Source: European Parliament
The EU has faced challenges in recent years due to the ‘instrumentalisation’ of migration by the Belarusian government, leading to irregular border crossings into the EU. In response, some EU Member States have adopted national emergency measures that allow for derogations from EU law. The European Commission considers that EU countries could invoke Article 72 of the Treaty on the Functioning of the European Union (TFEU) to address the issue of ‘hybrid threats’, including the instrumentalisation of migration. Article 72 TFEU allows Member States to derogate from EU secondary law in exceptional cases to maintain law and order and internal security. However, the interpretation of this article is debated. The Court of Justice of the European Union (CJEU) has dealt with Article 72 in several judgments, but all attempts by Member States to invoke an emergency have failed so far. Even if a government successfully invokes Article 72, it would need to respect certain principles, such as the principle of proportionality, the fundamental rights protected by EU law, as outlined in the Charter of Fundamental Rights of the European Union, and the principle of sincere cooperation and mutual trust and solidarity. To invoke Article 72 TFEU, a Member State must also demonstrate that a derogation is necessary to maintain ‘law and order’ or protect ‘internal security’. The concepts of public order and internal security are likely based on the public policy clauses of the fundamental freedoms, as established by CJEU case law.