Wednesday 27 November 2019

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)


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


  1. ‘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.’

    OK – but at what point were the voters confronted with that in the fullest sense? Similarly at what point were voters told that what we have in the EU is de facto (whilst theoretically not de jure) an open-ended and irreversible arrangement? What this shows is the glaring constitutional deficit we have in the EU. Look at the article. We are talking an issue about contemporary refugee flows and crowbarring in, amongst others, the 70 year old Schuman Declaration, internal market legislation and any number of abstract ideas.

    To be clear, I make no value judgement here on refugee flows and their management. What I am saying is that the voters have been left behind in a way that is deeply problematic. Frankly the scepticism we have seen about the European project should come as no surprise to legal scholars or anyone else in context. To say as much is a statement of stark reality, not an ideological capitulation to the jingoism that has become common currency on the EU institutions’ watch.

    What is being described in this article is neofunctionalist spillover red in tooth and claw. What one thinks of that is a matter of debate. But what to my mind what legal scholars can not reasonably do is pretend there is nothing but a legal issue here. Sharing the European demos is one thing, doing so with an asymmetric constitutional deficit and expecting everyone to fall into line and sing ode to joy is quite another. This is profoundly political.

    Perhaps now she’s going to have a bit of time on her hands Eleanor Sharpston might be well-advised to spend some of that time listening to (rather than talking at) people who have found the European ideal to be not quite what was advertised.

    1. Obviously since countries can leave, it's not irreversible for every State. And there are significant constraints on the EU gaining more power or shifting to majority voting. In this case there were political constraints on what the EU did - lots were arguing that this was a drop in the bucket at the time - and an enforceability gap because the outvoted States were unwilling to apply the law in an area of high politics. No one is saying that neofunctionalism necessarily leads to this particular outcome; and the internal market legislation referred to concerns the public security exception to the free movement of EU citizens, which is not an unreasonable provision to refer to by analogy.