Francesco Maiani

University of Lausanne

https://applicationspub.unil.ch/interpub/noauth/php/Un/UnPers.php?PerNum=44205&LanCode=37

Introduction

The Asylum and Migration Management Regulation (EU) 2024/1351 (hereafter AMMR) has superseded the Dublin III Regulation on June 12. As argued elsewhere, its provisions on responsibility allocation and secondary movements may exacerbate, rather than alleviate, distributive imbalances in the CEAS. Indeed, recent EU policy documents stress that the Pact has created new gatekeeping tasks for “Member States of first entry”, and that the permanent solidarity mechanism is meant to support “notably these Member States”, “balanc[ing]” their new challenges and responsibilities.

In the hopes of the EU legislator, the new solidarity mechanism has, indeed, wider significance for the CEAS: it should generate and sustain a virtuous circle (see recitals 2 and 3). The promise of predictable and significant solidarity should convince the first line States to embrace fully their (increased) responsibilities, and put an end to evasion measures such as the rather spectacular suspension of Dublin transfers by Italy. This should, in turn, reassure “inland” States wary of secondary movements, and allow them to fully embrace solidarity, sustaining the virtuous circle – in a nutshell, more solidarity for more responsibility, and the removal of the incentives to violate EU Law that have so undermined it on the ground. Of course, this can only work if the solidarity mechanism is indeed credible and predictable in the first place.

The new mechanism is built on a difficult compromise between Member States having fundamentally divergent interests and outlooks on the common asylum policy. Meant to be “mandatory” and “flexible” (see recital 22), it should provide a “predictable” insurance scheme to Member States under migratory pressure (see recitals 15 and 33), while providing acceptable options to all Member States, including those having the most vocally objected to certain forms of solidarity, particularly relocations.

I have described and commented the core rules on the “annual migration management cycle”, culminating in the yearly adoption of an Annual solidarity pool (ASP or Pool), in a previous post. The present post describes the first application of these rules up to the establishment of the 2026 Pool, which will be implemented in coming months. In doing so, I will proceed step by step, examining first the Commission “solidarity package” adopted in November 2025, and then the Council Implementing Decision establishing the Pact, adopted in December 2025.

This first run was bound to be somewhat special. On the one hand, the 2026 Pool will only be accessible for roughly seven months, starting in June, instead of a full calendar year. On the other hand, the “first” of anything as politically fraught as a solidarity mechanism in the field of asylum can be expected to be somewhat tentative. Therefore, we should be slow in taking the first decisions described below as representative of established practice. And yet, they do cast a light on a number of vulnerabilities of the system, and reveal a worrying tendence to disregard its core rules by the very actors that should uphold them.

The Commission package of November 2025

1. A brief reminder of the rules (and of their unclarity)

The procedure leading to the adoption of the ASP begins with the adoption of a Commission package including three closely related acts:

• An annual report assessing the situation over the past 12 months and forecasting trends (art. 9 and 10);
• A proposal for the Council implementing decision that will establish the Pool (art. 12). The size of the Pool – i.e. the annual numbers for each kind of solidarity contributions – must be commensurate to the needs of the Member States under pressure. It should also correspond to annual minimum thresholds for relocations and financial contributions of 30’000 and EUR 600 millions, save “in exceptional situations” (art. 12(2) and (4)).
• Third, a Commission decision (art. 11) identifying Member States “under migratory pressure”, “at risk” of migratory pressure, or “facing a significant migratory situation”.
  • There is “migratory pressure” when, over the 12 months prior to the Commission decision, the arrivals or applications of third-country nationals have been “of such a scale that they create disproportionate obligations” on a Member State, even for a “well-prepared asylum, reception and migration system” (art. 1 (24) and 11 (2)). Member States facing “large” SAR arrivals are to be considered under pressure, provided that these are of such a scale as to be “disproportionate” (Art. 11(3)). The Member States identified as “under migratory pressure” have a right to benefit from the Pool during the upcoming year and are automatically exempted from providing any solidarity contributions (art. 58 and 60(3)).
  • Member State “at risk” – a notion that the Regulation does not define … will only get an advantage should they ask to be recognised as “under pressure” during the upcoming year (art. 59(4) and 62(3).
  • Member States facing a “significant migratory situations” will have a chance of obtaining a deduction from their solidarity contribution during the upcoming year (art. 62). Such “situations” are those where “the cumulative effect of current and previous annual arrivals” leads a “well-prepared” system to reach the limits of its capacity (see also 10 (3)). The difference between a “significant situation” where a well-prepared system is pushed to its limit, and one of “pressure” where it is overmatched, may be quite fuzzy in practice, and there is no neat criterion to judge whether a system is “well-prepared”. Only thing is clear: “pressure” is gauged only based on the events of the last 12 months, whereas “significant situations” may be due to arrivals recorded on a longer time-span.

