Joined Cases C-715/17, C-718/17 And C-719/17, Commission V ...

Background

In 2015, the Member States of Italy and Greece received an unexpected influx of migrants from the Central and Eastern Mediterranean, causing pressuring to their immigration systems. The Council reacted by composing Decisions (EU) 2015/1523 and (EU) 2015/1601 in order to establish concrete measures to ensure fulfilment of the Union’s main principle for actions in the area of immigration and asylum, the principles of solidarity and fair sharing of responsibility (see the Preamble to Decision 2015/1523 and Articles 78(3) and 80 of the Treaty on the Functioning of the European Union [TFEU]). The objective of Decision 2015/1523 was to relocate 40 000 individuals, and as the measures were deemed to be insufficient, Decision 2015/1601 was formed to relocate an additional 120 000 individuals (Preamble of the Decision 2015/1601, (11)-(12)).

One of the concrete measures provided by the Decisions was establishing a temporary relocating system of applicants for international protection into the other Member States. The Member States agreed to inform regularly and at least every three months how many individuals could be relocated into their territory (Decisions, art. 5(2)). Decision 2015/1601 required a qualified majority. Only four Member States voted against, two of them being Hungary and the Czech Republic (see the Draft Minutes to the Council’s meeting).

The Commission argued that Poland, Hungary, and the Czech Republic had failed to submit the number of relocatable applicants (paras. 1-3, 24-26). During the 2-year application period, the Commission reminded the Member States several times to fulfil their obligations and warned them that in the absence of the required actions, it would bring an infringement case to the Court. The Commission sent a letter regarding this matter to the Member States in question the last time on 19 September 2017, and after receiving no answer, it brought the matter to the Court under Article 258 TFEU (paras. 27-41).

None of the defendants denied the Commission’s statement that necessary actions were not taken (para. 129), therefore not requiring the Court’s attention. Instead, the first legal questions regarded the case’s admissibility, particularly that the obligations had ceased to exist when the application period ended. The second legal question was if the Member States rightfully could disregard the obligations imposed by the Decisions, invoking inter alia their right to take measures to protect public safety provided by Article 72 TFEU (para. 133). The Court agreed on both points with the Commission. The case was admissible, and an infringement of Union law had occurred (para. 189).

Inadmissibility Claims

The Member States argued inadmissibility on multiple grounds, such as inconsistency with Article 258 TFEU (para. 46), infringement on the principle of equal treatment (para. 72), and infringement of the right to defence during the pre-litigation procedure (para. 83). The Court denied each of these arguments, basing its opinion heavily on already established case law, which suggests that the Member States’ focus was on the number of claims, rather than their quality or originality.

Additionally, the Court reminded the Member States of the Commission’s duty to act as the guardian of the Treaties and of its right to determine the timing of action freely and which provisions and Member States are concerned (see Commission v Ireland (Registration Tax), C-522/15, para. 34). (paras. 71-76) The acceptance of the Member States’ arguments could even hinder achieving the objectives of the Decisions. In a case of possible infringement of the Union law, the Member States could take advantage of the legislation’s temporary nature, preventing the Commission from fulfilling its duty. This conduct could harm the Decisions’ binding nature and the respect of European values, such as the rule of law (paras. 63-65).

Claims on the merits

The three Member States mainly based their defense on Article 72 TFEU. They did not challenge the Commission’s claims that actions were not taken but instead argued that disapplying was acceptable as a measure to protect public security. Moreover, the Czech Republic claimed that the relocation process was malfunctioning and ineffective (para. 133). This argument was mainly based on the claim that the relocation could have caused terrorists or extremists to access their territory, as Italy and Greece could not allegedly fully guarantee the system’s safety, because the applicants’ identity and origin were not established sufficiently, cooperation malfunctioned, and additional interviews were not possible before the transfer (paras. 135-136).

The Court stated that the Decisions were binding, and therefore the Member States were required to comply with the obligations (para. 139). Even though the Treaties include provisions that allow the Member States to take measures to protect public security, these must still be subjected to Union law. Otherwise, it might hurt the Union law’s binding nature and uniformity (para. 143, see Commission v Denmark, C-461/05).

A Member State wanting to use Article 72 TFEU must prove the necessity of the measure (paras. 146-147). Public safety had already been considered in the Decision by, inter alia, allowing the Member States to reject an applicant that could be a danger to public security (Article 5(7)). Even though the Member States have wide discretion to define when an individual is such a threat, the assessment must be done only in the light of consistent, objective, and specific evidence on each individual (see, E.P (Threat to Public policy), C-380/18, and paras. 153-159). Thus, the Member States cannot use article 72 TFEU to generally prevent the applicants’ relocation or to argue for the disapplication of the binding Decisions (para. 161).

The Czech Republic argued that the process of relocating applicants was slow and inefficient. Therefore, it had decided to concentrate on other, more effective forms of aid, such as providing financial or technical help to the third countries concerned, disregarding the Decisions (paras. 173-176). The Court answered by stating that a Member State cannot unilaterally refrain from obligations based on inefficiency, especially if the Member State has not used the legal tools provided in the Treaties, which the Court, however, did not define. The Court stated that principally such problems should be resolved in the spirit of solidarity, cooperation, and mutual trust between the Member States (see Slovakia and Hungary v Council, C-643/15, par. 309 concerning the same Decisions).

Solidarity between the States of Europe was one of the objectives of the Schuman Declaration already in 1950 and is present in the Treaties of the Union, such as in the principle of sincere cooperation (Article 4(3) of the Treaty on the European Union). Here the Court bases its statement on foundational principles of the Union. As the Court cannot force the Member States into action, trust is necessary for the Union’s overall functioning. An essential part of trust is recognizing common values and being able to trust that other Member States take necessary measures to fulfil their obligations (see, for example, in Slowakische Republik v Achmea BV). The principles are an essential part of other fundamental functions and principles of the Union, such as judicial cooperation (see Prechal on Mutual Trust Before the Court of Justice of the European Union, 2017).

The Court also concludes that the other Member States were not prevented from fulfilling their obligations, and the system experienced adjustments and improvements even during the application period. Additionally, any form of voluntary aid cannot remove the obligations set upon a Member State by a binding Decision (paras. 180-187).

Comments

In conclusion, the case at hand concerns the foundational requirements of European cooperation. The principles ensuring trust between the Member States are not fulfilled when the Member States unilaterally refuse to comply with the obligations set to help another Member State. A Member State’s refusal also affects the efficiency of the help measures in question (see the Advocate-General’s Opinion, para. 157).

The Member States’ actions are in line with the populist right-wing views on immigration and general political development in Eastern Europe, not unknown either to the other Member States. The question of the Union’s future functionality must be raised, as the lack of appreciation towards binding Decisions might be a possible threat to the Union’s foundational principles.

Advocate-General concluded her Opinion with an old story of Jewish tradition that makes a perfect final remark even here.

“A group of men are travelling together in a boat. Suddenly, one of them takes out an auger and starts to bore a hole in the hull beneath himself. His companions remonstrate with him. ‘Why are you doing that?’ they cry. ‘What are you complaining about?’ says he. ‘Am I not drilling the hole under my own seat?’ ‘Yes,’ they reply, ‘but the water will come in and flood the boat for all of us.’” (para. 255)

Minna Koskela

Share this:

• Tweet
• Email

Like Loading...

Related