Tuesday, 29 December 2015

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

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

*This post is written in the author's academic capacity and does not represent the view of any of her past, present or future employers

On Wednesday 2 December, Slovakia filed an action for annulment to the Court of Justice (pending case C-643/15), challenging the legality of the Asylum-Seekers Relocation Decision (“the contested decision”) adopted on 22 September 2015. Just one day later, on Thursday 3 December, Hungary did the same (pending case C-647/15).
Steve Peers has already discussed some of the (anticipated) legal arguments against the validity of the challenged EU measure in his recent blog-post. In the following post, I briefly discuss the arguments on which the Slovak government’s case rests and I explore whether they are likely to succeed before the Court of Justice. Unfortunately, I do not have access to the full text of the Slovak action, nor to the arguments of the Hungarian government. I am therefore only commenting on the summary of the six arguments, which has been published on the webpage of the Slovak Ministry of Justice.

1. Division of competences and institutional balance
First plea in law, alleging breach of Article 68 TFEU, as well as Article 13(2) TEU and the principle of institutional balance: The Council by adopting the contested decision exceeding the previous guideline of the European Council, being therefore in contradiction to the mandate of the latter, infringed Article 68 TFEU as well as Article 13(2) TEU and the principle of institutional balance.
In its first claim, the Slovak government argues that the measure was adopted in contradiction to the guidelines set by the European Council, an institution made up of heads of state and government (as distinct from the Council, made up of national ministers),  whose role is to “define the general political directions and priorities” of the Union (Article 15 TEU), as well as to “define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice” (Article 68 TFEU). Let us therefore have a look at the “strategic guidelines” determined by the European Council in its most recent meetings.
On 23 April 2015, the European Council stated that there was a need to “consider options for organising emergency relocation between all Member States on a voluntary basis” and to “set up a first voluntary pilot project on resettlement across the EU, offering places to persons qualifying for protection.” Furthermore, at its meeting of 25 and 26 June, the European Council agreed on “the temporary and exceptional relocation over two years from the frontline Member States Italy and Greece to other Member States of 40.000 persons in clear need of international protection, in which all Member States (except the UK) will participate,” as well as “the rapid adoption by the Council of a Decision to this effect; to that end, all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States.” No particular conclusions have been adopted as to the 120.000 further asylum-seekers whose situation forms the subject matter of the contested relocation decision.
a. European Council promising “that no quota would be adopted”?
In his recent explanation of this first plea, the Slovak Prime Minister said that the European Council had allegedly “stated that no quota would be adopted” and that the Council of Ministers had disrespected this agreement. Having read the conclusions of the European Council summarised above, the Prime Minister’s statement seems to be rather inaccurate. The Council has not acted contrary to the European Council’s conclusions, which makes the first part of the first claim moot.
Hypothetically, however, if there truly was a clear conflict between the conclusions of the European Council and the actions of the EU lawmakers (the Commission, the Parliament, and the Council), such situation could indeed raise some interesting questions concerning the institutional balance in the Union. What if the European Council had expressed a clear consensus that relocation of asylum-seekers was an undesirable, or even unacceptable way of addressing the current crisis, and despite such consensus, the Commission would subsequently propose a relocation measure (like the one adopted on 22 September), which would be passed by the Council and the Parliament?
It is necessary to realise that the conclusions of the European Council are endowed by political, rather than legal significance (see Article 15(1) TEU). That being said, if the Commission acted in direct opposition to the “general political directions” (Art 15 TEU) and “strategic guidelines” (Art 68 TFEU) adopted by the European Council, such action could violate the principle of institutional balance, since it would deprive the European Council’s decisions and conclusions of any effect. This shows that although the European Council’s conclusions are not legally binding, they should be endowed with political significance, therefore requiring the Commission either to act in line with them, or to provide an elaborate and politically acceptable explanation of any other action.
Still, this analysis remains hypothetical, since the quotations above suggest that the draft of the contested decision did not disrespect any of the political directions outlined by the European Council in the past couple of months.
b. European Council requiring that the vote in the Council be unanimous?
The second interesting question concerns the European Council’s wish that the relocation decision be reached by consensus, as expressed in the conclusions of 25 and 26 June. It is important to point out that this wish only concerned the first 40,000 asylum-seekers, and therefore remains irrelevant for the validity of the contested decision. That makes the second part of the first argument moot as well. However, let us see (once again, hypothetically) whether the European Council could, by its (political) decision, require a different threshold for adopting a decision in the Council, in contrast with the (legal) threshold required by the Treaties.
What happens if the procedure envisaged by Article 78(3) TFEU requires a qualified majority vote in the Council (which it does), while the European Council imposes a requirement of a unanimous vote? While the Treaties remain silent about a change of procedures from QMV to unanimity, they do include a provision governing a move in 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 act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case.” A change from unanimity to QMV is therefore possible, but it comes with significant procedural guarantees, such as obtaining the consent of the European Parliament and giving national parliaments 6 months to block such action. It follows that changes of Treaty voting mechanisms require more than just a unanimous decision of the European Council. Furthermore, while a change from unanimity to QMV is at least foreseen by the Treaties, a change in the opposite direction is not. That leads to a conclusion that such an instruction given by the European Council would only have political significance, but would remain legally irrelevant.
Therefore, even if the requirement of a unanimous vote extended to all legal measures adopted under Article 78(3) TFEU, quod non, I hold the opinion that such an agreement would remain a gentlemen’s agreement, rather than a legally binding requirement. Therefore, the second part of the first plea put forward by the Slovak government does not seem to offer a good reason for the annulment of the contested decision, either.

