UITSPRAAK: Europese Commissie vs Polen, Tjechie, Hongarije over opname asielzoekers

JUDGMENT OF THE COURT (Third Chamber)

2 April 2020 (*)

(Failure of a Member State to fulfil obligations - Decisions (EU) 2015/1523 and (EU) 2015/1601 - Article 5(2) and 5(4) to 5(11) of each of those decisions - Provisional measures in the area of international protection for the benefit of Italy and of Greece - Emergency situation characterised by a sudden influx of third-country nationals into certain Member States - Relocation of those nationals to other Member States - Relocation procedure - Obligation on the Member States to indicate at regular intervals, and at least every three months, the number of applicants for international protection who can be relocated swiftly to their territory - Consequent obligations leading to actual relocation - Interests of the Member States linked to national security and public order - Possibility for a Member State to rely on Article 72 TFEU in order not to apply EU legal acts of a binding nature)

 (...)

139 In a European Union based on the rule of law, acts of the institutions enjoy a presumption of lawfulness. Since Decisions 2015/1523 and 2015/1601 were, as of their adoption, of a binding nature for the Republic of Poland and the Czech Republic, those Member States were required to comply with those acts of EU law and to implement them throughout their two-year period of application. The same applies in respect of Hungary as regards Decision 2015/1601, an act which was of a binding nature for that Member State as of its adoption and throughout its two-year period of application (see, by analogy, judgment of 27 March 2019, Commission v Germany, C-620/16, EU:C:2019:256, paragraph 85).

140 That binding nature of Decisions 2015/1523 and 2015/1601 is not in any way altered by the fact that the lawfulness of Decision 2015/1601 was challenged by Hungary and the Slovak Republic before the Court of Justice, in the context of an action for annulment under Article 263 TFEU, proceedings in which the Republic of Poland intervened in support of those two Member States. None of those Member States has moreover sought a suspension of the implementation of that latter decision or the adoption of interim measures by the Court of Justice under Articles 278 and 279 TFEU, so that those actions for annulment had no suspensive effect, in accordance with Article 278 TFEU (see, by analogy, judgment of 27 March 2019, Commission v Germany, C-620/16, EU:C:2019:256, paragraphs 86 and 87).

141 Besides, by the judgment of 6 September 2017, Slovakia and Hungary v Council (C-643/15 and C-647/15, EU:C:2017:631), the Court dismissed those actions for annulment directed against Decision 2015/1601, thereby confirming the lawfulness of that decision.

142 In the present case, the Republic of Poland and Hungary, while indicating that they do not intend to plead the illegality of Decision 2015/1523 and/or of Decision 2015/1601 in the light of Article 72 TFEU, maintain that that article allowed them to disapply those decisions or one or the other of those decisions.

143 In this connection, according to settled case-law of the Court of Justice, 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 European Union 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 European Union 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 European Union law and its uniform application (see to that effect, inter alia, judgments of 15 December 2009, Commission v Denmark, C-461/05, EU:C:2009:783, paragraph 51, and of 4 March 2010, Commission v Portugal, C-38/06, EU:C:2010:108, paragraph 62 and the case-law cited).

144 In addition, the derogation provided for in Article 72 TFEU must, as is provided in settled case-law, inter alia in respect of the derogations provided for in Articles 346 and 347 TFEU, be interpreted strictly (see, to that effect, judgments of 15 December 2009, Commission v Denmark, C-461/05, EU:C:2009:783, paragraph 52, and of 4 March 2010, Commission v Portugal, C-38/06, EU:C:2010:108, paragraph 63).

145 It follows that, although Article 72 TFEU provides that Title V of the Treaty is not to 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, it 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 (see, by analogy, judgments of 15 December 2009, Commission v Denmark, C-461/05, EU:C:2009:783, paragraph 53, and of 4 March 2010, Commission v Portugal, C-38/06, EU:C:2010:108, paragraph 64).

146 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 (see, to that effect, judgments of 11 June 2015, Zh. and O., C-554/13, EU:C:2015:377, paragraph 48, and of 2 May 2018, K. and H.F. (Right of residence and alleged war crimes), C-331/16 and C-366/16, EU:C:2018:296, paragraph 40 and the case-law cited).

