How the EU Commission Backs up Pushbacks at the EU-Belarussian Border

In December 2024, the European Commission issued a communication to the European Parliament and the Council discussing the current situation of so-called ‘hybrid threats’ at the EU-Belarussian border. With the goal of stopping irregular arrivals of migrants and its facilitation by Belarus and Russia, the EU Commission outlines how EU primary law, namely Art. 72 TFEU, could be utilized by Member States to circumvent the Common European Asylum System (CEAS) and curtail the protection afforded by fundamental rights for migrants. By advising member states to make use of this legal pathway for the current situation at the EU-Belarussian border, the EU Commission indirectly justifies the current pushback practices from Poland, Lithuania and Latvia.

The EU Commission’s support for the border policies of these countries is not new. However, other instruments introduced by the EU Commission, such as the recently adopted Crisis Regulation, demanded adherence to EU fundamental rights. With the newest communication the EU Commission argues ‘to go further’ than what the current legal framework already provides and explicitly suggests that situations of ‘hybrid threats’ may justify national derogations from fundamental rights, such as the right to asylum in Art. 18 Charter of Fundamental Rights (CFR). However, it is questionable whether recourse to Art. 72 TFEU, as suggested by the EU Commission, is possible in these situations. Even more importantly, derogations do under no circumstances allow for pushbacks without any access to a procedure. In this regard, the communication marks a new step in the ‘crisification’ rhetoric at the EU’s borders and towards a further erosion of fundamental rights of migrants in the EU.

Context

In 2021, Belarus eased its visa procedures for people from the Middle East and African countries, thereby instigating irregular border crossings into the EU. In response, Poland, Latvia and Lithuania swiftly adopted national emergency measures which allowed for e.g. derogations from EU law on border procedures, limitations on the rights of communication and freedom of assembly, restricted access of NGOs and journalists to border areas and the intervention of military forces. Already in 2021, the EU Commission signalled its willingness to support Poland, Latvia and Lithuania and proposed provisional emergency measures for the benefit of those countries under Art. 78 (3) TFEU. This proposal emphasised that measures adopted by member states should be fully respectful of fundamental rights and suggested only limited amendments to registration procedures, material reception conditions and time limits of the asylum procedure. The proposal was never adopted.

Since 2021, various NGOs have reported numerous cases of human rights violations at the EU-Belarus border. Reports of Human Rights Watch document that 87 people died at the Polish-Belarussian border between October 2021 and October 2024. These reports also document that individuals have been forcibly transported back to Belarus after having been denied access to asylum procedures. These pushback practices have been condemned as violating EU and human rights law by numerous actors, such as national courts, the Polish Commissioner for Human Rights and legal scholars. In view of these findings, the explicit advice to derogate from fundamental rights in the newest communication seems like an attempt to legalize the already ongoing human rights violations at EU-Belarussian borders.

Crisis rhetoric sets the path for exceptions

Not for the first time, but in this case frequently, the EU Commission frames the tactic of Belarus to facilitate the migration of third countries through Belarus to the external borders of the EU as a ‘hybrid attack’ by Belarus and indirectly by Russia. The EU Commission further speaks of the ‘weaponisation of migrants’ and accuses Russia and Belarus of ‘tak[ing] advantage of human beings in an act of hostility, disregarding their vulnerability […] with the objective of destabilising our societies and undermining the unity of the European Union.’ This martial rhetoric serves two purposes. First, the clear designation of Russia and Belarus as the ‘enemy’ and the attribution of inhumane treatment of migrants to this enemy deflects from the human rights violations and the disrespect for the vulnerabilities of people on the move within their own territory. Second, the framing of the situation as warlike serves to justify a state of emergency, thereby allowing for exceptional measures. Violeta Moreno-Lax has analysed that this ‘crisification’ serves to normalise the dismantling of rights of unwanted migrants. In this way, the warlike rhetoric sets the path for the deterioration of migrants’ fundamental rights at the Belarussian border.

New step towards the erosion of EU fundamental rights

In the communication, the Commission states that “Member States may need to adopt measures that could entail serious interferences with fundamental rights”. The EU Commission then proposes Art. 72 TFEU to derogate from rights of the Charter of Fundamental Rights. The interpretation of Art. 72 TFEU is debated, especially in t’he context of border closures (see e.g. here, here). In the context of the current situation at the EU-Belarussian border, the requirements developed by the CJEU may give further guidance. According to the CJEU, national derogations must aim at safeguarding law and order and internal security, be necessary to address the threat and be proportionate. While the EU Commission formally recognises the requirements of Art. 72 TFEU, it fails to examine these requirements with more scrutiny.

