On migration reform, the EU gets ready to flex its legal muscles
By Jorge Liboreiro
Poland and Hungary might be in for a big surprise.
The two countries, long-time allies in virtually every topic except for Russia and Ukraine, have joined forces to derail the European Union’s latest attempt to reform its migration policy, an effort that has never before been closer to completion.
For the past seven years, the bloc has repeatedly tried – and repeatedly failed – to establish a common set of rules to receive and relocate asylum seekers. The ambition appeared to be perpetually hampered by ideological, economic and geographical differences that split member states into smaller factions (frontline vs landlocked, wealthy vs indebted) and made even a bare-bones agreement impossible to green light.
But earlier this year, the pieces on the political board shifted and a willingness to deliver emerged.
For the first time since its presentation back in September 2020, the New Pact on Migration and Asylum, a holistic proposal that became so stalled that rendered the “new” on its title obsolete, seemed to have a chance to get off the ground and reach the finish line.
It all culminated on 8 June during a long meeting of home affairs ministers in Luxembourg, where member states sealed a preliminary deal on the pact’s central element: a system of “mandatory solidarity” to ensure that all countries contribute to addressing the challenge of migration. Under the proposed system, member states will have three options to deal with new arrivals: accept a number of relocated migrants, pay €20,000 for each rejected asylum seeker or finance operational support measures, such as infrastructure and transport.
The agreement prompted a wave of congratulations from EU leaders, who hailed the moment as a major breakthrough and living proof of European unity.
There were, however, two dissenting voices.
Warsaw and Budapest wasted no time in denouncing the migration deal as a “coup-like” imposition, an act of “coercion,” a violation of national sovereignty and a pull-in factor that would attract even more irregular arrivals to Europe’s shores. The prime ministers, Mateusz Morawiecki and Viktor Orbán, quickly raised the prospect of “forced relocation” of asylum seekers, which is actually nowhere to be found in the proposal, and said they would not abide by the provisions of the reform.
Not content with tweeting, Morawiecki and Orbán brought their grievances into the very halls of the European Council and demanded that any further steps in migration reform be taken by “consensus” and exclusively on a “voluntary basis.” The ultimatum thwarted last week’s EU summit, pushing the other 25 leaders to delete the migration section – in its entirety – from their joint conclusions.
But this time around, Brussels was visibly unbothered by the Poland-Hungarian gambit.
It turns out that migration policy, like most policy areas, including climate action, environment, digital and single market, is decided by qualified majority, meaning you need the approval of a minimum of 15 member states representing at least 65% of the EU population to move forward.
Contrary to the demands of Morawiecki and Orbán, the bloc is not legally required to agree on migration files by unanimity, a voting rule that grants the veto power that both their governments, particularly Orbán’s, have used in the past with extraordinary generosity. In fact, according to the founding treaties, unanimity only applies to a highly selected list of sensitive areas, such as foreign policy, citizenship taxation, the common budget and EU accession.
In case of any lingering doubts, Ursula von der Leyen has made it clear how the bloc would proceed.
“The pact for migration and asylum: the first important parts have been decided like the treaty wants us to do, in qualified majority voting, and that goes all for the other packages,” the European Commission president said earlier this week, during a visit to Madrid.
“That's what the treaties say and that's what we have delivered on.”
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