North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

EU Enforcement Mechanisms in the Face of Noncompliant Member States and the EU’s Migrant Relocation Policy

By: Marian Burroughs

 

 

 

 

 

 

War, poverty and political unrest in the Middle East and Africa have had devastating impacts on the people living in those regions, forcing many of them to seek refuge elsewhere. Tens of thousands of people from countries including Syria, Iraq and Libya have attempted to flee the violence and resettle in areas they believe to be more stable. This large migration has ensured that other nations cannot stand idly by and dismiss the issue as a regional problem, as many refugees travel beyond their neighboring countries into places such as Europe and North America. In 2015, over 1 million migrated to Europe alone.[1] Given its global effects, the “migration crisis” (as some have called it) has garnered the attention and response of the international community, including intergovernmental organizations such as the European Union (EU).[2]

In September 2015, the European Council voted to launch an emergency plan to relocate about 160,000 refugees who had arrived in Greece and Italy, the main countries by which the refugees were able to enter into Europe.[3] The plan was to relocate them fairly among all EU member states within two years, the specific amount to be determined by a quota system based on each country’s population and wealth.[4] Anyone arriving in a EU member state before September 26, 2017 is eligible for relocation.[5] However, not all EU members have been supportive of that decision. Most notably, Hungary, Slovakia, Poland and the Czech Republic have defied the EU Council’s directive by either accepting very little refugees, or none at all, with recent reports indicating that Slovakia had taken in just 16, the Czech Republic 12, and Hungary and Poland none at all.[6]

The opposing countries have also publicly expressed their dislike of the relocation policy.[7] Hungary and Slovakia even challenged the policy before the European Court of Justice (ECJ or “the Court”).[8] However, the ECJ recently issued a decision upholding the policy and affirming the Council’s power to issue such a directive; the decision is final and not open to appeal.[9] This means that “European Commission officials will continue to be able to order member state governments to take in specific quotas of refugees entering the bloc [before the September 26 deadline], or risk facing fines.”[10] Noncompliant EU member states face a penalty of 250,000 euros (or about $287,000) per migrant that they refuse to accept.[11]

Failure to comply may also be grounds for additional enforcement action against defiant member states. The Commission can bring actions to the Court against member states which have allegedly breached EU law.[12] In fact, the Commission has already initiated infringement proceedings against Hungary, Poland and the Czech Republic for their failure to accept refugees.[13] Should any of these countries refuse to implement an infringement ruling against them, the Commission can bring them before the Court again.[14] If the Court sides with the Commission, it may impose a lump sum or penalty payment against the member state(s).[15] The penalty payment is charged at regular intervals, for as long as the Member State has not complied with the original judgment.[16]

Beyond these mechanisms, consequences of persistent failure to comply are less clear. Article 7 of the Treaty of the European Union permits the EU to remove a Member State’s voting power in the EU Council.[17] However, as it is generally more a signal to compliant states not to follow rogue member’s lead, this option may not be the most effective mechanism for restoring compliance.[18] It may also not be an effective sanction because supermajorities in the Council and Parliament are required for the success of this option and party alignments can get in the way.[19] It is suggested that a more incentivizing sanction for ensuring compliance by the Member States would be suspending EU funds in cases of persistent violations of EU laws or directives.[20]

However, in regards to this particular situation, the European director of the Migration Policy Institute has suggested that “it might make more sense for the commission to avoid insisting on the commitment, having made its point.”[21] She went on to explain that “[f]ew EU member states have actually met their relocation quota, and most were just a lot more passive about it.”[22] Even so, the implications of just letting defiant member states get away with refusing to comply with an entity that they agreed to subject themselves to are troubling. There must be some effective way of holding them accountable if intergovernmental organizations are to maintain a sense of respect and integrity. This is especially important in the context of global crises – such as the one seeking to be addressed here – that need the participation and cooperation of numerous countries in order to be addressed effectively.

 

 

 

 

[1] James McAuley, Central European Countries Resist New EU Refugee Quota Proposal, WASH. POST (May 4, 2016), https://www.washingtonpost.com/world/europe/central-european-countries-resist-new-eu-refugee-quota-proposal/2016/05/04/5be5a32c-120e-11e6-a9b5-bf703a5a7191_story.html?utm_term=.52188994d704 [hereinafter McAuley].

[2] See David Martin, The EU Migrant Relocation and Resettlement Scheme – What You Need to Know, DW (Sept. 6, 2017), http://www.dw.com/en/the-eu-migrant-relocation-and-resettlement-scheme-what-you-need-to-know/a-40378909 [hereinafter Martin].

[3] See id.; EU Rejects Legal Action Against Refugee Quotas, AL JAZEERA (Sept. 6, 2017), http://www.aljazeera.com/news/2017/09/ecj-rejects-legal-action-refugee-quotas-170906120420347.html.

[4] See Martin, supra note 2.

[5] Id.

[6] Id.

[7] See McAuley, supra note 1.

[8] See EU Rejects Legal Action Against Refugee Quotas, AL JAZEERA (Sept. 6, 2017), http://www.aljazeera.com/news/2017/09/ecj-rejects-legal-action-refugee-quotas-170906120420347.html.

[9] See id.

[10] Id.

[11] See McAuley, supra note 1.

[12] See Consolidated Version of the Treaty on the Functioning of the European Union art. 258, Oct. 26, 2012, 2012 O.J. (C 326) 1 [hereinafter TFEU].

[13] Laurel Wamsley, EU Court Rejects Bid by Hungary and Slovakia to Avoid Taking Migrants, NPR (Sept. 6, 2017, 5:15 PM), http://www.npr.org/sections/thetwo-way/2017/09/06/548943527/eu-court-rejects-bid-by-hungary-and-slovakia-to-avoid-taking-migrants [hereinafter Wamsley].

[14] See TFEU art. 260.

[15] See id.

[16] See European Commission Press Release MEMO/05/482, Financial Penalties for Member States who fail to comply with Judgments of the European Court of Justice: European Commission clarifies rules (Dec. 14, 2005).

[17] Consolidated Version of the Treaty on European Union art. 7, Oct. 26, 2012, 2012 O.J. (C 326) 1.

[18] Kim L. Scheppele, Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures, in Reinforcing Rule of Law Oversight in the European Union 105, 106 (Carlos Closa and Dimitry Kochenov ed., 2016).

[19] See id.

[20] See id. at 107.

[21] Wamsley, supra note 13.

[22] Id.

Post navigation

Leave a Reply

Your email address will not be published. Required fields are marked *