Solidarity on trial: On reliance,reason and logic at the Court of Justice of the European Union

A. EU primary law

Article 67 TFEU is the first provision of the EU Treaties dealing with the area of freedom, security, and justice (AFSJ). ¹⁰ Subsection two states that to ‘ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States…’. ¹¹ This approach also seen in Article 80 TFEU, which states, ‘[t]he policies of the Union set out in this [c]hapter and their implementation shall be governed by the principle of solidarity…’. ¹²

According to EU primary law, therefore, the EU has the competence to establish a common asylum policy for the Union and to create laws governing aspects of immigration from non-EU states, including external border controls. It is clear from these provisions of EU primary law that the concept of solidarity is intended to be present when it comes to adopted legal acts and measures in the AFSJ. Yet its concrete application, or actions being tested for its compliance with the idea of solidarity, has remained elusive. The case law at the Court of Justice in the field of AFSJ, until recently, has not seen solidarity arise as a ground of legal reasoning in its judgments. Few aspects of EU secondary law in the field cite solidarity as the rationale for adopted law. There are some examples, ¹³ but not so many as to consider it widespread.

B. Inter-state solidarity and the relocation of persons seeking international protection

And then along came the Slovakia and Hungary v. Council (Provisional relocation) case. ¹⁴ This case concerned the attempted annulment of a Council decision which established provisional measures for the relocation of over 100,000 persons seeking international protection in two Member States on the EU's periphery that had received a sizeable proportion of third-country nations. ¹⁵ Slovakia and Hungary challenged the adoption of the Council decision, arguing that it was adopted on the wrong legal basis, that violated essential procedural requirements, and that it breached the principle of proportionality.

The legal basis of the Council decision was Article 78(3) TFEU, which states, ‘[i]n the event of one or more Member States being confronted by an emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.’ In defending the lawfulness of the Council decision, the Council argued that, given the scale of the issue facing Italy and Greece, it was vital for the EU and the other Member States to show solidarity towards those two through the adoption of the decision. In other words, it was the Council – a party usually reticent about invoking the ideals of the EU legal order in judicial proceedings – that was trying to argue before the Court of Justice that ‘solidarity’ was a basis for the adoption of the non-legislative act.

Remarkably, the Court of Justice agreed with the Council. It stated that, ‘in the circumstances of this case, there is no ground for complaining that the Council made a manifest error of assessment when it considered, in view of the particular urgency of the situation, that it had to take – on the basis of Article 78(3) TFEU, read in the light of Article 80 TFEU and the principle of solidarity between the Member States laid down therein – provisional measures imposing a binding relocation mechanism, such as that provided for in the contested decision.’ ¹⁶ The Court of Justice accepted the Council's argument wholeheartedly, and furthermore stated:

[w]hen one or more Member States are faced with an emergency situation within the meaning of Article 78(3) TFEU, the burdens entailed by the provisional measures adopted under that provision for the benefit of that or those Member States must, as a rule, 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 EU asylum policy. ¹⁷

In this case, it is evident that the Court of Justice, when asked to assess the lawfulness of an EU legal measure like the act in question – providing for the provisional relocation of third-country nationals seeking international protection within the EU – was satisfied that the principle of solidarity in the AFSJ provisions of the EU Treaties was a ground that the Council could rely upon. ¹⁸

This was no slip of the pen. In a subsequent judgment, again dealing with the same subject matter, the Court of Justice in Commission v. Poland, Hungary, and the Czech Republic (Temporary relocation) ¹⁹ had to deal with the relevance of solidarity in the context of an infringement procedure that the Commission had taken against three Member States for failing to comply with the aforementioned secondary law on the relocation of persons seeking international protection. The Court of Justice said the Commission's actions to ensure that Member States fulfilled their obligations under the decided secondary law was entirely legitimate, ‘in accordance with the principle of solidarity and fair sharing of responsibilities between the Member States which, in accordance with Article 80 TFEU, governs the European Union's asylum policy – to the objective of effective relocation pursued by…[the Council] Decisions’. ²⁰ Here, the Court of Justice was keen to underpin that solidarity was indeed an underpinning of the act, and was equally relevant in another procedural context.

