemented due to a general threat to law and order and public security
(Poland and Hungary), as well as the argument that the malfunctioning and the
ineffectiveness of the mechanism prevented its implementation (Czech Republic).
The
judgment was released against the backdrop of the current COVID-19 pandemic in
the European Union (EU), which has prompted a broader discussion on European
solidarity among the Member States. The judgment is a strong affirmation of the
principle of solidarity and the principle of sincere cooperation (enshrined in
Article 4 (3) Treaty on European Union (TEU)) and clarifies the scope of
Article 72 TFEU (maintenance of law and order and the safeguarding of internal
security). While the judgment has no immediate consequences for the affected
Member States, since the Council Decisions lapsed in the meantime, it was
lauded as an affirmation that the EU is a legal order based on the rule of law
(see here, here and here).
Two
Council Decisions established the relocation scheme in September 2015
(Council Decision (EU) 2015/1523 and Council Decision (EU) 2015/1601), in which the Member
States committed to relocate persons likely in need of international protection
from Italy and Greece. Poland, Hungary, and the Czech Republic were outvoted in
the latter decision adopted by qualified majority voting in the Council of the
European Union (Council) and subsequently either refused to take any
asylum-seekers (Hungary) or took only a minimal number (Poland & Czech
Republic).
As a
consequence, and given that all other Member States had pledged to relocate a
certain number of asylum-seekers, the Commission decided to initiate an infringement procedure and refer the three Member
States to the CJEU. In the Advocate General’s Opinion (AG’s Opinion), which was analyzed earlier, the departing AG Sharpston
reiterated the rule of law and the principle of solidarity in the EU legal
order and found that the Member States had failed to fulfill their obligations
under EU law. This blog post will provide an analysis of the reasoning of the
CJEU and the grounds of the judgment.
Admissibility of the Infringement
Proceedings
A large
part of the judgment was concerned with the admissibility of the infringement
proceeding. The infringement proceeding was brought by the European Commission
(Commission) under Article 258 of the Treaty on the Functioning of the European
Union (TFEU) in June 2017. First, the three Member States alleged that the
Commission’s action is devoid of purpose since the matter of the proceeding
(the Council Decisions) had expired. A judgment would only have a declaratory
nature which does not amount to a legitimate interest in bringing the
proceedings (para. 47-50). The CJEU rebutted these arguments by highlighting
that ‘a declaration as to the failures to fulfill obligations at issue is
still, moreover, of substantive interest’ (para. 66), according to Commission v Italy (1972) (Case 39/72). The CJEU found that
the infringement proceeding is neither devoid of purpose nor inconsistent with
the objectives under Article 258 TFEU (para. 70-71).
Second,
Poland and Hungary alleged a breach of the principle of equal treatment by
singling out three Member States in the infringement proceedings (para. 72-73).
The CJEU highlighted the discretionary principle, which allows the Commission a
certain leeway in bringing infringement proceedings (para. 75). Further, the
CJEU reiterated the ongoing reporting by the Commission, which stressed the
lack of implementation of the measures by the three Member States and the
apparent threat of a subsequent infringement proceeding (para. 77-78). Finally,
the Commission’s decision to bring an infringement proceeding against these
three Member States was justified by the gravity and persistence of the alleged
infringements (para. 81-82).
Third, Hungary
alleged a breach of the rights of defence during the pretrial phase of the
infringement procedure. According to Hungary, first, the Commission denied a
request for extension of deadline amid multiple infringement proceedings
ongoing against Hungary, second, the deadlines in the proceeding were extremely
short, and third, the Commission committed formal errors in drafting the
infringement procedure letters (para. 84-88). The CJEU rebuffed these arguments
by asserting that the Commission’s discretion in bringing an infringement
proceeding was not overstepped in the present case (para. 93-97). Further,
neither a minor formal error nor a denial to grant an extension of the deadline
is substantively eroding the admissibility of the infringement proceeding
concerning the rights of defence (para. 98 – 110).
Fourth, the
Czech Republic alleged that the infringement proceeding lacked precision and
that it was inconsistent in its legal plea (para. 111). The CJEU dismissed
these arguments by highlighting that the infringement proceeding was not ultra
petita and that the dates for compliance with the request were
sufficiently clear for the Czech Republic (para. 120-122). By dismissing the
arguments on inadmissibility, the CJEU followed the AG’s Opinion and turned to
the substance of the case.
Substance of the Case
First, the
CJEU had to assess if the infringements took place (para. 124-133). The CJEU
affirmed that the Member States breached Article 5 (2) of both Council
Decisions, which required the Member States to communicate the number of asylum
seekers they are willing to take to the Commission. Consequently, they breached
Article 5 (4) of the Decisions which required the actual relocation of asylum
seekers (para. 126-129). The proof of this breach of the obligations deriving
from the Decisions can be found in the monthly reports of the Commission (para.
130-132). Moreover, the Member States did not dispute that they failed to
indicate to the Commission their pledge of taking asylum seekers (para. 129).
Instead, they relied on a twofold justification for their non-implementation of
the Council Decisions.
In their defence,
Poland and Hungary first argued that Article 72 TFEU (maintenance of law and
order and the safeguarding of internal security) read in conjunction with
Article 4 (2) TEU (national identity clause) allowed them to suspend the
application of the Council Decisions since they would have created an internal
security risk in their territory (para. 134-138). Poland, in particular, argued
that Article 72 TFEU would be a conflict of law rule and would subsequently set
aside the secondary legislation such as Council Decisions (para. 137).
The CJEU
commenced with the assessment that ‘in a European Union based on the rule
of law, acts of the institutions enjoy a presumption of lawfulness,’ with the
consequence that both Council Decisions were binding for the Member States
(para. 139). Notably, in its judgment in Slovakia and Hungary v Council (discussed here) the CJEU had already affirmed the lawfulness of the
Council Decisions. While in the former case, Poland pleaded the illegality of
the Council Decision under Article 72 TFEU (see paras 306-309 of that
judgment), in the present case, both Poland and Hungary argued that Article 72
TFEU allowed them to disapply the Council Decisions (para. 142). Both arguments
are flawed, according to the CJEU.
The CJEU
reiterated that the only situations in which the Treaty expressly allows for
derogations which affect law and order or public security are Articles 36, 45,
52, 65, 72, 346 and 347 TFEU (para. 143). However, the derogations of Article
72 TFEU, which concern Title V of the Treaty (the Area of Freedom, Security,
and Justice), must be interpreted strictly (para. 144). Therefore it forecloses
the general refusal of application of the Council Decision (para. 150).
Moreover, in Article 5 (4), in conjunction with Article 5 (7), the Decisions
foresee the possibility to deny the relocation of asylum seekers in case that
there are reasonable grounds that a person is a threat to national
security or public order (para. 151). These Articles are a reflection of
Article 72 TFEU. Therefore, the Council duly took into account the
responsibilities incumbent on Member States to protect national security (para.
153).
The CJEU,
further stressed, that the serious reason (reasonable grounds) requirement
for rejection of individuals from the relocation scheme is to be interpreted
with a much wider margin of discretion for Member States than the requirements
for exclusion from refugee or subsidiary protection status under Directive 2011/95 (the Qualification Directive) (para.
155), which implements the 1951 Geneva
Refugee Convention in the EU legal order, or the rules on exceptions
to free movement law. Broad discretion is accorded to the Member States’
authorities to reject applicants on the grounds of national security or public
order (para. 158). However, Member States must provide consistent,
objective, and specific evidence for the suspicion that the applicant
actually or potentially is a threat to the public policy of the Member States
(para. 159). The invocation of Article 72 TFEU as a peremptory norm to deny any
applicant on the grounds of public policy is invalid, as highlighted already in
the AG’s Opinion (para. 160).
Since Poland
and Hungary refused to pledge to take any asylum seekers, they could not carry
out an individual assessment of the persons concerned (para. 161). Further, the
claim by the Member States that the mechanism was ineffective and characterized
by a lack of cooperation by the Italian and Greek authorities had to be
resolved in the spirit of cooperation and mutual trust (para. 164). In
conclusion, the CJEU found that ‘there is nothing to indicate that effectively
safeguarding the essential state functions, such as of protecting national
security, could not be carried out other than by disapplying both Council
Decisions’ (para. 170). Instead, the mechanism provided for in the Council
Decisions would have been the appropriate measure, which left the Member States
genuine opportunities to safeguard national security (para. 171). They failed
to take this measure.
In the second
defence, the Czech Republic argued that the malfunctioning and the
ineffectiveness of the mechanism made it disapply the Council Decisions and
instead pursue bilateral avenues of support for the concerned Member States
(para. 173-176). The CJEU reiterated that also, in this case, it was up to the Member
States to resolve these issues taking into account the mechanism provided by
the Council Decisions and the spirit of cooperation and mutual trust (para.
182). An outright suspension of the mechanism was not an adequate means to
lament its ineffectiveness. Further, ancillary bilateral measures by the Czech
Republic could not replace the general non-application of the Council Decisions
(para. 187). In conclusion, all three Member States failed to fulfill their
obligations deriving from the Council Decisions on the relocation mechanism.
Comment
This judgment
is a strong affirmation that Council decisions are binding for the Member
States, whether they like them or not. The EU is a legal order based upon the
rule of law. A formal compliance with the Treaty, Regulations, Directives, and
Decisions is necessary as a precondition of a rule-based order. Member States
may not disapply EU law simply because they do not like the decision, or
because it conflicts with their domestic political agenda. Specifically, the
Visegrád states have voiced a rejection of the EU’s common asylum policy
(see here) that culminated in Slovak Republic and Hungary v Council and the
present decision. The legal consequences of the judgment are entirely
declaratory. The obligations from the Council Decisions lapsed. Therefore,
there are no consequences for Poland, Hungary, and the Czech Republic after
this judgment. Notably, the Commission will also not be able to pursue a
penalty payment against the Member States under Article 260 TFEU.
Moreover, the
judgment is an indication that consensus in the EU has to be formed on the
political level. Otherwise, decisions on disputed issues such as the admittance
of asylum seekers will lead to the non-implementation of the measures by individual
Member States. This is a sad reality following from this judgment. In an ideal
world there should not be a necessity of the Commission to commence
infringement proceedings after a qualified majority in the Council takes a
decision. The dispute over a common approach to asylum policy highlights that
qualified majority voting still requires Member States to come to a consensus
that is tolerable for all of them. Otherwise, the Council risks the
non-implementation of decisions by some Member States. As a guidepost, it would
be recommended that any further decision in the area of asylum policy is based
on a consensus among the Member States. Otherwise, the next infringement
proceedings are just around the corner.
Barnard &
Peers: chapter 26
JHA4: chapter I:5
Photo credit: Puskechina,
via Wikimedia
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