On Wednesday 11 December, the 'von der Leyen II' European Commission devoted its first-ever communication to the hybrid threats and instrumentalisation of migration posed by Russia and Belarus on the EU’s eastern borders.
Presented by Vice-President Henna Virkkunen, who is responsible for Technological Sovereignty, Security and Democracy, this communication is designed to help the Member States most affected - Poland, Finland and the Baltic States - to deal with threats that have been taken “to a higher level” by these two third countries. According to the Vice-President, this directly concerns “EU security” and not migration.
The EU countries bordering Belarus and Russia are experiencing an “exceptional” and “persistent” situation, as described by Ms Virkkunen, citing a 66% increase in irregular crossings between Belarus and Poland between 2023 and 2024. She also explained the modus operandi of Russia and Belarus, which actively bring migrants to the EU’s borders after issuing them visas.
She believes that Member States should also be authorised to introduce exceptional measures to deal with these exceptional situations, especially as the ‘Crisis’ regulation of the ‘Asylum and Migration Pact’, which is intended to provide a coordinated response to these instrumentalisation situations, will not come into force until 2026.
They may, for example, “limit the exercise of the right of asylum, but under very strict conditions and (within) legal limits”.
As requested in particular by Poland, which is considering a specific law and has already erected a metal barrier along the border and stepped up patrols, the Member States concerned will be authorised to adopt exceptional legislation allowing them to derogate from the right of asylum and the Charter of Fundamental Rights. Finland has already done so by adopting emergency legislation earlier this year.
Member States will be able to do so on the basis of Article 72 of the EU Treaty, which “recognises that, in exceptional circumstances, Member States may be required to take measures on grounds of public policy or public security, derogating from secondary EU legislation, as confirmed by the Court of Justice of the European Union. These derogations must be exceptional and apply only in clearly defined cases”, explains the Commission.
All these measures will have to be temporary, proportionate and justified by the hybrid nature of these migrations, the Vice-President insisted on several occasions, and the Member States will always have to continue to respect the principle of non-refoulement. However, the European Commissioner remained vague on this last point, not specifying whether the return of migrants to Belarus could in practice be considered as refoulement.
To guard against these hybrid threats, Member States will in any case be authorised to “limit compliance with the Charter of Fundamental Rights”, the Communication states.
In Finland, the emergency bill allows border guards to prevent asylum seekers from crossing Finnish territory and to refuse to register their applications for international protection if they believe that migration flows are being manipulated by a foreign state.
Finnish border guards are obliged to prevent the entry of instrumentalised migrants, and asylum seekers who have already entered Finnish territory could be deported and directed to another location, presumably near the border, to have their applications examined. The deportation cannot be appealed, but it can be reassessed, explained Euronews in July.
For the Council of Europe and NGOs such as Amnesty International, this clearly amounts to refoulement.
The ‘Crises’ regulation, for its part, will allow Member States to close crossing points in order to regulate applications for international protection lodged by these migrants; the time taken to register applications will be lengthened, meaning less protection, and the material conditions for receiving these people may also be revised downwards. The safeguards surrounding returns can also be lowered.
On Wednesday, the Commission insisted that Member States must always take into account the situation of people in a vulnerable position. They will also have to explain the need for these measures and prove why the flexibilities already available in the 'Community acquis' are not enough.
Additional background. On Wednesday, the Commission also released an additional €170 million for the countries affected. They will support Estonia with €19.4 million, Finland with €50 million, Latvia with €17 million, Lithuania with €15.4 million, Poland with €52 million and Norway with €16.4 million, to modernise electronic surveillance equipment or deploy mobile detection devices.
Link to the communication: https://aeur.eu/f/er5 (Original version in French by Solenn Paulic)