The Future of Temporary Protection in Türkiye: Return of Syrians after the Fall of Assad

 

Dr. Ayşe Dicle Ergin, Assistant Professor, Bilkent University Faculty of Law

 

Photo credit: Henry Ridgwell, Voice of America news, via Wikimedia Commons

 

As of today, the vast majority of approximately 2.8 million Syrians in Türkiye, having fled the conflict and civil war, are under temporary protection. This figure does not include the 73,331 Syrians with residence permits. The regime applicable to the temporary protection beneficiaries is set out in the Law No. 6458 on Foreigners and International Protection (LFIP) and the Temporary Protection Regulation (TPR).

 

Following the fall of the Assad regime, there has been an expectation that Syrians will soon return to their home country. However, a realistic assessment of the current situation is essential to avoid fostering misguided expectations. This blogpost will examine the meaning and scope of temporary protection, the conditions for its termination, voluntary return, and the circumstances under which Syrians may be able to return.

 

Temporary Protection

 

Temporary protection is a regime that enables states facing a mass influx of refugees to provide emergency intervention without conducting individual refugee status determination procedures. It addresses protection gaps by ensuring the fundamental rights of individuals fleeing armed conflict and guarantees protection against refoulement. This regime was originally conceived as a return-oriented protection mechanism.

 

Under the temporary protection regime, both refugees covered by Article 1A(2) of the 1951 Convention and individuals eligible for complementary protection within the broader context of forced migration are provided with legal protection. This regime aims to use the host country’s resources efficiently while avoiding the perception that beneficiaries will remain in the host country permanently. In this context, the general expectation and the most commonly preferred solution is the return of beneficiaries to their home countries.

 

The international protection regime is founded on specific principles and criteria established under international law, and it is accepted that these principles largely apply to temporary protection, with the principle of non-refoulement serving as a key criterion in this context. As outlined in Article 33 of the 1951 Convention, this principle prohibits the expulsion or return of refugees to territories where they would face a risk of persecution. While this provision specifically applies to refugees, the second paragraph of the article allows for two exceptions based on public order and public safety considerations.

 

However, with the growing influence of human rights law, the principle of non-refoulement has been interpreted more broadly over time. As reflected in key international legal instruments, this broader interpretation extends to ‘everyone’ without exception. The case law of regional human rights courts has significantly contributed to this expansive understanding, solidifying non-refoulement as a fundamental principle of human rights law and international customary law.

 

The ECtHR interprets the principle of non-refoulement within the framework of Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and ill-treatment in an absolute manner. In this regard the ECtHR has adjudicated cases involving both generalized violence and national security concerns. These rulings affirm that the principle of non-refoulement constitutes a non-derogable obligation under the regional law of the Council of Europe, of which Türkiye is a member.

 

The principle of non-refoulement is a fundamental and binding principle of the international protection regime, ensuring that no one is returned to a territory where they would face a risk of persecution, torture, inhuman treatment, or punishment. Türkiye upholds this principle through legal guarantees enshrined in Article 17 of its Constitution, Articles 4 and 55 of the LFIP, and Article 6 of the TPR.

 

End of Temporary Protection

 

As reflected in its name, temporary protection is granted for a limited period; however, determining the exact duration is not always possible. In the 1990s, it was widely accepted that temporary protection should not extend beyond five years, whereas the current upper limit is generally set at three years. The EU Temporary Protection Directive (EU TPD) also stipulates a maximum protection period of three years, provided that the reasons for temporary protection persist (EU TPD Art. 4). However, following the Ukraine crisis, EU practice has shifted towards extending this duration despite ongoing legal debates.

 

In contrast, Turkish national legislation does not specify a maximum time limit for the temporary protection regime (TPR, Art. 10). Temporary protection may cease either individually or collectively. In cases of collective cessation, the President may terminate temporary protection upon the proposal of the Ministry of Interior (TPR, Art. 11). Following such a decision, the President also determines the durable solution for beneficiaries of temporary protection, which may include: full cessation to facilitate return to the country of origin, collective granting of status, individual assessment of applications for international protection, or the provision of a legal right to stay under the conditions outlined in the LFIP). According to the Temporary Protection Regulation, the primary expectation after cessation is the return of beneficiaries to their home countries (TPR, Art. 14). The TPR further mandates that authorities provide the necessary facilitation and assistance for those opting for voluntary repatriation (TPR, Art. 42). The grounds for individual termination of temporary protection include voluntarily leaving Türkiye, availing protection of a third country, being admitted to a third country for humanitarian reasons or resettlement, passing away, or acquiring a legal right to stay or Turkish citizenship as stipulated in the law (TPR, Art. 12).

 

Voluntary Repatriation and Return

 

Voluntary repatriation is a key concept in situations where the conditions that initially necessitated protection in the host country no longer exist in the country of origin. In the context of international protection, the international community, particularly the UNHCR, recognizes three durable solutions: voluntary repatriation, local integration, and resettlement. While the Global Compact on Refugees expands these solutions with the inclusion of ‘complementary pathways’, voluntary repatriation remains the most widely favoured durable solution by the states. This preference is reaffirmed not only in UNHCR Executive Committee conclusions but also promoted by the international community in the Global Compact on Refugees, which emphasizes facilitating the sustainability of returns.

