- Specialists suggest that an emergency situation could lead to the enactment of border restrictions.
Following the disturbing incident in Solingen, politicians and specialists are engaged in deliberations regarding the potential strengthening of immigration regulations propounded by the Union faction leader Friedrich Merz. In conversation with Federal Chancellor Olaf Scholz (SPD), Merz, as chairperson of the CDU, recommended several measures, including the possibility of Germany declaring a national emergency to enforce border control, due to the incessant disregard for the Dublin Regulation. Legal experts and migration scholars do not dismiss the viability of this proposal.
CDU: Dublin Protocol "Collapsed and Failed"
According to the Dublin Regulation, asylum applications in Europe must be filed in the initial entry country. While theoretically, this implies that only a select few, such as airline passengers, could enter Germany, the system has reportedly crumbled and floundered, as per a CDU policy paper published on Tuesday.
At the press conference, Merz alluded to the Treaty on the Functioning of the EU. In cases where border repatriations cannot occur due to European legal constraints and resolutions are impossible at the European level, Germany may declare a national emergency. "Subsequently, the national law of the Federal Republic of Germany assumes precedence over European law, as stipulated by the EU Treaty," Merz stated.
Paul Kirchhof, a former judge at the Federal Constitutional Court and constitutional law expert, suggested that Merz might have referenced Article 78 of the EU Treaty. This clause discusses the possibility of "temporary measures" for member states experiencing a crisis as a result of a sudden influx of third-country nationals.
Germany Acting Alone?
"This signifies that Germany would cease to comply with current EU regulations, instead opting for autonomous action," explained constitutional law specialist Volker Boehme-Nessler. While this option may be drastic, it could serve as a sensible, albeit short-term, resolution. Germany could subsequently limit refugee numbers and exert greater pressure on the EU to establish an effective distribution system.
Daniel Thym, an EU law specialist at the University of Konstanz, acknowledges the existence of Article 72 of the EU Treaty, which grants EU member states authority "for the upkeep of public order and the defense of internal security." Departures from EU regulations are permissible, asserts Thym, but subject to the European Court of Justice.
Regrettably, previous attempts have been unsuccessful. The risk associated with this procedure is substantial.
CDU: EU Law Encourages Border Repatriations
In its paper, the CDU asserts that European law provides for border repatriations, a fact often disputed. To clarify this matter, the Christian Democrats have long advocated for modifications in European regulations. The present security scenario in Germany and Europe has deteriorated, according to the CDU, and the EU asylum regulations are contingent upon the preservation of public order and internal security.
Merz dismisses opposing views.
**Besides declaring a national emergency, the CDU also advocates for the expulsion of Syrian and Afghan refugees subject to expulsion, as well as a halt to asylum applications from Syria and Afghanistan. The party insists that this is not an attempt to modify the asylum laws in the Basic Law. "A consistent policy of denying entry at the border to individuals without valid entry permits would effectively halt asylum applications from Syria and Afghanistan," the party stated. During his press conference, Merz disregarded arguments that legal restrictions might prohibit the CDU's proposals: "What is not allowed, is no longer acceptable to the public."
Thym suspects that the CDU's strategy centers around the belief that closing Germany's borders could precipitate a chain reaction, potentially instilling a sense of isolation and inciting a temporary decline in irregular migration, even if the border cannot be completely sealed or courts exhibit resistance.
Ruud Koopmans, head of the Migration Department at the Wissenschaftszentrum Berlin, penned a statement on X: "No one who enters Germany irregularly requires protection. In multiple countries, they were already safeguarded. Concurrently, numerous individuals truly in need of protection will never reach us. This truth ought to constitute the foundation for a comprehensive asylum reform."
Declaring a national emergency regarding migration is deemed "a viable alternative," stated Koopmans, citing similar intentions in neighboring countries such as the Netherlands, where the newly appointed right-wing administration is developing a corresponding EU-level initiative, drawing upon housing scarcity as an argument.
The Commission should carefully consider Merz's proposal to declare a national emergency, as it could have significant implications for EU law and border control. In light of the CDU's assertions that European law allows for border repatriations and the current state of the Dublin Regulation, The Commission might need to reevaluate its stance on immigration regulations.
