On April 2, 2020, the European Court of Justice (ECJ) ruled, in the infringement proceedings initiated by the European Commission that, Poland, Hungary and Czech Republic failed to comply with their obligations under Articles 5§2-4-11 of both Council Decision 2015/1523 and Council Decision 2015/1601 by refusing to host asylum-seekers who arrived in Italy and Greece between 2015 and 2017.
As none of the three responding States disputed the fact that on the expiry of the period laid down in the decisions, they had failed to fulfil their obligations, i.e. to indicate a number of asylum-seekers who could be relocated on their territory and consequently to relocate those asylum-seekers, the question left to the Court was, notably, to determine whether the States could rely on Article 72 TFEU to justify their refusal to implement all their relocation obligations.
The absence of a general exception excluding measures taken for reasons of public security from the scope of EU law
Poland and Hungary argued that Article 72 TFEU, read in conjunction with Article 4§2 TEU entitled them to disapply their obligation, considering that the relocation mechanism did not enable them to fully guarantee the maintenance of law and order and the safeguarding of internal security (§135). Indeed, according to Poland, Article 72 TFEU, viewed as a provision comparable to a conflict of law rule, allows States not to implement an act adopted under Title V TFEU (which comprises, inter alia, a chapter on policies on border check, asylum and immigration) each time they consider that there is a risk for the maintenance of law and order and the safeguarding of internal security, leaving a wide leeway to States to assess such risk (§137).
The Court dismissed such approach recalling that the derogation provided for in Article 72 TFEU must be interpreted strictly and that it does not confer on States the power to depart from the provisions of the Treaty based on no more than reliance on the responsibilities mentioned under Article 72 TFEU. Furthermore, the Court pointed out that a control by the European institutions was necessary to determine the scope of the requirements regarding the maintenance of law and order or national security (§144-146).
A case by case risk assessment
Under Article 5§7 of the two Council Decisions, “Member States retain the right to refuse to relocate an applicant only where there are reasonable grounds for regarding him or her as a danger to their national security or public order or where there are serious reasons for applying the exclusion provisions set out in Articles 12 and 17 of Directive 2011/95/EU”. While under Articles 12 and 17 of Directive 2011/95 grounds must be “serious”, the two Council Decisions only require them to be “reasonable”.
However, the ECJ considered that, as with the serious reasons under Article 12 and 17 of Directive 2011/95, the reasonable grounds under the Council Decisions can only be invoked by States of relocation if there is “consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question actually or potentially represents such a danger, … in the light of an overall examination of all the circumstances of the individual case concerned” (§159).
Hence, States could not invoke a general risk to their national security but needed to proceed to a case by case risk assessment of the potential dangerousness of a specific individual.
A welcomed but rather symbolic outcome
By this ruling, the ECJ recalled the purportedly solidarity and fair sharing principle governing the EU’s asylum policy. Although the ruling must be viewed as positive, it is important to bear in mind that, the failures of the EU’s asylum policy, and notably the Dublin Regulation, from which the needs for a relocation mechanism arose, have not been reformed yet. No one can ignore the fact the Dublin system must be amended in order to provide asylum-seekers decent hosting conditions and fulfil their fundamental rights. This is an urgent step to take!