Summary of the Action

Applicant  :     Slovak Republic

Defendant:     Council of the European Union

Submitted to: Court of Justice as the highest of the courts the Court of Justice of the EU in Luxembourg is consisting of

Application for declaration of invalidity of the decision of the Council (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece.

The Slovak Republic claims that the Court of Justice should

–  declare invalid the decision of the Council (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece and

In support of its action, the Slovak Republic relies on six pleas in law:

1.         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.

2.         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.

3.         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.

4.         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.

5.         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.

6.         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.