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Barbara Oomen, Fernand Braudel Fellow, European University Institute &
Ricardo Rodrigues de Oliveira, PhD Researcher, European University Institute

In spite of the quote attributed to Einstein “Not everything that counts can be counted, and not everything that can be counted counts”, a large part of the current European debate on relocation is about numbers. Out of 387,739 people requiring international protection who arrived at the borders of the European Union (EU) in 2016, 362,376 travelled by sea through unseaworthy boats and 5,082 were reported dead or missing. This year alone, 58,944 migrants and asylum seekers arrived in Italy and 7,676 in Greece, with numbers rising by the day. 73,900 refugees are stranded in Greece and the Western Balkans. In stark contrast stand the 18,418 people relocated to the other 25 EU Member States following the European Commission’s report of May 2017 on relocation, as opposed to the 160,000 relocations envisaged by the EU.

Even if the European Commission heralded the progress made, the underlying frustration with both the Commission and civil society is palpable. The Commission has already indicated that it will not hesitate to make use of its powers under the Treaties for those which have not complied with the Council decisions, noting that the legal obligation to relocate those eligible will not cease after September, hinting at its preparedness to start infringement proceedings under art. 258 Treaty on the Functioning of the EU (TFEU). Judges could play a role in enforcing the relocation numbers. After providing a brief background to the relocation decisions and the underlying principles, we remind the upcoming case on relocation filed by Hungary and Slovakia at the European Court of Justice and underline a case started by the NGO “Let’s bring them here” in the Netherlands, both posing the question of what the numbers pledged actually count for.

Does solidarity count?

It could well have been the picture of only one person, a toddler washing up on a Turkish beach, that spurred the European Union into concerted action in September 2015. After months of bickering on the actual contents of the European Agenda for Migration, the Justice and Home Affairs Council adopted in September 2015 Decisions 2015/1523 and 2015/1601 concerning the relocation of a total of 160,000 persons in clear need of international protection among the EU Member States. This relocation mechanism aims at easing the pressure on frontline Member States. It is a temporary measure based on article 78(3) TFEU which, in the event of one or more Member States being confronted with an emergency situation characterised by a sudden inflow of nationals of third countries, enables the Council, on a proposal from the Commission and after consulting the European Parliament, to adopt provisional measures.

Decision 2015/1601 calls for “concrete measures of solidarity,” translating this into the relocation of 120,000 applicants from Italy and Greece, with numbers pledged by individual Member States in annexes to the decision. It followed on Decision 2015/1523 that concerned 40,000 applicants, thus adding up to 160,000 applicants. Relocation, for the sake of clarity, merely relates to the redistribution of asylum seekers already present in the EU between Member States, in contrast to the EU’s resettlement scheme, in which refugees, upon request of the United Nations High Commissioner for Refugees (UNHCR), are transferred from third countries towards EU Members States.

With 4 months left in the 2-year emergency program ending in September 2017, only Malta and Finland are on track to meet their obligations, whilst States like Bulgaria, Croatia, the Czech Republic, and Slovakia have each not relocated more than 2% of their actual commitments. Moreover, Austria, Hungary, and Poland are refusing to participate. In all, only 17% of the relocations pledged have actually been implemented.

The pending case before the European Court of Justice

The reason for this lawsuit is partly the contested nature of the Relocation Decision 2015/1601, which was not adopted unanimously but with a qualified majority in the Council, with vehement opposition from the Czech Republic, Romania, Slovakia, and Hungary. The latter two, in December 2015, even called for annulment of this decision by the Court of Justice. Slovakia invoked, amongst other grounds, infringement of principles of legal certainty, representative democracy, institutional balance, sound administration and proportionality. Hungary, filing its case two days later, put forward similar pleas, and strongly argued that the decision should be considered a legislative act rather than provisional measures, and that article 78(3) TFEU does not provide an adequate legal basis for the Council to adopt it. The merits of the Slovak and Hungarian argumentation have already been analyzed elsewhere, including the political background to the cases and the peculiar procedural choices made. With a first hearing that took place on the 10th of May, the Court’s ruling could be issued by the end of 2017. Those interested in actual enforcement of relocation pledges in the decision are advised to also keep an eye on cases brewing bottom-up, like the one recently heard in the Netherlands presented below. Here, the plea was not to annul the decision, but rather the opposite: to actually enforce the relocation decision to its full extent.

