Just one day after taking office, new Federal Minister of the Interior Alexander Dobrindt (CSU) ordered stricter checks at Germany’s internal borders. At the same time, he instructed the Federal Police to reject asylum seekers under § 18(2)(1) of the Asylum Act if they sought to enter Germany from a safe third country. Legal scholars had warned early on that this practice violates EU law and is clearly unlawful (see e.g. here and here). In three separate interim relief decisions, the Berlin Administrative Court has now ruled that the rejection of Somali asylum seekers at the German-Polish border was unlawful. However, the court’s decisions have not brought the practice to an end. Backed by Chancellor Friedrich Merz, Dobrindt announced immediately after the rulings that he would uphold his directive.

Does this amount to a case of “executive disobedience”? We spoke with Till Patrik Holterhus, Professor of Public Law at Leuphana Law School and co-editor of the book “Die schwache Gewalt? – Zur Behauptung judikativer Autorität” (The Weak Branch? – Asserting Judicial Authority).

1. Germany’s Federal Government argues that the decisions in question are merely individual rulings in interim proceedings. Others, however, see them as fundamental decisions with implications beyond the specific cases. What binding effect do the Berlin Administrative Court’s rulings actually have?

To begin with, it is correct that the material res judicata effect of these decisions applies only to the specific facts at hand – namely, the rejection of the three Somali applicants – and not to other cases. The material res judicata of rulings, including those in interim proceedings, is limited to the specific subject matter of the dispute. A ruling by an administrative court does not create a direct obligation for the losing authority to follow that decision in other, similar cases. In other words: an authority that loses a single case before an administrative court is not thereby required to revise its entire administrative practice.

2. Some are currently describing this situation as a case of so-called “executive disobedience.” What does that term mean?

“Executive disobedience” is a fluid concept that has not been conclusively defined in political theory or legal scholarship. It is generally used when an executive body disregards a binding court ruling in terms of its specific material res judicata effect.

One example of executive disobedience occurred in 2018 when the city of Wetzlar refused – despite clear administrative court decisions and, in particular, a definitive interim order by the Federal Constitutional Court – to allow the far-right party “NPD” to use the local town hall for its state election campaign, as required by the principle of party equality. Another example is the persistent refusal by the Bavarian state government to update the air pollution control plan for Munich’s city centre, despite repeated and explicit orders from the Munich Administrative Court and the Bavarian Administrative Court, which imposed fines and even threatened coercive detention. Both cases became well known due to the particularly open defiance of binding judicial decisions.

The situation we are dealing with here is different. The Federal Minister of the Interior has so far not indicated that he rejects the Administrative Court’s rulings on the unlawfulness of rejecting the three Somali applicants, nor has he obstructed the proper implementation of those decisions. Rather, he has simply stated that he will not take the Berlin court’s rulings as grounds to change the current rejection policy in other cases.

3. Many legal scholars consider the rejection practice a clear violation of applicable EU law. The Berlin Administrative Court also stated: “The Dublin III Regulation does not permit rejection without carrying out the full procedure it prescribes for determining the responsible Member State” (p. 14). Should this not be relevant to the question of executive disobedience?

Even if it seems like a fine distinction, two different categories of possible rule-of-law violations must be separated here.

One issue is whether the Federal Minister of the Interior is being accused of ignoring the material res judicata of administrative court decisions – such a case of executive disobedience does not apply here, as noted. It is another matter entirely if the minister is accused of knowingly ordering rejections that so clearly violate EU law that the unlawfulness is obvious – even without court rulings that specify it.

Both are serious allegations of violating the core rule of law principle that public authority must be bound by law – but they are not the same.

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4. What, then, should we make of the Minister’s announcement that he will not factor the Berlin court’s recent decisions into the future implementation of the rejection policy? That does raise some rule of law concerns, does it not?

Indeed, from a rule of law perspective, this is not unproblematic.

In a constitutional state governed by the separation of powers, the reality of law results from a combination of abstract legislative norms and their judicial interpretation.

Although the material res judicata of court decisions generally applies only to individual cases, it is correct in this context – especially in relation to top-level or final-instance rulings – to speak of fundamental judicial decisions and the establishment of general legal standards.

From a rule of law standpoint, it would therefore be problematic if a substantial part of the federal administration were to take the position that previous administrative court decisions need not inform its application of the law – particularly when those decisions clearly contradict the intended administrative practice.

A functioning constitutional state depends on the administration taking existing lines of jurisprudence seriously – even beyond their limited res judicata effect – and incorporating them into its policy decisions. Put differently: an administration that acts in full awareness that its measures will almost certainly be overturned by the courts in light of existing case law does not act in accordance with the rule of law, even if it believes that the conflicting judicial line is legally flawed.

Whether the three Berlin decisions, with their underlying EU law reasoning, establish such a line of case law is still unclear and will only become evident with further expected court rulings. I would therefore be cautious, for now, about accusing the Federal Minister of failing to respect relevant case law. But one thing is clear: the more court decisions conclude that the ordered rejections are unlawful, the more problematic it becomes to ignore those decisions in shaping future administrative conduct.

