Slovak Republic and Hungary v Council of the European Union.
Date: 2017-09-06
90


A measure may be classified as ‘provisional’ in the usual sense of that word only if it is not intended to regulate an area on a permanent basis and only if it applies for a limited period.
94


As for Article 4(5) of the contested decision, it provides that, ‘in exceptional circumstances’ and where a Member State has given notification by 26 December 2015, the 24-month period referred to in Article 13(2) of the decision may be extended by up to 12 months in the context of the mechanism for the temporary and partial suspension of the obligation of the Member State concerned with regard to the relocation of applicants for international protection. It thus confirms the temporary nature of the various measures in the contested decision. Moreover, since that mechanism could no longer be triggered after 26 December 2015, the contested decision will definitively expire on 26 September 2017.
97


That choice of a period of application of 24 months is justified in view of the fact that the relocation of a large number of persons, such as that provided for in the contested decision, is an unprecedented and complex operation which requires a certain amount of preparation and implementation time, in particular as regards coordination between the authorities of the Member States, before it has any tangible effects.
123


It must be held that in such circumstances the Council could, without making a manifest error of assessment, classify such an increase as ‘sudden’ for the purposes of Article 78(3) TFEU even though that increase represented the continuation of a period in which extremely high numbers of migrants had already arrived.
124


It should be recalled in that regard that the EU institutions must be allowed broad discretion when they adopt measures in areas which entail choices, in particular of a political nature, on their part and complex assessments (see, to that effect, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 79 and the case-law cited).
145


As regards the alleged effect of the ‘political’ nature of the conclusions of the European Council of 25 and 26 June 2015 on both the Commission’s power of legislative initiative and the voting rules within the Council, as provided for in Article 78(3) TFEU, such an effect –– assuming it to be established and discussed within the European Council –– cannot be a ground on which the Court may annul the contested decision.
146


First, the power of legislative initiative accorded to the Commission by Article 17(2) TEU and Article 289 TFEU –– which reflects the principle of conferred powers, enshrined in Article 13(2) TEU, and, more broadly, the principle of institutional balance, characteristic of the institutional structure of the European Union –– means that it is for the Commission to decide whether to bring forward a proposal for a legislative act. In that connection, it is also for the Commission, which, in accordance with Article 17(1) TEU, is to promote the general interest of the European Union and take appropriate initiatives to that end, to determine the subject matter, objective and content of the proposal (see, to that effect, judgment of 14 April 2015, Council v Commission, C‑409/13, EU:C:2015:217, paragraphs 64 and 70).
149


Indeed, as the Court has already held, as the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties (judgment of 10 September 2015, Parliament v Council, C‑363/14, EU:C:2015:579, paragraph 43).
203


Even though, as the Court has already stated, the European Union is committed to the preservation of multilingualism, the importance of which is stated in the fourth subparagraph of Article 3(3) TEU (see, to that effect, judgment of 5 May 2015, Spain v Council, C‑147/13, EU:C:2015:299, paragraph 42), the Council’s interpretation of its Rules of Procedure must be accepted. That interpretation in fact reflects a balanced and flexible approach conducive to efficacy and speed in the Council’s work, which are especially important in the particular context of urgency characterising the procedure for adopting provisional measures on the basis of Article 78(3) TFEU.
206


As a preliminary point, it must be recalled that, according to settled case-law of the Court, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, inter alia, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 78 and the case-law cited).
207


With regard to judicial review of compliance with that principle, it should also be borne in mind, as has already been stated in paragraph 124 of the present judgment, that the EU institutions must be allowed broad discretion when they adopt measures in areas which entail choices on their part, including of a political nature, and in which they are called upon to undertake complex assessments. Consequently, the legality of a measure adopted in one of those areas can be affected only if the measure is manifestly inappropriate having regard to the objective which those institutions are seeking to pursue (see, to that effect, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 79 and the case-law cited).
221


In fact, the Court has consistently held that the legality of an EU act cannot depend on retrospective assessments of its efficacy. Where the EU legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question (see, inter alia, judgments of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 84, and of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 50).
291


When one or more Member States are faced with an emergency situation within the meaning of Article 78(3) TFEU, the burdens entailed by the provisional measures adopted under that provision for the benefit of that or those Member States must, as a rule, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU, that principle governs EU asylum policy.
307


It must be noted in this regard that recital 32 of the contested decision states, inter alia, that national security and public order should be taken into consideration throughout the relocation procedure, until the transfer of the applicant is implemented and that, in that context, the applicant’s fundamental rights, including the relevant rules on data protection, must be fully respected.
308


With that in mind, Article 5 of the contested decision, which is entitled ‘Relocation procedure’, provides, in paragraph 7, that Member States retain the right to refuse to relocate an applicant only where there are reasonable grounds for regarding him or her as a danger to their national security or public order.
309


If, as the Republic of Poland maintains, the mechanism provided for in Article 5(7) of the contested decision were ineffective because it requires Member States to check large numbers of persons in a short time, such practical difficulties are not inherent in the mechanism and must, should they arise, be resolved in the spirit of cooperation and mutual trust between the authorities of the Member States that are beneficiaries of relocation and those of the Member States of relocation. That spirit of cooperation and mutual trust must prevail when the relocation procedure provided for in Article 5 of the contested decision is implemented.