What was the Council decision?

The complaint concerned the Council decision of 22 September 2015 concerning a second emergency relocation programme. Adopted by a qualified majority vote, with the Czech Republic, Slovakia, Hungary, and Romania voting against it, the decision was adopted and committed to the relocation of 120,000 asylum-seekers across the Member States. The programme was set up with two phases. In the first phase, 66,000 people in clear need of international protection were to be relocated from Greece and Italy to other Member States according to a mandatory system. After a year, a further 54,000 asylum-seekers were to be relocated from Greece and Italy, or other states under mass-migration pressure. An amendment to the decision was adopted in 2016 that made the second phase of the relocation programme available to Syrian refugees in Turkey under the EU deal with that country.

What were the applicants’ arguments?

Hungary and Slovakia raised charges on both procedural and substantive grounds. The complainants argued that by choosing Article 78(3) TFEU as the formal basis for the relocation decision, it limited the role of national parliaments and the European Parliament in the legislative process, and so amendments made to the Commission’s initial proposal for a decision by the Council required unanimity. In their view, the legal basis of the proposal was inadequate because the influx of migrants at that time was not sudden and the effects of the relocation decision were not temporary, which they claim would justify using Article 78 (3). According to the complainants, the decision violated the principle of proportionality and Member State competences concerning public order and internal security. They further claimed the decision exceeded the guidance given by the European Council in its conclusions of June 2015, according to which distribution of asylum-seekers should be agreed by the Member States by consensus.

How did the Court of Justice justify its ruling?

The court recognised the mandatory relocation mechanism as an effective and proportionate response to the mass-migration crisis. According to the court, the first relocation programme intended to relocate, on a voluntary basis, 40,000 people proved to be insufficient to meet the challenge, so the Council could then take more restrictive measures. The court rejected the objections on procedural grounds, stating that the relocation decision could have been accepted under a non-legislative procedure and therefore its adoption was not subject to the requirements relating to the participation of national parliaments. It also found there was no requirement for unanimity in the Council, since the Commission accepted the changes introduced to its proposal. The court also explained that the European Council conclusions could not prevent the adoption of the subsequent Council decision because they were related to the first and not the second relocation plan.

How should the reactions of Slovakia and Hungary to the CJEU ruling be interpreted?

Slovakia’s reaction indicates it seeks to avoid friction with the EU institutions. Even though Prime Minister Robert Fico has stated publicly that he thinks the quota mechanism is ineffective and does not contribute to solving the mass-migration crisis, Slovak authorities intend to honour the ruling. Hungary, though, is likely to continue the dispute. The country’s foreign minister, Péter Szijjártó, opined that the Court’s decision is “dangerous” for Europe and announced that Hungary will “battle” the quota mechanism with all available legal means. Prime Minister Viktor Orbán’s cabinet will likely capitalise on this policy and increase the strife with EU institutions as it mobilises its electorate before parliamentary elections scheduled for spring 2018.

How does the judgment affect the relocation mechanism?

It is a sign that the EU does not intend to abandon the implementation of the relocation programmes adopted in 2015, even though the original deadline for implementation was the end of September. In June, the Commission announced that Member States’ commitment to accept relocated asylum-seekers will not disappear after the deadline. The judgment in the Slovakia-Hungary case will encourage the Commission to put pressure on states that seek to waive their obligation, including by judicial sanctions proceedings. Infringement proceedings have already been launched against Poland, the Czech Republic, and Hungary. The rejection of the objections put forward in the case significantly reduces the chances of Poland, the Czech Republic, and Hungary to obtain a favourable judgment in their proceedings.