Updated: Jan 8, 2022
A Council decision for provisional measures to help Italy and Greece (Relocation decision) on the relocation of asylum seekers with legal basis Art. 78(3) TFEU.
(emergency situation with sudden inflow of nationals of third countries).
Art. 78(3) TFEU does not refer to a legislative procedure and is therefore NOT A LEGISLATIVE ACT [>< art. 6 and 289(3)TFEU].
Slovakia and Hungary voted against the provisional measures but it was still adopted as the procedure was QMV. These provisional measures deviate from the Dublin regulation (a legislative act adopted on the basis of OPL).
Therefore Slovakia and Hungary tried to get the Council decision annulled by arguing:
1. That the decision must be seen as a legislative act because of the effects and its content
→ No it is a NON-LEGISLATIVE ACT as it is not based on a legislative procedure (§63).
2. Non-legislative act can’t deviate from legislative act (§53).
→ (§78) Treaty doesn’t say that it is not possible (§74). Also the provisional measures need to have a sufficiently broad scope to be effective in their response to an emergency, so in theory they CAN DEROGATE from LEGISLATIVE ACTS but the material and temporal scope of these derogation must be circumscribed (§75).
Consequently the decision was not annulled as the Court established that there is no hierarchy between legislative/non-legislative provisions. It is simply a purely formal difference.