Rebel rebel, how could they know? The boundless imagination of Poland, Hungary and the Czech Republic in opposing the relocation mechanism.
Relocation – Solidarity – Article 78(3) TFEU – Article 258 TFEU – Maintenance of law and order – Threat to national security – Article 72 TFEU
In the case Commission v. Poland, Hungary and the Czech Republic, the Court of Justice of the EU, upholding the actions for failure to fulfill obligations brought by the European Commission, ruled that the defendant States breached EU law by failing to comply with the relocation decisions adopted in 2015 by the Council. The Court rejects the States’ argumentation as to the need to safeguard their national order and security, adduced as justification for not relocating asylum seekers, and confirms that solidarity is a legally binding obligation. It also does not accept the alleged existence of malfunctioning and flaws of the relocation mechanism as a valid reason not to cooperate and show solidarity: it is exactly when obstacles and difficulties arise that solidarity and a sincere, genuine spirit of cooperation are most needed.
Eleonora Frasca, Francesco Luigi Gatta
A. Facts and Ruling
When Member States are coping with an emergency situation characterised by a sudden influx of third country nationals on their territory, the Court of Justice of the European Union (CJEU) states that “the burdens must, in principle, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU” (§80 of the judgement hereby analysed). In all the other cases, the Dublin system leaves that burden with frontline Member States, notwithstanding that Article 80 TFEU shall, in principle, govern the Union’s asylum policy in its entirety. There is no secret that the relocation mechanism was a palliative care for the malfunctioning of the Dublin system.
1. Main facts
The facts are well-know: in September 2015, applying Article 78(3) TFEU for the first time since its inclusion in the Lisbon treaty, the Council adopted two decisions (2015/1523 and 2015/1601), thereby setting up an emergency relocation mechanism in support of Greece and Italy, whose asylum systems were suffering from a sharp migratory pressure. Although only established for a two-year period, the mechanism had a binding nature and obliged all the EU Member States to show solidarity and accept to relocate a certain quota of asylum seekers according to given distribution keys (population, total GDP, average number of asylum applications over the five preceding years and unemployment rate).
Since its introduction, this measure has been bitterly contested, both legally and politically, especially by a compact bloc of Member States, commonly named Visegrad Group, ready and willing to start an all-out war with the EU institutions. In particular, Slovakia and Hungary had challenged the legality of Decision 2015/1601, unsuccessfully lodging actions for annulment, which the Court dismissed in 2017, thereby upholding the validity of the Decision (for an analysis of that judgment, see a previous edition of the Cahiers de l’EDEM). In that occasion, the CJEU confirmed, in essence, the legally binding character of the relocation mechanism established by the Council in 2015 and, therewith, the obligation to show solidarity towards Greece and Italy. The Court’s decision did not solve the issue. To the contrary, it contributed to exacerbate the tension between the EU Institutions and the Visegrad Group, which refused to relocate their quotas of asylum seekers, thereby keeping to violate blatantly EU law.
After having widely (in the long series of relocation reports) and patiently (until the end of the 24-month implementation period) encouraged these Member States to comply with their relocation obligations, the European Commission launched infringement procedures in the attempt to settle the dispute without going to Court. Given the States’ firm opposition, it finally decided to bring actions for failure to fulfill the relocation obligations against Poland (C-715/17), Hungary (C-719/17) and the Czech Republic (C-719/17). More specifically, the three countries did not comply with the obligation of pledging the number of applicants who could be relocated from Greece and Italy and did not, subsequently, complete the relocation procedure with the actual transfer of applicants for international protection. Before the Court, the respondent States challenged both the admissibility of the infringement procedures and their substance.
As for the former profile, they essentially argued that the Commission lacked legal interest in bringing an action before the CJEU because of (i) the impossibility to remedy the failure by implementing the relocation mechanism whose validity had already expired; (ii) the breach of the principle of equal treatment, given that actions for failure were only brought against Poland, Hungary and the Czech Republic and not against other Member States which did not fully comply with the relocation decision; (iii) the disrespect of the right of defence during the pre-litigation procedure, due to excessively short deadlines; (iv) the ambiguity and inconsistency of allegations by the Commission as to how precisely EU law had been infringed.
