Case C-643/15: Action brought on 2 December 2015 — Slovak Republic v Council of the European Union
Date: 2015-12-02
Institutions: Court of Justice
Subjects: EU migration policy, drafting of EU law, external border of the EU, foreign national, institutional balance (EU), principle of legal certainty, principle of proportionality, refugee, representative democracy, transfer of population








C_2016038EN.01004101.xml










1.2.2016   


EN


Official Journal of the European Union


C 38/41





Action brought on 2 December 2015 — Slovak Republic v Council of the European Union
(Case C-643/15)
(2016/C 038/55)
Language of the case: Slovak

Parties


Applicant: Slovak Republic (represented by: Ministerstvo spravodlivosti Slovenskej republiky)

Defendant: Council of the European Union

Form of order sought







—


annul 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; (1)











—


order the Council of the European Union to pay the costs.





Pleas in law and main arguments

The Slovak Republic puts forward six pleas in law in support of its action:






1.


First plea in law: infringement of Article 68 TFEU and of Article 13(2) TEU and the principle of institutional balance
By adopting the contested decision going beyond the preceding guidelines of the European Council, and hence contrary to its mandate, the Council infringed Article 68 TFEU as well as Article 13(2) TEU and the principle of institutional balance.










2.


Second plea in law: infringement of Article 10(1) and (2) TEU, Article 13(2) TEU, Article 78(3) TFEU, Articles 3 and 4 of Protocol No 1 and Articles 6 and 7 of Protocol No 2, and the principles of legal certainty, representative democracy and institutional balance
An act such as the contested decision cannot be adopted on the basis of Article 78(3) TFEU. In the light of its content, the contested decision has the character of a legislative act, and should therefore have been adopted by the legislative process, which is not however provided for in Article 78(3) TFEU. By adopting the contested decision on the basis of Article 78(3) TFEU, the Council not only infringed that provision but also encroached on the rights of national parliaments and the European Parliament.










3.


Third plea in law: breach of essential procedural requirements governing the legislative process, and infringement of Article 10(1) and (2) TEU, Article 13(2) TEU, and the principles of representative democracy, institutional balance and sound administration
Should the Court of Justice, contrary to the submissions of the Slovak Republic in the second plea in law, reach the conclusion that the contested decision was adopted by the legislative process (quod non), the Slovak Republic pleads, in the alternative, infringement of essential procedural requirements laid down in Article 16(8) TEU, Article 15(2) TFEU, Article 78(3) TFEU, Articles 3 and 4 of Protocol No 1, Articles 6 and 7(1) and (2) of Protocol No 2, and also infringement of Article 10(1) and (2) TEU, Article 13(2) TEU, and the principles of representative democracy, institutional balance and sound administration. Specifically, there was a failure to comply with the requirement of publicity of negotiating and voting in the Council, a restriction of the participation of national parliaments in the process of adopting the contested decision, and a breach of the condition of consultation of the European Parliament.










4.


Fourth plea in law: breach of essential procedural requirements laid down in Article 78(3) TFEU and Article 293 TFEU, and infringement of Article 10(1) and (2) TEU, Article 13(2) TEU, and the principles of representative democracy, institutional balance and sound administration
Before adopting the contested decision, the Council made several amendments and additions to the Commission’s proposal. It thereby breached essential procedural requirements laid down in Article 78(3) TFEU and Article 293 TFEU, and infringed Article 10(1) and (2) TEU, Article 13(2) TEU, and the principles of representative democracy, institutional balance and sound administration. The European Parliament was not properly consulted and the Council did not decide unanimously on the amendments and additions to the Commission’s proposal.










5.


Fifth plea in law: infringement of Article 78(3) TFEU because of the non-fulfilment of the conditions of its applicability
In the alternative to the second plea in law, the Slovak Republic pleads an infringement of Article 78(3) TFEU on the ground of non-fulfilment of the conditions for its applicability, relating to the temporary nature of the measures adopted and to the existence of an emergency situation as a result of the sudden arrival of nationals of third countries.










6.


Sixth plea in law: breach of the principle of proportionality
The contested decision is manifestly contrary to the principle of proportionality, since it is manifestly neither appropriate nor necessary for attaining the aim pursued.






(1)  OJ 2015 L 248, p. 80.