European Commission v Republic of Poland and Others.
Date: 2020-04-02
52


The objective pursued by the procedure envisaged in Article 258 TFEU is an objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary legislation and such a procedure also makes it possible to establish whether a Member State has infringed EU law in a given case (judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 40 and the case-law cited).
53


In that context, one of the purposes of the pre-litigation procedure is to give the Member State concerned the opportunity to comply with its obligations arising from EU law (see, to that effect, judgment of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraphs 39 and 40 and the case-law cited).
54


It is apparent from the second paragraph of Article 258 TFEU that, if the Member State concerned does not comply with the reasoned opinion within the period laid down therein, the Commission may bring the matter before the Court. According to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must consequently be determined by reference to the situation prevailing in the Member State at the end of that period (judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 39 and the case-law cited).
55


It is true, as the three Member States in question point out, that according to the Court’s settled case-law the Commission’s function is to ensure, of its own motion and in the general interest, that the Member States give effect to EU law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing them to an end (see, inter alia, judgment of 7 April 2011, Commission v Portugal, C‑20/09, EU:C:2011:214, paragraph 41 and the case-law cited).
56


However, that case-law must be understood to mean that, in an action for failure to fulfil obligations, the Commission cannot seek from the Court anything other than a finding that the failure to fulfil obligations alleged exists with a view to bringing that situation to an end. Thus, the Commission cannot, for example, ask the Court, in an action for failure to fulfil obligations, to require a Member State to adopt a particular conduct in order to comply with EU law (see, to that effect, judgment of 7 April 2011, Commission v Portugal, C‑20/09, EU:C:2011:214, paragraph 41).
59


In that context, it must be observed that the period of application of Decisions 2015/1523 and 2015/1601 definitively expired on 17 September 2017 and 26 September 2017 respectively (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 94).
63


Were the arguments of the three Member States in question to be accepted, any Member State which, by its conduct, were to impede the achievement of the objective inherent in a decision adopted on the basis of Article 78(3) TFEU and applying as a ‘provisional measure’ within the meaning of that provision, only during a limited period, as is the case for Decisions 2015/1523 and 2015/1601 (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraphs 90 and 94), could evade infringement proceedings, on the sole ground that the infringement concerns an act of EU law whose period of application definitively expired after the expiry date of the period set in the reasoned opinion, as a result of which the Member States might take advantage of their own misconduct (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 48).
64


In such a situation, the Commission would thus be unable to bring proceedings, within the powers that it holds under Article 258 TFEU, against the Member State concerned before the Court with a view to obtaining a declaration of such an infringement and to performing fully its role as guardian of the Treaties, conferred on it by Article 17 TEU (judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 49).
65


Furthermore, to uphold, in circumstances such as those of the present cases, the inadmissibility of an action for failure to fulfil obligations brought against a Member State on the grounds of infringement of decisions adopted under Article 78(3) TFEU, such as Decisions 2015/1523 and 2015/1601, would be detrimental both to the binding nature of those decisions and, more generally, to the respect for the values on which the European Union, in accordance with Article 2 TEU, is founded, one such being the rule of law (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 50).
66


A declaration as to the failures to fulfil obligations at issue is still, moreover, of substantive interest, inter alia, as establishing the basis of a responsibility that a Member State can incur as a result of its default, as regards other Member States, the European Union or private parties (see, to that effect, judgment of 7 February 1973, Commission v. Italy, 39/72, EU:C:1973:13, paragraph 11).
67


Lastly, as regards the argument that, following the definitive expiry of the period of application of Decisions 2015/1523 and 2015/1601, the Commission no longer has any interest in bringing proceedings, attention must be drawn to the principle, enshrined in settled case-law of the Court of Justice, that the Commission does not have to show a legal interest in bringing proceedings or to state the reasons why it is bringing an action for failure to fulfil obligations (judgment of 3 March 2016, Commission v Malta, C‑12/14, EU:C:2016:135, paragraph 26 and the case-law cited).
68


It is true in that regard, as the Republic of Poland submits, that in a situation in which the action was brought at a time when the failure to fulfil obligations had virtually come to an end owing to the substitution of new provisions of Union law for those alleged to have been infringed, the Court stated that, by way of exception to the principle referred to in the preceding paragraph of this judgment, it is, although not in a position to determine how far it was expedient for the Commission to bring the action, responsible for considering whether the Commission still has a ‘sufficient legal interest’ in bringing an action for failure to fulfil obligations relating to past conduct (see, to that effect, judgment of 9 July 1970, Commission v France, 26/69, EU:C:1970:67, paragraphs 9 and 10).
70