2. Legislative vs. non-legislative acts
Second plea in law, alleging breach of Article 10(1 and 2) TEU, Article 13(2) TEU, Article 78(3) TFEU, Article 3 and 4 of the Protocol (No.1) and Article 6 and 7 of the Protocol (No.2), as well as the principles of legal certainty, representative democracy and institutional balance: Such kind of act as the contested decision cannot be adopted on the basis of Article 78(3) TFEU. Regarding its content, the contested decision is in fact of a legislative character and should therefore be adopted by legislative procedure, which, however, is not foreseen in Article 78(3) TFEU. By adopting the contested decision on the basis of Article 78(3) TFEU, the Council not only breached the latter, but it also interfered with the rights of national parliaments and the European parliament.
This second plea opens a very interesting question of the nature of “legislative acts” in EU law: what does a measure need in order to be “of a legislative character”? The Slovak government seems to invoke a material understanding of a legislative act, suggesting that some things are too important to be governed by a non-legislative act. This, however, is not how EU law seems to work. The concept of a legislative act seems to be a formal one, as follows from Article 289(3) TFEU: “Legal acts adopted by legislative procedure shall constitute legislative acts.
Although EU law surely doesn’t work with a material concept of “legislative acts”, it remains unclear what a legislative act really is. Two formal interpretations are still feasible: a narrow textual one and a procedural one.
According to a narrow textual interpretation, favoured e.g. by Lenaerts, by Craig & De Burca, as well as by Advocate-General Kokott in her opinion in C-583/11 Inuit Tapiriit Kanatami, the (non-) legislative nature of an act depends on one and only factor: whether its legal basis refers to a “legislative procedure” in its wording or not. Pursuant to this interpretation, an asylum measure adopted under Article 78(3) TFEU will be a non-legislative act, while a measure on diplomatic protection adopted under Article 23(2) TFEU will be a legislative act, although the procedure of their adoption is exactly the same: a proposal from the Commission and a qualified majority vote by the Council, after consulting the European Parliament. This interpretation seems to be supported by Article 289(2) TFEU, which states that special legislative procedure is only used “in the specific cases provided for by the Treaties,” which simply isn’t the case for measures adopted under Article 78(3) TFEU. Another argument for this narrow textual interpretation is the practical functioning of the EU institutions: Eur-Lex categorises the contested decision as an “NLE”, which stands for “non-legislative procedure”. On a practical level, this textual interpretation thus seems to be a well-established one.
The third thinkable alternative is a procedural interpretation (that seems to be preferred e.g. by Chalmers), according to which an act is to be labelled as “legislative” if both the Council and the Parliament are involved in its adoption, no matter whether the specific legal basis speaks of a “legislative procedure” or not. There are in fact a number of solid arguments for this broader interpretation of legislative acts. Firstly, Article 289(3) TFEU (technically) does not say anything about the nature of acts that are not adopted by a legislative procedure. In the terminology of formal logic, Article 289(3) is an implication; therefore, turning it around (and stating that “legal acts not adopted by legislative procedure shall constitute non-legislative acts”) would be a logical flaw. Secondly, the endorsement of the textual interpretation would lead to a situation where entire areas of EU law (such as competition law!) would not contain any legislative measures whatsoever, which is rather curious. Thirdly, the textual interpretation would have vast consequences for the procedural standing of non-privileged applicants under Article 263(4) TFEU who would be able to challenge a much broader category of acts without having to establish individual concern. Fourthly, if we were to link the legislative nature of a measure with its democratic legitimation, the procedural interpretation would make much more sense than the textual one. Yet, despite all these arguments (and despite the hopes of some academics, as well as practitioners), it seems that (at least at present), the narrow textual interpretation of “legislative acts” seems to prevail.
Be that as it may, both the narrow textual interpretation and the procedural interpretation are formal in their nature. It makes no sense to claim that the measure at stake is “of a legislative character” and that Article 78(3) TFEU is therefore not a correct legal basis for such measure, if it cannot lead to the adoption of a legislative act. The conditions of the said article have been fulfilled both materially (emergency situation, sudden inflow of third country nationals, benefit to the Member States concerned) and procedurally (proposal from the Commission, consulting the Parliament, QMV in the Council). Therefore, the second plea of the Slovak government seems to be unfounded as well.

