The sea rescue organization Sea-Watch is initiating legal action against German border controls. With the renewed extension of controls since September 2024 and the latest proposals by CDU chairman Friedrich Merz, Sea-Watch believes that not only central principles of the European Union but also fundamental human rights have been violated. The organization is, therefore, calling on the EU Commission to initiate an infringement procedure.
Sea-Watch criticizes the illegal border measures that unlawfully push back people seeking protection and violate fundamental human rights – a clear violation of EU law. The European Court of Justice had condemned similar practices in its proceedings against Hungary. On January 31, 2024, the Munich Administrative Court also ruled that the border controls at the German-Austrian border violate EU law. Sea-Watch is, therefore, lodging a complaint with the EU Commission and calling on it to initiate an infringement procedure against Germany. The organization demands an immediate end to the controls and an open Schengen area that complies with human rights.
“These controls are a state-organized breach of the law. They are disproportionate and contrary to human rights.”, says Oliver Kulikowski, spokesperson for Sea-Watch. “They don’t create more safety, but drive people into illegality and force them onto more dangerous routes.”
Merz’s proposals exacerbate the situation
The so-called 5-point plan of the chairman of the Germany’s Christian Democratic Union (CDU), Friedrich Merz, includes permanent border controls with all neighboring countries, a general entry ban for people without entry documents, and the detention of people seeking protection in empty barracks. Deportations are to take place “daily”, also to war zones such as Syria and Afghanistan. These demands are an open breach of international law.
“With its illegal border controls, the German government has opened the floodgates to Merz’s demands. Merz’s initiative wants to abolish the right to asylum and the rule of law. Merz is making himself a useful idiot for right-wing populists to gain votes.”, Kulikowski continued.
Reminder of historical responsibility
Eighty years after the liberation of Auschwitz, Sea-Watch reminds us of the historical responsibility of Germany and the international community. The right to asylum is based on the expulsion, persecution, and murder of millions of Jews by Germany.
“Merz commemorates the victims of Auschwitz and then wants to abolish the right to asylum. The right to asylum is a lesson from Germany’s past. Anyone who shakes it up is mocking the victims of persecution and expulsion.”, notes Kulikowski.
Infringement Procedure
Under the EU treaties, the European Commission can initiate infringement proceedings against an EU country that does not implement EU law. The European Commission can also refer the matter to the European Court of Justice, which can impose financial sanctions.
Sea-Watch filed a complaint against the general German border controls with the European Commission. These were only expanded and extended in September 2024 and clearly contradict EU law. The following EU rights are violated: Article 3(2) of the Treaty on European Union (TEU), Article 67(2) of the Treaty on the Functioning of the European Union (TFEU) and the regulations of the Schengen Borders Code (new version). The measures also undermine the fundamental rights to freedom of movement (Art. 45 EU Charter), asylum (Art. 18), and protection against unlawful return (Art. 19).
ECJ ruling against Hungary
In the case “Commission v. Hungary” (C-808/18) of December 17, 2020, the ECJ ruled that Hungary had violated EU law by introducing restrictive border measures. These included, among other things: The unlawful exclusion of asylum seekers from the asylum procedure; The creation of so-called “transit zones” in which asylum seekers were detained without adequate legal scrutiny; The immediate return of migrants to the border without individual assessment. These measures were deemed to violate several articles of the EU Charter of Fundamental Rights, in particular the right to asylum (Art. 18), protection against unlawful return (Art. 19) and the right to an effective remedy (Art. 47).
In June 2024, the ECJ imposed a fine of 200 million euros on Hungary, accompanied by a daily penalty payment of 1 million euros, to increase the pressure on Hungary to change its legislation. In other important decisions relating to the Schengen Borders Code, the European Court of Justice emphasized that the temporary reintroduction of border controls is a last resort and may only be used in exceptional cases and for a limited period of time (ECJ, NW v. Landespolizeidirektion Steiermark and Bezirkshauptmannschaft Leibnitz, C-368/20, 26 April 2022).
