The debate was heated by a lethal attack of a cutter on a group of children in Aschaffenburg, as a result of which two people were killed. The suspect is an Afghan who had an order to leave Germany. On Wednesday, the Bundestag supported the five -point plan of the leader of the CDU and candidate for chancellor Friedrich Merz, who is supposed to limit the possibility of illegal entry to Germany.
The discussion is further exacerbated by the support of Merz's plan through the far -right AfD. It enabled (together with the votes of CDU/CSU and FDP) the adoption of a resolution, but in German public opinion concerns about the possibility of cooperation between the extreme right with the Christian Christian Democrats and the overthrow of the firewall around the AFD. The resolution is an announcement of a change in law, which will take place on Friday, January 31. In the event of a victory in early elections, February 23 wants to implement this plan as soon as possible. However, there are legal obstacles: asylum and migration law is regulated not only at national but also EU level. Here are three possible disputes.
1. Standing control of borders
CDU and CSU postulate constant control of all German state borders to limit illegal migration. Is it possible in the light of EU law? Border controls are not usually planned in the Schengen zone, to which Germany belongs. The Schengen Border Code only allows temporary exceptions “in the event of a serious threat to public order or internal security.” On this basis, border controls are already taking place, which was ordered by the interior minister Nancy Faeser (from the Social Democratic SPD) after the August attack in Solingen. The suspect is a refugee from Syria, who was to be deported to Bulgaria a long time ago.
The inspections began on September 16, 2024 at Germany with France, Luxembourg, the Netherlands, Belgium and Denmark. They are currently limited to six months. Minister Faeser has already introduced controls on the borders with Austria, Poland, the Czech Republic and Switzerland to limit illegal migration after the growth of migrants to Germany. All Germany's borders have been controlled since last fall.
According to EU law, border controls that should be reported to the European Commission and neighboring countries are a “last resort” and are possible only for a limited time. Constant border controls on all German borders, which cover over 3,800 km, are not allowed because the open internal borders are a high priority in EU law.
2. Prohibition of asylum seeers
CDU and CSU call for “actual ban on entry for all people who do not have valid entry documents.” This also applies to those who “express a request for protection”, i.e. they want to apply for asylum in Germany. Is this legally acceptable? Pursuant to EU law, a member state is responsible for the asylum procedure, in which the person applying for protection was for the first time. Everyone who arrives in Germany by land has already entered another EU country and would actually have to go there asylum. This is regulated by the so -called Dublin III regulation.
But it also defines the procedure. Therefore, Germany cannot simply turn back all people applying for asylum on the border. – European law provides that people can first enter – said Migration Lawyer Daniel Thy from the University of Konstancja in the Tagesschau information program. – Then they undergo the procedure and then you can try to send people to the relevant countries. The central element of this procedure is a personal conversation during which it is checked which country is responsible for the asylum procedure. Even if the asylum seeker has been in another EU country earlier, in some cases Germany may bear responsibility, e.g. if another member of her close family is already undergoing a asylum procedure in Germany.
If all applicants for asylum were on the border without exception, it would have influenced further conflicts with the countries neighboring Germany. According to Dublin regulations, they should not usually be responsible for the asylum procedure, but countries such as Poland, Bulgaria, Greece and Spain. Austria has already announced that it would “not take back” any migrants rejected by Germany.
3. Extraordinary state
Could Germany announce an extraordinary state to be able to withdraw from European asylum law? The basis for such arguments is art. 72 of the Treaty on the functioning of the European Union. He gives Germany the right to announce an extraordinary state in connection with migration and thus withdrawing from EU asylum regulations – declared the leader of CDU Friedrich Merz just after the attack in Solingen at the end of August 2024. In their five -point plan, CDU and CSU emphasize that it is the duty of Germany to “apply national law in the first place if European regulations do not work.”
But it is not so easy to implement. To do this, the German government would have to prove that Germany is actually in an extraordinary situation, i.e. there is a serious threat to public order or security. It can be difficult because broadly extensive border controls have already significantly reduced illegal migration. “A large part of the illegal entrances could be stopped by turning back,” says the SPD and Green government, which rejected Merz's plan.
If Merz himself became a chancellor, his government would have to find good arguments to prove the extraordinary state, e.g. based on the overload of the asylum system or attacks or crimes. However, the obstacles are large: the use of this exception is controlled by the Court of Justice of the EU, which is restrictively controlled by its use. So far, all attempts of the Member States were established in front of the Tribunal to an extraordinary situation have failed.
However, Germany's independent actions in the area of migration policy could have a different effect: they could accelerate the reform of the EU asylum system, which many Member States criticize as ineffective. At the time when Germany closes their boundaries to asylum applicants, “other European countries will of course do the same” – predicts a lawyer and migration expert Daniel Thym. – And then you have to gather very quickly in Brussels and ask yourself how you can fundamentally change European asylum law.
The article comes from the website Deutsche Welle.