As for the substance, the non-compliance with the relocation decision was mainly justified by the three Visegrad States on the basis of their need to preserve law and order and to safeguard internal security. In short, this argumentation is built upon the invocation of Article 72 TFEU, read in conjunction with Article 4(2) TEU, which would work as a conflict-of-law rule, enabling Member States to disapply secondary – and, thus, lower-ranking – EU legal obligations allegedly incompatible with the preservation of national law, order and security. In other words, this reading of Article 72 TFEU would allow Member States to opt out from EU law (here: the 2015 relocation decisions) whenever the existence of a potential and plausible risk to law, order and security is established. The Czech Republic also alleged, as a further reason for its non-compliance with these obligations, the malfunctioning and ineffectiveness of the relocation mechanism.
2. Decision of the Court: failure to fulfil obligations
Once rejected all the respondent States’ arguments relating to the admissibility of the actions brought by the Commission, the Court declared that they had failed to fulfill their obligations under the relocation decisions.
As to the first procedural aspect, the Court, recalling its case law on the purpose and conditions of Article 258 TFEU, reiterated that such procedure aims at an objective finding that a Member State has infringed EU law and, to that end, it is designed in a way that gives a large opportunity to the concerned Member State to comply with its obligations. Moreover, it is irrelevant that the period of implementation of the relocation decisions had expired and that it was allegedly impossible for the Member States concerned to remedy their failure: the Member States, indeed, cannot take advantage of their own misconduct, thereby evading, for this reason, an infringement procedure (§63).
As to the substance, the Court fully rejected the arguments raised by the Member States on the use of Article 72 TFEU as a general “opt-out” rule. Such provision, indeed, must be interpreted strictly, inasmuch it provides for the possibility to derogate from EU law. Thus, it cannot be invoked by a Member State for the sole purpose of general prevention, abstractly referring to the need to maintain and safeguard law, order and internal security, but “without establishing any direct relationship with a particular [individual] case, in order to justify suspending the implementation or even ceasing to implement its obligations” under the relocation decisions (§160).
With its judgment, the Court confirmed the importance of the principle of individual assessment when it comes to the actual or potential danger that a third country national (in this case: an applicant for international protection) may represent (1). The case also offered an occasion, particularly for the Advocate General Sharpston, to recall the basic tenets of the European legal order, such as the principle of the rule of law, the duty of sincere cooperation and solidarity (2).
1. The refusal to relocate an asylum seeker must be grounded on an individualised examination of the risks for the national security and public order
The three Visegrad States affirmed that they were entitled to make use of Articles 72 TFEU and 4(2) TEU in order to disapply the relocation decisions and avoid the obligations stemming therefrom. The first provision reserves the exclusive competence to Member States for the maintenance of law and order and the safeguarding of internal security in the context of EU acts adopted in the area of freedom, security and justice (Title V, TFEU); whereas the second establishes that the EU shall respect the essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.
Given “the risks posed by the possible relocation on their territory of dangerous and extremist persons who might carry out violent acts or acts of a terrorist nature” (§135), the respondent States invoked their duty to protect national security, which they considered to have precedence over the solidarity obligations stemming from the 2015 relocation decisions. They also pointed the finger at the two beneficiary States, Italy and Greece, whose inefficiency and lack of cooperation in the relocation procedure rendered difficult to check and identify the asylum seekers, thereby impeding, in their view, to unmask the dangerous terrorists hidden among them.
The Court refused to consider Article 72 TFEU as a provision that gives Member States a carte blanche, thereby allowing them to apply and disapply EU law at their choice, depending on their considerations regarding alleged threats and risks to national order and security. Therefore, the Treaty does not contain “an inherent general exception excluding all measures taken for reasons of law and order or public security from the scope of European Union law” (§143): if that exception existed, without any specific requirements, it would “impair the binding nature of European Union law and its uniform application” (ibidem).
While it is true that the mentioned provision recognises the States’ right and duty to protect the internal security, this does not mean that it entails an unlimited power. For the Court, indeed: “the scope of the requirements relating to the maintenance of law and order or national security cannot therefore be determined unilaterally by each Member State, without any control by the institutions of the European Union” (§146).
