Spain - Administrative Chamber of the Spanish Supreme Court, 9 July 2018, No. 1.168/2018

Country of Decision:
Country of Applicant:
Date of Decision:
09-07-2018
Court Name:
Administrative Chamber of the Spanish Supreme Court
Relevant Legislative Provisions:
European Union Law
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > Article 78
National / Other Legislative Provisions:
Spain - Article 71 of the Common Administrative Procedure and Law 29/1998 of 13 July governing Administrative Jurisdiction
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Headnote: 

The Administrative Chamber of the Spanish Supreme Court established that Spain is bound by two Council Decisions of May and September 2015 establishing an EU Emergency Relocation Mechanism aimed at distributing a number of refugees that have arrived to Italy and Greece.

Facts: 

The Non-Governmental Organization Stop Mare Mortum (hereinafter, the ‘NGO’ or the applicant) asked the Administrative Chamber of the Supreme Court (hereinafter ‘the Court’ or ‘the Supreme Court’) to declare that the Spanish Government had failed to respect: 1. the Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece; and the 2. Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (hereinafter, “the Relocation Decisions”) that included clear and concrete obligations for the State, particularly the quota of refugees allocated to Spain.

The NGO brought the case before the Supreme Court after a previous request submitted to the Spanish Government that was not answered. This enabled the applicant to bring directly the case before the Supreme Court. Specifically, the applicant argued that the lack of answer from the State constituted a ‘presumed dismissal’ that was violating EU law taking into account that Council decisions are mandatory. Hence, this ‘presumed dismissal’ was voidable under Article 48 of the Spanish Law 39/2015 on the Common Administrative Procedures from the Public Administrations. On the contrary, the State’s attorney argued, inter alia, that there was not any decision to be appealed by the applicant. However, the Court rejected this argument and asked the State’s attorney to answer the suit.

Thus, the State’s attorney asked the Court to dismiss the suit taking into account the efforts made by the State of Spain that was trying to ask for and relocate the ‘refugees’ that had been assigned to the country. In this regard, it alleged that the procedure was complex given that Spain had to verify whether the persons assigned to Spain complied with the conditions to be considered as refugees in Spain.

 

Decision & Reasoning: 

The Supreme Court structures its reasoning in the following manner:

1. The Commission is not the only institution responsible for supervising the right application of EU Law by Governments; it is also the duty of National Courts to monitor it regardless of the approach taken by the Commission

The State’s Attorney argued that the European Commission had the sole responsibility for supervising the compliance of EU law by a State –and particularly of the council decisions- and that national courts lacked competence in this regard (under Article 17 of the treaty of the European Union and the Article 78 of the Treaty on the Functioning of the European Union). In any case, it suggested the Supreme Court to submit preliminary questions to the CJEU and to ask: i) whether the monitoring of emergency decisions is a prerogative corresponding exclusively to the Council and European Commission or whether it is a task that may be shared with National courts; if the answer to the latter question is yes, ii) which measures must be implemented in order to prevent that contradictory responses from European and national authorities may arise. 

The Supreme Court observed that the task to monitor the compliance of States with EU law belongs to the European Commission under Article 211 of the Treaty establishing the European Community (hereinafter, TEC). In addition to that, the Court noted that this institution is exclusively responsible for the implementation of the infringement procedures under Article 226, TEC. However, the Court held that taking into account that the Relocation Decisions have a ‘direct effect’, national courts must be able to monitor the compliance of the State with them on the basis of actions brought by persons or entities concerned, a possibility which does not conflict with the Commission’s prerogatives to consider and initiate, if it so wishes, infringement proceedings against the Member State concerned. With regard to the notion of ‘direct effect’ the Court referred to the following cases: CJEU- Franz Grad v Finanzamt Traunstein of 6 October 1970 and to Exportur SA v LOR SA and Confiserie du Tech SA. 10 November 1992.

In casu, the Supreme Court noted that the Commission had not taken any infringement procedure against Spain with regard to the Relocation Decisions, giving space for the Supreme Court to examine and rule on the compliance of the decisions. Moreover, the Supreme Court observed that even if the Commission had initiated infringement procedures against the State of Spain, the Supreme Court could receive actions on the failure of the State to comply with the decisions –as the only mean that individuals may have to defend their rights- but in that case would have to halt the proceedings until a Court of Justice of the European Union (hereinafter, CJEU) decision on the matter (page 10/ heading 7).

Following the previous reasoning, the Supreme Court refused to submit the requested preliminary questions to the CJEU by recalling that submitting preliminary questions or not is a decision to be taken exclusively by national courts as the CJEU had established in Maria Salonia v Giorgio Poidomani and Franca Baglieri of 16 June 1981 (page 10/heading 7)

2. Spain is bound to continue relocating and processing the rest of the quota after the deadline set in the decisions

The Supreme Court first observed that the Relocation Decision specifically foresees under Back to topits Article 13, paragraph 1, 2 and 3 that it is applicable from September, 25 2015 up to September, 26 2017. Hence, it recognises that this decision has a provisional nature within the meaning of paragraph 3 of the Article 78 of the Treaty on the Functioning of the European Union (hereinafter TFEU). This provisional character of the decisions, gives ground to the State’s Attorney to argue that once the period foreseen for their application has elapsed it may not be possible to consider the suit under the terms in which it was formulated by the applicant. 

