Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgment the Court considered applications of the Slovak Republic and Hungary which seek annulment of decision concerning relocation of asylum applicants from Greece and Italy to other EU states and including relocation quotas (Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece).
In the judgement the Court also referred in some points to relevant articles of the Charter.
On 22 September Council of the European Union adopted Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece.
Under Article 1 of the decision it “establishes provisional measures in the area of international protection for the benefit of Italy and of Greece, in view of supporting them in better coping with an emergency situation characterised by a sudden inflow of nationals of third countries in those Member States.”
The Annexes accompanying that decision contained two charts allocating applicants for international protection from Italy and Greece among the other Member States, in the form of quotas determined for each of those Member States.
The Slovak Republic and Hungary supported by Republic of Poland seek annulment of the decision.
1. In its 10th plea Hungary alleged breach of the principle of proportionality because of the particular effects of the contested decision on Hungary. Hungary stated that the imposition of such quotas on Hungary when it had need itself of support in order to manage the large numbers of migrants is, in its view, contrary to Article 78(3) TFEU (para 281).
In that regard, the Republic of Poland develops a more general argument criticising the allegedly disproportionate effects of those quotas on a number of host Member States which, in order to meet their relocation obligations, have to make far greater efforts and bear far heavier burdens than other host Member States. That is said to be the case of Member States which are ‘virtually ethnically homogeneous, like Poland’ and whose populations are different, from a cultural and linguistic point of view, from the migrants to be relocated on their territory (para 302).
2. In its eight plea Hungary supported by the Republic of Poland stated that although recital 35 of the contested decision addressed the issue of the legal and procedural safeguards applicable to the relocation decisions, none of its normative provisions regulates that matter or refers to the relevant provisions of the Dublin III Regulation. That raises a problem from the viewpoint, in particular, of the right of applicants to a remedy, especially of those applicants who are not designated for relocation. (para 312).
3. In its eight plea Hungary argued that according to the interpretation adopted by the United Nations High Commissioner for Refugees (UNHCR) , the applicant should be permitted to remain in the Member State in which he has lodged his request pending a decision on that request by the authorities of that country. Hungary also argued that the right to remain in that Member State is also recognised in Article 9 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).
Hungary stated that the contested decision deprives applicants for international protection of that right to remain and allows them to be relocated without their consent to another Member State with which they have no significant ties. (paras 316-318).
1. In response to the argument presented by the Republic of Poland the Court stated that considerations relating to the ethnic origin of applicants for international protection cannot be taken into account since they are clearly contrary to EU law and, in particular, to Article 21 of the Charter.
2. The Court held that there must be a right to an effective remedy under national law, in accordance with Article 47 of the Charter, against any decision to be taken by a national autahority in the course of the relocation procedure.
3. In response to the argument presented by Hungary the Court stated that it cannot validly be maintained that the contested decision, in so far as it provides for the transfer of an applicant for international protection before a decision on his application has been taken, is contrary to the Geneva Convention because that convention allegedly includes a right to remain in the State in which the application has been lodged while that application is pending.
The Court stated that the transfer of an applicant for international protection from one Member State to another for the purpose of ensuring that his application is examined within a reasonable time cannot be regarded as refoulement to a third State. The Court stated that it is on the contrary a crisis-management measure, taken at EU level, whose purpose is to ensure that the fundamental right to asylum, laid down in Article 18 of the Charter, can be exercised properly, in accordance with the Geneva Convention. (para 338-343).
The Court also stated that the objective of the decision is to take pressure off the Greek and Italian asylum systems by actually relocating, within a short time frame, a significant number of applicants to other Member States, in compliance with EU law and, in particular, with the fundamental rights guaranteed by the Charter (para 337).
4. Finally the Court (Grand Chamber) dismissed the actions.
"The case was decisively won by the Council of the EU which had the support of numerous Member States and the European Commission. By bringing the action, Slovakia and Hungary somewhat ironically gave the CJEU the necessary platform to make a rather lengthy statement endorsing the majoritarian position among the Member States as regards the validity and necessity of the relocation mechanism. In the process, the EU competence to enact provisional measures under Article 78(3) TFEU and the principle of solidarity in EU migration policy have been strengthened. The precedent thus created is bound to be invoked in future disputes and policy."
Legal basis and solidarity of provisional measures in Slovakia and Hungary v Council, by Michal Ovádek, Leuven Centre for Global Governance, available at: http://www.asylumlawdatabase.eu/en/journal/legal-basis-and-solidarity-provisional-measures-slovakia-and-hungary-v-council