Civil society and a Dutch civil court

The Dutch case ruled on 24 March 2017 deserves attention for two reasons: the role of civil society in bringing it about and the legal arguments made. The Foundation “We gaan ze halen” (Let’s bring them here) claimed that the Netherlands had relocated by April 2017 only 28% of its pledge. The Foundation defines itself as a movement of European citizens deciding to “bring refugees here”, with as central activity a plan to drive to Greece to do so if the State does not live up to its promises. The organisation started the case against the Dutch State, claiming that it should live up to its relocation promises, namely to relocate 8,712 refugees, of which only 1,487 had been up until March 2017. The Hague District Court ruled on the application for a temporary injunction on the 24th of March. Given the fact that the ruling is only available in Dutch, it is worthwhile providing a detailed analysis.

One of the first issues raised was the legal standing of the Foundation founded in 2015 with the initial objective of convincing as many people as possible to drive along to Greece and take asylum seekers back to the Netherlands, in order to ensure solidarity with both them and European citizens in the border Member States, running a strong social media campaign on Facebook via #promised. Here, The Hague District Court rejected the State’s claim that the interests represented by the Foundation could not be represented collectively, and that it failed to first enter into dialogue with the State. The Court ruled that, as the State held that it had fulfilled its duties, there was no need for the Foundation to seek a dialogue (sections 4.1-4.4).

More interesting is the Court’s assessment of the argument that articles 4 and 5.2 of Decision 2015/ 1523 do not have direct effect. Here, the Court quotes art. 288 TFEU in ruling that a decision shall be binding in its entirety. Even if the Foundation itself is not addressed by the provision, it can invoke it if the duty imposed upon the actual addressee is clear, and precise enough as well as unconditional. The Court did not directly answer the question whether the numbers quoted in the annex to the decision were actually clear, precise, and unconditional enough as held by the Foundation or whether these constituted estimates as held by the State. Instead, it sidestepped the issue by pointing out that individuals can only invoke a provision against a Member State after the term set for the implementation of the provision has passed, in this case on the 26th of September 2017. The Foundation’s claim is thus premature, as “The decision does not contain duties for the State that are enforceable by the Foundation at this point in time” (our emphasis, section 4.8).

An additional claim by the Foundation concerned the violation of asylum seekers’ rights constituted by the reception conditions in Italy and Greece. Here, the Court held that, in line with art. 1 of the European Convention on Human Rights (ECHR), the persons concerned do not fall under the jurisdiction of the Netherlands. Invoking the TFEU failed as State’s responsibilities pertaining to asylum are limited to applicants who reside on its territory (section 4.10). A final invocation of the 1951 Refugee Convention also failed, with the Court finding that it does not create obligations for third parties (section 4.11). 

Finally, the Foundation invoked general legal principles such as the duty of care. The Court held that it could only honor the claim if the State could be considered negligent. It decided that the State has wide discretion where it comes to decisions pertaining to refugees. The nature of the topic, the Court held, means that political considerations and circumstances will play a role here. It is not up to the Court to make this political decision, but to the State, so that the judge can only test the current State’s decision to relocate only 100-150 refugees “marginally”. The Court also held that it had not been made clear that the State’s policy was unreasonable (section 4.12).  

The Foundation has announced, via its Facebook page, that it will appeal the decision, in a case that is worth following. One of the salient features for EU lawyers, for instance, is the fact that the Court did not rule out that the pledge, in terms of numbers, made by the Netherlands in September 2015 could well be binding.

In conclusion: counting what counts

The bulk of Europe, to date, lacks the political will to share large numbers of asylum seekers, as reflected in the poor and slow pace of relocations undertaken. Although they are undoubtedly a difficult political compromise, some effects of this lack of solidarity would be smoothed if the Union displayed the political will to enforce the relocation decisions that are legally binding. Lack of clarity about the rule of law prolongs the difficult humanitarian, social, and economic situation and the uncertainty for the most affected Member States, while preventing the development of a dissuading European effect that, like a vaccine, could spring from enforcement of compulsory relocation clauses. Until such time, it is worthwhile to keep an eye on the role of civil society, and of judges, to find out to what degree, in today’s Union, founding principles like solidarity enshrined in article 80 TFEU actually count once translated into numbers.