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by Kees Groenendijk, Radboud University  cmr_logo_Nijmegen and Boldizsar Nagy, Central European University     CEU

The Hungarian Parliament adopts an Act calling for a review of the legality of Council Decision (EU) 2015/1601

Earlier this year, Hungary decided to free itself from the arrival of asylum seekers by erecting a fence at its external border and curtailing the refugees’ rights, as reported in an earlier blog entry. Its more recent decision, attacking the relocation system as enshrined in Council Decision (EU) 2015/1601, targets solidarity among EU Member States and may have wider repercussions if considered in context.

On 17 November 2015, the Hungarian Parliament adopted a bill entitled ‘Action against the compulsory settlement and in defence of Europe and Hungary’ with 154 votes of the governing coalition and the far right party (FIDESZ-KDNP and JOBBIK, against 41 left and central-green votes (MSZP, LMP and small parties without a faction). It became Act CLXXV. of 2015, published in the official journal (Magyar Közlöny) on 26 November. Before turning to the merits, let us start with semantics: the word used to designate the attacked EU measure is not the Hungarian term for ‘relocation’, which is ‘áthelyezés’, but a different expression, ‘betelepítés’, which has a sinister overtone in Hungarian, referring to an alien power which brings in ‘alien’ settlers against the will of the local population.

That brings us to the analysis of the discourse, the aim of the Act, its content and its wider European repercussions.

Parliamentary debate, public statements

Until 1 October, Hungary has reported 199,165 applications for refugee status recognition in 2015, so it was more than logical that the Commission proposed the relocation of applicants from three countries, namely Greece, Italy and Hungary in its second proposal of 9 September 2015 (COM 451 final). However, the Hungarian representatives suggested to remove Hungary from the beneficiary Member States of the measure which would have relocated 54,000 applicants from Hungary. Instead it became subject to a duty to relocate 1,294 persons into Hungary. The perplexed observer may ask: why? And then why protest against the decision voluntarily triggered by the non-acceptance of the original proposal?

There is a dual answer to these questions. The first is simple: of the almost 200,000 applicants, only a few hundred remained in Hungary so there was almost no-one to resettle. Characteristic of the situation is that this year, a total of 450 persons got one form of international protection status before 1 December 2015 in Hungary. The second answer is more complicated and leads to the discourse. In Spring 2015, the Hungarian Government introduced  a narrative according to which the people coming in large numbers through the Western Balkan route are not refugees but, ‘illegal immigrants’, ‘economic migrants’ and as a group they constitute an exodus of an entire people. Again, the terminology here is important: the expression used is ‘népvándorlás’ which has a German appropriate (‘Völkerwanderung’), but no English one. It refers to such movements of whole peoples from Asia in the (early) medieval ages, as the barbaric invasion of the Roman Empire or the appearance of Hungarians in the Carpathian basin in the 9th century. So the narrative carefully built up suggests that these people have no moral or legal entitlement to stay, therefore, they should be sent back to their countries of origin and Europe’s external borders should be ‘defended’ in order to prevent their arrival. After the Paris attacks the Hungarian Prime Minister delivered a talk in the Hungarian Parliament which after a few words of expressing solidarity with the victims and the French nation turned into EU bashing. A few quotes may convey the mood: ‘We Hungarians have been advocating the closure of our borders to stop the flood of people coming from the Middle East and Africa. (…) Which approach is more humane: to close the borders in order to stop illegal immigration, or to put at risk the lives of innocent European citizens? (…) We feel that the very existence of Europe is at stake. We have warned the leaders of the EU not to invite these people into Europe.’ Speaking about the quota of resettlement (or relocation – his language was unclear): ‘The binding quota (…) is illegal as the European leaders have no competence to adopt such a decision concerning this matter. They have no competence to force upon a Member State a measure related to refugees or the matter of immigration to which the country concerned objects.’ The obedient servants (fellow party members) of the Prime Minister were quick to submit a bill to Parliament which is a PR exercise, formally inviting the government to challenge the legality of the second relocation decision in order to waive Hungary’s obligation to conduct 1,294 refugee status determination procedures and give protection or arrange the return, depending on the outcome.

The debate in the Parliament was short as the bill was pushed through in an accelerated process. The debate contained a few legally relevant arguments and a wide gamut of anti-immigration essentialist exhortations. It was characterised by confusing the first relocation decision with the second (Council Decision (EU) 2015/1523 of 14 September 2015 versus of Council Decision (EU) 2015/1601 of 22 September) and mixing up both of them with the Council Proposal (COM(2015) 450 final) to amend the Dublin Regulation by a standard relocation mechanisms to be applied in crisis situations jeopardizing the application of the Dublin Regulation due to extreme pressure by a large and disproportionate inflow into one or more Member States. In fact, the main target was the latter, as it entails the prospect of relocating an unpredictable number of people. A resolution of the Parliament (55/2015. (XI. 6.) OGY határozat) published in the official Journal (Magyar Közlöny, No 167) already included the decision to send a reasoned opinion stating why it considered that the draft did not comply with the principle of subsidiarity. That reasoned opinion essentially claims that the Commission’s powers envisaged by the planned amendment of the Dublin Regulation cannot be derived from the legal base of the regulation (Article 78 (2) e) TFEU), but should be based on Article 352 TFEU. According to the resolution, these powers also exceed the limits set in article 290 TFEU.