The Opinion of Advocate General Sharpston was even stronger in that case on the point of solidarity. For her, the fact of the sheer number of persons seeking international protection amounted to an emergency situation, and thus:

it was the responsibility of both the frontline Member States and the potential Member States of relocation to make that mechanism work adequately, so that relocation could take place in sufficient numbers to relieve the intolerable pressure on the frontline Member States. That is what solidarity is about. ²¹

This development ties in with other developments in the AFSJ related to individuals seeking judicial redress under EU law. For example, in the Jafari case, the Court stated that the applicable EU secondary law concerning the identification of the responsible Member State for the examination applications for asylum submitted by persons seeking international protection under the Geneva Convention (the Dublin III Regulation) rested on the spirit of solidarity between the Member States. ²² Demonstrably, therefore, the Court has moved from seeing EU secondary law linked to solidarity as being built on the spirit of solidarity, to the principle of solidarity.

C. Inter-state solidarity and the failure to comply with a judgment of the Court of Justice

In another infringement procedure, though this time on the basis of Article 260 TFEU, though still within the domain of the AFSJ, the Commission in Commission v. Hungary (Reception of applicants for international protection II) ²³ brought proceedings against a Member State for its continued failure to comply with a prior judgment of the Court of Justice. ²⁴ The Court of Justice was evidently incensed with the lack of compliance of the Member State with a prior judgment of the Court of Justice. Not only did it find another violation of EU law, the Court of Justice also added that:

the deliberate evasion by a Member State of the application of a common policy as a whole constitutes an unprecedented and exceptionally serious infringement of EU law, which represents a significant threat to the unity of EU law and to the principle of equality of the Member States, referred to in Article 4(2) TEU. ²⁵

It moreover stated that, ‘[s]uch conduct seriously undermines the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States, which governs, in accordance with Article 80 TFEU’. ²⁶ Thus, for the Court of Justice, the principle of solidarity as contained in Article 80 TFEU was fully applicable.

But it did not stop there. The Court of Justice's kicker came next, in that it claimed, ‘it should be recalled that the principle of solidarity is one of the fundamental principles of EU law and is one of the values common to the Member States on which the European Union is founded, pursuant to Article 2 TEU’. ²⁷ In other words, to reinforce its understanding of legal solidarity in Article 80 TFEU in a context-specific fashion – within the AFSJ – the Court of Justice drew upon solidarity as a value of the EU. And in another moment of equal irritation and frenzy, it extolled that:

By unilaterally upsetting the balance between the advantages and obligations arising from its membership of the European Union, a Member State calls into question observance of the principle of equality of the Member States before EU law. That failure in the duty of solidarity accepted by the Member States by the fact of their accession to the European Union strikes at the very root of the EU legal order. ²⁸

This linking by the Court of Justice was, at best, a stretch, given that the full relevance of Article 2 TEU has yet to come to fruition. ²⁹ But it played into the actual operative part of the judgment too, namely the potential for a lump sum and/or penalty payment (fines) to be placed upon the infringing Member State.

This was an Article 260(1) TFEU and Article 260(2) TFEU case. The former states, inter alia, that a Member State which is found under an infringement procedure to have failed to fulfil its obligations under the Treaties ‘shall be required to take the necessary measures to comply with the judgment of the Court [of Justice]’. The latter, more importantly, is the stick to bring about those necessary measures. It states that if the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, ‘it may bring the case before the Court…[and]…shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned’.

In this case, the Commission asked that a daily lump sum of approximately €5,500, amounting in total to at least approximately €1 million, for the period from the date on which the judgment in the Commission v. Hungary (Reception of applicants for international protection I) was delivered, ‘until the date on which the defendant complies with that judgment or the date of delivery of the present judgment, whichever is the earlier’. It further asked that, from the date of the judgment in Commission v. Hungary (Reception of applicants for international protection II) to be delivered by the Court of Justice, a ‘daily penalty payment’ of just over €16,000 be applied, until the judgment in Commission v. Hungary (Reception of applicants for international protection I) was complied with.

