CJEU: Poland, Hungary, and Czech Republic failed to fulfil obligations under Council Relocations Decisions

Thursday, April 2, 2020

On 2 April 2020, the Court of Justice of the European Union published its judgment in the joint cases of the Commission v Poland, Hungary and the Czech Republic (C-715/17, C-718/17 and C-719/17) concerning the reliance on public order and national security considerations under Article 72 TFEU to justify non-compliance with relocation obligations. The opinion of Advocate General Sharpston was published on 31 October 2019.

In accordance with Article 5(2) Council Decisions 2015/1601 and 2015/1523 (“the Relocation Decisions”) European Member States are obliged to indicate the number of applicants of international protection who can be relocated to their territory. Poland and the Czech Republic initially indicated the number of individuals that would be relocated to their territory but failed to fulfil the subsequent obligation to relocate the individuals pursuant to Article 5(4) of the Relocation Decisions, while Hungary failed to indicate the number of individuals it could relocate. The Commission called on the Member States to communicate at least every three months the number of applicants who can be relocated and later invited the Member States to quickly adopt the necessary measures in order to make relocation commitments. After receiving no response, the European Commission sought a declaration from the Court that Poland, Hungary and Czech Republic had failed to fulfil obligations under the Relocation Decisions.

The Court observed that the relocation of applicants of international protection is complex, requiring coordination between Member States in order to have tangible effects, and is only possible if Member States commit to fulfilling their obligations. It also noted that a failure to fulfil obligations under Article 5(2) would consequently lead to an infringement under Article 5(4). The Court stated that Article 5 is to be interpreted strictly and does not confer on States the power to depart from provisions of EU law based solely on the reliance of interests linked to maintaining law and order and safeguarding internal security pursuant to Article 72 TFEU without proving that this is necessary in order to exercise their relevant responsibilities.

The importance of securing internal order was not disregarded by the Council, as the Relocation Decisions included the possibility to deny relocation if applicants with a risk profile were identified. Indeed, the competent authorities of the Member State of relocation can rely on serious reasons or reasonable grounds relating to the maintenance of their national security or public order only following a case-by-case investigation of the danger actually or potentially represented by the applicant for international protection concerned for those interests.

Despite this, the Court observed that the obligation set out under Article 5(2) Relocation Decisions was unconditional and does not provide for States to rely on the existence of a danger to national security or public order to justify its non-application. It therefore concluded that Poland and Hungary could not rely on Article 72 TFEU to justify the refusal to act on this obligation. In response to the Czech Republic’s argument regarding the malfunctioning and ineffective nature of the Relocation mechanisms, the Court concluded that the alleged lack of cooperation of Italy and Greece does not render the mechanism ineffective and should be solved in the spirit of cooperation and mutual trust. As such, it concluded that Poland, Hungary and Czech Republic had failed to fulfil obligations under Article 5(2) Relocation Decisions and subsequent obligations under Article 5(4).

A full legal summary of this judgment can be found on the EDAL website, managed by ECRE. Photo: orion_Katerina, May 2014, 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.                               

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