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Jenő Czuczai, Disintegration and the EU Migration Crisis? – legal divergences, current legal challenges and those lying ahead in:

Jörn Axel Kämmerer, Markus Kotzur, Jacques Ziller (Ed.)

Integration und Desintegration in Europa | Integration and Desintegration in Europe | Intégration et Désintégration en Europe, page 327 - 354

1. Edition 2019, ISBN print: 978-3-8487-6131-9, ISBN online: 978-3-7489-0222-5, https://doi.org/10.5771/9783748902225-327

Series: Societas Iuris Publici Europaei (SIPE), vol. 13

Bibliographic information
Disintegration and the EU Migration Crisis? – legal divergences, current legal challenges and those lying ahead Jenő Czuczai* Introduction The EU migration crisis today and its legal aspects are very sensitive, controver‐ sial and complex topics for research. Moreover, it is a moving target, constantly evolving, which is day by day getting to become more and more challenging for the EU to find proper solutions, even in legal terms, taking into account the pre‐ vailing divisions among Member States and the latest developments of the crisis. Exactly because of this comprehensive nature of the chosen topic, it is advisable first of all to set out the limitations of the scope of this contribution – that is, the questions I cannot touch upon – before turning to a clear outline of the main ele‐ ments of what this chapter will deal with concretely. In brief, for obvious rea‐ sons, I cannot develop a detailed analysis of the EU asylum and migration law aspects, since partly it will be explored by another colleague in this book, but also partly due to the fact that the legislative deliberations of the Common Euro‐ pean Asylum System (CEAS) reform package are still underway within the EU1, so it is simply a bit premature to make any assessment on these new (not yet adopted) legislative acts; nevertheless, it is also inevitable that some references should be made to the reform package in my contribution concerning the future legal challenges lying ahead in the EU as regards the topic of migration. Simi‐ larly, it is not my task to address the often very interesting political aspects of the EU migration crisis since 2015 or the very delicate question of the UN Global Compact Response to the Migration Crisis2, since that would, indeed, exceed the I. * The author is Legal Adviser at the Council of the EU (currently seconded to GIP/Cabinet) and visiting Professor of the College of Europe in Brugge (BE). All views, thoughts expressed in this paper are purely personal and attributable only to the author. It constitutes under no way a formal opinion or position neither of the Council of the EU nor of the European Council, as well as nor of their Legal Service. The manuscript was practically closed down on 1 September 2018. 1 See in more detail, for instance, the progress reports on the 'Reform of EU asylum rules' at http://www.consilium.europa.eu/en/policies/ceas-reform/ as well as about the legislative package itself a good description in Council doc 12826/18. 2 See, nonetheless, as further reading, for example: European Commission contribution on the European Migration Agenda to the European Council summit, held in Brussels on 14-15 December 2018, dated 4 December 2018, it can be loaded down at https://ec.europa.eu/com mission/publications/european-agenda-migration-commission-contribution-europeancouncil-13-14-december_en. 327 purposes of this contribution. No possibility either to give a solid analysis of the EU-Turkey deal of March 2016 on cooperating as regards the refugee crisis or concerning the other international law concerns of the current EU migration cri‐ sis.3 All this means that I would like rather to concentrate on the following primari‐ ly legal questions: The main causes of legal divergence in the EU In this respect I shall analyse the following main legal issues: (i) the controver‐ sial notion and concept of the principle of solidarity, based on shared responsibil‐ ities among Member States (including the different views about the possible ty‐ pology of solidarity, for instance, with regard to the notion of 'flexible solidarity', of 'effective solidarity' or of the so-called 'functional solidarity' etc.); (ii) the dif‐ ferent arguments concerning the protection of sovereignty and national (constitu‐ tional) identity will be explored using as an example the most recent constitu‐ tional law developments in Hungary, since those experiences are now practically being followed by the V4 countries, Austria, Italy and to some extent by certain political parties in Germany; (iii) it is also inevitable to address at least in a sum‐ mary the competence-competence issues in terms of combating illegal immigra‐ tion and international terrorism by considering the migration dossier as a national security protection issue by some Member States, since "..national security re‐ mains the sole responsibility of each Member State." (Article 4(2) TEU); (iv) I shall examine whether legally there is a fundamental right to asylum in the EU (Article 18 of the EU Charter of Fundamental Rights), since some Member States do not accept it; (v) in closing I shall address at least briefly the question of potentially using the possibility of the existing differentiated integration forms as a solution for the EU migration crisis and its legal question-marks. Current legal challenges at EU level Having addressed the legal divergences and their roots, I will turn to analyse the current legal challenges, with special regard to the possible disintegration scenar‐ ios resulting from the non-respect for EU common values – e.g. principles of sol‐ I.1. I.2. 3 As for some reading suggestions one can, however, turn, for example, to Violeta Moreno- Lax, "Solidarity's reach: Meaning, Dimensions, and Implications for EU (External) Asylum Policy" (forthcoming), Maastricht Journal of European and Comparative Law at https://ww w.unhcr.org/59632a3c7.pdf. 'Disintegration and the EU migration crisis? 328 idarity and of the rule of law, raising the non-compliance problems with the ap‐ plicable EU common rules, adopted validly and jointly in the given EU policyfields (e.g. concerning the 'Schengen' acquis, the 'Dublin' Regulations, the com‐ mon asylum rules, the common reception conditions’ requirements or the Gene‐ va Convention etc.) and thus the issue of the non-respect of Article 4(3) TEU (principle of sincere loyal cooperation). Future legal challenges In the last part of this contribution, the future legal challenges will be summed up with special focus on the relevant jurisprudence of the Court, as well as the key legal concerns raised by the most recent legal developments in some of the socalled key Member States, primarily concerned by the EU migration crisis. The magnitude of the crisis and of the questions raised by it – some statistics It goes without saying that the legal challenges around the EU migration crisis constitute some of the most difficult challenges for the EU today. The magnitude of the problem can also be seen if one just looks at the relevant statistics. In the so-called Eastern Mediterranean routes, the circa 50,000 illegal immigrants in 2014 had by August-September 2015 risen unexpectedly and suddenly to a huge inflow of irregular migrants, meaning that by the end of October 2015 between 900,000 and 950,000 illegal immigrants had arrived at the border of Hungary alone, certainly causing a lot of problems and difficulties. At the same time, the so-called Central (Southern) and Western Mediterranean routes registered a year‐ ly average of circa 150,000 to 200,000 illegal immigrants, with the biggest bur‐ den falling on Italy – with slightly increasing tendencies in 2016. It is also to be noted that only Germany had admitted circa 1.2 million illegal immigrants by the end of 2017, which has created an extraordinary burden on that Member State alone, especially because the overwhelming majority of those immigrants want‐ ed to go further from Hungary, via Austria, to their final destination Germany as the most preferred target country. Statistics also show that by mid-2018, illegal immigration along the Eastern Mediterranean routes has practically dropped by 95-97%, clearly following the EU-Turkey deal, reached in March 2016, since that substantially reduced the burdens in Greece, taking into account that most of the asylum-seekers and refugees, particularly from Syria, have had to be returned to Turkey by the competent authorities of Greece. Nonetheless, since the end of I.3. I.4. Jenő Czuczai 329 2017 some increases can now be seen again along the Western Balkan routes. In any case, in July 2018 the biggest burden was still on Italy, with circa 600,000 refugees and asylum-seekers having been registered there, despite all the efforts since 2015, with the result that over 640,000 lives have been saved in rescue-op‐ erations at sea. The biggest problem at the moment, however, nonetheless still remains with relocations, though the number is positively increasing, including also the resettlement programmes. For example, around 96% of the eligible mi‐ grants from Greece alone have been relocated, while around 40,000 from Italy over the last couple of years.4 This is exactly why the legal aspects of the EU migration crisis and their pre‐ cise, objective and solid legal analysis are particularly important today for the whole EU. Since the crisis is not yet over, there are still calls for working out possible legal solutions and/or solid legal options to be further considered by the relevant EU decision-makers with the ultimate aim of uniting the Member States as regards this problem and somehow solving it at the end of the day, thus over‐ coming this very dividing, and sometimes politically poisonous, difficult dossier of the EU since 2015. This contribution, within the above-explored limits, sets out to make an effort in this direction by giving an objective quasi-inventory of where we stand legally at the moment in this respect. Setting the scene: EU legal sources of the legal divergence and the main legal arguments pro and contra As mentioned above, the story started in the summer of 2015, when unexpected‐ ly dramatic and huge illegal immigration and irregular border-crossing inflows occurred between Hungary and Serbia, with shocking statistics. This unprece‐ dented crisis showed that the EU was practically not prepared to efficiently ad‐ dress such a mass illegal immigration emergency situation at its external borders. Close to one million illegal immigrants had to be at once registered and treated somehow according to the EU Schengen acquis and the Dublin regime. The only possibility was to relocate (redistribute) the registered illegal immigrants, who were seeking either international protection or even asylum (that is, the recogni‐ tion of refugee status). Two Council Decisions were adopted between May and September 2015 in order to somehow address, albeit temporarily and by means II. 4 See more about all these statistics, for example, in the European Commission Note ahead of the June European Council 2018 on 'Managing migration in all its aspects' at https://ec.euro pa.eu/commission/publications/commission-contribution-european-council-migration_en with the latest updates in documents at https://www.consilium.europa.eu/en/policies/migrat ory-pressures. 