147 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 (see, by analogy, judgments of 15 December 2009, Commission v Denmark, C-461/05, EU:C:2009:783, paragraph 55, and of 4 March 2010, Commission v Portugal, C-38/06, EU:C:2010:108, paragraph 66).

148 It must be observed in that regard, as regards Decision 2015/1601, that the Court in paragraphs 307 to 309 of the judgment of 6 September 2017, Slovakia and Hungary v Council (C-643/15 and C-647/15, EU:C:2017:631), has already rejected the argument, raised by the Republic of Poland as an intervener, that that decision infringes the principle of proportionality, since it does not allow the Member States to effectively carry out their responsibilities to maintain law and order and safeguard internal security under Article 72 TFEU.

149 The Court held that recital 32 of Decision 2015/1601, which is moreover drafted in identical terms to those of recital 26 of Decision 2015/1523, stated, inter alia, that national security and public order should be taken into consideration throughout the relocation procedure, until the transfer of the applicant is implemented, and that, in that context, the applicant’s fundamental rights, including the relevant rules on data protection, must be fully respected (judgment of 6 September 2017, Slovakia and Hungary v Council, C-643/15 and C-647/15, EU:C:2017:631, paragraph 307).

150 The Court also referred to Article 5 of Decision 2015/1601, entitled ‘Relocation procedure’, which provides, in paragraph 7 thereof, whose wording is moreover identical to that of Article 5(7) of Decision 2015/1523, that Member States retain the right to refuse to relocate an applicant for international protection only where there are reasonable grounds for regarding him or her as a danger to their national security or public order or where there are serious reasons for applying the exclusion provisions set out in Articles 12 and 17 of Directive 2011/95 (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C-643/15 and C-647/15, EU:C:2017:631, paragraph 308).

151 It must be added in that regard that Article 5(4) of Decision 2015/1523 and, in identical terms, Article 5(4) of Decision 2015/1601 provide that a Member State of relocation may decide not to approve the relocation of an applicant for international protection identified by the Hellenic Republic or the Italian Republic for the purposes of his or her relocation only if there are reasonable grounds as referred to in Article 5(7), that is to say, reasonable grounds for regarding the applicant in question as a danger to their national security or public order.

152 The manner in which the mechanism in Article 5 of each of those decisions functions indeed reflects the principles, reiterated in paragraphs 143 to 147 of the present judgment, according to which Article 72 TFEU is, as a derogatory provision, to be interpreted strictly and, accordingly, does not confer on Member States the power to depart from the provisions of European Union law based on no more than reliance on the interests linked to the maintenance of law and order and the safeguarding of internal security, but requires them to prove that it is necessary to have recourse to that derogation in order to exercise their responsibilities on those matters.

153 Therefore, the Council, in the adoption of Decisions 2015/1523 and 2015/1601, duly took into account the exercise of the responsibilities incumbent on Member States under Article 72 TFEU by rendering that exercise, so far as concerns the two stages of the relocation procedure subsequent to that of the making of commitments, subject to the specific conditions laid down in Article 5(4) and (7) of each of those decisions.

154 In that regard, with regard to the ‘serious reasons’ for applying the ‘exclusion’ provisions set out in Articles 12 and 17 of Directive 2011/95, reasons which in accordance with Article 5(7) of each of Decisions 2015/1523 and 2015/1601 allowed a Member State to refuse to relocate an applicant for international protection, it follows from the case-law of the Court that the competent authority of the Member State concerned cannot rely on the exclusion clause provided for in Article 12(2)(b) of Directive 2011/95 and Article 17(1)(b) of that directive, which concern the commission by the applicant for international protection of a ‘serious crime’, until it has undertaken, for each individual case, an assessment of the specific facts within its knowledge. That is done with a view to determining whether there are serious reasons for taking the view that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for the status applied for, come within the scope of that particular ground for exclusion, the assessment of the seriousness of the crime in question requiring a full investigation into all the circumstances of the individual case concerned (judgment of 13 September 2018, Ahmed, C-369/17, EU:C:2018:713, points 48, 55 and 58).