 

The 1951 Convention does not explicitly address voluntary repatriation. However, international human rights law establishes the fundamental principle that no individual shall be deprived of the right to return to their own country (UDHR, Art. 13/2; ICCPR, Art. 12/4; CERD, Art. 5/d; ECHR, Protocol No. 4, Art. 3/2; African Charter on Human and Peoples’ Rights, Art. 12/2; American Convention on Human Rights, Art. 22/5). The key element of this process is its ‘voluntary’ nature - meaning the return must be based on the free will of the individual. Consequently, as highlighted by UNHCR, voluntary repatriation can only be considered a viable solution under international law if conditions in the country of return ensure the safety, dignity, and rights of returnees.

 

Although voluntary repatriation and cessation are distinct legal procedures related to refugee returns, they are closely interconnected. Article 1(C) of the 1951 Convention specifically regulates cessation in cases where international protection is no longer necessary or justified. In the Turkish legal framework the conditions necessitating the cessation of international protection are stipulated for refugee, conditional refugee and subsidiary protection statuses in Article 85 of the LFIP in line with the 1951 Convention. Return to the country of origin after the termination of temporary protection, which is regulated in Article 14 of the TPR, can also be considered as a form of cessation. This is because when the circumstances that necessitated international protection no longer exist, protection ceases, making return to the country of origin a natural outcome.

 

On the other hand, there are no uniform rules regarding the modality of voluntary repatriation. Relevant material and procedural conditions may vary depending on government policies. While return is always possible, ‘repatriation’ refers specifically to the facilitation of return. According to its Statute, UNHCR is tasked with promoting voluntary repatriation (UNHCR Statute, Art. 8/c).  Yet UNHCR verifies the following essential conditions before engaging in the voluntary repatriation of refugees: (i) changes of a profound nature in the country of origin, (ii) voluntary nature of the decision to return, (iii) timely dialogue between the host country, the country of origin and UNHCR and clear allocation of responsibilities through a tripartite agreement, and (iv) ensuring that the safety and dignity of returnees are respected.

 

UNHCR Handbook on Voluntary Repatriation emphasises the importance of ensuring that return is voluntary, safe, dignified, sustainable, and durable. These standards are also underlined in relevant literature (see: here, here, here and here). Moreover the voluntary nature of return means that it must be an informed choice rather than a result of reduced assistance and unbearable conditions in the host country. This requires the transparent provision of detailed information about security and living conditions in the country of origin to potential returnees. Dignified return necessitates guarantees against potential violations of the individual’s rights, whereas, according to UNHCR, safe return is only possible when three elements are met: legal, physical, and material safety. Physical safety requires a secure environment that ensures freedom of movement and access to territory. Legal safety entails equal treatment upon return. Material safety is established through access to humanitarian assistance. These factors are directly proportional to progress in improving security and living conditions in the country of origin. Regarding the threshold for improvement in conditions, UNHCR Discussion Note considers a “general improvement in the situation of the country of origin so that return in safety is both possible and desired” sufficient (UNHCR Discussion Note, para. 8.A.i). However, this threshold is open to criticism for being lower than the one expected for cessation while it is argued that repatriation should not take place before the circumstances have changed.  On the other hand, sustainable return could be achieved through facilitating and monitoring the reintegration of returnees.

 

In short, voluntary repatriation is a solution that can be implemented when, based on an objective assessment, the circumstances that led to displacement no longer exist, return is deemed feasible and in line with the principle of non-refoulement, and the process takes place in a safe and dignified manner. Accordingly, individuals’ return decisions will be shaped by these conditions.

 

Expectations for Return of Syrians to Their Country in the Short Term After the Fall of the Assad Regime and Relevant Obligations

 

As a country that has suffered extensive damage from conflicts, Syria remains unstable, with significant uncertainty about its future. Currently it is impossible to predict when voluntary repatriation will become a viable option for the beneficiaries of temporary protection. Several factors must be considered as a priority, including the uncertainty over which actor/s will control different parts of the county, the accommodation and housing needs of returnees, existing infrastructural deficiencies, and the limited availability of employment and livelihoods opportunities.

 

UNHCR reported the return of 270,000 Syrians from the neighbouring countries to Syria as of 5 February 2025 including 81,576 returnees from Türkiye. However, it remains unclear whether these returns are permanent. Many Syrians may have travelled back their home country to assess conditions, visiting their homes while waiting for the summer holiday to bring their children and other family members along. Despite these numbers, it is too early to draw optimistic conclusions in the short term.

 

Accordingly, certain factors need to be considered for a realistic plan:

 

Respect for legal obligations and the principle of non-refoulement:

 

As outlined above, the principle of non-refoulement, governed by Article 33 of the 1951 Convention, is reinforced by fundamental human rights principles. This protection is embodied in the Turkish legislation and the ECHR. Legal provisions safeguarding the right to life and prohibiting torture impose a duty on states to protect individuals from potential violations of these rights. In line with this, both the Turkish Constitutional Court (TCC) and the ECtHR have issued recent rulings assessing whether national authorities have adequately reviewed and corroborated applicants’ claims regarding the violation of their right to life or the risk of torture or ill-treatment upon return to conflict areas. (See A.A. ve A.A.; Abdulkerim Hammud; Hüsam İbrahim; Ali Elhüseyin cases by the TCC and L.M. and others v. Russia; M.D. and others v. Russia; Akkad v. Turkey cases by the ECtHR)

 

Therefore, regardless of whether temporary protection terminates collectively or individually, the State’s obligations under international law remain in effect. In all cases, states are required to uphold their legal commitments and respect the principle of non-refoulement. Moreover, returnees should be provided with comprehensive information and guidance to ensure their informed consent for safe and dignified return, thereby mitigating the risk of human rights violations.

