The Court of Justice of the European Union (CJEU) has held that Hungary, Poland and the Czech Republic failed to fulfil their obligations under European Union law when they refused to comply with a European Council decision to relocate asylum seekers within their borders.
In September 2015, the Council adopted a decision, on a mandatory basis, which provided for the relocation of 120,000 applicants for international protection from Greece and Italy to other EU Member States. The Council also adopted a similar decision to facilitate the relocation, on a voluntary basis, of 40,000 applicants for international protection. Poland indicated that it would accept 100 applicants but did not follow through with this commitment and made no further commitments to accept applicants. The Czech Republic said that 50 applicants would be relocated but only accepted 12 and made no further commitments. Hungary made no commitments to accept any applicants for international protection.
The European Commission subsequently brought enforcement proceedings against all three Member States for failure to comply with the Council decisions. All three were alleged to have infringed the Council’s mandatory decision, while only Poland and the Czech Republic were alleged to have infringed the voluntary decision. The Commission sought a declaration from the Court of Justice that, by failing indicate at regular intervals the appropriate number of applicants that could be relocated to their territories and by failing to implement their relocation obligations, the Member States had failed to fulfil their obligations under European Union law.
The three Member States argued that the Commissions actions were all inadmissible because the period of application of the relevant decisions had expired and it was no longer possible for the States to comply with them. The CJEU rejected these arguments and stated that such actions were admissible where the Commission restricts itself to seeking a declaration as to the existence of an infringement, which was the case here. The Court added that a failure to fulfil obligations was still of substantive interest as it establishes the basis of a responsibility that a Member State can incur as regards other Member States or private parties.
Both Poland and Hungary argued that there were entitled to disapply the Council’s decisions according to Article 72 of the Treaty on the Functioning of the European Union. This provision states that provisions of the TFEU on freedom, security and justice (which includes asylum policy) should not affect the ability of the state to maintain law and order and safeguard internal security. The CJEU acknowledged the validity of this provision but warned that it should be interpreted strictly. States are required to prove that it is necessary to derogate from the relevant treaty provisions in order to exercise their responsibility in the realm of national security and maintain public order.
The Court went on to say that the authorities of Member States were given a wide discretion to determine whether there are reasonable grounds for regarding a third country national as a potential or actual danger to their national security or public order. To rely on Article 72 TFEU, however, states have to conduct a case-by-case investigation and establish, with objective and specific evidence, that there are grounds for suspecting that the applicant for international protection in question presents an actual or potential danger.
As such an investigation had not occurred in any of these cases, the Court of Justice found Hungary, Poland and the Czech Republic had failed to fulfil their obligations under European Union Law.
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