155 In addition, the Court stated that, while the grounds for exclusion in Articles 12 and 17 of Directive 2011/95 are structured around the concept of ‘serious crime’, the scope of the ground for exclusion from subsidiary protection laid down by Article 17(1)(b) of Directive 2011/95 is broader than that of the ground for exclusion from refugee status laid down by Article 1(F)(b) of the Geneva Convention and Article 12(2)(b) of Directive 2011/95. While the ground for exclusion from refugee status laid down by that provision refers to a serious non-political crime committed outside the country of refuge prior to admission of the person concerned as a refugee, the ground for exclusion from subsidiary protection laid down by Article 17(1)(b) of Directive 2011/95 refers more generally to a serious crime and is therefore limited neither territorially nor temporally, or as to the nature of the crimes at issue (judgment of 13 September 2018, Ahmed, C-369/17, EU:C:2018:713, points 46 and 47).

156 As to the so-called ‘reasonable’ grounds for regarding the applicant for international protection as a ‘danger to national security or public order’ in the territory of the Member State of relocation in question, which allow the latter under Article 5(4) of each of Decisions 2015/1523 and 2015/1601 not to approve the relocation of an applicant for international protection identified by the Hellenic Republic or the Italian Republic and, under Article 5(7) of each of those decisions, to refuse to relocate an applicant for international protection, those grounds, since they must be ‘reasonable’ and not ‘serious’ and do not necessarily relate to a serious crime already committed or a serious non-political crime committed outside the country of refuge before the person concerned was admitted as a refugee but only require evidence of a ‘danger to national security or public order’, clearly leave a wider margin of discretion to the Member States of relocation than the serious reasons for applying the exclusion provisions contained in Articles 12 and 17 of Directive 2011/95.

157 Furthermore, it should be noted that the wording of Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 differs, in particular, from that of Article 27(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), which requires that the personal conduct of the individual concerned must represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ of the Member State concerned. Consequently, the concept of ‘danger to … national security or public order’ within the meaning of the abovementioned provisions of Decisions 2015/1523 and 2015/1601 must be interpreted more broadly than it is in the case-law in relation to persons enjoying the right of free of movement. That concept may cover inter alia potential threats to national security or public order (see, by analogy, judgments of 4 April 2017, Fahimian, C-544/15, EU:C:2017:255, paragraph 40, and of 12 December 2019, E.P. (Threat to public policy), C-380/18, EU:C:2019:1071, paragraphs 29 and 32).

158 A wide discretion must therefore be accorded to the competent authorities of the Member States of relocation when they determine whether a third-country national to be relocated is a threat to their national security or public order (see, by analogy, judgment of 12 December 2019, E.P. (Threat to public policy), C-380/18, EU:C:2019:1071, paragraph 37).

159 That said, as with the serious reasons for applying the provisions on exclusion in Articles 12 and 17 of Directive 2011/95, the reasonable grounds for regarding an applicant for international protection as a danger to national security or public order can be invoked by the authorities of the Member State of relocation only if there is consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question actually or potentially represents such a danger (see, by analogy, judgment of 12 December 2019, E.P. (Threat to public policy), C-380/18, EU:C:2019:1071, paragraph 49), and not until those authorities, in respect of each applicant whose relocation is proposed, have made an assessment of the facts within their knowledge with a view to determining whether, in the light of an overall examination of all the circumstances of the individual case concerned, such reasonable grounds exist.

160 It follows that the wording set out, in the context of the relocation procedure, in Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 authorised the competent authorities of the Member State of relocation to rely on serious reasons or reasonable grounds relating to the maintenance of their national security or public order only following a case-by-case investigation of the danger actually or potentially represented by the applicant for international protection concerned for those interests. Thus, as the Advocate General also in essence observed in point 223 of her Opinion, it precluded a Member State from peremptorily invoking Article 72 TFEU in that procedure for the sole purposes of general prevention and without establishing any direct relationship with a particular case, in order to justify suspending the implementation of or even a ceasing to implement its obligations under Decision 2015/1523 and/or Decision 2015/1601.

161 That explains why Article 5(2) of each of Decisions 2015/1523 and 2015/1601, which concerned the first stage of the relocation procedure and set out the obligation on the Member States of relocation to indicate, at least every three months, the number of applicants for international protection who could be relocated swiftly to their territory, rendered that obligation unconditional and did not provide for the possibility for those Member States to rely upon the existence of a danger for their national security or public order to justify the non-application of that provision. The absence of identification, at that initial stage of that procedure, of the applicants to be relocated in the Member State concerned rendered impossible any individualised assessment of the risk which they might have represented for the public order or national security of that State.