Even aside from the limited material res judicata of individual rulings, the tipping point into a structural violation of the rule of law would eventually be reached.

5. How would a system based on the rule of law sanction such a structural violation?

Beyond individual administrative or constitutional court review of specific actions, there are few legal mechanisms at the institutional level to address a ministerial policy that consistently contravenes clear lines of jurisprudence and is thus systematically unlawful.

Of course, the individuals involved are still subject to legal limits. The clearer and more foreseeable the violation, the more likely it becomes that legal liability could extend to both the police officers carrying out the policy and the Federal Minister who ordered it. But we are still far from reaching that point. Where there is doubt, a formal objection (“Remonstration”) by affected civil servants is currently sufficient.

More interesting, in my view, is to focus on another potential form of sanction or correction rooted in democratic representation. Every administrative practice ordered by political leadership carries, under the logic of democratic power retention, a political cost-benefit calculation. This applies – even regrettably – to cases of openly unlawful administrative practice.

As long as the threshold of individual criminal liability is not crossed, one can assume that the Minister’s decision to implement an unlawful administrative policy includes a political judgment about whether the move will win more votes than it risks losing.

Such an unlawful practice would only become truly “costly” for the Minister if continued legal violations not only lead to ongoing administrative court sanctions but also translate into measurable declines in public approval and expected electoral results.

In that sense, the rule of law must also be defended – perhaps decisively – in the political arena.

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Editor’s Pick

by KLAAS MÜLLER

Democracy is in crisis. Or is it? If majority rule still functions, isn’t it rather the liberal aspect of democracy that’s in crisis?

Crisis, one way or another. No wonder we might feel in crisis ourselves. To untangle a few knots, I recommend Uwe Volkmann’s article “Demokratischer Minimalismus” (Merkur, no. 912, May 2025). Volkmann explains why terms such as resilience are thriving – and why mere defense is not enough in the fight for democracy.

Perhaps the real issue is the constant rhetoric of crisis itself. Maybe what we need is a vibe shift in how we approach conflicts. I find myself asking: why do we despair over contradictions today, rather than embrace them as a source of insight?

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The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

Not everyone in politics seems to have taken note that the Berlin Administrative Court, in an interim ruling, found that the German pushbacks at the border violate European law (see interview above). We recommend the piece by MAXIMILIAN PICHL (GER) not only to them: he analyses the decision and explains why its implications go well beyond the individual case.

Political attention has shifted more toward another issue in asylum law: today, the Bundestag held its first reading of two draft bills: one would suspend family reunification for people granted subsidiary protection, the other would authorise the government to designate “safe countries of origin” via executive decree. VALENTIN FENEBERG (GER) argues: suspending family reunification misconstrues the nature of subsidiary protection, and defining safe countries by executive decree risks both opacity and insufficient legal reasoning.

Allegedly poorly reasoned asylum and migration standards have also prompted nine member states to send a letter to the European Court of Human Rights at the end of May. SILVIA STEININGER (ENG) compares this extraordinary move with previous instances of state criticism against the ECtHR and asks: what are human rights for, if not to protect foreign offenders?

On 19 May, Lithuania filed proceedings before the International Court of Justice (ICJ) against Belarus for the alleged smuggling of migrants. DANA SCHMALZ (ENG) examines the strengths of Lithuania’s legal argument – and what’s still missing: in particular, the problematic conflation of migrant smuggling with the political instrumentalisation of migration.

Another case recently concluded that also drew global attention. In what is arguably Germany’s most high-profile climate case to date, the Higher Regional Court of Hamm found that civil law can serve that purpose. Though the claim brought by Peruvian farmer Saúl Luciano Lliuya against RWE was ultimately dismissed, the court held that major emitters can, in principle, be held liable under German tort law for climate-related damages – a “success without victory,” as PAUL GRIMM and JAN-ERIK SCHIRMER (ENG) put it.

Nature could even make its way into the courtroom: following Spain’s adoption of Law 19/2022 in November 2022, ongoing criminal proceedings will now determine whether the legal entity “Mar Menor” can appear in court. FINN-LAURITZ SCHMIDT (GER) interprets the Spanish law and argues that the lagoon can take part in the proceedings through a so-called “acusación particular” – represented by others, but in its own name.

In response to the grave human rights violations in Gaza, the EU is now re-evaluating its Association Agreement with Israel. STEFAN LORENZMEIER (GER) examines what sanctions the EU may impose in cases of international law violations by its treaty partners.

How the West treats Gaza – and Ukraine – is reviving an old accusation with new intensity: that international criminal law applies double standards. International criminal law is grappling with its own credibility. ANDREAS PATETT (GER) explores what’s at stake – and what must change.

