The Slovak Challenge To The Asylum-Seekers’ Relocation Decision: A Balancing Act

Zuzana Vikarska, Post-graduate enquiry student, University of Oxford*

*This postal service is written inwards the author's academic capacity in addition to does non stand upwards for the see of whatever of her past, introduce or hereafter employers

On Wed 2 December, Slovakia filed an activity for annulment to the Court of Justice (pending illustration C-643/15), challenging the legality of the Asylum-Seekers Relocation Decision (“the contested decision”) adopted on 22 September 2015. Just ane 24-hour interval later, on Th 3 December, Republic of Hungary did the same (pending illustration C-647/15).

Steve Peers has already discussed some of the (anticipated) legal arguments against the validity of the challenged European Union mensurate inwards his recent blog-post. In the next post, I briefly beak over the arguments on which the Slovak government’s illustration rests in addition to I explore whether they are likely to succeed earlier the Court of Justice. Unfortunately, I do non own got access to the total text of the Slovak action, nor to the arguments of the Hungarian government. I am thence solely commenting on the summary of the half dozen arguments, which has been published on the webpage of the Slovak Ministry of Justice.

1. Division of competences in addition to institutional balance

“First plea inwards law, alleging breach of Article 68 TFEU, every bit good every bit Article 13(2) TEU in addition to the regulation of institutional balance: The Council past times adopting the contested determination exceeding the previous guideline of the European Council, beingness thence inwards contradiction to the mandate of the latter, infringed Article 68 TFEU every bit good every bit Article 13(2) TEU in addition to the regulation of institutional balance.”

In its showtime claim, the Slovak authorities argues that the mensurate was adopted inwards contradiction to the guidelines laid past times the European Council, an establishment made upwards of heads of province in addition to authorities (as distinct from the Council, made upwards of national ministers),  whose role is to “define the full general political directions in addition to priorities” of the Union (Article fifteen TEU), every bit good every bit to “define the strategic guidelines for legislative in addition to operational planning inside the expanse of freedom, safety in addition to justice” (Article 68 TFEU). Let us thence own got a expect at the “strategic guidelines” determined past times the European Council inwards its most recent meetings.

On 23 Apr 2015, the European Council stated that at that spot was a bespeak to “consider options for organising emergency relocation betwixt all Member U.S. of A. on a voluntary basis” in addition to to “set upwards a showtime voluntary airplane pilot projection on resettlement across the EU, offering places to persons qualifying for protection.” Furthermore, at its coming together of 25 in addition to 26 June, the European Council agreed on “the temporary in addition to exceptional relocation over 2 years from the frontline Member U.S. of A. Italy in addition to Hellenic Republic to other Member U.S. of A. of 40.000 persons inwards clear bespeak of international protection, inwards which all Member U.S. of A. (except the UK) volition participate,” every bit good every bit “the rapid adoption past times the Council of a Decision to this effect; to that end, all Member U.S. of A. volition concur past times consensus past times the destination of July on the distribution of such persons, reflecting the specific situations of Member States.” No particular conclusions own got been adopted every bit to the 120.000 farther asylum-seekers whose province of affairs forms the bailiwick affair of the contested relocation decision.

a. European Council promising “that no quota would move adopted”?

In his recent explanation of this showtime plea, the Slovak Prime Minister said that the European Council had allegedly “stated that no quota would move adopted” in addition to that the Council of Ministers had disrespected this agreement. Having read the conclusions of the European Council summarised above, the Prime Minister’s declaration seems to move rather inaccurate. The Council has non acted opposite to the European Council’s conclusions, which makes the showtime component subdivision of the showtime claim moot.

Hypothetically, however, if at that spot genuinely was a clear conflict betwixt the conclusions of the European Council in addition to the actions of the European Union lawmakers (the Commission, the Parliament, in addition to the Council), such province of affairs could indeed heighten some interesting questions concerning the institutional residuum inwards the Union. What if the European Council had expressed a clear consensus that relocation of asylum-seekers was an undesirable, or fifty-fifty unacceptable agency of addressing the electrical flow crisis, in addition to despite such consensus, the Commission would afterwards suggest a relocation mensurate (like the ane adopted on 22 September), which would move passed past times the Council in addition to the Parliament?