Whilst it seemed that up to this point that the Commission and the Court of Justice were brothers in arms in terms of the outcome and reasons for such an infringement of EU law, the Court of Justice broke sharply with the Commission here, and went where the Commission had likely feared to go: financial penalties divorced from calculable ways which had previously governed infringements by Member States. The amount that the Commission was seeking to be imposed was modest, and in line with its established pleadings and precedent. ³⁰ Using the figures given in the Commission's application, it was asking for a minimum of €1 million lump said to be levied, but an actual sum of just over €6 million, given that it was over three years that the infringement had persisted. As for the penalty payment, it sought for a daily rate of €16,000 to be applied from the date of the judgment to be delivered by the Court of Justice.

The Court of Justice set aside the detailed considerations of the fines proposed by the Commission. Instead, the Court of Justice stated that given the ‘considerable period of time’ ³¹ that the Member State had not abided by the preceding judgment, which was ‘exceptional[ly] serious[]’, despite the evident breaches of EU law, it, out of nowhere, developed its own financial penalties. The lump sum was set at €200 million, ³² a 3,233% increase from the €6 million that the Commission had asked for, along with a penalty payment of €1 million per day from the day to apply from the date of the given judgment, ³³ a 6,150% increase from €16,000 that the Commission had asked for. These financial penalties, way in excess of what the Commission had calculated, would naturally call for an explanation to guide the Commission in future cases. But no precise formula was given by the Court of Justice for these calculations. And nor was there any Opinion of the Advocate General to keep the Court of Justice honest. ³⁴

A breach of the principle of solidarity was, in the Court's view, a reason for the imposition of the fines. As it stated, the Member State's conduct ‘seriously undermines the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States’, ³⁵ and such conduct, undermining solidarity, ‘strikes at the very root of the EU legal order’. ³⁶ Thus it is now without question following the Slovakia and Hungary v. Council (Provisional relocation) and Commission v. Poland, Hungary, and the Czech Republic (Temporary relocation) judgments that solidarity – however defined – can be utilized by parties before the Court of Justice in AFSJ cases, and the Court of Justice will place emphasis on solidarity, depending on the factual circumstances before it.

A. EU primary and secondary law

In the field of energy policy, the place of negative integration through free movement had proven to be limited under the applicable freedoms. In order to truly revolutionize the energy market in Europe, it has long been known that it would need the adoption of EU secondary law to improve the interconnectedness of Europe's energy markets. It is through ‘packages’ proposed by the Commission, and adopted by the Council and Parliament as co-legislators, that the transformation of the EU energy sector has been brought about.

From the mid-1990s, EU energy law and policy, as positive integration, began to slowly come about, as these so-called ‘packages’. ³⁷ Many EU energy laws as EU secondary law were adopted on the basis of the internal market competence in what is today Article 114 TFEU, and/or the respective classic free movement provisions. However, with the Treaty of Lisbon came a new provision to enhance the circulating of energy within the Union, over and above the usual legal bases. The provision, Article 194(1) TFEU, was curiously worded, in that it stated, ‘[i]n the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States’. ³⁸

This was to apply to the functioning of the energy market, security of energy supply, promotion of energy efficiency, development of new renewable forms of energy and the interconnection of energy networks/grids. This was without a doubt a desired objective, but the terminology utilized cannot be in any way described as being clear or precise. Moreover, the reach of Article 194 TFEU was sought to be qualified by the Member States through the appending of a declaration to the EU Treaties, in that ‘Article 194 [TFEU] does not affect the right of the Member States to take the necessary measures to ensure their energy supply under the conditions provided for in Article 347 [TFEU]’. ³⁹

Similarly, but differently, the EU Treaties also contain Article 122(1) TFEU, which states that, ‘[w]ithout prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.’ ⁴⁰ In other words, what is being picked away at is an opportunity for the adoption of ‘measures’, openly ill-defined, to support inter-state solidarity. Article 122 TFEU has been in the EU Treaties from the very beginning, ⁴¹ but it is only with the Treaty of Lisbon, which came into effect in 2009, that, first, the solidarity aspect of the provision was added, and second, the energy aspect of the provision was added.

