OPINION OF ADVOCATE GENERAL

BOT

delivered on 26 July 2017 ( 1 )

Cases C‑643/15 and C‑647/15

Slovak Republic,

Hungary

v

Council of the European Union

(Actions for annulment — Decision (EU) 2015/1601 — Provisional measures in the area of international protection for the benefit of the Italian Republic and the Hellenic Republic — Emergency situation characterised by a sudden inflow of nationals of third countries to certain Member States — Relocation of those nationals to other Member States — Relocation quotas — Article 80 TFEU — Principle of solidarity and of fair sharing of responsibility between Member States — Article 78(3) TFEU — Legal basis — Concept of ‘legislative act’ — Article 289(3) TFEU — Whether conclusions adopted by the European Council are binding on the Council of the European Union — Article 15(1) TEU and Article 68 TFEU — Breach of essential procedural requirements — Amendment of the European Commission’s proposal — Requirements for a new consultation of the European Parliament and a unanimous vote within the Council — Article 293 TFEU — Principles of legal certainty and of proportionality)

1. By their applications, the Slovak Republic (C‑643/15) and Hungary (C‑647/15) seek annulment of Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. ( 2 )

2. That decision was adopted by the Council of the European Union on the basis of Article 78(3) TFEU, which provides that ‘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 [European] Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament’.

3. The decision was adopted in the context of the migration crisis that affected the European Union from 2014, then increased in 2015, in particular in July and August of that year, and of the catastrophic humanitarian situation to which that crisis gave rise, in particular in ‘front line’ Member States such as the Italian Republic and the Hellenic Republic, which faced a massive inflow of migrants from third countries such as the Syrian Arab Republic, the Islamic Republic of Afghanistan, the Republic of Iraq and the State of Eritrea.

4. In order to deal with that migration crisis and the pressure which it placed on the asylum regimes in the Italian Republic and the Hellenic Republic, the contested decision provides for the relocation from those two Member States to the other Member States, over a period of two years, of 120000 persons in clear need of international protection. The decision is accompanied by two annexes, which initially allocated 66000 persons to be relocated from Italy (an allocation of 15600) and Greece (an allocation of 50400) on the basis of compulsory allocations fixed for each of the other Member States. ( 3 )

5. Article 2(e) of the contested decision defines relocation as ‘the transfer of an applicant from the territory of the Member State which the criteria laid down in Chapter III of Regulation (EU) No 604/2013 [ ( 4 )] indicate as responsible for examining his or her application for international protection to the territory of the Member State of relocation’, which, according to Article 2(f) of the contested decision, is ‘the Member State which becomes responsible for examining the application for international protection pursuant to [the Dublin III] Regulation … of an applicant following his or her relocation in the territory of that Member State’.

6. The temporary relocation mechanism provided for in the contested decision takes its place alongside other measures which had already been taken at Union level in order to deal with the migration crisis, including the European programme for the ‘resettlement’ ( 5 ) of 22504 persons in need of international protection, agreed upon on 20 July 2015 in the form of a ‘resolution’ between the Member States and the States associated with the Dublin system, and Decision (EU) 2015/1523, adopted by the Council on 14 September 2015, ( 6 ) which provides for the relocation from Greece and Italy, over a period of two years, of 40000 persons in clear need of international protection to the other Member States on the basis of distribution determined by consensus. ( 7 )

7. It should also be pointed out that, on 9 September 2015, the Commission submitted not only the proposal for what would become the contested decision, ( 8 ) but also a proposal for a regulation amending the Dublin III Regulation. ( 9 ) That proposal provides for a ‘permanent’ relocation mechanism, that is to say, a relocation mechanism which, unlike the mechanism provided for in Decision 2015/1523 and in the contested decision, is not limited in time. That proposal has thus far still not been adopted.

8. As regards the genesis of the contested decision, I shall mention the following elements.

9. The Commission’s initial proposal provided for the relocation of 120000 applicants for international protection, from Italy (15600 persons), Greece (50400 persons) and Hungary (54000 persons), to the other Member States. Annexes I to III to that proposal included three tables distributing those applicants from each of those Member States among the other Member States, with the exception of the United Kingdom of Great Britain and Northern Ireland, Ireland and the Kingdom of Denmark, in the form of allocations determined for each of those Member States.

10. On 13 September 2015, the Commission communicated that proposal to the national parliaments.

11. On 14 September 2015, the Council communicated the proposal to the Parliament for consultation.

12. On 17 September 2015, the Parliament adopted a legislative resolution approving the proposal, having regard, in particular, to the ‘exceptional situation of urgency and the need to address the situation with no further delay’, while asking the Council to consult the Parliament again if it intended to substantially amend the Commission proposal.

13. During the various meetings held within the Council between 17 and 22 September 2015, the Commission’s initial proposal was amended on certain points.

14. In particular, at those meetings, Hungary stated that it rejected the notion of being classified as a ‘frontline Member State’ and that it did not wish to be among the Member States benefiting from relocation on the same basis as the Italian Republic and the Hellenic Republic. Accordingly, in the final version of the proposal, all reference to Hungary as a beneficiary Member State, including in the title of the proposal, was deleted. Also, Annex III to the initial proposal, concerning the distribution of 54000 applicants who according to the initial version would be resettled from Hungary was deleted. On the other hand, Hungary was included in Annexes I and II as a Member State of relocation of applicants for international protection from Italy and Greece respectively and allocations were therefore attributed to it in those annexes.

15. On 22 September 2015, the Commission proposal as thus amended was adopted by the Council by a qualified majority. The Czech Republic, Hungary, Romania and the Slovak Republic voted against the adoption of that proposal and the Republic of Finland abstained.

16. The contested decision is an expression of the solidarity which the Treaty envisages between Member States.

17. The present actions provide me with the opportunity to recall that solidarity is among the cardinal values of the Union and is even among the foundations of the Union. How would it be possible to deepen the solidarity between the peoples of Europe and to envisage ever-closer union between those peoples, as advocated in the Preamble to the EU Treaty, without solidarity between the Member States when one of them is faced with an emergency situation? I am referring here to the quintessence of what is both the raison d’être and the objective of the European project.

18. It is therefore appropriate to emphasise at the outset the importance of solidarity as a founding and existential value of the Union.

19. Already asserted in the Treaty of Rome, ( 10 ) the requirement of solidarity remains at the heart of the process of integration pursued by the Treaty of Lisbon. Although surprisingly absent from the list in the first sentence of Article 2 TEU of the values on which the Union is founded, ( 11 ) solidarity is, on the other hand, mentioned in the Preamble to the Charter of Fundamental Rights of the European Union ( 12 ) as forming part of the ‘indivisible, universal values’ on which the Union is founded. Furthermore, Article 3(3) TEU states that the Union is to promote not only ‘solidarity between generations’ but also ‘solidarity among Member States’. Solidarity therefore continues to form part of a set of values and principles that constitutes ‘the bedrock of the European construction’. ( 13 )

20. More specifically, solidarity is both a pillar and at the same time a guiding principle of the European Union’s policies on border checks, asylum and immigration, which form the subject matter of Chapter 2 of Title V of the FEU Treaty, devoted to the area of freedom, security and justice. ( 14 )

21. That may be seen from Article 67(2) TFEU, which states that the Union is to ‘frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards nationals of third countries’. In addition, Article 80 TFEU provides that ‘the policies of the Union set out in [that] Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to [that] Chapter shall contain appropriate measures to give effect to this principle’. ( 15 )

22. Given the de facto inequality between Member States because of their geographic situation and their vulnerability in the face of massive migration flows, the adoption of measures on the basis of Article 78(3) TFEU and their effective application is even more pressing. From that aspect, measures such as those provided for in the contested decision make it possible to confer a practical content on the principle of solidarity and fair sharing of responsibility between Member States laid down in Article 80 TFEU.

23. The particular feature of the contested decision is that it establishes a relocation mechanism on the basis of allocations assigned to the Member States which are binding in nature. With that decision, solidarity between Member States has a specific content and a binding nature. That essential and innovative characteristic of that decision explains the politically sensitive nature of the present cases, since it has crystallised the opposition on the part of Member States which advocate freely consented solidarity based solely on voluntary commitments.

24. That opposition, together with the finding of a very incomplete application of the contested decision, to which I shall return below, ( 16 ) may give the impression that, behind what is by common consent called the ‘2015 migration crisis’, another crisis is concealed, namely the crisis of the European integration project, which is to a large extent based on a requirement for solidarity between the Member States which have decided to take part in that project. ( 17 )

25. From another side, it is just as possible to consider that, in adopting a firm response to that migration crisis, the Union has shown that it had the necessary tools and that it was prepared to use them. It remains to ascertain, as the present actions invite me to do, that, in taking measures such as those contained in the contested decision, the Union complied with the legal framework laid down in the Treaties.

I. Procedure before the Court and forms of order sought

26. In Case C‑643/15, the Slovak Republic asks the Court to annul the contested decision and to order the Council to pay the costs.

27. In Case C‑647/15, Hungary asks the Court to annul the contested decision or, in the alternative, in the event that its first head of claim is not upheld, to annul that decision insofar as it concerns Hungary, and to order the Council to pay the costs.

28. In Cases C‑643/15 and C‑647/15, the Council asks the Court to dismiss the actions as unfounded and to order the Slovak Republic and Hungary, respectively, to pay the costs in the cases concerning them.