'Disintegration and the EU migration crisis? 330 of interim measures, the emergency situations in the EU (also in Italy and in Greece, not just in Hungary) as described in more detail in the recitals of Council Decision 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (which was the second, but from the view-point of this contribution the really important in‐ terim measure)5. As is known, the legality of this later legal act of the Council was challenged in the end of 2015 by Slovakia and Hungary (supported by Poland) before the CJEU,6 exposing a lot of political, but also legal tensions and divisions among Member States in many aspects in relation to the applied legal measures in solving the crisis, with more and more pressing legal uncertainties as well. For exactly these reasons, the Commission has already submitted a compre‐ hensive legislative package (the so-called CEAS reform package) to the co-legis‐ lators in 20167 with the aim of further developing a fully-fledged EU common asylum policy (which is still missing), as well as establishing a permanent relo‐ cation mechanism to avoid all those difficulties which the EU faced over the last three to four years in connection with the EU migration crisis. The main EU law sources of legal divergences It is reasonable and logical, in my view, to start my analytical assessments on all the above-mentioned issues by recalling and making concrete references to all those legal sources under EU law which will be the bases for my legal reasoning later on in this contribution. Thus: 1. Article 2 TEU on the common values of the EU provides: "The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons, belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail." [emphasis added] II.1. 5 See: OJ 2015 L 248, p. 80, in particular recitals (11)-(14). 6 See: Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v. Council of the Euro‐ pean Union, ECLI:EU:C:2017:631. 7 See in more detail 'Commission Note Ahead of the June European Council 2018', adopted on 20 June 2018, fn. 4, especially on pp. 5-6. Jenő Czuczai 331 2. Article 78(1) TFEU stipulates: "The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third country national requiring interna‐ tional protection and ensuring compliance with the principle of non-refoule‐ ment. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties." [emphasis added] 3. The crisis triggered, for the first time, the application of Article 78(3) TFEU, which states the following: "In the event of one or more Member States being confronted by an emergency situation characterised by a sud‐ den inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Par‐ liament."8 [emphasis added] 4. Together, also for the first time, with the application of Article 80 TFEU on the principle of solidarity and shared responsibility in terms of the EU Com‐ mon Immigration, Asylum and Border Protection policies' chapter, which reads as follows: " The policies of the Union set out in this Chapter (namely Chapter 2 of Title V on 'Policies on Border Checks, Asylum and Immigration') and their implementa‐ tion shall be governed by the principle of solidarity and fair sharing of responsi‐ bilities, including its financial implications, between the Member States. When‐ ever necessary, the Union acts adopted pursuant to this Chapter shall contain ap‐ propriate measures to give effect to this principle." [emphasis added] 5. In the legal reasoning of the different positions among the concerned Mem‐ ber States, Article 4(2) TEU concerning the sovereignty and national iden‐ tity protection clauses will be also relevant, which stipulates the following: " The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, politi‐ cal and constitutional, inclusive of regional and local self-government. It shall respect their essential state functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State." [emphasis added] 6. As well as Article 4(3) TEU concerning the principle of sincere loyal coop‐ eration, which reads as follows: "Pursuant to the principle of sincere coop‐ eration, the Union and the Member States shall, in full mutual respect, assist 8 The famous 'Relocation mechanism of 120.000 applicants being in needs for international protection', containing the mentioned compulsory quotas' technique, was exactly based on this legal basis in 2015, see the already referred Council Decision 2015/1601 of 22 Septem‐ ber 2015, OJ L 248, p. 80. 'Disintegration and the EU migration crisis? 332 each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measures, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives." [emphasis added] In the course of the following legal analysis, I will always and regularly come back to these basic legal sources of EU law, since, in my view, these provisions are the main pillars of the relevant EU legal framework for addressing the con‐ tinuing EU migration crisis. The main legal arguments pro and contra of the four causes of legal divergence As I have indicated in my introduction, I would like to submit and to analyse hereafter in more detail four different and independent legal causes of the legal divergence among EU Member States concerning their policy and legal ap‐ proaches towards the roots and possible threats of, and thus also the possible so‐ lutions to illegal immigration into the EU. Those causes are the following: – the different understandings of the notion of the principle of solidarity and shared responsibility of the Member States, or of the possible typology of solidarity, including the form of 'flexible solidarity', 'effective solidarity' or of 'functional solidarity', and finally of the possible legal applicability of the principle of solidarity in solving the EU migration crisis; – the different understandings of the relevance of Article 4(2) TEU as a possi‐ ble excuse for not complying with legal obligations as regards the EU migra‐ tion crisis; – the competence-competence debate in the EU migration issues and whether protection of external borders falls under national security; – finally, whether or not the right to asylum is a fundamental right under EU law. II.2. Jenő Czuczai 333 The different understandings of the notion of the principle of solidarity in the context of the migration crisis One of the most striking differences between Member States was generated by the disagreement among them concerning the notion of the principle of solidarity and shared responsibility. Of course, it would go much beyond the constraints of this contribution to explore the legal relevance of the principle of solidarity in the EU legal order and its historical development. Indeed, there is no need for that, since I have already done so in two earlier publications of mine.9 This gives me the possibility now just to highlight some key elements of my research here which are relevant to a better understanding of the real legal foundations and rea‐ sons for this crucial legal divergence. The principle of solidarity is a difficult notion, since there is no clear defini‐ tion of it even today. Regarded historically, however, it emerges as the driving principle for the European integration idea already from the very beginning, ap‐ pearing first in the famous Schuman Declaration of 9 May 195010 and thereafter in the Preamble of the first founding Treaty establishing the European Coal and Steel Community, signed in Paris on 18 April 1951, up to the Rome Treaty of 1957 on the EEC.11 It is to be noted, however, that among the normative provi‐ sions nothing was stipulated about the principle of solidarity until the Treaty of II.2.1. 9 See in more detail Jenő Czuczai, "The principle of solidarity in the EU legal order - some practical examples after Lisbon" in 'The EU as a Global Actor - Bridging Legal Theory and Practice' (Eds: Jenő Czuczai / F. Naert), 2017 Leiden-Boston, Brill-Nijhoff, pp. 145-165, as well as Jenő Czuczai, "The principle of 'Pour l'Europe' in the heritage of Robert Schuman in the light of the last 60 years' development of the European integration process", Pécs, 2019, JURA No 2 (forthcoming). 10 It is instructive to recall even today what Robert Schuman said about the core of the 'pour l'Europe' principle, which he had found so important in the whole European integration idea: "Après deux guerres mondiales, nous avons fini par reconnaȋtre que la meilleure ga‐ rantie pour la nation ne réside plus dans son splendide isolation, ni dans sa force propre, quelle que soit sa puissance, mais dans la solidarité des nations qui sont guidées par un même esprit et qui acceptent des tâches communes dans intérêt commun. … La loi de la solidarité des peuples s'impose à la conscience contemporaine. Nous nous sentons soli‐ daires les uns des autres dans la préservation de la paix, dans la défense contre l'agression, dans la lutte contre la misère, dans le respect des traités, dans la sauvegarde de la justice et de la dignité humaine. Pour un Européen, qui réfléchit, il n'est plus possible de se réjouir avec une malice machiavélique de l'infortune du voisin(..) tous sont unis pour le meilleur et pour le pire dans une commune destinée. ", see Robert Schuman: 'Pour l'Europe', Nagel Paris, 1963, pp. 30, 38,43, 129. 11 In the Paris Treaty of 1951 establishing the ECSC it was underlined in the Preamble that: "Conscious of the fact that Europe can be built only by concrete actions, creating a real solidarity, and by the establishment of common bases for economic development." (emphasis added). Since the original language of the Paris Treaty was French, see this English translation in the official publication of the High Authority of the ECSC, issued in London, Fanfare Press Ltd, 1951, p.7. This Treaty still imposes as general obligation on all its founding Institutions and Member States, where appropriate, that they shall act “in the common (general) interest of the Community” (e.g. Articles 3, 49, 53, 55-56 of the Treaty 'Disintegration and the EU migration crisis? 