This week, ceasefire negotiations in Istanbul resumed in an effort to bring an end to Russia’s war of aggression against Ukraine. Previous talks collapsed when Putin refused to attend and reiterated demands long rejected by Ukraine, especially the demand to cede Ukrainian territory to Russia. CARNA PISTAN (ENG) warns: such a concession would reward constitutionalised historical revisionism as a geopolitical strategy and set a dangerous precedent in international law.

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A possible legal path forward may soon come from the European Court of Human Rights, which could issue its first compensation orders against Russia for its actions in Ukraine. If so, enforcement becomes key. Given Russia’s refusal to cooperate, claimants may attempt to enforce those orders in third states holding Russian assets – a promising though yet untested avenue, as ANTOINE DE SPIEGELEIR and BEINI YE (ENG) explain.

A refusal to cooperate has also long characterised Belgium’s approach to its colonial crimes in Congo – until now. The Brussels Court of Appeal has ordered the Belgian state to pay compensation to children of white fathers and Black mothers who were subjected to racial segregation during colonial rule. It’s a historic ruling – the first time a domestic court has held a state financially liable for acts that may amount to crimes against humanity in a colonial context. SOFIA VANDENBOSCH (ENG) explains the consequences.

No less consequential is Trump and Congress targeting nonprofits’ tax-exempt status, casting them as illegal or convenient tools to finance tax cuts for the rich. LLOYD HITASHI MAYER (ENG) maps the legal fault lines.

Trump also keeps targeting immigrants: Immigration and Customs Enforcement (ICE) has now begun apprehending noncitizens at immigration court – where individuals appear to seek humanitarian relief or defend against deportation – immediately after the government moves to dismiss their case. SHALINI BHARGAVA RAY (ENG) shows how using immigration court as a trap violates Due Process.

What, by contrast, is not a trap, is undercover integrity testing of public employees: In Cavca v. Moldova, the ECtHR has now given way for Member States to use those tests to fight corruption. TILMAN HOPPE (ENG) breaks down the ruling – and explains when such testing may cross the line.

And in yet another context, the ECtHR condoned being undercover: in the landmark ruling Russ v. Germany, the Court found that penalising a protester for wearing a makeshift visor breached his freedom of assembly – and reasserts the role of human rights law. JOHANNA BÜCKER (ENG) dissects the judgment from a European perspective.

In the context of prisoners’ rights, however, the ECtHR has quietly endorsed a troubling new practice: with its ruling in Tergek v. Türkiye, the Court denies prisoners access to information based on security concerns. For RUMEYSA BUDAK (ENG), the judgment signals a broader shift away from rigorous rights protection toward deference to state narratives.

Speaking of state narratives: Alongside its attacks on public media, Prime Minister Robert Fico and Interior Minister Matúš Šutaj Eštok have now presented a series of proposals for substantial changes to Slovakia’s electoral system that may mark another step in the government’s effort to restructure the political system. MAREK DOMIN (ENG) assesses their constitutionality and urges us to keep a close eye on what’s unfolding.

In the meantime, Mexico launched a historical electoral experiment: for the first time, voters elected their judges – a move hailed as a promise of greater judicial legitimacy and independence. JORGE GAXIOLA LAPPE (ENG) takes a closer look and concludes it will hardly live up to that promise.

Bulgaria, too, wants to let the people decide: After Bulgaria being on the verge of euro accession, on May 9, President Rumen Radev called for an unconstitutional referendum on the issue. BLAGA THAVARD (ENG) considers this to be a populist gamble, trading legal commitments and European credibility for short-term political gain.

Short-term seemed also the tactic employed by the Governor of Tamil Nadu who failed to act on ten bills. The Indian Supreme Court now limited the powers of governors and insisted on timely action.  SARTHAK GUPTA (ENG) unpacks the judgment.

This week, we launched our symposium on the “GEAS reform: Halfway to implementation” (GER). One year ago, the reform of the Common European Asylum System (GEAS) was adopted; in one year, it will enter into force. But reading through the more than 500 pages of legislation reveals numerous legal ambiguities and points of tension. So where do we stand at halftime? CONSTANTIN HRUSCHKA, ROBERT NESTLER and KATHARINA STÜBINGER open the symposium with an initial assessment. ANNA-LENA PRIEBE outlines the structure of the new, uniform screening procedure – one of the reform’s most significant changes – and highlights risks regarding deprivation of liberty, data protection, and legal safeguards. MAXIMILIAN PICHL and LISA STEURER examine the solidarity mechanism, through which the AMMR – replacing the Dublin III Regulation – introduces, for the first time, a tool to coordinate responses to situations of overburden. JULIA KIENAST analyses the new Crisis Regulation and welcomes it as a legal framework for coordinated responses in times of exceptional pressure.

Indeed, a legal framework for coordinated responses in times of exceptional pressure is precisely what we need. At the national level, our rule of law system provides just that. Now all it needs is people willing to put it into practice.

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That’s it for this week.

Take care and all the best!

Yours,

the Verfassungsblog Team

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The post “The Rule of Law Depends on Administration With Integrity” appeared first on Verfassungsblog.