However, the Supreme Court refused this argument. Despite the fact that the Court recognised that the CJEU’s judgment established that the Relocation Decision is applicable during a limited period of time (CJEU - Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union from 6 September 2017), it mentioned a document from the European Commission related to the Relocation Decisions’ implementation assessment process dated on 12 April 2017, that specifically provides that the relocation obligations for States will continue after September 2017 (page 24/heading 13).

3. The complexity of the relocation process cannot exempt the State of its obligations. The State partially failed to meet its obligations under the Relocation Decisions and must continue with its efforts to comply with them

The State’s Attorney argued that Spain was making efforts to comply with its obligations under the Relocation decisions but that the delays in the process were caused because of the complexity of the relocation process. As an example, it stated that Spain had to verify whether the persons taken into account in the quota gathered the necessary requirements to be considered as refugees in Spain. In this respect, the State’s Attorney broke down the complex procedure that entails the implementation of the relocation mechanism in Spain (page 25).

The Supreme Court observed on the one hand, that as of 22 March 2018 Spain had only offered 12.85% of the relocation quota to which it was obliged to offer. It meant that Spain had offered 2,500 seats (1,875 to Greece and 625 to Italy) out of its quota of 19.449 persons to be offered and relocated. Similarly, the Court observed that Spain had only relocated 235 persons from Italy and 1,124 from Greece thus complying with less than 7% of the quota assigned to the country. These requirements are foreseen under Article 4.1 and 4.2 of the Relocation Decision 1601/2015 and the letters a) and b) of Article 4 from the Relocation Decision 1523/2015. In any case, this Court noted that Italy and Greece had not answered to some queries received from the Spanish State in this respect. The court, therefore, noted that the required coordination among States under the Relocation Decisions was being breached (page 27). Consequently, the Supreme Court concluded that Spain had not complied with its obligations to offer relocation places in the country and to make them effective – even after the deadline for its compliance has elapsed for more than half a year (page 26).  

On the other hand, the Court rejected the State’s arguments that Spain was making efforts to comply with its obligations but the delays were caused by the complexity of the relocation process. In this regard, the Court observed that the Relocation Decisions are binding as it arises from their legal nature but also as it is foreseen under Paragraph 39 of the Relocation Decision 2015/1523 (heading 17). Moreover, the Court noted that the complexity of the relocation process cannot exempt the country of its obligations, taking into account that Spain chose not to make use of the provisions under the Relocation Decisions that allow Member States to request for flexibility measures such as the one foreseen under Paragraph 15 of the Relocation Decision 2015/1523 and the reduction of up to 30% of their relocation quota provided under Article 4.5 of the Relocation Decision 2015/1601. While recognising that the limited number of relocations throughout the EU can be explained by a number of different factors, including the lack of cooperation from some Member States, the “generalised failure to comply with the decisions does not constitute a justification for the negligent behaviour” of the State (page 28/heading 17).

Therefore, the Supreme Court concluded that the Spanish State had partially failed to meet its regular obligations under the Relocation Decisions and must continue with its efforts to comply with the obligations set thereunder, in light of the agreements that the European institutions may pass in this regard (page 28/ heading 18).

 

 

 

Outcome: 

The Supreme Court concluded that the Spanish State had partially failed to meet its regular obligations under the Relocation Decisions and must continue with its efforts to comply with the obligations set thereunder, in light with the agreements that the European institutions may pass in this regard (page 28).

Specifically, the Supreme Court:

1. Held that the ‘presumed dismissal’ made by the Spanish Government with regard to the applicant’s request was contrary to law.

2. Established that the Spanish State had partially failed to meet its obligations under the Relocation Decisions.

3. Concluded that the Spanish State has to continue complying with its obligations set in the Relocation Decisions in light of the agreements that the European institutions may further pass.

Observations/Comments: 

The Spanish Supreme Court’s ruling was in line with the CJEU - Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union.

However, it is the first time that a domestic court holds an EU Member State responsible for failing to comply with its relocation quota obligation. In this regard, the Spanish Government has explicitly confirmed that it will comply with this decision.

This Judgement may open some avenues of litigation action that show transnational potential. In this regard, similar suits may be filed before other EU Member States’ judicial instances in order to obligate Governments through judicial suits and/or injunctions to reach those quotas for the sake of compliance with their solidarity and burden sharing duties.

Spain committed to relocating 9,323 asylum seekers from Italy and Greece under the Council Decisions 2015/1523 and 2015/1601. By the end of 2017, a total of 1,358 asylum seekers were relocated according to the Spanish Asylum Office (OAR).

David Moya, Are National Governments Liable if They Miss Their Relocation Quota of Refugees?, verfassungs blog, available here

Steve Peers, Relocation of Asylum-Seekers in the EU: Law and Policy, EU Law Analysis Blog, available here

Other sources cited: 

 

Case Law Cited: 

CJEU - Case 25/62 Plaumann & Co v Commission, 15 July 1963

CJEU - Case T‑396/09, General Court, 14 June 2012

CJEU - Case Franz Grad v Finanzamt Traunstein, 6 October 1970

CJEU - Case Exportur SA v LOR SA and Confiserie du Tech SA, 10 November 1992

CJEU - Case Maria Salonia v Giorgio Poidomani and Franca Baglieri, 16 June 1981