29. By decision of the President of the Court of 29 April 2016, the Kingdom of Belgium, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of Sweden and the Commission were granted leave to intervene in support of the form of order sought by the Council in Cases C‑643/15 and C‑647/15.

30. By that decision of the President of the Court, the Republic of Poland was granted leave to intervene, in Case C‑643/15, in support of the form of order sought by the Slovak Republic and, in Case C‑647/15, in support of the form of order sought by Hungary.

II. The actions

31. In support of the form of order which it seeks, the Slovak Republic relies on six pleas in law, alleging, respectively, (i) infringement of Article 68 TFEU and Article 13(2) TEU, and breach of the principle of institutional balance; (ii) infringement of Article 10(1) and (2) TEU, Article 13(2) TEU, Article 78(3) TFEU, Articles 3 and 4 of Protocol (No 1) on the role of the national parliaments in the European Union and Articles 6 and 7 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the Treaties, ( 18 ) and breach of the principles of legal certainty, representative democracy and institutional balance; (iii) breach of essential procedural requirements governing the legislative process and infringement of Article 10(1) and (2) TEU, Article 13(2) TEU, and breach of the principles of representative democracy, institutional balance and sound administration (in the alternative); (iv) breach of essential procedural requirements laid down in Article 78(3) TFEU and Article 293 TFEU, and of Article 10(1) and (2) TEU, Article 13(2) TEU, and breach of the principles of representative democracy, institutional balance and sound administration (partly in the alternative); (v) infringement of Article 78(3) TFEU owing to non-fulfilment of the conditions of its applicability (in the alternative); and (vi) breach of the principle of proportionality.

32. In support of the form of order which it seeks, Hungary relies on 10 pleas in law.

33. The first two pleas allege infringement of Article 78(3) TFEU, in that that provision does not provide the Council with an adequate legal basis for the adoption of measures that entail a binding exception to the provisions of a legislative act, which are applicable for a period of 24 months, or indeed of 36 months in some cases, and the effects of which extend beyond that period, which is not compatible with the concept of ‘provisional measures’.

34. The third to sixth pleas allege breach of essential procedural requirements, in that (i) when adopting the contested decision, the Council infringed Article 293(1) TFEU by departing from the Commission’s proposal without a unanimous vote (third plea); (ii) the contested decision contains a derogation from the provisions of a legislative act and is itself a legislative act by virtue of its content, so that, even on the assumption that it would have been possible to adopt the contested decision on the basis of Article 78(3) TFEU, it would have been necessary, when adopting it, to respect the right of the national parliaments to issue an opinion on legislative acts, laid down in Protocol (No 1) and Protocol (No 2) (fourth plea); (iii) after consulting the Parliament, the Council substantially amended the text of the proposal without again consulting the Parliament on the matter (fifth plea); and (iv) when the Council adopted the contested decision, the proposal for a decision was not available in all the language versions corresponding to the official languages of the Union (sixth plea).

35. The seventh plea alleges infringement of Article 68 TFEU and of the European Council conclusions of 25 and 26 June 2015. ( 19 )

36. The eighth plea alleges breach of the principles of legal certainty and legislative clarity, since on a number of points it is unclear how the provisions of the contested decision should be applied or how they interrelate with the provisions of the Dublin III Regulation.

37. The ninth plea alleges breach of the principles of necessity and proportionality, in that, as Hungary is no longer among the Member States that benefit from the temporary relocation mechanism, there is no reason why the contested decision should provide for the relocation of 120000 seeking international protection.

38. The 10th plea, which is submitted in the alternative, alleges breach of the principle of proportionality and infringement of Article 78(3) TFEU in respect of Hungary, since the contested decision attributes a mandatory allocation to it, even though Hungary is recognised as a Member State whose territory has been entered by a large number of irregular migrants who have made applications for international protection there.

III. My assessment

A. Preliminary observations

39. Since the legal basis of an act determines the procedure to be followed when that act is adopted, ( 20 ) it is appropriate to examine, in the first place, the pleas alleging that Article 78(3) TFEU was inadequate as a legal basis for the adoption of the contested decision. I shall examine, in the second place, the pleas alleging breach of essential procedural requirements purportedly committed when that decision was adopted and, in the third place, the substantive pleas.

40. In addition, under those three heads, I shall first of all examine the pleas of the Slovak Republic and Hungary which overlap in whole or in part and then, if necessary, the pleas specific to each of the applicants.

B. The pleas alleging that Article 78(3) TFEU is inadequate as a legal basis for the adoption of the contested decision

41. The Slovak Republic (second and fifth pleas) and Hungary (first and second pleas) contend that Article 78(3) TFEU cannot constitute an adequate legal basis for the adoption of the contested decision.

42. However, the positions argued by those two Member States differ: while Hungary acknowledges that the Italian Republic and the Hellenic Republic were in an ‘emergency situation characterised by a sudden inflow of nationals of third countries’, within the meaning of Article 78(3) TFEU, at the time of the adoption of the contested decision, but at the same time denies that the contested decision was the appropriate measure in order to address that situation, the Slovak Republic maintains that such an emergency situation, within the meaning of that provision, did not exist (second part of the fifth plea).

43. In order to challenge the choice of the legal basis of the contested decision, those two Member States maintain, in the first place, that although the contested decision was adopted according to a non-legislative procedure and therefore constitutes a non-legislative act, it should nonetheless be classified as a legislative act because if its content, since it amends legislative acts. However, Article 78(3) TFEU does not permit the adoption of legislative acts.

44. In the second place, the Slovak Republic and Hungary dispute the provisional nature of the contested decision.

45. In the third place, the Slovak Republic, unlike Hungary, maintains that Article 78(3) TFEU did not provide an adequate legal basis for the adoption of the contested decision, since the condition of the existence of an ‘emergency situation characterised by a sudden inflow of nationals of third countries’ was not satisfied.

1. The Slovak Republic’s second plea and Hungary’s first plea, relating to the legislative nature of the contested decision

46. The Slovak Republic and Hungary claim that even though it was adopted according to the non-legislative procedure and is therefore formally a non-legislative act, the contested decision must nonetheless be classified as a legislative act because of its content and its effects, since it amends — and, moreover, does so fundamentally — a number of legislative acts of EU law. Article 78(3) TFEU provides no legal basis for the adoption of legislative acts, since it gives no indication that the measures adopted on the basis of that provision should be adopted in a legislative procedure.

47. As expressly confirmed in recital 23 of the contested decision, that decision derogates from a number of legislative acts of the Union. Although the contested decision classifies those amendments as mere derogations, the distinction between a derogation and an amendment is artificial, since in practice the effects of a derogation and those of an amendment are the same in that, in both cases, the application of a normative provision is excluded and, de facto, its effectiveness is therefore affected.

48. More specifically, the Slovak Republic contends that the Council has infringed Article 78(3) TFEU, on the ground that the contested decision derogates from provisions set out in legislative acts and such amendments can be made only be a legislative act. Article 78(3) TFEU, which mentions neither the ordinary legislative procedure nor the special legislative procedure, does not permit the adoption of legislative acts. It follows that the form of the contested decision does not correspond to its content.

49. In adopting the contested decision on the basis of Article 78(3) TFEU, the Council not only infringed that provision but also undermined the rights of the national parliaments and the Parliament. Both the former and the latter ought, under primary law, to have participated in the amendments of the legislative acts from which the Council derogated by the contested decision. Indeed, the Slovak Republic observes that those acts were adopted according to the ordinary legislative procedure.

50. The Slovak Republic therefore maintains that, in adopting the contested decision, the Council infringed not only Article 78(3) TFEU, but also Article 10(1) and (2) TEU, Article 13(2) TEU, Articles 3 and 4 of Protocol (No 1) and Articles 6 and 7 of Protocol (No 2), and breached the principles of legal certainty, representative democracy and institutional balance.

51. Hungary agrees with the Slovak Republic that a legal act adopted on the basis of Article 78(3) TFEU which, on the basis of a reading a contrario of Article 289(2) and (3) TFEU, does not constitute a legislative act, cannot amend in a binding manner, even on a provisional basis, legislative acts in force that were adopted in ordinary or special legislative procedures, such as the Dublin III Regulation. Because of its content, the contested decision is therefore without doubt a legislative act. Since that decision derogates from the provisions of the Dublin III Regulation, it could not be adopted on the basis of Article 78(3) TFEU, which, because it confers on the Council the power to adopt acts only in the framework of a non-legislative procedure, authorises it only to adopt non-legislative acts.

52. In Hungary’s submission, Article 78(3) TFEU might at most serve as the legal basis for the adoption of measures supplementing legislative acts adopted on the basis of Article 78(2) TFEU, but consistent with those measures, or measures that facilitate their implementation in the light of the emergency situation. ( 21 )

53. Hungary makes clear that, on the assumption that the Court should decide that it is possible to adopt, on the basis of Article 78(3) TFEU, an act that derogates from a legislative act adopted on the basis of Article 78(2) TFEU, such a derogation could not go so far as to affect the substance of such a legislative act or so far as to render its fundamental provisions devoid of meaning. However, that is the case of the contested decision, since it amends, in particular, the most essential element of that regulation, namely the designation of the Member State responsible for examining an application for international protection. Thus, the contested decision introduces a derogation from the provisions of that regulation to a degree that is unacceptable in the context of a non-legislative act. That constitutes an abuse of the ordinary legislative procedure provided for in Article 78(2) TFEU.