334 Maastricht. It was also clear that in this first historical period of the development of the principle of solidarity, this principle was applied synonymously with the principle of loyal cooperation or with the principle of 'pour l' Europe' (closely linked to the European identity), which latter concept was clearly invented by the early jurisprudence of the Court of the European Communities since the late 1960 s and especially in the 1970 s and 1980 s. Just like the historical develop‐ ment of the notion of human rights protection in the European Communities, the principle of solidarity was practically first developed and explored in more con‐ textual terms by the ECJ via its more and more developing jurisprudence on the common (or later internal) market, especially concerning the state aid acquis, or the compliance requirements with special rules on restrictions and prohibitions on oversupply or overproduction either of milk products or of iron and steel products, in particular in crisis and emergency market situations, etc.12 The prin‐ ciple of solidarity was also applied by the Court during this period in relation to imposing exceptional compulsory quotas in such crisis situations, but always just in terms of products, never with regard to human beings. The key reasoning from the Court was that when there was a crisis, all Member States (even those, not concerned) had to act jointly in the interests of the Communities, based on the principle of solidarity and sharing the responsibility, they had to contribute and to help in overcoming the given crisis and could not simply follow their own selfish national interests. The Court's case law of this period also laid down that all Member States should also respect the commonly adopted rules and should fully implement them, thereby linking the loyal cooperation principle to the prin‐ ciple of solidarity for the idea of Europe. There was, however, especially from the 1990 s onwards, a break in the case law development of the Luxembourg Court: partly because too many cases had been registered pleading on the legal basis of the possible relevance of the princi‐ ple of solidarity; but also due to the fact that the Court had come to understand on the ECSC). Similarly, in the Treaty establishing the European Economic Community, signed on 25 March 1957 in Rome, we find the following in the Preamble: ‘Intending to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the UN." (emphasis added). In French it reads: “Entendant confirmer la soli‐ darity qui lie l’Europe et les pays d’outre mers, et désirant assurer le développement de leur prospérité, conformément aux principes de la Charte des Nations unies.‘, or in German it provides that : ‘In der Absicht, die Verbundenheit Europas mit den überseeis‐ chen Ländern zu bekräftigen, und in dem Wunsch, entsprechend den Grundsätzen der Satzung der Vereinten Nationen den Wohlstand der überseeischen Ländern zu fördern.’, see in ‘Traités de Rome’, Communautés européennes, édition synoptique dans les quatre langues officielles, 1962, 2ème édition, APE, Bruxelles, p.16. 12 See in more detail a very detailed description of the relevant ECJ case law development, for example, in Esin Küҫük, "Solidarity in EU law – An Elusive Political Statement or a Legal Principle with substance?", 23 Maastricht Journal of European and Comparative Law 6 (2016) pp. 965-983, in particular § 4, on pp. 977 et seq. Jenő Czuczai 335 that the principle of solidarity was practically a "politically loaded concept",13 based heavily on political considerations and thus capable of generating divi‐ sions rather than unity among Member States, as each understood different things under this notion, for instance, as regards the principle of subsidiarity. That is why, albeit step by step, the Court stopped basing its rulings on the pri‐ mary application or substantive reasoning of the principle of solidarity. It needs still to be noted that from the late 1980’s and especially from the 1990’s on‐ wards, references to the principle of solidarity, in parallel with the Court's ju‐ risprudence, also started to come up in EU secondary legislation, especially in the field of EU cohesion policies.14 The big turn-over, however, can be noticed with the adoption of the Maastricht Treaty in 1992, which act de lege lata intro‐ duced for the first time concrete references at EU primary law level to the princi‐ ple of solidarity in three separate EU policy areas: namely Common Foreign and Security Policy, the Economic and Monetary Union and in the field of cohesion policy.15 Today, the Treaty of Lisbon, after so many crises and emergencies in Europe since early 2000, including terrorist attacks, the global financial and economic crisis, the banking crisis, natural catastrophes or most recently the migration cri‐ sis, contains more than 15 concrete references to the principle of solidarity just in EU primary law,16 which have since 2010 been the practical driving forces, the real guarantees and the important guiding strengths of the proper and effective application and implementation of the EU laws and policies in force. One of these Lisbon Treaty provisions specifically addresses now the rele‐ vance of solidarity in the EU common migration and asylum policies under Arti‐ cle 80 TFEU. The practical problem after September 2015, however, was that there was no established case law on this provision. That is why at the beginning of the EU migration crisis it was not clear how the principle of solidarity and shared responsibility of the Member States should be understood in practice, es‐ pecially when there is an unexpected emergency situation, namely a sudden and unprecedented inflow of illegal immigrants in the territory of the EU and a huge amount of irregular border crossings at the external border of the EU, raising se‐ 13 The expression is from Esin Küҫük, see her very interesting article, fn. 12, p. 983. In terms of how the Court has become more and more cautious and even hesitant from the late 1990 s to apply the principle of solidarity see in more detail also Esin Küҫük‘s case law analysis in the same contribution, fn. 12, pp. 981 et seq. 14 See further Jenő Czuczai on the principle of solidarity, fn. 9 (2017), especially pp. 154 et seq. 15 See in more detail Jenő Czuczai on the heritage of Robert Schuman, fn. 9 (2019 forth‐ coming). 16 See in more detail, Jenő Czuczai on the principle of solidarity. in fn. 9 (2017) pp. 146 et seq., including the questions about the possible typology-making concerning the solidarity principle. 'Disintegration and the EU migration crisis? 336 rious security concerns, as occurred in mid-2015. This lack of settled case law was the real basis of the legal divergence and of the legal insecurity within the EU until 6 September 2017. The European Court of Justice in the Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v. Council of the European Union17 gave, however, a very precise and elegant interpretation of Article 80 TFEU, which clearly clarified the scope and the nature of this provision on the principle of solidarity in the context of the application of the Treaty Chapter 2 of Title V. TFEU on the EU migration, asylum and external border-checks policies.18 In this case, the applicants Slovakia and Hungary (supported by Poland) chal‐ lenged the legality of the above-mentioned Council Decision on the temporary relocation mechanism with compulsory quotas, adopted on 22 September 2015 (the so-called second interim measure for addressing the unprecedented migra‐ tion crisis in 2015). From the view-point of this contribution, it is interesting to note that the applicants raised a lot of legal pleas supporting their annulment ac‐ tions in this litigation. Hungary alone submitted 10 very detailed pleas in law, mainly procedural, but also substantive such as: challenging the legal appropri‐ ateness of the use of Article 78(3) TFEU as a legal basis for the adoption of the Council's provisional measure; or recalling that while the European Council had decided in June 2015 that any measure concerning the emergency situation caused by the sudden influx of irregular migrants could be adopted only by unan‐ imity, the challenged Council act was adopted in September 2015 by a mere qualified majority, which violated Article 68 TFEU; or that the action for annul‐ ment was invalid against Hungary, since that Member State should have been in fact a beneficiary of the questioned protective provisional measure of the Coun‐ cil; or that there was also a violation of the proportionality principle, etc..19 How‐ ever, the applicants neither made reference to the argument of the applicability of the principle of solidarity, nor of the defence based on Article 4(2) TEU regard‐ ing the protection of national sovereignty and of national (constitutional) iden‐ tity. The Council as defendant had, however, raised the point that its challenged legal act complied just with Article 80 TFEU, that is with the principle of soli‐ darity and shared responsibility. As is known, the CJEU (Grand Chamber) finally dismissed all the actions for annulment in this case in their entirety. 17 The final decision was handed down by the CJEU (Grand Chamber) on 6 September 2017, see the judgment in ECLI:EU:C:2017:631 (hereinafter referred to as: "The Compulsory Quotas ruling"). 18 For a very detailed analysis of the facts, the main legal arguments of the parties and the Court's reasoning for its final decision, handed down in this case, see, for example, Bruno de Witte and Evanglia (Lilian) Tsourdi, "Confrontation relocation – The Court of Justice endorses the emergency scheme for compulsory relocation of asylum-seekers within the EU: Slovak Republic and Hungary v. Council", CML Rev, 55 (2018), pp. 1457-1494. 