Vol. 39 Associate Editors
The 1957 Treaty of Rome created the European Economic Community—the forerunner of the European Union (EU). The treaty’s first proclamation was that it was “determined to lay the foundations of an ever-closer union among the peoples of Europe.” The “ever-closer union” language has become a mainstay of European Union treaties and declarations. Broadly speaking, Europe has become closer. In 1993, the EU became a single market—which allowed the free movement of goods, services, and people within the EU. In 1999, eleven (today it is nineteen) EU states adopted a uniform currency, the Euro. But today the idea of an ever-closer union is threatened. In fact, it appears it is breaking apart.
Across Europe, each election cycle brings a similar message. Traditional, pro-EU parties get fewer votes and nationalist, anti-EU parties gain more. In May, a candidate who promised to “release France from the tyranny” of the EU placed second in the French presidential elections. On September 26, in Germany, the anti-European Union Alternativ für Deutschland (AfD) finished in third-place in parliamentary elections—despite Germany previously being one of the few European countries without influential Eurosceptic parties. Of course, the most famous recent manifestation of displeasure with the EU was Brexit.
There are a wide variety of reasons for this discontent—youth unemployment that far exceeds any other region in the world, disillusionment with Europe’s diminished role in global affairs, and the refugee crisis. But there is one common underlying theme, which is that many EU citizens are alarmed by what they perceive to be a loss of sovereignty. This is especially true with regard to concerns over immigration. Seventy-three percent of UK Brexit voters cited immigration as a reason they voted to leave the EU. Post-Brexit, many EU citizens have voiced similar concerns. Sovereignty and immigration are intertwined issues for the EU because the EU’s immigration policy often mirrors its major power players’ desires, especially Germany, and is contrary to the wishes of less-powerful non-Western European countries.
Unfortunately, the EU has largely failed to take heed of this growing wave of discontent. Many of its actions have directly and indirectly spurred Eurosceptic nationalism. The latest example is the EU’s clash with Hungary, Poland, and Slovakia due to their refusal to take in refugees as mandated by a 2015 EU decision. The EU has drawn a line in the sand and threatened to fine Hungary and Poland, if they do not accept refugees from Italy and Greece. While the EU’s motives may be noble, its current policies are counterproductive and empower nationalistic parties to position themselves as the only reliable bulwark against an impending loss of sovereignty.
In response to the 2015 European migrant crisis that (mostly) affected Italy and Greece, the Council of the European Union used Article 78(3) of the Treaty on the Functioning of the European Union  to justify the relocation of 120,000 refugees from Italy and Greece to other EU states.  Article 78(3) provides that “in the event of one or more Member States being confronted by an emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on a proposal from the [European] Commission, may adopt provisional measures for the benefit of the Member State(s) concerned.” The Czech Republic, Hungary, Romania, and Slovakia all strongly opposed the refugee resettlement plan, but they were overruled.
Hungary, Poland, and Slovakia challenged the resettlement plan at the European Union Court of Justice (ECJ). But on September 6, the ECJ rejected their challenge. If they do not comply, they will be fined. Legally, the EU appears to be on solid ground. However, Poland, Slovakia and especially Hungary do not seem likely to deviate from their hardline stance. Hungary’s president held a referendum on accepting non-European immigrants last October and his decision was supported by 97% of voters. Three-quarters of Poles are also against accepting these refugees. Many of these countries’ governmental ministers regularly make public pronouncements denouncing non-European migrants.
There is most certainly a strong argument that Hungary, Poland, and Slovakia should acquiesce to the EU and take in migrants. Under the Common European Asylum System (CEAS), international protection is granted to refugees if they have a well-founded fear of persecution. Secondary protection is granted to those who face a real risk of serious injury if returned to their country of origin. That means that EU members cannot arbitrarily deny some form of legal status to the aforementioned groups. There is an open question of what percentage of migrants qualify under these definitions, but it is more than zero, which is the current number of refugees that countries such as Hungary accept.
