Waste of paper or useful tool? The potential of the temporary protection directive in the current "Refugee crisis"

The Council Directive 2001/55/EC on temporary protection in the event of a "mass influx" of displaced persons provides for a mechanism that shall lead to collaborative efforts of the European Union Member States in dealing with persons seeking protection in Europe. In spite of the current "refugee crisis", not even those Member States which have admitted the largest numbers of persons, such as Germany, have made any attempts to trigger this Directive. The article first assesses the applicability of the Directive with respect to the surge in arrivals in 2015, and then analyses the reasons for its non-application on the basis of rational choice theory. It concludes that the benefits resulting from an application of the Directive are minimal while transaction costs to reach agreement in the Council are high. Thus, those countries affected by "mass influx" lack the incentives for triggering its mechanisms, and the Directive can be considered a failed instrument.