The European Commission is no longer in charge. Since the 2015 asylum crisis, it has been observed that the Commission is losing ground on asylum policy, becoming less a leader in the construction of the Common European Asylum System (CEAS) and more a follower of the EU Member State governments eager to assert their own national interests. This governance shift is most spectacular in the return policy, the most controversial and politically sensitive part of the CEAS. While Article 17 of the Treaty on European Union mandates the Commission to preserve the general interest of the Union, its near-monopoly on initiating legislation has effectively been seized by national governments.
Originally, Member States accepted to surrender certain aspects of their sovereignty, shifting asylum policy from intergovernmental cooperation to supranational integration. This integration, initiated by the Treaty of Amsterdam and reasserted in the Treaty of Lisbon, aimed to harmonize rules in compliance with EU and international laws. By establishing a common, stable procedure, the Union hoped to ensure a uniform response across all borders. However, the 2015 surge of asylum seekers exposed the fundamental flaws of this common system. Member States struggled to repatriate illegally staying migrants because return is, by nature, something a state cannot achieve unilaterally. The primary condition for a successful return is the willingness of the destination State to readmit its own nationals.
This logistical failure created a political deadlock and a conflict between the Commission’s duty to preserve European values and the Member States’ push for “effectiveness” (an elusive notion par excellence) ; in June 2018, the European Council underlined “the necessity to significantly step up the effective return of irregular migrants“. In this context, preserving European values means upholding the Charter of Fundamental Rights, specifically by preventing systematic push-backs that would violate the legal right to asylum under Article 18 and the prohibition of collective expulsions under Article 19. This tension materialized in the recent debate over “return hubs”—the transfer of migrants to third countries regardless of whether they originated from or transited through them. In 2018, the Commission refused to accept such “innovative” solutions, judging it unlawful under EU law to send individuals against their will to countries with no connection to them.
However, as far-right parties gained momentum, the Commission’s position crumbled under the weight of national agendas. On October 4, 2024, a group of 17 countries issued a “non-paper” demanding a new legislative proposal for more effective returns. This document, titled “Objectives for a New Legislative Proposal for More Effective Returns“, emphasized the lack of efficiency under the current Return Directive and called for an updated legal framework. The pressure was so heavy that President Ursula von der Leyen issued a letter just ten days later, proposing ten points of action, including “innovative ways to counter illegal migration”. She explicitly planned to “address the proposals many Member States have made”, referring to the demand issued in the “non-paper”. This surrender culminated in the 2025 Return Regulation proposal, which now provides the legal basis for these transfers.
By incorporating these hubs into its own rhetoric and policies, the Commission is no longer serving the general interest of the Union, but rather the fragmented interests of individual Member States. This shift creates a dangerous paradox because these so-called “innovative solutions” predominantly rely on the willingness of third countries. In other words, Member States will likely continue to negotiate bilateral readmission agreements independently, creating a patchwork of procedures across the Union. There is no evidence that such bilateral agreements will automatically be conducive to the creation of return hubs in third countries. What is, however, likely is that the current drive for return hubs will reinforce the leverage of some third countries in their interactions with the EU and its member states.
These developments demonstrate that the Commission no longer functions as the “guardian of the Treaties” and has become a mere instrument for national agendas on return procedures. When a group of countries can force the Union’s executive power to reverse its legal position on human rights and lawfulness, the principles of supranational integration are abandoned. Ultimately, by allowing Member States to dictate the legislative initiative toward fragmented externalized solutions, the Commission is leading the EU’s return policy toward an inevitable failure.
