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By Henri LabayleCDRE

The new judicial term of the fall of 2017 had been eagerly anticipated, and the delivery of a judgment in Slovakia and Hungary v. Council on 6 September, was the main reason for this excitement. The debate is well known, that of the refusal of the The Visegrad Group countries to respect the emergency relocation scheme for refugees, initiated by the EU at the height of the Migration Crisis. Two Countries of the group brought a case before the Court of Justice.

Advocate General Bot’s remarkable interpretation of the issue suggested that a landmark decision was in sight. The matter in question, and the nature of the principles invoked, allowed the Court to take a new position. Given the clear and unambiguous nature of the case, the Court could rather easily have addressed the criticism regarding some of the newer Member States’ actions during the 2015 crisis. It even provided an opportunity to settle the uncertainty left by the Court’s earlier jurisprudence on humanitarian visas and the EU Turkey agreement. However, despite the doubts regarding the EU’s projects and values, the Court decided not to take this opportunity to address these issues.


I – A fault in proclamation, instrumentalization of the Principle of Solidarity

The background of this case is well known and will only be described briefly. The Council adopted a binding decision providing for the relocation of 120 000 people in clear need of international protection, within the next two years. These measures were taken based on Article 78(3) TFEU, with the purpose of somewhat relieving Italy and Greece of their burden. The Article reads: “In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.”

The following action for annulment by Slovakia and Hungary was supported by Poland, while Belgium, Germany, Greece, France, Italy, Luxembourg and Sweden intervened alongside the Commission in support of the Council. This split between countries is highly political. It explains the long and detailed judgment of the court, which included 345 recitals responding to the 16 pleas raised by the applicants.

The many points establishing the external legality of the contested decision will be dealt with briefly, despite their importance regarding the difference between legislative and non-legislative acts and the procedural consequences arising from them. What is interesting in this context is the substance of the European asylum policy.

a. Provisional derogation from the Dublin Regulation

The first particular feature of Council Decision 2015/1601 on the relocation of 120 000 people within the Union, not to mention its symbolic meaning, is the breach it opens in the Dublin system, which governs the common asylum policy. Recital 23 of the decision clearly states that relocating an applicant to a country other than the one considered to be responsible for the application under the Dublin rules, is indeed a’ temporary derogation’ from the Regulation.

Hence the problem becomes twofold; The possibility of a non-legislative act to derogate from a legislative text, and the “provisional” nature, or not, of this derogation.

Regarding the first issue, the Court found that after careful examination the derogations provided for in the contested decision did not call into question legislative acts. These derogations were strictly limited to responding quickly and effectively to a specific crisis with a temporary arrangement. For this, they contain a framework of their material and temporal scope of application as needed. Therefore, they do not have the object or effect of replacing or permanently amending provisions of legislative acts (para 79).

As to the second issue, the Court first noted that Article 78 TFEU remains silent regarding the nature of these “interim measures,” without suggesting a narrow interpretation of the term. On the contrary, interim measures must be “sufficiently broad in scope to enable the EU institutions to adopt all the provisional measures necessary to respond effectively and swiftly to an emergency situation characterised by a sudden inflow of nationals of third countries.” (para 77). The Court also points out that the current Treaty does not mention time limits, unlike the former Article 64 of the EC Treaty, and that the margin of appreciation granted to the Council during this two-year period is justified by the “unprecedented and complex” nature of the operation.

The result is a series of value judgments on the technical and political choices made by the Union institutions.

Firstly, since the objective was to relieve two Member States of an emergency situation which they were unable to deal with on their own, it cannot be considered that “The mechanism for relocating a significant number of applicants in clear need of international protection for which the contested decision provides cannot be considered a measure that is manifestly inappropriate for working towards that objective.” (para 213). Especially since it is accompanied by a whole system of complementary measures which were not sufficient by themselves. It does not matter in that regard that the structural deficiencies of States under pressure were not repaired in time. “It is equally hard to deny that any asylum system, even one without structural weaknesses in terms of reception capacity and capacity to process applications for international protection, would have been seriously disrupted by the unprecedented influx of migrants that occurred in Greece and Italy in 2015.” (para 214).

