Ab heute gibt es Kontrollen an allen deutschen Grenzen. Ein ehemals sehr proeuropäisches und großes Land wie Deutschland 🇩🇪 riskiert damit eine Kettenreaktion, die das Ende von #Schengen bedeuten kann und nationalistisches Denken in ganz Europa befördert. Wichtiger Artikel vom ...🇪🇺-Recht-Experten Prof. Franz C. Mayer!
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“16 September 2024
Flying Blind
Europe in the German Asylum Debate
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.”
…
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.”
👉https://verfassungsblog.de/europe-in-the-german-asylum-debate/
https://x.com/prof_mayer/status/1835639023429145029?s=46&t=o69FNmu72t3MXJa4fDubcQ