2 Questions for Başak Çalı on what EU top court ruling means for refugee policy

“The law is not enough when political support behind it crumbles,” says international law professor.

What is the basis of the CJEU ruling?

Başak Çalı: In this ruling, the Grand Chamber of the Court of Justice of the European Union (CJEU) dismissed entirely Slovakia and Hungary’s request to annul a European Council decision on refugee relocation from September 2015. That decision required that 120,000 people in clear need of international protection be relocated from Greece and Italy to other EU countries over two years.

Slovakia and Hungary challenged its constitutionality, procedure and content.  Significantly, they argued that that the Council had no authority to decide on the relocation of asylum seekers and that the scheme violated EU legislation, such as the Dublin rules giving first-point-of-entry states responsibility for processing asylum seekers. They also argued that the Council’s qualified majority voting was procedurally illegal. Even if the decision were deemed constitutional and legal, they argued it was disproportionate and did not meet the sudden need requirement for emergency provisional measures under the spirit of solidarity. The two states also argued that accepting those in need of international protection was not a provisional measure, but had long-term consequences, given that those admitted under a relocation scheme may become permanent residents.

The CJEU dismissed every single one of these challenges.  The Court held that the Council has the power to ask member states to act in solidarity under Article 78 (3) of the EU in cases of emergency and that such measures do not require approval of either the European Parliament or national parliaments. The Court confirmed that qualified majority voting was provided for in Article 78 (3).   The Court also held that the large numbers of asylum seekers in Greece and Italy could be reasonably understood as ‘a sudden emergency' and that the measures put forward by the Council were proportionate to the aim pursued. At stake was the relocation of 120,000 persons.  Slovakia and Hungary were asked to accommodate just 2,096 of the 120,000 between them.  Finally, the Court made the observation that state duties for the international protection of refugees by its very nature may have a permanent character. The decision fulfilled the provisional requirement because it focused on a limited number of people in need of protection and only within a space of two years.


What are the implications for Europe going forward?

Başak Çalı: The dismissal of the request in its entirety supports the view that the legal basis of the challenge was fundamentally weak. Anyone with some knowledge of EU law could have foreseen this response.  The dismissal is not legally controversial. Indeed, the text of Article 78 (3) does not require a vote of the European Parliament or national parliaments. The Council has a margin of discretion to decide what is an emergency and what measures to take. That emergency measures may derogate  from existing legal arrangements is the very point of providing emergency measures.

The continuing and deep political divide in the EU Council on how to share the very real burden of giving asylum across the Union is at the heart of this case.  In 2015, the Czech Republic, Hungary, Romania and the Slovak Republic voted against the adoption of the relocation scheme in solidarity with Greece and Italy. Finland abstained.  Having lost the vote in the Council, the Slovak and Hungarian challenge can be best understood as a strategy to continue pursuing (and to keep alive) the political and public contestation of EU asylum policy by judicial means.

It is no surprise, therefore, that EU members also stood divided before the Court. Belgium, Germany, Greece, France, Italy, Luxembourg and Sweden intervened in support of the Council decision. Poland, who was in favour of the decision in 2015, flipped to intervene in support of Slovakia and Hungary.

This case can thus be seen as a symptom of a Europe Union divided on the value of solidarity as a fundamental political value, which expressed in the form of legal vernacular.  Slovakia and Hungary have upped the stakes and can now mobilise their voting populations in Bratislava and Budapest as the proud losers of the ‘European diktat.’ 

Compliance with the Council decision, however, is a more complicated and depressing story. Even though the legal challenge came from Slovakia and Hungary, a much larger number of EU states are failing to comply with the relocation scheme.  Significantly, according to data from the January 2017 Report of the European Commission on Member States’ Support to Emergency Relocation Mechanism, Poland and Austria alongside Hungary, have yet to relocate one asylum seeker.  Slovakia has fulfilled one percent of its share, the Czech Republic 0.4 percent and Sweden less than three percent. Many others also lag behind.

While Slovakia and Hungary lost at court, the governments of both states seem happy to have yet another tool with which to bash Europe, migrants and asylum seekers at home. The real losers are people in need of international protection.  The political commitment to solidarity as a fundamental value of the European Union has also taken a battering. The CJEU stood by solidarity as a fundamental value of EU law in the domain of asylum policy. This case shows us, however, that the law is not enough when the political support behind it crumbles.

More about Başak Çalı

  • Başak Çalı , Professor of International Law | Director, Centre for Fundamental Rights