In late February 2020, the news coverage began to reveal an unsettling scene unfolding on the Greece-Turkish border. Following the government’s announcement, Turkey had reopened its frontier letting people to cross freely into Europe for the first time since the EU-Turkey deal came into force in 2016.
For many, the conflict brought back memories of the tragic events witnessed in Europe and on its external borders during 2015-2016. In 2015 alone, over 1,2 million displaced persons crossed into Europe by land and sea seeking international protection, while many more lost their lives on a dangerous journey across the Mediterranean. The unprecedented influx exposed a number of deficiencies in the EU’s asylum policy and Europe’s struggle to act together with solidarity in a quickly evolving crisis situation. The mass arrivals hit particularly hard on Greece and Italy, the frontline Member States on the EU’s external borders, where the asylum systems were not equipped to cope with the unmanageable pressure.
What can be regarded as a major policy response to the worsening situation, the Council adopted in September 2015 two separate relocation decisions with a view to triggering a relocation of up to 160 000 applicants for international protection from Greece and Italy to the other parts of the bloc. The decisions introduced a derogation from the Dublin III Regulation as they discharged Greece and Italy of their responsibility to process asylum applications on the basis of the first country of arrival rule if the scheme was to be applied.
The decision introducing mandatory quotas for the relocation of applicants marked a strong resistance particularly in eastern and central European Member States. In the final vote, Hungary, Romania, Slovakia and the Czech Republic, while Poland still under a different government agreed with the decisions, were outvoted by other Members in the Council (NB: Finland abstained). The vote has been described as historical as it was the first time when such a sensitive policy issue as asylum policy was passed by a qualified majority without unanimity among Member States.
Finally, only around 20 % of the total of 160 000 persons were relocated under the mechanism by 2018. After Poland and Hungary refused to contribute to the scheme, while the Czech Republic took in only 12 persons, the European Commission referred the issue to the Court for an infringement of Union law.
In its judgement of 2nd of April 2020, the Court of Justice of the European Union (CJEU) ruled that Hungary, Poland and the Czech Republic failed to comply with the temporary relocation mechanism set up by the Council decisions. In doing so, the Court rejected the argument that Member States may unilaterally depart from EU obligations whenever they consider their national competence compromised under Article 72 TFEU, be it public order or national security, on the grounds of general prevention and without establishing any direct link with a specific case. Further, the Court held that Member States’ unilateral assessment of alleged lack of effectiveness or the malfunctioning of the system would undermine the objective of solidarity inherent to the decisions and the EU’s asylum policy.
Yet, an interesting takeaway, which may leave room for future litigation, is the wide margin of discretion that the ruling leaves to Member States’ administrative bodies in case-by-case assessments. While Article 72 TFEU does not offer a carte blanche for defiant Member States to depart from EU rules, playing the national security card can still be justified, but only if it can be proved that the individual concerned actually or potentially represents a danger to public order or national security. This being the case, the Court held that the assessment made by the competent administrative authority must be based on a case-by-case investigation that relies on consistent, objective and specific evidence.
As the emergency scheme lapsed in 2017, the judgement only allowed the Commission to seek for the Court’s declaration of the violation, while there is no practical way to oblige the countries to take in more asylum seekers under the expired scheme.
The ruling can be regarded as pivotal in clarifying the responsibilities of Member States in the context of the CEAS. “It is referring to the past, but it will give us guidance for the future”, Commission President Ursula Von der Leyen noted after the ruling.
Moreover, the ruling affirmed that the respect for the Union’s fundamental values must be upheld even amidst a crisis. Solidarity and the fair sharing of responsibility are the core principles that are enshrined in the Treaties and govern the EU’s asylum policy and its implementation. As underpinned in Advocate General (AG) Sharpston’s praised opinion on this relocation case preceding the Court’s ruling, solidarity constitutes the “lifeblood of the European project” ensuring the proper functioning of the European legal order. The AG goes further on noting that respecting the “rules of the club” and solidarity cannot be based merely on a “penny-pinching cost-benefit analysis” and cherry-picking of the benefits while disregarding the obligations that come along with the membership. Instead, it must be accepted that the principle of solidarity necessarily sometimes implies accepting burden-sharing.
While the case law contributes to bringing more legal clarity over the Member States’ obligations under EU law, the question of a more equal burden-sharing continues to divide Member States politically. As long as strong national interests are at stake, a passage over the current political impasse seems tricky. While the ruling raised unresolved legal questions of the past, it may well have provided a workable solution to the political dispute in such a way that allows the two sides to regard themselves as winners. On the one hand, it confirms a uniform application of Union law that leaves no room for Member States’ unilateral derogations. On the other hand, with a wide margin of administrative discretion, Member States have the possibility to safeguard internal security and public order if this is proved to be necessary following an individual assessment.
Following the years of deadlock, the new Commission is set to propose a revised asylum and migration pact with a view to reviving the reform of the CEAS. In 2015, EU policymakers struggled to come up with a common approach, and since then the much-needed reform has remained stalled. Even if the urgency may have diminished, a solution to the allocation of asylum seekers between Member States remains one of the crucial pieces of the overall CEAS puzzle. In the absence of a coordinated approach to the relocation and responsibility sharing dilemma, Member States are left alone to face crisis situations provoking sometimes undesired outcomes. This was the case in Greece where the government’s acts to protect national and the EU’s external borders led to a temporary suspension of the right to apply for asylum and push-backs to Turkey, lacking a legal basis.
On a more positive front, ad-hoc efforts have emerged, including the pledges from a group of Member States on an agreement brokered by the Commission to relocate altogether 1,600 unaccompanied children from the Mediterranean overcrowded hotspots. Despite the ongoing struggle to cope with Covid-19 impacts, Luxembourg became the first country in April to start implementation of the Commission’s plan, and Germany was to follow suit. While such individual commitments show much welcomed signs of solidarity between the Member States willing to contribute more, ad-hoc measures should only constitute an emergency solution in the design of the revised CEAS. Member States resorting to international and ad-hoc agreements as a way out of the crisis is nothing new as the euro crisis and the EU-Turkey deal demonstrate. Yet, such an intergovernmental approach not only contrasts with the very idea of the European political project, but also undermines the legal foundation of the Union based on the primacy of EU law that creates binding obligations on Member States. Should the key components of the EU’s asylum policy become detached from the EU legal framework, violations against (vulnerable) individuals may well go undetected allowing the national governments to escape the legal scrutiny of EU courts.
The ruling is a valuable reminder that respect for the Union’s core principles cannot be put on hold in times of crisis. It may as well serve as a lesson learnt for the present Covid-19 crisis putting the states’ democratic foundations to the test.
TEXT: Heini Hyrkkö
PICTURE: Stylianos Papardelas / ICRC, ICRC Audiovisual Archives
The author holds an LLM degree in European and international law from Ghent University and is specialised in EU justice and home affairs.