ECJ Ruling “Castrates” Member States’ Migration Policy

The recent ruling of the European Court of Justice (ECJ), restricting member states’ unilateral ‘safe country of origin’ designation and hindering deportations, represents a serious overreach that “castrates” EU members’ migration policies, warned a German constitutional law expert, Prof. Markus C. Kerber, in a recent interview with Exxpress.

As we wrote on Friday, the ECJ ruled that member states may only designate countries of origin as ‘safe’ if it’s safe for everyone, meaning all ethnic, religious, or sexual minorities within them are protected from persecution. Without this designation, each return order will need to be individually reviewed by the national judiciary, which creates endless backlogs and allows partisan judges to sabotage the process.

The case was brought before the court by leftist judges in Italy trying to block the Meloni government from deporting two Bangladeshi migrants. They argued that Rome’s ‘safe’ designation for Bangladesh is unlawful because it’s not safe for people belonging to the LGBT community—despite neither of the migrants in question claiming to come from that group.

Nonetheless, the ruling has major implications for the whole of the EU, as it restricts all member states from independently designing and executing their migration policies. It effectively prohibits EU countries from deporting illegal migrants who do not qualify for asylum but come from countries where others could.

According to Prof. Kerber—a constitutional lawyer who was involved in a 2008 challenge to the Lisbon Treaty before Germany’s Constitutional Court and founded the think tank Europolis—the ECJ is imposing an “overly bureaucratized procedure,” which makes it impossible for EU member states to properly control their borders.

“The strengthening of the [national] judiciary by the ECJ for all cases of reviewing asylum applications leads to the castration of EU member states’ migration policy,” he explained. “What will happen if suddenly 3 million people from an unsafe country of origin appear at our border? Should we then accept them all?”

The social implications are perhaps even more worrying, the Berlin-based professor warned, adding that all this meddling in national competences will inevitably turn more and more people against Brussels.

“Social systems are bursting, and the willingness of the majority of society to accept refugees is declining drastically,” Kerber said. “The public will increasingly perceive the EU as an entity acting against its own citizens.”

The sentiment is certainly shared by many, including the top officials of the Meloni government. The prime minister expressed her outrage after the ruling was published on Friday, saying it should concern everyone in Europe, as the ECJ further limits the freedom of member states and undermines the effectiveness of any policy countering mass migration.

“Once again, the judiciary, this time at the European level, claims spaces that do not belong to it,” Meloni said.

Deputy PM Matteo Salvini put it more bluntly in his criticism, calling the ruling “a slap in the face” to Italy’s national sovereignty. “Yet another incentive for limitless landings, and yet another confirmation not only of the uselessness but also of the harmfulness of European institutions, which are paid for by Italian citizens who, however, are constantly humiliated.”

Rome said it will not accept the ruling and will do everything in its power to find a solution “to protect the safety of citizens.”

Italy (along with Denmark) is also leading the charge on behalf of a coalition of a dozen EU member states pushing for the European Court of Human Rights (ECtHR) as well to change its interpretation of asylum rights, which is currently hindering member states from fulfilling their duties to their citizens and the EU treaties by protecting their borders.