In spite of definitions and lists of criteria spanning several pages the Regulation leaves the Commission considerable latitude in all its determinations, and especially in deciding which Member States are under pressure, at risk, or faced with a “significant situation”.

On the one hand, the Regulation lists a “broad” array of relevant data (recital 28) without providing any structure. By lending more weight to this or that data, the Commission might conceivably take very different determinations on the same set of facts. The first Annual Report illustrates the point: it includes a long litany of unrelated and partially overlapping data (irregular border crossings, applications for protection, guesstimates on secondary movements, disembarkations, return decisions, etc) from which it is difficult to derive a clear picture and clear-cut conclusions – all the more so since the Commission has kept secret the statistical elaboration, analysis and projections it based on the raw data.

Secondly, the Regulation uses fuzzy wording on many critical points (a “large” influx, a “well-prepared” system, “disproportionate” obligations vs obligations reaching “the limits” of capacity, etc). On other issues the Regulation is silent or unclear: for instance, how far back can one count “previous arrivals” for the purpose of gauging “significant situations”? Are SAR disembarkations the basis for an independent “pressure” test under art. 11(3), or does that provision count as a substantiation of the general definition in art. 1(24)?

2. The Commission “methodology” to calculate migration pressure

In order to inject a measure of objectivity and transparency in the process, the Commission has prepared a “methodology”[1] in consultation with the Member States. This document clarifies some of the issues evoked before: “significant migratory situations” will be evaluated on data gathered in the last 5-year; “migration pressure” will be computed in two independent “strands”, one based on the all the indicators, the other exclusively on SAR disembarkations – a point on which I’ll return below.

On the whole, the methodology fails to provide even a modicum of clarity and predictability. For instance, after duly listing and weighting the main entries of the solidarity calculus, the methodology includes a set of “complementary factors” without specifying their relative weight. This voids the effort to publish a weighted list of criteria. As a second example, the Commission explains that States are “at risk of migratory pressure” when subjected to a “high but not yet disproportionate level of obligations” but refrains from stating where that all-important threshold may fall. Meanwhile, the clarifications that might have been expected on the key terms of the Regulation (e.g. what are a “well-prepared” system or a “large” influx?) are absent.

3. Implementing Decision (EU) 2025/2323: something for everyone?

Quite apart from the arcane methodology, the substance of the decisions taken by the Commission also raises some questions.

In a generalised context of declining migration pressure, four Member States have been determined to be “under pressure” – Greece, Cyprus, Italy and Spain (Commission Implementing Decision (EU) 2025/2323, OJ L 14.11.2025, recitals 4-5). While the conclusion rests on a broad factual basis for the two former States, the latter are included on the sole circumstance of having received approximately 40’000 SAR disembarkations each (recitals 8-9). Considering the population of both States, and irregular arrivals in past years, these are actually low numbers. By contrast, Member States having received a few hundred thousand applications in the past year or having hosted far larger numbers of beneficiaries of temporary protection are not included in the group. To the present author, this certainly casts doubt on the reasonableness of both the legislator’s choice of predicating “pressure” only on a 12-month time-period, and on the Commission’s interpretation of the Regulation in relation to SAR disembarkations.