It is necessary to realise that the conclusions of the European Council are endowed past times political, rather than legal significance (see Article 15(1) TEU). That beingness said, if the Commission acted inwards straight opposition to the “general political directions” (Art fifteen TEU) in addition to “strategic guidelines” (Art 68 TFEU) adopted past times the European Council, such activity could violate the regulation of institutional balance, since it would deprive the European Council’s decisions in addition to conclusions of whatever effect. This shows that although the European Council’s conclusions are non legally binding, they should move endowed alongside political significance, thence requiring the Commission either to deed inwards delineate alongside them, or to render an elaborate in addition to politically acceptable explanation of whatever other action.

Still, this analysis remains hypothetical, since the quotations higher upwards suggest that the draft of the contested determination did non disrespect whatever of the political directions outlined past times the European Council inwards the past times duo of months.

b. European Council requiring that the vote inwards the Council move unanimous?

The minute interesting query concerns the European Council’s wishing that the relocation determination move reached past times consensus, every bit expressed inwards the conclusions of 25 in addition to 26 June. It is of import to signal out that this wishing solely concerned the showtime 40,000 asylum-seekers, in addition to thence remains irrelevant for the validity of the contested decision. That makes the minute component subdivision of the showtime declaration moot every bit well. However, allow us see (once again, hypothetically) whether the European Council could, past times its (political) decision, require a dissimilar threshold for adopting a determination inwards the Council, inwards contrast alongside the (legal) threshold required past times the Treaties.

What happens if the physical care for envisaged past times Article 78(3) TFEU requires a qualified bulk vote inwards the Council (which it does), field the European Council imposes a requirement of a unanimous vote? While the Treaties rest soundless most a alter of procedures from QMV to unanimity, they do include a provision governing a displace inwards the opposite direction: from unanimity to QMV. Pursuant to Article 48(7) TEU, “where [TFEU] or Title V of [TEU] provides for the Council to deed past times unanimity inwards a given expanse or case, the European Council may adopt a determination authorising the Council to deed past times a qualified bulk inwards that expanse or inwards that case.” H5N1 alter from unanimity to QMV is thence possible, but it comes alongside important procedural guarantees, such every bit obtaining the consent of the European Parliament in addition to giving national parliaments 6 months to block such action. It follows that changes of Treaty voting mechanisms require to a greater extent than than just a unanimous determination of the European Council. Furthermore, field a alter from unanimity to QMV is at to the lowest degree foreseen past times the Treaties, a alter inwards the opposite management is not. That leads to a conclusion that such an pedagogy given past times the European Council would solely own got political significance, but would rest legally irrelevant.

Therefore, fifty-fifty if the requirement of a unanimous vote extended to all legal measures adopted nether Article 78(3) TFEU, quod non, I handgrip the sentiment that such an understanding would rest a gentlemen’s agreement, rather than a legally binding requirement. Therefore, the minute component subdivision of the showtime plea position frontward past times the Slovak authorities does non seem to offering a adept ground for the annulment of the contested decision, either.

2. Legislative vs. non-legislative acts

“Second plea inwards law, alleging breach of Article 10(1 in addition to 2) TEU, Article 13(2) TEU, Article 78(3) TFEU, Article 3 in addition to 4 of the Protocol (No.1) in addition to Article 6 in addition to seven of the Protocol (No.2), every bit good every bit the principles of legal certainty, representative commonwealth in addition to institutional balance: Such form of deed every bit the contested determination cannot move adopted on the dry ground of Article 78(3) TFEU. Regarding its content, the contested determination is inwards fact of a legislative grapheme in addition to should thence move adopted past times legislative procedure, which, however, is non foreseen inwards Article 78(3) TFEU. By adopting the contested determination on the dry ground of Article 78(3) TFEU, the Council non solely breached the latter, but it also interfered alongside the rights of national parliaments in addition to the European parliament.”

This minute plea opens a really interesting query of the nature of “legislative acts” inwards European Union law: what does a mensurate bespeak inwards fellowship to move “of a legislative character”? The Slovak authorities seems to invoke a material understanding of a legislative act, suggesting that some things are also of import to move governed past times a non-legislative act. This, however, is non how European Union constabulary seems to work. The concept of a legislative deed seems to move a formal one, every bit follows from Article 289(3) TFEU: “Legal acts adopted past times legislative physical care for shall constitute legislative acts.”