3. Procedural conditions in case the contested decision is indeed a legislative act
Third plea in law, alleging breach of essential procedural requirements governing the legislative procedure, established in Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 4 of the Protocol (No.1) and  Article 6 and 7(1 and 2) of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration: If the Court of Justice contrary to the submissions of the Slovak Republic within the second plea in law came to the conclusion that the contested decision was adopted by legislative procedure (quod non), the Slovak Republic in the alternative alleges the breach of essential procedural requirements, established in Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 3 and 4 of the Protocol (No.1) and  Article 6 and 7 (1 and 2) of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration. In particular, the requirement of public discussion and voting within the Council was not respected, the participation of national parliaments in the process of adopting the contested decision was limited and the requirement of consultation of the European parliament was breached.
This is where the distinction between a textual and a procedural reading of “legislative acts” becomes relevant. If the Court endorses the narrow textual reading of the concept (which is, in my opinion, more probable), then the classification of the contested decision as a non-legislative act will be confirmed and the procedural guarantees invoked by the Slovak government will be inapplicable. Yet, should the Court wish to reassess the notion of “legislative acts” and change it to a procedural one, then the contested decision will have to be seen as a legislative act that has not fulfilled the requirements listed above, namely public voting in the Council (Article 16(8) TEU) and participation of national parliaments (Protocols 1 and 2), which would lead to its annulment.

4. Repeated consultation by the European Parliament
Fourth plea in law, alleging breach of essential procedural requirements, established in Article 78(3) TFEU and Article 293 TFEU, as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration: Before adopting the contested decision, the Council substantially amended the proposal of the Commission in several ways. When doing that, the Council breached essential procedural requirements, established in Article 78(3) TFEU and Article 293 TFEU, as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration. It is because the European parliament was not properly consulted and the Council did not decide on the amendments of the Commission’s proposal unanimously.
This fourth point has already been addressed by Steve Peers in his recent post and I agree that this indeed seems to be the strongest procedural argument against the validity of the contested decision. The original Commission draft concerned not just Italy and Greece, but also Hungary, which in the final version of the contested decision refused to be included in the group of external border States. As argued by Steve, this is a change of an essential element, which probably should have been subjected to a repeated consultation by the European Parliament. Possibly, the emergency nature of the contested decision could serve as an argument against an obligation to re-consult, which is, admittedly, a rather weak argument. However, as Steve has already argued, even if this argument were to succeed, it would only lead to a procedural redress (meaning that the outcome would be the same even if the European Parliament were to be re-consulted) while the contested decision would probably remain in force in the meantime. It therefore seems that the fourth plea will not suffice either to have the contested decision annulled.