 

States can facilitate “go-and-see” visits after conflicts end, allowing potential returnees to assess security conditions, find accommodation, seek employment or check the general situation in their home countries. Some of the visits facilitated by the Turkish Ministry of Interior after the fall of the Assad regime can be considered within this scope. The conditions of such exploratory visits are also included in the EU temporary protection framework.

 

Planning for processing of individual applications of those in need of protection:

 

Under the TPR the beneficiaries of temporary protection are not permitted to file individual asylum applications, and applications submitted before the TPR came into force cannot be processed (TPR, Art. 16 and Provisional Art. 1). In the event of collective termination of temporary protection, it should be a priority to plan how to process individual applications of those in need of international protection and what steps to take for those who no longer have a legal right to stay in the country. Since circumstances will vary on a case-by-case basis, status determination procedures must be initiated for those who claiming to be unable to return return due to their ongoing need for international protection. Assessments may be conducted on an individual or family basis to determine the place of origin (in this case, in Syria) and to establish whether it is safe for return, whether such individuals qualify for international protection, and if eligible, what status will be granted to them. These procedures will be essential in ensuring that protection needs are met while maintaining compliance with legal obligations.

 

Adoption of realistic approaches and transparent provision of information both to Syrians and the society:

 

Historical examples demonstrate that the return of Syrians is likely to be a realistic option only in the medium to long term. Past mass influx experiences have shown that states often hold overly optimistic expectations regarding safe and rapid returns. For instance, it took more than a decade for approximately 2 million temporarily protected Bosnians to return to Bosnia and Herzegovina following the Yugoslav crisis. Similarly, the return of those forcibly displaced due to conflicts in Burundi, Cambodia, Liberia, and South Sudan was also a prolonged process.  These examples suggest that adopting a cautious approach rather than an overly optimistic one would provide a more realistic perspective.

 

The UNHCR’s Position on Returns to Syria, published in December 2024, highlights that Syria is not yet safe for large-scale voluntary repatriation, emphasizing that returns should only begin once security, societal, and humanitarian issues are adequately addressed (para. 3). That said, it would also be inaccurate to portray the return of Syrians as an impossible prospect as repatriation to safe areas remains a possibility when based on informed consent. However, states, UNHCR, and relevant stakeholders must work together to facilitate returns through a multi-stage plan with a realistic timeline.

 

Ensuring sustainable reintegration of voluntarily returning returnees:

 

Furthermore, the sustainability of returns to Syria depends on development support for Syria and increased assistance and support to Türkiye, rather than the symbolic funding allocated in recent years. Even as of 2019, Turkish authorities reported having spent $40 billion on supporting Syrians in Türkiye. Meanwhile, following the destruction caused by internal conflicts and international sanctions, the estimated cost of reconstruction in Syria ranges between $250 billion and $400 billion.

 

Significant infrastructure development, well-equipped human resources, and targeted development assistance will be essential for any new government in Syria to create conditions conducive to return and stabilize the country. To secure such assistance from the international community, the new government must establish an inclusive and democratic regime.

 

Conclusion

 

There is a perception that large-scale returns to Syria will take place soon. However, given the situation on the ground, this is dependent on political, economic and legal realities. Voluntary repatriation is not only a political matter but also a legal one, as it must adhere to international standards that ensure safety, dignity and sustainability. Various challenges could facilitate or hinder this process including political fragmentation, economic instability and security concerns. Above all a well-managed and inclusive reconstruction process will be essential. This process would demonstrate how a nation composed of diverse ethnic and sectarian groups, with weak sense of nationhood and limited resources, can transform into a stable and secure country within a relatively short period. Ultimately, time will determine whether large-scale voluntary repatriation to Syria will be possible. While a democratic and stable government is the ideal scenario for the future of Syria, the opposite also remains a possibility in the near future.

 

 

The risk of circumvention of EU sanctions through the immediate family of leading businesspersons and the CJEU’s case law

 

 

Antje Kunst*

*Antje Kunst is an international lawyer and barrister of Pavocat Chambers, admitted to the bar of England and Wales and the Bar of Berlin advising and representing individuals in a wide range of matters related to the CFSP ranging from EU employment cases to EU and international sanctions against individuals.

***Comments of academic researcher of the University of Luxembourg, Ms. Francesca Finelli were gratefully received. All views contained in this article, however, remain those of the author alone.

Photo credit: W Bulach, via Wikimedia Commons

 

The inclusion of family members in the categories of persons covered by EU targeted sanctions against Russia has been justified, in the Council’s view, for maximising the effectiveness of those sanctions. The inclusion of family members of leading businesspersons aims to prevent the circumvention of EU targeted sanctions (in the forms of asset freeze) by the transfer of assets between targeted leading businesspersons and their immediate family.

Updating the EU sanctions regime against Russian businesspersons

 

The EU's targeted sanctions against Russia's economic elites introduced on 5 June 2023 a short but significant amendment to its current sanctions regime. It extended the scope of the sanctions regime through Council Decision (CFSP) 2023/1094 (‘Council decision of 5 June 2023’) to permit the designation of immediate family members of leading Russian businesspersons operating in Russia. There are in other words now EU legal acts in place which allow for the adoption of EU sanctions against the sons and daughters, spouses and parents of Russian oligarchs based on the autonomous designation criterion of immediate family members of leading Russian businesspersons operating in Russia. (In 2015 the Council introduced the ‘leading businessperson operating in Syria’ as an autonomous general listing criterion. See Council Decision (CFSP) 2022/329 and Council Regulation (EU) 2022/330 of 25 February 2022 on the criterion of ‘leading businesspersons’.) Family members of Russian leading businesspersons have been put on the lists since early 2022 but under different grounds.

