(LUXEMBOURG) – The EU Court of Justice dismissed Wednesday cases brought by Slovakia and Hungary against the European Union’s provisional mechanism for the mandatory relocation of asylum seekers.
The EU’s system for helping Greece and Italy deal with a massive inflow of migrants in the summer of 2015, the Council adopted a decision to help Italy and Greece, providing for the relocation from those two Member States to other EU Member States, over a period of two years, of 120,000 persons in clear need of international protection.
The contested decision was adopted on the basis of Article 78(3) TFEU, which provides that ‘in the event of one or more Member States being confronted by an emergency situation characterised by 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’.
Slovakia and Hungary, who had voted against the Council decision, asked the EU’s top Court to annul the decision. In support of their actions they put forward pleas seeking to show (i) that the adoption of the decision was vitiated by errors of a procedural nature or arising from the choice of an inappropriate legal basis and (ii) that the decision was neither a suitable response to the migrant crisis nor necessary or that purpose.
Poland had also intervened in support of Slovakia and Hungary, while Belgium, Germany, Greece, France, Italy, Luxembourg, Sweden and the Commission intervened in support of the Council.
By its judgment, the Court dismissed in their entirety the actions brought by Slovakia and Hungary.
First, the Court rejects the argument that a legislative procedure 3 should have been followed because Article 78(3) TFEU provides that the European Parliament is to be consulted when a measure based on that provision is adopted. The Court notes in this regard that a legislative procedure can be followed only where a provision of the Treaties expressly refers to it. As Article 8(3) TFEU does not contain any express reference to a legislative procedure, the contested decision could be adopted in a non-legislative procedure and is consequently a non-legislative act.
The Court holds in that connection that Article 78(3) TFEU enables the EU institutions to adopt all he provisional measures necessary to respond effectively and swiftly to an emergency situation characterised by a sudden inflow of displaced persons. Those measures may also derogate from legislative acts, provided, in particular, that their material and temporal scope is circumscribed and that they have neither the object nor the effect of replacing or permanently amending legislative acts. Those conditions are met in the present case.
Since the decision is a non-legislative act, its adoption was not subject to the requirements relating to the participation of national Parliaments and to the public nature of the deliberations and vote in the Council (as those requirements apply only to legislative acts).
The Court then points out that the temporal scope of the contested decision (from 25 September 2015 to 26 September 2017) is precisely delineated; the provisional nature of the decision therefore cannot be denied.
The Court further holds that the Conclusions of the European Council of 25 and 26 June 2015, which stated that the Member States were to agree ‘by consensus’ on the distribution of persons in clear need of international protection and were to do so in a manner ‘reflecting the specific situations of Member States’, could not prevent the adoption of the contested decision.
Those conclusions in fact related to another relocation plan which, in response to the inflow of migrants witnessed in the first six months of 2015, aimed to allocate 40 000 persons between the Member States. That plan formed the subject-matter of Decision 2015/1523 rather than of the decision challenged in this case. The Court adds that the European Council cannot under any circumstances alter the voting rules laid down by the Treaties.
In addition, the Court states that, although substantial amendments were made to the Commission’s initial proposal for a decision, in particular the amendments giving effect to Hungary’s request that it be removed from the list of Member States that were beneficiaries of the relocation mechanism and classifying it as a Member State of relocation, the Parliament was
duly informed of those amendments before the adoption of its resolution on 17 September 2015, which meant that it was able to take account of them in that resolution. The Court notes in this regard that other amendments made after that date did not affect the actual essence of the Commission’s proposal.
The Court also holds that the Council was not required to act unanimously when it adopted the contested decision, even though, for the purpose of adopting the above-mentioned amendments, it had to depart from the Commission’s initial proposal. The Court finds that the amended proposal was in fact approved on behalf of the Commission by two of its Members, who were authorised by the College of Commissioners for that purpose.
Moreover, the Court considers that the relocation mechanism provided for by the contested decision is not a measure that is manifestly inappropriate for contributing to achieving its objective, namely helping Greece and Italy to cope with the impact of the 2015 migration crisis.
In that regard, the legality of the decision cannot be called into question on the basis of retrospective assessments of its efficacy. Where the EU legislature must assess the future effects of a new set of rules, its assessment can be challenged only where it appears manifestly incorrect in the light of the information available to the legislature at the time of the adoption of the rules in question. That is not the case here, given that the Council carried out, on the basis of a detailed examination of the statistical data available to it at the time, an objective analysis of the effects of the measure on the emergency situation in question.
Concerning the last point, the Court observes in particular that the small number of relocations so far carried out under the contested decision can be explained by a series of factors that the Council could not have foreseen at the time when the decision was adopted, including, in particular, the lack of cooperation on the part of certain Member States.
Finally, the Court finds that the Council did not make a manifest error of assessment when it took the view that the objective pursued by the contested decision could not be achieved by less restrictive measures. Thus, the Council did not exceed its broad discretion when it concluded that the mechanism provided for by Decision 2015/1523, which was intended to relocate, on a voluntary basis, 40 000 persons, would not be sufficient to deal with the unprecedented inflow of migrants that had taken place in July and August 2015.
Cases C-643/15 and C-647/15 – OPINION OF ADVOCATE GENERAL BOT delivered on 26 July 2017