Furthermore and in any event, in the present instance, the Commission’s interest in bringing the proceedings cannot be called into question. First, the period fixed in the reasoned opinions ended at a date at which the criticised failures to fulfil obligations were still ongoing. Secondly, as also noted by the Advocate General in point 105 of her Opinion, these three cases raise important questions of Union law, including whether and, if so, under what conditions a Member State may rely on Article 72 TFEU to disapply decisions adopted on the basis of Article 78(3) TFEU, the binding nature of which is not disputed, and which are aimed at relocating a significant number of applicants for international protection in accordance with the principle of solidarity and fair sharing of responsibility between Member States, which, in accordance with Article 80 TFEU, governs the Union’s asylum policy (see, by analogy, judgment of 9 July 1970, Commission v France, 26/69, EU:C:1970:67, paragraphs 11 and 13).
75


According to settled case-law of the Court, it is for the Commission to determine whether it is expedient to take action against a Member State and what provisions, in its view, the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action (judgment of 19 September 2017, Commission v Ireland (Registration tax), C‑552/15, EU:C:2017:698, paragraph 34 and the case-law cited).
76


The Court has thus held that, given that discretion, the lack of infringement proceedings against one Member State is irrelevant in the assessment of the admissibility of infringement proceedings brought against another Member State (judgment of 3 March 2016, Commission v Malta, C‑12/14, EU:C:2016:135, paragraph 25).
80


It is important to recall that the burdens entailed by the provisional measures provided for in Decisions 2015/1523 and 2015/1601, since they were adopted under Article 78(3) TFEU for the purpose of helping the Hellenic Republic and the Italian Republic to better cope with an emergency situation characterised by a sudden influx of third-country nationals on their territory, must, in principle, 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 the Union’s asylum policy (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 291).
91


The Court has consistently held that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under EU law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission. The proper conduct of that procedure constitutes an essential guarantee required by the FEU Treaty, not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject matter (judgment of 19 September 2017, Commission v Ireland (Registration tax), C‑552/15, EU:C:2017:698, paragraphs 28 and 29 and the case-law cited).
92


Those objectives require the Commission to allow Member States a reasonable period to reply to letters of formal notice and to comply with reasoned opinions, or, where appropriate, to prepare their defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case. Thus, very short periods may be justified in particular circumstances, especially where there is an urgent need to remedy an infringement or where the Member State concerned is fully aware of the Commission’s views long before the procedure starts (judgment of 13 December 2001, Commission v France, C‑1/00, EU:C:2001:687, paragraph 65).
95


Moreover, that choice to initiate infringement proceedings at a relatively late stage in the two-year period of application of Decisions 2015/1523 and 2015/1601 is justified in view of the fact, already noted by the Court, that the relocation of a large number of applicants for international protection, such as that provided for in Decision 2015/1601, 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 (judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 97).
113


An action must be considered having regard only to the form of order sought in the application initiating proceedings (judgment of 30 September 2010, Commission v Belgium, C‑132/09, EU:C:2010:562, paragraph 35 and the case-law cited).
114


It also follows from settled case-law in relation to Article 120(c) of the Rules of Procedure that an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of the heads of claim (judgment of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 52 and the case-law cited).
115


The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 53).
116


In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties. Accordingly, a contradiction in the heads of claim put forward by the Commission in support of its action for failure to fulfil obligations does not satisfy the requirements imposed (judgment of 2 June 2016, Commission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 35).
120


It follows that the Czech Republic could not reasonably have been in any doubt as to the precise date at which its failure to fulfil its obligations, as alleged by the Commission, began and that it was able to exercise its rights of defence effectively in respect of that failure to fulfil obligations (see, by analogy, judgments of 5 May 2011, Commission v Portugal, C‑267/09, EU:C:2011:273, paragraph 28, and of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 57). In those circumstances, there is also no risk of the Court ruling ultra petita.
122


In respect of Case C-718/17, it must also be pointed out that while in the reasoned opinion the Commission fixed the date of the start of the infringement alleged against Hungary at 25 December 2015, the form of order sought in the application, as published in the Official Journal of the European Union (OJ 2018 C 112, p. 19), does not for its part mention any date in that regard. In those circumstances, and since the subject-matter of the proceedings brought before the Court is delimited by the reasoned opinion (see, inter alia, judgment of 18 June 1998, Commission v Italy, C-35/96, EU:C:1998:303, paragraph 28 and the case-law cited), the action in that case is admissible in so far as it concerns an alleged failure by Hungary to fulfil its obligations under Article 5(2) and Article 5(4) to (11) of Decision 2015/1601 as of 25 December 2015.
124


It should be borne in mind that, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission, which is responsible for proving the existence of the alleged infringement, to provide the Court with the information necessary for it to determine whether that infringement is made out, and the Commission may not rely on any presumption for that purpose (judgment of 18 November 2010, Commission v Portugal, C‑458/08, EU:C:2010:692, paragraph 54 and the case-law cited).
139


In a European Union based on the rule of law, acts of the institutions enjoy a presumption of lawfulness. Since Decisions 2015/1523 and 2015/1601 were, as of their adoption, of a binding nature for the Republic of Poland and the Czech Republic, those Member States were required to comply with those acts of EU law and to implement them throughout their two-year period of application. The same applies in respect of Hungary as regards Decision 2015/1601, an act which was of a binding nature for that Member State as of its adoption and throughout its two-year period of application (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 85).
140


That binding nature of Decisions 2015/1523 and 2015/1601 is not in any way altered by the fact that the lawfulness of Decision 2015/1601 was challenged by Hungary and the Slovak Republic before the Court of Justice, in the context of an action for annulment under Article 263 TFEU, proceedings in which the Republic of Poland intervened in support of those two Member States. None of those Member States has moreover sought a suspension of the implementation of that latter decision or the adoption of interim measures by the Court of Justice under Articles 278 and 279 TFEU, so that those actions for annulment had no suspensive effect, in accordance with Article 278 TFEU (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraphs 86 and 87).
143


In this connection, according to settled case-law of the Court of Justice, although it is for the Member States to adopt appropriate measures to ensure law and order on their territory and their internal and external security, it does not follow that such measures fall entirely outside the scope of European Union law. As the Court has already held, the only articles in which the Treaty expressly provides for derogations applicable in situations which may affect law and order or public security are Articles 36, 45, 52, 65, 72, 346 and 347 TFEU, which deal with exceptional and clearly defined cases. It cannot be inferred that the Treaty contains an inherent general exception excluding all measures taken for reasons of law and order or public security from the scope of European Union law. The recognition of the existence of such an exception, regardless of the specific requirements laid down by the Treaty, might impair the binding nature of European Union law and its uniform application (see to that effect, inter alia, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 51, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 62 and the case-law cited).
144


In addition, the derogation provided for in Article 72 TFEU must, as is provided in settled case-law, inter alia in respect of the derogations provided for in Articles 346 and 347 TFEU, be interpreted strictly (see, to that effect, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 52, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 63).
145


It follows that, although Article 72 TFEU provides that Title V of the Treaty is not to affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security, it cannot be read in such a way as to confer on Member States the power to depart from the provisions of the Treaty based on no more than reliance on those responsibilities (see, by analogy, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 53, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 64).
146


The scope of the requirements relating to the maintenance of law and order or national security cannot therefore be determined unilaterally by each Member State, without any control by the institutions of the European Union (see, to that effect, judgments of 11 June 2015, Zh. and O., C‑554/13, EU:C:2015:377, paragraph 48, and of 2 May 2018, K. and H.F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraph 40 and the case-law cited).
147


It is for the Member State which seeks to take advantage of Article 72 TFEU to prove that it is necessary to have recourse to that derogation in order to exercise its responsibilities in terms of the maintenance of law and order and the safeguarding of internal security (see, by analogy, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 55, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 66).
148


It must be observed in that regard, as regards Decision 2015/1601, that the Court in paragraphs 307 to 309 of the judgment of 6 September 2017, Slovakia and Hungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631), has already rejected the argument, raised by the Republic of Poland as an intervener, that that decision infringes the principle of proportionality, since it does not allow the Member States to effectively carry out their responsibilities to maintain law and order and safeguard internal security under Article 72 TFEU.
149


The Court held that recital 32 of Decision 2015/1601, which is moreover drafted in identical terms to those of recital 26 of Decision 2015/1523, stated, 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 (judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 307).
150


The Court also referred to Article 5 of Decision 2015/1601, entitled ‘Relocation procedure’, which provides, in paragraph 7 thereof, whose wording is moreover identical to that of Article 5(7) of Decision 2015/1523, that Member States retain the right to refuse to relocate an applicant for international protection only where there are reasonable grounds for regarding him or her as a danger to their national security or public order or where there are serious reasons for applying the exclusion provisions set out in Articles 12 and 17 of Directive 2011/95 (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 308).
154


In that regard, with regard to the ‘serious reasons’ for applying the ‘exclusion’ provisions set out in Articles 12 and 17 of Directive 2011/95, reasons which in accordance with Article 5(7) of each of Decisions 2015/1523 and 2015/1601 allowed a Member State to refuse to relocate an applicant for international protection, it follows from the case-law of the Court that the competent authority of the Member State concerned cannot rely on the exclusion clause provided for in Article 12(2)(b) of Directive 2011/95 and Article 17(1)(b) of that directive, which concern the commission by the applicant for international protection of a ‘serious crime’, until it has undertaken, for each individual case, an assessment of the specific facts within its knowledge. That is done with a view to determining whether there are serious reasons for taking the view that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for the status applied for, come within the scope of that particular ground for exclusion, the assessment of the seriousness of the crime in question requiring a full investigation into all the circumstances of the individual case concerned (judgment of 13 September 2018, Ahmed, C‑369/17, EU:C:2018:713, points 48, 55 and 58).
155


In addition, the Court stated that, while the grounds for exclusion in Articles 12 and 17 of Directive 2011/95 are structured around the concept of ‘serious crime’, the scope of the ground for exclusion from subsidiary protection laid down by Article 17(1)(b) of Directive 2011/95 is broader than that of the ground for exclusion from refugee status laid down by Article 1(F)(b) of the Geneva Convention and Article 12(2)(b) of Directive 2011/95. While the ground for exclusion from refugee status laid down by that provision refers to a serious non-political crime committed outside the country of refuge prior to admission of the person concerned as a refugee, the ground for exclusion from subsidiary protection laid down by Article 17(1)(b) of Directive 2011/95 refers more generally to a serious crime and is therefore limited neither territorially nor temporally, or as to the nature of the crimes at issue (judgment of 13 September 2018, Ahmed, C‑369/17, EU:C:2018:713, points 46 and 47).
157


Furthermore, it should be noted that the wording of Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 differs, in particular, from that of Article 27(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), which requires that the personal conduct of the individual concerned must represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ of the Member State concerned. Consequently, the concept of ‘danger to … national security or public order’ within the meaning of the abovementioned provisions of Decisions 2015/1523 and 2015/1601 must be interpreted more broadly than it is in the case-law in relation to persons enjoying the right of free of movement. That concept may cover inter alia potential threats to national security or public order (see, by analogy, judgments of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraph 40, and of 12 December 2019, E.P. (Threat to public policy), C‑380/18, EU:C:2019:1071, paragraphs 29 and 32).
158


A wide discretion must therefore be accorded to the competent authorities of the Member States of relocation when they determine whether a third-country national to be relocated is a threat to their national security or public order (see, by analogy, judgment of 12 December 2019, E.P. (Threat to public policy), C‑380/18, EU:C:2019:1071, paragraph 37).
159


That said, as with the serious reasons for applying the provisions on exclusion in Articles 12 and 17 of Directive 2011/95, the reasonable grounds for regarding an applicant for international protection as a danger to national security or public order can be invoked by the authorities of the Member State of relocation only if there is consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question actually or potentially represents such a danger (see, by analogy, judgment of 12 December 2019, E.P. (Threat to public policy), C‑380/18, EU:C:2019:1071, paragraph 49), and not until those authorities, in respect of each applicant whose relocation is proposed, have made an assessment of the facts within their knowledge with a view to determining whether, in the light of an overall examination of all the circumstances of the individual case concerned, such reasonable grounds exist.
164


Furthermore, if, as the Republic of Poland and the Czech Republic maintain, the mechanism provided for in Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 was ineffective, in particular because of a lack of cooperation on the part of the Italian authorities, such practical difficulties do not appear to be inherent in that 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 each of those decisions is implemented (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 309).
170


As the Advocate General also essentially observed, in points 226 and 227 of her Opinion, the arguments derived from a reading of Article 72 TFEU in conjunction with Article 4(2) TEU are not such as to call into question that finding. There is nothing to indicate that effectively safeguarding the essential State functions to which the latter provision refers, such as that of protecting national security, could not be carried out other than by disapplying Decisions 2015/1523 and 2015/1601.