Niels Kirst, Ph.D. Researcher in European Union Law at the School of Law and Government of Dublin City University*

*Reblogged from the Bridge Network blog

Introduction

A recent Court of Justice of the European Union (CJEU) ruling found Poland, Hungary, and the Czech Republic to be in violation of European Union (EU) law. The violation stems from their failure to implement two Council Decisions outlining the relocation of asylum seekers. These decisions were enacted following the European refugee crisis in the Mediterranean. The CJEU rejected arguments from the aforementioned countries claiming a general threat to law and order and public security (Poland and Hungary) or that the mechanism was ineffective and malfunctioning (Czech Republic), as reasons for their inability to implement the EU’s relocation mechanism.

This judgment comes amid the COVID-19 pandemic and has ignited a larger conversation about solidarity among EU Member States. It strongly affirms the principles of solidarity and sincere cooperation as enshrined in the Treaty on European Union (TEU). The ruling clarifies the scope of Article 72 TFEU, which focuses on maintaining law and order and safeguarding internal security. Although the Council Decisions have since lapsed, meaning the judgment carries no immediate consequences for the involved Member States, it is being praised as a victory for the rule of law within the EU.

In September 2015, two Council Decisions established the relocation scheme, with Member States agreeing to relocate individuals in need of international protection from Italy and Greece. While the first decision was agreed upon, Poland, Hungary, and the Czech Republic were outvoted in the second decision, which passed by a qualified majority vote within the Council of the European Union. Consequently, Hungary refused to accept any asylum-seekers, and Poland and the Czech Republic accepted only a negligible number.

Because all other Member States had pledged to accept a certain number of asylum-seekers, the Commission initiated infringement proceedings against these three countries, referring them to the CJEU. Advocate General Sharpston, in her opinion, emphasized the principles of rule of law and solidarity within the EU’s legal framework, concluding that these Member States had not fulfilled their obligations under EU law. This analysis will delve into the CJEU’s reasoning and the basis of its judgment.

Admissibility of the Infringement Proceedings

The judgment largely focused on whether the infringement proceedings were admissible. The European Commission (Commission) initiated these proceedings under Article 258 of the Treaty on the Functioning of the European Union (TFEU) in June 2017. The three Member States argued that because the Council Decisions in question had already expired, the Commission’s action was moot. They argued that a judgment would be purely declaratory and lacked legitimate grounds for proceedings. The CJEU refuted this, stating that ‘a declaration as to the failures to fulfill obligations at issue is still, moreover, of substantive interest’. They concluded that the infringement proceeding held merit and was consistent with objectives outlined in Article 258 TFEU.

Poland and Hungary further alleged a breach of equal treatment, claiming they were unfairly targeted in the infringement proceedings. The CJEU, referencing the discretionary principle, highlighted the Commission’s latitude in initiating such proceedings. They emphasized the Commission’s consistent reporting, which highlighted the lack of implementation by these Member States and the impending threat of infringement proceedings. Ultimately, the gravity and persistence of the alleged infringements justified the Commission’s decision to bring action against these specific Member States.

Hungary then claimed a violation of its rights of defense during the preliminary stages of the proceedings. Hungary argued the Commission denied their request for a deadline extension amid multiple ongoing infringement proceedings, that deadlines were unreasonably short, and that the Commission made drafting errors in the infringement procedure letters. The CJEU rejected these claims, asserting that the Commission operated within its discretionary powers. Neither a minor procedural error nor the refusal to grant an extension inherently undermines the admissibility of the proceedings or the right to defense.

Finally, the Czech Republic asserted a lack of clarity in the proceedings and inconsistencies in the legal plea. The CJEU dismissed these arguments, finding the infringement proceedings to be within the scope of the plea and stating the compliance deadlines were sufficiently clear. By rejecting these inadmissibility arguments, the CJEU aligned with the Advocate General’s opinion and proceeded to address the heart of the matter.

Substance of the Case

The CJEU first assessed the validity of the infringement claims. They confirmed that the Member States had violated Article 5(2) of both Council Decisions by failing to inform the Commission of the number of asylum seekers they would accept. Consequently, they also violated Article 5(4), which mandated the relocation of said asylum seekers. The Commission’s monthly reports provided evidence of these breaches. Furthermore, the Member States did not deny their failure to inform the Commission of their pledge to accept asylum seekers. Instead, they presented two main justifications for not implementing the Council Decisions.