The Council’s reason for the recent amendment, undoubtedly owing to the initial rulings on Russian sanctions from the General Court in recent months (Case T-743/22 R, Nikita Dmitrievich Mazepin v Council, Order of 1 March 2023 and Case T-212/22, Violetta Prigozhina v Council, ECLI:EU:T:2023:104), is that ‘leading Russian businesspersons have engaged in a systematic practice of distributing their funds and assets amongst their immediate family members and other persons, often in order to hide their assets, to circumvent the restrictive measures and to maintain control over the resources available to them’ (Recital 5 of Council Decision 2023/1094  of 5 June 2023).

The amendment was prompted, in particular by the successful annulment of the listing in Case T-212/22, Prigozhina, which was initiated by the mother of the head of the Wagner Group. In that case, the General Court emphasized that in a legal framework such as the Syrian sanctions regime (after 2015: see Council Decision (CFSP) 2015/1836 of 12 October 2015 and Council Regulation (EU) 2015/1828 of 12 October 2015), the family link with ‘certain families’ may be sufficient to include the name of the persons on the lists at issue. In Prigozhina however, so the General Court, the EU legal acts setting out the framework for EU sanctions as a result of the invasion of Ukraine by Russia, did not refer to the members of ‘certain families’. That is why the Council had not established the risk of circumvention (para. 105 of the judgment). Another main reason was that the Council could not prove a sufficient ‘association’ with the primary target beyond mere family ties.

The curious nature of words

With this most recent amendment of the framework in June 2023, the chosen wording is of particular note. It refers to the possibility of the inclusion of immediate family members of leading businesspersons operating in Russia, even if the question is what exactly immediate family members are. Also, the Council does not refer to members of ‘certain families’ as it previously did as regard sanctions taken against Syria. Rather, the Council’s wording vis-à-vis Russia it appears to imply a presumption of circumvention through immediate family members of leading businesspersons operating in Russia.

In the Syrian sanctions framework since 2015, the EU legal acts have explicitly provided for the freezing of funds of ‘leading businesspersons operating in Syria’ and ‘members of the Assad families or Makhlouf’, as well as persons ‘associated with them’ (Council Decision (CFSP) 2015/1836 and Regulation (EU) 2015/1828). In this context, presumptions are used (by the Council) and accepted by the CJEU (see for example C‑458/17 P, Rami Makhlouf v Council, ECLI:EU:C:2018:441, para. 91, Case T‑186/19, Zubedi v Council, ECLI:EU:T:2020:317 para. 72; Case T‑256/19, Bashar Assi v Council, ECLI:EU:T:2021:818 para. 166) that individuals falling under these categories benefit from the sanctioned regime in order inter alia ‘to avoid the risk of circumvention of restrictive measures through family members’ (Recital 7 of Council Decision (CFSP) 2015/1836). 

Testing the presumption of circumvention

The question, therefore, is whether the Court of Justice – on appeal from a raft of judgments that the General Court will continue to deliver in the immediate future, in the context of the Russian sanction regime – would accept a (new) rebuttable presumption of circumvention (see Case T-5/17 Sharif v Council, EU:T:2019:216, para. 86), i.e., that the Council can legitimately presume leading businesspersons operating in Russia will transfer assets within their immediate family to circumvent EU sanctions (see paras. 103–110 of that judgment).

There is no reference to ‘certain families’ in the EU sanctions legal framework as was the case in the Syrian sanctions regime. Thus, the Court of Justice might not so easily accept a presumption of circumvention based on a sole family link (taken in consideration the Court of Justice’s Tay Za reasoning, and the Advocate General’s Opinion). It is only if the Council could provide solid evidence that there is indeed a ‘systematic practice of distributing their and assets amongst their immediate family members’ (see Recital 5 of Council Decision of 5 June 2023), that the Court of Justice might accept the Council’s rationale, accounting for fundamental rights too.

This information of a ‘systematic practice’ of circumvention might be in the Council’s possession, but it might not be possible to disclose the evidence based on its classified nature. The alternative is disclosing classified evidence, which the Council may be reluctant to do. The Court of Justice’s closed evidence procedure (under Article 105 of the General Court’s Rules of Procedure), introduced as a possibility for use in restrictive measures cases, to date, remains inactive, and has never been utilised.

“Associated”

Immediate family members have been included in EU sanctions lists since early 2022 as ‘associated’ with leading Russian businesspersons in their individual statements of reasons. In Prigozhina, the Council was not able to establish ‘(economic) association’ of the mother of the chief of the Wagner Group at the time the measures were adopted, and sufficiently link her to her son, the primary target, and the Russian government. Thus, the General Court relied on its established case law of Tay Za regarding an ‘association’ which considers a mere family tie to the primary target, a business leader, associated with the government not sufficient. That said, the General Court in Prigozhina ruled that there is a ‘non-negligible risk’ that individuals providing support to the government, e.g., leading businesspersons, might exert pressure on individuals associated with them, e.g., their family members, in order to circumvent the effect of the measures to which they are subject (para. 105 of the Prigozhina judgment. See also Amer Foz v Council, Case T-296/20 ECLI:EU:T:2022:298, paras. 174 and 176, Sharif v Council, T-540/19, not published, EU:T:2021:220, paragraph 159, and, by analogy, judgment of 4 September 2015, NIOC and Others v Council, T-577/12, not published, EU:T:2015:596, para. 139).  

