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By Daniel Thym, Universität Konstanz  RTEmagicC_FZAA-Text-farbig_DE_02.jpg

Borders are a place of great symbolic importance and are deeply enshrined in our cultural memory. Most of us first encountered them in school where we got to know borders as fine black lines on maps separating countries. They appeared, thus, as a quasi-natural basic structure giving us orientation. It does not come as a surprise, therefore, that political debates often invoke national borders as a place where a solution to the ongoing refugee crisis could be found. Sweden recently stepped up controls through reinforced carrier sanctions. Last week, Austria introduced an upper limit on the number of refugees, while support for a potential Plan B gathered momentum in Germany.

To be sure, nothing has been decided yet. Even the numerical upper limit imposed by Austria remains a political guideline (Richtschnur) whose method of implementation remains to be determined. German politicians still hope for a pan-European solution with intergovernmental consultations between Turkey and Germany signalling that the government remains confident that international cooperation may yield results. This is Merkel’s Plan A which I described in a post three months ago: effective migration management at European level is the favoured solution.

Yet, the chancellor keeps emphasising that the number of refugees must be reduced noticeably (spürbar zu verringern). If that fails, the political pressure to move towards a national solution may prove irresistible. Political observers identify late spring as a potential turning point. In late spring, the number of sea arrivals is expected to increase again due to weather conditions, regional elections in Baden-Württemberg and Rhineland-Palatinate with a combined population of 15 million people may have signalled widespread popular unease and the Austrian upper limit for this year will be reached around the same time. The most symbolic expression of a Plan B would be the rejection of asylum seekers at the border, the legal implications of which will be discussed below.

Plan B: Loss of Trust in a European Solution

The activation of a Plan B presupposes the failure of a Plan A. That is why the renewed emphasis on national solutions should start alarm bells ringing in Brussels and across Europe. As described earlier on this blog, the Plan A focuses on a pan-European solution through hotspots, relocation, enhanced external border controls and cooperation with Turkey – and the EU institutions have done their best to move in this direction. New policies have been set up, often within weeks. But what worked well on paper all but flopped in practice. Representatives of local municipalities across Sweden, Germany and Austria that often had to set up accommodation centres for hundreds of people within days will feel mocked when reading the latest state of play about relocation or hotspots. They do not work despite massive financial and administrative support.

Of course, the EU institutions cannot be expected to single-handedly follow the desire of countries such as Germany, Austria, Sweden, Denmark, the Netherlands or Slovenia who jointly represent not even 30 % of the EU’s citizenry. Yet, they cannot ignore their political opposition either, not least since these countries welcome and accommodate the overwhelming majority of refugees. Without their support, the Common European Asylum System would collapse. Indeed, politicians have recently increased the pressure. Dutch Prime Minister Mark Rutte told the European Parliament last week: ‘We’re running out of time. We need a sharp reduction in six to eight weeks.’

Against this background, the Austrian decision to designate an official upper limit, whose implementation has been postponed for the moment, can be perceived as a warning shot. In an interview with the Frankfurter Allgemeine Zeitung, the Austrian Foreign Minister Sebastian Kurz made clear that other countries should be aware of what is at stake: ‘The problem in recent months has been that the situation was fairly comfortable for many countries… We should not be surprised that Greece does little to protect the external borders for as long as refugees are transported, often with active EU support, to the Macedonian border within hours.’ That is certainly an exaggeration, but it signals that participants are getting nervous and that much is at stake

The Symbolic Climax: Closure of National Borders

What would a ‘Plan B’ look like? Closer inspection of the Austrian policy document agreed upon last week and related policy debates in Germany show that it would almost certainly consist of a mix of diverse measures. The most drastic and symbolic step would be to reject asylum seekers at the border. This may happen unilaterally at the German-Austrian or the Austrian-Slovenian border, but it could also be organised plurilaterally in a sort of de facto ‘Mini-Schengen’, as reported by Der Spiegel, on the basis of joint German-Austria-Slovenian border control operations, possibly together with Croatia.

The immediate impact of such a step, the legal implications of which will be discussed below, would be a ‘domino effect’ with more and more states closing their borders along the Balkan route, thereby creating a backlog of refugees. Macedonia, in particular, prepares for closing its border with Greece, thereby effectively cutting Greece out of the Schengen zone – a step the Austrian Interior Minister threatened officially. Noticeably, the Austrian policy plan  instructs contingency planning for movements relocating westwards towards Italy and the alpine internal Schengen border on the Brenner pass. Let me be clear: I am not supporting a border closure, but rather attempting to give international readers an impression of what more and more people in central Europe are calling for.

An official border closure would move a decisive step beyond temporary border controls which had been reintroduced temporarily by both Austria and Germany last autumn. At present, controls function primarily as an ordering mechanism to manage asylum applications and to relocate refugees among municipalities. To this date, Germany does not reject anyone applying for asylum (although it started sending back those who do not wish to do so in Germany), while most other countries along the Balkan route continue the policy of ‘waving through’ criticised by heads of state last autumn.

Within Germany, the current practice of allowing asylum applications at the border is often castigated for being illegal, including by the former president of the constitutional court Hans-Jürgen Papier and by a legal expert opinion commissioned by the state of Bavaria. Although this position does not withstand legal scrutiny, it has a tangible effect on domestic debates. This is a dangerous development, since it undermines normative power of supranational law in domestic debates. It also ignores legal arguments, grounded in EU law, which could possibly be used to justify the rejection of asylum seekers at the border. Their interpretation may soon present the doctrinal mirror image of political debates about how to respond to a de facto collapse of the Schengen area.