Twelve more Member States are deemed “at risk” of migration pressure (recitals 10-13). This includes States that are exposed to the risk of “state-sponsored attempts to instrumentalise migration”, but have seen negligible numbers of arrivals in the past twelve months; a State at “risk” because of outbound irregular border crossings; not to mention States for which secondary movements are the key “risk”, determined in the acknowledged absence of “reliable information about the scale of the secondary movements”.

Lastly, six Member States are determined as facing a “significant migratory situation”, including four that are also “at risk of migratory pressure” (recitals 14-18). Mixed in the category are States having significant legacies from past years – with the obvious inclusion of Poland and the less obvious exclusion of Germany – as well as Member States having perhaps less evident credentials, such as Croatia, which was (sic) “impacted by a high number of refusals of entry”.

Concerning the size of the Pool, the Commission has defaulted to the thresholds of the Regulation, leaving it to Council to consider a resizing in light of the reduced duration of the first Pool. Of course, as discussed below, determining 19 out of 27 Member States as being under pressure, at risk of pressure, or as facing a significant situation does have consequences for the real size of the Pool. Furthermore, as also discussed below, the proposal put forward the idea of exceptionally relaxing the conditions for responsibility offsets as foreseen by the Regulation (“legacy offsets”).

The Forum and Council Decision of December 2025

1. A brief reminder of the rules (and of their unclarity)

Following the adoption of the Commission package, Member States must hold a pledging exercise within the Forum (art. 13 and 57(3)). According to the Regulation, the Forum will “consider” the Commission documents and “come to a conclusion” on the overall reference number for each solidarity measure “based on the Commission proposal”. Member States have the legal obligation to pledge their “mandatory fair share” of contributions, which is mathematically derived the overall reference numbers (art. 57(3) and 66). Each Member State explicitly retains “full discretion” as to the type of contributions – relocations, financial contributions, alternative solidarity measures – that it intends to pledge (art. 57(4)). This is the key “flexibility” within the “mandatory” system.

The Council formally establishes the ASP for the upcoming year, by qualified majority. Its decision is based on the Commission proposal, and while unanimity is usually needed to amend such a proposal (art. 293 TFEU), that is not the case here. Nor does the Commission proposal bind the Forum, which, as noted, must merely “consider it” and reach a conclusion “based on” it. While the Commission proposal is comparatively “weak” in the sense described, the conclusions of the Forum appear to have greater influence. Indeed, the overall reference numbers and the contribution due by each Member State, as established by the Council, must be “in accordance with the pledging exercise” (art. 57(1) AMMR).

The Regulation is famously unclear on the composition and inner deliberations of the Forum: does this body of “senior” policymakers (recital 24) “come to a conclusion” by majority or consensus? How far does its “conclusion” – which is to form the basis of Member States’ pledging – bind the Council? Council documents style the Forum as a preparatory body subordinate to COREPER, which speaks against its having formal decision-making powers and, even more, binding powers on the Council itself. Still, the Regulation makes it clear that the Council may not set overall numbers without going through the Forum and pledging exercise. Indeed, faced with insufficient pledges, it can only reconvene the Forum in an iterative process (see art. 13(4)).

2. The Decision establishing the 2026 Pool: reducing ambitions by half (and more)

Not much has been disseminated, at the time of writing, on the way in which the Forum has functioned. Something can however be surmised from the Implementing Decision establishing the Pool for 2026 (“the Implementing Decision”)[2] examined here.

As noted, the key policy decision entrusted to Forum and Council is determining the overall size of the Pool. The Implementing Decision lowers the numbers proposed by the Commission to 21’000 relocations and 420 millions EUR. This has been criticised as an “amendment through the backdoor” but I would disagree. The Council is not bound by the minimum thresholds laid down in the Regulation and is at liberty to deviate from the Commission proposal. Therefore, it had the legal right to establish lower numbers, and in this case also an acceptable reason, i.e. the shortened duration of the 2026 Pool (see recital 10 of the Implementing Decision).