Secondly, the relocation mechanism is a part of a “system” clearly valued by the Court, as the judgment clearly indicates. Not only does the relocation decision merely derogate from the “objective system” laid down by the Dublin III Regulation, and cannot be regarded as taking its place (para 332), but it is also a part of it. As the Court stated; “on the contrary, there is ultimately no substantial difference between those two systems in the sense that the system established by the contested decision is based –– like the system established by the Dublin III Regulation –– on objective criteria rather than on a preference expressed by an applicant for international protection.” (para 333). Finally, the constancy of the Court’s case-law is undeniable: The Court deliberately follows the logic of safeguarding the Dublin system and chooses to defend a Regulation which has been shown not to work, even in a fourth version….

b. A measure justified by the Principle of Solidarity

An answer to the question of whether or not there is solidarity within the Union, or whether it is merely a façade, would have been welcomed by the Court. The difficulty went beyond the simple question of whether or not applying a relocation mechanism was proportionate in regard to the situation, particularly in view of its low implementation rate now two years later (COM (2017)465), a lack of enthusiasm which was maliciously underscored by the applicants. Despite the allusion of supporting solidarity, Directive 2001/55 on temporary protection relies on the good will of the Member States to properly apply Union law. Whether it means political exhortation or a legal obligation, the scope of the principle of solidarity, described in Article 80 TFEU as “governing” the asylum policy, needed to be clarified.

The Court did not discard this ground even if it did not consider it useful to give it the place it deserved, for example in the form of a principle. At the centre of this controversy, solidarity and the forms it takes in the Union’s asylum policy, would undoubtedly have deserved better commentary from the Court. At least Yves Bot’s put forward a welcome reminder, stressing that “solidarity is among the cardinal values of the Union and is even among the foundations of the Union.” We can agree with Bot that it is “both the raison d’être and the objective of the European project.”(conclusion. cited above, para. 17 and 18). From the outset, the Court warns us and sets out the extent of its control with regard to the principle of proportionality, by “preliminary observations” expressing its caution, in view of the broad discretion conferred on the institutions to adopt eminently complex and political decisions. It cannot go beyond the control of a manifest error of assessment, and “the legality of a measure adopted in one of those areas can be affected only if the measure is manifestly inappropriate having regard to the objective which those institutions are seeking to pursue.” (para 207) It is liable to affect its legality, especially when facing a crisis requiring an immediate response, as in this case.

A compulsory mechanism such as this one may, therefore, only be censured by the Court when it is found that “the Council, in the light of the information and data available at that time, made a manifest error of assessment when it adopted the contested decision, in that another less restrictive but equally effective measure could have been taken within the same time limit.” (para 236). Therefore, the Court considered the facts and the scope of the relocation decision. It found that the Council was “fully entitled to take the view, in the exercise of the broad discretion which it must be allowed in this regard, that the distribution of the persons to be relocated had to be mandatory, given the particular urgency of the situation in which the contested decision was to be adopted.” (para 246). However, the lack of a consensus decision clearly supports the view that there was no other realistic option available, other than a binding mechanism. The Court therefore used the principle of solidarity to the expense of the solemn proclamation we could have hoped for.

The Court of Justice could have opted for a direct approach, similar to that of its Advocate General, to deliver one of the praetorian phrases of which it alone has the secret, consisting in conspicuously recognizing all its legal strength to the principle formulated in article 80 TFUE. Yet, it took a biased approach, relying on a manifest error of assessment to arrive at the same conclusion. When considering the motivations expressed by the Council, the Court noted that the Council “considered it essential to demonstrate the following Solidarity.” Relying on the incentives behind the measure, the Court found that the Council had been conveniently bound by Article 80 TFEU and required to “give effect to the principle of solidarity and fair sharing of responsibility” (para 252).

