Flying Blind

A quarter of a billion euros. That was the final price tag the last time German politicians and constitutional law professors assured us that a controversial German idea was compatible with EU law. Yet the Autobahn car toll for foreigners only pushed through by the Bavarian regional conservatives (CSU) and passed by the Federal government grand coalition of Conservatives and Social Democrats was – quite predictably from the outset – contrary to European law and cost German taxpayers many millions of euros in contractual penalties following clarification by the ECJ in 2019.

And here we go again. The way the current refugee debate in Germany is handled could end up costing Germany, i.e. all of us, much more – not so much in euros, but in trust in the reliability of Germany in general, as an EU Member State, and more generally trust in the reliability of the law.

Background

But what actually happened? On 24 August 2024, a Syrian national murdered three people with a knife at a public festival in Solingen, Germany. The man had not been granted asylum in Germany and should have been transferred to Bulgaria in 2023 already. This is where he had entered the EU, giving Bulgaria the primary procedural responsibility for the asylum proceeding under the Dublin system.

In response to that horrible event, on 27 August 2024, CDU party and parliamentary group leader Friedrich Merz made the following statement to the Federal Press Conference following a meeting with the Federal Chancellor regarding the consequences of the attack in Solingen:

“And if Europe is unable to change this in the short term, we have the right – and in my opinion, given the current situation, the duty – under Article 74 [sic!] of the Treaty on the Functioning of the European Union to declare an emergency situation [“Notlage”] with regard to refugees and then the national law of the Federal Republic of Germany is more important than European law. This is possible under the EU Treaty and, in my opinion and in our opinion, must now actually be utilised.”

(at 13:07 min)

In the wake of the murder attack in Solingen, national populists from the right (AfD) and left (BSW) achieved vote shares of 40 to 50 % in regional elections in Saxony and Thuringia in eastern Germany on 1 September 2024.

Next, opposition leader Merz publicly declared on 5 September 2024:

“If the Federal Government is not prepared to give us a binding declaration by next Tuesday [10 September] that the uncontrolled influx at the borders will be stopped and those who are still coming will be turned back at the German borders, then further talks with the Federal Government make no sense.”

Even before the next regional elections in Brandenburg on 22 September 2024, the Federal Government notified the European Commission on 9 September 2024 of the following:

“The Federal Ministry of the Interior and Community¹⁾ today informed the European Commission that it has ordered the temporary reintroduction of border control at Germany’s land borders with France, Luxembourg, the Netherlands, Belgium and Denmark for six months, starting 16 September 2024. This means that border checks will be possible at all of Germany’s land borders starting on that date. The complete package of stationary and mobile border policing measures, including the possibility to refuse entry at the border, will be applied at all of Germany’s land borders as allowed by EU and national law.”

An ambitious legal regime

There is no doubt that illegal migration is an enormous challenge for Western democracies worldwide. It is democratic states with a rule of law that are particularly affected by migration because Putin’s Russia or the Iranian theocracy or China are not particularly attractive destination countries. In this respect, migration and refugee movements are also a confirmation that we are lucky enough to live in the best places in the world. We have drawn the better lot in the “birthright lottery” (Ayelet Shachar). This has nothing to do with deserved/undeserved or the alleged superiority of a “race” or people. Just one reason that calls for a sense of humility in discussing these issues.

One expression of this humility, but also a lesson from history, is the establishment of refugee rights as human rights and as fundamental rights in Europe after 1945. In international law, the 1951 Geneva Refugee Convention prohibits refoulement, the 1950 European Convention on Human Rights guarantees the right to asylum, and the 1949 German Basic Law (now Art. 16a of the Basic Law) provides an individual fundamental right to asylum.

In a parallel development in the course of European integration, the expansion of the internal market and the freedom of movement within this market went hand in hand with the dismantling of internal borders, which sooner or later had to lead to a uniform border regime (“Schengen”) and thus also to a uniform European refugee law at the external borders of the EU (Art. 77 et seq. TFEU, Art. 18 CFR).

There is something uniquely altruistic about this legal regime, as we promise a fundamental rights protection that, unlike the traditional guarantees of fundamental rights, is unavailable for ourselves.

A legal regime as ambitious as this one rests on all kinds of preconditions. And it cannot be ruled out that the assumptions of 1949/1950/1951 are no longer valid today, in various respects. However, a new agreement on the foundations, the justifications and the limits of these guarantees, which have been upheld and developed over many decades in national and international law, cannot be decreed unilaterally. Certainly not overnight, certainly not by the leader of the opposition in the Bundestag and certainly not even by a German federal government.

Open questions

Despite the announcement of additional border controls, the debate in Germany continues. There are still calls for the summary rejection of refugees at the border. Some insist that such actions are compatible with European law, and that, where compatibility is uncertain, German interests should prevail anyway. However, a clear strategic compass is lacking.

