One crucial piece is missing from the debate over Ceuta.
Since 1 July 2026, the EU has had a dedicated legal instrument to address the possible instrumentalisation of migration by third countries: the Crisis and Force Majeure Regulation (Regulation (EU) 2024/1359).
Five weeks after becoming applicable, Ceuta became its first major real-world test. Yet Spain never publicly requested that the European Commission assess the applicability of the Regulation, and the Commission never explained whether it had examined the case or considered proposing its activation to the Council. That silence is revealing during and in the aftermath of the Ceuta’s temporary migration crisis, notably during this week’s Justice and Home Affairs Council, where the instrument was not even mentioned.
A law built for exactly this scenario
The Regulation’s genesis can be found in the EU’s response to Belarus’s 2021 weaponisation of migrants against Poland, Lithuania and Latvia. It forms part of the New Pact on Migration and Asylum and was designed to provide a common legal framework when a third country deliberately uses migration to exert political pressure on the Union or one of its Member States.
Article 1 expressly covers situations of “instrumentalisation”. The Regulation defines this as a situation in which a third country or hostile non-state actor encourages or facilitates the movement of third-country nationals towards the EU’s external borders with the aim of destabilising the Union or a Member State.
The circumstances surrounding Ceuta inevitably raised that question. The scale and timing of the crossings, together with Morocco’s apparent inability or possible unwillingness to prevent them, made the new Regulation directly relevant. Whether its legal threshold was ultimately met is for the Commission to assess in the first instance, on the basis of information provided by the affected Member State and any other relevant evidence. If it concludes that the conditions are fulfilled, it may propose activation of the Regulation to the Council.
It is therefore difficult to argue that the issue did not deserve serious consideration. And yet the Regulation wasn’t even mentioned once, and was largely neglected by the media analysis.
The contrast with Belarus is striking. Then, the EU rapidly recognised instrumentalisation, condemned Minsk and mobilised political solidarity. In Ceuta, the legal framework already existed, yet it never entered the public conversation.
Why did the Regulation remain unused?
The reasons appear to have been political as much as legal.
First, Morocco is not Belarus. Spain’s cooperation with Rabat on migration, returns, counter-terrorism and border management is indispensable. Formally assessing Morocco’s conduct under a Regulation designed for situations of instrumentalisation would have carried significant diplomatic consequences.
That does not necessarily mean Morocco deliberately engineered the crisis. The geography of Ceuta, the extraordinary concentration of people around Fnideq during the summer, and the operational constraints facing Moroccan security forces may all have contributed to the events. If that was indeed the assessment, the legal threshold for instrumentalisation may simply not have been met.
Second, the political debate quickly shifted elsewhere. Much of the discussion focused on Spain’s regularisation policy as an alleged “pull factor”. Whatever one thinks of that policy, it cannot explain why tens of thousands of people converged on a single border crossing within a matter of days. The new Regulation was designed precisely to examine the role of third countries in situations like these. Instead, the debate became a referendum on Spain’s domestic migration policy.
Finally, what was fundamentally a European border crisis was reframed as a Spanish management problem. President von der Leyen expressed support for Spain’s handling of the situation, but neither she nor the Commission referred to the Regulation. Once the crisis was treated primarily as a matter of operational border management, the EU’s dedicated legal instrument disappeared from view.
What this means
The EU’s first purpose-built instrument against migration instrumentalisation remained absent from the first major crisis for which it appeared potentially relevant.
Perhaps there were good legal reasons not to activate it. Perhaps the available evidence did not support a finding of instrumentalisation. Or perhaps the political costs of formally scrutinising Morocco’s conduct were simply too high, given Europe’s deep dependence on cooperation with Rabat on migration management.
Whatever the explanation, the absence of any public legal assessment is striking.
This question should have been central to this week’s Justice and Home Affairs Council. Instead, ministers discussed Frontex, returns, border controls and smuggling networks (the operational toolkit) while the one legal instrument specifically created to address the possible instrumentalisation of migration was never mentioned.
That omission raises a broader question about the credibility of the EU’s migration governance. If the Union creates legal instruments for exceptional situations but never publicly explains why they do or do not apply when the first major test arrives, legal certainty gives way to political discretion. And in migration policy, where the EU depends heavily on cooperation with third countries such as Morocco, that tension is likely to recur.
The risk that that this Regulation won’t ever find application appears more likely to occur than its swift implementation.