Obviously, complying with a legal obligation by adopting a relocation decision in view of the specific urgency of the situation cannot constitute a manifest error of assessment. What is more, the Council decided on this binding mechanism on the basis of Article 78 TFEU, read in the light of the principle of solidarity enshrined in Article 80 TFEU. The binding nature of the principle of solidarity within the EU’s migration policy is therefore clearly laid down, which is a key point in the Courts judgement, putting an end to the controversy.

The only thing left to do was to draw the outlines, if not the precise content, which the Court did in an impressionist way. First of all, it dismissed the possibility of alternative measures to relocation, before examining more closely Hungary’s arguments on the matter.

The Hungarian authorities’ firmness regarding the situation deserved a response. Having refused to be on the benefitting end of the relocation measure, which they rejected as such, they equally claimed to be exempted from their reception obligation. From Hungary’s perspective, being imposed with quotas of refugees, while the country was itself in need of assistance, was contrary to Article 78 (3) TFEU, as this provision was intended to benefit Member States faced with a sudden influx of third-country nationals.

The genesis of the decision enabled the Court, by rejecting the plea in law, to give some indications as to the practical scope of solidarity. The obligation to relocate with an impact on all States requires that “a balance be struck between the different interests involved, account being taken of the objectives which that decision pursues.” However, where one or more Member States find themselves in an emergency situation, within the meaning of Article 78 (3) TFEU, “the burdens entailed by the provisional measures adopted under that provision for the benefit of that or those Member States must, as a rule, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States.”(para 291). Considered as a “fundamental element” of the contested decision, this interpretation of the principle of solidarity is therefore an important point: solidarity cannot be fragmented or divided, except by an adjustment mechanism applied to other States with the Court’s approval.

In other words, the Court’s judgment, by endorsing the political courage of a few players in the Union, gives meaning to the term of solidarity enshrined in the Treaty, if only in theoretical terms. The above-mentioned communication (COM (2017)465), published by the Commission on the day of the judgment and a few weeks before the end of the programme, states that, as of 4 September 2017, only 27,695 people had been relocated (19,244 from Greece and 8,451 from Italy), with obedient states such as Malta and Latvia having fulfilled their quota.

II – Recklessness, a biased approach regarding the values of the Union

The Court had the opportunity to give a landmark decision. It could have clarified the grounds on which asylum matters stand and indicated where the boundaries lie. The disgraceful spectacle of walls rising up in Central Europe, police brutality within some member states and rash statements made by political leaders in the face of the crisis provided for an occasion to turn back to the fundamental principles of EU law. Without mentioning the irony of the President of the Commission congratulating Victor Orban on his awareness of the benefits of solidarity as he applied for funding to build an anti-migrant wall, the Court could have taken the opportunity to address the essential issues at stake. In fact, it completely failed to do so.

a. Ignoring the values of the Union

With an argument that came from Poland, the Court was given the ideal opportunity to address its Advocate-General’s conclusions. At the outset, the latter stressed the values on which the Union’s actions were based, thus framing the debate for what it is: a question of principle.

The lack of any mentioning from the Court on this point is disappointing and raises doubts as to its understanding of the issues at stake.

Put in quotation marks by the Court itself, states that are “virtually ethnically homogeneous, like Poland” (para 301) cannot accommodate migrants relocated to their territory because their population differs culturally and linguistically. Apart from the fact that it is inherent in the asylum and immigration policy (sovereignly accepted by the Polish State upon accession to the EU Treaties) that states must accept human differences of this nature, the argument of national “ethnic homogeneity” is not acceptable. The Court stresses that taking this difference into account would make it de facto impossible to relocate individuals to the country: If relocation were to ” be strictly conditional upon the existence of cultural or linguistic ties between each applicant for international protection and the Member State of relocation, the distribution of those applicants between all the Member States…the adoption of a binding relocation mechanism would be impossible.” (para 304) Of course it would.

