CJEU: Advocate General Opinion on the relocation of applicants of international protection to Poland, Hungary, Czechia

Thursday, October 31, 2019

On 31 October 2019, Advocate General Sharpston delivered an opinion on the action brought by the Commission against Poland (Case C-715/17), Hungary (case C-718/17) and Czech Republic (Case C-719/17) concerning the failure to comply with the Relocation Decisions (Decision 2015/1523 and 2015/160) in support of Italy and Greece in 2015.

AG Sharpston clarified that Member States have to exercise their competence under Article 72 Treaty on the Functioning of the European Union (TFEU) in a way that respects other relevant provisions of EU law such as the Relocation Decisions themselves and the current EU law on international protection. Thus, Member States cannot rely on Article 72 TFEU to avoid complying with a valid EU provision they disagree with but they can rely on the legislative framework already provided by EU secondary law, when there are legitimate concerns of national security. 

Poland, Hungary and Czech Republic argued that due to the risk present in processing a large number of undocumented persons, Relocation Decisions created a dysfunctional system dangerous for national security.  This argument was rejected as both texts contained specific provisions to allow Member States to refuse the relocation of an individual applicant for security reasons (Article 5.7) and stressed that in emergency situations like the one faced by Italy and Greece in 2015, practical difficulties must “be resolved in the spirit of cooperation and mutual trust between the authorities of Member States (see par. 309, Slovak Republic and Hungary v Council)”.

Accordingly, if the defendant Member States were facing serious problems, they should not have decided unilaterally not to comply with the EU provisions but applied, as Austria as Sweden did, for a temporary suspension of their relocation obligation. In concluding, AG Sharpston underlined three elements of EU legal order: the rule of law; the duty of sincere cooperation; and the principle of solidarity and how these impact duties incumbent on Member States. She is of the opinion that the Court should, inter alia, declare that by failing to indicate regularly the number of individuals relocated, Poland, Hungary and the Czech Republic have failed to fulfil their obligations under Article 5 EU 2015/1523 and 2016 2015/1601.

Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary.

Photo: Katarina Dzurekova, January 2015, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.