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Deutschland Österreich Flüchtlinge Grenzkontrollen in Bayern
Image: picture-alliance/dpa/A. Weigel

Can Bavaria close its borders?

Christoph Hasselbach / js
October 9, 2015

Bavaria's state government has threatened "self-defense" if the federal government does not curb the number of refugees arriving. But can Bavaria even do that? European law expert Walther Michl gave DW some answers.


DW: Dr. Michl, Bavarian Interior Minister Joachim Herrmann has threatened to send refugees arriving from Austria straight back there because he says the country is disregarding European law. Is that legally possible?

Wather Michl: If it is, then it is for the federal government to do as states are not authorized to take such actions. Of course, if refugees have already made it to Austria, then theoretically another EU member state is responsible for them. That does not necessarily have to be Austria though. Germany would have to verify which EU member is in fact responsible. And, to that end, refugees would certainly have the right to remain in Germany until it could be determined.

At the moment there are controls at the Austrian border. Nonetheless refugees are not being stopped. Could Germany close the border?

Viewed strictly in terms of German law, yes, they could. EU law says that such a one-sided measure is possible for a time period of up to two years in exceptional circumstances. For that to happen, one would have to prove grave deficiencies of the control of external borders. Right now, one could make that case.

Currently, external borders are open, with the exception of Hungary, which has built a border fence. Could one make the legal argument that Germany has the right to build a fence because external border controls are not working?

I wouldn't look at it that way. There is no specific mention of how border control is to be established according to federal or EU regulations, but the rights of individuals must be respected. And above all the principle of proportionality has to be upheld, and I would argue that principle would be infringed upon if a fence were built. Beyond that, it would be a bit of a topographical joke to try to construct a fence along the high mountain border between Germany and Austria and the then plant it in the Inn River. So it's not a very realistic option.

Walther Michl
Dr. Walther Michl is an expert on European law at the Ludwig Maximillian University in Munich.Image: picture-alliance/dpa/W. Michl

Chancellor Angela Merkel has reiterated that there can be no stop to the taking in of refugees. Is the influx theoretically unlimited?

In principle, yes. No legal instruments affording refugees legal status in the EU and in Germany have an upper limit. Of course the whole construct was not designed for a situation like the one that we currently have, in which refugee numbers are in the millions. And of course it wasn't designed for a situation in which the control of external borders does not function.

Is there a factual limit? And, if so, who sets it? Or does all governmental order have to break down first?

Essentially, that would be an exceptional situation. That means nothing is legally regulated. One would have to run up against a non-normative border situation. There is no precedence to determine when that point has been reached.

Merkel has also said that the Dublin rules - which dictate that refugees must apply for asylum in the EU country they arrive in - are "not practically feasible." Can a leader simply declare the death of the Dublin Accord?

They can't from a legal standpoint, but they probably can from a practical standpoint. The primacy of EU law has been established among the member states and is legally binding. And the head of a member state cannot simply stand up and say: I'm not interested in what has been ratified as European law. But, in a practical sense, the chancellor has every right to do so. If states along the external borders fail to uphold their responsibilities, then the question becomes whether states that have no external borders can deviate from the rules because the original provisions are no longer functioning.

Would it be better to stick to the existing legal framework in this uncertain situation or is it more advisable to simply do what is feasible?

The problem is that it is not so easy to abide by the existing laws. If states with external borders fail to register refugees, interior states cannot determine which states are responsible for them according to Dublin. They would have to be able to determine that in order to return refugees to those states that are legally responsible for them. That means that in practice one has to do what is feasible, because the law is unenforceable.

How do you think things will continue?

I think the phone lines between states are probably glowing red right now in hopes of reforming the Dublin rules. Of course the goal has to be to restore the effective control of external borders, to conduct registration and, at the same time, not to leave those states on Europe's external borders alone with the problem of managing the huge influx of refugees. Members have to come up with an equitable distribution plan, and introduce unified asylum standards across the EU. Just how realistic that is will have to be seen when these are put into practice. At the moment, I am rather pessimistic about the prospects.

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