Even if you do not buy the argument that countries have a humanitarian duty to take in refugees—Hungary, Poland, and Slovakia have benefitted tremendously from the EU’s open border policies. For example, thanks to the EU open borders, Hungarians can more easily access jobs in more affluent EU states. Since Hungary joined the EU, hundreds of thousands of Hungarians have moved to wealthier Western Europe in search of better opportunities. The city with the second highest population of Hungarians in the world is London, thanks to the EU. Hungary has received billions in aid from the EU and its gross national product per head has increased by twenty percent since it joined the EU ten years ago. And all the EU is asking Hungary to do is accept 1,000 refugees. Furthermore, nobody strong-armed Hungary, Poland, or Slovakia into joining the EU.
Hungary does have a legitimate argument that when it joined the EU, it could not foresee the current immigration crisis. It joined the EU, not some type of global union. These migrants will undoubtedly have an economic impact on the countries they end up settling in. In Germany, even pro-immigration government ministers, have admitted that up to three-quarters of migrants will most likely still be unemployed in five years. Most migrants do not have the skills to find employment in Europe, so taxpayers will pick up the burden.
Furthermore, there will undoubtedly be cultural clashes that are extremely difficult, if not impossible, to quantify in terms of loss. Countries that have been relatively welcoming of refugees have experienced major issues with integration. The most famous incident was the New Year’s Eve sexual assaults in Cologne, Germany. Germany has been relatively open to migrants. Its political leaders have been among the most vocal advocates for the EU accepting more migrants. So the biggest issue is how countries like Hungary and Poland, whose populations overwhelmingly do not want migrants, will react if forced to accept them. The answer is almost certainly negatively. It will be a lose-lose situation where migrants feel out-of-place and isolated, while native anger builds.
The support for the EU is actually among the highest in Poland and Hungary. But skepticism is growing and it is unlikely to change anytime soon. Many different EU members are aggrieved and much of the discontent is rooted in issues that are not going away anytime soon—especially immigration. In fact, immigration from the Middle East and Africa is likely to accelerate in the next few decades.
The problem is if the EU coerces countries into taking refugees, it may have won a battle in its goal to create an ever-closer union. However, it will be putting itself at risk of losing the war. It will be giving Eurosceptic parties a political flag to rally around. This is especially troubling for Central Europe because in some of these countries, the political flag is extremely popular. Perhaps accepting refugees will become a litmus test for who truly wishes to be an EU member state. Maybe this is an indirect way of finding out who is committed to the EU’s ideals. But the EU should be careful to not destroy or damage itself too much in the process.
Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11, http://ec.europa.eu/archives/emu_history/documents/treaties/rometreaty2.pdf.
 Id at pmbl.
 Jorge Valero, EU Puts Ever Closer Union on Hold, Euractiv (Oct. 11, 2016), https://www.euractiv.com/section/future-eu/news/eu-puts-ever-closer-union-on-hold/.
 See Id.
 European Union, Europe without Frontier (Oct. 16, 2017), https://europa.eu/european-union/about-eu/history/1990-1999_en.
 European Union, The Euro (Oct. 16, 2017), https://europa.eu/european-union/about-eu/money/euro_en.
 Le Pen Rides Trump, Brexit Wave in Election Campaign, Al Jazeera (Feb. 5, 2017), http://www.aljazeera.com/news/2017/02/le-pen-kicks-campaign-france-promise-170205144507565.html.
 Lisa Hagen, How the AfD Won, The Atlantic (Sep. 26, 2017), https://www.theatlantic.com/international/archive/2017/09/afd-germany-right-wing-merkel-petry/541089/.
 Peter Foster, Why is Europe so Fed Up, The Telegraph (May 31, 2016), http://s.telegraph.co.uk/graphics/projects/europe-ref-fed-up-vote/.
 Mary Bulman, Brexit: People Voted to Leave EU Because They Feared Immigration, Major Survey Finds Independent (June 28, 2017), http://www.independent.co.uk/news/uk/home-news/brexit-latest-news-leave-eu-immigration-main-reason-european-union-survey-a7811651.html.