54. Last, in its reply and in its response to the statements in intervention, Hungary maintains, referring to points 151 to 161 of the Opinion of Advocate General Wathelet in the case of Council v Front Polisario, ( 22 ) that the requirement to consult the Parliament, as provided for in Article 78(3) TFEU, may be regarded as ‘participation’ by the Parliament, within the meaning of Article 289(2) TFEU, with the consequence that the special legislative procedure applies and that the contested decision should therefore be classified as a legislative act.

55. However, even if that were so, Article 78(3) TFEU would not authorise the Council to derogate from an essential provision of a legislative act adopted on the basis of Article 78(2) TFEU.

56. I find those various arguments unconvincing. I am of the view that Article 78(3) TFEU could serve as the legal basis for a non-legislative act, such as the contested decision, that derogates, on a temporary basis and within a well defined framework, from certain provisions of legislative acts.

57. I shall begin by answering the argument put forward by Hungary in its reply, ( 23 ) namely that the contested decision might be regarded as a legislative act in spite of the fact that Article 78(3) TFEU does not mention that the measures adopted on that basis are to be adopted following a special legislative procedure. Hungary relies, in that regard, on the assertion that, in accordance with the requirement in Article 289(2) TFEU, the contested decision was indeed adopted by the Council ‘with the participation of the … Parliament’.

58. It seems essential to answer that point of law unambiguously, insofar as the adoption of a legislative act has certain requirements that do not apply to the adoption of a non-legislative act. I am thinking, in particular, about the participation of the national parliaments provided for in Articles 3 and 4 of Protocol (No 1) and also in Articles 6 and 7 of Protocol (No 2), and also of the requirement that the Council is to sit in public when it deliberates and votes on a draft legislative act, which arises from Article 16(8) TEU and Article 15(2) TFEU.

59. The typology of the normative instruments of the Union resulting from the Treaty of Lisbon established, for the first time, a distinction between legislative acts and non-legislative acts, on the basis of what are above all institutional and procedural considerations. ( 24 )

60. Article 289(3) TFEU defines the category of ‘legislative acts’ as covering ‘legal acts adopted by legislative procedure’. The ‘legislative procedure’ consists either in the ‘ordinary legislative procedure’ or in a ‘special legislative procedure’. As provided in Article 289(1) TFEU, it is the joint adoption of a legal act by the Parliament and the Council on a proposal from the Commission that characterises the ordinary legislative procedure.

61. In the words of Article 289(2) TFEU, a special legislative procedure is a procedure which, ‘in the specific cases provided for by the Treaties’, consists in ‘the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament’. ( 25 ) The special legislative procedure is therefore characterised by the fact that it involves, in varying degrees, the Council and the Parliament in the adoption of an act of the Union.

62. In most cases in which a special legislative procedure is envisaged, such an act must be adopted by the Council acting unanimously, after the European Parliament has given its consent, ( 26 ) or indeed, more usually, after the Parliament has been consulted. ( 27 ) In a few cases it is the Parliament that must adopt the act after the Council has given its consent. ( 28 )

63. It follows from those provisions that the framers of the Treaty took a purely formal approach, ( 29 ) according to which legislative acts are to be classified as such if they are adopted according to the ordinary legislative procedure or according to a special legislative procedure.

64. It is therefore irrelevant to seek, as the applicants suggest, to classify the contested decision as a legislative act on the basis of its content.

65. The argument developed by Hungary raises the question whether it is necessary that a provision of the Treaty should indicate expressly that it permits the adoption of an act according to a special legislative procedure in order for such an act to be considered to constitute a legislative act.

66. To my mind, that question must be answered in the affirmative, in order to afford a sufficient degree of certainty and legal certainty to the classification of the acts of the Union that was established by the framers of the Treaty.

67. It must be stated, in that regard, that the Treaty contains numerous provisions relating to the adoption of Union acts that expressly state that a particular act is to be adopted following a ‘special legislative procedure’, even though the details of that procedure may differ as regards the nature and the degree of involvement of the Council and the Parliament. The practical effect of such a reference is to make clear that, whatever the details may be, the procedure in question is indeed a ‘legislative procedure’ and that it will therefore result in the adoption of a legislative act. The requirement for that reference also follows from the actual wording of Article 289(2) TFEU, according to which a special legislative procedure is to apply only ‘in the specific cases provided for by the Treaties’.

68. Conversely, procedures which follow similar lines to those of special legislative procedures, but which are not expressly classified as such by the Treaty, must be considered to be non-legislative procedures, which therefore result in the adoption of non-legislative acts. ( 30 )

69. Admittedly, it is possible to take the view that a distinction between legislative acts and non-legislative acts arising from such ‘legal nominalism’ ( 31 ) will raise problems of consistency ( 32 ) and that the framers of the Treaty did not complete the task of classifying the legislative act of the Union. ( 33 )

70. It is equally possible to consider — and this is my preferred solution — that, on the other hand, by opting for an exclusively formal approach to the legislative act, the framers of the Treaty made it possible to identify with certainty the legal bases that authorise the institutions of the Union to adopt legislative acts. The incompleteness, indeed, according to some, the evident inconsistency of the classification made by the framers of the Treaty must thus be seen as the consequence of their intention to afford certain acts the status of legislative act and to deny that status to other acts.

71. Such an examination of the wording of the provisions of the Treaty for the purposes of classifying an act of the Union as a legislative act or as a non-legislative act is, moreover, consistent with the finding of the Court that ‘it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure’. ( 34 )

72. Specifically, the interpretation which I advocate means that the contested decision does not have the status of a legislative act.

73. Indeed, it must be observed that although Article 78(3) TFEU provides for the adoption of measures by the Council acting after consulting the Parliament, it does not expressly state that such measures are to be taken in the framework of a special legislative procedure. Those measures, which are adopted in the framework of a non-legislative procedure, are, on the basis of a reading a contrario of Article 289(3) TFEU, non-legislative in nature. There is a clear contrast in that regard with Article 78(2) TFEU, which expressly states that the measures adopted on the basis of that article are to be adopted in accordance with a legislative procedure, in fact the ordinary legislative procedure.

74. Having made that clear, I must now address the concern at the heart of the arguments developed by the Slovak Republic and by Hungary, that is to say, whether and to what extent Article 78(3) TFEU authorises the Council to adopt a non-legislative act that derogates from provisions set out in legislative acts of the Union.

75. I consider, as do the Council and the interveners that support the form of order sought by it, that Article 78(3) TFEU permits the adoption of measures which, in order to address a clearly identified emergency situation, derogate temporarily and on specific points from legislative acts in asylum matters.

76. That provision of the Treaty has the specific objective of allowing the Union to react rapidly and effectively to an emergency situation characterised by a sudden inflow of nationals of third countries. Given that Article 78(2) TFEU covers the various aspects of the common European asylum system and that the measures adopted on the basis of that provision are legislative acts, it is inevitable that the provisional measures adopted, in connection with the same system, on the basis of Article 78(3) TFEU entail a temporary derogation from certain provisions of those legislative acts. The concept of ‘provisional measures’, within the meaning of Article 78(3) TFEU, cannot therefore, contrary to what the applicants suggest, be understood as being limited to supplementary measures, of an operational or financial nature, without excessively restricting the scope of that legal basis and therefore its practical effect. The concept of ‘provisional measures’ must therefore, in my view, be interpreted broadly, as Article 78(3) TFEU authorises the Council to adopt all the measures which it deems necessary in order to deal with an emergency situation characterised by a sudden inflow of nationals of third countries.

77. In order to be considered to be properly based on Article 78(3) TFEU, measures must not be intended to definitively eliminate, replace or amend provisions in legislative acts adopted on the basis of Article 78(2) TFEU.

78. That certainly does not apply to the contested decision, which, in accordance with its nature as a provisional measure intended to respond to a very specific emergency situation, merely provides for temporary derogations, in a strictly defined framework, from a number of provisions of legislative acts of the Union. Contrary to the applicants’ contention, such derogations cannot therefore be seen as amending those acts in a lasting and general fashion.

79. I must make clear, in that regard, that the derogations included in the contested decision apply only for a period of two years, that they concern only a limited number of 120000 nationals of third countries who have submitted applications for international protection in Italy or in Greece, whose nationality is among those referred to in Article 3(2) of the contested decision, who will be relocated from one of those two Member States and who arrived or will arrive in those Member States between 24 March 2015 and 26 September 2017.

80. As the Council points out, after the final date of application of the contested decision, on 26 September 2017, the effects of the derogations will automatically expire and the general rules will begin to apply again, without the need for any intervention whatsoever on the part of the EU legislature.

81. As I have already stated, those ad hoc temporary derogations cannot be assimilated to a permanent amendment of the substantive rules contained in legislative acts of the Union in asylum matters, which could be adopted only on the basis of Article 78(2) TFEU.

82. To my mind, therefore, the adoption of the contested decision on the basis of Article 78(3) TFEU did not entail any abuse of the ordinary legislative procedure provided for in Article 78(2) TFEU.

83. It is appropriate, in that regard, to clarify the relationship between those two provisions of the Treaty.

84. When read in conjunction with Article 80 TFEU, Article 78(3) TFEU constitutes a specific legal basis for provisional measures which implement the principle of solidarity in emergency situations characterised by a sudden inflow of nationals of third countries.

85. The procedure provided for in Article 78(3) TFEU is characterised by the urgent need to act in a crisis situation. It is for that reason that it is not based on the ordinary legislative procedure.

