On knowledge as power: transparency of EU law-making procedures

Päivi Leino (University of Helsinki)

One of the great achievements of the Lisbon Treaty, flagged around its adoption and entry into force, was how the new Treaty would make EU law-making much more transparent. So far, this has remained an unfulfilled promise. Access to documents relating to the EU legislative procedure, in particular trilogues, the informal three-party meetings between the European Parliament, the Council and the Commission used at every stage of the EU legislative procedure, has become particularly topical during the past months.  First, the new Interinstitutional agreement (IIA) on Better Regulation, provisionally approved in December 2015, addresses this question.[1]Second, on 15 December 2015, Emily O’Reilly, European Ombudsman, launched a public consultation on transparency of trilogues,[2] stressing their role as the forum where the deals are done and the subsequent need to consider the proper trade-off between the Europeans’ right to open EU law-making processes and the space to negotiate. Finally, Emilio De Capitani, the previous head of the LIBE Committee Secretariat, has brought an appeal against the European Parliament’s decision to refuse full access documents relating to a legislative proposal.[3]De Capitani argues in essence that granting access to them would not specifically, effectively and in a non-hypothetical manner undermine the legislative decision-making process, and that notably after the Lisbon Treaty, legislative preparatory documents are subject to the principle of widest possible access.

The recent events raise a number of fundamental questions relating to how we understand the function of transparency in law-making that claims democratic foundations. Moreover, since EU law-making is currently not backed up by any shared interinstitutional space where documents and meeting schedules would be recorded in real time, following legislative procedures requires a serious amount of detective work for those with an interest in following them, and increases reliance on a culture of leaks. In brief, exercising your democratic rights should not be this difficult.

The legal framework of law-making in the EU

The main principle in the Treaty of Lisbon is clear: the Council and the European Parliament are to legislate in the open, and are under an obligation to ensure the publication of the documents relating to the legislative procedures. Regulation No 1049/2001 includes some references to legislative documents. Under Article 12(2), legislative documents meaning “documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States” should be made directly accessible unless one of the exceptions under the Regulation is applicable. Therefore, making these documents publicly available should not presume specific requests but should instead take place automatically. These provisions have been subject to the Court’s landmark ruling in Turco concerning access to Council legal service opinions, which stresses how increased openness

enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity […]. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.[4]

In the ruling, the Court set the threshold high in referring to ‘all the information which has formed the basis for a legislative act’: it is clearly not only quantity that is of relevance, but also quality. The legislature needs to provide access to information concerning the key elements on the legislative agenda while the relevant process is on-going and there is a chance to influence it.

However, the institutions, and the Council in particular, have had difficulties with maintaining this standard and turned to a vast number of excuses that risk to water down the principle in rather fundamental ways.[5] In the Council’s view, the application of the Treaty provisions stipulating the publicity of its meeting are restricted to documents that are submitted to the Council for the preparation of the latter’s deliberation or vote.[6]This raises the rather fundamental question of the relevance of the stage of decision-making for the application of legislative transparency. The Council understanding would seem to deprive the principle of much of its democratic effet utile; If the publicity of legislative documents was indeed limited to only those documents that are issued a couple of days before a formal ministerial meeting where a legislative file is to be deliberated or approved, often without any discussion, then transparency would only be applied at the point when the file is to be closed and the process is over. This would effectively hamper access to documents produced during the time when the majority of questions are settled at lower decision-making levels between civil servants, ambassadors and the three institutions. The Council has also argued that the early stage of the legislative process between the institutions, namely first reading, is a point to be taken into consideration. [7] At the same time, a major part of legislative files are closed specifically at first reading: For example in 2009-2013, 83 % of legislative files were closed at first reading, 8 % during early second, 7 % at second, and only 3 % at third.[8]

The relevant provision in Regulation No 1049/2001 in this regard is the ‘space to think’ exception in Article 4(3), relating to situations where a decision has not yet been taken by the institution. The Parliament has repeatedly voiced the argument that the said provision is outdated as far as legislative matters are concerned,[9]and suggested both that no exception would ever apply to ‘documents transmitted within the framework of procedures leading to a legislative act or a non-legislative act of general application’ but also the deletion of Article 4(3) altogether.[10]The latter is a far-reaching proposal that might benefit from further reflection considering that the exception has been used for varying purposes outside the legislative context.

