“Not only legally dubious but also ineffective”

Germany is once again controlling all of its national borders, triggering fears that this could put the European project at risk. In Germany, the measures are being discussed as a necessary response to the knife attack in Solingen, where three people were killed by an asylum seeker. At the same time, the legislative activism of recent weeks has been criticized as legally dubious and hasty (and not incidental to three key state elections in September). But how do Germany’s neighbours view its new restrictive stance towards Schengen and migration? We spoke to Lilian Tsourdi, a leading authority in the field. Lilian is Associate Professor and Jean Monnet Chair in EU Migration Law and Governance at the Law Faculty of Maastricht University and the Maastricht Centre for European Law.

1. What were your initial thoughts when you heard about Germany’s new regulations?

It brought to my mind the domino effect of reintroduction of border controls at internal borders during the period 2015-2016. Also back then, national governments presented these unilateral strategies as an effective response to challenges linked with migration. Reintroduction of border controls was not an effective response then, and it remains an ineffective response today.

2. What are the main concerns surrounding them?

Germany framed these measures as permissible exceptions under the Schengen Borders Code. In the press release announcing the reasons behind the measures however, it was apparent that in essence they are meant as a blanket migration management technique. This is not envisaged under EU law which foresees the temporary reintroduction of internal border controls in the event of a serious threat to public policy or internal security, and that as a last resort measure, in exceptional situations, and in respect of the principle of proportionality.  The unilateral reintroductions of border controls are not only legally dubious but also ineffective. They aim to ‘displace pressures’ within the EU. But instead, they erode mutual trust, initiating a potential domino effect of further reintroductions of internal border controls, and more broadly generating unwillingness to cooperate and to implement EU asylum and migration law. They magnify the same challenges they are supposedly meant to address.

3. What role does the European Union’s Dublin Regulation play in Germany’s new regulations?

In practice, the so-called Dublin Regulation allocates responsibility among EU countries for examining asylum applications to the State that is considered ‘responsible’ for the entry of the asylum seeker into the EU territory, including the state of first irregular entry. Therefore, think of Member States at the EU’s external borders such as Italy, or Greece. Where asylum seekers are not present in the territory of the ‘responsible’ Member State (say Italy), Dublin envisages that the State where the asylum seeker is present (say Germany) may seek to transfer her back to the ‘responsible’ state. However, as a matter of human rights and EU law, Member States must abstain from such a transfer, at least when there is a real risk of a breach of the prohibition of inhuman or degrading treatment.

Dublin as designed undermines fair sharing of responsibility between the Member States, in allocating most responsibility to states at the EU’s external (maritime) borders in practice. Further instruments under EU asylum and migration law leave the ‘responsible’ State solely responsible for providing for the refugee, without free movement rights for recognised refugees and subsidiary protection beneficiaries. This refugee immobility hinders further redistributive effects. All this in turn has encouraged Member States at the borders to evade their Dublin responsibility (by not fingerprinting asylum seekers for example), and asylum seekers to move clandestinely through the EU and evade Dublin procedures.

It is dysfunctions within the Dublin system that prompted Germany to reintroduce border controls at its internal borders. Initially politicians after the events in Solingen even debated non-implementation of EU law obligations and complete by-passing of Dublin. In the end, a political choice was made for the reintroduction of internal border controls instead, and Germany continues to apply EU asylum law and Dublin.

4. And what role does Germany play for EU migration policies?

Germany is an influential actor in migration. It has a refined asylum system and has effectively provided international protection in recent displacement crises, for example to forcibly displaced populations from Syria and Ukraine. It is also developing as a global migration hub, with its economy greatly benefiting from migration. Objectively, different segments of Germany’s labour market have great workforce needs. These needs are not being met exclusively through the national workforce, and are expected to intensify.

5. Since you work at a Dutch university: the Netherlands has just called for an opt-out from EU asylum rules. How realistic do you deem the feared domino effect, and what could be done to stop the dominoes from toppling?

The new Dutch coalition government notified the Commission of its intention to seek to acquire an opt out, like that currently held by Ireland, from future EU asylum rules, in the event of amendment of the EU treaties. This is symbolic politics and has limited practical effect. More to the point though, the Dutch government seeks to mobilise emergency clauses at national level, allowing it to bypass the national parliament, with the aim of derogating from asylum rules. It also announced its intention not to contribute with intra-EU relocation of asylum seekers in the future. This discourse points to further erosion of the commitment to a right to asylum and to inter-state collaboration in asylum matters, as well as to rule of law erosion. This echoes broader trends with Hungary having structurally relied on emergency legislation to significantly curtail the right to asylum, and Finland recently adopting a controversial law to allow for widespread derogations in cases of migrant ‘instrumentalization’.

Against this backdrop, the EU adopted a set of measures, the New Pact on Migration and Asylum, set to apply as of 2026. The Pact also reforms Dublin, seeking to balance responsibility with solidarity among Member States. These measures are far from perfect, for example carrying the potential to lower procedural guarantees in the framework of asylum processing at the borders. However, they at least constitute an effort to collectively address asylum provision and responsibility sharing. They start from the basic premises of recognition of the right to asylum and of access to an asylum procedure. Unilateral actions such as internal border control reintroductions, and emergency derogations under national law, risk undermining these very basic premises. Challenges linked with migration can only be effectively addressed collectively.

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Editor’s Pick

by MAXIMLIAN STEINBEIS

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The Week on Verfassungsblog

… summarised by EVA MARIA BREDLER

It has been quite an eventful week for the European Union. The new von der Leyen Commission seems to be a classic example of “divide and conquer”: by assigning unclear and overlapping responsibilities to many commissioners, more power is concentrated in the hands of President Ursula von der Leyen. Could this power imbalance hinder effective governance? JOHN COTTER (EN) considers this fear unfounded – contrary to popular belief, the treaties actually foresee a more presidential role for the Commission President.