86. As the Council points out, the measures provided for in Article 78(2) and (3) TFEU each have an autonomous legal basis in the Treaty and are applied in different situations with different objectives, without there being any need to define a hierarchy between them.

87. It is appropriate to emphasise the complementary nature of the legal bases consisting of Article 78(2)(e) ( 35 ) and Article 78(3) TFEU. The concurrent or successive use of those legal bases allows the Union, in particular, to take effective action in the event of migration crisis. Their complementary nature is illustrated by the Proposal of 9 September 2015 for a Regulation of the European Parliament and of the Council establishing a crisis relocation mechanism and amending the Dublin III Regulation.

88. In its proposal, the Commission clearly explains how the measures set out in that proposal and the emergency relocation programmes based on Article 78(3) TFEU interact.

89. As the Commission explains, ‘the proposal establishing a crisis relocation mechanism has to be distinguished from the proposals adopted by the Commission on the basis of Article 78(3) TFEU for the benefit of certain Member States confronted with a sudden inflow of nationals of third countries on their territories’. ( 36 ) The Commission goes on to state that ‘while the measures proposed by the Commission on the basis of Article 78(3) TFEU are provisional, the proposal establishing a crisis relocation mechanism introduces a method for determining for a temporary period in crisis situations which Member State is responsible for examining applications for international protection made in a Member State confronted with a crisis situation, with a view to ensur[ing] a fairer distribution of applicants between Member States in such situations and thereby facilitate the functioning of the Dublin system even in times of crisis’. ( 37 )

90. It is therefore a matter, in the latter case, and unlike what is provided for in the contested decision, of a permanent mechanism establishing a method of determining which Member State is to be responsible for examining the applications for international protection submitted in a Member State in a crisis situation. That permanent mechanism is of general application, in that its application is not targeted at certain Member States currently in a crisis situation, but may benefit any Member State confronted with such a situation.

91. The conditions for triggering the relocation mechanism are laid down in the proposal for a regulation. As the Commission states in that proposal, the beneficiary Member State must thus be ‘confronted with a crisis situation jeopardising the application of the Dublin Regulation due to extreme pressure characterised by a large and disproportionate inflow of third-country nationals or stateless persons, which places significant demands on its asylum system’. ( 38 )

92. The complementary nature of the measures adopted on the basis of Article 78(2)(e) TFEU and those adopted under Article 78(3) TFEU is further explained by the Commission as follows: ‘the establishment of a crisis relocation mechanism is without prejudice to the possibility for the Council to adopt, on a proposal from the Commission, provisional measures for the benefit of a Member State confronted by an emergency situation as characterised by Article 78(3) TFEU. The adoption of emergency measures on the basis of Article 78(3) TFEU will remain relevant in exceptional situations where an emergency response, possibly encompassing a wider migratory support, is needed, should the conditions for using the crisis relocation mechanism not be met’. ( 39 )

93. As regards the legal basis chosen, the Commission states in its proposal that that proposal ‘amends [the Dublin III] Regulation … and should therefore be adopted on the same legal basis, namely Article [78(2)(e) TFEU], in accordance with the ordinary legislative procedure’. ( 40 ) The Proposal for a Regulation amends the Dublin III Regulation by adding Section VII, entitled ‘Crisis relocation mechanism’. Insofar as it amends that regulation, the proposal is therefore correctly based on Article 78(2)(e) TFEU and therefore subject to the ordinary legislative procedure.

94. In addition, the Commission states that ‘the crisis relocation mechanism contained in this proposal entails permanent derogations, to be activated in specific situations of crisis to the benefit of specific Member States, notably from the principle laid down in Article 3(1) of [the Dublin III] Regulation … according to which an application for international protection shall be examined by the Member State which the criteria set out in Chapter III indicate as being responsible. In place of this principle, the proposal establishes, for well prescribed crisis circumstances, a mandatory distribution key for determining the responsibility for examining applications’. ( 41 )

95. What the contested decision and the proposal for a regulation have in common is that they provide the Union with the tools to be able to respond to migrant crisis situations. However, whereas the former, as a measure adopted on the basis of Article 78(3) TFEU, is temporary and targeted at Member States confronted with an emergency situation characterised by a sudden inflow of nationals of third countries, the latter establishes a relocation mechanism of unlimited duration, which is not limited to a predetermined number of nationals of third countries and which does not identify one or more Member States in advance as being beneficiaries of that mechanism.

96. It follows from those factors that, whereas Article 78(3) TFEU is the legal basis that allows the Union to respond on a provisional basis and in an emergency to a sudden inflow of nationals of third countries, Article 78(2)(e) TFEU makes it possible to provide the Union with a framework designed to respond on a permanent basis and generally to a structural problem, namely the fact that Article 3(1) of the Dublin III Regulation is inadequate in the event of sudden migration pressure on the frontline Member States.

97. It follows from the foregoing that, to my mind, Article 78(3) TFEU may serve as the basis for provisional measures, such as those set out in the contested decision, which are intended to respond to an emergency situation even if they contain derogations from particular provisions of legislative acts of the Union, provided that those derogations are strictly defined in terms of their subject matter and the period during which they will apply.

98. The Slovak Republic’s second plea and Hungary’s first plea must therefore be rejected as unfounded.

2. The first part of the Slovak Republic’s fifth plea and Hungary’s second plea, alleging that the contested decision is not provisional

99. The Slovak Republic and Hungary maintain that Article 78(3) TFEU does not provide an adequate legal basis for the adoption of the contested decision, since that decision is not provisional, contrary to the requirements of that provision.

100. Under Article 13(1) and (2) of the contested decision, that decision is to apply from 25 September 2015 until 26 September 2017, that is for a period of 24 months. Furthermore, Article 13(3) of that decision provides that it is to apply to persons arriving on the territory of the Italian Republic and the Hellenic Republic during that period, and also to applicants for international protection having arrived on the territory of those Member States from 24 March 2015 onwards.

101. It follows from those provisions that the temporal scope of the contested decision is precisely defined. It makes provision without possible ambiguity for an emergency mechanism of fixed duration, and its provisional nature cannot therefore in my view be disputed.

102. As Article 78(3) TFEU no longer refers to a maximum period of six months, as Article 64(2) of the EC Treaty did, it must be inferred that the provisional measures adopted on that basis may apply during a longer period.

103. Contrary to the Slovak Republic’s and Hungary’s contention, the fact that the effects of the contested decision may, owing to the lasting links between the applicants for international protection and the Member States of relocation, be felt beyond the period referred to in that decision is in my view irrelevant. Such more or less long term effects are inherent in the international protection that may be obtained in the Member State of relocation. If the argument put forward by the Slovak Republic and Hungary were to be followed, no relocation mechanism could be put in place on the basis of Article 78(3) TFEU.

104. Furthermore, as Article 78(3) TFEU does not prescribe a specific period, but provides only for the adoption of provisional measures, I consider that the Council was entitled, without infringing that provision and without exceeding the wide discretion which that provision confers on it, to establish a temporary relocation mechanism that would apply for 24 months. It is appropriate, in that regard, to note the desire expressed by the Commission in its proposal for a decision, that the duration of the provisional measures ‘should not be too short [so that they can] have a real impact in practice and provide genuine support for [the Italian Republic and the Hellenic Republic] … to cope with the influx of migrants’. ( 42 ) Furthermore, the choice of a period of application of 24 months is also justified in the light of the foreseeable period necessary to prepare for the implementation of the relocation procedure in all Member States, a fortiori if, as the Hellenic Republic correctly emphasised at the hearing, the unprecedented nature of that procedure is taken into account.

105. In addition, the theory advanced by the Slovak Republic and by Hungary that the duration and the effects of a measure adopted on the basis of Article 78(3) TFEU could not exceed the period necessary for the adoption of a legislative act based on Article 78(2) TFEU finds no support in the wording of those two provisions. Furthermore, insofar as it is impossible to determine in advance the period that would be necessary for the adoption of a legislative act establishing a permanent relocation mechanism on the basis of Article 78(2) TFEU, the theory advanced by the Slovak Republic and by Hungary seems to me to be impossible to put into practice. That uncertainty may be illustrated by the fact that although the proposal for a regulation establishing a permanent relocation mechanism was submitted on 9 September 2015, or on the same day as the proposal that gave rise to the contested decision, it has still not been adopted, and that it is impossible to be certain that it will be adopted before 26 September 2017, the date of expiry of the contested decision, or indeed at a later date.

106. The other arguments put forward by the Slovak Republic and by Hungary are not such as to alter my assessment. Thus, the fact that the contested decision may be adjusted according to circumstances is not inconsistent with its provisional nature, nor is the possibility, provided for in Article 4(5), that the contested decision may be extended for a maximum period of 12 months. ( 43 )

107. It follows from the foregoing that the first part of the Slovak Republic’s fifth plea and Hungary’s second plea must be rejected as unfounded.

3. The second part of the Slovak Republic’s fifth plea, alleging that the contested decision does not satisfy the conditions for the application of Article 78(3) TFEU

108. The Slovak Republic contends in three aspects that the contested decision does not satisfy the condition for the application of Article 78(3) TFEU, namely that the Member State benefiting from the provisional measures must be confronted by ‘an emergency situation characterised by a sudden inflow of nationals of third countries’.