However, Article 4(3) was interpreted in the post-Lisbon legislative context by the Court when Access Info Europe, an NGO promoting freedom of information in the EU, requested access to a legislative document including footnotes indicating the positions of individual Member States. The central question was whether access to Member State positions distracts the effectiveness of decision-making and if yes, which one should take priority, effectiveness or openness. The Council lost the case in the General Court and appealed to the Court of Justice[11]arguing that the General Court’s reading had attached ‘undue and excessive weight to the transparency of the decision-making process, without taking any account of the needs associated with the effectiveness of that process’, and disregarded the balanced approach laid down both in primary law and secondary law between the two objectives. The Council argued that ‘its legislative process is very fluid and requires a high level of flexibility on the part of Member States so that they can modify their initial position, thus maximising the chances of reaching an agreement’. In the Council’s view, identifying the delegations was not necessary for ensuring a democratic debate. The CJEU rejected this with reference to how full access can be limited only if there is a genuine risk that the protected interests might be undermined. The high standard of proof required to establish that level of harm makes it almost impossible to rely on Article 4(3) in this context. In particular, according to the Court,

the various proposals for amendment or re-drafting made by the four Member State delegations which are described in the requested document are part of the normal legislative process, from which it follows that the requested documents could not be regarded as sensitive – not solely by reference to the criterion concerning the involvement of a fundamental interest of the European Union or of the Member States, but by reference to any criterion whatsoever (para 63).

So far, the Court has stood rather firm in promoting transparency of core legislative documents,[12]and is likely to have a word or two to say in the De Capitani case. However, its rulings are of a limited importance as long as it is accepted that the institutions may apply them selectively.[13]

Access to trilogue documents

Trilogues are increasingly taking over as the main forum for making legislative deals between the three institutions.[14]They are the prime example of informal decision-making, which is often glorified in the EU context as the tool guaranteeing efficient law-making.[15]In first reading deals trilogues function as the forum for interinstitutional agreement. The Treaties make no reference to this forum. In the joint declaration on practical arrangements for the co-decision procedure adopted in 2007, the three institutions argue that the trilogue ‘system has demonstrated its vitality and flexibility in increasing significantly the possibilities for agreement at first and second reading stages’. According to the declaration, trilogues ‘may be held at all stages of the procedure and at different levels of representation, depending on the nature of the expected discussion’.[16]The use of informal formats is not in any way restricted to technical, urgent or uncontested files.[17]Trilogues are an incredibly efficient format for accommodating institutional positions, and have led to a great majority of deals being closed early in the legislative procedure.

During the trilogue phase, the EU democratic process is in the hands of very few: the European Parliament rapporteur(s), the representatives of the Council Presidency and Secretariat and a few Commission officials. This phase largely escapes public scrutiny. The joint declaration quoted above stipulates that ‘trilogues taking place within the European Parliament and Council shall be announced, where practicable’, and ‘when conclusion of a dossier at first reading is imminent, information on the intention to conclude an agreement should be made readily available as soon as possible’. There is no mention of access to information while the process is in the substantive phase. Civil society representatives have, for a very good reason, pointed out how trilogues represent the victory of efficient law-making over the formal machinery of law-making, which results in a general lack of transparency.[18]

The informal arrangements surrounding trilogues not only affect public access, but also access within the institutions. Information is power, and the trilogue format empowers those that possess it at the expense of those who do not. Political scientists have demonstrated how within the Parliament, first reading agreements emphasise the discretion given to its own rapporteur(s)[19] and stress the role of responsible committee. Handing out information is in the hands of the rapporteurs, whose tweets commenting on the conduct of negotiations also create a practical avenue to information for many Member State governments. As far as the Council is concerned, first reading agreements mean in practice that deals are effectively concluded before they reach the ministers, since the Council position is settled by Coreper. In principle, feedback from trilogues is given to the delegations either through working parties or Coreper. National parliaments often experience difficulties following decision-making in trilogies, especially since amendments are made at great speed, which hinders their effective scrutiny at national level.[20]

