2024-09-01 14:24:31
Migration
Experts believe border closure is possible due to emergency
Updated on 28.08.2024Reading time: 3 min.
Can Germany declare an “emergency situation” in order to circumvent EU law if necessary and turn people back at the borders, as CDU leader Merz suggests? Experts do not rule out the possibility.
After the terrorist attack in Solingen, politicians and experts are discussing the legal options for tightening migration policy proposed by CDU/CSU parliamentary group leader Friedrich Merz. After his conversation with Chancellor Olaf Scholz (SPD), the CDU chairman suggested, among other things, that Germany could declare a national emergency in order to be able to turn people away at its borders because the so-called Dublin Regulation is no longer being observed. Legal experts and migration researchers do not rule out that this is possible.
The Dublin Regulation stipulates that the asylum application in Europe must be submitted in the country that is first entered. Strictly interpreted, this would mean that only a few people, for example those who arrive by plane, would come to Germany. However, the system has “collapsed and effectively failed,” according to a paper published by the CDU on Tuesday on its migration policy demands.
In his press conference, Merz had previously referred to the Treaty on the Functioning of the European Union. If rejections at the German border are not possible for reasons of European law and this cannot be resolved at the European level, Germany has the right to declare a national emergency. “Then the national law of the Federal Republic of Germany is more important than European law. This is possible under the EU Treaty” and must be invoked.
Former judge at the Federal Constitutional Court and constitutional lawyer Paul Kirchhof told “Bild” that Merz was probably invoking Article 78 of the EU Labour Treaty. This describes the possibility of “provisional measures” for member states that find themselves in an emergency situation “due to a sudden influx of third-country nationals”.
Germany does its own thing?
“This means that Germany would no longer adhere to the current EU law, but would do its own thing,” explained Volker Boehme-Neßler, a constitutional lawyer from Oldenburg, to the newspaper, speaking of a drastic measure that would at least make sense in the short term. Germany could thus limit the number of refugees and at the same time exert pressure within the EU to create a functioning distribution system.
In an article on X, European law expert Daniel Thym from the University of Konstanz also refers to Article 72 of the EU employment contract. This guarantees EU member states the responsibility “for maintaining public order and protecting internal security.” Deviating from EU rules is permitted, writes Thym, but also refers to the European Court of Justice. The catch is that all attempts have failed so far. The risk of litigation is high.
The CDU’s paper states that European law provides the possibility of rejections at borders. Since this has been called into question in some cases, they have long been calling for clarification in European law. The Christian Democrats also argue that the security situation in Germany and Europe has worsened: “And EU asylum law is expressly subject to the reservation of maintaining public order and protecting internal security.”
In addition to declaring an emergency, the CDU is also calling for Syrians and Afghans who are required to leave the country to be deported to their home countries and for a freeze on the admission of asylum seekers from Syria and Afghanistan. According to the CDU, this is not about changing the asylum law in the Basic Law. “A practice of consistently rejecting people without entry permits at the border would lead to a de facto freeze on the admission of asylum seekers from Syria and Afghanistan,” it says. At his press conference, Merz brushed aside arguments that the CDU’s proposals could conflict with legal provisions: the population no longer wants to hear about everything that is not possible.
Expert: “Nobody who comes to Germany irregularly is in need of protection”
Thym suspects that the CDU’s strategy is based on the calculation that a German border closure could trigger a chain reaction, with a signal of isolation and the result that irregular migration would decline in the short term, even if the green border could not be made “hermetically sealed” or if the courts did not cooperate.