Earlier this month, an important issue was settled in court: the refusal of central European countries to welcome refugees. Slovakia and Hungary sought an action for annulment against Council Decision (EU) 2015/1601, that provided for the relocation of 120 000 refugees from Italy and Greece to the other Member States, for a period of 24 months. Both applicants (C-643/15 and C-647/15) were supported by their Polish counterparts from the Visegrad Group.
In his opinion, dated 26 July 2017 (ECLI:EU:C:2017:618), Advocate General Bot described solidarity as a value and principle of the European Union (EU): a ‘cardinal’, ‘founding and existential value’, a ‘pillar’ and a ‘quintessence of what is both the raison d’être and the objective of the European project’.
However lyrical it might appear, the Advocate General was right to underline the importance of solidarity in the EU constitutional framework. As well as in the preambles, it is promoted in Article 3(3) of the Treaty on EU (TEU), both as ‘solidarity between generations’ and ‘among Member States’. Most importantly, Advocate General Bot recalled that Article 67(2) of the Treaty on the Functioning of the EU (TFEU) provides that the Union shall have a common policy on immigration and asylum ‘based on solidarity between Member States’. Article 80 TFEU goes further, by providing that this policy ‘shall be governed by the principles of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts […] shall contain appropriate measures to give effect to this principle.’ By setting the stage, the Advocate General issued a bold warning: if solidarity is a value of the Union, it is also a cornerstone in asylum and migration and a governing principle of EU policies. Surprisingly enough, solidarity was a notable absentee from the grand chamber judgment of the Court of Justice, released on 6 September 2017 (ECLI:EU:C:2017:631).
In these proceedings, three arguments were discussed extensively: the legislative character of the measure; the decision-making procedure; and the proportionality of the measure. Other arguments were quickly dismissed (lack of emergency, no provisory character, etc.).
Slovakia and Hungary disputed the legal basis of the decision. In their opinion, the decision has a legislative character, given its content and its effect. The form of decision also deprived the European Parliament and national parliaments of their right to have a say.
The Advocate General and the Court confirmed that Article 78(3) was, nonetheless, the correct legal basis, as it provides that ‘in the event of one or more Member States being confronted with 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 disputed decision fulfilled all criteria. It did not overrule, replace or modify the existing legislation, the reform of which is the subject of another Commission proposal, presented the same day as the emergency relocation scheme. Strangely enough, the Advocate General asserted that it could not be a legislative act, given the difficulty in adopting one in an emergency. The Court of Justice, however, recalled that the decision was not to have a legislative character, given that Article 78(3) did not provide for a legislative procedure to adopt provisional measures.
With regards to the decision-making procedure, the applicants called into question the decision-making procedure, leading to an interesting reasoning from the bench. The Advocate General and the Court seemed to downplay the absence of any binding character in the European Council’s conclusions, instead reminding the applicant about it. They nevertheless rejected the claim. More interesting is their reasoning when justifying the absence of unanimity in the Council. The Court of Justice referred to a combined reading of Article 293(1) and (2) TFEU to assert that there is no need for unanimity or for a new proposal from the Commission if the latter agrees to the amendments of the Council. Although it makes the procedure considerably smoother, it remains a creative interpretation of the procedure. Is such an interpretation justified by an emergency? The absence of a second consultation by the European Parliament was downplayed by the Advocate General, who rejected the claim that the initial proposal was substantially changed. The Court, more wisely, conceded there were substantial changes (i.e. relocation obligations were imposed on Hungary after it refused to be considered a frontline state such as Italy and Greece). The judgment stressed, however, that the European Parliament was officially informed of these changes by the presidency of the Council before it got to a vote. The European Parliament was, thus, fully informed of the situation when adopting its position, and did not need to be consulted a second time.
Finally, the proportionality of the decision was challenged. With regards to the claim that the relocation scheme was inadequate for the situation, because it partially failed to be effective, the reasoning of Advocate General Bot is notable. According to him, the applicants could not argue a lack of implementation when they were greatly responsible for it, thus referring to the principle nemo auditur propriam turpitudinem allegans. Regarding the necessity of the decision, he considered that the relocation scheme was correctly deemed necessary, given the number of refugees who asked for international protection in Greece and Italy. Furthermore, this scheme was complemented by other more technical or financial measures to comprehensively address the problem. Less convincingly, the Advocate General rejected categorically Hungary’s claim for an exoneration from the scheme. Although Hungary (generously?) refused to benefit from the scheme as a frontline state, as initially proposed by the Commission, Hungary claimed that the great inflow of refugees it experienced was sufficient. The Advocate General might have been better inspired if he had focused, just like the Court of Justice did, on the adjustment mechanisms provided by the decision to take into account particular situations. Sweden and Austria benefited from these exemptions. Hungary did not ask to benefit from them. It was then incorrect to claim that the decision was disproportionate.
National egoism was clearly visible in this case. And although the bench made its way through the proceedings to reject Slovakia and Hungary’s actions for annulment, we missed the bigger issue here. Solidarity, as a governing principle of EU migration and asylum policies, was not only forgotten by the Court, it has also been forgotten by the Member States. The failure to implement the relocation scheme (which ends today) and inability to reform Dublin III provide ample evidence of this.