162 As regards, further, the difficulties allegedly encountered by the Republic of Poland in guaranteeing national security or public order in the stages of the relocation procedure subsequent to its commitments made on 16 December 2016, those difficulties applied to the beginning of the two-year period of application of Decisions 2015/1523 and 2015/1601.

163 In this connection, as has already been pointed out in paragraph 95 above, the relocation of a large number of persons, such as that provided for by Decisions 2015/1523 and 2015/1601, is an unprecedented and complex operation which requires a certain amount of preparation and implementation time, in particular as regards coordination between the authorities of the Member States, before it has any tangible effects.

164 Furthermore, if, as the Republic of Poland and the Czech Republic maintain, the mechanism provided for in Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 was ineffective, in particular because of a lack of cooperation on the part of the Italian authorities, such practical difficulties do not appear to be inherent in that mechanism and must, should they arise, be resolved in the spirit of cooperation and mutual trust between the authorities of the Member States that are beneficiaries of relocation and those of the Member States of relocation. That spirit of cooperation and mutual trust must prevail when the relocation procedure provided for in Article 5 of each of those decisions is implemented (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C-643/15 and C-647/15, EU:C:2017:631, paragraph 309).

165 In this connection, it is apparent from the reports on relocation and resettlement that, although at the beginning of the period of application of Decisions 2015/1523 and 2015/1601 the number of applicants for international protection who were relocated was relatively low, due to the fact that, inter alia, certain Member States refused in a considerable number of cases to relocate applicants for international protection identified by the Hellenic Republic or the Italian Republic on account, in particular, of the danger allegedly represented by those applicants for their public order or their security, that problem gradually became less significant and relocations were carried out at a steadier rhythm.

166 As is shown by the eighth, eleventh and twelfth reports on relocation and resettlement, the Member States of relocation were in fact able, in some circumstances, to perform additional security checks, even systematically, through, inter alia, interviews and, with respect to relocations from Italy, had the opportunity from 1 December 2016 to request assistance from the European Union Agency for Law Enforcement Cooperation (Europol) for the purpose of carrying out those interviews, with the objective of preventing those checks from continuing to unduly slow down the relocation process.

167 In addition, as regards relocations from Greece, the Member States of relocation had the opportunity, from the point at which Decisions 2015/1523 and 2015/1601 entered into force, to require that security interviews were to be carried out by their own police officers prior to relocation.

168 Those measures were additional to the mechanism already provided for in Article 5 of each of Decisions 2015/1523 and 2015/1601 for ensuring the identification of the persons in question, in particular in Article 5(5) and 5(11), which required that fingerprints be taken before and after transfer of the persons in question and that those fingerprints be transmitted to the Central System of Eurodac.

169 It follows that the Republic of Poland and Hungary cannot rely on Article 72 TFEU to justify their refusal to implement all the relocation obligations imposed on them by Article 5(2) and (4) to (11) of Decision 2015/1523 and/or by Article 5(2) and (4) to (11) of Decision 2015/1601.

170 As the Advocate General also essentially observed, in points 226 and 227 of her Opinion, the arguments derived from a reading of Article 72 TFEU in conjunction with Article 4(2) TEU are not such as to call into question that finding. There is nothing to indicate that effectively safeguarding the essential State functions to which the latter provision refers, such as that of protecting national security, could not be carried out other than by disapplying Decisions 2015/1523 and 2015/1601.

171 On the contrary, the mechanism provided for in Article 5(4) and (7) of each of those decisions, including in its specific application as it developed in practice during the periods of application of those decisions, left the Member States of relocation genuine opportunities for protecting their interests relating to public order and internal security in the examination of the individual situation of each applicant for international protection whose relocation was proposed, without prejudicing the objective of those decisions to ensure the effective and swift relocation of a significant number of applicants clearly in need of international protection in order to alleviate the considerable pressure on the Greek and Italian asylum systems.

172 Consequently, the pleas in defence derived by the Republic of Poland and Hungary from Article 72 TFEU, read in conjunction with Article 4(2) TEU, must be rejected.

Commission v Poland (Emergency situation characterised by a sudden influx of third-country nationals into certain Member States - Judgment) [2020] EUECJ C-715/17 (02 April 2020)
URL: http://www.bailii.org/eu/cases/EUECJ/2020/C71517.html
Cite as: EU:C:2020:257, [2020] EUECJ C-715/17, ECLI:EU:C:2020:257

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