Although European Union constabulary for sure doesn’t piece of work alongside a material concept of “legislative acts”, it remains unclear what a legislative deed really is. Two formal interpretations are still feasible: a narrow textual ane in addition to a procedural one.

According to a narrow textual interpretation, favoured e.g. past times Lenaerts, past times Craig & De Burca, every bit good every bit past times Advocate-General Kokott inwards her sentiment inwards C-583/11 Inuit Tapiriit Kanatami, the (non-) legislative nature of an deed depends on ane in addition to solely factor: whether its legal dry ground refers to a “legislative procedure” inwards its wording or not. Pursuant to this interpretation, an asylum mensurate adopted nether Article 78(3) TFEU volition move a non-legislative act, field a mensurate on diplomatic protection adopted nether Article 23(2) TFEU volition move a legislative act, although the physical care for of their adoption is just the same: a proposal from the Commission in addition to a qualified bulk vote past times the Council, after consulting the European Parliament. This interpretation seems to move supported past times Article 289(2) TFEU, which states that special legislative physical care for is solely used “in the specific cases provided for past times the Treaties,” which merely isn’t the illustration for measures adopted nether Article 78(3) TFEU. Another declaration for this narrow textual interpretation is the practical functioning of the European Union institutions: Eur-Lex categorises the contested determination every bit an “NLE”, which stands for “non-legislative procedure”. On a practical level, this textual interpretation thus seems to move a well-established one.

The 3rd thinkable alternative is a procedural interpretation (that seems to move preferred e.g. past times Chalmers), according to which an deed is to move labelled every bit “legislative” if both the Council in addition to the Parliament are involved inwards its adoption, no affair whether the specific legal dry ground speaks of a “legislative procedure” or not. There are inwards fact a number of solid arguments for this broader interpretation of legislative acts. Firstly, Article 289(3) TFEU (technically) does non say anything most the nature of acts that are non adopted past times a legislative procedure. In the terminology of formal logic, Article 289(3) is an implication; therefore, turning it around (and stating that “legal acts non adopted past times legislative physical care for shall constitute non-legislative acts”) would move a logical flaw. Secondly, the endorsement of the textual interpretation would atomic number 82 to a province of affairs where entire areas of European Union constabulary (such every bit competitor law!) would non comprise whatever legislative measures whatsoever, which is rather curious. Thirdly, the textual interpretation would own got vast consequences for the procedural standing of non-privileged applicants nether Article 263(4) TFEU who would move able to challenge a much broader category of acts without having to industrial plant life private concern. Fourthly, if nosotros were to link the legislative nature of a mensurate alongside its democratic legitimation, the procedural interpretation would brand much to a greater extent than feel than the textual one. Yet, despite all these arguments (and despite the hopes of some academics, every bit good every bit practitioners), it seems that (at to the lowest degree at present), the narrow textual interpretation of “legislative acts” seems to prevail.

Be that every bit it may, both the narrow textual interpretation in addition to the procedural interpretation are formal inwards their nature. It makes no feel to claim that the mensurate at stake is “of a legislative character” in addition to that Article 78(3) TFEU is thence non a right legal dry ground for such measure, if it cannot atomic number 82 to the adoption of a legislative act. The weather condition of the said article own got been fulfilled both materially (emergency situation, precipitous inflow of 3rd province nationals, do goodness to the Member U.S. of A. concerned) in addition to procedurally (proposal from the Commission, consulting the Parliament, QMV inwards the Council). Therefore, the minute plea of the Slovak authorities seems to move unfounded every bit well.

