Provisional measures under Article 78(3) of the Treaty on the Functioning of the European Union in the light of the case-law of the Court of Justice of the European Union

Keywords: international protection, Article 78(3) of the TFEU, provisional measures, solidarity, security

Abstract: One of the legal means to respond to the situation of a sudden mass influx of applicants for international protection in the territory of the European Union is the adoption of provisional measures pursuant to Article 78(3) of the TFEU. The article was first applied in response to the refugee crisis in 2015, when the Council of the EU adopted the decisions on the relocation of applicants for international protection. Mandatory relocations are mainly rejected by the Visegrad Group states, and the European Court of Justice has recently found that the Czech Republic, Poland and Hungary violated EU law by failing to comply with these relocation decisions. The article discusses the benefits of an approach based on temporary measures and whether it is or is not sufficient in the event of a refugee crisis. The author concludes that Article 78(3) of the TFEU has significant advantages as it allows the European Union to act quickly and gives it a wide margin of discretion in how to respond to an emergency situation. Nevertheless, its existence does not deprive the European Union of building a common European asylum policy based on the principle of solidarity expressed in Article 80 of the TFEU. It seems more advantageous for both the EU and the Member States to reach a compromise, to implement the principle of solidarity in the Common European Asylum System and to not rely on ad hoc approaches based on Article 78(3) of the TFEU.