The migrant quotas and the EU, an explanation.

On September 6., the Court of Justice of the European union dismissed the case made by Slovakia and Hungary regarding the legality of the refugee quotas, voted for by the EU council in 2015. This means that the quotas are indeed valid law which can be enforced; countries not complying with them can be sanctioned.

Europe has an important number of migratory arrivals that has proven to be stressing the resources of its border countries such as Italy and Greece, whose repeated demands of assistance show the need for a European solution for the migrant crisis.

Taken from an article in the Italian newspaper (Il Corriere della Sera) showing the number of arrivals in the Mediterranean in 2017. Italy is the preferred destination with 79.1% of all arrivals.

The measures were adopted urgently by the EU Council, the institution representing the governments of the 28 Member States. The measures had understandably varying levels of popularity, but some solutions were adopted nonetheless. One of them was the contested rule of quotas.

The rule ( 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). ) represents an exception to the Dublin III regulation in which the first State where a person arrives is the state in which said person must ask for asylum. In practice, if a person arrived in Greece but then travelled to Germany, he or she could only claim Asylum in Greece. This resulted in the grand majority of the demands being treated by Italy and Greece alone, while other States’ staff and resources, often ready to help, idled. Thus, the new rules stated that States are required to take in a specific number of the asylum seekers arriving in Italy and Greece, proportional to their population. The state will then either grant or deny the asylum request, with refusal resulting in the obligation to leave the territory of the EU for the claimant.

The criticism

This solution wasn’t designed for the long term, it’s clear it is an urgent measure adopted in an urgent manner.

The unpopularity of the quotas, especially in the countries supporting this case before the Court, may be explained by the popular opinion of asylum seekers being economic migrants exploiting a legal opening in order to work in Europe. What’s more, these economic migrants assigned to said countries would travel to the more economically attractive Germany and France. The image of the economic migrant coming to Europe for social tourism evokes a feeling of injustice that has occupied an important place in the debate. It is an undeniable administrative challenge. It is up to our asylum law to be designed in such way that it serves justice.

The worry is justified as according to numbers from Eurostat, less than half of the demands for asylum are rejected. The reasons for rejection include the seeker representing a danger for public safety, the country of origin or part of it being regarded as safe, fraud being involved, and others. There are security concerns when dealing with transporting these people and hosting them in one’s country. The position adopted by the States in the Council thus reflects this concern.

On the other side, if the States of the EU share their resources in common to separate the migrants from the refugees, the Italian and Greek States can finally profit from a deserved relief, the migrants can be expatriated more quickly since their cases are dealt with faster, and the humanitarian and security concerns of keeping people in camps on hold for so long are dealt with.

It isn’t a perfect solution and a case can be made for both points, as Europeans we thus put it to the vote:

The urgent measures passed the Council by a qualified majority of 23 to 4 with one abstention. The quotas are mandatory until September 26th, 2017.

The case

There are cases where resistance of the law and civil disobedience is justified. The law isn’t always right nor should anyone consider it to be so. The law is a living instrument that needs to evolve, especially if it allows a sense of injustice that is unacceptable due to a discretionary adoption without a debate. One may contest the legality of a legal text, in other words arguing that it cannot become law as it contradicts the existing law in place.

That is the concern of Slovakia and Hungary as they filled this case.

They have made two main arguments:

The decision by the Council had to be adopted unanimously and with respect to the normal legislative procedure The lack of efficacy of the quotas makes their application useless.

On the first argument, the Court dismissed it on grounds that it was — as pointed out before — an urgent procedure under article 78(3) of the TFEU.

The power has thus been given solely to the Council for reason of efficacy and time. It is no different than a government passing executive orders to deal with a similar crisis. Since time is of the essence, the normal legislative procedure involving a back and forth debate between the Council and the European and national Parliaments doesn’t have to be respected. However, the European Parliament still gets to be consulted for the sake of legitimacy of the decision. The argument that the decision has been adopted illegally is thus void.

Article 16 TEU

The Court reaches the same conclusion with regards to the alleged requirement of unanimity. The Council adopts decisions based on qualified majority as described by the treaties and cannot derogate these rules.

On the second argument, the Court concurs that EU law can be set aside “where it appears manifestly incorrect in the light of the information available to the legislature at the time of the adoption”. The Court however doesn’t see the decision on the quotas to be wrong as the Council correctly examined the effects of such legislation. The ineffectiveness of the quotas resulted from factors the Council couldn’t have foreseen, “including, in particular, the lack of cooperation on the part of certain Member States.”

this bold statement is taken as such in the press release

The Court proceeded to dismiss the case, as the advocate general advised. The quotas are therefore deemed legal, and subject to sanctions should the States not fulfil their obligations.

Resistance or defiance?

The writing of the press release may seem “bold” and hinting at coming sanctions to the countries party to this case. While some may interpret it as a bias of the judges, it should be seen on the contrary as a reasonable warning that the law must be respected, or sanctions will follow.

When a measure has been adopted after a democratic debate and even if one should disagree with it on political grounds, one cannot deny it is the law. Otherwise anyone could escape prosecution by stating that the law is unjust because it punishes them.

At that point, one may use such rhetoric for convincing its electorate to reject the decision and help themselves maintain their stance against all odds. Thankfully, Slovakia’s head of state has agreed to the decision while keeping its stance and criticism of the quotas which is needed in order to find another better solution while the problem is, at least in part, resolved.

Unfortunately, Poland’s PM, while making claims of loyalty to the Union, still refuses to implement the quotas. Hungary’s PM openly criticized the Court but today admitted to respect the law.

Meanwhile the arrivals are slowing down, but the problem still exists. The sanctions will come as the date of September 26th marking the end of the provisional measure approaches. The show of persistent resistance didn’t serve any purpose except to harm relations between the States of the Union, and leads to, on the one hand, the antagonisation of the EU institutions, and lone initiatives of States being shut down on the other.

The foundation of the European Union is based on inter-governmental cooperation. It doesn’t work if States act as if they do not have to respect the legal framework. Stubbornness and threats to derail the entire system, because one’s political opinion isn’t in the lead, cannot guarantee the day-to-day functioning of any democracy or any debate. Resistance is to be employed in the most extreme circumstances, not to escape duties of cooperation and assistance.

A possible solution, since the problem has been proven to be greater than the capacities of each State, may be the delegation of powers in terms of immigration to the Parliament and the establishment of a EU-wide border force and a reinforced administrative cooperation between member States. The laws on asylum do not differ greatly between the 28, as they are all based on the UN convention on refugees.

In the meantime, it is up to the wills and feelings of the governments whether a solution can be even found, let alone adopted and implemented in response to this humanitarian and European challenge.