Businesspersons vs rulers

Generally speaking, the case law of the Court on the legality of family members’ designations is characterized by two main approaches. Regarding family members of leading businesspersons, their designation would be annulled if based on the sole ground that the family member also benefits from the economic policies of the government (Tay Za approach). Regarding the family members of rulers of a third country, their designation would be lawful by a presumed connection between the individual and the (targeted) regime (Al Assad approach). The case law has been though at times inconsistent. For a broader analysis on circumvention of EU restrictive measures, see Francesa Finelli, ‘Countering Circumvention of Restrictive Measures: The EU Response’.

In Al-Assad, another Syrian ‘immediate family member’ case (concerning the President’s sister), the Court of Justice found that the presumed risk of circumvention was ‘quite obvious’ between leaders of a state and their immediate family members. It also observed that, if the EU sanctions in question targeted only the leaders of the Syrian regime, the objectives pursued by the Council could have been frustrated as the leaders can ‘easily circumvent’ those measures by means of their relatives and associates.

The Al-Assad approach has generally not been followed by the CJEU in the case of immediate family members of leading business persons (see Tay Za) but only in cases of ‘immediate family members’ of rulers of a third country (see Butler, G 2023, 'Of Rulers, Relatives, and Businesspersons: The Imposition of EU Restrictive Measures through Sanctions on Family Members', Legal Issues of Economic Integration, vol. 50, no. 4). The rationale is explained by Advocate General Mengozzi in his Opinion in Tay Za with three circles of targeted individuals, which has been accepted by the CJEU. In the Syrian sanctions case of Foz, the CJEU  accepted the presumption of a real risk of circumvention, in a case of an immediate family member of a leading business person operating in Syria case.  The Court of Justice ruled in that case that it is reasonable to presume a ‘real risk of circumvention’ if a family member has close business and family ties with a designated individual, even when the designated person is a leading businessperson and not a political leader in Syria. Moreover, it found that family ties may pose a real risk of circumvention of EU restrictive measures, irrespective of the role of the designated individual in the targeted regime (see Finelli, ‘Countering Circumvention of Restrictive Measures: The EU Response’).

The relevance of presumptions

Generally, the CJEU has accepted indirect evidence such as rebuttable presumptions in view of the difficulties encountered by the Council to find direct evidence (see para 46 Anbouba v Council, C-605/13 P, ECLI:EU:C:2015:248) for the fact than an individual like an immediate family member of a primary target supports a regime or benefits from it. In Syrian sanctions cases, since 2015, the Council consistently relied on and the Court of Justice accepted rebuttable presumptions rather than evidence that they have engaged in prohibited conduct. Their designation presupposes the personal link between them and the already designated individuals, and ultimately the third country’s regime targeted.

Consistent case law of the Court of Justice provides that the use of presumptions is only permitted on the condition that (i) those presumptions have been provided for by the measures at issue, (ii) are consistent with the objective of the legislation at issue, (iii) proportionate to the aim pursued by the EU, (iv) rebuttable and (vi) safeguard rights of defence are safeguarded (see Case T‑714/20, Ovsyannikov v Council, ECLI:EU:T:2022:674).

The Council will need to establish that the inclusion of immediate family members of Russian business leaders is proportionate to the pursued aim of inter alia preventing circumvention of the sanctions imposed.

At the moment it is unclear whether the Court implied in the case of Prigozhina that the ‘real risk of circumvention’ through family members can only be invoked in the context of EU sanctions against Syria (see Finelli, ‘Countering Circumvention of Restrictive Measures: The EU Response’). The established case law of Tay-Za provides there can be no presumption that leading businesspersons with links and association to a governing regime are using their family members for circumventing EU sanctions (see Butler, 'Of Rulers, Relatives, and Businesspersons’).

The Court of Justice has accepted presumptions if they are rebuttable, but rebuttals for targeted individuals are immensely difficult and have not been successful in most Syrian sanctions cases before the Court of Justice since the presumptions were introduced (see the Zubedi and Bashar Assi judgments).

The family member would have to demonstrate to the Council that s/he has dissociated himself from a parent, child – the primary target – and that s/he does not pose a real risk of circumvention of the restrictive measures. Rebuttals may be possible based on evidence that immediate family members do not assist the primary target to have access or continue controlling the assets.  A difficult task.

The risk of circumventing EU sanctions

The risk of circumvention is considerable in the case of leading businesspersons operating in Russia and their immediate family and the Court of Justice might well opt in developing its case law further for the Russian sanctions context instead of simply continue applying its Tay-Za case law. Similarly, as in the RT France case, it might opt for an exceptional reasoning due to exceptional circumstances. It might even apply its case law on the immediate family of rulers, rather than on the immediate family of leading businesspersons, finding that in certain exceptional cases leading businesspersons are comparable to rulers in the Russian context.

A balance will have to be struck by the Court of Justice between the fundamental rights of the targeted immediate family members, who might pose no risk of circumvention whatsoever and the difficult task to rebut presumptions, on the one hand, and the importance of the effectiveness of targeted sanctions against Russia, accounting for the Council’s ability in certain cases to rely on presumptions on the other hand (for the reasons it set out in its case law (e.g., in Anbouba v Council, para. 46). A general blunt presumption of circumvention of sanctions in cases of immediate family members of leading businesspersons operating in Russia is unlikely to be accepted by the Court of Justice.