It is equally true that the 2015 Council decisions provide for the possibility to refuse the relocation of an individual in case reasonable grounds for regarding him as a danger to national security or public order exist (Article 5(7) of both decisions). In so doing, the relocation decisions are indeed coherent with the Member States’ responsibility to safeguard their internal security and order as provided for under Article 72 TFEU and, at the same time, they are in line with the Common European Asylum System that governs the processing of individual applications for international protection (e.g. Qualification directive, Procedures directive, Reception directive and Returns directive).
With regard to the concept of threat to the public order, the CJEU has been recently called to clarify its interpretation with several decisions. Departing from its previous jurisprudence on the interpretation of the Return directive (Zh. and O., judgement of 11 June 2015, C-554/13), the Court has made a clear distinction between the interpretation of the notion of threat to public order in cases related to the freedom of movement of European citizens (GS and VS, judgement of 12 December 2019, C-381/18 and C-382/18) and in cases related to third country national immigration, both as a ground for refusal to entry and in the context of a short stay for those not subject to visa requirements according to the Schengen Borders Code (EP, judgement of 12 December 2019, C-380/18). Despite these differences in interpretation of the concept of threat to public order, the Court requires, in any case, the respect of a minimum standard of protection. According to this caselaw, the Court clarified that, in any case, “the measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned” (§64 GS and VS, recalling, by analogy, judgment of 9 July 2015, K and A, C-153/14).
In the judgment on the relocation decisions, the Court acknowledged that the Member States retain wide discretion in establishing if an asylum seeker represents a threat to national security or public order (§158), but it also reaffirmed the principle of individual assessment, in the sense that the provisions relating to the protection of the internal order and security cannot be generally and blindly invoked, without being effectively rooted in the specific situation. While accepting that the danger to national security may also be potential, the Court pointed out that the existence of such threat can only be established following a case-by-case investigation, which must lead to the emergence of “consistent, objective and specific evidence” (§159) of the threat.
This is why, the judges explain, the relocation procedure foresees an initial stage where Member States have the obligation to indicate, on a regular basis, the number of asylum seekers they intend to accept on their territory. In this phase, which is preparatory for the subsequent relocation, the identification and individual assessment of the applicants to be transferred shall take place, so that, if an actual or potential threat to public order or security is found, the relocation of that specific individual can be refused. The three Visegrad States, on the contrary, have failed to indicate at regular intervals an appropriate number of asylum seekers to be relocated and have assumed, in abstracto, that all of them could inherently represent a risk for their national security.
The Court, ultimately, refused such a generalised and automatic presumption that an applicant for international protection could represent a danger to national security or public order.
2. Rule of law, duty of sincere cooperation and solidarity
Besides the specific issue relating to the relocation mechanism established in 2015 and the obligations arising therefrom, the dispute between the Commission and the three Visegrad States entails a further, broader and, in a sense, deeper problematic question: that of solidarity, sincere cooperation and mutual trust between Member States. In other words, the relocation issue goes beyond the simple distribution of few hundreds of asylum seekers, showing an inner and persistent tension as regards migration governance in the EU.
This is highlighted, in particular, in the opinion of the Advocate General Sharpston, who indeed attracted the attention to the broader context behind the relocation litigation (§§238–255). She recalled that the principles of the rule of law, the duty of sincere cooperation and solidarity are three important strands of the EU legal order, which are put in jeopardy by the act of “rebellion” of the Visegrad countries.
According to Sharpston, the compliance with one’s own obligation is a pillar of the respect for the rule of law. The persistent, impudent and manifest opposition of Poland, Hungary and the Czech Republic to the relocation mechanism, and their non-compliance with the obligation to show solidarity, constitutes a serious threat to the rule of law in the EU and a denial of the duty to cooperate sincerely. This is further proved, a contrario, by the argument, put forward by the three States as a justification for their non-compliance, regarding the supposedly flaws, inefficiencies and practical difficulties of the relocation mechanism. It is exactly in the event of obstacles and complications that a European spirit of cooperation and mutual trust is most needed in order to overcome a difficult situation.
The Visegrad States’ negative attitude towards solidarity and responsibility sharing in the domain of asylum, neatly shown by their non-compliance with the relocation obligations, goes along with their disinterest in participating in the refugee resettlement efforts. Although the distinction between the compulsory intra-EU relocation mechanism and the voluntary extra-EU resettlement schemes is recalled by the Advocate General Sharpston in the introduction to her opinion (§§39-40), it must be highlighted that both Hungary and Poland have not taken part into European resettlement schemes, while the Czech Republic has done so very partially, with a quota of only 52 refugees.
