CJEU: AG Opinion in Cases C-643/15 Slovakia v. Council & C-647 Hungary v. Council, 26 July 2017

Wednesday, July 26, 2017

On 26 July 2017, Advocate General Bot proposed in his Opinion that the Court should dismiss the actions brought by Slovakia and Hungary against the provisional mechanism for the mandatory relocation of asylum seekers. Slovakia and Hungary have asked the Court to annul the decision on the grounds that (i) the adoption of the decision was vitiated by errors of a procedural nature or arising from an inappropriate legal basis and (ii) the decision was neither a suitable nor necessary response to the migrant “crisis”.
The Advocate General first stressed that the contested decision is an expression of solidarity between the Member States. In response to Slovakia and Hungary’s claim that the contested decision must be classified as a legislative act because of its content and its effects despite it being adopted according to the non-legislative procedure and formally being a non-legislative act, the Advocate General argued that the TFEU takes a purely formal approach and that having been adopted according to the procedures in Article 78 (3) TFEU, the decision must be considered a non-legislative act. Because this provision permits the adoption of measures which derogate temporarily from legislative acts in asylum matters within a well-defined framework and enables the Council to adopt all necessary provisional measures, the contested decision did not entail any abuse of the ordinary legislative procedure. As the decision has temporal limits, he argued that it was provisional in nature, and because the sudden inflow of third country nationals qualifies as an emergency situation, it satisfies the requirements of Article 78 (3) TFEU. On procedural grounds he rejected the argument that the Council should have consulted the European Parliament again and that it was required to act unanimously. Further, he explained that the decision’s adoption was not subject to the requirements for legislative acts relating to the participation of national Parliaments nor public deliberations and voting.
The Advocate General maintained that the contested decision does not breach the principle of proportionality, since the decision is an appropriate means of attaining its objective: a temporary relocation mechanism to automatically relieve considerable pressure on the asylum systems of Italy and Greece. He further found that the Council not only did not act in a disproportionate manner but also took fully into account the need to adapt the temporary relocation mechanism to the evolution of the situation when determining the number of applicants to be distributed.

The EWLU would like to thank Victoria Granda, J.D. Candidate, University of Virginia School of Law, for her kind assistance with summarising this Opinion.

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