 Post-Brexit, Europeans More Favorable Toward EU, Pew Research Center (June 15, 2017), http://www.pewglobal.or/2017/06/15/post-brexit-europeans-more-favorable-toward-eu/.
 Bill Gates Cautions Europe on Its Open Door Immigration Policy, News.com.au (July 5, 2017), http://www.news.com.au/world/europe/bill-gates-cautions-europe-on-its-open-door-immigration-policy/news-story/69aa93741619820a5e13093ba9c7294e.
 Jennifer Rankin, EU Court Dismisses Complaints by Hungary and Slovakia over Refugee Quotas, The Guardian (Sep. 6, 2017), https://www.theguardian.com/world/2017/sep/06/eu-court-dismisses-complaints-by-hungary-and-slovakia-over-refugees.
 European Commission, Refugee Crisis: European Commission takes decisive action (2015), http://europa.eu/rapid/press-release_MEMO-15-5597_en.htm.
 Alberto Nardelli, EU to call on member states to relocate a further 120,000 refugees, The Guardian (Sept. 8, 2017), https://www.theguardian.com/news/datablog/2015/sep/08/european-commission-relocate-120000-refugees-member-states.
 Katerina Linos, Laura Viktoria Jakli & Melissa Carlson, Hungary and Slovakia challenged Europe’s refugee scheme, Washington Post (Sept. 8, 2017) They just lost badly, https://www.washingtonpost.com/news/monkey-cage/wp/2017/09/08/hungary-and-slovenia-challenged-europes-refugee-scheme-they-just-lost-badly/. Poland supported the decision at the time, but its ruling party was promptly replaced by a hardline, anti-immigration party.
 Jennifer Rankin, EU court dismisses complaints by Hungary and Slovakia over refugee quotas, The Guardian (Sept. 6, 2017)
 See Id.
 Three-Quarters of Poles against Accepting Migrants from Middle East, Radio Poland (Apr. 14, 2017), http://www.thenews.pl/1/9/Artykul/302743,Threequarters-of-Poles-against-accepting-migrants-from-Middle-East-Africa.
 Guardian, Hungarian Prime Minister Says Migrants are ‘Poison’ and ‘Not Needed’ (July 26, 2016), https://www.theguardian.com/world/2016/jul/26/hungarian-prime-minister-viktor-orban-praises-donald-trump.
 Library of Congress Refugee Law and Policy: European Union, https://www.loc.gov/law/help/refugee-law/europeanunion.php (last visited June 26, 2016)
 See Linos, Jakli, & Carlson, supra note 18.
 London Calling: Why Home-loving Hungarians are Flocking to British Capital, Euronews (Feb. 27, 2015), http://www.euronews.com/2015/02/27/london-calling-why-home-loving-hungarians-are-flocking-to-british-capital.
 Remi Piet, Hungary Should be Kicked Out of the EU, Al Jazeera (Sep. 23, 2016), http://www.aljazeera.com/indepth/opinion/2016/09/hungary-kicked-eu-160919124045251.html.
 Guy Chazan, Most Refugees to be Jobless for Years, German Minister Warns, Financial Times (June 22, 2017), https://www.ft.com/content/022de0a4-54f4-11e7-9fed-c19e2700005f.
 Germany shocked by Cologne New Year gang assaults on women, BBC (Jan. 5, 2016), http://www.bbc.com/news/world-europe-35231046.
 Marcel Michelson, EU Skepticism is Rising and Goes Beyond Brexit Backers in 10 European Countries, Poll Shows, Forbes (June 7, 2016), https://www.forbes.com/sites/marcelmichelson/2016/06/07/eu-skepticism-is-rising-and-going-beyond-brexit-backers-in-10-european-countries-poll-study-shows/#cf5dd0736a2e.
 See Id.
 Masood Farivar, Migration Out of Middle East Appears Unlikely to East, VOA (Sep. 27, 2016), https://www.voanews.com/a/migration-middle-east-appears-unlikely-ease/3527580.html.