Can Germany declare a “state of emergency” to potentially override EU law and turn back people at its borders, as suggested by CDU leader Merz? Experts do not rule out the possibility.
Following the Solingen terrorist attack, politicians and experts are debating the legal feasibility of the migration policy tightening proposed by Friedrich Merz, the leader of the CDU/CSU parliamentary group. After his meeting with Chancellor Olaf Scholz (SPD), the CDU chairman suggested that Germany could declare a national emergency to turn people away at its borders, as the so-called Dublin Regulation is no longer being adhered to. Legal experts and migration researchers do not dismiss the possibility that this could be done.
CDU: Dublin system “has collapsed and failed”
The Dublin Regulation stipulates that an asylum application in Europe must be submitted in the country first entered. Strict interpretation would mean that only a few people, such as those arriving by plane, would come to Germany. However, the system has “collapsed and effectively failed,” according to a paper released by the CDU on Tuesday outlining its migration policy demands.
In his press conference, Merz referred to the Treaty on the Functioning of the European Union. Should returns at the German border not be possible for reasons of European law, and this issue not be resolved at the European level, Germany has the right to declare a national emergency. “In that case, national law of the Federal Republic of Germany is more important than European law. This is possible under the EU treaty and must be utilized,” he said.
Former Federal Constitutional Court judge and constitutional lawyer Paul Kirchhof told “Bild” that Merz was likely referring to Article 78 of the EU treaty. This article describes the possibility of “provisional measures” for member states that are in a state of emergency due to a sudden influx of third-country nationals.
Germany going its own way?
“This would mean that Germany would no longer adhere to existing EU law but would do its own thing,” said Volker Boehme-Neßler, a constitutional law expert from Oldenburg, in an interview with the newspaper, calling it a drastic but at least temporarily sensible measure. Germany could thus limit the number of refugees and simultaneously exert pressure within the EU to create a functioning distribution system.
European law expert Daniel Thym from the University of Konstanz also pointed to Article 72 of the EU treaty in a post on X. This article guarantees EU member states the authority “for the maintenance of public order and the protection of internal security.” A deviation from EU rules is permitted, Thym wrote, but he also referred to the European Court of Justice. The catch, he noted, is that all previous attempts have failed. The legal risk is high.
CDU: EU law is subject to the protection of internal security
The CDU paper states that European law provides for the possibility of returns at borders. Since this has been questioned, the party has long called for clarification in European law. The Christian Democrats also argue that the security situation in Germany and Europe has worsened: “And EU asylum law is explicitly subject to the maintenance of public order and the protection of internal security.”
Merz dismisses counterarguments
In addition to declaring an emergency, the CDU is also calling for the deportation of Syrians and Afghans who are obligated to leave and for a halt to the acceptance of asylum seekers from Syria and Afghanistan. According to the party, this is not about changing the asylum law in the Basic Law. “With a policy of consistent refusal at the border of persons without entry permits, there would be a de facto halt to the acceptance of asylum seekers from Syria and Afghanistan,” the paper states. Merz brushed aside arguments that legal provisions might stand in the way of the CDU’s proposals, saying in his press conference that the public no longer wants to hear what cannot be done.
Expert: “No one who comes to Germany irregularly is in need of protection”
Thym speculates that the CDU strategy is driven by the calculation that a German border closure could trigger a chain reaction, sending a signal of isolation and leading to a short-term reduction in irregular migration, even if the green border could not be made “hermetically sealed” or if courts did not cooperate.
Ruud Koopmans, head of the Migration Department at the Berlin Social Science Center, wrote on X: “No one who comes to Germany irregularly is in need of protection. All have passed through several countries where they were already safe. At the same time, there are many genuinely vulnerable people who never make it here. This truth should be the basis for a fundamental asylum reform.”
Declaring a national emergency in the context of migration is a “possible path,” Koopmans told the dpa, pointing to similar plans in the neighboring Netherlands, where the new right-wing government is working on a corresponding initiative at the EU level, citing the housing market shortage as an argument.
