In the Opinion issued by Eleanor Sharpston, Advocate General of the Court of Justice of the European Union (the Court), Poland, Hungary and the Czech Republic have failed to fulfil their obligation under EU law by refusing to implement the mandatory Relocation Decisions from 2015. The Opinion is not binding but provides a proposition to the Court and is regarded as an influential advice.

In order to respond with solidarity to the increase in arrival of migrants and refugees in the summer of 2015, the Council of the EU adopted two decisions to relocate a total of 160 000 asylum seekers from Greece and Italy to other Member States within two years. Despite the unsuccessful legal challenge by Slovakia and Hungary in front of the Court, Poland, Hungary and the Czech Republic did not implement the decisions. In December 2017, the European Commission brought actions for failure to fulfil legal obligations before the Court against Poland, Hungary and the Czech Republic.

In her Opinion, Eeanor Sharpston firstly rejects the argument of the three countries that complying with the Relocation Decisions would invoke security concerns as Member States preserve the right to refuse individual relocation cases when an applicant is deemed a threat. She highlights that a spirit of trust and cooperation must prevail.

Secondly, the argument by the three countries that the risks inherent in processing large numbers of asylum seekers absolves them from their legal obligation should be rejected. The Relocation Decisions include a mechanism addressing complex issues and logistics, which can lead to a temporary suspension of the legal obligation to implement the Decisions. This means that the unilateral decision to not comply at all to the implementation was not necessary.

Thirdly, the Advocate General points out three important principles of the EU: the ‘rule of law’, the duty of sincere cooperation and the principle of solidarity. According to her, non-compliance with EU legal obligations on the ground of being unwelcome or unpopular among the national population “is a first step towards a breakdown of the orderly and structured society governed by the rule of law”. The duty among Member States of sincere cooperation has to be respected and implemented as other Member States are entitled to expect compliance with due diligence. Lastly, the principle of solidarity might include burden sharing, which needs to be accepted by Member States.

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Photo: (CC) katarina_dzurekova, January 2015

This article appeared in the ECRE Weekly Bulletin . You can subscribe to the Weekly Bulletin here.