Meanwhile, former ECB President Mario Draghi has presented a groundbreaking report which aims to strengthen the EU with massive investment – an annual budget of €800 billion would no less than quadruple the EU budget. Draghi’s proposal aligns with what seems to be the new style of EU policy which has focused on flexible ad-hoc measures since COVID, as ELENA KEMPF and KATERINA LINOS (EN) observe. They celebrate the boldness of this move but point out that legal creativity might be needed to carry it out.

The European Court of Justice also demonstrated some legal creativity (or rather a lack thereof?): On 10 September, it delineated its jurisdiction within the framework of the Common Foreign and Security Policy in the joined cases KS and KD. It deemed itself competent as long as the harmful behaviour was not related to “political or strategic” decisions concerning the CFSP. For THOMAS VERELLEN (EN), such an indefinite term is not suitable to delineate jurisdiction.

Amid the war between Israel and Gaza, the 25th Knesset entered the longest recess in its history on 28 July 2024. This is noteworthy and raises the question of whether opposition factions could dissolve the Knesset, overthrow the government, and return the mandate to the people. GONEN ILAN (EN) outlines the legal framework and proposes an alternative legal interpretation that would allow the opposition such interventions.

Barely had the pagers and walkie-talkies of Hezbollah in Lebanon exploded, when everyone casted hopeful looks at international law. The public, and especially the media, expect clear answers, preferably just hours after such an event. STEFAN TALMON (DE) manages these expectations: Neither international law nor international lawyers can provide such answers since not all relevant facts are known.

During the Gaza war, the German government also at times appears to lack direction in terms of international law, which has led it in front of a court multiple times. As the second-largest arms supplier, the Federal Republic had to justify its support for Israel both before the International Court of Justice and German courts. Now, the Frankfurt Administrative Court has ruled that Germany may continue to use existing permits for German arms exports to Israel. For GABRIEL NOLL (DE), the decision leaves many substantive questions unanswered and raises several methodological ones.

In Iraq, a controversial draft law would mandate that Iraqis, upon marriage, choose either Shia or Sunni jurisprudence to govern all personal status-related matters within their marriage. This change creates legal uncertainty by replacing predictable, codified law with premodern, uncodified Islamic jurisprudence. Moreover, it disproportionately affects women, especially by facilitating early marriages, as FARAZ FIROZUI MANDOMI, DHAHIR MAJEED QADER, and AYAD YASIN HUSEIN KOKHA (EN) warn.

The legal developments in Mexico also remain contentious. On 11 September 2024, the Senate passed a controversial judicial reform that threatens Mexican democracy and its independent judiciary. Not only the reform itself but also the manner in which it was passed in the Senate is highly problematic, as CARLOS ALBERTO VILLAR PARRA and RODRIGO HECKEL (EN) describe.

Mongolia welcomed the current Russian President Vladimir Putin on September 3, 2024. However, as some may recall, there has been an ICC arrest warrant against Vladimir Putin since March 17, 2023, obliging all contracting states to arrest him upon entering their territory and transfer him to the ICC. TJORBEN STUDT (DE) concludes that Mongolia violated its cooperation obligation under the ICC Statute by rolling out the red carpet for Putin instead of putting handcuffs on him.

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In the meantime, Germany has to deal with quite a lot of democratic discomfort. On Thursday, the state parliament in Thuringia held its constitutive session – but instead, it was rather deconstructed. The AfD, led by its elder president Jürgen Treutler, staged an anti-democratic performance that, although long anticipated, shocked many democrats. JANNIK JASCHINSKI, FRIEDRICH ZILLESSEN, JULIANA TALG, and ANNA-MIRA BRANDAU (DE) from the Thuringia Project reconstructed the constitutive session in six acts. The performance continues on Saturday morning at 9:30 AM.

Speaking of performance: Max Steinbeis’ new play Ein Volksbürger premiered on Friday, and is available on ARTE from 2 October

At its core, it revolves around the question of whether an interpretational uncertainty in the rules of procedure of the Thuringian state parliament could help the AfD gain the parliamentary presidency, and when exactly a vote could be held on an amendment to the rules of procedure that would clarify said interpretational uncertainty. FABIAN MICHL (DE) argues that the dispute is based on a false premise: due to the principle of discontinuity, the old rules of procedure are no longer valid, and the parliament must (at least implicitly) adopt a new one.

In this context, the ruling of the Federal Constitutional Court regarding an AfD committee chair proves helpful. The court clarified that parties have no claim to specific positions, only to certain democratic procedures. BENEDICT ERTELT and LORENZ MÜLLER (DE) analyze whether and to what extent this is a long-awaited fundamental decision.

In Thuringia, not only democratic procedures are at risk: anti-democrats could use their powers in public authorities for unlawful purposes. Anyone confronted with illegal behaviour or orders in an authority should be able to report it without fear. However, as FRANZISKA GÖRLITZ (DE) shows, the whistleblower protection law currently does not do its name justice.

On Monday, there was a hearing in the Bundestag on the CDU/CSU faction’s proposal to introduce a general criminal liability for clients of sex workers. While the proposal seems understandable from the point of view of preventing human trafficking and forced prostitution, its legal implementation would also impose a significant additional burden on the judiciary – and not necessarily improve the conditions for those working in prostitution, argues OLE LUEG (DE).

According to investigations of the German public broadcaster NDR, there are indications that cluster munitions could be supplied to Ukraine from a US base in Germany. ROMY KLIMKE (DE) examines whether such a delivery of cluster munitions from Germany to Ukraine would be compatible with the Basic Law and the War Weapons Control Act.

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That’s all for this week!

Take care and all the best,

the Verfassungsblog Team

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