Dodging a Bullet? Austria’s Asylum Policy and the TFEU

by David Lansky

In stark contrast to Angela Merkel’s disputed “Willkommenskultur,” the Austrian government made a dramatic about-face, in comparison to Germany’s open-door policy, in April of this year. A month after the Balkans Conference, Austria reinstated border controls based on its new asylum package. Human rights organizations were outraged, claiming it was in outright violation of international as well as European Union law. Yet, the Austrian government defended its policy, revealing that legal standards may have to yield to political force in the European Union if a Member State deems it necessary.

The Austrian asylum package, passed in May 2016, contains three major restrictive policy changes. First, it has adopted a form of temporary asylum. With an option for extension, asylum is only granted for three years as opposed to a practically indefinite amount of time. Second, family reunification of asylum seekers has been complicated by tying it to economic sustainability. Third – and most controversially – by way of emergency decree, the Austrian government can issue special provisions to suspend border controls, granting itself the competence to temporarily close borders. Such a decree must be issued in accordance with the central committee of the Austrian Parliament and can only be imposed to uphold public order, even though it is not quite clear who decides when and if a situation warranting border closure has arisen.

This asylum package has caused outrage and has human rights organizations, such as the UN Refugee Agency, Amnesty International and the Vienna-based Ludwig Boltzmann Institute for Human Rights, up in arms. Their outcry stems not only from the fact that asylum should be upheld despite administrative burdens, but also that, legally speaking, legislative changes such as these may infringe on EU law. The main reason for concern is that Austria is acting on its own behalf and not via the institutions of the European Union.

Article 78 of the Treaty on the Functioning of the European Union (TFEU) deals with the common policy on asylum in the EU. It states that the Union shall develop a “Common Asylum System.” Paragraph 3 of article 78 deals precisely with the situation facing Austria at the moment. It holds that if one or more Member States are confronted with an emergency situation characterized by a sudden inflow of third-country nationals, provisional measures may be adopted for the benefit of the Member State concerned. Having ratified the TFEU, Austria is bound to follow these regulations. In addition, the principle of lex specialis, a general rule of legal interpretation, applies. It states that if one law governs over specific subject matter, it overrides a law governing only general matters. In this case, therefore, the specific rule of Article 78 paragraph 3 should override the general rule of Article 72.

Aware of a potential breach of its obligations under EU law, the Austrian government has commissioned two legal experts to draft a report in order to justify its policy. This report, known as the Obwexer/Funk Report, begins with a long-winded explanation of the international obligations that Austria must fulfil. The report quickly disregards these obligations, however. It does not conclude by referring to paragraph 3, article 78 of the TFEU. Instead it refers to article 72 of the TFEU, stating that the TFEU title which deals with asylum law shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

While one side ardently contends that the asylum package is in blatant disregard of EU law, the other side argues that the EU’s paralysis has gone too far, leaving Austria with little recourse. This assumption is not without grounds. After the experience of Greece and Italy, doubt concerning the EU’s efficiency is by no means an unsound assumption. Austria’s policy, together with its legal justification presented above, confirms a tendency toward the re-nationalization of European Member States. Additionally, it reveals how legal arrangements matter less when they are challenged by a kind of Realpolitik that simply demands action. Yet, the question remains what consequences such a precedent may have on the behavior of other European Member States, and how the so-called “refugee crisis” will be handled in the future.

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