3. Procedural weather condition inwards illustration the contested determination is indeed a legislative act

“Third plea inwards law, alleging breach of essential procedural requirements governing the legislative procedure, established inwards Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 4 of the Protocol (No.1) and  Article 6 in addition to 7(1 in addition to 2) of the Protocol (No.2), every bit good every bit Article 10(1 in addition to 2) TEU, Article 13(2) TEU in addition to the principles of representative democracy, institutional residuum in addition to audio administration: If the Court of Justice opposite to the submissions of the Slovak Republic inside the minute plea inwards constabulary came to the conclusion that the contested determination was adopted past times legislative physical care for (quod non), the Slovak Republic inwards the alternative alleges the breach of essential procedural requirements, established inwards Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 3 in addition to 4 of the Protocol (No.1) and  Article 6 in addition to seven (1 in addition to 2) of the Protocol (No.2), every bit good every bit Article 10(1 in addition to 2) TEU, Article 13(2) TEU in addition to the principles of representative democracy, institutional residuum in addition to audio administration. In particular, the requirement of world give-and-take in addition to voting inside the Council was non respected, the participation of national parliaments inwards the physical care for of adopting the contested determination was limited in addition to the requirement of consultation of the European parliament was breached.”

This is where the distinction betwixt a textual in addition to a procedural reading of “legislative acts” becomes relevant. If the Court endorses the narrow textual reading of the concept (which is, inwards my opinion, to a greater extent than probable), so the classification of the contested determination every bit a non-legislative deed volition move confirmed in addition to the procedural guarantees invoked past times the Slovak authorities volition move inapplicable. Yet, should the Court wishing to reassess the notion of “legislative acts” in addition to alter it to a procedural one, so the contested determination volition own got to move seen every bit a legislative deed that has non fulfilled the requirements listed above, namely world voting inwards the Council (Article 16(8) TEU) in addition to participation of national parliaments (Protocols 1 in addition to 2), which would atomic number 82 to its annulment.

4. Repeated consultation past times the European Parliament

“Fourth plea inwards law, alleging breach of essential procedural requirements, established inwards Article 78(3) TFEU in addition to Article 293 TFEU, every bit good every bit Article 10(1 in addition to 2) TEU, Article 13(2) TEU in addition to the principles of representative democracy, institutional residuum in addition to audio administration: Before adopting the contested decision, the Council substantially amended the proposal of the Commission inwards several ways. When doing that, the Council breached essential procedural requirements, established inwards Article 78(3) TFEU in addition to Article 293 TFEU, every bit good every bit Article 10(1 in addition to 2) TEU, Article 13(2) TEU in addition to the principles of representative democracy, institutional residuum in addition to audio administration. It is because the European parliament was non properly consulted in addition to the Council did non create upwards one's heed on the amendments of the Commission’s proposal unanimously.”

This 4th signal has already been addressed past times Steve Peers inwards his recent postal service in addition to I concur that this indeed seems to move the strongest procedural declaration against the validity of the contested decision. The master copy Commission draft concerned non just Italy in addition to Greece, but also Hungary, which inwards the terminal version of the contested determination refused to move included inwards the grouping of external edge States. As argued past times Steve, this is a alter of an essential element, which in all probability should own got been subjected to a repeated consultation past times the European Parliament. Possibly, the emergency nature of the contested determination could serve every bit an declaration against an obligation to re-consult, which is, admittedly, a rather weak argument. However, every bit Steve has already argued, fifty-fifty if this declaration were to succeed, it would solely atomic number 82 to a procedural redress (meaning that the resultant would move the same fifty-fifty if the European Parliament were to move re-consulted) field the contested determination would in all probability rest inwards strength inwards the meantime. It thence seems that the 4th plea volition non suffice either to own got the contested determination annulled.

5. The ‘provisional’ nature of the contested decision

“Fifth plea inwards law, alleging breach of Article 78(3) TFEU past times non fulfilling the weather condition for its applicability: In the alternative to the minute plea inwards law, the Slovak Republic argues that at that spot was a breach of Article 78(3) TFEU because the weather condition for its applicability, which job the provisional grapheme of the measures adopted, every bit good every bit the emergency province of affairs caused past times a precipitous inflow of nationals of 3rd countries, were non fulfilled.”

The 5th plea tin move seen from 2 points of see again: on the ane hand, “the provisional grapheme of the measures” tin move assessed from a formal viewpoint, looking at the fourth dimension menses for which the mensurate remains applicable. On the other hand, the plea invites the Court to assess whether the European Union finds itself inwards an “emergency situation”, facing a “sudden inflow” of migrants, which opens upwards a to a greater extent than substantive analysis of the contested measure.

