Migrant relocation ruling raises questions

It has also provided an equally discouraging picture of the implementation of the EU's relocation scheme overall.

The report suggests that - except for Finland, Ireland, Lithuania, Luxembourg, Malta and Sweden - all the remaining member states are still under-performing on their legally binding commitments by at least 50 percent.

Given that the EU relocation scheme, in its current form, is due to end on 26 September, what are some of the key lessons that can be drawn from its implementation to date?

And can they guide the design of any future EU migrant solidarity mechanism?

Questions raised

First of all, it is surprising to note that despite the above figures on the implementation of the EU relocation scheme so far, only a handful of member states have continued to be stigmatised for their failure to meet their obligations.

Is there an objective scale establishing the level below which lack of solidarity in this policy area should be singled out and formally condemned?

The impression is given that - more than the insufficient solidarity expressed throughout most of the EU to date - what is really unsettling the EU executive is the openly defiant and confrontational attitude adopted by a couple of member states, which have expressly announced that they would not implement the legally binding EU migrant quota system.

Second, can the Council Decision establishing the relocation scheme, or any future EU migrant solidarity mechanism, continue to be implemented against the will of the national populations of some of the member states?

According to the opinion of advocate general Yves Bot in the recent ECJ case: "Solidarity is among the cardinal values of the Union and is even among the foundations of the Union".

Not only that, but it is also "the quintessence of what is both the raison d'etre and the objective of the European project".

Against this background, it is difficult to envisage how Hungary and Poland, in particular, could both claim to be members of the European project, thereby adhering to all of its fundamental values, and yet continue to selectively ignore some of its key implementing principles and rules.

Third, can alternative forms of solidarity, such as financial and staff contributions to the strengthening of the surveillance of the external borders of the EU, be considered equivalent to hosting a few hundred migrants? Especially since the EU scheme is based on objective, quantifiable and verifiable distribution criteria?

But if so, how can any such equivalence be defined and measured, and through what legal mechanism can it be implemented?

Again, according to the opinion of the advocate general in the recent ECJ ruling, the surveillance of the EU's external borders, which aims to prevent future irregular migration, can in no way replace a relocation mechanism that is intended to respond to migrant flows, which have already occurred and are already affecting several member states.

Therefore, any contribution to the EU's immigration control systems and operations should be considered complementary to, rather than able to substitute for the member states' legally binding obligations under the EU relocation scheme.

Fourth, if the ECJ were to rule in the coming months that Hungary and Poland are indeed in breach of EU law, would the resulting fines correspond to the costs of contributing to the EU migrant quota system? And therefore, would they influence these countries' resolve in ignoring any future EU migrant solidarity scheme?

EU duty

The EU executive and ECJ have a legal, moral and historic duty to engage in the procedure.

But beyond these duties, should a fairer and more persuasive response not also include depriving these member states of their future benefits under EU structural funds and other assistance packages proportionally to the value of their non-contribution to the legally binding EU migrant solidarity mechanisms?

Many fundamentals relating to the future of EU immigration and asylum policy are due to be discussed in several high-level meetings in the coming weeks and months, including under the impetus of the recently elected French president, Emmanuel Macron.

The questions raised above are no doubt some that will need to be answered in any such discussions.

Solon Ardittis is managing director of Eurasylum and a research fellow at the Institute for the Study of Labor (IZA) and at the Global Labor Organization (GLO). He is also co-editor of "Migration Policy Practice", a bimonthly journal published jointly with the International Organization for Migration (IOM).