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By Jonas Bornemann, Research Assistant and PhD candidate, Chair of Public, European and International Law, Universität Konstanz .

We thank the European Law Blog for authorising the re-publication of this post.

After the CJEU rendered judgment on the matter, headlines were quick to announce that Poland, Hungary and Czech Republic broke Union law by disavowing the refugee relocation mechanism; one of the major policy responses to the so-called refugee crisis. The judgment of 2nd April 2020 (Joined Cases C‑715/17, C‑718/17 and C‑719/17) adds another chapter to a dispute that simmered for years, even after the relocation mechanism’s two year lifespan had expired. Against that background, Commission President Ursula Von der Leyen reportedly noted that the ruling ‘is referring to the past but it will give us guidance for the future.’ How did the Court solve the dispute? And which ramifications may the judgment yield for EU migration law?

This post intends to discuss these questions, focussing in particular on the canny yet vain invocation of Article 72 TFEU as a legal avenue to depart from binding Union law (I.) and the emphasis of the relocation mechanism’s administrative nature (II.). On the basis of these considerations, it will be argued that the judgment seeks salvation in administrations’ wide discretion as a politically sensible solution, albeit with legal repercussions (III.). Thus, the post takes the view that the judgment allows both the defendant Member States and the Commission to come to terms with the relocation mechanism. Yet, it raises unresolved legal questions, which may motivate follow-up litigations.

I. The merits of Article 72 TFEU

The refugee relocation mechanism has been the subject of a high-profile judgment in Slovak Republic and Hungary v. Council in 2017, thoroughly analysed inter alia here, here, here or here. As an intervening party, the Polish government argued in this context that the imposition of mandatory relocation quotas by virtue of Council Decision 2015/1601 (‘Relocation Decision’) would violate Article 72 TFEU. This argument centred on the allegation that the relocation mechanism would impair ‘the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’, as reiterated by Article 72 TFEU. According to the Polish government, the Relocation Decision would thus constitute an ultra vires act, unlawfully impinging on national competences (in its 2017 judgment, para. 306). The Court, however, disagreed.

Instead, in Slovak Republic and Hungary v. Council, the CJEU confirmed the validity of the relocation mechanism in light of primary law. The Council, in adopting Decisions 2015/1523 and 2015/1601, took due account of Member States responsibilities to safeguard national security and public order. Besides a reference in the recitals to that end, the Court acknowledged that Article 5 (7) of both Decisions permitted Member States to refuse the relocation of an applicant for international protection (paras. 307 et seq.). National authorities may do so if they have ‘reasonable grounds for regarding him or her as a danger to their national security or public order’. As a corollary, the relocation mechanism foresaw a means for Member States to honour their obligations under Article 72 TFEU, whilst simultaneously respecting binding measures of secondary Union law.

When the Commission drew attention to that verdict, and thus the validity of Council Decision 2015/1601, the three defendant governments neither responded, nor adopted measures giving effect to the relocation scheme. In the context of the consequent infringement proceedings, Advocate General Sharpston pointed out (para. 154) that all three defendant Member States accepted the validity of the Relocation Decisions. Despite this confirmation and shared acceptance, the governments’ argument premised nonetheless on the presumption that Article 72 TFEU would allow for the disapplication of the relocation scheme in toto. To this end, the Polish government claimed that Article 72 TFEU constituted a ‘conflict of laws rule’, according to which Member States were authorised to unilaterally disapply Union law whenever they considered their national competence compromised.

The CJEU begs to differ. Even though Member States remain competent to adopt measures to safeguard internal security and public order, this competence is not hermetically shielded from Union law. Rather, the Union may adopt measures affecting and delimiting this national competence. Especially in the Area of Freedom, Security and Justice, the policy field to which Article 72 TFEU relates, Union law often imposes requirements on Member State competences for safeguarding internal security and public order. Against this background, the CJEU concluded that Article 72 TFEU ‘cannot be read in such a way as to confer on Member States the power to depart from the provisions of the Treaty based on no more than reliance on those responsibilities’ (para. 145).

