By Catherine Woollard
The big news of the rentrée in Brussels is the new Commission. EU member states (MS) put forward their nominees during the summer and this week returning Commission President, Ursula von der Leyen, presented her proposal for the allocation of roles to the MS’ nominees.
There is quite a lot of disappointment. Many MS nominated candidates with strong economic backgrounds because they wanted finance portfolios and, not least, because the big task of this mandate will be to negotiate and agree on the next seven-year EU budget, the Multiannual Financial Framework (MFF), with MS wanting to secure their piece of the € 1.5 trillion pie.
There were not enough finance jobs to go around, and von der Leyen followed through in a major way on her threat to punish those MS that did not nominate women by handing vice-president positions and the most important portfolios to female nominees (and Italy). Those (re)proposing weak candidates received suitably minor portfolios (see Hungary, Malta and Greece). Italy received the portfolio it wanted (money) and a vice-president role for a candidate with a somewhat questionable past, reflecting the need to keep Prime Minister Giorgia Meloni sweet – essential to von der Leyen keeping the EU functioning. Meloni’s tactic of ‘take the money and don’t rock the boat’ continues.
On the other hand, there were few takers for the poisoned chalice that is internal affairs, with the tricky asylum and migration dossier the main item within it. There were strong rumours over the last two weeks that Belgium was interested, while the nominee who looked best qualified for the position was withdrawn after a row with von der Leyen.
The reluctant Commissioner emerges
Following all these machinations, the unlikely new Commissioner-designate for Internal Affairs and Migration is Magnus Brunner, Austria’s finance minister, who is unlikely to be pleased with the choice. Like many issues in EU asylum and migration policy, the best that can be said is that he is not the worst candidate, with a reputation as a consensus-based and serious politician. Von der Leyen’s thinking here is presumably that she needs a safe pair of hands and a commissioner who is not further to the right than her, who would use the position to create trouble and attack the Commission from her right flank. At the same time, she has tried to appease the headbangers by giving the job to a country known as hard-line.
Of the other commissioners relevant to asylum, for external policy, the choices are very much with an eye to the East, with Kaja Kallas from Estonia as High Representative, Jozef Sileka (Czechia), a trade, energy and banking specialist, and once apparently ‘Banker of the Year’, for international partnerships, Marta Kos (Slovenia) for enlargement and even Dubravka Šuica, re-nominated by Croatia, taking the new position of Commissioner for the Mediterranean. The story here is of prioritising and investing in the EU’s response to the conflict with Russia and a renewed focus on accession, now encompassing Ukraine and Moldova, in parallel to possible peace negotiations and reconstruction in 2025 and after. There may be a renewed momentum in the EU’s response to displacement from Ukraine, where the pressure for collective action after an impressive early start, is considerable. A second element, the continuation of the Global Gateway approach – the centrality of interests, economic foreign policy and trade and investment to drive development.
Commissioners with any experience or previous interest in the EU’s relations with the Middle East and North Africa or Africa, or indeed on global issues, are few and far between. In this context, resistance to the inclusion of migration control measures in external action and funding and tottering EU diplomacy is unlikely. In this context, a role could open for European Council President Antonia Costa: while Charles Michel jumping into foreign policy chairs was generally not welcomed, the EU’s diplomatic relations might benefit from an experienced and heavyweight presence.
Finally, the role of Michael McGrath in the justice dossier is also important. Like Austria, Ireland desperately wanted a finance position and proposed a candidate in McGrath with a strong economic background. Like Brunner, he may not be best pleased with the allocation, receiving the justice position which includes the tricky but not well-rewarded job of dealing with the abuse of the rule of law by the MS. That battle, based on a defence of the treaties, along with the consolidation of the Charter of Fundamental Rights in the legal practice of MS, are nonetheless crucial to the future of the EU.
What does it mean for EU asylum and migration policy?
The European Parliament (EP) likes to claim a couple of scalps during the hearings when it “interviews” the nominees, to show its power even though it can’t reject and isn’t required to approve individual candidates (it can only reject the whole lot). Barring an act of self-sabotage at the prospect of taking on the cursed dossier, Brunner will sail through. What then does this likely appointment and the related mission letter mean for the future of EU asylum and migration policy?
First, the Pact will be the main game in town. It is underlined in the mission letter and at the same time, Austria tends to respect EU asylum law, and the reforms will reduce its responsibilities if implemented correctly. The Commission has pushed ahead at an extraordinarily fast pace with implementation plans, following the adoption of the Pact in anticipation of the Hungarian Presidency and the uncertainties attached to transitions in the EP and Commission. There is a momentum there that is hard to stop and the incoming Commissioner seems unlikely to want to stop it.
While commissioners are bound to act in the interests of the EU and are not representatives of their MS, etc etc, renationalisation in the form of the increasing power of the MS in EU decision-making is also manifested in the strategic choices commissioners make, especially given the strong tendency to nominate national politicians who have an interest in returning to national politics – for example, those who have held ministerial positions and may want to do so again. On asylum, Austria is a Member State significantly impacted by the lack of compliance of others. For example, the fact that Hungary doesn’t have an asylum system and that Austria has the second highest number of applications per capita are not unrelated.