This is self-evident, but it would have been better if the Court had emphasized that an argument of this nature obviously transgresses the values of the Union as proclaimed by Article 2 of the TEU. Dignity, pluralism, non-discrimination, among other things… At a time when Poland is threatened by the wrath of Article 7 of the EU Treaty, which makes serious violations of these values punishable, would it have been unreasonable or contradictory to strongly oppose the claim of a “virtually ethnically homogeneous” society? Would it have been inappropriate to strongly refuse to echo the numerous national public statements rejecting the reception of applicants for protection on religious or racial grounds?

However, the Court chose to go with the disembodied approach, emphasizing Article 21 of the Charter of Fundamental Rights and the Principle of Non-Discrimination, finding that “considerations relating to the ethnic origin of applicants for international protection cannot be taken into account since they are clearly contrary to EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).” The use of the word “clearly” shows how strongly the judge considers that this view is at odds with Union law.

This lack of determination by the Court is, in fact, a lack of lucidity. Thus, how can the supreme judge of the Union offer this precedent for national judges to follow, were the “fundamental premise” of “mutual trust” between member states is mentioned, without any reference to fundamental rights and values? This failure of the Court affects the credibility and the solidity of the structure of European principles in the short term.

b. The objectification of refugee law

In a similar way, the judgement presents a regrettable input into the field of refugee law. As useful as these developments might have been, the Court did not pay any attention to the victims of the debate. Not a word of compassion for their hardship. Ironically, the requesting States were nevertheless openly concerned about the infringements of fundamental rights invoked by the contested decision. The right to remain in the host Member State was put forward by Hungary, while Poland made a reference to the standards of human rights protection, including cultural and social ties that may affect their integration.

The Court quite rightly ruled out any accusations of arbitrariness regarding the Dublin Regulation, equally pointing to the criteria adopted by the relocation decision, linked to the best interests of the child and family and cultural or social ties. The Court mentioned two important factors. First, it emphasized its own role and jurisdiction, perceptible in all its case law relating to “Dublin.” The Court must ensure that the common asylum system functions effectively. It can therefore be seen to have taken an objective and not subjective approach.

Furthermore, the Court noted that the absence of any possibility for applicants to choose the Member State responsible for examining their application invariably expresses the same rule as the Dublin system: there is no possibility to choose one’s destination nor to express any preferences. This justifies the need for asylum seekers to have an effective right of appeal against the relocation decision in order to have their fundamental rights respected. The reason for this is objectively expressed by the Court: “in the light of the objective of the decision, which is to take the pressure off the Greek and Italian asylum systems by actually relocating, within a short time frame, a significant number of applicants to other Member States, in compliance with EU law and, in particular, with the fundamental rights guaranteed by the Charter”. (para 337)

Second, the Court addresses Hungary’s claim that the Geneva Convention “includes a right to remain in the State in which the application has been lodged while that application is pending.” The Court answers this plea by stating that the “passage must be understood as a particular expression of the principle of non-refoulement, which prohibits the expulsion of an applicant for international protection to a third country as long as a decision has not been taken on his application.” (para 341). Because the transfer of an applicant to another Member State as part of a relocation operation in order to examine the individual’s application it “cannot be regarded as refoulement to a third State.” This argument could therefore not be accepted. The Court continued: “It is on the contrary a crisis-management measure, taken at EU level, whose purpose is to ensure that the fundamental right to asylum, laid down in Article 18 of the Charter, can be exercised properly, in accordance with the Geneva Convention.” (para 343). In conclusion, the Court is thus in line with its former case-law on both normative issues and the substance of asylum law. In a climate of tension and a disgraceful European political context, it clearly does not want to go beyond the limits it has set itself: Neither to take part in this debate, nor to be the subject of it.

Thank you Guðrún Elsa Tryggvadóttir for translating.