109. In the first place, according to the Slovak Republic, the inflow of nationals of third countries into Italy and Greece at the time of the adoption of the contested decision or immediately before its adoption was reasonably foreseeable and cannot therefore be described as ‘sudden’. The statistics for 2013-2014 and the first months of 2015 indicate that the number of nationals of third countries heading for Italy and Greece had increased continuously and that, from the period 2013-2014, that increase was considerable. In addition, so far as Italy is concerned, current data for 2015 indicate rather a year-on-year drop in the number of migrants.

110. To my mind that argument cannot succeed.

111. I shall be begin by pointing out, generally, and by reference to the ‘Annual Brief 2015’ of Frontex, that in 2015 the number of irregular entries by nationals of third countries at the external borders of the Union reached more than 1.8 million, whereas that number was 285532 in 2014, representing an increase of 546%. As the main points of entry of those nationals into the Union, Greece and Italy were exposed to a particularly intense migration pressure.

112. Article 78(3) TFEU provides a specific legal basis in order to respond to the emergency situations in migration matters with which one or more Member States are confronted, by providing for the adoption of provisional measures, which, as the Commission observed in its proposal for a decision, are ‘exceptional in nature’, in that ‘they can only be triggered when a certain threshold of urgency and severity of the problems created in the Member States(s)’ asylum system(s) by a sudden inflow of nationals of third countries is met’. ( 44 )

113. Like the Council and the interveners which have submitted observations in its support, I observe that the huge extent of the increase of the inflow of nationals of third countries in 2015 and, in particular, in July and August of that year, is an objective fact reflected by the Frontex data mentioned in recital 13 of the contested decision. Those data show, for Italy, that there were 42356 irregular border crossings in July and August 2015, an increase of 20% over May and June 2015. As regards Greece, that figure reached 137000 during July and August 2015, an increase of 250%.

114. As indicated in recital 13 of the contested decision, the Council took into account the fact that a large part of those migrants were, owing to their nationality, likely to be granted international protection.

115. Furthermore, it follows from recital 14 of the contested decision that, according to Eurostat and European Asylum Support Office (EASO) figures, between January and July 2015, a steep increase was observed in the number of persons who applied for international protection in Italy and Greece, which fully confirms the finding that there was an exponential increase in the pressure on the asylum systems of the Italian Republic and the Hellenic Republic.

116. I would add that it follows from recital 16 of the contested decision that the Council also took into account the fact that the emergency situation affecting the Italian Republic and the Hellenic Republic would in all likelihood continue owing to instability and conflicts in the immediate neighbourhood of those two Member States. Evidence of constant pressure on the asylum systems of the Italian Republic and the Hellenic Republic, contributing to the constant undermining of those systems, made it all the more necessary for the Union to adopt an immediate response, in the form of provisional measures adopted on the basis of Article 78(3) TFEU, to an emergency situation characterised by a sudden and massive inflow of nationals of third countries into the territory of those Member States. ( 45 )

117. The suddenness of the inflow of nationals of third countries is thus apparent from objective data. Those data highlight a phenomenon of a rapid increase in the number of nationals of third countries arriving in Italy and Greece over a brief period. The inability of those two Member States to cope with that phenomenon characterises the existence of an emergency situation which the contested decision is intended to address.

118. Whether that inflow of nationals of third countries was or was not foreseeable, what matters in order to justify the use of Article 78(3) TFEU is that such an inflow, by its rapidity and degree, made an immediate reaction on the part of the Union, by the adoption of provisional measures to relieve the considerable pressure then being applied to the Italian and Greek asylum systems indispensable, as indicated in recital 26 of the contested decision.

119. The fact that the tendency for the number of nationals of third countries arriving irregularly in Italy and Greece to increase became apparent before 2015 is also immaterial. As I have already stated, what matters is the finding that there was a sudden increase in that number, as shown by the objective data referred to above, the accuracy of which is not disputed by the applicants.

120. In the second place, the Slovak Republic maintains that Article 78(3) TFEU means that the Member State is confronted with an emergency situation which is specifically attributable to a sudden inflow of nationals of third countries, which is clear from the use of the word ‘characterised’. However, the Slovak Republic observes that, at least in the case of the Hellenic Republic, that causal link does not seem to exist. In fact, it is established that the Greek (and also the Italian) asylum and migration system has long been confronted with significant problems without there being any direct causal link with the migration phenomenon characteristic of the period during which the contested decision was adopted.

121. To my mind, that argument must be rejected.

122. Admittedly, as the Council observes, there is a discrepancy between the language versions of Article 78(3) TFEU, in that, in 15 versions, the word ‘characterised’ is used, while in nine versions the word ‘caused’ appears. In both cases, however, the condition that there must be a close relationship between the emergency situation requiring the adoption of provisional measures and the sudden inflow of nationals of third countries is expressed. However, as is apparent from recitals 13 and 26 of the contested decision, it was indeed the sudden inflow of nationals of third countries during 2015, and in particular in July and August 2015, that contributed to unbearable pressure, characteristic of an emergency situation, being placed on the Italian and Greek asylum systems.

123. It is immaterial, in that regard, that the Italian and Greek asylum systems had already been weakened. As the Council correctly observes, it is likely that the strong pressure experienced by the Italian and Greek asylum systems would have seriously disrupted any asylum system, even one not suffering from structural weaknesses.

124. In the third place, according to the Slovak Republic, the contested decision could not be adopted on the basis of Article 78(3) TFEU, since it was intended to resolve not an existing or imminent emergency situation affecting the Italian Republic and the Hellenic Republic, but, at least in part, hypothetical future situations which, at the time of the adoption of the contested decision, could not have been claimed to be sufficiently likely to arise.

125. The Slovak Republic maintains that the period of application, of two, or indeed three years, of the contested decision is too long for it to be possible to assert that, throughout that period, the measures adopted would respond to the emergency situation, whether present or imminent, affecting the Italian Republic and the Hellenic Republic. Thus, during that period, the emergency situation may no longer exist in those Member States. Furthermore, the relocation mechanism for the reserve of 54000 additional persons provided for in Article 4(3) of the contested decision, read with Article 4(1)(c) of that decision, is intended to address wholly hypothetical situations in other Member States.

126. The Republic of Poland supports that point of view and maintains that Article 78(3) TFEU refers to a pre-existing and current crisis situation which requires the adoption of immediate corrective measures and not, as the contested decision does, to crisis situations that may arise in the future but the incidence, nature and degree of which are uncertain or difficult to foresee.

127. Unlike the Slovak Republic and the Republic of Poland, I consider that the fact that the contested decision refers to future events or situations does not mean that it is incompatible with Article 78(3) TFEU.

128. In fact, I would recall that it is apparent from recitals 13 and 26 of the contested decision that the adoption of that decision is primarily inspired by the need to respond to an emergency situation that manifested itself in particular in July and August 2015 in Italy and Greece. The fact that the contested decision contains a number of provisions that enable it to be adapted to developments in that situation must not conceal the fact that the decision is intended to resolve a problem that arose before it was adopted.

129. Be that as it may, I consider that Article 78(3) TFEU does not preclude the contested decision from containing several provisions that enable it to be adapted to developments in migration flows. That provision confers a wide discretion on the Council in the choice of the measures to be taken in order to provide an adequate response to an emergency situation characterised by the sudden inflow of nationals of third countries. As such an emergency situation is capable of continuing, developing and affecting other Member States, the Council was correct to envisage the possibility of adapting its action and, in particular, the characteristics and procedures of the application of the temporary relocation mechanism.

130. Thus, the need to respond to an emergency situation by means of provisional measures, expressed by the legal basis that is Article 78(3) TFEU, does not preclude either the adaptation of a measure such as the contested decision to the evolution of the situation or the adoption by the Council of implementing acts. Responding to the emergency does not exclude the developing and adapted nature of the response, provided that it retains its provisional nature.

131. From that aspect, provisions such as the second subparagraph of Article 1(2) and Article 4(3) of the contested decision, under which the Commission may submit proposals to the Council if it considers that an adaptation of the relocation mechanism is justified by the evolution of the situation on the ground or that a Member State is confronted with an emergency situation characterised by a sudden inflow of nationals of third countries due to a sharp shift of migration flows, are perfectly compatible with Article 78(3) TFEU.

132. The Council was also entitled, without thereby affecting the legality of the contested decision, to reproduce, in the first sentence of Article 9 of that decision, the circumstances in which provisional measures, distinct from the contested decision, may be taken on the basis of Article 78(3) TFEU and the consequences that may ensue as regards the application of the contested decision.

133. Last, as the Council correctly observes, the fact that provision is made in the contested decision for the adoption of implementing measures ( 46 ) and that the adoption of such measures is to depend on future events or situations cannot render the contested decision illegal. As is apparent from recital 28 of the contested decision, the exercise by the Council of such implementing powers is necessary in order to enable the temporary relocation mechanism to be adapted quickly to rapidly evolving situations.

134. The second part of the Slovak Republic’s fifth plea is therefore unfounded.

135. It follows from the foregoing that the pleas put forward by the Slovak Republic and by Hungary, alleging that Article 78(3) TFEU is inadequate as a legal basis for the adoption of the contested decision, should all be rejected as unfounded.

C. The pleas relating to the regularity of the procedure leading to the adoption of the contested decision and alleging breach of essential procedural requirements

1. The Slovak Republic’s first plea and Hungary’s seventh plea, alleging infringement of Article 68 TFEU

136. The Slovak Republic and Hungary maintain that, since the contested decision exceeds the guidance defined by the European Council in its conclusions of 25 and 26 June 2015, according to which the distribution of the persons relocated was to be decided ‘by consensus’ in a manner ‘reflecting the specific situations of Member States’, ( 47 ) the Council infringed Article 68 TFEU and breached the essential procedural requirements.

