Those Member States can rely neither on their responsibilities concerning the maintenance of law and order and the safeguarding of internal security, nor on the alleged malfunctioning of the relocation mechanism to avoid implementing that mechanism.
In the judgment in Commission v Poland, Hungary and the Czech Republic (C-715/17, C-718/17 and C-719/17), delivered on 2 April 2020, the Court upheld the actions for failure to fulfil obligations brought by the Commission against those three Member States seeking a declaration that, by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who could be relocated swiftly to their respective territories and by consequently failing to implement their subsequent relocation obligations, those Member States had failed to fulfil their obligations under European Union law. First, the Court concluded that there had been an infringement, by the three Member States concerned, of a decision adopted by the Council with a view to the relocation, on a mandatory basis, from Greece and Italy of 120 000 applicants for international protection to the other Member States of the European Union. Secondly, the Court found that Poland and the Czech Republic had also failed to fulfil their obligations under an earlier decision that the Council had adopted with a view to the relocation, on a voluntary basis, from Greece and Italy of 40 000 applicants for international protection to the other Member States of the European Union. Hungary, for its part, was not bound by the relocation measures provided for under the latter decision.
In September 2015, having regard to the emergency situation linked to the arrival of third-country nationals in Greece and Italy, the Council adopted the abovementioned decisions (‘the relocation decisions’). Pursuant to those decisions, in December 2015, Poland indicated that 100 persons could be swiftly relocated to its territory. However, it did not relocate those persons and it did not make any subsequent relocation commitment. Hungary, for its part, did not at any point indicate a number of persons who could be relocated to its territory pursuant to the relocation decision by which it was bound and did not relocate any persons. Lastly, in February and in May 2016, the Czech Republic had indicated, pursuant to the relocation decisions, that 50 persons could be relocated to its territory. Twelve persons were in fact relocated from Greece, but the Czech Republic did not make any subsequent relocation commitment.
By the present judgment, the Court first of all rejected the argument raised by the three Member States concerned that the Commission’s actions are inadmissible because, following the expiry of the period of application of the relocation decisions, on 17 and 26 September 2017 respectively, it is no longer possible for them to remedy the infringements alleged. In this connection, the Court recalled that an action for infringement is admissible where the Commission restricts itself to seeking a declaration as to the existence of the infringement alleged inter alia in situations, such as those at issue in the present cases, in which the act of European Union law whose infringement is alleged definitively ceased to be applicable after the expiry date of the period set in the reasoned opinion, namely 23 August 2017. Moreover, a declaration as to the failure to fulfil obligations is still 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 of the European Union or private parties.