It is not readily obvious why Article 194(1) TFEU was inserted into the EU Treaties as a ground of competence in the energy sector; nor is it with regard to the insertion of solidarity and the energy sector into the pre-existing Article 122 TFEU. After all, the existing legal bases that EU secondary law had been adopted on provided ample opportunity, and no EU constitutional inhibition from the adoption of further harmonizing measures to improve the effectiveness of the EU energy market.

The only apparent explanation can be that the insertion of further objectives within the energy sector now became EU constitutional objectives, and not just those that would ordinarily feature in the preamble to various pieces of EU secondary law. Therefore, it can be theorized whether the constitutionalization of solidarity, applied to the field of energy, was meant to have any meaningful effect. The CJEU was invited, naturally, to offer its views on this change in EU primary law.

B. Energy solidarity and the Court of Justice of the European Union

In the curious case of Germany v. Poland, Commission and others, ⁴² the Court of Justice took it upon itself to pronounce on the legal ramification of Article 194(1) TFEU in a concrete sense. The facts of the case centred around the OPAL pipeline, an extension of the Nord Stream 1 pipeline, running from Germany to the Czech Republic. The OPAL pipeline was initially exempted from third-party access and tariff regulation under Directive 2003/55, adopted under the second EU energy package. This exemption was granted by a German authority – and approved by the Commission – and was later amended to include conditions limiting the capacity that dominant undertakings could reserve.

Poland, supported by Latvia and Lithuania, challenged the Commission's decision before the General Court, arguing that it threatened the security of gas supply in Central and Eastern Europe. They contended that the changes would allow a third-state natural gas company to redirect gas flows, potentially reducing the use of other pipelines, which could negatively impact upon Poland's energy security and diversification of supply sources. Or in technical terms, that the Commission decision at issue should be annulled on ground of an infringement of Article 36(1)(a) of Directive 2009/73, read in conjunction with Article 194(1) TFEU. At the time of the case, Directive 2009/73 provided for common rules for the internal market in natural gas. ⁴³ Article 36(1)(a) of the Directive read, ‘[m]ajor new gas infrastructure, i.e. interconnectors, [liquefied natural gas (LNG)] and storage facilities, may, upon request, be exempted, for a defined period of time,…under the following conditions…[including]…the investment must enhance competition in gas supply and enhance security of supply’. The case was first heard by the General Court, and on appeal, secondly, by the Court of Justice.

In its judgment, ⁴⁴ the General Court found that the Commission had failed, in its decision, to adequately consider the potential adverse effects on Poland and other Member States. The General Court emphasized that the principle of energy solidarity, as provided for in Article 194(1) TFEU, had material value, in which it stated ‘the principle of solidarity…entails a general obligation on the part of the [EU] and the Member States, in the exercise of their respective competences, to take into account the interests of the other stakeholders.’ ⁴⁵ The General Court continued, however:

…more specifically, the energy policy of the [EU], that policy requires the [EU] and the Member States to endeavour, in the exercise of their powers in the field of energy policy, to avoid adopting measures liable to affect the interests of the [EU] and the other Member States, as regards security of supply, its economic and political viability, the diversification of supply or of sources of supply, and to do so in order to take account of their interdependence and de facto solidarity. ⁴⁶

This resulted in the General Court declaring that ‘it must be held that the contested decision was adopted in breach of the principle of energy solidarity, as provided for in Article 194(1) TFEU’. ⁴⁷ In other words, for the General Court, solidarity in the field of energy was to be fully operationalized. ⁴⁸ This contrasted with the decision of the Commission that was being challenged, whereby the Commission did not disclose any factor to provide for the view that it had carried out an examination of this principle.