It is not new that all sorts of topics are being mixed up with the question of how we grant asylum to politically persecuted people, which is the core of the legal issue: suddenly, arguments on how to conceptualize German immigration law re-emerge, in particular whether it is about traditional police law or rather about managing migration. Other arguments in the mix concern free movement of Union citizens, Schengen, access to German nationality, multiple citizenship. The attack in Solingen has also triggered a parallel debate on the law of firearms and other arms (knives). It seems to me that perhaps the most important aspect for Solingen has been addressed the least, though: how state and society can be more successful in the combat against Islamist terror.

Instead, a technical discussion has developed about the status and condition of asylum law, which deals a lot with legal definitions and legal norms, and too little with implementation deficits and the real world-scenarios.

It is particularly astonishing how little the current debate on asylum law in Germany is based on empirical findings. To begin with, one would actually really like to have more of reliable data on refugee numbers in Germany (which went down) and refugee reception capacities in German municipalities (which seem to be increasingly exhausted). In any case, with almost 4,000 kilometers of Germany’s external borders, it is obvious that the rejections at border control points the opposition calls for are unlikely to change anything decisive in the real world – just consider the impossibility to seal of the green border. Instead, politicians, especially non-lawyers, morph into legal experts, typically with a degree from Internet Law School, and get bogged down in the nitty-gritty technical legal details of what actually constitutes asylum under European law.

The one-dimensionality of the arguments is stunning. European asylum law is extremely complex and enormously differentiated in its national, European and international legal components, and is even more complex in its interplay.

For example, it does matter whether an actual asylum application is being made at the German border and/or has been made elsewhere, whether it concerns minors or family members and much more. “Push-backs” at the German border under the so-called Dublin responsibility determination procedure is therefore only permissible under highly controversial narrow exceptions. In contrast, calling politically for a blanket and immediate rejection of anyone who shows up at the border is the intellectual and conceptual equivalent of instant noodle soup

The politicians’ argument for invoking a national emergency situation under Art. 72 TFEU is a prime example of the short circuits of the German debate. “Emergency situation” is a term borrowed from Art. 78 TFEU, to begin with, which concerns a Council procedure. Under Art. 72 TFEU, Member States may derogate from Union law in order to maintain public order and protect internal security, in particular by not applying it. However, the applicability of Art. 72 TFEU is subject to judicial review. The European Court of Justice made this clear in 2020 in infringement proceedings concerning Poland, Hungary and the Czech Republic: ultimately, these states could not invoke Art. 72 TFEU. EU Member States cannot deviate from EU law simply by shouting “Article 72 TFEU”. Strict conditions apply to Art. 72 TFEU; it is a provision for exceptional cases, which is also reflected in the fact that no Member State has ever been able to successfully invoke it. Reality check: It can hardly be argued that public order and the protection of internal security in Germany are currently collapsing. But even if the requirements of Art. 72 TFEU were met, its application would also have to be proportionate. In legal terms, this means inter alia that the non-application of EU law must be limited in time, so it would not be a permanent solution either way. Simply invoking the maintenance of public order and the protection of internal security as a reason for non-compliance with European law in the refugee context would foreseeably lead to infringement proceedings against Germany – as in the case of Poland, Hungary and the Czech Republic.

This may even be part of the political calculation for some, in terms of playing for time (‘Let’s just sit it out until we are sentenced’). The strict requirements of Art. 72 TFEU are well known at the working level in the ministerial bureaucracy, of course, and in the discussions of the specialized scientific community. This is not hidden secret knowledge. If, at the same time, politicians pretend that simple and lasting solutions are available, then this kind of tactical approach to the law will ultimately come at a high price and will also damage the ideals of Europe.

The absence of a European perspective

What is arguably the most striking aspect of the current political debate is the lack of European thinking.

In politics, simplification, polarization, and exaggeration may sometimes seem unavoidable. In the current debate, however, simplification often seems to lead to throwing the primacy of European law over board. The fact that former Federal Constitutional Court judges close to the conservatives are particularly visible in astonishingly apodictic interviews or named articles feeds the suspicion that this is not just a political backlash against 2015 and the refugee policy of the Merkel era, but also an attempt to roll back the discourse on European constitutional law. Just a reminder: The Federal Constitutional Court has recognized the primacy of EU law over national law and – in 2015, of all years – expressly extended this, in principle even to primacy over national constitutional law (BVerfG 2 BvR 2735/14 of 15 December 2015, paragraph 38). In the words of the court (official website translation):

“As a rule, the precedence of application of European Union Law also applies with regard to national constitutional law (…), and, in conflict, as a rule, it results in national law being inapplicable in the specific case (…).”

The remaining EU law primacy reservations of the Federal Constitutional Court concern the protection of national constitutional identity or ultra vires acts of the EU and do not add anything meaningful to the present debate.

In any case, blaming the EU or the ECHR for everything that is wrong about political asylum is too short-sighted. Just look at the USA, which is neither supranationally integrated nor subject to the regional human rights convention. And yet there are many comparable problems on both sides, ranging from the insight of limits to the concept of a physically insurmountable border despite all countermeasures (Trump’s wall construction) to the brutalization of political discourse, resulting in a threat to the substance of democracy, the rule of law and the most basic aspects of constitutionalism (Trump’s “remigration” fantasies which have an ugly sibling e.g. with the German far right).