137. In the words of Article 15(1) TEU, ‘the European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions’.

138. Under Article 68 TFEU, ‘the European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice’.

139. I observe that, although the conclusions of the European Council of 25 and 26 June 2015 do in fact contain a provision to the effect that the Member States should decide ‘by consensus’ on the distribution of persons in clear need of international protection, and do so in a manner ‘reflecting the specific situations of Member States’, ( 48 ) that provision relates to the temporary and exceptional relocation, over two years, from Italy and Greece, of 40000 persons. In fact, that measure for the relocation of 40000 persons was the subject matter of Decision 2015/1523, which therefore specifically responds to the guidance given by the European Council.

140. According to the Slovak Republic and Hungary, a new emergency relocation measure, such as that provided for in the contested decision, could not be proposed, and a fortiori could not be adopted, unless the European Council had first taken a position in that sense.

141. The Slovak Republic thus contends that, by adopting the contested decision without the mandate resulting from the conclusions of the European Council of 25 and 26 June 2015 being amended or extended, the Council encroached on the functions and powers of the European Council. It therefore infringed Article 68 TFEU and Article 13(2) TEU and breached the principle of institutional balance. In addition, in Hungary’s submission, Article 15 TEU should be interpreted as meaning that the conclusions of the European Council are binding on the institutions of the Union.

142. Pursuant to Article 13(2) TEU, ‘each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’. That provision reflects the principle of institutional balance, characteristic of the institutional structure of the Union, which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions. ( 49 )

143. To my mind, neither the Commission nor the Council exceeded the powers conferred on them, respectively, by Article 78(3) TFEU by proposing and then adopting the contested decision.

144. In particular, the conclusions of the European Council of 25 and 26 June 2015 cannot have the effect of prohibiting the Commission from proposing, and then the Council from adopting, a provisional binding mechanism for the relocation of applicants for international protection that supplements Decision 2015/1523.

145. I would point out, in that regard, that the provisional measures that can be adopted by the Council on the basis of Article 78(3) TFEU are adopted on a proposal from the Commission. That power to initiate legislation, conferred on the Commission generally by Article 17(2) TEU, could be called in question if it were accepted that it depended on the prior adoption of conclusions by the European Council. That applies a fortiori when a provision of the Treaty, such as Article 78(3) TFEU, confers on the Commission the power to propose an immediate response by the Union to an emergency situation. In the exercise of its power of initiative, the Commission, which, in accordance with Article 17(1) TEU, ‘shall promote the general interest of the Union and take appropriate initiatives to that end’, must be able to determine the subject matter, objective and content of its proposal. ( 50 )

146. As the Italian Republic and Grand Duchy of Luxembourg submit, in essence, the contested decision addresses a new emergency situation that arose in July and August 2015. The adoption of a temporary mechanism for the relocation of 120000 applicants for international protection, on the basis of Article 78(3) TFEU, did not need to be specifically referred to in advance in conclusions of the European Council. Apart from the fact that such a requirement is not apparent from the wording of that provision, it would have the effect of destroying the ability to respond that the institutions of the Union must demonstrate when Member States are faced with an emergency situation.

147. Nor must the conclusions of the European Council of 25 and 26 June 2015 be construed as having effects going beyond the adoption of the measure having the specific object of giving effect to those conclusions, namely Decision 2015/1523, which concerns the voluntary relocation of 40000 persons.

148. In any event, even on the view that Decision 2015/1523 did not exhaust the recommendations made in the conclusions of the European Council of 25 and 26 June 2015, I do not detect in the steps taken by the Commission and the Council, on the basis of Article 78(3) TFEU, for the purpose of the adoption of the contested decision, any fundamental variation from the guidance defined by the European Council in its conclusions of 25 and 26 June 2015.

149. In fact, the European Council states, in point 2 of its conclusions, that work should be taken forward ‘further to the Commission’s European Agenda on Migration’. That agenda provides for the activation of the emergency mechanism provided for in Article 78(3) TFEU. In addition, the European Council calls, in point 3 of those conclusions, for ‘wider efforts’ to be deployed ‘to better contain the growing flows of illegal migration’, in particular by developing the aspect relating to relocation. The Commission and the Council therefore followed the line of action recommended by the European Council by proposing and then adopting the contested decision on the basis of Article 78(3) TFEU.

150. Last, insofar as the basis of the challenge mounted by the Slovak Republic and by Hungary is that the contested decision was adopted by a qualified majority, it should be observed that, since Article 78(3) TFEU allows the Council to adopt measures by a qualified majority, the European Council cannot, in the absence of a provision to the contrary in the Treaty, alter that voting rule by imposing on the Council a rule requiring a unanimous vote. It is clear from the Court’s case-law that, 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 discretion of the Member States or the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties. ( 51 )

151. It follows from the foregoing that the Slovak Republic’s first plea and Hungary’s seventh plea must be rejected as unfounded.

2. The third part of the Slovak Republic’s third plea and the first part of its fourth plea, and Hungary’s fifth plea, alleging breach of essential procedural requirements in that the Council did not comply with the obligation to consult the Parliament laid down in Article 78(3) TFEU

152. The Slovak Republic and Hungary claim that, since the Council made substantial amendments to the Commission’s initial proposal and adopted the contested decision without again consulting the Parliament, it breached the essential procedural requirements laid down in Article 78(3) TFEU, and that the contested decision should therefore be annulled. The Slovak Republic maintains that, in doing so, the Council also infringed Article 10(1) and (2) TEU and Article 13(2) TEU and breached the principles of representative democracy, institutional balance and sound administration.

153. In that regard, the Slovak Republic and Hungary mention the following substantial amendments.

154. Both Member States observe that, in the contested decision, Hungary is no longer among the Member States that benefit from the relocation mechanism, but is among the Member States of relocation, which entailed the deletion of Annex III to the initial proposal and Hungary’s inclusion in Annexes I and II to the contested decision.

155. The fundamental amendment lies in the fact that, although the total number of 120000 persons remained the same, the number of 54000 persons included in that total number which, as initially envisaged, related to persons to be relocated from Hungary, was transformed into a ‘reserve’ which had not been envisaged in the Commission’s initial proposal. Consequently, the structure and a number of essential elements of that proposal were profoundly altered, such as the title and its scope ratione personae, the list of beneficiary Member States and Member States of relocation and the number of persons to be relocated in each of the Member States. That gave rise to amendments incorporated in Articles 1 and 3 and also in Article 4(1)(c) of the contested decision.

156. The Slovak Republic mentions other amendments to the Commission’s initial proposal. It thus states that, contrary to the situation in that proposal, the contested decision provides, in Article 4(3), that other Member States may benefit from the relocation mechanism if they satisfy the conditions set out in that provision. Furthermore, Article 13(3) of the contested decision provides that that decision is to apply retroactively to applicants having arrived from 24 March 2015 onwards, or a period of six months preceding the adoption of the decision, whereas in its initial proposal the Commission had limited that retroactive effect to one month.

157. Likewise, Article 4(5) and (6) of the contested decision contains substantial amendments by comparison with the Commission’s initial proposal as regards the arrangements for the temporary suspension of a Member State’s participation in the relocation process. The Slovak Republic claims that the contested decision provides that the power to decide on such suspension is vested in the Council, whereas the Commission had proposed that that power be entrusted to it. The contested decision also limits the suspension to 30% of applicants allocated to the Member State concerned, whereas the Commission’s initial proposal did not include such a restriction. In addition, whereas the Commission’s initial proposal provided that a Member State whose participation was suspended would be required to pay financial compensation, such an obligation does not appear in the text of the contested decision.

158. Last, the Slovak Republic observes that, whereas recital 25 of the Commission’s initial proposal indicated the distribution key on the basis of which the figures relating to the persons to be relocated to each Member State had been determined, the contested decision does not mention such a key and therefore does not disclose the criteria on which the allocations to each Member State were made.

159. The applicants take issue with the Council for having failed to consult the Parliament again after making those fundamental amendments, even though, in its resolution of 17 September 2015, the Parliament had requested the Council to consult it again if it intended to substantially amend the Commission’s proposal.

160. Although the Presidency of the Union regularly informed the Parliament, in particular the Parliament’s Civil Liberties, Justice and Home Affairs Committee (‘the LIBE Committee’), of how the Council’s dossier was progressing, that cannot replace a formal resolution of the Parliament adopted in plenary session.

161. Hungary refers to two letters sent by the President of the Parliament’s Legal Affairs Committee to the President of the Parliament, in which it is stated, in particular, that that committee had also reached the conclusion that the Council had substantially amended the Commission’s initial proposal by removing Hungary from the group of beneficiary Member States and that the Parliament should therefore have been consulted again. Nonetheless, for political reasons, that committee recommended that the Parliament should not intervene in the present cases before the Court.

162. The Council objected to those two letters being used in these proceedings and, in particular, requested the Court to adopt a measure of inquiry in order to verify their authenticity. In my view, those two letters should not be taken into account by the Court, which is ultimately responsible, independently of what is stated in those letters, to decide whether the Council fulfilled its obligation to consult the Parliament in accordance with the requirements of Article 78(3) TFEU.

