At the height of the so-called “migration crisis”, the European Commission, backed by the Council and the European Parliament, decided to relocate asylum-seekers from the overburdened asylum systems in Greece and Italy to other Member States. Confronted with the failures of the Dublin system, this new mandatory relocation scheme aimed to impose burden-sharing at the EU level. However, the Visegrád Group, and Poland and Hungary in particular, strongly opposed such a relocation system, which they saw as being unjustly forced upon them through the use of Qualified Majority Voting (QMV) - something unforeseen on migration issues. As a result, several bitter legal battles ensued, opposing these Member States to the European Commission. Although ultimately the Commission managed to legally enforce the relocation schemes at a politically-ripe time, its long-term consequences to European unity risk eroding the precarious consensus that existed on asylum issues in the EU, and further radicalising the Visegrád Group on these issues.
by Isabella Leroy
In order to understand the European Council’s decision to implement a relocation system for asylum-seekers1 coming to the European Union (EU), it is necessary to understand the context of the 2015 “migration crisis.” On the eve of the summit for the Agenda on Migration in April 2015, a shipwreck in the Mediterranean claimed the lives of over 800 migrants who had been trying to reach the coast of the EU2. This shocked the European Commission into urgently considering alternatives to the current Common European Asylum System (CEAS). At the same time, the relocation system was also created in the context of enhanced concerns over national security, as a result of the Paris 2015 terrorist attacks and more generally of a move towards the securitization of migration3. European leaders had to face the failing of the Dublin system, incapable to manage the abrupt inflow of asylum-seekers to Europe in spring and summer 2015.
Under the Dublin Regulation, asylum-seekers arriving as irregular migrants to the EU are to apply for asylum in the Member State where they first arrive4. This over-burdened Southern European Member States (in particular Greece and Italy) who found themselves incapable of managing the migratory flows within their borders. As a result, coping strategies emerged in these countries. They for example consciously avoided fingerprinting some of the asylum-seekers arriving at their borders, to circumvent the ‘responsible Member State’ Dublin Regulation.
Aware of these difficulties and of the failures of the Dublin Regulation, and perhaps seeing the shipwreck as a window of opportunity for policy-making, Jean-Claude Juncker proposed a solution which would not fundamentally overhaul the Dublin system but rather support it ad-hoc: relocation quotas for asylum-seekers.
The relocation scheme proposed by the European Commission planned to transfer asylum-seekers from over-burdened Member States, such as Italy and Greece, to other EU countries5. Clearly, this measure went against the normal procedures of the Dublin Regulation but now nevertheless exists alongside it. This temporary emergency relocation scheme consists in two separate two-year long Decisions taken by the Council on the basis of Article 78(3) TFEU6: the first set out the voluntary relocation of 40,000 persons7. It was then followed on the 22 September 2015 by an Extraordinary Justice and Home Affairs Council Meeting which led to a second Council Decision8, which set out the mandatory relocation of 120,000 persons. In both cases, the quotas of asylum-seekers to be taken in by each Member State was measured according to a specific distribution key, taking into account population, GDP, average number of asylum applications and unemployment rate9. Only asylum-seekers from countries of origin with a high (75%) overall EU-wide recognition rate of asylum qualified.
From the moment it was announced, the mandatory relocation scheme faced swift opposition from the Visegrád Group (or V4)10. Considering the scheme to be an encroachment on their sovereignty, the Visegrád Group had proposed “effective solidarity” as an alternative to relocation quotas, which essentially suggests to continue efforts to externalise EU borders and extend solidarity with countries of transit by providing development aid11. The European Parliament rapporteur on the migration and asylum file dismissed such a proposal as “stupidity beyond all imagination.”12
The V4 viewed the relocation schemes as undue interference of Brussels in the realm of their protected sovereignty, which may explain why, despite their numerous cultural and political differences, they were united in opposing the relocation quotas13.
While not necessarily opposed to immigration per se, the V4 believes cultural preference should apply in the field of immigration, and therefore favours migrants from Eastern Europe over migrants from the Middle East and Africa, which formed the bulk of asylum-seekers in 2015. Scholars have tried to identify the reason for what appears to be a paradox: while these countries benefited from solidarity with refugees in the past, they are unwilling to extend this same solidarity to other refugees today. Some posit that the very fact that few of these non-European refugees go to V4 countries which explains the widespread fear of citizens to welcome them14. Others argue that it is sensitivity to public opinion which leads national governments in these countries to take a hard stance on migration15. Whatever the reason might be, or how justified they are, charismatic leaders from the V4 firmly refused that any mandatory “refugee quotas” be applied to them, even if they would have ultimately benefited from them (such as Hungary for the second relocation scheme)16.
In particular the influence of Viktor Orbán has been crucial in the positioning of the V4 group. A year after the Council Decision, the Hungarian government organised a referendum, asking its population to vote for or against the relocation quotas with a heavily biased question17. This was preceded by an intense public relations campaign calling people to vote against the quotas and warning them of Brussels’ influence18. Orbán himself clearly stated his position on the issue: “the quotas would redraw the ethnic, cultural, and religious map of Hungary and of Europe. The Hungarian government takes the view that neither the EU, nor Brussels, nor the leaders of Europe have the authority to do this; in fact, there is no European body or agency of any kind that has been vested with such authority.”19 Some scholars argue that the extreme Hungarian position, characterised by majority identitarian populism20, has influenced the hard stance of the V4 generally21.
In the lead-up to the extraordinary and informal ministerial meeting deciding the mandatory refugee quotas, EU officials attempted to find a consensus over the relocation schemes without having to resort to the “nuclear option” of QMV22. Angela Merkel, Chancellor of Germany, and Donald Tusk, President of the European Council, agreed over a phone conversation that a summit would be necessary to take a final decision over the issue of relocations23.
In the end, however, the Council Decision on the relocation quotas was taken through QMV rather than unanimity: all Member States voted for the mandatory relocation scheme aside from Slovakia, Hungary, Romania and the Czech Republic, which voted against; and Finland, which abstained. It has even been suggested that the decision to move to voting just a couple of hours into the summit shows that from the beginning the plan had been to take the decision based on QMV24. This is relevant, because although QMV is the default mode of decision-making in the Council, there is an “(informal) norm of consensus-seeking in the Justice and Home Affairs Council”25 and on migration issues in particular, because they are deemed politically-sensitive in that they touch upon Member States’ sovereignty. The fact that this “norm” was breached is highly significant. The Visegrád Group argues that Decisions on EU asylum should be taken at the European Council, where unanimity is required26, rather than ministerial meetings27.
The use of QMV was therefore highly contentious for several reasons. Firstly, it highlights that decision-making at the EU level regarding migration has become highly contested, since unanimity is no longer an option28. This shatters the idea of consensus which is generally seen as central to Decisions taken at ministerial meetings. Secondly, it could be argued that it corners opposition countries by pushing them to take more radical positions of defiance, as it was the case for Hungary and the decision to call a national referendum on the issue. Finally, it may cause the opposition to move from the political level (within the Council) to the implementation level of the Decision, since it is seen as lacking legitimacy. Indeed, this is what happened: many of the V4 countries took only a small share of asylum-seekers or outright refused to fulfil their obligation, not taking in a single asylum-seeker.
Having lost their battle in the Council, some of the V4 members attempted to bring the case to the Court of Justice of the EU (CJEU). In December 2015, Slovakia and Hungary filed a case requesting the annulment of both Council Decisions, on the grounds that Article 78(3) TFEU was not the proper legal basis for such Council Decisions, which were not provisional, that the Council had breached procedural requirements, that it had not acted unanimously and that it had breached the principles of proportionality, legal certainty and normative clarity29. Following the opinion of Advocate-General Bot, the Court dismissed the annulment request in September 2017, arguing that the Council Decisions were non-legislative acts and therefore did respect the procedure laid out in the TFEU, that the two-year temporal scope makes the Decisions temporary, and that the Council was not required to vote unanimously because the Commission did not object the amendments made by the Council. Finally, the Court considered that legally, the Decision was an appropriate and necessary response to the migration crisis.
As a result of the non-compliance of Poland30, Hungary and the Czech Republic with the mandatory relocation quotas, the Commission initiated a treaty infringement procedure against these countries in June 2017. Since Poland and Hungary both continued to refuse to take in any refugees under the scheme, the Commission then moved to launching Article 5 infringement procedures with the CJEU for establishment of failure to fulfil an obligation. The Czech Republic was exempted from this sanction because it had, in the meanwhile, taken in 12 refugees from the expected 2691.
While the case is still pending with the CJEU, there is a risk in the Commission’s choice to pursue legal action to solve such a politically-charged issue. Usually, calls for burden-sharing rely on moral persuasion rather than legal force. In any case, even if the CJEU finds that Poland and Hungary have indeed failed their obligations, these states may prefer to pay a fine rather than to effectively relocated refugees, since it could otherwise be seen as a sign of weakness on part of their electorate31.
While the Commission seems to have had the last word on the issue of relocations, it remains to be seen whether this victory was worth the price paid. Indeed, for the results the relocation actually achieved, it could be argued that the costs of imposing it were disproportionally high, and this for several reasons.
Firstly, although the V4 did not successfully dodge its obligation to relocate, the political tensions surrounding the Council Decision contributed to the failure of the Commission’s proposal for a permanent relocation scheme32. In a similar vein, negotiations on a recast of the Dublin Regulation will likely go through an unanimity vote rather than QMV33. With Brexit looming ever closer, some researchers expect that with the reconfiguration of the population weight, the Visegrad Group’s voting power in the Council will increase, with Poland seeing the biggest increase (+27.8% relative change in voting power)34. Given the fracture between Poland and Hungary and the rest of the Member States, this increased power is likely to have important repercussions and further complicate Council Decisions on migration, including those decided through QMV.
Secondly, the line of fracture that was created as a result of the politically-charged relocation quotas may also have an impact on the upcoming European parliamentary elections. Orbán has been able to mobilise Eurosceptic sentiments by using the relocation scheme as an example that the EU is looking to impose permanent mandatory relocation quotas on Member States. While this, amongst other comments, has led him to be suspended from the European People’s Party (EPP), the propaganda he uses has resonated with public opinion35.
Thirdly, even countries which voted for the relocation scheme did not fully fulfil their obligations (aside from Malta). The short-term and partial success of the temporary relocation schemes may have come at the price of political disunity and the impossibility to imagine any permanent mechanisms for solidarity beyond the Dublin system. Some commentators have argued that the tensions surrounding the relocation schemes reflects the power play between Western European states (especially Germany and Central and Eastern European states), and undermines European harmonisation on migration issues by favouring national responses to what is an European issue36.
In a politically-polarising move, Donald Tusk himself has recognised that imposing the scheme was a mistake, as it was “highly divisive”, “turned out to be ineffective”, and has received “disproportionate attention in light of its impact on the ground.”37 This step towards the V4 group could be considered important in light of the growing divide on migration.
Ivan Krastev, a Bulgarian political scientist, has argued that the tensions over the mandatory quotas has highlighted the incapacity of Western European countries to fully appreciate the weight of history and the spectre of the USSR on Central and Eastern European countries, especially in the way this may impact resistance to projects which are seen as threatening to sovereignty. According to Krastev, this blind spot is very dangerous: “in reality, all the crises that Europe faces today [the eurozone crisis, Brexit, the Ukraine crisis] divide the Union one way or another […] But it is the east-west divide that reemerged after the refugee crisis that threatens the future survival of the Union itself.”38 Given the Commission’s response to the resistance on relocation quotas, Krastev believes that “what will increase the likelihood of the European Union surviving is the spirit of compromise. Making room for conciliation should be the major priority for those who care for the union.”39 It remains to be seen whether the EU will be able to repair the fragile consensus that existed before the relocation quotas.
Références bibliographiques