As for the to a greater extent than formal component subdivision of the argument, the provisional grapheme of the measures could move derived from the fact that the contested determination is limited inwards fourth dimension - it solely applies until 26 September 2017. Is a provision that remains applicable for 2 years “provisional” enough? The pre-Lisbon version of this provision was Article 64(2) TEC, which limited the duration of such provisional measures to half dozen months. Compared to this past times requirement, 2 years seem to move quite long. On the other hand, the electrical flow wording of the Treaties imposes no fourth dimension boundary whatsoever, so 2 years cannot move seen every bit a priori illegal. (Yet, this volition move really similar to the information retentiveness case: if 6 months are fine in addition to 2 years are also much, how do nosotros experience most ane year? The criteria for assessment are non clear.) Still, the contested decision’s provisional grapheme could also move derived from the fact that it solely applies to those asylum-seekers who are already introduce on the European Union territory or who are likely to come upwards inwards the really close future, field a long-term, sustainable solution is beingness sought past times a legislative proposal, which is currently inwards the legislative physical care for in addition to which volition presumably convey quite some time.

As for the to a greater extent than substantive analysis, it is rather hard to predict what criteria volition move chosen past times the Court to assess whether the European Union really finds itself inwards an emergency situation. The electrical flow migrant crisis is undoubtedly ane of the most serious crises that the European Union has faced inwards the past times duo of decades, but it remains to move seen how the Court tackles the interpretation of the notions inwards Article 78(3) TFEU.

6. Principle of proportionality

“Sixth plea inwards law, alleging breach of the regulation of proportionality: The contested determination is apparently incompatible alongside the regulation of proportionality, every bit it is apparently neither suitable nor necessary to accomplish the desired end.”

The regulation of proportionality tin certainly serve every bit a really strong declaration – it tin opened upwards the door for a thorough assessment of the really pith of whatever mensurate past times the Court of Justice. Obviously, this assessment is much to a greater extent than likely to move political than legal, alongside the Court enjoying really broad discretion inwards balancing the values at stake. It is a huge compassion that the Slovak authorities has non worked out this 6th plea inwards to a greater extent than detail, since whatever remove chances of success of this activity is potentially hidden inwards this in conclusion argument. The activity could own got position frontward an declaration that the contested mensurate is non suitable to range the desired aim (i.e. to preserve the burden borne past times the external edge states in addition to to exhibit “solidarity in addition to fair sharing of responsibleness betwixt the Member States,” every bit outlined inwards the decision’s preamble), since relocating people is also hard in addition to their farther displace is also unpredictable. Furthermore, nether the heading of necessity, it could own got been argued that a less restrictive mensurate could own got been adopted inwards fellowship to solve the problem, such every bit denying entry to migrants (although that could violate the basic principles of European Union law, especially European Union asylum law), triggering the regime of the Temporary Protection Directive, or other forms of assist (e.g. financial, fabric or personal help) to the affected states. Last but non least, the proportionality declaration could own got been coupled alongside other quasi-political arguments, such every bit a claim nether the national identity clause inwards Article 4(2) TEU.

It tin move concluded that the Slovak authorities has missed a cracking remove chances to really brand a signal nether the 6th plea, since a mere claim of manifest incompatibility alongside the regulation of proportionality does non give the Court anything to construct on. That beingness said, if the Court wants to annul the measure, it tin e'er job this plea to construct a strong argumentation nether the regulation of proportionality.

Conclusion

Based on the analysis above, it seems to me that the showtime iii pleas own got almost no remove chances of success (unless the Court decides to reinvent a novel understanding of “legislative acts”), the 4th in addition to the 5th pleas heighten interesting issues that could atomic number 82 to kid interferences, such every bit the bespeak to re-consult the Parliament, a limitation of the contested decision’s application to a shorter menses of time, or a really narrow interpretation of the concepts of “emergency situation” or “sudden influx of migrants”. The 6th plea, however, opens Pandora’s box in addition to invites the Court to practise broad discretion inwards its assessment of the electrical flow solution to the migration crisis. While proportionality leaves most reach for the inventiveness of the Court, it is hard to see it replacing its ain judgment for the judgment of the Member States, especially inwards a province of affairs where good, plausible alternatives are quite hard to find.

Barnard & Peers: chapter 3, chapter 5, chapter 26

JHA4: chapter I.5

Image credit: news.yahoo.com

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