The Court highlights that Article 72 TFEU may benefit Member States nonetheless. This may be the case once they ‘prove that it is necessary to have recourse to that derogation in order to exercise their responsibilities’ for internal security and public order (para. 147). Regarding the Relocation Decisions, the Court quickly adds that this necessity has to be established in light of the derogations foreseen by virtue of the said legal act. It may be questionable, however, whether Member States may benefit from Article 72 TFEU in other contexts than the Relocation Decisions. Indicatively, the judgment draws an ‘analogy’ to the jurisprudence developed with a view to other Treaty provisions that allow for derogations, inter alia in the context of the fundamental freedoms. In this vein, the Court insinuates that, as a justification for a derogation from Union law, Article 72 TFEU must be interpreted strictly (paras. 143 et seq.). This suggests that the provision may be invoked to thwart threats to public order or internal policy, albeit merely in the context of genuine threats of severe nature. With regard to the Relocation Decisions, however, Article 72 TFEU neither allows for a unilateral derogation from the scheme, nor inspires an interpretation of the provisions thereof as awarding Member States unstinted leeway, no strings attached.

Leaving the merit of Article 72 TFEU unresolved in contexts other than the relocation mechanism, the Court turned to the conditions pursuant to which Member States may refuse relocation of a third-country national. In the following, it will be argued that this is emblematic of a judicial strategy that casts questions of high politics, in casu the fundamental opposition of the defendant Member States’ governments against mandatory refugee relocation, in the guise of administrative deliberation.

II. Administrative nature of relocation

It is no secret that the governments of Poland, Hungary and Czech Republic fundamentally oppose a mandatory relocation scheme. The CJEU’s ruling is set in sharp relief to that principled and, frankly, hostile dissent: the Court focuses primarily on the conditions pursuant to which it may be possible to refuse relocation of an applicant for international protection. This finds confirmation in the legal design of the Relocation Decisions, which centre on individualised assessments, and consequently, the nitty-gritty of diligent administrative efforts. In this context, Member States may refuse relocation of an applicant for international protection in one of two circumstances.

First, competent Member State authorities may do so if there are serious reasons for applying the exclusion provisions in Directive 2011/95/EU (‘the Qualification Directive’). Accordingly, the Court recalled its interpretation on the matter in Ahmed (Case C-369/17), pointing to the fact that the exclusion from protection status may merely be justified by the fact that a beneficiary of international protection committed a ‘serious crime’. In this context, the exclusion from status may follow exclusively on the basis of ‘a full investigation into all the circumstances of the individual case concerned’ (Judgment in Ahmed, paras. 49, 58).

Second, the Court interpreted the other possibility of Article 5 (7) of the Relocation Decisions, which states that an applicant may be refused ‘where there are reasonable grounds for regarding him or her as a danger to their national security or public order’. The Court posits the view that this wording is more lenient and broader than the notion of a ‘serious crime’. Unlike the refusal of relocation on the basis of the ground for exclusion from protection status, this possibility for refusal may be invoked more routinely and in less severe circumstances. Thus, the CJEU found that Article 5 (7) of the Relocation Decisions ‘clearly leave[s] a wider margin of discretion to the Member State than the serious reasons for applying the exclusion provisions’ contained in the Qualification Directive (para. 156).

Moreover, the meaning of a ‘danger to … national security or public order’ in the Relocation Decisions differs from wording employed in free movement law, and particularly Article 27 (2) of the Citizenship Directive. In the view of the Court, this bears repercussions for the interpretation of the concepts of public policy and internal security in the context of the Relocation Decisions. The free movement of Union citizens and their family members may be constrained only if the personal conduct of the individual concerned represents a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. In contrast, the wording of the Relocation Decisions imposes no such strict conditions. The Court therefore concluded that the meaning of a ‘danger to … national security or public order’ must be interpreted more broadly than in free movement law, and may equally cover ‘potential’ threats. As a corollary, the Relocation mechanism awards the competent national authority a ‘wide discretion’ in considering whether a third-country national poses a potential threat to national security or public order, and thus, whether relocation may be refused (paras. 157 et seq.).