19 See in more detail Bruno de Witte, et al., fn. 18, pp. 1467 et seq. Jenő Czuczai 337 I have no possibility here to give a detailed assessment on this landmark rul‐ ing of the CJEU.20 I can only highlight four very valuable outcomes which are crucial, in my view, in order to see how the Court tried to reconcile the prevail‐ ing legal divergences among the Member States concerned with the aim of giv‐ ing clear-cut legal guidance in many of the contested legal issues, including the delicate issue of the legal relevance of the principle of solidarity and shared re‐ sponsibility in solving the migration crisis within the EU and what the Member States' obligations are in that process. Those four points are the following: (i) the Court clarified the powers of the European Council in EU law-making and its obvious limits; (ii) it interpreted, for the first time, Article 80 TFEU; (iii) it excluded clearly the use of the different forms of differentiated integration in solving the migration crisis,21 including, for example, the possible applicability of an enhanced cooperation or of any inter‐ governmental solution, not involving all the Member States; (iv) and finally, the Court also clarified the question of the existence of the right to asylum as a fun‐ damental right under EU law. Let us see now very briefly the main messages from the Court for each of these four elements (emphasis always added): With regard to the powers of the European Council In this respect the Court stressed that: "European Council conclusions cannot be a ground on which the Court may annul the contested decision […]" (para 145.) "[...] as the rules regarding the manner in which the EU institutions of the Union arrive at their decisions are laid down in the Treaties and are not within the dis‐ cretion […] of the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties.". Thus, "The principle of institutional balance prevents the Euro‐ pean Council from altering that voting rule by imposing on the Council, by means of conclusions adopted pursuant to Article 68 TFEU, a rule requiring a unanimous vote." As well as that the Commission's prerogative of right to initia‐ A. 20 See it rather, for example, in more detail also in Silvia Bartolini, "Recent Developments of the CJEU's activities in 2017", European Public Law 24, No 1/2018, pp. 11-42, espe‐ cially on the Joined Cases C-643/15 and 647/15 Slovakia and Hungary v. Council see pp. 21-27. 21 What those forms for differentiated integration are in principle see as a good analysis, for example, Jaap W. de Zwaan, "Stability and Differentiation in the European Union-Search for a Balance", Eleven-International Publishing, The Hague, 2017, in particular pp. 15. et seq., or Bruno de Witte, "An undivided Union? Differentiated Integration in post-Brexit times", CML Rev., 55 (2018), pp. 227-250, especially from pp. 234 et seq. 'Disintegration and the EU migration crisis? 338 tive cannot be made conditional on any conclusions adopted by the European Council, based on Article 68 TFEU (paras 145-149.).22 The first ever interpretation of Article 80 TFEU on solidarity In this context, the CJEU specifically pointed out (as regards the necessity of the contested Relocation Council Decision) that: "The Council, when adopted the contested decision, was in fact required, as is stated in recital 2 of the decision, to give effect to the principle of solidarity and fair sharing of responsibility, in‐ cluding its financial implications, between the Member States, which applies, un‐ der Article 80 TFEU, when the EU common policy on asylum is implemented." (para 252.).23 The possible use of any form of the differentiated integration Since fair distribution of relocated applicants among all the Member States is a fundamental element of solidarity and shared responsibility, for the above question, the Court still underlined: "[…] faced with Hungary's refusal to benefit from the relocation mechanism as the Commission had proposed, the Council cannot be criticised, from the point of view of the principle of proportionality, for having concluded on the basis of principle of solidarity and fair sharing of re‐ sponsibility laid down in Article 80 TFEU that Hungary had to be allocated relo‐ cation quotas in the same way as all the other Member States that were not bene‐ ficiaries of the relocation mechanism" (paras 292-293).24 This means, in my view, argumentum a contrario, that the Court practically excluded the possible use of any form of differentiated integration in the context of solving the migra‐ tion crisis, such as enhanced cooperation or concluding an intergovernmental agreement outside the Treaties, since it made clear that in law all the Member States should somehow contribute to the common solution, reached at EU level, not just a certain number of them. B. C. 22 See in more detail, Bruno de Witte, et al., fn. 18, pp. 1481 et seq. 23 See in more detail Bruno de Witte, et al., fn. 18, pp. 1476 et seq. 24 The same judicial reasoning was still applied in para 304 of the judgment (concerning the need for any linguistic or other ties with the concerned Member State of relocation); as well as in para 329. (as regards the determination criteria of the Member State of reloca‐ tion, which shall be also based on the principle of solidarity and fair shared responsibility among all Member States under Article 80 TFEU); see in more detail Bruno de Witte et al., fn. 18, pp. 1469 et seq. as well as pp. 1492 et seq. on the overall assessment of the ruling. Jenő Czuczai 339 As regards the right to asylum as fundamental right On this issue, the Court still explored finally that the contested 'Relocation deci‐ sion': "[…] is a crisis-management measure, taken at EU level, whose purpose is to ensure that the fundamental right to asylum, laid down in Article 18 of the Charter, can be exercised properly, in accordance with the Geneva Convention" (para 343). Article 4(2) TEU and the protection of national (constitutional) identity The second main cause for legal divergence among Member States concerns the interpretation of Article 4(2) TEU on the sovereignty safeguard clause and the protection of national (constitutional) identity. In this respect, since 2015 the most interesting developments have taken place in the Hungarian constitutional law and practice. Consequently, it is worth analysing it a bit more closely, be‐ cause those experiences could serve today as a model in terms of the legal ap‐ proaches of many other Member States that are like-minded in terms of the is‐ sues around illegal immigration: not just the other V4 countries, but also Austria, Italy and even to some extent Germany (e.g. the legal relevance of the protection of the constitutional identity). For this reason, this contribution will now devote more attention on a factual and purely legal basis to the above-mentioned Mem‐ ber State' s (so Hungary's) most recent legal developments in its public law do‐ mains. As is known, after the migration crisis broke out in mid-2015, Hungary intro‐ duced a system of a complex set of protective measures against illegal migration. First, the so-called physical protection against the uncontrolled mass influx of ir‐ regular migrants into the country, in the form of a fence on the Southern border of the country with Serbia. It was always stressed that this fence also protects in practical terms the external borders of the whole EU and thus all its Member States, in particular those that formed the so-called main target countries (final destinations) of the irregular immigrants: Austria, Germany, Sweden, etc. The second step was the introduction of a complex legal protections’ regime in Hun‐ gary against illegal immigration: first, at statutory level, by amending several na‐ tional laws (e.g. on asylum procedures, or on the reception conditions, or on the criminal aspects of illegal immigration, etc.); second, at constitutional level, by amending the Hungarian Fundamental Law of 2012.25 D. II.2.2. 25 See about all these historical developments in more detail, for example, Gábor Halmai, "The Hungarian Constitutional Court and Constitutional identity", VerfBlog, 2017/1/10, https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutional-identity/. 'Disintegration and the EU migration crisis? 340 The key question here was that the Hungarian Government wanted to declare even in the country's basic law that it is the exclusive competence of Hungary to decide on who can enter the territory of the country, since this question cannot be decided in Brussels within the EU institutions. For this purpose, a referendum was held in October 2016, which was, however, invalid because of the lack of the necessary participation of citizens required by the Hungarian law in order to have a valid referendum. Nonetheless, close to 3.3 million people had voted in favour of the Government's proposal, which was considered by the Government as a strong people's support for their general anti-immigration policy. That is why, already in November 2016, the Government submitted a proposal to amend the Fundamental Law of Hungary with the above-mentioned aim, but there was no 2/3 majority in place in Parliament, so the constitutional amendment ultimate‐ ly failed to pass. It was, however, the Hungarian Constitutional Court, which practically “helped” the Government in December 2016, when it examined the constitutionality, following an abstract interpretation request of the Fundamental Law from the Ombudsman, submitted in relation to the so-called "compulsory quotas" decisions of the Council of the EU analysed above. This very important Constitutional Court ruling from 2016 introduced in Hungary the doctrine of "protection of constitutional identity" and laid down in more detail its main con‐ stitutional foundations. Finally, following the huge electoral victory of the ruling parties in Hungary, obtaining again a 2/3 majority in the Hungarian Parliament in the last general elections on 8 April 2018, the Government decided as one of its first parliamentary acts to resubmit the so-called VIIth Amendment proposal to the country's Fundamental Law (the adoption of which failed in the end of 2016) in order to incorporate the necessary provisions in the country's highest level of the 'law of the land', with the additional aim of blocking any "imposed" obliga‐ tions, aiming at forcing the unwanted mixture of the Hungarian nation with for‐ eign irregular immigrants. Now, certainly within the constraints of this analysis, just very briefly, I would like to sum up the main elements of these two very important public law mea‐ sures from Budapest, first the 2016 land-mark ruling of the Hungarian Constitu‐ tional Court and its impacts on the Hungarian public legal thinking and secondly the so-called VIIth Constitutional Amendment to the Hungarian Fundamental Law. Jenő Czuczai 341 The Hungarian Constitutional Court's most recent judicial practice Here, I am in a comfortable position, since there is already a huge body of litera‐ ture with regard to the Decision No 22/2016 (XII.5) AB of the Hungarian Con‐ stitutional Court on the interpretation of the so-called 'Europe clause' of the country's Fundamental law concerning the EU relocation mechanism-related Council acts and the illegal migration issues, handed down in Budapest on 30 November 2016, which clarified the constitutional obstacles and conditions of any possible EU law-making in this field, including the Hungarian version of the so-called "ultra vires" doctrine, as well as the reinforced protection doctrine of the Hungarian constitutional self-identity. 