Poland and Hungary initially claimed Article 72 TFEU (regarding maintaining law and order and safeguarding internal security) in conjunction with Article 4(2) TEU (national identity clause), allowed them to suspend the Council Decisions, arguing that implementation would pose an internal security risk. Poland further claimed that Article 72 TFEU, being a conflict of law rule, superseded secondary legislation like Council Decisions.

The CJEU began by stating that, in an EU governed by the rule of law, institutional acts are presumed lawful, thus rendering both Council Decisions binding for all Member States. The CJEU had already affirmed the legality of these Council Decisions in their judgment in Slovakia and Hungary v. Council. In that case, Poland argued the Council Decision’s illegality under Article 72 TFEU; however, in the present case, both Poland and Hungary claimed that Article 72 TFEU permitted them to disregard the Council Decisions entirely. The CJEU deemed both arguments invalid.

They reiterated that the Treaty only allows derogations affecting law and order or public security under Articles 36, 45, 52, 65, 72, 346, and 347 TFEU. However, Article 72 TFEU derogations, pertaining to Title V of the Treaty (Area of Freedom, Security and Justice), require strict interpretation. This prohibits a blanket refusal to apply the Council Decision. Additionally, Articles 5(4) and 5(7) within the Decisions themselves allow Member States to deny relocation of asylum seekers if there are reasonable grounds to believe an individual poses a threat to national security or public order. These articles reflect Article 72 TFEU, demonstrating that the Council considered Member States’ responsibility to protect national security.

The CJEU further emphasized that the “serious reason” (reasonable grounds) needed to reject individuals from relocation should be interpreted with broader discretion for Member States than the requirements for exclusion from refugee or subsidiary protection status under Directive 2011/95 (the Qualification Directive, which implements the 1951 Geneva Refugee Convention into EU law) or rules on exceptions to free movement law. Member State authorities have significant discretion in rejecting applicants based on national security or public order. However, they must provide concrete, objective, and consistent evidence supporting their suspicion that the applicant poses a genuine threat to their public policy. As stated in the Advocate General’s Opinion, invoking Article 72 TFEU as an absolute justification to deny any applicant based on public policy is not permissible.

By refusing to commit to accepting any asylum seekers, Poland and Hungary failed to conduct individual assessments. Furthermore, their claim of an ineffective mechanism due to a lack of cooperation from Italian and Greek authorities should have been addressed through cooperation and mutual trust. Ultimately, the CJEU found no evidence to suggest that protecting essential state functions, like national security, necessitated disregarding the Council Decisions. The mechanism within these Decisions provided adequate measures for safeguarding national security, an option the Member States failed to utilize.

In their second defense, the Czech Republic argued that the system’s dysfunction and ineffectiveness justified its decision to disregard the Council Decisions, opting instead for bilateral support for the affected Member States. Again, the CJEU stated that resolving these issues fell to the Member States, requiring them to act in a spirit of cooperation and mutual trust within the framework established by the Council Decisions. Suspending the mechanism altogether was not an appropriate response to its alleged ineffectiveness. Additionally, the Czech Republic’s supplementary bilateral measures could not substitute for the overall non-application of the Council Decisions. In conclusion, all three Member States failed to fulfill the obligations outlined in the Council Decisions on the relocation mechanism.

Comment

This judgment underscores that Council decisions are binding for all Member States. As a legal order based on the rule of law, the EU necessitates formal compliance with its Treaties, Regulations, Directives, and Decisions to uphold a rules-based system. Member States cannot simply disregard EU law because it clashes with their national political agendas or because they disagree with it. The Visegrád states, in particular, have consistently opposed the EU’s common asylum policy, culminating in this ruling and the Slovak Republic and Hungary v. Council case. However, because the obligations outlined in the Council Decisions have since expired, the judgment is purely declaratory, carrying no concrete consequences for Poland, Hungary, and the Czech Republic. Furthermore, this prevents the Commission from pursuing financial penalties under Article 260 TFEU.

This case demonstrates that consensus within the EU must be reached at the political level. Otherwise, decisions on contentious issues like asylum seekers will continue to be met with non-compliance from individual Member States. Ideally, the Commission should not need to resort to infringement proceedings after a qualified majority vote within the Council. This dispute over a common approach to asylum policy reveals that qualified majority voting still hinges on a tolerable level of consensus among Member States. Without this, the Council risks further non-implementation of its decisions. Therefore, future decisions regarding asylum policy should strive for consensus among Member States to avoid further infringement proceedings.

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Photo credit: Puskechina, via Wikimedia commons