From a protection perspective, a return to compliance would be positive. The Common European Asylum System (CEAS) post-Pact, is worse than before (see ECRE’s extensive analysis). Nonetheless, now is an opportunity to address the violations and implementation gaps that have been so neglected during the reforms, which themselves must be implemented in full respect of EU and international law, including the Charter.
Second, and relatedly, there is nonetheless a risk of an emphasis on certain elements of the reformed legal framework, and notably on enforcing the Asylum and Migration Management Regulation rules on responsibility (i.e. “Dublin” rather than Dublin) and the border procedure. A selective approach would be unfortunate and likely to lead to further political crises. Already, the effort to ensure implementation is a massive challenge, as years of tolerated non-compliance have taken their toll. Even-handedness is essential to maintain trust.
Third, unfortunately, not much is likely to change in terms of the worst violations at the borders and related impunity, as the objective of limiting arrivals of refugees is firmly engrained, regardless of cost and consequence. The search for accountability and justice – by ECRE, its members, and many others – will likewise continue.
More uncertain is the fate of the clamour for a different legal regime (favouring denial of access) at the borders. Certain MS are desperate to use the worst elements in the new Pact: the provisions that allow for derogation from the law, particularly in situations of so-called instrumentalisation. Indeed, a number of them seem to have preempted the application of the reforms by already putting measures in place, and a large number are intervening in cases running at the European Court of Human Rights in efforts to get favourable judgments from that court. In this respect, it does not bode well that sitting above the Commissioner for Internal Affairs and Migration will be the Executive Vice-President for Tech Sovereignty, Security and Democracy, Hanne Virkkunen, from Finland, a country pioneering efforts to use the instrumentalisation get-out. Similarly, the steadfast refusal to criticise or indeed meaningfully comment on the Italy-Albania deal will also likely remain – for at least as long as the state of terror in the Commission at the thought of upsetting the Italian government which has the power to pull the plug on the Pact.
Finally, the external adventures will continue, as this and the related mission letters show. Thus, the sight of the EU’s INTERNAL AFFAIRS commissioner flying around to meet repressive leaders on migratory routes, cheque book in hand, as diplomats and development specialists facepalm in the background, will not go away. A stronger focus on the Balkans as a holding area is likely however.
Is it all unravelling anyway?
More extreme scenarios than the usual gradual creep creep of erosion of international refugee protection by Europe are possible. This week has seen the Dutch request for an opt-out from the Pact, quickly shutdown by the Commission. Hungary then made a similar request – a rather redundant proposal since it doesn’t respect EU asylum law in any case. It is seeking to negotiate with the Commission over the massive fines imposed by the Court of Justice of the EU (CJEU) which the government refuses to pay, and which can – and should – be deducted from the billions of EU funding that Hungary continues to receive despite consistently and dangerously undermining the EU on a near daily basis.
Much more alarming are some of the proposals under discussion in Germany. While the expansion of border checks and the anti-integration measures passed are damaging enough, a serious discussion also rumbles on on invoking Article 72 of the Treaty on the functioning of the EU to claim an emergency situation and, on that basis, to derogate from EU asylum law. The proposals fervently advocated by the opposition Christian Democratic Union (CDU), include suspending the registering of new asylum applications. It is not exaggeration to say that some of the proposals that the government has been seriously considering could lead to the end of a common system, given Germany’s role in it and the chain reaction that would follow. The CJEU tightly circumscribes the use of Article 72 and an Austrian Commissioner is unlikely to be receptive towards Germany invoking it (but a CDU Commission President in the run-up to an election… ? ) Nonetheless, the government itself is in a perilous position.
Most scenarios that would result from a (partial) collapse of the CEAS would be highly damaging from a protection perspective. Where this is not of interest to MS, they might nontheless consider the impact they would likely face through either gradual deharmonisation through liberally allowing derogations, unpunished non-compliance or more dramatic collapse. There is also a bitter irony in Germany bemoaning the system which is based on its interests by still retaining the unfair Dublin rules, and the Netherlands seeking to blow up the Pact which is built on its successful promotion of the cruel idea of mandatory border procedures.
So what it means for asylum and migration are some positive changes and some more of the same. Also, lots of uncertainty where a good dose of evidence, common sense, humanity and the rule of law would help. The objective needs to be a situation where most MS respect most of the law most of the time. This would also be the best way to contain the issue so that it is dealt with without becoming a crisis where heads of state feel obliged to intervene, a situation that always leads to more restrictions. Policy-makers – officials as well as politicians – need to get a grip and get on with the job of making asylum systems function, in a calm and steady manner, rather than pursuing variously unrealistic, cruel or nonsensical ideas which just feed the populist beast. Post-reform, the system is not better, but it was believed to be necessary to reform before it was possible to enforce. So, now, enforce.