26 This allows me, therefore, on this occasion just to highlight in bullet-points the most important passages from the ruling which might have an important im‐ pact on having or formulating a clearer picture about where the constitutional di‐ vergences lie between the so-called V4 and the other mentioned like-minded Member States' legal approaches in this respect and those remaining Member States, which see no constitutional problems in terms of fully implementing all those rules which have been commonly adopted so far on solving the EU migra‐ tion crisis. Those essential elements of the 2016 ruling, which, in my view, speak for themselves, are the following: 1. The operative part of the ruling reads as follows: "The Constitutional Court may examine upon a relevant motion – in the course of exercising its com‐ petences- whether the joint exercise of powers under Article E (2) of the Fundamental Law would violate human dignity, another fundamental right, II.2.2.1. 26 This ruling on the abstract interpretation of Article E paragraph (2) of the Fundamental Law of Hungary is practically about whether the Constitutional Court might examine upon a relevant motion- in the course of exercising its competences- the constitutionality of acts resulting from the joint exercise by Hungary of certain powers, stemming from the HU's Fundamental Law, together with other EU Member States via the institutions of the EU in terms of that whether those acts violate or not the human dignity or the essential content of other fundamental rights, the sovereignty of Hungary or its constitutional identity based the country's historical constitution. The judgement can be loaded down at http://huncon-c ourt.hu/uploads/sites/3/2017/11/en_22_2016.pdf. See an interesting assessment on this ruling in a comparative legal context, with special regard to the influence of the German Federal Constitutional Court's relevant jurisprudence on the Hungarian Constitutional Court in this respect, for example, in Attila Vincze, "Ist die Rechtsübernahme gefährlich? Zur Rechtswirklichkeit und Tragfähigkeit des Konzepts eines Verfassungsgerichtsverbun‐ des anhand des Beispiels der Verfassungsidentität", Zeitschrift für öffentliches Recht 73 (2018), pp. 193-214, especially from pp. 200 et seq. As a critical assessment on this ruling, see, for example, Gábor Halmai, "Abuse of Constitutional Identity – The Hungarian Con‐ stitutional Court on interpretation of Article E(2) of the Fundamental Law", Review of Central and Eastern European Law, 43 (2018), No. 1, pp. 23-42. 'Disintegration and the EU migration crisis? 342 the sovereignty of Hungary or its identity based on the country's historical constitution." Thus the Court established its competence in this respect [em‐ phasis added]; 2. Point (44) of the ruling's reasoning states: "The German Federal Constitu‐ tional Court always examines whether legal instruments of the European in‐ stitutions and bodies keep within the boundaries of the sovereign powers ac‐ corded to them by way of conferral, whilst adhering to the principle of sub‐ sidiarity under Community and Union law….Furthermore, the Federal Con‐ stitutional Court reviews whether the inviolable core content of constitu‐ tional identity of the Basic Law pursuant to Article 23(1) third sentence in conjunction with Article 79(3) of the Basic Law is respected by way of these acts of the Union. The exercise of this review power, which is rooted in constitutional law, follows the principle of the Basic Law's openness to‐ wards European Law, and it therefore does not contradict the principle of sincere cooperation. Without this review competence, along with progress‐ ing European integration, the fundamental political and constitutional struc‐ tures of sovereign Member States, which are recognised by Article 4(2) first sentence of the Lisbon Treaty, cannot be safeguarded in any other way. In this respect, constitutional identity and guaranteeing it under Union law go hand in hand." (BverfG, 2 BvE 2/08 of 30 June 2009)." Thus the Hungarian Constitutional Court refers extensively to the related German Federal Con‐ stitutional Court's jurisprudence [emphasis added]; 3. Point (49) of the ruling's reasoning still underlines: "As demonstrated in the opinion of the German Federal Constitutional Court, detailed in the socalled Solange-decisions, due to the institutional reforms, the Charter of Fundamental Rights and the CJEU, the EU, in most cases, can grant the same level of protection for fundamental rights as the level secured by the national constitutions, but at least a protection of adequate level. (Cp. the so-called Solange II Decision of the German Constitutional Court (1987) 3 CMLR 225.). Consequently, the review competence reserved for the Consti‐ tutional Court must be applied with due account to the obligation of cooper‐ ation, by paying respect to the enforcement of EU law as far as possible (See the German Constitutional Court's Decision No. 2 BvR 2735/14 of 15 December 2015). The Constitutional Court, however, cannot set aside the ultima ratio protection of human dignity and the essential content of funda‐ mental rights, and it must grant that the joint exercising of competences un‐ der Article E (2) of the Fundamental Law would not result in violating hu‐ man dignity or the essential content of fundamental rights." But the Hungar‐ ian Constitutional Court wanted to go even beyond this [emphasis added]; Jenő Czuczai 343 4. Point (67) of the ruling's reasoning finally adds: "The Constitutional Court establishes that the constitutional self-identity of Hungary is a fundamental value not created by the Fundamental Law- it is merely acknowledged by the Fundamental Law. Consequently, constitutional identity cannot be waived by way of an international treaty- Hungary can only be deprived of its constitutional identity through the final termination of its sovereignty, its independent statehood. Therefore, the protection of constitutional identity shall remain the duty of the Constitutional Court as long as Hungary is a sovereign State. Accordingly, sovereignty and constitutional identity have several common points, thus their control should be performed with due re‐ gard to each other in specific cases." This is the new doctrine of the Hungar‐ ian "maintained" sovereignty concept, based on the absolute joint protection requirement of the Hungarian sovereignty and the constitutional self-iden‐ tity [emphasis added].27 The so-called VIIth Amendment to the Hungarian Fundamental Law This very important amendment to the Hungarian Fundamental Law was adopted on 20 June 2018.28 This means that here I can only sum it up textually, from the view-point of this contribution, but it would be, indeed, premature to add any deeper assess‐ ment of it, since for that purpose much more time is needed in order to see its concrete practical implementation. II.2.2.2. 27 I have no possibility here to enter into the details about how this land-mark ruling of the Hungarian Constitutional Court has been implemented so far in Hungary in the last two years, but I would like to note that since the end of 2016 at least already in one important judgment the Budapest Constitutional Court based its decision on this so-called "presump‐ tion of the maintained sovereignty" doctrine, as the Court calls it in its case law, and that was the well-known Decision No 9/2018 (VII.9) AB on the compliance of the so-called UPC Agreement (Agreement on a Unified Patent Court in an EU context) with the Hun‐ garian Fundamental Law, which constitutional practically ex-ante review was relevant for the potential ratification of this Agreement by Hungary. See in more detail the reasoning of this ruling at https://hunconcourt.hu/uploads/sites/3/2018/7/dec-on-unified-patent-court. pdf., especially from paras 30 et seq. 28 The VIIth constitutional Amendment to the HU Fundamental Law entered into force on 28 June 2018 (Hungarian Official Journal No. 97, pp. 4714-4717 – available only the unoffi‐ cial English translation of the related Bill with No T/332, Budapest, May 2018, The Gov‐ ernment of Hungary), except for its Article 7 (on the new interpretation rule binding on the Courts), which entered into force later, on 1st January 2019. As an overall assessment of the travaux préparatoires and the context of this important constitutional amendment of the Hungarian Fundamental Law see, for example, Gábor Halmai, "Illiberal Constitutional‐ ism? The Hungarian Constitution in a European Perspective", available at https://me.eui.eu /gabor-halmai/wp-content/uploads/sites/385/2018/09/illiberal-constitutionalism_WHK17_ Halmai-3.pdf. 'Disintegration and the EU migration crisis? 344 In my view, the following parts from these brand new constitutional changes in Hungary suffice in order to see the main cornerstones of this new trend, com‐ plementing the already existing well-known legal approaches in the context of fighting against illegal immigration in the EU: – in the so-called 'National Avowal', for example, the sentence of "We honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary's statehood and the unity of the nation", which shall be supplemented with the following newly-added sentence now: "We hold that it is a fundamental obligation of the state to protect our self-identity rooted in our historical constitution." [emphasis added] – the General Reasoning of the VIIth Constitutional Amendment in connection with the migration crisis stresses inter alia: "The mass immigration affecting Europe and the activity of the pro-immigration forces are threatening the na‐ tional sovereignty of Hungary. Brussels intends to introduce a mandatory, au‐ tomatic quota-based distribution of migrants residing in and coming to Euro‐ pe, which endangers the safety of our country and would permanently change the population and the culture of Hungary […] [therefore the main aim of the VIIth […] Amendment] is to protect national sovereignty and to prohibit the settlement of alien populations in Hungary […]"29 [emphasis added]; – Article (E) section (2) of the Hungarian Fundamental Law (the so-called 'Eu‐ rope clause') shall be replaced with the following new provision in bold, ac‐ cording to the VIIth Amendment: " (2) Based on an international treaty, Hungary may exercise its certain powers jointly with the other Member States via the institutions of the EU to the extent necessary for the exercise of its rights deriving from the founding treaties and for the performance of its obligations, in order to take part in the EU as a Mem‐ ber State. The exercise of its powers pursuant to this Section shall be consistent with the fundamental rights and freedoms laid down