5. The ‘provisional’ nature of the contested decision
Fifth plea in law, alleging breach of Article 78(3) TFEU by not fulfilling the conditions for its applicability: In the alternative to the second plea in law, the Slovak Republic argues that there was a breach of Article 78(3) TFEU because the conditions for its applicability, which concern the provisional character of the measures adopted, as well as the emergency situation caused by a sudden inflow of nationals of third countries, were not fulfilled.
The fifth plea can be seen from two points of view again: on the one hand, “the provisional character of the measures” can be assessed from a formal viewpoint, looking at the time period for which the measure remains applicable. On the other hand, the plea invites the Court to assess whether the EU finds itself in an “emergency situation”, facing a “sudden inflow” of migrants, which opens up a more substantive analysis of the contested measure.
As for the more formal part of the argument, the provisional character of the measures could be derived from the fact that the contested decision is limited in time - it only applies until 26 September 2017. Is a provision that remains applicable for two years “provisional” enough? The pre-Lisbon version of this provision was Article 64(2) TEC, which limited the duration of such provisional measures to six months. Compared to this past requirement, two years seem to be quite long. On the other hand, the current wording of the Treaties imposes no time limit whatsoever, so two years cannot be seen as a priori illegal. (Yet, this will be very similar to the data retention case: if 6 months are fine and 2 years are too much, how do we feel about one year? The criteria for assessment are not clear.) Still, the contested decision’s provisional character could also be derived from the fact that it only applies to those asylum-seekers who are already present on the European Union territory or who are likely to come in the very near future, while a long-term, sustainable solution is being sought by a legislative proposal, which is currently in the legislative process and which will presumably take quite some time.
As for the more substantive analysis, it is rather difficult to predict what criteria will be chosen by the Court to assess whether the EU really finds itself in an emergency situation. The current migrant crisis is undoubtedly one of the most serious crises that the EU has faced in the past couple of decades, but it remains to be seen how the Court tackles the interpretation of the notions in Article 78(3) TFEU.

6. Principle of proportionality
Sixth plea in law, alleging breach of the principle of proportionality: The contested decision is manifestly incompatible with the principle of proportionality, as it is manifestly neither suitable nor necessary to achieve the desired end.
The principle of proportionality can certainly serve as a very strong argument – it can open the door for a thorough assessment of the very core of any measure by the Court of Justice. Obviously, this assessment is much more likely to be political than legal, with the Court enjoying very wide discretion in balancing the values at stake. It is a huge pity that the Slovak government has not worked out this sixth plea in more detail, since any chance of success of this action is potentially hidden in this last argument. The action could have put forward an argument that the contested measure is not suitable to reach the desired aim (i.e. to relieve the burden borne by the external border states and to show “solidarity and fair sharing of responsibility between the Member States,” as outlined in the decision’s preamble), since relocating people is too difficult and their further movement is too unpredictable. Furthermore, under the heading of necessity, it could have been argued that a less restrictive measure could have been adopted in order to solve the problem, such as denying entry to migrants (although that could violate the basic principles of EU law, particularly EU asylum law), triggering the regime of the Temporary Protection Directive, or other forms of help (e.g. financial, material or personal help) to the affected states. Last but not least, the proportionality argument could have been coupled with other quasi-political arguments, such as a claim under the national identity clause in Article 4(2) TEU.
It can be concluded that the Slovak government has missed a great chance to actually make a point under the sixth plea, since a mere claim of manifest incompatibility with the principle of proportionality does not give the Court anything to build on. That being said, if the Court wants to annul the measure, it can always use this plea to build a strong argumentation under the principle of proportionality.

Based on the analysis above, it seems to me that the first three pleas have almost no chance of success (unless the Court decides to reinvent a new understanding of “legislative acts”), the fourth and the fifth pleas raise interesting issues that could lead to minor interferences, such as the need to re-consult the Parliament, a limitation of the contested decision’s application to a shorter period of time, or a very narrow interpretation of the concepts of “emergency situation” or “sudden influx of migrants”. The sixth plea, however, opens Pandora’s box and invites the Court to exercise broad discretion in its assessment of the current solution to the migration crisis. While proportionality leaves most scope for the creativity of the Court, it is hard to see it replacing its own judgment for the judgment of the Member States, especially in a situation 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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