The EU as the Appropriate Locus of Power for Tackling Crises: Interpretation of Article 78(3) TFEU in the case Slovakia and Hungary v Council

Undoubtedly the CJEU’s judgment in Slovakia and Hungary v Council of 6 September 2017 is going to illuminate for some time many a discussion not only on asylum but also on institutional matters in the EU. I will not attempt a comprehensive analysis of the judgment here. My attention was captured by one particular aspect of the CJEU’s reasoning, namely the implicit recognition of the EU as the appropriate forum for taking effective action to address the emergency situation in Italy and Greece created by a sudden inflow of third country nationals.

The Court’s Interpretation of Article 78(3) TFEU

The relocation mechanism disputed by Slovakia and Hungary was enshrined in a Council Decision (EU/ 2015/1601) which was adopted following a non-legislative procedure, relying on Article 78(3) TFEU for legal basis. The provision states:

‘3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden 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 Parliament.’

Slovakia and Hungary challenged the Decision, among others, on the basis that the effects of the act were in fact legislative. As a result, the two Member States alleged, the Decision should have been adopted following a special legislative procedure.

The Court replied in two steps. First, it established through a contrario reading of Article 289(3) TFEU that ‘non-legislative acts are those that are adopted by a procedure other than a legislative procedure’ [58]. Only where the Treaty provisions explicitly mention either the ordinary or the special legislative procedure can the act adopted on the basis thereof be classified as ‘legislative’. This is not the case with Article 78(3) TFEU ...

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