Ombudsman inquiry and the new IIA

The European Ombudsman initiative is therefore timely, even if the objective of ensuring transparency in the legislative procedure reaches beyond its current scope. Last May, the Ombudsman approached the three institutions about their proactive disclosure policies on trilogue documents.[21]In his reply to the Ombudsman, Martin Schultz, President of the European Parliament, describes the current trilogue-related practices in the Parliament, but focuses on its internal transparency and accountability, which he sees as requiring that all political groups may follow and influence the negotiations. This speaks against an undue formalisation of the trilogue process. The Commission challenges the Ombudsman’s mandate to engage in the own-initiative inquiry altogether. In its view, trilogues are a

preparatory step in negotiations of a purely legislative nature and it is hard to see how any aspect of their conduct, such as whether or when to hold trilogue meetings, the choice of representatives by each institution to attend trilogue meetings, whether or which supporting documents to produce etc., can give rise to maladministration, except as regards questions related to public access to the documents used during trilogue meetings.

In its reply, the Commission stresses the internal nature of any possible briefing documents and lack of systematic records of what takes place during the trilogues. And the Council, not surprisingly, agrees with the Commission:

The Council is of the view that the exercise of legislative powers is not limited to the adoption of political choices on the merits of legislative files. It also includes the choices according to which the legislators decide to organise the legislative process itself. The organisation of the legislative process cannot be considered an administrative activity – and therefore cannot give rise to possible instances of maladministration – but ought rather to be regarded as an essential aspect of the exercise of the legislators’ prerogatives.

In other words, hands off legislative transparency, European Ombudsman. And yet, it is difficult to think of a matter where issues relating to access to documents and information in the broad sense would be more vital in a union that is tackling a permanent democratic and legitimacy deficit.  

In the new IIA, provisionally concluded in December 2015, the Commission proposal on how the ‘three institutions will ensure an appropriate degree of transparency of the legislative process, including of trilateral negotiations between the three institutions’[22]is strengthened. The three institutions now commit to ensuring ‘the transparency of legislative procedures, on the basis of relevant legislation and case-law, including an appropriate handling of trilateral negotiations’. For this purpose, they ‘improve communication to the public during the whole legislative cycle’ and ’undertake to identify, by 31 December 2016, ways of further developing platforms and tools to this end, with a view to establishing a dedicated joint database on the state of play of legislative files’.[23]While promises carry little weight if institutional attitudes remain unchanged, the latter commitment could contribute not only making more documents available earlier in the process and making their identification easier, also to shedding light on the vast number of legislative documents that are currently not made public while the process is pending.

In more than one way, the recent debates illustrate how knowledge is power; therefore, those that are in possession of it are unlikely to volunteer to distribute it. In this respect, what we need is a much more political debate on the way in which the exercise of democratic rights is effectively exhausted, often in practice through the choices of technocrats in the EU institutions, who make choices about how individual requests for documents are answered and which documents are placed on the web. Are the current institutional politics acceptable, or are they not? And more fundamentally, is efficiency such an overarching value that it triumphs in all circumstances over all other objectives, such as securing a transparent and democratic decision-making process?

Photo credit: pressgazette.co.uk

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[1] Provisional text of the proposed interinstitutional agreement on better regulation, dated 16 December 2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf, Article 28-28a.

[2] http://www.ombudsman.europa.eu/en/press/release.faces/en/61593/html.bookmark .

[3] Case T-540/15, De Capitani v European Parliament.

[4] Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Maurizio Turco v the Council, paras 45-46 

[5] See also Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014). Available at http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf .

[6] See the Council reply to Confirmatory application No 05/c/01/12 by Ms Anneli Jäätteenmäki, MEP.

[7] For the Council’s reply to ClientEarth, see http://register.consilium.europa.eu/pdf/en/10/st12/st12068.en10.pdf . 

[8] The figures can be found on the Parliament’s website http://www.europarl.europa.eu/code/about/statistics_en.htm . 

[9] The ‘Hautala / Sargentini report’, Public access to documents 2009-2010 European Parliament resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2009-2010 (2010/2294(INI)) P7_TA(2011)0378. 

[10] Public access to European Parliament, Council and Commission documents (recast), P6_TA(2009)0114 A6-0077/2009 . 

[11] C-280/11 P Council v Access Info Europe. 

[12] Even if the General Court recently made a true bummer relating to impact assessments, which play a key role in the early stages of the legislative procedure; see T-424/14 ClientEarth v. the Commission.

[13] See Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014); available at http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf

[14] ‘Shifting EU Institutional Reform into High Gear: Report of the CEPS High-level Group’, pp. 1-24, Report available at http://www.ceps.eu/book/shifting-eu-institutional-reform-high-gear-report-ceps-high-level-group .

[15] See in greater detail, Päivi Leino “The Politics of Efficient Compromise in the Adoption of EU Legal Acts” in Marise Cremona (Ed.), EU Legal Acts: Challenges and Transformations, Collected Courses of the Academy of European Law (Oxford University Press, forthcoming 2016.)

[16] Joint declaration on practical arrangements for the Codecision procedure. OJ 2007 C 145/02 .

[17] See Bressanelli, Héritier, Koop and Reh, ‘The Informal Politics of Codecision: Introducing a New Data Set on Early Agreements in the European Union’, EUI Working Papers RSCAS 2014/64.

[18] See e.g. Bunyan, ‘European Parliament: Abolish 1st [and 2nd] reading secret deals – bring back democracy ‘warts and all’’, Statewatch analysis available at: http://www.statewatch.org/analyses/no-84-ep-first-reading-deals.pdf

[19] Discussed in Hix and Hoyland, ‘Empowerment of the European Parliament’, 16 Annu. Rev. Polit.Sci (2013) 171, at 184. For rules concerning the Parliament’s representation and position-building, see European Parliament Rules of Procedure, Rule 70.

[20] House of Lords Report with Evidence. Codecision and national parliamentary scrutiny, HL Paper 125 (2009) 15-16.

[21] The opinions are available on the Ombudsman website, http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/61592/html.bookmark .

[22] Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final.

[23]  Provisional text of the proposed interinstitutional agreement on better regulation, dated 16 December 2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf . 

The Slovak Challenge to the Asylum-Seekers’ Relocation Decision: A Balancing Act

Zuzana Vikarska, Post-graduate research student, University of Oxford*

*This post is written in the author's academic capacity and does not represent the view of any of her past, present or future employers

On Wednesday 2 December, Slovakia filed an action for annulment to the Court of Justice (pending case C-643/15), challenging the legality of the Asylum-Seekers Relocation Decision (“the contested decision”) adopted on 22 September 2015. Just one day later, on Thursday 3 December, Hungary did the same (pending case C-647/15).

Steve Peers has already discussed some of the (anticipated) legal arguments against the validity of the challenged EU measure in his recent blog-post. In the following post, I briefly discuss the arguments on which the Slovak government’s case rests and I explore whether they are likely to succeed before the Court of Justice. Unfortunately, I do not have access to the full text of the Slovak action, nor to the arguments of the Hungarian government. I am therefore only commenting on the summary of the six arguments, which has been published on the webpage of the Slovak Ministry of Justice.

1. Division of competences and institutional balance

“First plea in law, alleging breach of Article 68 TFEU, as well as Article 13(2) TEU and the principle of institutional balance: The Council by adopting the contested decision exceeding the previous guideline of the European Council, being therefore in contradiction to the mandate of the latter, infringed Article 68 TFEU as well as Article 13(2) TEU and the principle of institutional balance.”