Confusion aside, there were some legally appreciable arguments raised, even if only a few. The most significant was the claim, submitted by the Minister for Justice, who is obliged to start the case in Luxembourg, that the decision on the relocation of 120,000 asylum seekers was adopted on the wrong legal basis as it contains an amendment to the Dublin Regulation. Therefore, the legal basis should have been that of the regulation (Article 78 (2) e) TFEU) and not Article 78 (3). The ministers also argued that the JHA Council ought not to have overruled the decision of the European Council of 25-26 June 2015, which called for voluntary relocation.

The other speakers in the debate payed less attention to legal issues. They rambled from claiming that the razor blade fence at the border has ‘saved the country from ten thousand illegal immigrants daily’ (MP of FIDESZ speaker) to claiming that ‘what the EU has done so far in matters of migration and immigration amounts to a huge zero’ (MO of MSZP). The presenter of the bill (FIDESZ) went this far: ‘We believe that in the field of immigration there is no common immigration policy, as it is unequivocal that nobody ever transferred such competence to the EU. And those who wish to argue that here we address refugee matters err fundamentally, as in the case of these persons, nobody has conducted any sort of asylum procedure. The majority of the persons to be relocated have arrived illegally into the heart of Europe. Totally ignoring the common rules of the European Union, they chose a sovereignty for themselves. Gravely violating the European rules, they chose a country of their liking, amidst the applaud of the European leaders greeting anarchy.’ Probably most of the readers of this blog very well know – unlike Mr Gergely Gulyás – that the EU has a partially developed migration and asylum policy and is competent to complement the missing elements, except for determining the number of third-country nationals admitted for employment. Returning to the less elevated level of the debate one may quote the president of the far-right JOBBIK party who spoke of the ‘shockingly stupid immigration policy of Brussels and Berlin’ and presented the relocation scheme as an effort to spread the consequences of those bad decisions among the innocent other Member States.

The aim and the content of the Act

The Act’s preamble repeats the dominant motives of the government-orchestrated choir: ‘condemning the mistaken immigration policy of the European Commission in Brussels, rejecting the compulsory settlement quota, as it makes no sense and is dangerous as it would increase crime, spread terror and endanger our culture, stating that according to international law no sovereign state may be obliged to take over applications for international protection submitted in another Member State’, etc. The substantive section consists of two short Articles: § 1 declares that an action to annul Council Decision (EU) 2015/1601 must be started at the CJEU in order to enhance the application of the principle of subsidiarity and to ensure the appropriate role of the national parliaments, § 2 ‘calls upon’ the government to initiate a court procedure for the annulment of the decision, based on Article 263 TFEU without designating any concrete legal ground of nullity.

On the day following the debate, the Act was adopted. Its aim – as confirmed by several speakers in the debate – is to enhance the political leverage of the Hungarian government. It was not a constitutional requirement to adopt a resolution, let alone an Act of Parliament. It was playing to the right-wing audience and, potentially, encourage fellow plaintiffs like Slovakia.

Wider European Repercussions

Indeed the Prime Minister of Slovakia on 2 December 2015 announced that his country had filed a case with the EU Court of Justice asking the Court to annul the Council Decision of 22 September 2015. Slovakia already announced its intention to do so shortly after that Decision was adopted by a qualified majority of Member States. Only two of the four Member States outvoted by the majority decided to challenge the legality of the Decision in the Court. The other two Member States, the Czech Republic and Romania, have not voiced their intention to follow this example, but they may still decide to jump on the bandwagon and formally support the position of Hungary and Slovakia in the cases before the Court.

Direct actions by a Member State against EU institutions (or between two EU institutions) are not exceptional. More than 70 such direct actions, mostly on the basis of Article 263 TFEU, were filed with the Court in 2014. The exceptional element is that the Decisions of 14 and 22 September 2015 were the first the Council ever made on the basis of Article 78(3) TFEU that allows the Council to adopt provisional measures for the benefit of the Member State(s) confronted with an emergency situation due to a sudden influx of third-country nationals. This competence was introduced by the 1997 Treaty of Amsterdam in Article 64(2) TEC, but the Council had never used it before. The Lisbon Treaty only added that the EP should be consulted before the decision is adopted. The Parliament does not have co-decision here. Thus the actions filed by Slovakia and Hungary will allow the Court to specify the material scope and the limits of Article 78(3) TFEU.