163. The Court has held that ‘due consultation of the Parliament in the cases provided for by the Treaty constitutes an essential formal requirement breach of which renders the measure concerned void’. ( 52 ) I would also point out that, according to the settled case-law of the Court, ‘the requirement to consult the … Parliament … in the cases provided for by the Treaty, means that it must be freshly consulted whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases in which the amendments substantially correspond to the wishes of the Parliament itself’. ( 53 )

164. It is therefore necessary to examine whether the amendments to which the applicants refer concern the very essence of the text considered as a whole.

165. In that regard, it must be stated that the Commission’s initial proposal, like the amended proposal, provided, in order to cope with an emergency situation characterised by a sudden inflow of nationals of third countries, for a temporary mechanism for the relocation of 120000 persons, providing, in a binding manner, for the distribution of those persons among the Member States over a specific period. Hungary’s withdrawal from the Member States benefiting from that mechanism does indeed constitute a legal amendment, but does not affect the fundamental characteristics of that mechanism.

166. Following Hungary’s withdrawal, the Commission’s initial proposal necessarily received a number of amendments, in particular as regards the reserve of 54000 persons. However, those adjustments do not affect the fundamental structure of the contested decision. Furthermore, the other amendments to which the Slovak Republic refers do not strike me as being of such a kind as to affect the hard core of the initial proposal, as I have previously emphasised.

167. All in all, the various amendments which the Commission made to its proposal did not therefore affect the very essence of the contested decision considered as a whole and therefore did not require a fresh consultation of the Parliament.

168. I would add that it may be asked why a fresh consultation of the Parliament should be necessary where the main amendment which the Council made to the Commission’s initial proposal is not the result of a choice freely made by the Council but is limited to taking note of a new circumstance beyond its control which, moreover, it is required to take into account.

169. In this instance, it must be emphasised that the Council was not in a position to require Hungary to remain a beneficiary of the temporary relocation mechanism, as envisaged in the Commission’s initial proposal. The Council could therefore only take note of Hungary’s stated intention not to be included among the Member States for whose benefit that mechanism was to be applied.

170. Furthermore, unless consultation of the Parliament must be regarded as a purely formal step, the raison d’être of the consultation of the Parliament is to arrive, where appropriate, at amendments by the Council of the text submitted which will accord with the Parliament’s intention. In the present case, however, the Council had no choice other than to take note of Hungary’s withdrawal, by adjusting its decision to that circumstance beyond its control.

171. All in all, I consider that, in order to determine whether or not the Parliament should have been consulted again, a factor over which the Council has no control cannot be regarded as an essential element of legislation. What occurred in this instance is not the result of a political compromise, but the result of the refusal expressed by a Member State to benefit from a provisional measure adopted on the basis of Article 78(3) TFEU. While the Council may compel the Member States, on the basis of that provision, read in conjunction with Article 80 TFEU, to show solidarity and to accept their share of responsibility in order to cope with an emergency situation, it cannot in my view require a Member State to benefit from that solidarity.

172. In any event, even on the assumption that it might be considered that the text eventually adopted, considered as a whole, differs in essence from the text on the basis of which the Parliament adopted its legislative resolution of 17 September 2015, I consider that, having regard to the emergency circumstances in which a measure based on Article 78(3) TFEU, such as the contested decision, was adopted, the Parliament was duly consulted throughout the procedure, concerning both the Commission’s proposal and the amendments made thereto.

173. It is apparent from the observations submitted to the Court, in particular by the Council and the Grand Duchy of Luxembourg, that the Parliament, on the occasion of numerous formal and informal contacts, was informed by the Council of virtually all the amendments made to the initial text and that it had no objections to them.

174. More specifically, the Council states, without being contradicted, that on 14 September 2015 at 12 noon it decided to consult the Parliament concerning the Commission’s proposal. On the same day the Secretary-General of the Council communicated, for the attention of the President of the Parliament, a formal consultation letter in which the Council undertook to keep the Parliament fully informed of developments in the case within the Council. On 16 September 2015, Mr Jean Asselborn, the Luxembourg Minister for Immigration and Asylum, President of the Council, attended the extraordinary plenary sitting of the Parliament. Addressing the Parliament, he presented the results of the meeting of the ‘Justice and Home Affairs’ Council held on 14 September 2015. On that occasion, he announced that Hungary had stated that it refused to be regarded as a frontline Member State and to benefit from the solidarity mechanism, and also that, in spite of Hungary’s withdrawal, the number of 120000 persons to be relocated would be maintained.

175. As the Grand Duchy of Luxembourg correctly observes, the Parliament was therefore put in a position to take that circumstance into account when adopting its legislative resolution on 17 September 2015. It was therefore able to take note, at the stage of its formal consultation, of Hungary’s withdrawal from the group of beneficiaries of the temporary mechanism for the relocation of 120000 persons. If that new circumstance had seemed to the Parliament to stand in the way of the adoption of the contested decision, it would thus have been in a position to express its opinion in that regard.

176. The fact that the Parliament’s legislative resolution of 17 September 2015 does not reflect Hungary’s withdrawal and that no other resolution formalises the consultation of the Parliament on the amendments made to the Commission’s proposal following that Member State’s withdrawal is not in my view decisive.

177. I consider that the particular characteristics of the legal basis that is Article 78(3) TFEU argue in favour of relative flexibility when ascertaining whether the Parliament was duly consulted again following Hungary’s withdrawal and the amendments of the initial text that are the consequence of that withdrawal.

178. I note, moreover, that the situation of urgency was fully taken into account by the Parliament in the context of its consultation. In fact, the Parliament’s legislative resolution of 17 September 2015 was adopted according to the emergency procedure provided for in Article 154 of the Parliament’s Rules of Procedure. It should also be observed that the Parliament highlighted, in that resolution, ‘the exceptional situation of urgency and the need to address the situation with no further delay’.

179. Admittedly, in that resolution, the Parliament ‘asks the Council to consult the Parliament again if it intends to substantially amend the Commission proposal’. However, I consider that, given the exceptional nature of the emergency situation and the requirement for rapidity in the adoption of a response to the migration crisis which was emphasised by the Parliament itself, there is no need to require that a new consultation was carried out in a strictly defined formal and procedural framework.

180. Furthermore, the Council provides information about the way in which the Parliament was duly informed between 17 September 2015, the date of its legislative resolution, and 22 September 2015, the date of the adoption of the contested decision.

181. Thus, within the framework of the informal contacts announced in the consultation letter, the Presidency of the Council prepared for the Parliament a consolidated version of the text of the proposal, containing all the changes made by the Council up to 21 September 2015 at 10 p.m. That text was communicated to the Parliament on 22 September 2015 at 9 a.m. On the same day, the LIBE Committee, which is undisputedly the Parliamentary Committee with competence in asylum matters, held a meeting during which the Presidency of the Council presented the text of the amended Commission proposal. In that regard, the Presidency of the Council was able to incorporate in its presentation the most recent amendments made to the text during the extraordinary meeting of the Committee of Permanent Representatives (Coreper) held on the same morning. The Parliament was also informed of the agenda of the meeting of the Council scheduled to take place at 2.30 p.m. on the same day, and also of the Presidency’s intentions and the foreseeable development of the file during that meeting of the Council. Thereafter, the LIBE Committee discussed the text as thus amended, in preparation for the extraordinary meeting of the Council.

182. It follows from those elements that the Council closely involved the Parliament in the drafting of the contested decision. Given the situation of urgency, recognised and taken into account by the Parliament itself, and the necessary flexibility that must guide the procedure in such a situation, it must be accepted that the Parliament was duly consulted, as required by Article 78(3) TFEU.

183. I therefore propose that the Court should reject the third part of the Slovak Republic’s third plea and the first part of its fourth plea, and Hungary’s fifth plea, as unfounded.

3. The second part of the Slovak Republic’s fourth plea and Hungary’s third plea, alleging breach of essential procedural requirements in that the Council did not act unanimously, contrary to Article 293(1) TFEU

184. The Slovak Republic and Hungary maintain that, in adopting the contested decision, the Council breached the essential procedural requirement prescribed in Article 293(1) TFEU, in that it amended the Commission’s proposal without complying with the requirement for unanimity laid down in that provision. The Slovak Republic submits that, in so doing, the Council also infringed Article 13(2) TEU and breached the principles of institutional balance and sound administration.

185. According to the applicants, the requirement for unanimity laid down in Article 293(1) TFEU applies to any amendment of the Commission’s proposal, including where there is a minor amendment, and independently of whether the Commission has explicitly or implicitly accepted the amendments made to its proposal during the discussions within the Council.

186. The applicants also claim that there is nothing to indicate that, during the procedure leading to the adoption of the contested decision, the Commission withdrew its proposal and submitted a new proposal drafted in identical terms to those of the text that subsequently became the contested decision. On the contrary, it follows from the minutes of the Council’s sitting of 22 September 2015 that the Commission neither lodged a new proposal nor made a preliminary declaration concerning the amended proposal as finally adopted by the Council. Yet the Commission is required to adhere actively and explicitly to the amendments concerned before it can be considered to have altered its proposal within the meaning of Article 293(2) TFEU. Furthermore, the present case is different from that at issue in the judgment of 5 October 1994, Germany v Council. ( 54 )

187. Last, the applicants deny that the two Members of the Commission who were present at the various meetings held within the Council were duly authorised by the College of Commissioners to approve the text as finally adopted by the Council.