Enhancing and diluting the legal status of subsidiary protection beneficiaries under Union law – the CJEU judgment in Alo and Osso

Dr. Louise Halleskov Storgaard, Assistant Professor, Aarhus University

Is it in accordance with the Qualification Directive (QD) to restrict the freedom of movement within the host country of beneficiaries of subsidiary protection (a form of protection parallel to refugee status) in receipt of social security benefits? This question was addressed by the CJEU in its ruling of 1 March 2015 in the Alo and Osso case. The Court’s answer and its reasoning is equally interesting, groundbreaking and controversial as it, on the one hand, strengthens the impact of the Geneva Convention (the United Nations Convention on the Status of Refugees) on the QD standards and the substantive content of subsidiary protection while it, on the other hand, creates uncertainty about the applicable non-discrimination standard in such cases.

Facts

Mr Alo and Mr Osso are Syrian nationals who, independently of each other, in 2012 were granted subsidiary protection status in Germany. German law prescribes that, where beneficiaries of subsidiary protection receive social security benefits, their residence permit is issued subject to a condition requiring residence to be taken up in a particular place of the country. This condition does not apply to third-country nationals legally residing in Germany on other grounds than international protection (ie, subsidiary protection or refugee status). Since both Mr Alo and Mr Osso had been in receipt of social security benefits since they arrived in Germany, their residence permits required them to take up residence in, respectively, a specific town and specific parts of a region in Germany. They both disputed this requirement and on appeal the Bundesverwaltungsgericht (German Federal Administrative Court) decided to stay the proceedings in both cases and ask the CJEU to clarify the conformity of the place-of-residence condition with the QD.

The relevant provisions of that directive read:

Article 29

Social welfare

1. Member States shall ensure that beneficiaries of inter­national protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State.

2. By way of derogation from the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same level and under the same eligibility conditions as nationals.

Article 33

Freedom of movement within the Member State

Member States shall allow freedom of movement within their territory to beneficiaries of international protection, under the same conditions and restrictions as those provided for other third-country nationals legally resident in their territories.

Judgment

The CJEU started out by providing important new guidance on the interpretation of the QD. It reiterated the statements most recently made in El Kott concerning the necessity of ensuring consistency with the Geneva Convention and a full and inclusive application of that Convention. The CJEU then went one step further as it declared that the Geneva Convention is to be used as interpretative guidance also in cases involving subsidiary protection beneficiaries. To justify this approach the CJEU referred to statements made in the preamble about the European asylum system, as a whole, being based on the full and inclusive application of the Geneva Convention and about the intention of the EU legislature to establish a uniform status for all beneficiaries of international protection subject only to necessary and objectively justified derogations.

Against this interpretative backdrop the CJEU ruled that since Article 33 QD does not specifically allow for difference in treatment between refugees and subsidiary protection beneficiaries, and since Article 26 of the Geneva Convention on freedom of movement of refugees includes the right for refugees to choose their place of residence, the same must apply as regards Article 33 QD. Consequently, the place-of-residence condition constitutes a restriction with the freedom of movement guaranteed by Article 33 QD. Similarly, Article 29 QD was interpreted by the CJEU in light of Article 23 of the Geneva Convention leading to the conclusion that the place-of-residence condition also constitutes a restriction on the access to social welfare of beneficiaries of subsidiary protection when it is not also imposed on German nationals.

The CJEU continued to the question of whether these restrictions could be justified by the two aims put forward by the German authorities: 1) achieving an appropriate distribution of the burden of paying certain social benefits among the various institutions competent in that regard; and 2) preventing social segregation and its negative consequences for integration (integration policy considerations).

To that end the CJEU established a general test as it explained (para. 54): 

”[n]ational rules could legitimately provide for a residence condition to be imposed on beneficiaries of subsidiary protection status, without such a condition being imposed on refugees, third-country nationals legally resident in the territory of the Member State concerned on grounds that are not humanitarian or political or based on international law and nationals of that Member State, if those groups are not in an objectively comparable situation as regards the objective pursued by those rules.

Applying this test to the first aim invoked by the German authorities, the CJEU acknowledged that the movement of recipients of social security benefits or the fact that such persons are not equally concentrated throughout a Member State entails the risk of an uneven distribution of the financial burden. However, the Court pointed out that this risk relates not only to subsidiary protection beneficiaries but also to refugees and other third-country nationals residing legally in receipt of social benefits. For that reason the place-of–residence condition is in breach of Articles 29 and 33 QD.

Concerning the second aim relating to integration policy, the CJEU first explained that Article 29 QD is not relevant to consider because beneficiaries of subsidiary protection status and German nationals are not in a comparable situation as far as the objective of facilitating the integration of third-country nationals is concerned. As regards Article 33 QD, the CJEU left it for the Bundesverwaltungsgericht to assess whether beneficiaries of subsidiary protection status are in a situation that is, so far as concerns the integration aim, objectively comparable with the situation of third-country nationals legally residing in Germany on grounds that are not humanitarian or political or based on international law.

The CJEU offered some guidance as it explained that the Bundesverwaltungsgericht will have to determine whether the fact that the person receiving welfare benefits holds international protection, in this case subsidiary protection status, means that he or she will face greater difficulties relating to integration than third-country nationals holding another immigration status than international protection. That might particularly be the case if the latter group of persons are eligible for welfare benefits only after a certain period of continuous legal residence in the host Member State since it can (para. 63):

“be assumed from such a period of residence that the third-country nationals concerned are sufficiently integrated in that Member State and therefore would not be in a situation comparable with that of beneficiaries of international protection so far as the objective of facilitating the integration of third-country nationals is concerned.”

