Opinion of Advocate General Sharpston delivered on 31 October 2019.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Celex Number62017CC0715
Date31 October 2019

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 31 October 2019 (1)

Case C715/17

European Commission

v

Republic of Poland

Case C718/17

European Commission

v

Republic of Hungary


Case C719/17

European Commission

v

Czech Republic

(Area of freedom, security and justice — Failure of a Member State to fulfil obligations — Decisions (EU) 2015/1523 and (EU) 2015/1601 — Provisional measures in the field of international protection for the benefit of the Hellenic Republic and the Italian Republic — Emergency situation characterised by a sudden influx of third-country nationals into the territory of certain Member States — Relocation of such nationals to the territory of other Member States — Relocation procedure — Obligation for Member States to indicate at regular intervals, and at least every 3 months, the number of applicants who can quickly be relocated on their territory — Consequent obligations to carry out effective relocation — Article 72 TFEU and internal security)






1. Under normal circumstances, Regulation No 604/2013 (‘the Dublin III Regulation’) (2) governs the allocation, between Member States, of persons seeking international protection within the European Union. However, the continuing conflict in Syria led to a dramatic increase in the overall number of persons seeking such protection. (3) The hazardous sea journey across the Mediterranean was, and indeed remains, a major route for such persons (and other would-be refugees) to enter EU territory. (4) That path places enormous pressure on two EU Member States, Italy and Greece (‘the frontline Member States’), both of which have long Mediterranean coastlines that are, in practical terms, impossible to police. Under normal circumstances those Member States would, in accordance with Article 13 of the Dublin III Regulation, (5) be responsible for examining applications for international protection lodged by persons entering the European Union via their territory. (6) Both were overwhelmed by the sheer number of potential applicants. (7)

2. On 14 and 22 September 2015 respectively, the Council adopted two decisions introducing provisional measures for the benefit of the frontline Member States: Council Decision (EU) 2015/1523 (8) and Council Decision (EU) 2015/1601. (9) Both decisions used Article 78(3) TFEU as their legal basis. Those two decisions put in place detailed arrangements for the relocation of, respectively, 40 000 and 120 000 applicants for international protection. In what follows I shall refer to those two decisions together as ‘the Relocation Decisions’ and shall refer to them individually only where necessary.

3. A challenge to the legality of Decision 2015/1601 was unsuccessful. (10)

4. The Commission has now brought infringement proceedings against three Member States: Poland (Case C‑715/17), Hungary (Case C‑718/17) and the Czech Republic (Case C‑719/17). I shall refer to these Member States collectively, where appropriate, as ‘the three defendant Member States’.

5. In these parallel proceedings, the Commission claims that the three defendant Member States have failed to comply, in the case of Poland and the Czech Republic, with Article 5(2) of both Decision 2015/1523 and Decision 2015/1601 (‘the pledging requirement’) or, in the case of Hungary, with Article 5(2) of Decision 2015/1601 alone, and with their consequent obligations under Articles 5(4) to (11) of those respective decisions, thereby failing to assist Italy and Greece by relocating applicants for international protection to their respective territories in order to proceed there to the substantive consideration of individual applications. (11)

6. Poland, Hungary and the Czech Republic contest the admissibility of the applications. In the alternative, they argue that they may rely on Article 72 TFEU as justification for not applying those decisions (whose validity they do not now contest), since EU measures taken under Title V of Part Three of the TFEU (of which Article 78 TFEU, the basis of the Relocation Decisions, forms part) ‘shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’.

7. The three cases were heard together and I shall deliver a joint Opinion covering the three sets of infringement proceedings.

Legal context

8. The Relocation Decisions cannot be viewed in isolation. They were taken against the background of a (highly complex) set of obligations and consequent arrangements in international law and EU law, together with the Court’s careful and detailed ruling in the judgment in Slovak Republic and Hungary v Council. I shall endeavour to set out that background as concisely as possible.

Universal Declaration of Human Rights

9. Article 14(1) of the Universal Declaration of Human Rights (12) provides in broad terms that ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’. However, Article 14(2) thereof provides that ‘this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations’. (13)

The Geneva Convention

10. Article 1(A)(2) of the Convention Relating to the Status of Refugees (14) provides in its first paragraph that the term ‘refugee’ shall apply to any person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’. The second paragraph thereof adds the clarification that, for stateless persons, ‘that country’ refers to the country of habitual residence.

11. However, Article 1(F) provides that the Geneva Convention ‘shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations’.

Treaty on the European Union

12. Article 4(2) TEU provides that ‘the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State’.

Treaty on the Functioning of the European Union

13. Article 72 TFEU forms part of Chapter 1, (‘General Provisions’), within Title V of the TFEU (‘Area of Freedom, Security and Justice’; ‘the AFSJ’). It provides, succinctly, that ‘this Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’.

14. Article 78(1) TFEU, part of Chapter 2, (‘Policies on border checks, asylum and immigration’), requires the Union to ‘develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with [the Geneva Convention] and other relevant treaties’. Article 78(2) TFEU provides the legislative basis for measures adopted to construct the common European asylum system (‘the CEAS’). (15)

15. Article 78(3) TFEU states that ‘in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament’.

16. Article 80 TFEU provides that ‘the policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Wherever necessary, Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle’.

Charter of Fundamental Rights

17. Article 18 of the Charter of Fundamental Rights of the European Union (16) states that ‘the right to asylum shall be guaranteed with due respect for the rules of [the Geneva Convention] and in accordance with the [TEU] and the [TFEU]’.

Relevant elements of the asylum acquis

18. Extensive EU secondary legislation establishes the CEAS and lays down uniform procedural and substantive rules that Member States are to apply when processing and determining applications for international protection.

The Qualifications Directive

19. Directive 2011/95 (‘the Qualifications Directive’) (17) contains uniform standards to be applied when determining whether third-country nationals or stateless persons are eligible for refugee status or subsidiary protection. It also contains provisions governing exclusion from such status and enabling a Member State to revoke, end or refuse to renew such status in certain circumstances.

20. Article 2(a) defines ‘international protection’ as ‘refugee status and protection subsidiary status as defined in points (e) and (g)’; Article 2(d) defines ‘refugee’ in...

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4 practice notes
  • Opinion of Advocate General Campos Sánchez-Bordona delivered on 18 March 2021.
    • European Union
    • Court of Justice (European Union)
    • 18 March 2021
    ...Republik (Vorübergehender Umsiedlungsmechanismus für internationalen Schutz beantragende Personen) (C‑715/17, C‑718/17 und C‑719/17, EU:C:2019:917, Nr. 253) fest: „Solidarität ist das Lebenselixier des Europäischen 54 Die baltischen Staaten sowie die Länder Mittel- und Osteuropas haben offe......
  • Conclusions de l'avocat général M. H. Saugmandsgaard Øe, présentées le 6 octobre 2021.
    • European Union
    • Court of Justice (European Union)
    • 6 October 2021
    ...Republik (Vorübergehender Umsiedlungsmechanismus für internationalen Schutz beantragende Personen) (C‑715/17, C‑718/17 und C‑719/17, EU:C:2019:917, Nr. 32 Vgl.in diesem Sinne auch Urteil vom 6. Oktober 2020, La Quadrature du Net u. a. (C‑511/18, C‑512/18 und C‑520/18, EU:C:2020:791, Rn. 134......
  • Opinion of Advocate General Pikamäe delivered on 27 February 2020.
    • European Union
    • Court of Justice (European Union)
    • 27 February 2020
    ...ceca (Sistema temporaneo di ricollocazione di richiedenti protezione internazionale) (C‑715/17, C‑718/17 e C‑719/17, EU:C:2019:917, paragrafo 212). In tali conclusioni (paragrafi da 202 a 223), è correttamente indicato che «l’articolo 72 TFUE ha l’ovvia funzione di ricordare al legislatore ......
  • Tampere Programme 20 Years on: Putting EU Principles and Individuals First
    • European Union
    • 20 year anniversary of the Tampere programme. Europeanisation dynamics of the EU area of freedom, security and justice Part I - The Lisbonisation of EU AFSJ Policies
    • 19 August 2020
    ...General Sharpston in Cases C-715/17 Commission v. Poland, C-718/17 Commission v. Hungary and C-719/17 Commission v. Czech Republic, EU:C:2019:917. Table of 52 PART I - The Lisbonisation of EU AFSJ Policies 1. Introduction: From Justice and Home Affairs to an Area of Freedom, Security and Ju......
3 cases
  • Opinion of Advocate General Campos Sánchez-Bordona delivered on 18 March 2021.
    • European Union
    • Court of Justice (European Union)
    • 18 March 2021
    ...Republik (Vorübergehender Umsiedlungsmechanismus für internationalen Schutz beantragende Personen) (C‑715/17, C‑718/17 und C‑719/17, EU:C:2019:917, Nr. 253) fest: „Solidarität ist das Lebenselixier des Europäischen 54 Die baltischen Staaten sowie die Länder Mittel- und Osteuropas haben offe......
  • Conclusions de l'avocat général M. H. Saugmandsgaard Øe, présentées le 6 octobre 2021.
    • European Union
    • Court of Justice (European Union)
    • 6 October 2021
    ...Republik (Vorübergehender Umsiedlungsmechanismus für internationalen Schutz beantragende Personen) (C‑715/17, C‑718/17 und C‑719/17, EU:C:2019:917, Nr. 32 Vgl.in diesem Sinne auch Urteil vom 6. Oktober 2020, La Quadrature du Net u. a. (C‑511/18, C‑512/18 und C‑520/18, EU:C:2020:791, Rn. 134......
  • Opinion of Advocate General Pikamäe delivered on 27 February 2020.
    • European Union
    • Court of Justice (European Union)
    • 27 February 2020
    ...ceca (Sistema temporaneo di ricollocazione di richiedenti protezione internazionale) (C‑715/17, C‑718/17 e C‑719/17, EU:C:2019:917, paragrafo 212). In tali conclusioni (paragrafi da 202 a 223), è correttamente indicato che «l’articolo 72 TFUE ha l’ovvia funzione di ricordare al legislatore ......
1 books & journal articles
  • Tampere Programme 20 Years on: Putting EU Principles and Individuals First
    • European Union
    • 20 year anniversary of the Tampere programme. Europeanisation dynamics of the EU area of freedom, security and justice Part I - The Lisbonisation of EU AFSJ Policies
    • 19 August 2020
    ...General Sharpston in Cases C-715/17 Commission v. Poland, C-718/17 Commission v. Hungary and C-719/17 Commission v. Czech Republic, EU:C:2019:917. Table of 52 PART I - The Lisbonisation of EU AFSJ Policies 1. Introduction: From Justice and Home Affairs to an Area of Freedom, Security and Ju......

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