Slovakia and Hungary lost the case against refugee quotas. What does it mean?

As probably expected Slovakia and Hungary lost the challenge against the provisional mechanism for the mandatory relocation. What is your view on the verdict and maybe if there are some legal instruments how to push Slovakia and Hungary to accept this and to take asylum seekers. Read few comments.

Henri de WaeleFull Professor of International and European Law, Faculty of Law, Radboud University Nijmegen

To begin with, reflecting on the origin of the case, the pleas of Slovakia and Hungary, and how they are now regarded by the Court – clearly they have clung to much to political impressions – in particular, a vague sentiment or suggestion that consensus simply was to prevail at all times. This could however never override the plain legal fact that Article 78(3) TFEU could be deployed in the situation concerned, a provision that allows for a majority vote (since the provision does not state anything to the contrary, in law it is simply the default rule). The objections of Slovakia and Hungary (and Romania), based on their expectations, are somewhat understandable considering the sensitivity of the dossier, yet in this regard the legal case was somewhat doomed from the beginning – since apparently no viable political compromise could be reached outside the Court, the Court now had no other choice but to apply the law – which is unambiguous enough in stating that no unanimity is required (which the judgment now confirms).

The argument advanced by Hungary and Slovakia that the procedure of Article 78(3) was abused, since it could not be used to adopt legislation, also seemed quite laughable to many lawyers – for, the contested decision could on no count qualify as ‘legislation’ to begin with, in light of existing jurisprudence on that issue. The Court therefore now also completely logically dismisses that argument.

The next point, concerning the need to involve Parliament more strongly, overall held most merit. The original draft decision of the Commission 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. This has a strong whiff of a “change of an essential element”, which legally means it could have been required to consult the European Parliament again. The Court is now a bit cheeky in letting this slip, although it is right to point out that Parliament was duly informed (albeit that this is a weaker form of involvement than proper consultation). And in any case, if the claim had been considered succesful on this point, it would not have accomplished that much: consultation could have ensued quickly, and the Court might (as it often does) have kept the Decision in force in the meantime, since the legal flaw was purely procedural.

Finally, with regard to the plea linked to proportionality (accusing the EU that the act was neither proportional nor sufficiently effective), the outcome is in line with I predicted in an earlier message to you. Again, it should have been clear to the Hungarian and Slovakian lawyers arguing in this case that it would be very hard to win the case on this ground – it is not for the Court to enter into a comprehensive analysis here, where there are other non-legal factors to be considered that political institutions are better able to take into view. The limited scrutiny of the Court leads to the logical, fair and deferent conclusion that the adopted measure can by no means be considered ‘manifestly inappropriate’ for reaching the stated objectives. As a damning reprimand, underlining the feebleness of the claims made (and ostensibly as a final ‘kick in the butt’), the Court pronounces that “the legality of the decision cannot be called into question on the basis of retrospective assessments of its efficacy”.

So, there it is – the final judgment on this matter, basically in line with the earlier suggestion of Advocate-General Yves Bot. Note that no appeal is possible (as the litigation immediately took place at the top-tier, not at the first instance General Court).

With regard to enforcement, at least the EU Treaties make clear that Member States are bound to comply with all Court rulings and EU law in its entirety. The Commission monitors whether they actually do so, and if not, can launch an infringement procedure. As you will be aware, the Commission has in fact already initiated such a procedure in June 2017 against Hungary, Poland and the Czech Republic. This is now extra likely to lead to a condemnatory judgment that should also be obeyed – failing that, a new procedure could follow, in which the Member States concerned are ordered to pay a lump sum or periodic penalty payment. The only favourable factor for the naughty bunch is time – it will probably take at least 1.5 years, even if the procedure is expedited, before such a financial sanction can be imposed through a second Court ruling. Perhaps the diplomatic embarassment or other forms of diplomatic pressure will be such that the governmental resistance caves in beforehand – but I’m not getting my hopes up. In parallel, of course, we will need to observe whether or not the general action will be initiated that could ultimately see Hungary and Poland lose their voting rights in the EU Council for being engaged in systematic infringements of the rule of law.

In sum, it’s quite a conundrum where the legal principles may not necessarily prove able to produce the desired change in social behaviour. A small hopeful signal might be that some countries have in fact proved willing to turn the page – it may be that, in the face of this defeat, both Slovakia and the Czech Republic may now decide to engage in a more generous and spontaneous compliance pattern, realising there is little to be won by continously dragging one’s feet?

Steve PeersProfessor, School of Law, University of Essex

The ECJ ruling is very thorough in refusing all of Hungary’s and Slovakia’s legal arguments and leaves the EU with a lot of flexibility to adopt asylum seeker quota systems in future. However, the ruling by itself cannot make Member States comply with the relocation decisions – and since the decisions are about to expire it its hard to see how any further legal challenges which the Commission might bring against Member States to enforce the relocation rules would be effective.

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