in the Fundamental Law, 29 It is to be noted that the Detailed Reasoning of the VIIth constitutional Amendment of the Hungarian Fundamental Law makes concrete reference to Article 4(2) TEU and the pro‐ tection obligation by the EU of national identity (NB: the Lisbon Treaty itself does not use the term of 'constitutional identity'). On this issue, see in more detail, for example: Mary Dobbs, "Sovereignty, Article 4(2) TEU and the Respect of National identities: Swinging the balance of power in favour of Member States?", YEL, Vol. 33, No. 1 (2014), pp. 298-334 and the referred case law and relevant literature therein. See further in terms of the most recent German Constitutional Court's jurisprudence on this, for example, Julian Nowag, "EU law, constitutional identity, and human rights dignity: A toxic mix? Bun‐ desverfassungsgericht: Mr R." - Case note on the order of the German Federal Constitu‐ tional Court, handed down in Case 2 BvR-2735/14 on 15 December 2015 relating to the EAW Council Framework Decision, CML Rev, 53/2016, pp. 1441-1451. For a more com‐ parative legal assessment on the topic, see, for instance, Julien Sterck, "Sameness and selfhood: The efficiency of constitutional identities in EU law", European Law Journal, 24 (2018), No. 4-5, pp. 281-296. Jenő Czuczai 345 and shall not limit Hungary's inalienable right of disposal related to its territor‐ ial integrity, population, form of government and governmental organisa‐ tion." 30[emphasis added]; – the famous interpretative provisions of the Hungarian Fundamental law under Article R (3) should also be mentioned, which stipulate that: "the provisions of the Fundamental Law shall be interpreted in accordance with their pur‐ poses, the National Avowal contained therein and the achievements of our historical constitution" and which shall be supplemented now by a new para‐ graph (4) in bold as follows:" (4) All bodies of the State shall protect the con‐ stitutional self-identity of Hungary." [emphasis added]; – it is still to be noted that Article XIV Sections (1)-(3) of the Fundamental Law was replaced with the following revised provisions concerning the rules on immigration, asylum, and extradition: " (1) No alien population shall be settled in Hungary. Any foreign citizen, ex‐ cluding persons having the right of free movement and residence, shall be al‐ lowed to live in the territory of Hungary on the basis of his or her application individually evaluated by the Hungarian authorities […]"[emphasis added]; – finally the above-mentioned Article XIV of the Fundamental Law was further supplemented still with the following new Section (4) in bold:31 "(4) Hungary shall, upon request, grant asylum to non-Hungarian citizens being persecuted or having a well-founded fear of persecution in their native country or in the country of their usual residence for reasons of race, nationality, mem‐ bership of a particular social group, religious or political belief, if they do not receive protection from their country of origin or from any other country. Any non-Hungarian citizen arriving to the territory of Hungary through a country where he or she was not exposed to persecution or a direct risk of persecution shall not be entitled to asylum." [emphasis added] Taking into account that all these elements of the legal argumentation (or legal defence) of Hungary (and to a certain extent also of some other already referred Member States) are currently under deliberation by the CJEU in concrete pend‐ 30 Inspirations were taken from the so-called Solange decisions of the German Federal Con‐ stitutional Court, especially from its so-called Solange III. ruling of 15 December 2015 (2 BvR 2735/14), as explored in the 22/2016 (XII.5) AB Decision above, and making also reference to Article I (1) of the Fundamental Law, which provides that: "The inviolable and inalienable fundamental rights of man shall be respected. It shall be the primary obli‐ gation of the State to protect these rights." as well as Article B (1), which says that: "Hun‐ gary shall be an independent, democratic rule-of-law state.". The so-called 'Detailed Rea‐ soning' of the subject Constitutional amending proposal in its Article 2 specifically links this amendment to Article 4(2) TEU. 31 In the 'Detailed Reasoning' for this new provision, the Constitutional power refers to Arti‐ cle 31(1) of the Geneva Convention as justification. 'Disintegration and the EU migration crisis? 346 ing cases,32 and given as well that these constitutional changes are very recent, I would refrain from any further assessment on these new developments in the Hungarian constitutional and public law. It is to be noted, however, that the final judgement of the CJEU on the above-noted arguments in relation to the protec‐ tion of national (constitutional) identity will have, undoubtedly, a very important impact on the whole future of how the current EU migration crisis and all its as‐ sociated legal tensions and challenges can or rather should be solved in practical terms. Competence-competence debate and the protection of national security33 From the last three to four years’ narrative of the different legal arguments against a common European solution on the migration crisis as proposed by the Commission and supported by the overwhelming majority of the Member States,34 the most delicate certainly relates to the protection of national sovereignty and national security. This legal reasoning touches, however, not just II.2.3. 32 See, for example, the infringement case, initiated by the Commission against Hungary, Poland and the Czech Republic for non-compliance with their legal obligations on reloca‐ tion as established by the already above- referred Council Decision No 1601/2015, pend‐ ing Case C-718/2017 (European Commission Press Release IP/17/5002); or the infringe‐ ment proceedings also brought before the CJEU by the Commission against Hungary con‐ cerning the new law on the financing restrictions of the NGOs' activities, Case C-78/2018 (European Commission Press Release IP/17/5003); or those Commission-initiated other infringement proceedings against Hungary, in which it is stated that the Hungarian national laws on asylum-seekers (e.g. the ones on access to asylum procedures, on detention condi‐ tions of asylum-seekers in transit zones, on rules in terms of holding someone in a transit center at the border and on returns, or that new one criminalizing activities in support of asylum and residence applications etc.) or even the most recent constitutional amendment on introducing a new non-admissibility ground for asylum applications, thus practically curtailing the right to asylum do not comply with neither the relevant EU asylum sec‐ ondary legislations (e.g. The Returns Directive, the Reception Conditions Directive, the Asylum Procedures Directive, the Asylum Qualifications Directive, nor with the free movement-related EU laws and certainly violate, in the view of the Commission, many rules of the EU Charter of Fundamental Rights (see: Commission Press Releases IP/ 18/4522). As regards the Hungarian repeated defense arguments in all these pending in‐ fringement proceedings, including the protection of national (constitutional) identity or the protection of national sovereignty see more at http:// www.kormany.hu/en/ministry-of-jus‐ tice/speeches. or in Anita Rozália Nagy-Nádasdi / Barbara Kőhalmi, "Hungarian Consti‐ tutional Identity and the ECJ Decision on Refugee Quota", Verfblog, 2017/9/08, https://ver fassungsblog.de/hungarian-constitutional-identity-and-the-ecj-decision-on-refugee-quota/. 33 See as a very comprehensive analysis on this issue, touching upon all its aspects (including the migration-generated possible legal conflicts) in Bruno de Witte, "Exclusive Member States competences: is there such a thing?" in' The Division of Competences between the EU and its Member States-Reflections on the Past, the Present and the Future (Eds: Inge Govaere/Sacha Garben), Hart Publishing, 2018, Oxford, pp. 59-73. 34 In this respect, one should also include the new legislative package, submitted by the Com‐ mission in September 2018, which is, for example, about the amendments of the European Jenő Czuczai 347 the already mentioned protection issue of the core elements of national (constitu‐ tional) self-identity (since illegal immigration would change the composition of the population, it constitutes a threat to territorial integrity and the cultural iden‐ tity of the nations of the concerned Member States), but it also raises the question of a very important competence-competence debate. This is because, in the view of the V4 countries, for example, it falls under the exclusive national competences of the Member States as to how and what they decide on that who can enter the territory of their countries and who cannot. This is also an exclusive Member States' competence, they argue, since there is not yet an EU common asylum policy developed about this issue. But, those Member States in question go even further and state that such a decision is also about the protection of na‐ tional security interests, since illegal immigration and the irregular border-cross‐ ing by mass-inflows of economic immigrants are closely associated with terrorist attacks (as has been proved since 2015, for example, in France or in Belgium) or it is linked to international organised crimes (e.g. human trafficking, etc.). The obvious protection aspect of the related national security interests is, therefore, clearly exclusive Member State competence (Article 4(2) TEU). Since all this ar‐ gumentation, as was already noted in more detail earlier, is at the moment under consideration before the CJEU, I cannot further analyse it, but I wanted to list it here among the relevant legal arguments. The right to asylum as a fundamental right Another source of legal divergence among Member States is about whether there is a right to asylum, protected by European human rights law. Hungary, for ex‐ ample, supported by Italy and a number of other Member States, is of the view that there does not exist such a fundamental right. What exists is, exactly the op‐ posite, namely the right to the protection of their citizens against the threats caused by illegal immigration. This is, however, as those Member States argue, not just a right under EU law, but it is also an obligation under the respective na‐ tional constitutions of these Member States. Asylum applications shall be exam‐ ined always on a case-by-case basis and international protection shall be provid‐ ed only when it is really justified and fully in line with the applicable EU and international law rules. According to the most recent jurisprudence of the CJEU, as it was already explored above and which case law also assessed all these op‐ posing arguments,35 such right is, however, recognised as fundamental right by II.2.4. Border and Coast Guard Regulation etc. See in more detail, the Commission proposal, Brussels, 12.09.2018, COM(2018) 631 final. 