In its first claim, the Slovak government argues that the measure was adopted in contradiction to the guidelines set by the European Council, an institution made up of heads of state and government (as distinct from the Council, made up of national ministers),  whose role is to “define the general political directions and priorities” of the Union (Article 15 TEU), as well as to “define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice” (Article 68 TFEU). Let us therefore have a look at the “strategic guidelines” determined by the European Council in its most recent meetings.

On 23 April 2015, the European Council stated that there was a need to “consider options for organising emergency relocation between all Member States on a voluntary basis” and to “set up a first voluntary pilot project on resettlement across the EU, offering places to persons qualifying for protection.” Furthermore, at its meeting of 25 and 26 June, the European Council agreed on “the temporary and exceptional relocation over two years from the frontline Member States Italy and Greece to other Member States of 40.000 persons in clear need of international protection, in which all Member States (except the UK) will participate,” as well as “the rapid adoption by the Council of a Decision to this effect; to that end, all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States.” No particular conclusions have been adopted as to the 120.000 further asylum-seekers whose situation forms the subject matter of the contested relocation decision.

a. European Council promising “that no quota would be adopted”?

In his recent explanation of this first plea, the Slovak Prime Minister said that the European Council had allegedly “stated that no quota would be adopted” and that the Council of Ministers had disrespected this agreement. Having read the conclusions of the European Council summarised above, the Prime Minister’s statement seems to be rather inaccurate. The Council has not acted contrary to the European Council’s conclusions, which makes the first part of the first claim moot.

Hypothetically, however, if there truly was a clear conflict between the conclusions of the European Council and the actions of the EU lawmakers (the Commission, the Parliament, and the Council), such situation could indeed raise some interesting questions concerning the institutional balance in the Union. What if the European Council had expressed a clear consensus that relocation of asylum-seekers was an undesirable, or even unacceptable way of addressing the current crisis, and despite such consensus, the Commission would subsequently propose a relocation measure (like the one adopted on 22 September), which would be passed by the Council and the Parliament?

It is necessary to realise that the conclusions of the European Council are endowed by political, rather than legal significance (see Article 15(1) TEU). That being said, if the Commission acted in direct opposition to the “general political directions” (Art 15 TEU) and “strategic guidelines” (Art 68 TFEU) adopted by the European Council, such action could violate the principle of institutional balance, since it would deprive the European Council’s decisions and conclusions of any effect. This shows that although the European Council’s conclusions are not legally binding, they should be endowed with political significance, therefore requiring the Commission either to act in line with them, or to provide an elaborate and politically acceptable explanation of any other action.

Still, this analysis remains hypothetical, since the quotations above suggest that the draft of the contested decision did not disrespect any of the political directions outlined by the European Council in the past couple of months.

b. European Council requiring that the vote in the Council be unanimous?

The second interesting question concerns the European Council’s wish that the relocation decision be reached by consensus, as expressed in the conclusions of 25 and 26 June. It is important to point out that this wish only concerned the first 40,000 asylum-seekers, and therefore remains irrelevant for the validity of the contested decision. That makes the second part of the first argument moot as well. However, let us see (once again, hypothetically) whether the European Council could, by its (political) decision, require a different threshold for adopting a decision in the Council, in contrast with the (legal) threshold required by the Treaties.

What happens if the procedure envisaged by Article 78(3) TFEU requires a qualified majority vote in the Council (which it does), while the European Council imposes a requirement of a unanimous vote? While the Treaties remain silent about a change of procedures from QMV to unanimity, they do include a provision governing a move in the opposite direction: from unanimity to QMV. Pursuant to Article 48(7) TEU, “where [TFEU] or Title V of [TEU] provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case.” A change from unanimity to QMV is therefore possible, but it comes with significant procedural guarantees, such as obtaining the consent of the European Parliament and giving national parliaments 6 months to block such action. It follows that changes of Treaty voting mechanisms require more than just a unanimous decision of the European Council. Furthermore, while a change from unanimity to QMV is at least foreseen by the Treaties, a change in the opposite direction is not. That leads to a conclusion that such an instruction given by the European Council would only have political significance, but would remain legally irrelevant.