Comments

This is the CJEU’s first judgment on the revised “second-phase” QD. Four interrelated aspects of the case deserve particular attention:

First, the case cements the Geneva Convention’s function as a cornerstone of the Common European Asylum System (CEAS) measures by enhancing the strong link between that Convention and the QD. In that respect the Court’s extension of the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries is groundbreaking. One of the key features of the second-phase QD is precisely that it improves the substantive content of subsidiary protection, and by allowing for the Geneva Convention to function as the guiding standard to ensure equality of treatment between refugees and subsidiary protection beneficiaries when interpreting Chapter VII QD, the CJEU secures that Union law also in practice complements the ECHR and the Geneva Convention in this area. The CJEU’s reasoning on this point therefore illustrates the gradual EU law development towards an alignment of the two statuses of international protection which was fuelled by the Stockholm Programme and has been implemented not only in the QD, but also the second-phase Dublin and Eurodac Regulations and procedures and reception conditions Directives.

Second, unlike in the Bolbol and El Kott judgments concerning the first-phase QD, the CJEU did not justify the application of specific provisions of the Geneva Convention by the fact that the relevant text of the QD refers to these provisions. Instead, the CJEU referred to the preamble to the QD where it is stated that the directive responds to the Stockholm Programme’s call for a uniform international protection standard and that equality between the two statuses shall be granted as regards rights, benefits and conditions for eligibility “with the exception of derogations which are necessary and objectively justified”. To buttress the argument the CJEU referred also to Article 20 (2) QD, according to which Chapter VII QD (which concerns the content of status, ie what recognized refugees and people with subsidiary protection are entitled to) applies to both refugees and subsidiary protection beneficiaries unless otherwise indicated. As the Court’s reasoning on this point is not limited to cases involving Articles 29 and 33 QD, the Geneva Convention can be used as a yardstick for the interpretation of all provisions in Chapter VII QD. However, it remains to be seen whether the CJEU in future cases is willing to extend the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries beyond situations concerning the substantive content of this status – within or outside the QD. Since all second-phase CEAS directives contain elaborate references to the call for uniformity in the Stockholm Programme, there is some room for arguing that the Geneva Convention should also guide e.g. the interpretation of the Procedures Directive in cases involving procedural arrangements and status determination of persons eligible for subsidiary protection.

Third, it is worth noting the road not taken by the CJEU. In his opinion, AG Cruz Villalón argued that the circumstances of the case warrant that Article 33 QD must be interpreted through the lens of the non-discrimination provisions in Article 21 of the EU Charter of Fundamental Rights and Article 14 ECHR in conjunction with the fundamental right to freedom of movement set out in international human rights law, including Article 2 of Protocol 4 to the ECHR. Since the AG too found that the place-of-residence condition constitutes a restriction on the right guaranteed by Article 33 QD, he assessed whether that condition could be justified under the general rule on limitations on Charter rights in Article 52 (1) of the Charter in light of the two aims referred to by the German authorities. The AG found both aims to be legitimate but when assessing the proportionality of the restriction, he concluded that the economic burden-sharing objective was not appropriate to this aim. The AG left it for the referring national court to assess whether integration policy considerations could justify the restriction.

Fourth, the AG’s reasoning is interesting because it may offer insight as to how the CJEU came up with the above-quoted “comparable-test”. Arguably, this test is not easily comprehensible and depending on how it is applied by national courts and by the CJEU in future cases, it can dilute some of the above-identified impact of the Court’s findings concerning the application of the Geneva Convention to subsidiary protection beneficiaries. The essence of the Court’s reasoning is (seemingly) that even though equality of treatment is the main rule, and even though a derogation is not explicitly provided for, then subsidiary protection beneficiaries can be treated differently than refugees as regards the rights guaranteed under Chapter VII QD, “if those groups are not in an objectively comparable situation as regards the objective pursued by those rules”. The same applies as regards difference in treatment compared to other legally resident third-country nationals and nationals.

There is no information in the judgment about the origins of this test. Unlike the AG opinion, the judgment does not contain any reference to non-discrimination provisions or other fundamental rights standards, and there is no indication as to whether it is a reformulation of the “necessary and objectively justified”-requirement listed in the Stockholm Programme either.

Still, it is safe to say that the Court’s reasoning bears resemblance to the non-discrimination test under Article 21 Charter and Article 14 ECHR (i.e. that difference of treatment of persons in comparable situations on account of a prohibited discrimination ground must be objectively and reasonably justified). It is therefore important to note that the CJEU links the fulfilment of the comparable situation-requirement under the QD to the objective of the disputed national provision, which is a different and (from an applicant’s perspective) less favourable approach than that applied by the ECtHR in non-discrimination cases. In the Hode and Abdi case (relied on by the AG), the ECtHR thus ruled that refugees who married after leaving their country were in an analogous position with refugees who married before this point in time as well as with third-country national students and workers solely because the immigration status held by all groups was of a limited nature. The ECtHR disregarded the UK Government’s objection concerning the purpose of the various immigration statuses being fundamentally different. In fact, from a non-discrimination perspective, the CJEU’s reasoning in Alo and Osso is entirely confusing since the assessment of both aims put forward by the German authorities is better characterised as a proportionality assessment (similar to the one conducted by the AG) than an assessment of the “objective comparability” of subsidiary protection beneficiaries with other groups of legally residing third-country nationals as regards the aims pursued by the place-of-residence condition. This is illustrated by the fact that the CJEU’s arguments concerning the economic burden-sharing aim in reality concerns whether the place-of-residence condition is an appropriate means to reach that aim.