35 See the judgment under fn. 17, in particular paras. 343 et seq. 'Disintegration and the EU migration crisis? 348 the EU and thus both the EU as well as all the Member States are also bound by the related international law obligations, stemming in particular from the Geneva Refugee Convention of 1951.36 Current legal challenges and those lying ahead Following the quasi-inventory of the pro and contra legal arguments explored above, I now move to collecting the current legal challenges and those still lying ahead in the migration crisis. The most striking legal challenge is obviously that how to find a balance among the two groups of Member States: namely among those who want to implement Article 80 TFEU properly as far as the EU Com‐ mon Asylum and Immigration law and policies are concerned and thereby to look for a common European solution based on the principle of solidarity in the form of a compulsory permanent relocation mechanism, in which all Member States share the responsibilities; and those Member States who can only imagine all this on the basis of differentiated mechanisms with a special and primary fo‐ cus on the full and effective protection of the EU’s external borders, with merely a secondary emphasis on looking for any type of internal burden-sharing tech‐ niques, in turn based exclusively on the principle of voluntary participation and consensual decision-making, while fully respecting the national sovereignty and national constitutional self-identity concerns as explored above. Today, it is clear that all Member States can now agree that the EU external borders, and thus the Frontex, should be strengthened and that they can accept only legal immigration. There is also agreement on that a common return policy should be further developed. The primary approach should be to be prevent prob‐ lems from being imported into the Union from the main migration-producing re‐ gions, especially from Africa, and for that purpose effective legal solutions should be found, from an enhanced and more targeted development aid policy, to helping the strengthened external dimension of the EU common asylum policy to be better designed and to be made even more pragmatic. Where one can see, however, that there are still divisions (including legal tensions) among Member III. 36 In this respect it should be noted that under Chapter 2 in Title V. TFEU on "Policies on border checks, asylum and immigration" Article 78(1) TFEU specifically underlines: "The Union shall develop a common policy in asylum, subsidiary protection and temporary pro‐ tection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties." (emphasis added). Jenő Czuczai 349 States today is the different interpretations of the principle of solidarity and how to share fairly the common burdens, especially in terms of establishing a perma‐ nent relocation mechanism. Difficult legal challenges still lying ahead are also the full compliance issue with the applicable international asylum and refugee law requirements, as well as the voting rules’ question with regard to consensus versus qualified majority-based decision-making. Finally, it should be stressed that there is still agreement on that any possible disintegration effects on the EU legal order should be avoided, meaning that it is peremptory that commonly adopted EU rules in the subject field must be respect‐ ed and fully implemented, since as mentioned the available forms of differentiat‐ ed integration in this context are legally not possible options. I think, therefore, that when the more broader question is posed about what the main current and future legal challenges are in connection with the EU mi‐ gration crisis, the best guidance can be found in the most recent conclusions of the last European Council summits on this issue – conclusions which, in my view, very elegantly sum up the most delicate challenges also from a legal point of view. The most important extracts from the European Council conclusions of 28 June 2018 on migration, in this respect, are the following:37 1. "The European Council reconfirms that a precondition for a functioning EU policy relies on a comprehensive approach to migration which combines more effective control of the EU's external borders, increased external action and the internal aspects, in line with our principles and values. This is a challenge not only for a single Member State, but for Europe as a whole. Since 2015 a number of measures have been put in place to achieve the ef‐ fective control of the EU's external borders. As a result, the number of de‐ tected illegal border crossings into the EU has been brought down by 95% from its peak in October 2015, even if flows have been picking up recently on the Eastern and Western Mediterranean routes." [emphasis added] 2. "In order to definitively break the business model of the smugglers, thus pre‐ venting tragic loss of life, it is necessary to eliminate the incentive to em‐ bark on perilous journeys. This requires a new approach based on shared or complementary actions among the Member States to the disembarkation of those who are saved in the Search And Rescue operations. In that context, the European Council calls on the Council and the Commission to swiftly explore the concept of regional disembarkation platforms, in close coopera‐ tion with relevant third countries as well as UNCHR and IOM. Such plat‐ 37 See: European Council doc No EUCO 9/18, dated 28 June 2018, Title I., points 1, 5-6, 11-12. 'Disintegration and the EU migration crisis? 350 forms should operate distinguishing individual situations, in full respect of international law and without creating a pull factor." [emphasis added] 3. "On EU territory, those who are saved, according to international law, should be taken care of, on the basis of a shared effort, through the transfer in controlled centres set up in Member States, only on a voluntary basis, where rapid and secure processing would allow, with full EU support, to distinguish between irregular migrants, who will be returned, and those in need for international protection, for whom the principle of solidarity would apply. All the measures in the context of those controlled centres, including relocation and resettlements, will be on a voluntary basis, without prejudice to the Dublin reform." 4. "(in terms of secondary movements of asylum-seekers between Member States […] jeopardising the integrity of the CEAS and the Schengen acquis […]) Member States should take all necessary internal and administrative measures to counter such movements and to closely cooperate amongst each other to that end." [emphasis added] 5. "As regards the reform for a new Common European Asylum System […] several files are close to finalisation. A consensus needs to be found on the Dublin Regulation to reform it based on a balance of responsibility and soli‐ darity, taking into account the persons disembarked following Search And Rescue operations. Further examination is also required on the 'Asylum Pro‐ cedures' proposal. The European Council underlines the need to find a speedy solution to the whole package and invites the Council to continue work with a view to concluding as soon as possible. There will be a report on progress during the October European Council". 38 38 The European Council summit, held on 14-15 December 2018 in Brussels, could in many aspects move forward in this respect. Its conclusions on Migration contain thus the follow‐ ing: "The European Council addressed the implementation of its comprehensive approach to migration, which combines more effective control of the EU external borders, increased external action and the internal aspects, in accordance with its conclusions of June and October 2018. The European Council notes that the number of detected illegal border crossings has been brought down to pre-crisis levels, and that the overall downward trend is continuing. This is the result of the external immigration policy of the Union and its Member States, based, in particular, on control of the external borders; the fight against smugglers and cooperation with the countries of origin and transit, which has been inten‐ sified in recent months. This policy should therefore be continued, further developed and fully implemented. Vigilance on all existing and emerging routes should be maintained, in particular in view of recent increases on the Western and Eastern Mediterranean Routes. As regards the internal policies, the European Council invites the co-legislators to rapidly conclude negotiations on the European Border and Cost Guard (EBCG). It welcomes the agreement reached at the level of the Council on 6 December 2018 with regard to enhanc‐ ing the EBCG's mandate in the area of return and cooperation with third countries. It also calls for further efforts to conclude negotiations on the Return Directive, on the Asylum Agency and all parts of the Common European Asylum System, respecting previous Euro‐ pean Council conclusions and taking into account the varying degree of progress on each Jenő Czuczai 351 It is to be noted that the EU institutions are currently intensively working in close cooperation with all the Member States on the implementation of the above-quoted strategic political guidance of the European Council in order to fully solve the continuing elements of the crisis. Concluding remarks It is difficult to draw any conclusion on such a sensitive and very delicate legal topic today like migration. Nonetheless, based on the above assessments, one could perhaps submit some concluding remarks without aiming to be complete in this respect. First of all, it should be noted that, certainly, all the above legal is‐ sues (e.g. the different approaches towards the principle of solidarity or the com‐ pulsory quotas issues in the migration questions, etc.) are today pertinent and heavily debated in almost all the Member States of the EU, in national Parlia‐ ments, as well as before the Constitutional Courts (or Conseil Constitutionnel, Supreme Administrative Courts, as the case maybe). Obviously, the impacts of the most recent judicial developments in some of the Member States analysed above can be seen in judicial tensions between the different wings of the separa‐ tion of powers in other Member States as well, including concrete decisions, handed down even at the highest judicial level. This is the case, for example, in France, where on 6 July 2018, the French Constitutional Council ruled that the commonly called "delit de solidarité" or 'solidarity offense', which criminalises any person who facilitates the irregular entry or stay of a foreigner in France, was partially unconstitutional. Therefore, there is legally a certain space for the freedom to provide help and assistance based on humanitarian grounds to those who are in need and seeking protection in order to protect the dignity and physi‐ cal integrity of a foreigner whatever their status and the legality of their resi‐ dence – and according to the French Constitutional Council, the principle of 'fra‐ ternity' in the French Constitution should be interpreted this way, thereby encom‐ passing any act of help done with a humanitarian goal.39 This ruling in France was preceded by a controversial bill, submitted by the Government to the French Parliament in February 2018, on a controlled migration entailing an effective right to asylum and a successful integration, aiming inter alia at reducing the length of the asylum procedure and combating irregular immigration by intro‐ ducing strict control mechanisms. In the French Assemblé Nationale there was IV. of these files.", see: European Council doc No EUCO 17/18, dated 14 December 2018, points 4-6. 