Germany appealed the case to the Court of Justice, asking for the judgment of the General Court to be set aside, and referred back to the General Court. Its appeal was quite straightforward. It argued that solidarity, as elaborated in Article 194(1) TFEU, could not have binding legal effect, and that it did not entail rights or obligations for either the Union itself, nor its Member States. Thus Germany argued that the General Court had incorrectly interpreted solidarity under Article 194(1) TFEU. For Germany, the notion of solidarity in that provision was an abstract, merely political notion, rather than a binding legal criterion.

Consequently, Germany argued that the Commission was not required to explicitly mention solidarity in its decision. Given this, Germany was of the view that it was not within the EU judiciary's power to assess the legality of Commission decisions, like the one in question, vis-à-vis Article 194(1) TFEU. Thus Germany maintained that the Commission's decision should be reviewed solely based on the specific requirements of Article 36(1) of Directive 2009/73, which focused on security of supply, and not solidarity. The only caveat that Germany provided for how solidarity could be operationalized, legally, in context of Article 194(1) TFEU, was if there was an exceptional circumstance, such as an emergency, which, in any event, was not the case here. If the case was to be referred back to the General Court, therefore, Germany was of the position that the Commission acted correctly in examining the requirements of Article 36(1) of Directive 2009/73 when making its decision.

Germany's argument therefore, in other words, shared the scepticism of the legal notion of solidarity as espoused by the present author writing earlier in this journal, that solidarity in the EU Treaties is, in many cases, not actually a legalized form of solidarity. And for Germany, given that solidarity had not been an operational idea in legal form, it followed that the principle, concept or value, however context-specific, such as with regard to the field of energy, could not be used as a criterion to determine the lawfulness of an EU legal act like a Commission decision.

Advocate General Campos Sánchez-Bordona wasted no time in getting to the heart of the matter, espousing his views on solidarity as applied to the field of energy, its legal implications and the Commission's obligations under Article 194(1) TFEU. The question to him was unequivocal: the case ‘requires the Court [of Justice]…to rule on the existence of the principle of energy solidarity and, if appropriate, on its nature and scope’. ⁴⁹ He noted that solidarity was referred to throughout EU primary law, from the preamble of the EU Treaties to specific fields and policy domains therein. He noted, rather curiously, even though this was not related to the case at hand, that solidarity in EU law encompassed not only vertical relations between the EU and its Member States, but also horizontal relations (between Member States, institutions, peoples and generations). For him, in that whilst ‘[i]t is difficult…to infer from the…collection of provisions a full and all-encompassing definition of solidarity in EU law[,] [it is nonetheless]…a notion which appears to be linked to relations…horizontal (between Member States, between institutions, between peoples or generations and between Member States and third countries)…in a variety of contexts.’ ⁵⁰

This highly expansive view of solidarity, applied to the case at hand, meant for him that, ‘the General Court rightly took the view, without erring’ regarding what solidarity meant. ⁵¹ From there, he opined that:

Article 194(1) TFEU produces effects which are not merely political but legal: a) as a criterion for interpreting provisions of secondary law adopted in implementation of the [EU]'s powers in energy matters; b) as a means of filling any gaps identified in those provisions; and c) as a parameter for judicial review, either of the legality of the aforementioned provisions of secondary law, or of decisions adopted by the bodies of the [EU] in that field. ⁵²

And if that was not fully clear, he continued in stating that the principle of energy solidarity was justiciable and, accordingly, capable of legal application. ⁵³

One of the hallmarks of this Opinion was the absolute clarity he provided as to his view. But he also laudably considered the drawbacks of his given conclusion. He noted that, ‘I am not unaware that, in common with the majority of legal principles, the principle of energy solidarity entails some measure of abstraction making it difficult to apply’. ⁵⁴ And furthermore,

[i]ts relatively abstract nature necessarily means that it will not always be easy to infer clear solutions from the principle of energy solidarity, given that its application in practice will entail both areas of certainty and other greyer areas which the interpreter will have to analyse carefully. ⁵⁵

But, despite this drawback, he maintained his view that solidarity in the field of energy as contained in Article 194(1) TFEU was justiciable; and that it was not merely a political notion, but a principle that creates rights and obligations for both the EU and its Member States.

