Border controls: emergency in asylum policy? The dispute over an EU clause

Is there a “national emergency” because of the influx of migrants – a kind of state of emergency that justifies rejections from asylum seekers to the German borders? The “world” reported that Chancellor Friedrich Merz had proclaimed such an emergency, in accordance with Article 72 of the Treaty on the working method of the European Union. But that was quickly denied. “Nobody in the federal government, nor I personally, did not have an emergency,” said Merz in Brussels.

What is it about? According to the EU provisions of the Dublin Ordinance, the federal police may not simply reject asylum seekers at the border. Rather, the German authorities have to start a complicated and often poorly functioning procedure in order to transfer them to the responsible EU state-that is, where they entered the EU.

Article 72 TFEU, however, contains a kind of emergency clause. According to this, rejections at the borders are permitted for the nation states if this is necessary for “maintaining public order and protecting internal security”. At the end of August, Merz himself referred to this provision and the opportunity to explain a “national emergency” in terms of migration.

Legal professor: “Needs sound like state collapse”

When the clause takes effect is not clearly defined. The Constance legal professor and migration expert Daniel Thym finds the debate “exciting” and recommends not to speak of “emergency”, but of an “exception”. He writes on X: “Nice sounds like state collapse and police on the streets. This does not require Art. 72 TFEU at all. Requirements are lower!”

And Thym emphasizes in the “Ronzheimer” podcast that it is not legally necessary that the Federal Chancellor submits an official statement or calling on anything. Regarding the rejections of asylum seekers, which Interior Minister Alexander Dobrindt (CSU) now enables, he says: “You just do that. And when someone complains about it, then you have to go to court.” There the legal justification will be put to the test.

According to Thym, it is open whether the courts of future lawsuits reject rejected migrants. It is “very good” that “vulnerable groups” such as pregnant women, children and the sick should be excluded. The lesser the process risk that the dishes immediately said no.

The former president of the Federal Constitutional Court, Hans-Jürgen Papier, also considers rejections from asylum seekers to be legal, as he told the “Neue Osnabrücker Zeitung”. “In my view, it is part of the indispensable sovereign right of a state not to have every person entering the word” asylum “.” EU contract law also takes into account this. “I have been asking for the rejections myself. It is possible and correct according to German law – as well as under European law.”

Ambassadors were put in the picture in advance

The “Welt” had reported that the Federal Ministry of the Interior also taught the ambassadors of the neighboring German states about the activation of the exceptional clause. The ministry confirmed on X that the ambassadors were invited. However, this has happened to inform them about the intensification of the existing internal border controls.

According to DPA information, there are indications that Dobrindt’s deciding on the limits of Article 72 played a role. According to this, an inner state secretary is said to have informed representatives of the neighboring countries and the EU about the new situation and also referred to the article in EU law.

According to experts, the rejections and the increased controls are also about sending signals: migrants should know that they may be rejected. And the EU neighbor should be motivated to stop their passage towards Germany. Dobrindt said to his goals in the evening at “Maybrit Illner” on ZDF that he does not say that with this measure in the Hau-Ruck process, everything will change. “No, it won’t. It is an element to push illegal migration back.”