The dispute centred on the humanitarian aid and the search-and-rescue services provided by NGO vessels in the Mediterranean Sea, according to several diplomats with knowledge of the negotiations.

The Italian government considers these vessels to be a “pull factor” that attracts a larger number of asylum seekers to European shores. Germany contests this characterisation and says the boats are indispensable in saving lives at sea.

The quarrel made it impossible to solidify the necessary qualified majority to strike a provisional deal on the so-called Crisis Regulation at the end of a meeting of interior ministers in Brussels, despite multiple statements during the day that suggested a positive outcome was within reach. The regulation foresees exceptional rules to collectively manage mass influxes of migrants.

Spain, the country that currently holds the rotating presidency of the Council of the EU, tabled a new compromise text after Germany signalled it would no longer abstain on the regulation, as it had previously done.

But the unexpected clash with Italy over the wording on NGOs dashed the hopes, leaving ministers without an announcement to make. 

“We’re almost at the finish line. There’s only a difference around a nuance that involves all member states,” said Fernando Grande-Marlaska, Spain’s acting interior minister after the meeting. “I don’t like to single out individual countries. We just need a bit more time.”

Grande-Marlaska said member states had made “important” and “significant” progress over the past few days and that a deal would materialise “in the coming days.”

“There are no main political obstacles,” said Ylva Johansson, the European Commissioner for Home Affairs. “We will reach an agreement.”

Marlaska and Johansson said work would now continue at the ambassadorial level.

Times of exceptional pressure

Under the proposed Crisis Regulation, member states would be allowed to apply tougher measures when a sudden influx of migrants threatens to overwhelm the EU’s asylum system.

Governments would be able to keep asylum seekers at the border for longer periods of time while their requests for international protection are being examined. The detention of rejected applicants could also be extended beyond the legal maximum of 12 weeks until the process of return is completed.

The proposed derogations have been criticised by NGOs who believe they could lead to large-scale confinement, degrade the quality of the asylum procedure and increase the risk of refoulement (sending migrants to countries where they face serious harm).

On the other hand, the Crisis Regulation foresees the possibility of fast-tracking the asylum requests of people who are fleeing a particular situation of extraordinary danger, such as an armed conflict. The special scheme would effectively bypass the conventional asylum system, which tends to be cumbersome and time-consuming, and grant refugees immediate access to residence, employment, education and social assistance.

This would resemble the Temporary Protection Directive that was triggered for the first time ever in March last year to provide an accelerated pathway for the millions of Ukrainians who fled Russia’s war of aggression and sought shelter in the EU.

During Thursday’s meeting, ministers unanimously agreed to extend the Temporary Protection Directive until 4 March 2025.

Germany’s U-turn

Until Thursday, four countries were opposed to the Crisis Regulation – Austria, the Czech Republic, Hungary and Poland – while another three were considered abstentions – Germany, the Netherlands and Slovakia.

Berlin’s doubts were based on the potential impact the legal derogation could have on human rights, particularly the rights of children and family members, and had so far blocked the qualified majority required to approve legislation in the field of migration.

But a sharp rise in irregular crossings along the border with Poland and the Czech Republic, coupled with upcoming elections in Bavaria and Hesse and a surge of the far-right in opinion polls, ushered a change in the thinking of the ruling coalition.

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“If we aren’t able to finalise this work, we’ll still see misery and deaths in the Mediterranean. We’re not going to allow this. We have to act together,” said Nancy Faeser, Germany’s federal interior minister, who hails from Hesse.

“Even though we feel there’s a need for greater change,” Nancy Faeser went on, referring to the protection of minors and family members, “we will be assuming our responsibility and today we will accept this compromise brokered by Spain.”

Berlin’s shift came as a surprise. In fact, Spain had not originally envisioned a formal vote on the Crisis Regulation during the meeting but reacted quickly to seize the opportunity and circulated a new compromise text on Wednesday evening, hoping to get as many countries on board as possible.

The Council’s position on this file is the only one missing from the puzzle which is the New Pact on Migration and Asylum.

The Pact is a comprehensive proposal presented by the European Commission in September 2020 that replaces the ad-hoc crisis management of the past decade with a set of clear-cut rules applicable to all member states.

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The reform’s central piece is a system of “mandatory solidarity” that offers countries three different options to manage migration flows: accept in their territory a number of relocated asylum seekers, pay €20,000 for the return of those whose applications are rejected, or finance operational support, such as infrastructure and personnel.

This system, which was preliminarily agreed upon in a breakthrough moment in early June, is supposed to function on a regular basis while the Crisis Regulation would be triggered only in extraordinary situations that pose a risk to the EU’s asylum system.

The text also introduces special rules to deal with episodes of instrumentalisation of migrants, like the border crisis that Belarus orchestrated in the summer of 2021.

The impasse around the Crisis Regulation had become a glaring omission in the bloc’s efforts to reform its migration policy and caused the frustration of the European Parliament, which last week decided to pause negotiations on two separate elements of the New Pact until member states unlocked the remaining piece.

“The Spanish presidency is the window of opportunity to conclude the Pact on Migration: it’s now or never,” Juan Fernando López Aguilar, the socialist MEP who acts as rapporteur for the Crisis Regulation, told Euronews.