JUDGMENT OF THE COURT (Third Chamber)
(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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