39 See in more detail Benjamin Boudou, "The solidarity Offense in France: Egalité, Frater‐ nité; Solidarité, VerfBlog, 2018/7/06 at https://verfassungsblog.de/the-solidarity-offense-in -france-egalite-fraternite-solidarite/, DOI:https://doi.org/10.17176/20180706-155440-0. 'Disintegration and the EU migration crisis? 352 also a heated debate on the different provisions of this bill, raising exactly those legal arguments explored in more detail in this contribution. This bill is now be‐ fore the French Constitutional Council because left-wing members of the French House of Representatives raised serious constitutional doubts about the compli‐ ance of the bill with the French Constitution.40 While in the different Member States there are on-going legal debates about the legality and/or constitutionality of the different national and European solu‐ tions, proposed or reflected upon in terms of handling the EU migration crisis, what cannot be debated, as explored above in demonstrating the Court's relevant case law, is that the Member States are bound by the commonly adopted rules in the EU also on migration and asylum issues. This is a red line in order to avoid any possible disintegration in the EU legal order. Thus, in my personal view, all Member States shall respect and shall implement all those common rules, includ‐ ing the ones adopted on the compulsory quotas-based relocation mechanisms of international protection-seekers from the 2015 migration crisis.41 This common EU law obligation has been recently eloquently enforced, for example, by the Spanish Supreme Administrative Court in the so-called "Stop Mare Mortum" rul‐ ing, handed down on 9 July 2018.42 The Spanish Supreme Administrative Court held that Spain was bound by the two Council Decisions of May and September 2015 establishing an EU Emergency Relocation Mechanism, analysed by me too in this contribution, which aimed at distributing first 40,000 and thereafter 120,000 asylum-seekers among the Member States based on a compulsory quotas-regime. According to the Spanish Supreme Administrative Court's judge‐ ment, the Government of Spain had failed between 2015 and 2017 to relocate from Italy and Greece 19,449 asylum-seekers looking for international protection and thus violated the applicable EU law. The Court ruled that Spain should exe‐ cute the referred Council acts immediately. What is clear, therefore, is that there are many legal divergences and tensions still prevailing among Member States as regards the migration crisis and its pos‐ sible solutions, sometimes clearly dividing them, as this contribution has shown: 40 See in more detail Catherine Haguenau-Moizard, "The 2018 French Asylum and Immi‐ gration Law", VerfBlog, 2018/8/17 at https://verfassungsblog.de/the-2018-french-asylum-a nd-immigration-act/, DOI: https:// doi.org/10.17176/20180817-175721-0. 41 This is especially so, since pursuant to the views of Jaap W. de Zwaan disintegration in the EU legal order starts, when the core EU acquis (and the rules on asylum, migration, protection of external borders falls under this notion) is not respected and differentiated co‐ operation is either not allowed or otherwise not possible, see further in J.W. de Zwaan on Stability and Differentiation, fn. 21, pp. 10 et seq. 42 See a first assessment on this important Spanish Supreme Administrative Court ruling in David Moya, "Are national Governments liable if they miss their relocation quota of refugees?" VerfBlog, 2018/7/20. It can be loaded down at http://verfassungsblog.de/are-nat ional-governments-liable-if-they-miss-their-relocation-quota-of-refugees/, DOI:https://doi. org/10.17.176/20180720-130255-0. Jenő Czuczai 353 either because of the maintained 'consensus' requirement for the decision-making process at EU level; or due to the different views about possible approaches with regard to imposing obligations to relocate either 'on a voluntary basis', or obliga‐ torily on all Member States, or just on those wishing to contribute based on the principle of solidarity and shared responsibility, etc. In this context, it is to be noted that the pressing time factor and the urgent need for finding common solu‐ tions for this unprecedented crisis at EU level remains, also from a legal point of view, still a big challenge for the EU. This contribution sought only to shed light on all those legal challenges still lying ahead in the EU in this respect, among which, in my view, the most difficult will be perhaps the settling down of all the legal questions relating to the relevance of Article 4(2) TEU, namely of the pro‐ tection argument of national (constitutional) identity and of sovereignty in the migration crisis. However, there is hope here – namely that, as explored above, there are still pending cases before the CJEU on all those arguments pro and con‐ tra concerning the application of Article 4(2) TEU to this issue and that the Court of Justice, for sure, will give us clear-cut guidance in this respect as well very soon. Another noticeable challenge, which still remains to be further examined and explored, is the typology question of the solidarity principle in the years to come, in a period of time of crisis and that what the so-called "functional", "flex‐ ible" or "effective" solidarity shall mean in terms of solving the current migration crisis, especially with regard to its practical and substantive components, which clearly define the individual Member States' rights and obligations in that con‐ text.43 What is for sure already now legally is that any type of "solidarity config‐ uration" will be effectively applicable just if it will be based on the practical ne‐ cessity of "using it on a voluntary basis and based on the principle of diversity in terms of the forms of expressing it",44 as we can see in the most recent develop‐ ments in solving very difficult situations in the so-called Western and Central Mediterranean routes of mass-immigration into the EU. 43 See, from the most recent literature, for example, Ester di Napoli / Deborah Russo, " Soli‐ darity in the EU in times of Crisis: Towards "European Solidarity" in 'Solidarity as a Pub‐ lic Virtue? Law and Public Policies in the EU' (Eds: Robert Kaiser and alts) as Vol. 4 in the series of "Transnational Perspectives on Transformations in State and Society", Nomos, Baden-Baden, 2018, pp. 195-248; it can be loaded down at https:// www.nomos-eli‐ brary.de/10.5771/9783845290058-194/solidarity-in-the-european-union--in-times-of-cri‐ sis-towards-european-solidarity/en/. On ‘flexible solidarity’ see in more detail, for exam‐ ple, the 2018 MEDAM Assessment report on Asylum and Migration Policies in Europe- Flexible Solidarity: A comprehensive strategy for asylum and immigration in the EU, 2018, Kiel IfW, especially pp. 26. et seq; -it can be loaded down at www.ifw-kiel.de and at www.medam-migration.eu. 44 See as a former good example in the field of defence cooperation and the possible partici‐ pation and contribution of Ireland in J. Czuczai' s article on the principle of solidarity fn. 9, especially p.150 under fn. 13. 'Disintegration and the EU migration crisis? 354

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Abstract

The EU’s vulnerability to crises is not a novelty, but disintegrative trends have reached a new quality. The financial and fiscal crisis shook the Union, which had just been consolidated by the Lisbon Treaty, to its foundations. The refugee crisis becomes a heavy test of European solidarity. For the first time, a member state, the United Kingdom, wants to leave the Union and in doing so, as at least the Brexiteers argue, regain its sovereignty. Even the member states themselves are not spared from moments of disintegration. One might think of the secessionist movements in Catalonia or Scotland etc. Against this background, the SIPE Congress in Hamburg has brought together high-ranking experts from all over Europe in order to explore the tension between integration and disintegration, as well as Europe’s prospects of being “united in diversity”. The discussions paint a differentiated overall panorama of the constantly challenged integration project. With contributions by Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck

Zusammenfassung

Die Krisenanfälligkeit der EU ist kein Novum, doch haben desintegrative Strömungen eine neue Qualität erreicht. Die Finanz- und Fiskalkrise erschütterte die eben erst durch den Lissabonner Vertrag konsolidierte Union in ihren Grundfesten. Die Flüchtlingskrise wird zur schweren Belastungsprobe für die europäische Solidarität. Mit dem Vereinigten Königreich will erstmals ein Mitgliedstaat den Integrationsverbund verlassen und, so die Brexit-Advokaten, seine Souveränität zurückgewinnen. Auch die Mitgliedstaaten selbst bleiben von Desintegrationsmomenten nicht verschont, man denke etwa an die Sezessionsbestrebungen in Katalonien oder Schottland. Vor diesem Hintergrund hat die Hamburger Jahrestagung der SIPE hochrangige Expertinnen und Experten aus ganz Europa versammelt, um im Spannungsfeld von Integration und Desintegration auszuloten, welche Zukunftschancen Europas „Einheit in Vielfalt“ hat. Die Diskussionen zeichnen ein differenziertes Gesamtpanorama des immer neu herausgeforderten Integrationsprojekts. Mit Beiträgen von Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck