Merz's border plans test EU asylum rules as German election nears

Germany goes to the polls on Sunday with immigration policy at the centre of the campaign and the rest of Europe watching closely. Friedrich Merz, the Christian Democratic Union leader who leads the polls and stands the best chance of forming the next government, has made border control the defining issue of his candidacy. His proposals, permanent controls at internal Schengen borders, blanket denial of entry to asylum seekers who have already passed through another EU country, and detention of those ordered to leave, would represent the most aggressive assertion of national sovereignty over European asylum rules in years.

The legal architecture Merz intends to use already exists. Article 72 of the Treaty on the Functioning of the European Union allows member states to derogate from their obligations under the Common European Asylum System for reasons of national security, including through a declared state of emergency. Merz cited the article last summer and his parliamentary motion frames it as the German government's "duty" to prioritise national law when European regulations "do not function." The motion passed in January with votes from the liberal Free Democrats and the far-right Alternative for Germany, breaking a long-standing taboo against cooperation with the AfD and triggering mass protests across Germany.

The emergency that isn't

The factual basis for an emergency declaration is thin. Anne Koch of the German Institute for International and Security Affairs points out that asylum applications in Germany fell 28.7% in 2024 compared with 2023. "I did not think it was credible that there was an emergency," she said. The numbers matter because the Treaty's derogation clause is not a policy preference; it is a narrow exception for genuine crises. Invoking it when applications are dropping sharply exposes any German government to legal challenge at the Court of Justice of the European Union and political challenge from neighbours who would bear the consequences.

Helena Hahn of the European Policy Center notes that the European Commission has so far declined to "comment on political announcements, drafts or party programs." That silence is deliberate. The Commission knows that a Merz chancellery would test the limits of Article 72 almost immediately, forcing a confrontation the EU's executive would prefer to avoid until it must rule. The risk for Brussels is that a successful German derogation becomes a template for other member states, unravelling the common system the 2026 reforms were designed to strengthen.

Schengen's new flexibility

Merz's demand for permanent internal border controls collides with the Schengen acquis, but the ground has shifted. Last year's reform of the Schengen Borders Code introduced more flexibility on how long member states can maintain controls, provided the Commission does not object to the justification. Hahn explains that controls "would be accepted so long as the European Commission had nothing against the reasons provided." That formulation hands significant discretion to Brussels, but also creates a political trap: if the Commission rejects a German justification, it triggers a rule-of-law dispute; if it accepts, other capitals will demand equal treatment.

The practical consequences are already visible. When Germany introduced temporary border controls last autumn, Austria immediately declared it would not accept anyone turned back at the German border. Koch warns of a chain reaction reaching the EU's external borders, where blanket returns, refoulement, would be "highly problematic under European law." The Dublin Regulation already assigns responsibility to the first country of entry; if Germany refuses that responsibility at internal borders, the pressure concentrates on Greece, Italy and Poland, the very states the 2026 pact tries to relieve.

A fragmented German spectrum

The German party landscape reveals how far the centre of gravity has moved. The Social Democrats, led by Chancellor Olaf Scholz, oppose "border closures and blanket denial of entry at internal borders." The Greens insist on case-by-case examination of asylum claims. The Left Party calls systematic internal controls inadmissible. On the right, the FDP supports a trial of entry denials at external borders only, while the AfD wants to leave the European legal framework entirely, using federal police as border guards and requiring asylum applications to be filed from abroad. Merz's CDU sits between the FDP and the AfD, adopting the rhetoric of the latter while formally rejecting its exit strategy.

This fragmentation matters for coalition arithmetic. Merz will almost certainly need a partner. The FDP's external-border-only position is closer to his than the SPD's or Greens', but the FDP's poll numbers hover near the 5% threshold. A grand coalition with the SPD would require Scholz's party to swallow border policies it has explicitly rejected. A three-way coalition with Greens and FDP looks mathematically improbable. The most stable majority might be CDU-SPD, but the policy friction on migration would be immediate and public.

The 2026 framework and the return directive

While Berlin debates, the EU-level architecture is hardening. The reformed Common European Asylum System enters force in 2026. Its centrepiece is fast-track border procedures for applicants from countries with low recognition rates, below 20%, and a mandatory solidarity mechanism: states that refuse relocations must pay €20,000 per person or provide equivalent operational support. Koch describes the package as "essentially restrictive," a judgement shared by most migration NGOs. The framework was negotiated precisely to prevent the kind of unilateral action Merz now proposes.

Next month brings another lever. The European Commission plans to propose a revision of the Return Directive, which governs how rejected applicants are deported. Koch forecasts changes to the rules on destination countries: currently, people can only be returned to third countries with which they have a prior connection. Expanding that list would make returns easier but raises immediate questions about readmission agreements, diplomatic leverage and the safety of returnees, the same refoulement concerns that apply at external borders.

Brussels' "innovative solutions"

The Commission's own language has shifted. In May 2024, fifteen member states called for "new solutions to address irregular migration in Europe." Von der Leyen responded by promising to examine "innovative solutions" compliant with EU law, assigning the portfolio to her new migration commissioner, Magnus Brunner. The explicit reference point is Italy's protocol with Albania, under which asylum seekers intercepted at sea are processed in Albanian centres while their claims are assessed under Italian and EU law. The arrangement is legally contested and operationally unproven, but it has become the reference model for a Commission keen to show it can deliver results without treaty change.

This matters because a Merz government would arrive in Brussels demanding exactly the kind of "innovation" the Commission is already exploring, but on German terms, backed by Article 72, and with the implicit threat that Europe's largest economy and biggest refugee recipient will act alone if the EU cannot accommodate it. The Commission's dilemma is whether to integrate German demands into the emerging framework or confront them as a breach of the solidarity the 2026 pact enshrines.

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