Rather more importantly, the Implementing Decision reveals an important interpretive decision that is not limited to 2026: the overall numbers should not be read as 21’000 relocations and 420 million EUR, but rather as 21’000 relocations or 420 million EUR, each number representing the total value of the Pool expressed in either relocations or funding, with a “conversion” rate of 1 relocation x 20’000 EUR in line with article 12(2) and (3) AMMR. This is nowhere stated explicitly in the Decision, but mentioned in the accompanying Press Release. It is also a clear implication of the numbers set out in the Annex. Indeed, the total value of all pledged solidarity contributions, plus the value of all the “deductions” granted by the Council or unilaterally grabbed by two Member States – more on this below – amounts within a rounding error to 420 Mio or 21’000 relocations, at the stated conversion rate of 1 relocation x 20’000 EUR.

In other words, beyond the justified resizing of the 2026 Pool given the special circumstances recalled above, the Council interprets the Regulation in a way that reduces for all years to come the “default size” of the Pool to half of what most commentators including the Commission had assumed.[3] Is the Council right on this point of interpretation? The ambiguity of art. 12(2) AMMR suddenly comes into sharp focus: the provision’s wording pointedly refrains from stating that the minimum threshold is 20’000 relocations “and” 600 million EUR, preferring a more cryptic semi-colon. Be that as it may, the Council has opted for the least ambitious interpretation – one that is half as ambitious as the other possible interpretation of the text – and this is not a 2026 one-off.

3. “Amendments through the backdoor” aplenty

Apart from these two aspects, the Council Implementing Decision does contain “amendments through the backdoor” aplenty.

To begin with, under the Regulation, States facing a “significant migratory situation” must still pledge their contributions, and may only obtain a deduction during the upcoming year on a duly substantiated and examined request. Both recital 30 and art. 62 are unambiguous in this regard. However, as the Annex shows, the Council has authorized these States to pledge nothing, or less than their share. This may have been a way to accommodate national governments on record as saying they’d pledge nothing to the solidarity mechanism to assuage their electorates, but it is in open violation of the Regulation nonetheless. It is also inconsistent decision-making: Bulgaria and Estonia, also facing a “significant situation”, have pledged their full share or a reduced share; Member States under migratory pressure, which are properly speaking entitled to a full deduction under the Regulation, still pledged their shares.

Furthermore, and perhaps more seriously, while the Council graciously bestowed on some Member States an “exoneration from pledging”, Hungary and Slovakia decided to grab one for themselves. Indeed, the Annex duly lists their “fair share” of the Pool, followed by a “no pledge” entry. This is in clear breach of art. 57(3). While Slovakia appended a declaration[4] providing reasons for why it felt unjustly treated and why, alone with Hungary, it had voted against the Implementing Decision, there is not one shred of legal justification in either the Implementing Decision itself or in other declarations. At the time of writing, it is unclear what “zero pledges” means. Are Slovakia and Hungary (unlawfully) off the hook? Will they somehow be made to contribute their fair share? The only published information on the matter so far is that “the Commission will continue working to ensure that all Member States contribute to the Solidarity Pool”.[5] The two scenarios imply radically different understandings of the process. Under the first we must assume that, faced with deadlock, the Forum threw in the towel and acquiesced to illegal self-exonerations in order to reach consensus, as perhaps suggested by a despondent declaration by Spain.[6] We needn’t dwell on the massive free-riding incentive this would build into the system, and on the devastating damage it would do to its credibility. Under the second scenario, we would instead have proof that, faced with deadlock, the Forum has broken through and come to a non-consensual, majoritarian “conclusion”. This would be more promising for the viability of the mechanism, but it has yet to be seen if the two rebel States can be made to contribute their fair share. The stakes for the future of the mechanism could not be higher, and it will be extremely interesting to see what happens next.

Last but not least, following the proposal made by the Commission, recital 14 of the Implementing Decision rather nebulously foresees that – by bilateral agreement, and wholly outside the Regulation’s provisions – Member States targeted by secondary movements should be authorised to count as responsibility offsets cases in which they assumed responsibility in the past (so-called “legacy offsets”). The German Ministry of Interior has reportedly confirmed to media outlets that “not a single one” of the 4’555 pledged relocations will be implemented as such.

