The Court of Justice of the European Union (CJEU) ruled on 2 April 2020 against Czechia, Hungary and Poland in a joint case brought to the court by the European Commission (EC). The case concerned an infringement procedure launched against the member states by the EC following their failure to implement the 2015 mechanisms for the relocation of applicants for international protection from Italy and Greece.
Initially, the EC had launched an infringement procedure against the three countries in June 2017. After finding their replies unsatisfactory, the EC sent them its reasoned opinions by July 2017. Once again, the ensuing replies were unsatisfactory. As a result of this stalemate, the EC referred the three member states to the CJEU in December 2017.
The new CJEU verdict confirms that the countries have indeed failed to fulfil their obligations under European Union Law.
What did the countries fail to comply with?
The ruling distinguishes between the infringement of two separate mechanisms:
1. The Council of the European Union’s decision 2015/1523 of 14 September 2015, following which, countries voluntarily agreed to relocate a number of asylum seekers from Greece and Italy.
Here, Czechia committed itself to relocate 50 applicants (eventually accepting just twelve); Hungary opted out by not indicating any number of applicants; and Poland agreed to relocate 100 applicants (eventually accepting none).
2. The Council of the European Union’s decision 2015/1601 of 22 September 2015, in which a relocation, on a mandatory basis, of 120,000 asylum seekers from Greece and Italy was established for all member states.
Following a calculation based on each member state’s GDP, number of present asylum seekers and unemployment rates, a number of applicants was assigned to each EU country. In addition, each country was to receive €6000 for each relocated applicant.
During the vote at the Council, Czechia, Hungary, Slovakia and Romania were the only countries to vote against the decision, with Poland voting for. Hungary, together with Slovakia, later challenged this relocation decision before the CJEU. Nonetheless, in September 2017, the CJEU dismissed the two countries‘ legal recourse, reaffirming the mechanism’s compliance with EU legislation and rejecting the claim that its adoption required the participation of national parliaments.
What were the main arguments of the defence and what did the CJEU responded?
a) The period of application for these decisions expired in September 2017, therefore, the countries cannot remedy the infringements that the EC is referring to.
The CJEU replied that the period for the member states to reply to the EC’s reasoned opinions indeed expired in August 2017. Therefore, they can still acknowledge their failure to fulfil their obligations, which is still of legal relevance for establishing the basis of the responsibilities they might incur in as a result.
b) Poland and Hungary argued that they were entitled to not complying with the relocation decisions, as the relocation would have interfered with the countries‘ maintenance of law and order, as well as internal security.
The CJEU replied that, according to Article 72 TFEU, invoked by both countries in their defence, they should have proven that it was necessary to have recourse to the derogation of the decision on relocation, rather than simply expressing their interests.
Most importantly, arguing that relocation was a threat to national security and public order, would mean that each individual applicant is a real or potential danger. This argument could only be built „following a case-by-case investigation, on consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question represents an actual or potential danger“.
Consequently, Poland and Hungary cannot support their claim that they were entitled to not complying with the decisions based on the protection of national security and public order.
c) Czechia argues that the relocation mechanism is malfunctioning and ineffective. Furthermore, the country has opted for sending other types of aid to Greece instead.
The CJEU replies that this argument ignores the objective of solidarity behind these type of decisions as well as their legally binding nature. The unilateral assessment of one single country arguing a lack of effectiveness behind the legal act cannot be used to argue that this decision does not apply to them. Furthermore, deciding to send other forms of aid to Greece, does not mean that the country can ignore its legal obligations with the relocation decision.
Author: Carlos Gomez del Tronco, MPhil candidate;
FATIGUE Marie Sklodowska-Curie Early Stage Researcher
Intern at Consortium of migrants assisting organizations