Therefore, even if the requirement of a unanimous vote extended to all legal measures adopted under Article 78(3) TFEU, quod non, I hold the opinion that such an agreement would remain a gentlemen’s agreement, rather than a legally binding requirement. Therefore, the second part of the first plea put forward by the Slovak government does not seem to offer a good reason for the annulment of the contested decision, either.

2. Legislative vs. non-legislative acts

“Second plea in law, alleging breach of Article 10(1 and 2) TEU, Article 13(2) TEU, Article 78(3) TFEU, Article 3 and 4 of the Protocol (No.1) and Article 6 and 7 of the Protocol (No.2), as well as the principles of legal certainty, representative democracy and institutional balance: Such kind of act as the contested decision cannot be adopted on the basis of Article 78(3) TFEU. Regarding its content, the contested decision is in fact of a legislative character and should therefore be adopted by legislative procedure, which, however, is not foreseen in Article 78(3) TFEU. By adopting the contested decision on the basis of Article 78(3) TFEU, the Council not only breached the latter, but it also interfered with the rights of national parliaments and the European parliament.”

This second plea opens a very interesting question of the nature of “legislative acts” in EU law: what does a measure need in order to be “of a legislative character”? The Slovak government seems to invoke a materialunderstanding of a legislative act, suggesting that some things are too important to be governed by a non-legislative act. This, however, is not how EU law seems to work. The concept of a legislative act seems to be a formal one, as follows from Article 289(3) TFEU: “Legal acts adopted by legislative procedure shall constitute legislative acts.”

Although EU law surely doesn’t work with a material concept of “legislative acts”, it remains unclear what a legislative act really is. Two formalinterpretations are still feasible: a narrow textual one and a procedural one.

According to a narrow textual interpretation, favoured e.g. by Lenaerts, by Craig & De Burca, as well as by Advocate-General Kokott in her opinion in C-583/11 Inuit Tapiriit Kanatami, the (non-) legislative nature of an act depends on one and only factor: whether its legal basis refers to a “legislative procedure” in its wording or not. Pursuant to this interpretation, an asylum measure adopted under Article 78(3) TFEU will be a non-legislative act, while a measure on diplomatic protection adopted under Article 23(2) TFEU will be a legislative act, although the procedure of their adoption is exactly the same: a proposal from the Commission and a qualified majority vote by the Council, after consulting the European Parliament. This interpretation seems to be supported by Article 289(2) TFEU, which states that special legislative procedure is only used “in the specific cases provided for by the Treaties,” which simply isn’t the case for measures adopted under Article 78(3) TFEU. Another argument for this narrow textual interpretation is the practical functioning of the EU institutions: Eur-Lex categorises the contested decision as an “NLE”, which stands for “non-legislative procedure”. On a practical level, this textual interpretation thus seems to be a well-established one.

The third thinkable alternative is a procedural interpretation (that seems to be preferred e.g. by Chalmers), according to which an act is to be labelled as “legislative” if both the Council and the Parliament are involved in its adoption, no matter whether the specific legal basis speaks of a “legislative procedure” or not. There are in fact a number of solid arguments for this broader interpretation of legislative acts. Firstly, Article 289(3) TFEU (technically) does not say anything about the nature of acts that are not adopted by a legislative procedure. In the terminology of formal logic, Article 289(3) is an implication; therefore, turning it around (and stating that “legal acts not adopted by legislative procedure shall constitute non-legislative acts”) would be a logical flaw. Secondly, the endorsement of the textual interpretation would lead to a situation where entire areas of EU law (such as competition law!) would not contain any legislative measures whatsoever, which is rather curious. Thirdly, the textual interpretation would have vast consequences for the procedural standing of non-privileged applicants under Article 263(4) TFEU who would be able to challenge a much broader category of acts without having to establish individual concern. Fourthly, if we were to link the legislative nature of a measure with its democratic legitimation, the procedural interpretation would make much more sense than the textual one. Yet, despite all these arguments (and despite the hopes of some academics, as well as practitioners), it seems that (at least at present), the narrow textual interpretation of “legislative acts” seems to prevail.

