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Jukka Snell
Any court faced with the task of applying law in the context of a crisis has two basic options. The first is captured by the maxim necessitas non habet legem¿necessity knows no law. In other words, the strict application of the relevant legal rules has to give way in a crisis; especially if it is apparent that the rules were not designed for it and that they will not produce a desirable outcome. A court may do this openly or covertly: either articulating expressly what it is doing or claiming to be just applying the law while in reality departing from it. The second option is captured by the expression fiat justitia, et pereat mundus¿let justice be done, and let the world perish. In other words, the law must be applied, no matter the price. Even in a crisis, a judge must apply normal legal rules regardless of the outcome. Interestingly, both attitudes were on display in the recent Jafari case. However, when Jafari is compared with earlier crisis judgments such as Pringle and Gauweiler, a more nuanced picture emerges.
The Jafari sisters left Afghanistan with their children in December 2015 and crossed the border between Serbia and Croatia in early 2016, at the height of the so called refugee crisis. The Croatian authorities bussed them to the Slovenian border. From there, they continued to Austria, where they lodged applications for international protection. The Austrian authorities took the view that according to the Dublin III Regulation3 it was for Croatia to deal with the applications. In particular, under art.13(1), if a person seeking international protection has "irregularly crossed the border into a Member State ¿ having come from a third country, the Member State thus entered shall be responsible". However, the key question was whether the crossing from Serbia to Croatia was in fact irregular. Under art.5(4)(c) of the Schengen Borders Code4 third-country nationals may be authorised to enter on humanitarian grounds. It was argued that the crossing was not irregular at all, but perfectly in line with that express derogation.
Advocate General Sharpston veered towards the option of departing from the normal application of Dublin III.5 She argued that the Regulation contained no criteria specifically addressing a sudden massive inflow of third-country nationals, and that it was unlikely the legislature had contemplated such a situation. There was a vacuum. A strict interpretation of art.13(1) would ignore the realities of the crisis¿necessitas non habet legem. Croatia would have been overwhelmed by the numbers, given that nearly 700,000 people had entered the country in late 2015 and early 2016, and its asylum system would have been overburdened. This could still happen if it was required to receive a large number of applicants who had previously transited through Croatia. The application should be considered by Austria.
By contrast, the Grand Chamber insisted on the normal application of the rules. The border crossings were indeed irregular under Dublin III when the usual meaning of the concept was considered against the overall context, general scheme and objectives of the Regulation. The unusual situation could not affect the interpretation or the application of art.13(1)�fiat justitia, et pereat mundus. In fact, the EU legislature had already taken account of the possibility of a crisis. The Regulation itself contained a mechanism for early warning, preparedness and crisis management. Under art.78(3) TFEU the Council could adopt provisional measures, which had indeed been put in place for Greece and Italy. The other Member States could step up and voluntarily assist Croatia. And if the Croatian system really did get overwhelmed to the extent that there was a genuine risk of inhuman or degrading treatment, the failsafe established by the NS ruling would kick in and the other Member States would have to stop sending applicants back to Croatia.6 In other words, the responsibility for considering the application of Jafari did rest with Croatia, in accordance with the normal operation of the Dublin system.
It is interesting to contrast Jafari with the key ruling on the euro crisis: Pringle. This case concerned the legality of the European Stability Mechanism, a crisis management tool which had been set up outside the EU legal framework. The argument was, inter alia, that it violated the "no bail-out clause" of art.125 TFEU. In its judgment the Full Court gave the ESM a clean bill of health. The ruling is considered by some scholars to circumvent the basic scheme of the Treaty, according to which each Member State is responsible for its own debts. They view it as a decision motivated by the maxim necessitas non habet legem, where the Court abandoned the rule of law.
If the analysis of Pringle is correct, why the difference? The most obvious answer is timing� the worst crisis was over at the time of Jafari but still ongoing at the time of Pringle. It is easier to insist on a strict reading of the law after a crisis than when it is raging. However, the third key crisis ruling, Gauweiler, suggests another interpretation. In Gauweiler, at issue was the legality of the outright monetary transactions programme of the ECB. It was alleged inter alia that the Bank had overstepped its powers. The Court disagreed, emphasising the autonomous role of the Bank and the limits of judicial review.
The thread that connects Jafari, Pringle and Gauweiler is the Court�s deference to the political and expert decision makers. The Court is being modest; it does not want to take the matters into its own hands. In Jafari, this meant respecting the system that has been set up as well as the potential for its future reform, or action under art.78(3) TFEU. In Pringle this meant upholding the ESM, in Gauweiler a light touch review of the ECB. The Court recognises the limits of its capacity and focuses on ensuring that its rulings do no immediate harm to the system that has been established. However, none of the judgments gives a blank check to the Member States or the EU institutions. In Jafari, the Court issued a reminder that the operation of the system must stop if there are grave human rights concerns. In Pringle it established the principle of euro area financial stability that must be respected. In Gauweiler, the principle of proportionality was used to set limits to the discretion of the ECB. This then seems to be the role that the Court has selected for itself in a crisis: careful not to get in the way, but prepared to lay down the ultimate limits beyond which none must stray.