Although it is far from certain that the CJEU intended to or even found it relevant to align the test developed under Articles 29 and 33 QD with that of Article 14 ECHR, the vocabulary chosen by the Court makes it reasonable to draw parallels and compare with that provision. And by departing from the approach of the ECtHR in a very similar case and leaving it for the referring national court to apply the test in practice in light of relatively abstract guiding criteria, the CJEU creates undue legal certainty about the applicable non-discrimination standard in cases involving difference of treatment of international protection beneficiaries.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: http://www.dw.com/en/german-interior-minister-de-maiziere-stands-by-plan-to-reduce-syrian-asylum-protection/a-18835570

The EU Humanitarian Admission Scheme for Syrian Refugees in Turkey

Laura Robbins-Wright

PhD Candidate in Government, London School of Economics and Political Science

On 15 December 2015, the European Commission published a recommendation concerning a humanitarian admission scheme for Syrian refugees in Turkey. The recommendation follows a June 2015 decision to implement an intra-EU relocation programme and a scheme of resettlement from third countries. The document also builds on an action plan released in October 2015 and a more recent decision to provide €3 billion for a Refugee Facility that will “coordinate and streamline” the provision of humanitarian assistance to Syrian refugees in Turkey. The recommendation calls for a “rapid, efficient and voluntary scheme” for the “orderly, safe and dignified arrival” of these individuals.

Three aspects of the recommendation stand out and merit further analysis. First, the Commission noted the importance of demonstrating solidarity with Turkey since the country hosts more than 2.2 million Syrian refugees at present. However, though Turkey hosts the largest absolute number of Syrian refugees, Jordan and Lebanon bear the greatest (relative) responsibility for these refugees. Indeed, whereas Syrian refugees comprise approximately 3 per cent of the total population of Turkey, they make up roughly 10 percent of the population of Jordan and more than 20 per cent of the population of Lebanon. Nevertheless, the recommendation to offer humanitarian admission to refugees from Turkey is perhaps to be expected given that the EU shares a border with Turkey and thousands of refugees have attempted the perilous journey across the Aegean into Greece. Furthermore, Turkey is a candidate for accession to the EU, while Jordan and Lebanon are simply considered to be part of the broader ‘European neighbourhood.’ Though negotiations on Turkish accession opened in 2005 and have proceeded slowly since then, the European Union and Turkey may be in the process of forging a new and more cooperative relationship in migration that could enhance refugee protection and “re-energize” these complex discussions.

Second, the recommendation also emphasises the voluntary nature of participation in the proposed scheme. The Commission indicated that all Member States, plus members of Schengen, are welcome to join the humanitarian admission programme. This approach is consistent with some of the previous intra-EU relocation efforts – namely EUREMA I and II. The decision to offer Member States a choice in participating in this programme is not especially surprising given the challenges the Commission faced in securing the agreement of some Member States on national quotas for the intra-EU relocation programme proposed last summer. In that context, recent media reports indicate that EU Migration Commissioner Dimitri Avromopoulos has acknowledged that “relocation does not work.” This statement is supported through data released on 20 January, 2015 which demonstrate that Member States pledged just over 4,200 places (as opposed to the Commission’s target of 160,000 places) and only 331 individuals have been relocated from Greece and Italy to date.

From a normative perspective, the desire to demonstrate international solidarity aligns with the principle of international cooperation outlined in the preamble to the 1951 Convention. However, this voluntary approach – combined with a clear lack of enthusiasm for the most recent relocation scheme – raises the age-old question of whether the European Union can truly achieve a cohesive approach to humanitarian protection.

Finally, the recommendation is notable for its strategic approach, as embodied in the desire to achieve a “sustainable reduction” in irregular migration from Turkey to the European Union. Since 2003, the United Nations High Commissioner for Refugees (UNHCR) has attempted to reframe resettlement as a strategic instrument for protection that emphasises the direct and indirect benefits of resettlement for refugees, host countries, receiving countries, and the international refugee protection regime. However, the organisation also recognised the importance of ensuring that such programmes do not create a “pull factor” for further migration. The UNHCR suggested that this can be achieved by establishing “clear and transparent” selection criteria. In this case, the Commission has proposed that only those who registered their presence with Turkish officials prior to 29 November, 2015 will be eligible for humanitarian admission. The Commission also recommends that participating countries assess why the individual fled Syria and examine their vulnerability and potential family ties within the European Union, among other criteria.

Though managing this humanitarian admission programme in a strategic manner could encourage Turkey to continue welcoming asylum seekers and also enable some Syrians to benefit from international protection, there are questions as to how Turkey will seek to manage ongoing arrivals. Furthermore, the UNHCR has noted that the decision to offer a durable solution to certain refugees can potentially create “bitterness and resentment” among ineligible groups, particularly in cases where these groups do not have access to effective protection in the host country. This raises questions about how the prospective decision to offer humanitarian protection to Syrian refugees will be perceived by the tens of thousands of Afghan, Iranian, and Iraqi refugees who have long resided in Turkey and may be obliged to wait up to 10 years for a decision on their respective applications for protection.

Though the recommendation offers clear operational guidelines, it does not indicate how many refugees can or should be offered protection through this proposed scheme. Instead, the Commission notes that the number of individuals offered admission should be determined according to UNHCR processing capacity, the number of displaced persons in Turkey, and the impact of efforts to reduce irregular migration to Turkey (a measure that has attracted criticism from the European Council on Refugees and Exiles). Furthermore, the Commission has recommended that participating Member States admit those granted subsidiary protection in an “equitable” manner. However, given the aforementioned challenges the Commission faced in securing Member State agreement on quotas for the intra-EU relocation programme, this could prove more difficult than anticipated. Overall, it remains unclear whether this humanitarian admission programme – if adopted – will have a meaningful impact on the substantial number of Syrian refugees residing in Turkey at present.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.unhcr.org

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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