Be that as it may, both the narrow textual interpretation and the procedural interpretation are formal in their nature. It makes no sense to claim that the measure at stake is “of a legislative character” and that Article 78(3) TFEU is therefore not a correct legal basis for such measure, if it cannot lead to the adoption of a legislative act. The conditions of the said article have been fulfilled both materially (emergency situation, sudden inflow of third country nationals, benefit to the Member States concerned) and procedurally (proposal from the Commission, consulting the Parliament, QMV in the Council). Therefore, the second plea of the Slovak government seems to be unfounded as well.

3. Procedural conditions in case the contested decision is indeed a legislative act

“Third plea in law, alleging breach of essential procedural requirements governing the legislative procedure, established in Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 4 of the Protocol (No.1) and  Article 6 and 7(1 and 2) of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration: If the Court of Justice contrary to the submissions of the Slovak Republic within the second plea in law came to the conclusion that the contested decision was adopted by legislative procedure (quod non), the Slovak Republic in the alternative alleges the breach of essential procedural requirements, established in Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 3 and 4 of the Protocol (No.1) and  Article 6 and 7 (1 and 2) of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration. In particular, the requirement of public discussion and voting within the Council was not respected, the participation of national parliaments in the process of adopting the contested decision was limited and the requirement of consultation of the European parliament was breached.”

This is where the distinction between a textual and a procedural reading of “legislative acts” becomes relevant. If the Court endorses the narrow textual reading of the concept (which is, in my opinion, more probable), then the classification of the contested decision as a non-legislative act will be confirmed and the procedural guarantees invoked by the Slovak government will be inapplicable. Yet, should the Court wish to reassess the notion of “legislative acts” and change it to a procedural one, then the contested decision will have to be seen as a legislative act that has not fulfilled the requirements listed above, namely public voting in the Council (Article 16(8) TEU) and participation of national parliaments (Protocols 1 and 2), which would lead to its annulment.

4. Repeated consultation by the European Parliament

“Fourth plea in law, alleging breach of essential procedural requirements, established in Article 78(3) TFEU and Article 293 TFEU, as well as 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 substantially amended the proposal of the Commission in several ways. When doing that, the Council breached essential procedural requirements, established in Article 78(3) TFEU and Article 293 TFEU, as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration. It is because the European parliament was not properly consulted and the Council did not decide on the amendments of the Commission’s proposal unanimously.”

This fourth point has already been addressed by Steve Peers in his recent post and I agree that this indeed seems to be the strongest procedural argument against the validity of the contested decision. The original Commission draft concerned not just Italy and Greece, but also Hungary, which in the final version of the contested decision refused to be included in the group of external border States. As argued by Steve, this is a change of an essential element, which probably should have been subjected to a repeated consultation by the European Parliament. Possibly, the emergency nature of the contested decision could serve as an argument against an obligation to re-consult, which is, admittedly, a rather weak argument. However, as Steve has already argued, even if this argument were to succeed, it would only lead to a procedural redress (meaning that the outcome would be the same even if the European Parliament were to be re-consulted) while the contested decision would probably remain in force in the meantime. It therefore seems that the fourth plea will not suffice either to have the contested decision annulled.

5. The ‘provisional’ nature of the contested decision

“Fifth plea in law, alleging breach of Article 78(3) TFEU by not fulfilling the conditions for its applicability: In the alternative to the second plea in law, the Slovak Republic argues that there was a breach of Article 78(3) TFEU because the conditions for its applicability, which concern the provisional character of the measures adopted, as well as the emergency situation caused by a sudden inflow of nationals of third countries, were not fulfilled.”

