Relocation and Solidarity in the Common European Asylum System

On 6 September 2017, the Court of Justice of the European Union dismissed the actions brought by Slovakia and Hungary against a provisional relocation mechanism for asylum seekers, adopted in 2015 to tackle the so-called refugee crisis. Slovakia and Hungary vs. Council of the European Union: A comment.

Contested Relocation Decision

In September 2015, the Council of the European Union adopted two relocation decisions in favor of Italy and Greece – two of the most affected countries by the massive arrival of migrants in 2015/2016, due to their geographic position at the external borders of the EU. Whereas the first relocation decision was adopted unanimously, the second one was not. The Czech Republic, Romania, Slovakia and Hungary voted against it, but were outvoted by the other Member States.

Hungary and Slovakia almost immediately brought actions to the Court of Justice of the European Union (CJEU), seeking for the annulment of the contested decision. Almost two years later, the CJEU entirely dismissed these actions. However, the CJEU’s judgment of 6 September 2017 – even though enthusiastically welcomed by the EU institutions, most of the Member States, and in the academic world – is said to have been a “pyrrhic victory”.

Adoption of Temporary Measures Only

In its judgment, the CJEU firstly confirmed that the relocation decision could be adopted in a non-legislative procedure, as foreseen by Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). According to the Court, a legislative procedure is only mandatory where the Treaty explicitly refers to it. Second, Article 78(3) TFEU enables the EU institutions to adopt any measure necessary to respond to an emergency situation characterized by a sudden inflow of nationals of third countries, as long as the measure is provisionary. It may also derogate from existing legislative acts (here: the Dublin III Regulation) as long as its material and temporal scope is circumscribed and it neither has the object nor the effect of permanently amending legislative acts. As to the CJEU, the temporal scope of the relocation decision was clearly delineated. The European Parliament was also informed about amendments to the original proposal by the EU Commission, so that it could take them into account before its resolution of 17 September 2015.

Emergency Measures as Non-Legislative Acts

As the contested decision was a non-legislative act, the requirements concerning legislative acts (such as the participation of national parliaments) did not apply. Additionally, the Council was not required to act unanimously.

No Retrospective Assessment – Failure Linked To „A Series of Factors“

Regarding the content of the contested decision, the Court had to apply the principle of proportionality. In that context, the CJEU held that the relocation decision was not manifestly inappropriate to achieve its objective, which was helping Greece and Italy to cope with the refugee crisis. In the eyes of the Court, the assessment of a new set of rules can only be challenged where it appears to be manifestly incorrect in the light of the information available at the time of the adoption of the rules. Back in 2015, the Council had carried out a detailed examination of the statistical data available and carefully analyzed possible effects of the emergency measure. Therefore, the Court emphasized that it is not opportune to retrospectively assess the efficacy of the contested decision – which may be doubted from an ex post point of view, but could not have been anticipated at the time when the decision was adopted. The Court actually holds the Member States’ poor readiness to cooperate accountable for the failure of the adopted relocation mechanism.

A Pyrrhic Victory?

So why is the judgment a pyrrhic victory? The importance of the judgment seems so obvious: The Common European Asylum System has been strengthened and the significance of the principle of solidary (Article 80 TFEU) has finally been highlighted. Wonderful news, isn’t it? Well, that’s the theory! In practice, Member States are still quarreling about how to best deal with asylum seekers (and refugees) in Europe and solidarity remains an empty shell. The European Union has little means to pressure Member States unwilling to cooperate. In case of Member States’ breaches of obligations under EU Law, the Commission can initiate infringement procedures according to Article 258 TFEU (which it did against Hungary, Poland and the Czech Republic) and the CJEU could eventually fine those Member States who do not comply. But in the end, sanctions might have the opposite rather than the desired effect. It could be wiser to elaborate a system of financial incentives rather than to intensify existing resistances by sanctioning uncooperative Member States.

Unfortunately, the tensions between the Member States have already led (and continue to lead) to an externalization of the EU Asylum Policy, privileging dubious “deals” with Turkey, Libya and other states around the key migrant routes to Europe. A reform of the Dublin system is urgently needed – but not in the sense of the 2016 proposal, but in favor of a truly solidary system.

Sarah Progin-Theuerkauf
Project Leader, nccr – on the move, University of Fribourg