We are all in the same boat! On the legal principle of solidarity and its legal implications in the recent CJEU case law

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by Alessandra Silveira, Editor

The Opinion of the Advocate-General Eleanor Sharpston in the joined cases C-715/17, C‑718/17 and C‑719/17 (delivered on 31 October 2019) concluded by recalling an old story from the Jewish tradition that deserves wider circulation – particularly in times of COVID-19 pandemic. A group of men are travelling together in a boat. Suddenly, one of them takes out an auger and starts to bore a hole in the hull beneath himself. His companions remonstrate with him. ‘Why are you doing that?’ they cry. ‘What are you complaining about?’ says he. ‘Am I not drilling the hole under my own seat?’ ‘Yes,’ they reply, ‘but the water will come in and flood the boat for all of us’ (paragraph 255).

The story is recalled by the Advocate-General regarding the principle of solidarity provided in Article 80 TFEU: “The policies of the Union set out in this Chapter [‘Policies on border checks, asylum and immigration’] 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”.

On this principle – which requires all Member States – the Advocate-General stated that “respecting the ‘rules of the club’ and playing one’s proper part in solidarity with fellow Europeans cannot be based on a penny-pinching cost-benefit analysis along the lines (familiar, alas, from Brexiteer rhetoric) of ‘what precisely does the EU cost me per week and what exactly do I personally get out of it?’ Such self-centredness is a betrayal of the founding fathers’ vision for a peaceful and prosperous continent. It is the antithesis of being a loyal Member State and being worthy, as an individual, of shared European citizenship. If the European project is to prosper and go forward, we must all do better than that” (paragraph 254 of the Opinion).

In these joined cases – which were decided by Court of Justice of the European Union on April, 2, 2020 – the matter at stake was to know if by refusing to comply with the provisional and time-limited mechanism for the mandatory relocation of applicants for international protection, Poland, Hungary and the Czech Republic have failed to fulfil their obligations under EU law; particularly, it was at stake to know if these Member States could invoke their responsibilities with regard to the maintenance of law and order and the safeguarding of internal security [on the basis of Article 72 TFEU, read with Article 4(2) TEU] in order to disapply a valid EU measure with which they disagree.

As we know, in response to the migration crisis that affected Europe in the summer of 2015, the Council of the European Union adopted two decisions[i] in order to help Italy and Greece deal with the massive inflow of migrants (the Relocation Decisions). Those two decisions put in place detailed arrangements for the relocation of, respectively, 40 000 and 120 000 applicants for international protection. Under normal circumstances those Member States would, in accordance with Article 13 of the Dublin III Regulation, be responsible for examining applications for international protection lodged by persons entering the European Union via their territory.  However, both were overwhelmed by the sheer number of potential applicants.

A challenge by Slovakia and Hungary to the legality of one of those Relocation Decisions was unsuccessful. By its judgment of 6 September 2017 (joined cases C-643/15 and C-647/15) the Court of Justice dismissed those actions and stated, in particular, that the relocation in fact contributed to enabling Greece and Italy to deal with the impact of the 2015 migration crisis and was necessary as well as proportionate. After that, in December 2017, the Commission brought actions for failure to fulfil obligations before the Court of Justice against three Member States: Poland (Case C-715/17), Hungary (Case C-718/17) and the Czech Republic (Case C-719/17), and the Court of Justice recently decided that they failed to fulfil their obligations under EU law.

As explained by Eleanor Sharpston at paragraph 234 of her Opinion, the applicable law (the Relocation Decisions) did provide an appropriate mechanism for addressing the complex issues and logistics of relocating very large numbers of applicants for international protection from the frontline Member States to other Member States. The decisions themselves cannot therefore sensibly be described as ‘dysfunctional’. In what was clearly an emergency situation, it was the responsibility of both the frontline Member States (Greece and Italy) and the potential Member States of relocation to make that mechanism work adequately, so that relocation could take place in sufficient numbers to relieve the intolerable pressure on the frontline Member States. “That is what solidarity is about” – stressed the Advocate-General.

These jointed cases highlight specific EU law issues concerning the admissibility of the infringement proceedings. Special emphasis is given to the objections of inadmissibility alleging that the actions are devoid of purpose and inconsistent with the objective of the procedure under Article 258 TFEU – i. e., to put an end to the situation –, since the periods of application of the Relocation Decisions and, consequently, the obligations which they impose, definitively expired in September 2017. The Court of Justice rejected these objections since, at the date at which the period thus fixed in the reasoned opinions expired, the obligations following for the Member States from Relocation Decisions were still in force, otherwise the Member States might take advantage of their own misconduct. A declaration as to the failures to fulfil obligations at issue is still, moreover, of substantive interest, inter alia, as establishing the basis of a responsibility that a Member State can incur as a result of its default, as regards other Member States, the European Union or private parties (paragraph 66 of the Judgment).

And most notably, these jointed cases bring to light the scope and interpretation of Article 72 TFEU, read with Article 4(2) TEU. As explains Eleanor Sharpston at the paragraph 224 of her Opinion, Poland and Hungary have both recalled that Article 4(2) TEU refers to “national identities” and states that “[the EU] shall respect … [Member States’] 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”. To varying degrees, they seek to rely on that provision read in conjunction with Article 72 TFEU as entitling them to disapply the Relocation Decisions in order to ensure social and cultural cohesion, as well as to avoid potential ethnic and religious conflicts – i.e., to disapply the secondary, and therefore lower-ranking, legal obligations arising from the Relocation Decisions, acts adopted on the basis of Article 78(3) TFEU and therefore falling within the scope of the EU law.

However, the Court of Justice decided that, although it is for the Member States to adopt appropriate measures to ensure law and order on their territory and their internal and external security, it does not follow that such measures fall entirely outside the scope of EU law. As the Court has already held, the only articles in which the Treaty expressly provides for derogations applicable in situations which may affect law and order or public security are Articles 36, 45, 52, 65, 72, 346 and 347 TFEU, which deal with exceptional and clearly defined cases. It cannot be inferred that the Treaty contains an inherent general exception excluding all measures taken for reasons of law and order or public security from the scope of EU law. The recognition of the existence of such an exception, regardless of the specific requirements laid down by the Treaty, might impair the binding nature of EU law and its uniform application (paragraph 143 of the Judgment).

It follows that Article 72 TFEU cannot be read in such a way as to confer on Member States the power to depart from the provisions of the Treaty based on no more than reliance on those responsibilities. The scope of the requirements relating to the maintenance of law and order or national security cannot therefore be determined unilaterally by each Member State, without any control by the institutions of the European Union. It is for the Member State which seeks to take advantage of Article 72 TFEU to prove that it is necessary to have recourse to that derogation in order to exercise its responsibilities in terms of the maintenance of law and order and the safeguarding of internal security (paragraphs 145, 146 and 147 of the Judgment).

Indeed, as Eleanor Sharpston explained at paragraphs 238 et. seq. of her Opinion, this case raises fundamental questions about the parameters of the EU legal order and the duties incumbent upon Member States, addressing three important strands of the EU legal order: rule of law, sincere cooperation and solidarity. The first affirms the idea that the Union is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter – the constitutive treaties. The second affirms the idea that the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the constitutive treaties – and, for this reason, each Member State is entitled to expect other Member States to comply with their obligations with due diligence. The third affirms the idea that each Member State must fairly benefit from the European integration, sharing its inherent responsibilities, risks and drawbacks – not only in the financial plan.

So, in an Union based on the rule of law, the principle of sincere cooperation works as a backdrop for the principle of solidarity, emerging the notion of the burden-sharing as the concrete expression of that solidarity.[ii]  The Advocate-General Eleanor Sharpston shown that the Court has, over the years, echoed that call to solidarity, making it clear that the legal principle of solidarity necessarily implies accepting burden-sharing – i. e., it seeks an equitable distribution of the sacrifices arising from unavoidable financial/economic circumstances. And sharing “is not a matter of looking through the Treaties and the secondary legislation to see what one can claim. It also requires one to shoulder collective responsibilities and (yes) burdens to further the common good” (paragraph 253 of her Opinion).

As European citizens, we must ask ourselves what we can do better and what lessons we can draw from this case. In a EU legal-political perspective, the solidarity appears as a value (grounds, Article 2 TEU) and as a purpose (objectives, Article 3 TEU).[iii]  In this sense, “solidarity is the lifeblood of the European project” (paragraph 253 of Eleanor Sharpston’s Opinion). It is not difficult to understand that without appropriate legal mechanisms, shaped by the legal principle of solidarity, the inequality in the burden-sharing between EU Member States – considering the decentralised implementation of EU common policies using asymmetric resources – could threaten the livelihood of the EU integration.  “Through their participation in that project and their citizenship of European Union, Member States and their nationals have obligations as well as benefits, duties as well as rights” (idem). Those who have not realised this idea, have not understood what EU integration means.

[i] 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 (OJ 2015, L 239, p 146) and 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 (OJ 2015, L 248, p.80).

[ii] See Nuno Piçarra, Artigo 80.º TFUE, in Tratado de Lisboa Anotado e Comentado, Manuel Porto/Gonçalo Anastácio (coords.), Almedina, Coimbra, 2012.

[iii] See Rita Lages, Un estudio preliminar sobre la solidaridad como valor y objetivo de la Unión Europea, in América Latina y el Caribe – Unión Europea. El valor de la integración regional y del diálogo entre regiones, ECSA Chile, Santiago de Chile, 2015.

Picture credits: Sinking boat ice by Rodrigo Amorim.

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