The Legal Picture: (De-)constructive Ambiguity

A crucial difference between a purely national safe third country-rule and the pan-European Dublin system concerns rejection at the border. In a purely national system, Germany could refuse entry to anyone coming from a safe state (such as Austria) in line with Article 16a(2) of the German Constitution, while the Dublin III Regulation rejects unilateral negative decisions. The recitals of the original Dublin Convention highlighted the objective to prevent applicants from being ‘referred successively from one Member State to another without any of these States acknowledging itself to be competent.’

Instead of unilateral rejections, states are expected to coordinate their behaviour. Most readers will know that Germany and Austria will not usually have jurisdiction under the Dublin rules. Instead, they may return asylum seekers to the state of first entry, namely Greece, Croatia or Hungary – although cooperation does not function at the moment. This entails that Germany and Austria must step in on behalf of others. That may partly be the outcome of the ‘welcome culture’ promoted by Germany and Austria last autumn, but this does not unmake the frustration prevailing among politicians and citizens: domestic policy options are legally curtailed by a system that does not work.

Does that mean that Germany and Austria have no option but to stick to the status quo? Closer inspection of the broader legal context of EU law shows that one could possibly justify a rejection at the border, at least temporarily. Firstly, states can reject those who do not want to claim asylum in the state they are trying to enter. In the absence of an asylum application, the Dublin III Regulation does not apply and border guards can refuse entry in line with Article 13 Schengen Borders Code – a practice the German border police has stepped up in recent weeks with more than 2000 rejections this year.

Secondly, one could argue that the term ‘border’ in Article 3 of the Asylum Procedure Directive designates external Schengen borders only, since the legislature had in mind the regular functioning of the Schengen and Dublin systems (along similar lines, the Commission argued at some point that border procedures under Article 43 of the same Directive only concern external borders). Without an option to apply for asylum at the border, states could legally reject entry to potential refugees. Their rights would not be diminished, since asylum applications can be made in the neighbouring state. A similar outcome could be justified under recourse to Article 20(4) Dublin III Regulation.

Thirdly, the Austrian government often highlights Article 72 TFEU on the maintenance of law and order (French: ordre public) and the safeguarding of internal security to justify at least a temporary suspension of the Dublin regime mirroring CJEUcase law on similar internal market rules. There are important counterarguments, including more specific public policy rules in secondary legislation, which may have to be interpreted generously in order to comply with the prescription of Article 72 TFEU in primary law. In the absence of case law, it is difficult to predict the outcome of corresponding disputes. The provision, therefore, lends the Austrian position some legal authority.

Fourthly, the German government promotes Article 3(3) of the Dublin III Regulation according to which states ‘shall retain the right to send an applicant to a safe third country’, although this shall occur ‘subject to the rules and safeguards laid down in Directive 2013/32/EU.’ The provision is undoubtedly meant to apply primarily vis-à-vis third countries, such as Serbia, and it also stipulates that procedural safeguards under the said Directive must be complied with. But it could be argued that the reintroduction of border controls together with the systemic collapse of the Dublin system along the Balkan route leaves Germany in a de facto external borders scenario vindicating the reactivation of the domestic safe third country-rule towards Austria, also taking into account Article 72 TFEU.

Finally, one could try to justify the same outcome beyond the confines of the supranational legal order by arguing, together with Kay Hailbronner, that international law-style reciprocity applies within the EU legal order, at least in situations of systemic collapse – a position the CJEU rejected on an earlier occasion, although it is legally cogent from the perspective of public international law. The same can be argued on the basis of domestic constitutional law by activating the constitutional caveats established by the German Constitutional Court in the infamous Lisbon judgment, which the expert opinion for the Bavarian state governments mentions as a potential justification.

Asylum Policy and Legal Arguments

It is evident that none of the legal arguments presented above is beyond doubt. To the contrary, they remain doctrinally unstable and can be contested on various grounds. It may be precisely this ambiguity, however, that may prove constructive in the current scenario, since it gives governments in central Europe some options to respond to the unfortunate situation within the confines of the supranational legal order. This may prevent an outright rejection of compliance with Union law in central Europe, although some of my colleagues are promoting such openly anti-European behaviour.

One should also bear in mind that legal arguments are difficult to defend at this juncture for the simple reason that we are confronted with a systemic disrespect for the EU asylum acquis in many Member States. The most evident case is, of course, the Dublin system. NGOs will find it hard to pushthe Austrian and the German governments to comply with a regulation they have fought against for years. If we want our governments to comply with supranational rules, we have to ensure that transnational cooperation works again. The EU acquis must be applied in all Member States.

In order to avoid misunderstandings, I should underline that none of the above is meant to abrogate from the obligations of states under the Geneva Convention or the ECHR. We should be careful, however, not to misrepresent their meaning, since the Geneva Convention, in particular, is in essence about the prohibition of refoulement – not about the free choice of the country in which to apply for asylum. Recital 4 rightly reminds states that a ‘satisfactory solution cannot be achieved without international cooperation.’ It is this cooperation that is not working in Europe.

It may be good news, therefore, that the Commission may soon propose a fundamental recast of the Dublin rules which may embrace the proactive designation of the Member State responsible after first entry. If that initiative fails, the CEAS could fall apart sooner rather than later. In the meantime, it may prove beneficial that the provisions discussed above could grant the governments of central Europe some leeway for national responses which could build a bridge until the successor to Dublin is functioning. Otherwise, inter-state borders in Europe will again be much more than fine black lines on maps. The picture post-Dublin would be a return to a world pre-Schengen.