4. A vanishingly small Pool for 2026

This leads us back to the actual size of the 2026 Pool. On paper, the numbers are 8’921 relocations, 116.7 Mio EUR, and the equivalent of 63.44 Mio EUR in alternative measures. That’s a diminutive Pool, but it does not stop there. The pledged contributions of the States under migratory pressure should be considered as waived given their right to a full exemption. This amounts to 61.8 Mio in alternative measures, 42.04 Mio in financial contributions, and 42 relocations. Furthermore, the contributions pledged by Member States facing a significant migratory situation, or at risk of migration pressure, are serious candidates for at least a partial deduction: this involves 8’188 relocations, 51.44 Mio EUR financial contributions and 1.64 Mio EUR alternative measures. And this is without considering “legacy offsets”, which may lead to writing off at least 4’555 relocations.

In conclusion, quite apart from the legitimate resizing to what will be a reduced-duration first year, the Implementing Decision establishes what we can expect to be a vanishingly small 2026 Pool, while undermining the credibility of the process. It may well be that this represented the only viable compromise to preserve the system from an even more spectacular crash at the start. However, with all due allowances for the complexity of the task, it’s an euphemism to say that it’s not a promising start.

Concluding Remarks

Is the new solidarity mechanism the right “insurance scheme” for the CEAS? Will it be capable of solving the solidarity conundrum of the CEAS, allow Member States under pressure to implement the acquis in full confidence that they will not incur disproportionate liabilities, and ignite the virtuous cycle described in the Introduction?

The Regulation establishes a very complex process relying on negotiations and peer pressure. This is not surprising given the sensitivity of the subject and the difficulty of the legislative negotiations. Complexity is not necessarily a downside, either. To an extent, it is a corollary of flexibility, the latter being a desirable feature if Member States are all to contribute and pool together their resources. Still, it makes for a remarkably opaque and unpredictable process.

The published “methodology” of the Commission does little to improve its transparency, and its decision to distribute one form or another of “solidarity priority badges” to nineteen out of twenty-seven Member States, in a context of decreasing migration pressure, diminishes its credibility. Said credibility has been dealt a further, potentially lethal blow by the decisions taken by Forum and Council on the first run of the mechanism. Low overall numbers are not the main issue here, although the interpretation put forward by the Council, opting for a “half size” default Pool, is certainly worthy of note. The main issue is the Council’s (and Commission’s) cavalier attitude towards the rules established by the AMMR, not to mention their (apparent?) passivity in the face of a brazen refusal to comply by Hungary and Slovakia.

In light of the above one preliminary conclusion seems inescapable at this stage. Unless corrective action towards Hungary and Slovakia is taken, and unless the next reporting and pledging cycle rectifies the impression of ‘anything goes’ generated by the first one, the credibility and reliability of the solidarity mechanism will be nil. Discounting initial gestures of goodwill, such as Italy’s resumption of Dublin transfers, “frontline” States can hardly be expected to fall in line on the promise of such a shaky insurance scheme, and the reaction of the other Member States to persistent avoidance of the Dublin rules is predictable.^[7] Instead of “more solidarity for more” responsibility, we may end up back to square one with neither. Or to put it differently still: if things continue as they have begun, it will have been as if the mechanism had not been adopted despite the massive amounts of political capital invested in it. One can only hope that the Commission, Council, and Member States will be farsighted enough to see where the course they have taken at the end of 2025 is leading.

 

[1] Commission Staff Working Paper, ‘Methodology for the purposes of Commission implementing decision pursuant to Article 11 of Regulation (EU) 2024/1351 of the European Parliament and of the Council’ SWD(2025) 792.

[2] Council Implementing Decision 2025/2642, OJ L 23.12.2025

[3] https://ec.europa.eu/commission/presscorner/detail/en/qanda_24_1865 under the question ‘How do you calculate Member States’ contributions?’

[4] See Council document CM 5563/1/25 REV 1 of 5 January 2026, annex 2

[5] Commission Communication, COM(2026) 196 final, p. 17

[6] See Council document CM 5563/1/25 REV 1 of 5 January 2026, annex 3

[7] See Trauner/Lutz/Stutz (n 8) 10. See also Spain’s declaration, CM 5563/1/25 REV 1 of 5 January 2026, annex 3, para. 6.