Is a recourse to Art. 72 TFEU necessary?

In assessing the necessity of derogations, the CJEU does not only evaluate the situational circumstances but also analyses whether EU legislation provides for sufficiently effective mechanisms. In the context of border procedures, the CJEU has rejected recourse to Art. 72 TFEU several times (here, here, and here) by arguing that the legal framework which was applicable at the time was already providing for mechanisms which sufficiently safeguarded the internal security interests. When looking at EU secondary legislation, which may be applicable to the current situation at the EU-Belarussian Border, the newly introduced Crisis Regulation and the relating provisions in e.g. the revised Schengen Borders Code come to mind. At the time of the drafting process of the Crisis Regulation, the tensions at the EU Belarussian border already existed and the EU Commission’s revised Proposal for the Crisis Regulation explicitly refers to this situation. The Crisis Regulation allows, among other things, for extended time limits for the registration of application for international protection (Art. 10) and for an extension of the duration and ambit of the border procedure (Art.11). The only recently revised Schengen Borders Code allows for the temporary closure of specific border crossing points in so far as access to international protection procedures is guaranteed (Art. 5, Preamble paragraph 14). These ‘crisis’ mechanisms have themselves been criticised for their high probability of being used by member states as a legal basis for fundamental rights abuses (e.g. here and here). Given the fact that the only recently introduced legal mechanisms were designed with the situation at the EU Belarussian border already in mind and that the mechanisms provide for concrete derogations in situations of ‘instrumentalization of migrants’, it seems highly questionable that a national recourse to Art. 72 TFEU, which allows for undefined and more generalised derogations, would hold up with the necessity requirement.

Can fundamental rights be restricted under Art. 72 TFEU?

Even if recourse to Art. 72 TFEU is considered necessary, the proportionality assessment must be thorough if EU fundamental rights are at stake. Some argue that no derogations from the EU Charter of fundamental rights are permitted, since Art. 72 TFEU only allows for derogations from provisions falling under the ambit of Title V TFEU. Advocate General Nicholas Emiliou argues in his opinion in M.A. v. Lithuania that while some limitations to rights may be imposed, these limitations are themselves limited by human rights law. The EU Commission relies on Art. 52 (1) CFR in arguing that the exercise of e.g. the right to asylum can be limited. As rightly acknowledged by the EU Commission, these limitations must respect the essence of the right concerned. In this context, however, the EU Commission omits that access to the procedure of applying for international protection is considered the essence of the right to asylum.¹⁾ Pushbacks as described above are therefore not permissible. Additionally, the prohibition of refoulement under Art. 19 (2) CFR is closely connected to Art. 4 CFR and Art. 3 ECHR which is a non-derogable right. As Art. 52 (3) CFR ensures the consistency between the Charter and the ECHR, limitations to the rights of the Charter must comply with the derogation regime of the ECHR.²⁾ Therefore, any limitations of fundamental rights under primary EU law cannot amount to refoulement. In the above-mentioned opinion, Advocate General Emiliou emphasises that in situations where people are apprehended at the border, they must at least have access to a procedure for the determination of the risk of refoulement.

In sum, it is already highly questionable whether a national recourse to Art. 72 TFEU is permitted given that in EU secondary law, ‘crisis’ mechanisms already address situations such as the one at the Polish-Belarussian border. Furthermore, even if fundamental rights can be limited with recourse to Art. 72 TFEU, pushbacks at the border without any access to a procedure for an application for international protection and to a procedure determining the risk of refoulement cannot be justified under primary EU law. Suggesting that member states rely on Art. 72 TFEU as a legal basis for what is currently happening at the EU-Belarussian border erodes the material safeguards of migrants provided by EU and international human rights law.

Finally, the timing of the publication is striking. Several cases of alleged human rights violations at the EU-Belarussian border are currently pending before the European Court of Human Rights (ECtHR) and will be heard in February 2025. Since the ECtHR is known to take EU law into consideration, one might ask whether the EU Commission tried to anticipate the interpretation of the relevant legal provisions.

Disclosure: The author is part of a group of legal scholars who intervened as Third Party in the case of C.O.C.G v. Lithuania pending before the ECtHR. The arguments outlined here are partly a result of the group’s research conducted for the Third-Party Intervention.