The Closing Costs of Merkel’s Regime

This summer marks not only Germany’s worst ever performance in the World Cup, but also a crucial stage in the unfolding end of Angela Merkel’s reign as the Mistress of Europe and the moral champion of the world. The reasons are similar: complacency bordering on hubris. In 2015 Mrs Merkel invited around 1m (mainly economic) migrants to Germany. Since 2014 around 2m migrants have entered Germany, possibly more.  Of those few have the right to stay – either they are not refugees or under the EU’s Dublin asylum rules another EU country is responsible – yet only a tiny number will ever be repatriated because of practical or political obstacles.  The economist Professor Bernd Raffelhüschen has estimated that due to their low skills levels – 59% have no qualifications, many are illiterate – the average migrant will cost Germany  €450,000 over his lifetime, i.e. €900bn in total. Merkel’s coalition has agreed to accommodate a further 200,000 migrants a year in addition to family members and possibly more.

Horst Seehofer, Germany’s Interior Minister, announced last month that new migrants already registered elsewhere in the EU or who made a previous unsuccessful claim would henceforth be denied entry at the German border. Merkel countered that EU law precluded border controls and required Germany to process every asylum application by every migrant even if another member state was responsible under the Dublin rules.  In fact, the Dublin regulation only requires EU member states to process each migrant’s case once, and the Schengen Agreement expressly authorises member states to reintroduce border controls in certain circumstances. Moreover, under Dublin, in most cases it is the  EU member state where a migrant first arrives that is responsible for their application.

The ensuing stand-off was settled this week. Instead of ‘closing’ the border Merkel and Seehofer agreed to establish holding facilities near the border where migrants will be subject to new expedited processing procedures, although the details remain unclear. The holding facilities replace the extra-territorial transit centres agreed between Merkel and Seehofer a few days before, which proved unacceptable to their SPD coalition partners, who also insisted on further procedural safeguards to slow down Seehofer’s ‘expedited’ asylum assessment rules. It remains unclear whether the new holding centres will also be subject to the ‘legal fiction’ of extra-territoriality – on German soil but, legally speaking, not part of Germany.

The Seehofer-Merkel accord is a face-saving device, not a solution. First, holding facilities will be confined to the German-Austrian border, where, however, only one quarter of all migrants enter Germany.  Secondly, as migrants will still be able to cross the green border into Bavaria and the watered-down holding centres will be ‘open centres’, migrants cannot be prevented from absconding.  Third, although Merkel claimed she had reached accords with 14 EU members to take back migrants, several of these countries have already denied this. Italy, the first port of entry for most migrants, has flatly refused to take back migrants from Germany. Unless other countries agree to take back migrants, they are likely to re-enter Germany. Fourth, many migrants are not registered where they first enter the EU and before they reach Germany. The Seehofer-Merkel compromise does not address this key problem. And finally, it remains unclear what, if any, procedures are in place now to ensure Germany can return migrants to those countries where they first entered the EU.

Italy is now openly demanding far-reaching reforms of the Dublin system and the reallocation of most her migrants across the EU. After Merkel invited the world to come to Germany in 2015 many EU countries, in defiance of EU law, frequently ‘waived through’ migrants to head north. Unless Merkel soon agrees to further concessions on reallocating EU migrants and further fiscal transfers and bail-outs within the Eurozone, Italy may stop registering new migrants altogether.

The Seehofer-Merkel deal has given both a reprieve, but it does nothing to contain  the rapidly escalating costs associated with uncontrolled migration for both Germany and the EU. The present crisis cannot be solved by half-hearted measures nor through the reallocation of migrants across the EU, which will create further incentives not to control the external border. Rather, it will be solved through the suspension of the Schengen agreement, the reintroduction of effective border controls and the restoration of the principle of individual national responsibility, which alone can ensure that each country has an incentive to make the appropriate choice between sustaining a welfare state and the level of immigration it is willing to accept subject to its obligations under the 1951 Refugee Convention, interpreted strictly in accordance with its natural meaning. Instead, Merkel is still looking for a new ‘European solution’, without effective control of the Mediterranean – one which, analogously to the Euro rescue policy, allows countries to socialise the costs of their own national policies.

For many years, Western leaders unisono applauded Merkel for her policies, yet not one chose to follow her example in putting national interest last. The recent elections and subsequent political crisis have shown that at least some segments of her own CDU/CSU parliamentary party have woken up to this ominous fact and realise that the Chancellor is a threat both to German democracy and sustainable EU integration.  Merkel has shown remarkable deftness in playing to the German public’s penchant for uncharismatic leaders who work hard, are untainted by personal scandal  and are committed to the ‘European dream’, for which Germans are willing to pay – but not to the point of self-annihilation.  Merkel still believes in the money tree. She may resign or be forced to quit by her own party well before most Germans will realise that, for nearly thirteen years, they have had a dangerous liaison with the most profligate woman at the helm of a major European state since Mme de Pompadour.

 

Dr Gunnar Beck MEP

Dr Gunnar Beck is a barrister, legal philosopher and academic lawyer who specialised in German and EU constitutional law at SOAS, University of London and at 1 Essex Court prior to his election to the European Parliament in 2019. He is author for Politeia of The ECJ – An Imperial or Impartial Court? Adjudicating Treaty Rights After Brexit? (2018).

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