The assertion that Germany lost control of its borders because of the EU is another serious and false simplification. Under EU law, measures to terminate residence are possible even against EU citizens and are regularly enforced. In this context, the entry ban to Germany for the Austrian right-wing extremist Sellner, which is currently pending in interim proceedings, will hopefully give the ECJ the opportunity to clarify the conditions under which political actors may pose a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (Art. 27 para. 1 and 2 of the EU Citizens Directive).

Back to the asylum debate. In Germany, depressingly narrow national views currently prevail not only in strictly legal matters. It is rightly lamented that the murderer from Solingen was not returned to Bulgaria in time. But would that actually have solved the problem? The consideration that the terrorist might otherwise have murdered Bulgarians at some public event in Bulgaria and that this proves the point that migration and asylum are a common European problem is not really present in the German debate. The possible repercussions on other Member States if refugees are turned back at the German border are also not openly discussed.

As far as the new additional German border controls are concerned, the initial reactions from Poland, Greece and Austria suggested that the German government had not even informed its European partners, let alone consulted them. This would have been in line with the pattern of the unilateral, uncoordinated opening of the German border in 2015.

One is tempted to think that for some, this is precisely about ultimately leaving aside all these annoying legal obligations. Or at least making the legal obligations subject to the perceived political mood in the country. However, this is highly hazardous for Germany because other Member States might copy that approach, and then in other thematic contexts than the refugee issue. There is a constitutional commitment to a united Europe in the preamble and in Art. 23 of the German constitution. This and the constitutional principle of European law-friendliness as emphasized by the Federal Constitutional Court should actually provide all political players in Germany with a clear and unmistakable compass.

It cannot be denied that the Dublin system has considerable implementation deficits and that a number of Member States have not been complying with the rules for some time, to put it mildly. Dublin transfers back to the country of first arrival are being delayed, perhaps even sabotaged. The European Commission, as guardian of the treaties, has not intervened.

Here, however, a national response taking into account European considerations is precisely not to ignore the law. In the European community of law, the Rechtsgemeinschaft, it is precisely the civilizational progress, that the conflicts of interest between nation states, which still exist and will exist, are channeled into legal proceedings instead of triggering reciprocal escalation and reaction cascades. Just to give a hint: Not only the Commission, but also Member States can initiate infringement proceedings against other Member States, as Austria did against Germany regarding the case of the car toll mentioned earlier. If Member States sabotage the Dublin system, this should be scrutinized by the ECJ, with a view to a violation of the principle of loyal cooperation (Art. 4 para. 3 TEU). And there are also possibilities for the opposition to avoid any suspicion of merely paying lip service to Europe, for example by coordinating and jointly presenting initiatives with partners in other Member States from their respective European political party family.

Instead, the additional German border controls, the comments from other EU countries on this and the entire current debate emphasize national antagonisms. A random sample of media reactions: A German panic reaction due to far-right electoral successes is being diagnosed, there is the observation that reliability and trust in German EU policy are increasingly missing. It speaks for itself when applause for the German government comes from Hungarian Prime Minister Orbán of all people, who does not even feign any interest in European solidarity when it comes to refugees.

Of course, all of this is also about the relationship between law and politics. A merely legal view therefore falls short. In German politics – as probably elsewhere –, despite all the juridification of the political process, the political calculation for one’s own political advantage typically takes precedence over legal concerns. And that is certainly also currently a driving motive for the opposition. But make no mistake: putting political calculation over legal concerns can be indisputably found in all political camps. Legal concerns are then primarily understood as legal risks and pure cost aspects, which are offset by a possible, sometimes only hypothetical and hoped-for political benefit.

However, in the present case, such a political cost-benefit analysis has either not been carried out at all or has failed completely. In any event, there has apparently not been a sober assessment of the consequences in terms of European law. The potentially serious fallout for German interests in the EU, the stability of the community of Law and the asylum policy options at the European level have not played a significant role in the German debate so far.

It is quite obvious that there can only be viable answers to these cross-border issues with a joint European effort. In one form or another, the European states are dependent on finding compromises on their conflicting interests and reaching agreements sooner or later. Constructive and differentiated solutions do exist. Nevertheless, they require a differentiated, sober and objective, fact-based analysis of the problem and time – there is no simple magic formula. The already agreed reform of the Common European Asylum System (CEAS) will not be the final word either.

Responsible communication instead of simplification

Anyone who instead promises simple and quick solutions, possibly even as a unilateral national measure, will not be able to fulfil such promises and will end up playing into the hands of the national populist simplifiers. Experience elsewhere, for example in France, shows that attempts to weaken extreme political forces by means of mimicking their populist and simple solutions often lead to the election of the “original”. The decline of the conservative party as a significant political force in France should be a warning to everyone.

In the asylum debate in particular, communicating and explaining the details of confused and complex legal and factual interrelationships in an understandable and comprehensible way is essential. And this without giving in to the temptation of populist oversimplification. A fine line. Politicians – in government and opposition – and the media have a duty to handle these findings responsibly.