188. I do not share the position supported by the applicants.

189. As I have previously stated, the FEU Treaty confers on the Commission a power of legislative initiative. Article 293(1) TFEU allows that power to be guaranteed insofar as it provides that, except in the cases referred to in the provisions of the FEU Treaty mentioned by it, where, pursuant to the Treaties, the Council acts on a proposal from the Commission, it may amend that proposal only by acting unanimously. ( 55 )

190. Furthermore, Article 293(2) TFEU states that ‘as long as the Council has not acted, the Commission may alter its proposal at any time during the procedures leading to the adoption of a Union act’.

191. In the context of the procedure leading to the adoption of the contested decision, I consider that nothing was done to undermine the Commission’s power of initiative, which Article 293 TFEU is intended to preserve. I observe, moreover, that the Commission itself has asserted, in the context of the present proceedings, that its institutional powers were respected.

192. It follows from the explanations provided to the Court by the Commission that the Commission set itself the priority objective, at its meeting of 16 September 2015, of having the Council adopt, during its sitting on 22 September 2015, a binding and immediately applicable decision concerning the relocation of 120000 persons in clear need of international protection. In order to achieve that priority objective, Mr Frans Timmermans, First Vice-President of the Commission, and Mr Dimitris Avramopoulos, the Member of the Commission responsible for migration, home affairs and citizenship, were, according to the information supplied by the Commission, given the necessary margin of discretion in respect of the other aspects of the proposal.

193. As the Commission states, Article 13 of its Rules of Procedure permits it to ‘instruct one or more of its Members to adopt, with the agreement of the President, the definitive text of any instrument or of any proposal to be presented to the other institutions, the substance of which has already been determined in discussion’. I observe that the applicants adduce no evidence to support their assertions that the two Members of the Commission were not duly authorised by the College of Commissioners to approve, on behalf of the Commission, the amendments to the initial proposal. In those circumstances, and having regard to the explanations provided by the Commission, it may in my view be presumed that the First Vice-President of the Commission and the Commissioner responsible for asylum and immigration were duly authorised by the College of Commissioners to take part in full, on behalf of the Commission, in the procedure that led to the adoption of the contested decision.

194. The Commission’s power of initiative was preserved in the context of the procedure that led to the adoption of the contested decision, insofar as it must be considered that the Commission, in accordance with the possibility afforded by Article 293(2) TFEU, amended its proposal.

195. It should be emphasised, in that regard, that the Court attaches no importance to the form taken by the amended proposal. It has held that ‘such amended proposals are part of the [Union] legislative process, which is characterised by a certain flexibility, necessary for achieving a convergence of views between the institutions’. ( 56 )

196. The need to accept a certain flexibility in the decision-making process in order to facilitate the search for political compromises is all the more acute in a context of urgency such as that which characterises the implementation of Article 78(3) TFEU.

197. It follows that what matters, in order to ensure that the Commission’s power of initiative has been respected, is to ascertain whether the Commission gave its consent to the amendments made to its proposal. As the Council correctly observes, it follows from a reading of the combined provisions of Article 293(1) and (2) TFEU that the requirement for a unanimous vote by the Council applies only in a situation where the Commission objects to an amendment of its proposal.

198. However, it is apparent from the file that the First Vice-President of the Commission and the Member of the Commission responsible for asylum and immigration actively and continuously participated in seeking a political compromise within the Council. To that end, those two Members of the Commission accepted the Council’s amendments to the initial proposal. At the time of acting, the Council therefore had before it a Commission proposal amended in accordance with the political comprise accepted by two Members of the Commission, duly authorised to that effect by the Commission, in accordance with the requirements of Article 293(2) TFEU. ( 57 )

199. In the light of the foregoing, I propose that the Court should reject the second part of the Slovak Republic’s fourth plea and Hungary’s third plea as unfounded.

4. The second part of the Slovak Republic’s third plea and Hungary’s fourth plea, alleging breach of essential procedural requirements, in that the right of the national parliaments to issue an opinion in accordance with Protocol (No 1) and Protocol (No 2) was not respected

200. The Slovak Republic, by way of alternative plea, and Hungary claim that, at the time of the adoption of the contested decision, the right of the national parliaments to issue an opinion on any draft proposal for a legislative act, as provided for in Protocol (No 1) and Protocol (No 2), was not respected.

201. Since, in the applicants’ submission, the contested decision constitutes, by its content, a legislative act, insofar as it amends legislative acts of the Union, that decision ought to have been adopted by the legislative procedure, so that the right of the national parliaments to issue an opinion on the proposal for that act had to be respected. Communication of the draft to the national parliaments for their information, as was done on 13 September 2015, was therefore not sufficient. In any event, as the draft was adopted by the Council, in its amended version, on 22 September 2015, the eight-week period within which the national parliaments are to issue an opinion under Article 4 of Protocol (No 1) and Article 6 of Protocol (No 2) was not observed.

202. In addition, the exception in urgent cases as provided for in Article 4 of Protocol (No 1), which enables the eight-week period to be shortened, is not applicable since no document issued by the Council refers to the need that, owing to the urgent nature of the case, the national parliaments must issue their opinions within a shorter period.

203. Like the Council, I consider that, since, as I have previously demonstrated, the contested decision is a non-legislative act, it was not subject to the requirements linked with the participation of the national parliaments which are attached to the adoption of a legislative act, as provided for in Protocol (No 1) and Protocol (No 2).

204. The second part of the Slovak Republic’s third plea and Hungary’s fourth plea must therefore be rejected as unfounded.

5. The first part of the Slovak Republic’s third plea, alleging breach of essential procedural requirements, in that the Council failed to fulfil the requirement that the deliberations and the vote within the Council be held in public

205. The Slovak Republic maintains, in the alternative, that if the Court should find that the contested decision was adopted according to a legislative procedure and is therefore a legislative act, it follows that the Council breached an essential procedural requirement by adopting the contested decision in private in the exercise of its non-legislative activities, since Article 16(8) TEU and Article 15(2) TFEU provide that the meetings of the Council are to be held in public when it considers and votes on a draft legislative act.

206. I consider, as does the Council, that since, as I have already demonstrated, the contested decision is a non-legislative act, that decision is not subject to the conditions attached to the adoption of a legislative act, including the requirement that the Council deliberate and vote in public.

207. The first part of the Slovak Republic’s third plea must therefore be rejected as unfounded.

6. Hungary’s sixth plea, alleging breach of essential procedural requirements in that, when adopting the contested decision, the Council did not comply with the language rules of Union law

208. Hungary claims that the Council breached an essential procedural requirement in that it adopted the contested decision although the text of the decision put to the vote was not available in all the official languages of the Union.

209. More specifically, the Council did not comply with the language rules of Union law and, in particular, with Article 14(1) of its Rules of Procedure, ( 58 ) since the texts representing the successive amendments to the Commission’s initial proposal, including the text of the contested decision as finally adopted by the Council, were distributed to the delegations of the Member States only in English.

210. The Slovak Republic raised the same plea in its reply. To my mind, in the context of the action brought by that Member State, that plea must be considered to be out of time and therefore inadmissible.

211. Article 14 of the Rules of Procedure of the Council, entitled ‘Deliberations and decisions on the basis of documents and drafts drawn up in the languages provided for by the language rules in force’, provides: ‘1. Except as otherwise decided unanimously by the Council on grounds of urgency, the Council shall deliberate and take decisions only on the basis of documents and drafts drawn up in the languages specified in the rules in force governing languages. 2. Any member of the Council may oppose discussion if the texts of any proposed amendments are not drawn up in such of the languages referred to in paragraph 1 as he or she may specify.’

212. The Council maintains that that provision of its Rules of Procedure must be understood as meaning that, although paragraph 1 requires that the documents and drafts that constitute the ‘basis’ of the Council’s deliberations, in this instance the Commission’s initial proposal, be made available to the Member States in all the official languages of the Union, paragraph 2 of that provision lays down a simplified procedure for amendments, which do not necessarily have to be available in all the official languages of the Union. Only where a Member State objects does the language version indicated by that Member State also have to be submitted to the Council before it can continue to deliberate.

213. I consider that the explanation thus provided by the Council of the way in which Article 14 of its Rules of Procedure must be understood ( 59 ) is convincing, in that it constitutes a balanced and flexible approach that can ensure the effectiveness of the Council’s works, especially in the context of the urgency that characterises the provisional measures adopted on the basis of Article 78(3) TFEU. Furthermore, that explanation coincides with the conduct of the procedure that led to the adoption of the contested decision.

214. In the present case, as the Council states, without being contradicted, the Commission made its proposal for a decision available to all the delegations of the Member States in all the official languages of the Union. Furthermore, the Council indicates, without being challenged by the applicants, that all the amendments requested orally by various Member States, set out in working documents drafted in English and distributed to the delegations, were read by the President of the Council and simultaneously interpreted into all the official languages of the Union. According to the Council, no Member State raised any objection under Article 14(2) of the Rules of Procedure of the Council.

215. Last, and in any event, as the Council correctly observes, it follows from the case-law of the Court that, even on the assumption that, in adopting the contested decision, the Council infringed Article 14 of its Rules of Procedure, a procedural irregularity of that nature could entail annulment of the act ultimately adopted only if, were it not for that irregularity, the procedure could have led to a different result. ( 60 ) In fact, Hungary has put forward no material of such a kind as to show that, if the amendments to the Commission’s initial proposal had been drawn up in all the official languages of the Union, the procedure could have led to a different result.

216. Consequently,