The Three Villains and the Lifeblood of the European Union Project – Advocate General Sharpton’s Opinion in C-715/17 (the asylum relocation mechanism)

Niels Kirst, PhD candidate in EU law, Dublin City University

The Backdrop of the Migration Crisis

Recently, Advocate General Sharpston (hereafter ‘the AG’) had to give her opinion on the failure to implement Decisions of the Council regarding the relocation of migrants within the European Union. The opinion deserves distinction due to its firmness and its comprehensive categorization of the concept of solidarity in the European Union legal order. The case itself has a political importance since it relates to the ongoing rule of law crisis within the European Union.

The case concerned the Area of Freedom, Justice and Security (hereafter ‘AFJS’), Article 72 TFEU (the safeguard clause) and the Dublin Regulation, which allocates responsibility for asylum applications within the EU. In the proceedings, the European Commission (hereafter ‘the Commission’) brought infringement proceedings under Article 258 TFEU against Poland, Hungary and the Czech Republic for not implementing Decisions of the Council within their legal order. The case occurred at the Court of Justice of the European Union (hereafter ‘the Court’ or ‘Court of Justice’) as a direct cause of the migration crisis of 2015 in the European Union.

In September 2015 the migration crisis in the European Union was in full swing. Italy and Greece were overwhelmed by the number of migrants arriving at their shores each day. In response, on the 14th and 22nd of September 2015 respectively, the Council decided in urgently convened meetings that provisional measures are necessary to support Greece and Italy, which under the provisions of the Dublin Regulation, had to bear the highest burden in the migration crisis. This emergency was caused by a sudden influx of migrants into the European Union due to the military conflict in Syria.

In consequence, the Council (by qualified majority), agreed on Decision 2015/1523 and Decision 2015/1601 (hereafter ‘Relocation Decisions’ – discussed further here). The Council used Article 78 (3) TFEU as legal basis for the decisions, which provides the following: “In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned.” The article is located in Title V of the Treaty which deals with the AFJS and the common asylum and immigration policy of the European Union.

In an earlier proceeding, the legality of Decision 2015/1601 was unsuccessfully challenged by the Slovak Republic and Hungary (the judgment is discussed here). Having said that, the Czech Republic, Poland and Hungary decided to not follow the Relocation Decisions since they regarded them as a threat to their internal security. The essential question of the present proceedings was, therefore, if the three defendant Member States can advance a claim that absolves them of their obligations under the Relocation Decisions? (see para. 69 of the Opinion)

The Factual Background

The Relocation Decisions by the Council required the allocation of, respectively, 40 000 and 120 000 applicants for international protection within the Member States of the European Union. The Relocations Decisions required Member States to pledge a certain number of applicants, which would be identified by Greece and Italy and subsequentially be transferred to the pledging Member State.

Poland, while initially pledging to take 100 applicants, did not relocate any applicant. Hungary did not pledge to the Commission to accept any applicants. The Czech Republic pledged to the Commission to take 30 applicants, from which 12 have been relocated. (see para. 72) In response, the Commission noted in its Fifteenth Report on relocation and resettlement in 2016 that, "Hungary and Poland remain the only Member States that have not relocated a single person […]. Moreover, the Czech Republic has not pledged since May 2016 and has not relocated anyone since August 2016."

The Substance of the Case

After rejecting a long line of merely procedural challenges of admissibility the AG declared the infringement proceedings brought by the Commission admissible. The challenges of admissibility by the Member States were unfounded in so far as they did not undermine the valid purpose and the legal interest of the Commission in bringing the proceedings.

The AG started her substantive assessment of the case by pointing out that Decisions of the Council pursuant to Article 288 TFEU are binding upon the Member States and that the relevant Decisions are intra-vires as in so far the earlier challenge on legality of one of the Decisions brought by the Slovak Republic and Hungary was dismissed as unfounded by the Court. (para. 153 – 157)

The Commission alleged in its claims that the Member States failed to comply with the pledging requirement on the one hand, and with the relocation requirement on the other hand. By failing to pledge to take any asylum seekers the three Member States consequently also failed to effectively take any asylum seekers. This argument was supported by the AG since the failing to pledge necessarily also fails to relocate. (para. 170 – 171) 

After supporting the Commission’s arguments concerning the factual basis, the AG shifted to the assessment to the justifications of the defendants for their non-compliance with the Relocation Decisions. This gave the AG the possibility to comment extensively on very fundamental concepts of European Union law – namely, the principles of sincere cooperation, the rule of law, and European Union solidarity.

Poland, Hungary and the Czech Republic raised two substantial justifications for their non-compliance with EU law. Respectively, that Article 72 TFEU, read in conjunction with Article 4 (2) TEU allowed Member States to disapply the Relocation Decisions, and that the Relocation Decisions created a dysfunctional system. (para. 172 – 174) The Commission countered these arguments by pointing to the necessity of effet utile of EU law and the principle of solidarity, which is a fundamental principle of EU law. (para. 175)

Article 72 TFEU, which was the main defence raised by the three Member States, provides the following: “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” The three Member States used this article as justification which relieves them from their obligation to comply with the Relocation Decisions. The Commission argued that Article 72 TFEU should be interpreted similarly to the limitations for public security, et al, that apply to the fundamental freedoms of the internal market. (para. 187)

Regarding Article 72 TFEU, the AG first touched upon the concepts of ‘law and order’ and ‘internal security’ which are essential for understanding the scope of that article. Therefore, the AG turned to the three previous occasions in which the article had been treated by the Court: respectively Adil, A and Slovak Republic and Hungary v Council. (para. 190 – 194)

The AG acknowledged that the judgment in Slovak Republic and Hungary v Council foreshadowed the arguments which had been raised by the three defendants in the present proceedings. The AG cited the following crucial paragraph of the judgment in this regard, “If that mechanism were ineffective because it requires Member States to check large numbers of persons in a short time, such practical difficulties are not inherent in the mechanism and must, should they arise, be resolved in the spirit of cooperation and mutual trust between the authorities of the Member States […].” (para. 194)

On the concepts of ‘public order and security’ the AG pointed out that there must be a sufficiently serious threat affecting one of the fundamental interests of the society to establish a public order intervention (N, discussed here) and that the concept of security cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (Zh and O, discussed here). (para. 196 – 201)

The AG pointed specifically to the judgment in Bouchereau in the realm of the fundamental internal market freedoms, in which the Court found that it is the personal conduct of the individual concerned that must be assessed to determine whether there is a threat to the community of the Member State in question. (para. 199) The assessment of the personal conduct of the individual regarding the concepts of public order and security was crucial in the AG’s assessment.

Regarding Article 72 TFEU, the AG stated that the Article can only serve as a derogation measure in case the European Union legislator disregarded to take account of that obligation when drafting EU secondary law in the area of AFJS. (para. 202) However, in the present case, the European Union legislator did acknowledge the concepts of public order and security when it drafted the Relocation Decisions. Respectively, Article 5 (4) and 5 (7) of the Relocation Decisions took into account the concern of security as they gave right to Member States to refuse an applicant on reasonable grounds. (para. 203)

According to the AG, "it was perfectly possible for them to preserve the safety and welfare of citizens by refusing (on the basis of the Relocation Decisions themselves) to take applicant X, […]." (para. 207) However, they refrained to take that route and instead decided to entirely not apply the Decisions to safeguard their internal security.

Furthermore, the AG clarified that Article 72 TFEU may not be used in this way. It is not a conflict of laws rule which give the Member States competence over measure enacted by the EU legislature; instead, it is a rule of co-existence under the principle of subsidiarity. (para. 212) To substantiate this claim, the AG cited Factortame, NN (L) International, and Commission v Hungary to find that Article 72 TFEU is not a carte blanche to disapply any valid measure of EU secondary law with which a Member State disagrees. (para. 214 – 221)

In conclusion, the AG pointed to the measures which exist in EU law, regarding the safeguarding of security and public order, which allow Member States to deny a particular applicant entrance into a Member State. However, the AG clarified that there is no general pre-emption of EU secondary law by Article 72 TFEU. (para. 223)

Regarding the invocation of the principle of national identity enshrined in Article 4 (2) TEU by the three Member States, AG Sharpston again pointed to the case-law: Commission v Luxembourg, in which the Court held that national identity cannot lead to a general exclusion of applicants due to their nationality. There are less restrictive means to preserve the social and cultural cohesion of a society. In analogy, the AG applied this concept to find that a general exclusion of asylum applicants cannot be sustained. (para. 224 – 227)

Finally, all three defendants raised the claim that the Relocation mechanism was dysfunctional and that the dysfunctionality exposed them to a hardly assessable security risk. Further, the Czech Republic claimed that it would have been pointless to pledge certain numbers to the Commission since the majority of applicants would have been undocumented in any case, and the Czech Republic would be unable to assess the risk that such undocumented migrants pose to the country. (para. 228 – 229)

The AG rebutted the arguments by pointing to the principle of solidarity which requires the Member States to support each other in a situation of emergency, which was present during the migration crisis. Further, there would have been other means for the Member States concerned to express their fear of the dysfunctionality of the system. For example, by applying for temporary suspension of their obligations under the Decisions, as done by Austria and Sweden. (para. 234 – 235) Consequently, the AG opined to uphold the infringement against the three Member States.

Additional Remarks by the Advocate General

In the final part of the Opinion, the AG commented on the concepts of the rule of law, the duty of sincere cooperation and the concept of solidarity within the European Union. Concerning the rule of law, the AG noticed its primordial importance recognised in Article 2 TEU and the case-law of the Court (the most recent rule of law judgment is discussed here). Specifically, the AG remarked, "at a deeper level, respect for the rule of law implies compliance with one's legal obligations. Disregarding those obligations, in a particular instance, [when] they are unwelcome or unpopular is a dangerous first step towards the breakdown of the orderly and structured society governed by the rule of law which, as citizens, we enjoy both for its comfort and safety." (para. 241)

Concerning the duty of sincere cooperation, the AG clarified that this principle builds upon the common values of all EU Member States as enshrined in Article 2 TEU. These common values allow mutual trust among them which subsequentially enables mutual recognition in the realm of AFJS. Against this backdrop, the principle of sincere cooperation has to be understood. The AG assessed that the principle of sincere cooperation has been manifestly mistreated by the conduct of the three Member States. (para. 242 – 245)

Concerning Solidarity, the AG referred to the founding fathers of the ‘European project’, to find that only their openness and spirit to one another enable the European Union to flourish. Famously, the Schuman Declaration recognized solidarity as a cornerstone. Subsequently, the Court echoed that call for solidarity in Klöckner-Werke v Commission and formally recognized the principle of solidarity in Eridania zuccherifici nazionali and Others. (para. 246 – 251)

Moreover, the AG recognized that the principle of solidarity requires burden-sharing as seen in Grzelczyk and Bidar. Particularly, the AG stated that "Solidarity is the lifeblood of the European project. Through their participation in that project and their citizenship of the European Union, Member States and their nationals have obligations as well as benefits, duties as well as rights. Sharing the European ‘demos’ is not a matter of looking through the Treaties and the secondary legislation to see what one can claim. It also requires one to shoulder collective responsibility and (yes) burdens to further the common good.” (para. 251 – 255)

Comment

The significance of this opinion cannot be overstated. Due to the pending departure of the United Kingdom from the European Union, this could have well been the last Opinion from the British Advocate General Eleanor Sharpston. This may explain the length, accuracy and profundity of the opinion. Indeed, the Opinion provides a fully-fledged account of some of the core principles of European Union law and their respective case-law. The opinion will likely find its way into the canon of significant AGs' opinions – most notably concerning the reconstruction of what solidarity within the European project means, entails and what it requires by the Member States.

While touching upon core principles of European Union law, the opinion also clarifies the obligations of Member States under Decisions of the Council in the realm of AFJS. The Opinion gives guidance concerning the concepts of security and public order in EU law and assess the position of Article 72 TFEU in the EU legal order. Article 72 TFEU does not serve as a general derogation clause for Member States when they do not agree with a specific measure, instead, Article 72 TFEU applies only for particular cases under individual assessment or, when the EU has failed to take security and public order into account during the legislative process.

Besides, the Opinion has also a significant relevance in the ongoing rule of law crisis in the European Union. The proceeding before the Court concerned a case of disregard of secondary EU law by Member States. This disregard was presumably based on a national preference of not taking any applications for asylum. The Opinion clarifies that the rule of law in the European Union requires not only the independence of the national legal system but also, and foremost, the respect for and implementation of valid European Regulations, Directives and Decisions.

The key take-away of the opinion is the emphasis and the account on solidarity by the AG. Solidarity is essential for the functioning of the European legal order, as well as for the flourishing of the European project. By spanning a frame from the founding fathers of the European Union project to the migration crisis in the European Union of today, the AG distils the purpose and the idea of European solidarity. The European Union is not a system of cherry-picking of only the good parts while denying the burdens and obligations which also come with the membership. Instead, benefits and burdens have to be shared equally in the spirit of European Union solidarity.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: The Malta Independent

Should the EU sanction its Member States for breaches of rule of law and human rights? Part 2: The Application of Ordinary EU law

Professor Steve Peers, University of Essex

Should the EU sanction its Member States for systematic breaches of human rights and the rule of law – and if the answer is yes, how should it do so?

This is the second of three blog posts discussing this issue. The first post examined the formal process set up to sanction Member States to this end: Article 7 TEU. As I discussed there, this process – which could lead to suspension of some aspects of EU membership for a Member State – is highly political, with a very limited role for the EU courts, and is very difficult to apply. However, in the last year or so, ‘ordinary’ EU law has been used to challenge Member States for such breaches instead. This blog post is an overview and discussion of how this alternative process works. A third blog post will discuss the broader constitutional dynamics and historical context of sanctioning Member States.

The EU court process

Before looking more at the details of how ordinary EU law is being used to address general concerns about human rights and the rule of law, it’s necessary to summarise the key features of the relevant parts of the CJEU’s jurisdiction.

First, the infringement procedure allows the Commission (or a Member State) to take a Member State to the CJEU to argue that it is infringing EU law as such. The Court’s ruling in such a case is binding on the Member State concerned, but does not strike down a national law as such. If requested, the Court can order interim measures against a Member State while such a case is pending.

 

Secondly, the ‘preliminary ruling’ process (Article 267 TFEU) provides that any national court can ask the CJEU about the interpretation of EU law, if necessary to decide a case pending before it. These latter cases often concern an individual arguing that a Member State has not applied EU law correctly. The CJEU’s answers to the questions are binding on the national court, which resumes its proceedings after the CJEU’s judgment and decides on what remedy to apply – which could involve disapplying national law. 

Compared to Article 7, these are not just different processes (judicial, rather than essentially political) with a different remedy, but have in principle a much narrower subject-matter: the application of EU law as such, not the values of the European Union (as discussed in the first blog post). It’s literally the difference between building a bypass without doing an environmental impact assessment, and locking up the leader of the opposition. (Of course it’s always possible, as an homage to Douglas Adams, that an unauthorised bypass construction turns out to be an ironically clunky foreshadowing of more drastic developments to come).

Having said that, as I noted in the first blog post, there are times when an issue falls within the scope of both ordinary EU law and general human rights breaches. First of all, in some cases there are very specific links between the Article 7 process and ordinary EU law issues. Secondly, there are cases concerning the general protection of human rights and the rule of law where the Article 7 process and the ordinary EU law process can and do run in parallel, as the CJEU implicitly confirmed in June in its first ruling on Polish judicial independence (discussed further here). (See also the Advocate-General’s opinion in a further pending case against Poland, para 73). I’ll examine these two categories of cases in parallel.

Specific links: Asylum and the European Arrest Warrant

The two areas where specific links already exist between the Article 7 process and ‘ordinary’ EU law are asylum and the European Arrest Warrant.

Asylum

As regards asylum, the explicit link is not with EU asylum legislation, which concerns asylum applications by non-EU citizens – although systematic human rights breaches can have an impact there (see below), but to the protocol to the EU Treaties, which in principle rules out asylum claims by EU citizens.  

According to this protocol, since human rights are well-protected in the EU, ‘Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. Therefore, asylum applications by EU citizens ought to be rejected automatically in other Member States except where: (a) a Member State derogates from the ECHR on an emergency basis pursuant to Article 15 ECHR; (b) ‘if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national’; (c) ‘if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national’; or (d) if a Member State decides to consider an asylum application unilaterally in an individual case, subject to certain limits.

Of these four cases, the second and third explicitly link to the Article 7 process. In short, asylum applications by EU citizens are admissible either if a ‘yellow card’ sanction process is pending, or if the EU institutions have issued either a yellow card or a red card to a Member State. As discussed in the first blog post in this series, while no yellow cards or red cards have ever been issued, a yellow card process is pending against both Poland and Hungary. It follows that Polish and Hungarian citizens can already apply for asylum in other Member States – a surprisingly underappreciated point.

One reason that this possibility has been overlooked is because of the parallel existence of free movement of persons. There’s no Iron Curtain across the EU, far from it: Poles and Hungarians who are annoyed with their governments can simply move to another Member State if they meet the fairly liberal criteria to move under free movement law, and doubtless some disgruntled Polish and Hungarian citizens have moved within the EU (or to non-EU countries, on the basis of those countries’ immigration laws) for such reasons.  

The relevance of the possibility to make asylum claims would only apply in limited circumstances: where the person concerned moved beforehand (see a CJEU judgment from last year on a Croatian citizen with refugee status, discussed here); where the citizen does not qualify under free movement law because of lack of a job or support; where a transitional restriction on free movement after accession to the EU applies; or where the EU citizen is resisting a European Arrest Warrant (which was indeed the reason why the asylum protocol was originally added to the Treaties in the 1990s in the first place: to override asylum claims which were being made in order to defeat extradition requests).   

In the event of a crisis involving many thousands of EU citizens fleeing a Member State (cf Hungary 1956), the Protocol would come into its own, as many of those concerned would lack jobs or support. Odd as it might sound, EU asylum law would not apply to such a case, since it only applies to non-EU citizens; there would perhaps be some ad hoc arrangements quickly agreed to determine responsibility and eligibility, possibly applying EU asylum law by analogy.

European Arrest Warrant

So far, the CJEU has not been asked about the asylum protocol. However, it has been asked many times about the European Arrest Warrant (EAW) and human rights. Some of these cases concern detention conditions (see the line of cases discussed here), or independent prosecutors (see discussion here), but one judgment, the LM ruling of 2018 (discussed here), specifically addresses the application of the EAW where there are broader concerns about the rule of law in the State issuing warrants (in this case, Poland).  

According to the CJEU in that case, the preamble to the EAW law, which states that this law can only be suspended if an Article 7 ‘red card’ is issued, meant that the courts had to defer to the absence of a decision by the EU’s political institutions, and could not suspend the law as a whole by themselves. However, the courts could still consider whether there was a breach of the rule of law in individual cases, taking account of the arguments about a systemic problem with the rule of law in the issuing State which had been put before the EU institutions in a pending ‘yellow card’ proceeding (which was already underway against Poland).

Systematic human rights problems and ordinary EU law

The most important group of cases on this point relate to the independence of the judiciary, and consist largely (but not entirely) of cases concerning Poland. In its June judgment on the first of these cases, an infringement action concerning early retirement ages for the Supreme Court (discussed here), the Court of Justice confirmed that the requirement of respect for judicial independence is inherent in Article 19 TEU, which describes the EU judicial system, including the role of national courts. In doing so it clarified its earlier judgment on the Portuguese courts (discussed here), in which concern about judicial independence arose in the context of salary cuts which were the consequence of austerity linked to EU law.

Crucially, in this first judgment about Poland, the Court confirmed that no specific link to a particular EU law is necessary in order to argue that a Member State has infringed the principle of judicial independence. In effect, Article 19 TEU is a free-standing rule of EU law: arguments about judicial independence are inherently linked to specific EU laws, because EU law depends upon an independent national judiciary for its enforcement. However, the Court did not clarify whether Article 19 TEU only applies where there is a systematic problem with judicial independence (as the Advocate-General’s opinion argued), or could also be invoked in disputes about a specific incident.

A second infringement case against Poland, concerning early retirement ages for the ordinary courts, is also pending. An Advocate-General’s opinion in this case argues that the Commission’s claims are mostly well-founded, along similar lines to the first judgment (update: the Court’s judgment in this case, ruling against Poland, was released on November 5). A third batch of cases, referred from the national courts, concerns judicial disciplinary proceedings. In this case, an Advocate-General’s opinion argues that the case is linked to specific EU law, rather than Article 19 TEU as a free-standing rule, but that in any event Poland is again breaching EU law. The remedy is for the national courts to disapply the offending national law if necessary (judgment is due November 19). A fourth batch of cases might be inadmissible, in the opinion of an Advocate-General. A third infringement case, with a request for expedited proceedings, was brought in October. Furthermore, a number of other cases referred from Polish courts are pending, as summarised here.

A number of cases concerning specific EU law points have been brought against Hungary. In particular, the Commission has brought infringement actions concerning: the independence of the central bank (withdrawn), age limits for judicial retirement (successful; linked to age discrimination law, not Article 19 TEU as such), independence of the data protection authority (successful; discussed here); the removal of the Central European University (pending; an Advocate-General’s opinion is due in November); NGO funding (pending); systematic problems with the asylum system (pending); and withdrawal of food from irregular migrants (at the ‘reasoned opinion’ stage). These cases don’t explicitly raise systemic arguments about Hungarian protection of the rule of law – but their sheer volume, and the broader political context, notably as regards the independence of regulators, reflects some of the broader concerns that led the European Parliament to trigger the Article 7 process against Hungary.  

As regards Romania, a series of recent cases sent to the CJEU query whether the post-accession process of checking Romanian compliance with its obligations related to civil and criminal judicial cooperation has some legal effect, in order to address concerns about the rule of law in that country.

Moving away from specific countries, issues arise regarding EU funding. Should Member States with a questionable record in protecting the rule of law be hit in the pocketbook? That’s what the Commission suggested in a proposal relating to the next multi-annual EU budget, which would sanction Member States financially if a systemic deficiency in the rule of law ‘affects or risks affecting the principles of sound financial management or the protection of the financial interests of the Union’.

The EU Council legal service has concerns about the EU’s legal power to adopt this proposal, which have been rebutted by Professors Kelemen, Lane Scheppel, and Pech. The legal service’s view is that the proposal would breach the exclusivity of the Article 7 process. In my view, while I have legal doubts about the notion that the EU has general power to sanction Member States financially for breaches of the rule of law outside that process, this proposal is more tightly drawn than that: it only applies where there is a link between the rule of law deficiencies and the EU’s financial interests. To put it bluntly, it’s possible that corrupt officials or politicians might be shielded by biased judges. In that light, and taking account of the subsequent CJEU judgment finding that a lack of judicial independence is intrinsically linked to the application of EU law, it should follow by analogy that the EU has the power to adopt this proposal. However, it remains to be seen whether it is de facto blocked as part of a broader quid pro quo when agreeing the EU’s next multi-annual budget.  

Comments

As I noted in the first blog post, the use of ‘ordinary’ EU law means to address rule of law concerns, instead of the Article 7 process, could be a means of addressing those concerns by conventional means, given that some perceive Article 7 as a kind of ‘nuclear button’. Certainly it has its advantages compared to the Article 7 process, as it avoids the obvious reluctance of Member States to condemn each other in that context. Its use as a route to ensure the rule of law is strengthened by the CJEU’s willingness to assert jurisdiction over concerns about judicial independence more broadly. However, outside specific links with EU law and the issue of judicial independence, it might prove hard to use the ordinary EU legal system to deal with a number of concerns about the political system in a Member State besides those issues.

There’s also a risk that once national courts are ‘packed’, it’s too late to expect them to send questions to the Court of Justice. The Commission can still bring infringement actions, but these have less direct impact on the national legal process. And the Commission could in turn be ‘captured’ by those deferential to governments. At present, there are robust challenges to Member States as regards the rule of law via both national courts and the Commission – but it took awhile for the Commission to get going, and its willingness to be active in this field cannot be taken for granted.

If both national courts and the Commission are ‘captured’, there might still be some pressure from the courts of other Member States. But, for instance, placing indirect pressure via EAW cases has its limits: the CJEU has ruled out a general suspension of the EAW system except where Article 7 has been invoked, and anyway 'we won’t send you these fugitives' may not be too much of a threat; the issuing Member State might just think 'Fine, you’re welcome to them'. It might be legally difficult (for instance, due to lack of jurisdiction) or expensive for the requested State to try the fugitives instead, and in any event if the issuing State has problems with the rule of law, how could one trust a sentence handed down there, or evidence supplied by its legal system for the purpose of a trial in the requested State instead?  

So addressing the rule of law by conventional means has its strengths, but also its limits. And either Article 7 or the use of ordinary EU law raises more fundamental questions about the nature of the EU and its relations with Member States – to which I will return in the final blog post in this series.

Barnard & Peers: chapter 9

Photo credit: Steve Peers

Should the EU sanction its Member States for breaches of rule of law and human rights? Part 1: The Legal Framework

Professor Steve Peers, University of Essex

I’ve taught EU law and human rights for over twenty years now, and the issue of sanctions against Member States for human rights breaches used to be the easy bit. Why? Because the procedure to enforce such sanctions (set out in Article 7 TEU) had never been used – and there was no apparent prospect that it ever would be. So there was no need to discuss it in any detail. A more theoretical sort of academic might have spent time counting the angels on the head of this constitutional pin, but I was anxious to move on to the real world issues of arrest warrants and asylum seekers.

Everything has since changed. Like Article 50 – which similarly raises fundamental issues about the EU’s relationship with its Member States – Article 7 was apparently dashed off in previous Treaty amendment talks without much thought to its detailed application in practice, perhaps because its authors thought it would never be used. Yet here we are, with both Articles now a live political and legal issue: the Ragnarok of EU law.

There are two recent parallel major developments. First of all, the Article 7 process has been triggered both against Poland (by the European Commission) and Hungary (by the European Parliament). Secondly, there are case law developments raising general questions about Member States’ observance of human rights and the rule of law outside the very specific (and very political) Article 7 process. In this context, last week the CJEU delivered its first judgment that a Member State is infringing judicial independence by means of reforms to its judicial system (see discussion here).

The prospect of the EU sanctioning its Member States for breaches of human rights and the rule of law raises a number of fundamental legal and political issues – and is best understood in a broader historical context. In light of the recent developments (and ongoing disputes), this is an opportune moment to provide an overview and analysis of this issue.

I’ll do this in a series of three blog posts, addressing in turn:

a)      the legal framework for sanctions under Article 7

b)      the overlap of the sanctions rules with other aspects of EU law (now published)

c)       the historical context and broader constitutional dynamics (forthcoming).

The legal framework for sanctions

Although many people refer to Article 7 TEU, there are other Treaty provisions which are inextricably linked: Article 2 TEU sets out the values which Article 7 is used to enforce; Article 354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the normal rules of EU law, discussed in the second blog post.

First of all then, what are the values of the EU, legally speaking? Article 2 TEU states:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 then sets out the process of enforcing those values. It begins with Article 7(1), which provides for a kind of ‘yellow card’ – a warning if there is there is ‘a clear risk of a serious breach’ of those EU values:  

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Notice that the ‘yellow card’ process can be triggered by the European Parliament, or a group of Member States, or the Commission. There is no requirement of unanimity of Member States to approve a Council decision to issue a ‘yellow card’ (this is a common misunderstanding), but the threshold of four-fifths of Member States’ governments in the Council is nevertheless fairly high. Triggering the process (as the EP did for Hungary, and the Commission did for Poland), does not, as some think, mean that the Council will agree to issue a ‘yellow card’, or has done so already. Indeed, the Council is still considering the proposals to issue a ‘yellow card’ against both Poland and Hungary, having held several of the hearings referred to in Article 7(1). If the Council ever did issue a ‘yellow card’, note that this does not entail a sanction as such: it is only a finding of a risk to EU values, with possible recommendations. Nevertheless, the issue of a ‘yellow card’ is perceived as extremely politically serious.

This brings us to Article 7(2), which is the ‘red card’ of the process:

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

The procedure here is even tougher: unanimity of the Member States. The European Parliament cannot trigger the process, but could veto it  if the Commission or a group of Member States trigger it. The threshold to be met is higher: not just the risk of a serious breach, but the ‘existence of a serious and persistent breach’ of those values. It’s likely that the EU would get to the ‘red card’ stage after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight red’, for (say) a country which had suddenly undergone a military coup, is also conceivable.

What are the consequences of a ‘red card’? Article 7(3) sets them out:

…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

Notice that the Member States don’t have to act unanimously in the Council when deciding exactly what sanctions to apply to the black sheep amongst them. The unanimity threshold only applies when taking the previous step of deciding whether there’s a serious and persistent breach of the EU values.  As for the specific sanctions which might be imposed, the Treaty mentions suspension of voting rights, but that’s just one example. The Council might instead (or additionally) impose other sanctions, such as suspension of MEPs’ voting rights (which raises the awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in question – whose voices would ideally need to be heard). However, there’s an obligation to consider the rights of individuals and businesses, which suggests that trade sanctions might be problematic. It might also be hard to justify restricting free movement rights, but in any event note that there are specific rules on asylum for EU citizens fleeing from a Member State subject to a ‘red card’. (I discuss them further in the second blog post).

Most significantly, there’s no provision to expel a Member State from the EU as such. Having said that, a Member State subject to suspension might be so outraged to be in that position that it triggers the process of leaving the EU under Article 50. The UK’s withdrawal process has been complicated and controversial enough; now imagine the legal and political complexities of a Member State subject to an Article 7 ‘red card’ triggering Article 50. Should its political authorities’ actions be considered legally and morally valid? What if a group of exiles claim to be the legitimate government of that Member State (a la the USSR-era Baltic States), and that purported government does not wish to leave the EU?  What if a part of that Member State, at odds with the government in power over EU membership and its violation of EU values, attempts to secede?

Of course, the possibility of withdrawal (alongside concerns about sovereignty, and the workings of partisan politics) may also have influenced the pronounced reluctance of the EU to use the Article 7 process. Does the EU really want Michel Barnier’s main task to be crowd control?

Article 7(4) TEU then provides that the Council, again by qualified majority, may ‘vary or revoke’ its sanctions against a Member State ‘in response to changes in the situation which led to their being imposed’. Article 7(5) notes that the rules on voting within the institutions when Article 7 is being applied are set out in Article 354 TFEU. The latter provides that the Member State which is the subject of potential sanctions has no vote at any stage of Article 7, as otherwise this would obviously have made the adoption of any decision on breach of EU values impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision. Where the Council votes to implement a ‘red card’ decision, a higher threshold for adopting EU laws applies (72% of participating Member States in favour, instead of the usual 55%). If a Member State’s voting rights are suspended, the usual rules on Council voting with only some Member States participating apply. For its part, the EP ‘shall act by a two-thirds majority of the votes cast, representing the majority of its component Members’.

Finally, Article 269 TFEU significantly limits the role of the CJEU over the sanctions procedure:

The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.

The legal issues

Given the limit on judicial control of the Article 7 process, it is almost entirely political. So the legal questions arising from it may be largely hypothetical in practice. However, they do exist.

The first important point is the wide scope of issues which can be the subject of the Article 7 process. It is sometimes claimed that the process can only be used to sanction Member States for breaches of EU law, but this is clearly false. There is no reference to EU law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7 would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet other provisions of the Treaties (discussed further in the next blog post) give the Court extensive jurisdiction over the enforcement of ordinary EU law.

This claim about the limited scope of Article 7 is also absurd if you consider the broader context. Imagine, for instance, a Member State placing LGBT citizens in concentration camps. A narrow interpretation of Article 7 would mean that the EU could only complain about this to the extent that being locked up in camps would have a discriminatory effect on the detainees’ access to employment. Yes it would, but that would hardly be the most outrageous aspect of detaining LGBT people in camps because of their sexual orientation. (EU law is also relevant to LGBT refugees, but the Article 7 process would have to be triggered first for it to be relevant to refugees who are EU citizens).

So obviously Article 7 is not intended to be limited in this way. Indeed, its broad scope partly explains why the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on issues which are not normally within the scope of EU law. (Another reason is the intention to keep the Article 7 process in the hands of politicians, not judges).

On the other hand, the Article 7 process and ordinary EU law can overlap. The Court can use its ordinary jurisdiction to rule on an issue being discussed in the Article 7 process, and vice versa. This was confirmed implicitly in last week’s judgment on Poland and the rule of law, given that the issues in that judgment also formed a part of the Commission’s Article 7 case against Poland. In fact, the Advocate-General’s opinion addressed the overlap explicitly (paras 48-50), arguing that ‘[t]here are firm grounds for finding that Article 7 TEU and Article 258 TFEU are separate procedures and may be invoked at the same time’.  As noted already, this alternative option of using ordinary EU law to restrain Member States’ breaches of human rights or the rule of law is discussed in the next blog post in this series.

Exactly how does the Court’s limited jurisdiction over Article 7 work? The wording of Article 269 TFEU definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first sight, it also applies to the implementation of sanctions, since the text refers to any Council actions pursuant to Article 7 TEU. But on this point, the use of the word ‘determination’ is confusing, as Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values have been (or might be) breached.

Note also that the only possible challenger is the Member State sanctioned under Article 7 – not any other Member State, an EU institution, or an individual or business. If individuals are barred from challenging the validity of Article 7 implementation decisions, even indirectly via national courts to the CJEU, how else can the Council’s obligation to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ be enforced? At any rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing sanctions, which could be significant in working out the impact of sanctions on individuals. In particular, if Council decisions under Article 7 disapply ordinary EU law in some way, there should be no objection to the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.

A Court judgment under Article 269 TFEU can only address procedural issues, not substance. In other words, the Court cannot be asked to rule on the question of whether the Member State concerned has actually breached EU values (or seriously risks breaching them). As we will see in the second blog post, however, the developing case law on the overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little diffuse. Also, one can imagine that a Member State may make arguments about the fairness of the hearings, even where (as in the case of Poland and Hungary) some hearings have been held. (Update, Sep 1 2019: the Council's internal rules on Article 7 hearings have now been published). Finally, the time limits in Article 269 require significant fast-tracking: the challenge must be made one month after the determination (the usual deadline to bring an action to challenge an EU act is two months after publication) and (uniquely in EU law) one month for the Court to give its ruling.  

Even though Article 7 has not resulted in any sanctions decision yet, some issues about its scope may be addressed in the near future, because Hungary has brought a legal challenge to the European Parliament’s decision merely to trigger Article 7. This case might be inadmissible, because usually it is not possible to challenge the start of an EU legal procedure, but only a legal act once adopted, which may explain why Article 269 TFEU makes no reference to challenging acts of the European Parliament at all (or indeed, to challenging acts of the Commission or the Member States). The substance of the Hungarian government’s argument is that the European Parliament wrongly ignored abstentions when counting votes cast to trigger the Article 7 process.

One key legal and political question is the interpretation of the unanimity requirement to issue a ‘red card’ determination of a serious breach of EU values. Some have suggested that since two Member States are facing Article 7 procedures, and they would have a natural tendency to stick together and vote for each other, unanimity can never be reached. Therefore, for the ‘red card’ procedure to be effective, it must be interpreted to mean that any Member State facing an Article 7 procedure must lose its vote even as regards issuing a ‘red card’ against another Member State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘the Member State in question’ not voting in its own case – clearly using the singular, as well as the definite article. There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps of legal fancy are particularly inappropriate when a main point of the process is to ensure protection of the rule of law in the European Union.

Conclusions

Article 7 TEU recently turned 20 years old. It was conceived as a political process par excellence, and it remains supremely political at childhood’s end, even as the first attempts to trigger it are made. Due to its impact on national sovereignty, and the web of transnational partisan politics in which the governments concerned are embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a political emergency such as a military coup. Although the attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this version of the process is perceived as politically ‘nuclear’ too.

The obvious problem here – which the ‘yellow card’ reform sought but failed to address – is that democracy rarely collapses overnight. In the famous words of Michael Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it arrives as your friend’ – promising to:

…restore your honour, 

make you feel proud, 

protect your house, 

give you a job, 

clean up the neighbourhood, 

remind you of how great you once were, 

clear out the venal and the corrupt, 

remove anything you feel is unlike you...

And to that end, and for those reasons, it often gains a foothold through the democratic process. Yet the values of the EU to be protected also include democracy – and the Article 7 process is in the hands of the governments of fellow Member States. All have some skeletons in their own closet; and all have backs that might need some scratching by the governments of the States being criticised.

So is the Article 7 process doomed? In fact, the expansion of EU law in areas with significant relevance to human rights – and the willingness of the CJEU to rule on the judicial independence of national courts in general – means that recourse to the nuclear option may arguably not be necessary. In effect, the conflict over the protection of human rights and the rule of law in Member States can also be fought by conventional means: the ordinary system for the enforcement of EU law as such, to which we will turn in the second post in this series. As for the broader tension when concerns about the rule of law and human rights stem from a democratic outcome, this will be assessed as part of the broader discussion in the third post.  

Barnard & Peers: chapter 9

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The Slovak Challenge to the Asylum-Seekers’ Relocation Decision: A Balancing Act

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

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