Pushbacks are illegal in EU law, grounds for security measures can not be merely declaratory

While for the purposes of the area of free movement, security and justice, (internal) security is considered a common EU policy objective, security measures are still considered an exception to the common rules.  This concept is in line with the provisions of Article 4(2) of the EU Treaty, according to which the Union respects the essential functions of the Member States, in particular with regard to the safeguarding of territorial integrity, the maintenance of law and order and the protection of national security. National security remains the sole responsibility of each Member State.

In accordance with Article 72 TFEU, the provisions of Title V of Part Three of this Treaty do not relieve Member States of their obligation to maintain law and order and to ensure internal security. However, Article 72 cannot be interpreted as authorising Member States to derogate from the provisions of Union law simply on the basis of a declaratory plea of their responsibility for maintaining public order and internal security, without justifying the necessity of such a need.

According to Article 52(1) of the EU Charter of Fundamental Rights, restrictions on the exercise of fundamental human rights must in fact be consistent with objectives of general interest recognised by the Union or with the need to protect the rights and freedoms of others. Although that provision does not explicitly mention public or internal security, it is undisputed that such an objective is general is considered legitimate under EU law.

No doubt, in the management of migration processes, Member States retain the right to take the necessary measures to safeguard national security, including by restricting the rights of individuals. However, such restrictions must be necessary and clearly justified. Human rights and EU law cannot be restricted declaratively on the basis of political arguments.

As the CJEU pointed out last June in case C-72/22 (paragraphs 68-75) on the state of emergency declared in Lithuania in connection with a massive influx of foreigners, although Member States are entitled to adopt measures appropriate to safeguard public policy and internal and external security in their territory, this does not mean that such measures are completely exempt from Union law. Provisions applicable in circumstances likely to affect public policy or public security are limited to clearly defined cases. It does not follow that the TEU Treaty contains a general exception that excludes all measures to safeguard public policy or public security from the scope of Union law.

In the CJEU case concerning the restriction of the right to apply for asylum, the Lithuanian government did not explain the impact of the measure restricting the right to asylum on the maintenance of public order and internal security, and Lithuania’s actions were found to be in breach of EU law. When restricting human rights, it is necessary to justify how the restrictions would specifically contribute to the security of the state and, more specifically, why they are necessary. Only then would the restriction of human rights be lawful under EU law.

Lithuanian law, establishing closed border zone and legitimising pushbacks of every foreigner found in that zone contradicts Constitution and international commitments, argues ReLex managing partner Rytis Satkauskas in his column at Teise.Pro. Lithuania does not have the capacity to stop irregular migration on its own or to change existing human rights standards by juggling national security arguments.




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