The fifth plea can be seen from two points of view again: on the one hand, “the provisional character of the measures” can be assessed from a formal viewpoint, looking at the time period for which the measure remains applicable. On the other hand, the plea invites the Court to assess whether the EU finds itself in an “emergency situation”, facing a “sudden inflow” of migrants, which opens up a more substantive analysis of the contested measure.

As for the more formal part of the argument, the provisional character of the measures could be derived from the fact that the contested decision is limited in time - it only applies until 26 September 2017. Is a provision that remains applicable for two years “provisional” enough? The pre-Lisbon version of this provision was Article 64(2) TEC, which limited the duration of such provisional measures to six months. Compared to this past requirement, two years seem to be quite long. On the other hand, the current wording of the Treaties imposes no time limit whatsoever, so two years cannot be seen as a priori illegal. (Yet, this will be very similar to the data retention case: if 6 months are fine and 2 years are too much, how do we feel about one year? The criteria for assessment are not clear.) Still, the contested decision’s provisional character could also be derived from the fact that it only applies to those asylum-seekers who are already present on the European Union territory or who are likely to come in the very near future, while a long-term, sustainable solution is being sought by a legislative proposal, which is currently in the legislative process and which will presumably take quite some time.

As for the more substantive analysis, it is rather difficult to predict what criteria will be chosen by the Court to assess whether the EU really finds itself in an emergency situation. The current migrant crisis is undoubtedly one of the most serious crises that the EU has faced in the past couple of decades, but it remains to be seen how the Court tackles the interpretation of the notions in Article 78(3) TFEU.

6. Principle of proportionality

“Sixth plea in law, alleging breach of the principle of proportionality: The contested decision is manifestly incompatible with the principle of proportionality, as it is manifestly neither suitable nor necessary to achieve the desired end.”

The principle of proportionality can certainly serve as a very strong argument – it can open the door for a thorough assessment of the very core of any measure by the Court of Justice. Obviously, this assessment is much more likely to be political than legal, with the Court enjoying very wide discretion in balancing the values at stake. It is a huge pity that the Slovak government has not worked out this sixth plea in more detail, since any chance of success of this action is potentially hidden in this last argument. The action could have put forward an argument that the contested measure is not suitable to reach the desired aim (i.e. to relieve the burden borne by the external border states and to show “solidarity and fair sharing of responsibility between the Member States,” as outlined in the decision’s preamble), since relocating people is too difficult and their further movement is too unpredictable. Furthermore, under the heading of necessity, it could have been argued that a less restrictive measure could have been adopted in order to solve the problem, such as denying entry to migrants (although that could violate the basic principles of EU law, particularly EU asylum law), triggering the regime of the Temporary Protection Directive, or other forms of help (e.g. financial, material or personal help) to the affected states. Last but not least, the proportionality argument could have been coupled with other quasi-political arguments, such as a claim under the national identity clause in Article 4(2) TEU.

It can be concluded that the Slovak government has missed a great chance to actually make a point under the sixth plea, since a mere claim of manifest incompatibility with the principle of proportionality does not give the Court anything to build on. That being said, if the Court wants to annul the measure, it can always use this plea to build a strong argumentation under the principle of proportionality.

Conclusion

Based on the analysis above, it seems to me that the first three pleas have almost no chance of success (unless the Court decides to reinvent a new understanding of “legislative acts”), the fourth and the fifth pleas raise interesting issues that could lead to minor interferences, such as the need to re-consult the Parliament, a limitation of the contested decision’s application to a shorter period of time, or a very narrow interpretation of the concepts of “emergency situation” or “sudden influx of migrants”. The sixth plea, however, opens Pandora’s box and invites the Court to exercise broad discretion in its assessment of the current solution to the migration crisis. While proportionality leaves most scope for the creativity of the Court, it is hard to see it replacing its own judgment for the judgment of the Member States, especially in a situation where good, plausible alternatives are quite hard to find.

Barnard & Peers: chapter 3, chapter 5, chapter 26

JHA4: chapter I.5

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