This reasoning consolidates a line of case-law that considers the concepts of public order and internal security in the legal context in which they arise. In Fahimian and more recently in E.P., the Court found that the strict conditions established within free movement law cannot be transferred a limine to rules on third-country nationals. Rather, competent national authorities may benefit from a broader margin of discretion when assessing (potential) threats to internal security or public order posed by third-country nationals. The wording of the Relocation Decisions confirms this approach. Through the juxtaposition with free movement law, the CJEU settles that the Council did not intend to make the discretion of competent national authorities subject to similar restrictions as the Citizenship Directive.

In the reaffirmation of the administrative nature of the relocation mechanism, the Court displays a keen interest for the wording and syntax of the provision at stake to confirm national administrative authorities wide discretion. Unlike in the case-law cited, however, the CJEU appears to rely primarily on the wording of the Council Decisions to justify the award of wide discretion to administrative authorities. This distinguishes the judgment from earlier rulings, in which the Court primarily focused on the complexity of assessment to substantiate the award of administrative discretion, before confirming its finding on the basis of the wording of the provision. Although the Court acknowledges in the judgment that relocation may involve complexity, it does not appear to rely on that finding for the purpose of substantiating the existence of discretion.

This said, the wide margin of discretion that the Relocation Decisions award is by no means unfettered. To the contrary. The Court counterbalances it with the need to conduct an examination of the individual case, based on ‘consistent, objective and specific evidence’ that supports the assumption that the individual concerned actually or potentially represents a danger. Accordingly, as Advocate General Sharpston had argued, the decision not to relocate a third-country national under the Relocation scheme must ‘establish a direct relationship with a particular case’ (rephrased by the Court, para. 160). This appears to be the judgment’s central tenet: the necessity to rely on an individualised assessment genuinely places the opportunity to refuse the relocation of a third-country national in the hands of administrations. In addition, the requirement to rely on ‘consistent, objective and specific evidence’ seems to preclude, to some degree, the pre-emption of that assessment by other national authorities. All this indicates that the Court confronts the fundamental opposition voiced by some of the defendant Member States governments by highlighting the administrative nature of the relocation mechanism. This allowed the CJEU to evade the language of high politics and principled dissent, and instead drew its focus to the administrative efforts that relocation necessitates.

III. Salvation through wide administrative discretion?

For the CJEU, the confirmation of a wide margin of administrative discretion offers a comfortable solution to a highly politicised litigation. It allows for an interpretation of Union law that accommodates, on the one hand, the need for uniform application, and, on the other hand, the possibility for Member States to safeguard internal security and public order, albeit pursuant to an individualised assessment. This allowed the Polish Minister of Justice to reportedly claim that Union law did not oblige Member States to accept relocation. As such, the CJEU reiterates its finding in Slovak Republic and Hungary v. Council, simultaneously advancing a sensible solution to a strenuous conflict that threatened to remain a dividing issue on the table during the prospected reform efforts of the Common European Asylum System. Accordingly, Commission President Ursula Von der Leyen seems more than willing to move on.

Politically, this may be a well-advised strategy. Legally, however, the judgment has significant ramifications which require further reflexion. Rather urgently, it raises the question whether the Court may allow Member States to resort to Article 72 TFEU in order to derogate from Union law in the context of combatting the spread of the Covid-19 or the disheartening situation of asylum seekers at the Greece-Turkish border. This will further illuminate whether the Court indeed considers Article 72 TFEU as a feasible venue to derogate from Union law and, if so, which conditions it may derive from a ‘strict interpretation’ thereof.

Another aspect that demands close scrutiny concerns the manner in which Member State administrations will be enabled to exercise the ‘wide discretion’ that the CJEU has affirmed in E.P. and the recent infringement proceedings against Poland, Hungary and Czech Republic. Despite the fact that the Court outlined the need for ‘consistent, objective and specific evidence’, these standards remain notoriously vague. As a corollary, it remains to be seen in which manner Member State authorities in Poland, Hungary or Czech Republic put these standards into practice. Should the wide discretion awarded to Member States’ administration be used to preclude relocation altogether, the CJEU may have to intervene once more in order to clarify the conditions pursuant to which wide discretion is to be exercised diligently. Thus, it cannot be said with certainty that an award of wide administrative discretion will bring about full respect for binding Union law.