The Court of Justice in its judgment was opposite to the view of Germany and the present author, and in agreement with that of the General Court and its own Advocate General. It grasped the opportunity to elaborate further on what the General Court had found, and used the opportunity presented to it to extol its views. The Court of Justice began with saying that, for it, solidarity between Member States as mentioned in [Article 194 TFEU], ‘constitutes a specific expression, in the field of energy, of the principle of solidarity, which is itself one of the fundamental principles of EU law’. ⁵⁶ And from there, it sought to contextualize solidarity in that specific provision into the broader inclusion of solidarity, legally binding or otherwise, in other parts of EU primary law, ⁵⁷ including the AFSJ. ⁵⁸ Whilst this had nothing to do with the underlying case on the lawfulness of the Commission decision, it provided a basis to reinforce its argument that the General Court was correct to annul the decision. According to the Court of Justice, ‘the General Court correctly noted…the principle of solidarity underpins the entire legal system of the European Union’. ⁵⁹ In doing so, the Court of Justice cited old case law on solidarity, ⁶⁰ which it had never done before, not even in the AFSJ case. The Court of Justice then chose to deal with what it called the ‘alleged[] abstract nature of the principle’ of solidarity. ⁶¹ In full agreement and citation of the Advocate General in the case, the Court of Justice stated that, given that solidarity was concretely applied in recent times within the AFSJ case law:

there is nothing that would permit the inference that the principle of solidarity referred to in Article 194(1) TFEU cannot, as such, produce binding legal effects on the Member States and institutions of the [EU]. ⁶²

This was a remarkable stretch of the Court of Justice, for it was not really concerned with the lack of concrete obligations that solidarity under Article 194(1) TFEU would produce. Consequently, therefore, energy solidarity, whilst not a general principle of EU law, still had the same effect, in that Article 194(1) TFEU ‘constitutes a criterion for assessing the legality of measures adopted by the EU institutions’. ⁶³ The relevance of the citizen and solidarity in the Germany v. Poland, Commission, and others case was entirely absent. ⁶⁴

The question that therefore arises is why the Court of Justice used the opportunity presented to it to transform the text of the spirit of solidarity in Article 194(1) TFEU, to being a principle of solidarity, entailing much more concrete measures, at least for EU institutional decision-making, is not immediately obvious. But for the case at hand, therefore, the Court of Justice was of the view that the principle in this context necessitates a general obligation for the Commission to take into account the interests of all stakeholders liable to be affected. ⁶⁵ Therefore the Court of Justice was satisfied that the solidarity, as a principle, could underpin the establishment and functioning of the internal market in natural gas, and consideration thereof by the Commission was a necessity. The appeal was dismissed, and the initial assertions of the General Court on solidarity, as contained in Article 194(1) TFEU, were maintained.

Curiously, the Court of Justice did not avail itself of the opportunity to overturn the General Court's exertion that solidarity constituted a ‘general principle’ applied ‘between the Member States’. Instead, it merely referred to the ‘principle’ of solidarity as being ‘itself one of the fundamental principles of EU law’. ⁶⁶ Just what the Court of Justice meant by a fundamental principle, as opposed to a general principle, was left unexplained. In case law beyond the field of energy thereafter, the Court of Justice repeat the ‘fundamental principle’ text, such as in Hungary v. Parliament and Council (Rule of Law Conditionality Regulation), in which it stated, ‘the Union budget is one of the principal instruments for giving practical effect, in the Union's policies and activities, to the principle of solidarity, mentioned in Article 2 TEU, which is itself one of the fundamental principles of EU law’. ⁶⁷