One might ask: if ever the resettlement will become a structured, permanent and legally binding mechanism integrated in the EU legal framework (as envisaged in the 2016 proposal on a Union resettlement scheme put forward by the Juncker Commission), will the Visegrad countries show the same opposition and refuse to comply? In that case, any security-related argumentations would be in bad faith, as taking part in resettlement initiatives actually guarantees an enhanced level of control over security matters: first, given the key-role played by the UNHCR in the preemptive screening and selection of refugees for resettlement from third countries to the EU and, additionally, given the opportunity for the national authorities to conduct interviews by themselves, double-checking the candidates for the resettlement, thus drastically reducing any risk for internal security.
The judgment of the Court adds another chapter to the long – and, to be honest, rather discouraging – “saga” of the relocation of the asylum seekers in the EU. Five years have passed since the establishment of the relocation mechanism which, despite its undeniable flaws, represents the first concrete manifestation of solidarity of this kind. Yet, the clash between the EU and some of its Member States is still on-going.
Solidarity is an obligation under EU law: this is established in EU primary law and has been clearly confirmed by the CJEU in its 2017 and 2020 judgments on the relocation mechanism. According to Article 80 TFEU, solidarity shall govern borders, asylum and immigration policies. However, the road towards a full and genuine implementation of this principle seems still to be paved with Member States’ obstructionism, opposition and pursue of national interests.
The judgment of the Court we have commented here has come in 2020: exactly 70 years before, one of the founding fathers of the European integration process, Robert Schuman, in his famous declaration, affirmed that “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity”.
It looks like some Member States still need to learn that lesson.
C. Suggested Reading
To read the case : Court of Justice of the European Union, Judgment of 2 April 2020, Joined Cases C-715/17 Commission v. Poland, C-718/17 Commission v. Hungary and C-719/17 Commission v. Czech Republic, ECLI:EU:C:2020:257
Case law :
Court of Justice of the European Union [GC], Judgment of 6 September 2017, Joined Cases C-643/15 and C-647/15, Slovakia and Hungary v. Council, ECLI:EU:C:2017:631 1
J. Bornemann, « Coming to terms with relocation: the infringement case against Poland, Hungary and the Czech Republic », EU Immigration and Asylum Law and Policy, 17 April 2020
F. L. Gatta, Migration and the Rule of (Human Rights) Law: Two ‘Crises’ Looking in the Same, Croatian Yearbook of European Law & Policy, Vol. 15, No. 1, 2019.
J.-Y. Carlier, F. Crépeau « De la ‘crise’ migratoire européenne au Pacte mondial sur les migrations : Exemple d’un mouvement sans droit? », Annuaire Français de Droit International, 2018, pp. 461-499.
L. Leboeuf, « Relocalisation des demandeurs d’asile. La Cour de justice confrontée à l’identité nationale », Cahiers de l’EDEM, septembre 2017.
Other materials :
Opinion of Advocate General Sharpston, delivered on 31 October 2019, in Cases C-715/17 Commission v. Poland, C-718/17 Commission v. Hungary and C-719/17 Commission v. Czech Republic, ECLI:EU:C:2019:917
Opinion of Advocate General Bot, delivered on 25 July 2017, in Cases C-643/15 and C-647/15, Slovakia and Hungary v. Council, ECLI:EU:C:2017:618
Report of the Special Rapporteur on the human rights of migrants on his visit to Hungary, 27 April 2020
To cite this contribution : E. Frasca, F.L. Gatta, “Rebel rebel, how could they know? The boundless imagination of Poland, Hungary and the Czech Republic in opposing the relocation mechanism”, Cahiers de l’EDEM, June 2020.
 For a caselaw commentary of the Zh. and O. judgement see : P. d’Huart, « C.J.U.E., Z. Zh. et I.O. c. Staatssecretaris voor Veiligheid en Justitie, aff. C-554/13, 11 juin 2015 – Le danger pour l’ordre public comme motif de refus d’octroi d’un délai de départ volontaire : un concept à l’autonomie encadrée », Cahiers de l’EDEM, juin 2015.