So far, the arguments of the two Member States are only known from the Hungarian Act and press reports. Some of these arguments (the actual relocation of large numbers of asylum seekers is not feasible in practice, or the decision is not supported by a majority of the population) may be true, but most probably will not carry much weight before the Court of Justice. The principle of subsidiarity will not be of much help either in a case where the need for collective decision at EU level is so obvious. Violation of the right of national parliaments to participate in the decision making in Brussels is closely linked to argument related to the legal basis of the decision. If the Council had chosen Article 78(2) and not 78(3) TFEU as the legal basis, the EP would have been co-legislator and the national parliaments could have tried to use the yellow card procedure against the Commission’s proposal. The arguments that the legal basis for the Decision is incorrect and that Article 78(3) mentions ‘measures for the benefit of the Member State(s)’ in need, and does not speak about imposing obligations on other Member States, are the ones that in our view have some chance of success in Luxembourg. But we will have to be patient: the procedure before the Court will take considerable time. In 2014, the average duration of direct actions was 20 months.

An important positive side-effect from these cases is that by filing these challenges, the two Member States explicitly recognise and reinforce the legitimacy of the Court as a central EU institution and hence the rule of law within the supranational system of the EU. Rather than simply refusing to comply, the two States have chosen to play by the rules and start a public debate on the limits of the competence of the Council of Ministers to use a qualified majority vote to impose on Member States, including those who voted against the Decision, an obligation to receive asylum seekers, consider their request for international protection in a serious asylum procedure and provide them with lawful residence if it appears they are in need of protection. The two States voluntarily subject themselves to the authority of the Court. A similar effect resulted from the case between the same two States in relation with their conflict about the undesired visit by the President of Hungary intending to take part in a demonstration of the Hungarian minority in Slovakia and was stopped at the border (C-364/10 and CJEU judgment ECLI:EU:C:2012:630), a rare example of a case between two Member States on the basis of Article 259 TFEU.

Even if the Court were to annul the Decision, it may well become clear from the judgment that the Council does have the power to do so, but on the basis of another provision in the Treaty which allows the Council to adopt a new Decision with the correct legal basis.

Pending the case before the Court of Justice all 25 Member States concerned continue to be bound by the Decision. Even if the Court were to annul the attacked Decision, it could rule that the Decision remains in force until a new Decision had been adopted.

The feasibility of EU measures aiming to relocate large numbers of refugees will remain a crucial point, since the cooperation of three parties (two Member States and the asylum seeker) is required. The practice of the first ‘voluntary’ relocation system adopted by the Council before the Summer of 2015 and the record of the Dublin system in this respect (as distinct from providing an additional grounds for Member States to refuse to deal with the content of an asylum application) are not very promising.

On 26 November 2015, the Administrative Jurisdiction Division of the Council of State, the highest administrative court in the Netherlands, delivered two judgments allowing the appeal of asylum seekers against their transfer to Hungary under the Dublin III Regulation, in the light of the available information on the reception conditions, living conditions and the asylum procedure in Hungary (ECLI:NL:RVS:2015:3663 and 3664).

Conclusion: the CEAS under siege

That decision of the Dutch Council of State leads us to the broader context. Whereas Hungary has decided to seek a legal excuse for the planned non-performance of the relocation obligation, it is on a confrontational course with a much broader set of EU rules. When the Commission has announced that it will start further infringement procedures against Hungary, the government reacted by claiming again that this was the ‘revenge of Brussels’ presumably for Hungary’s intention not to participate in the relocation system. The revenge motive is not new: it was already introduced by the foreign minister in late November when the Commission allowed the continuation of the civic movement calling for the application of Article 7 TEU against Hungary.

The essence of the matter is that Hungary basically stopped applying the asylum and the Schengen acquis in the summer of 2015, not to mention the obligations stemming from the Return Directive. It introduced procedures without an effective remedy, curtailed the rights of criminal suspects and knowingly diverted the arriving asylum seekers to other EU Member States. Dublin returns to Hungary are sparse; authorities are reluctant to practically exercise responsibility under the regulation. Recognition of individuals as in need of protection is rare. These days the government is running full page advertisements according to which ‘the compulsory settling quota is endangering our culture’ and even started a webpage with totally misleading information, claiming that if the relocation system was applied within five years 160,000 people would ‘be compulsorily settled into Hungary’.

What appears to be a legalistic challenge to a Council Decision may be part of a larger strategy representing a genuine threat to the functioning of the CEAS. Alternatively, it may turn out to be a rear guard battle. This remains to be seen.