European Court of Justice: Controls at the Schengen borders may not be extended arbitrarily

Some EU members still control their internal borders excessively. However, exceeding the time limit of six months is incompatible with the Schengen Borders Code. Governments and the EU Commission must now react.

The lifting of internal border controls is often praised as the greatest achievement of the European Union. However, especially for migration control, many countries have made use of the possibility of temporary reintroduction and have extended this regulation, sometimes dozens of times. This is contrary to EU law, ruled the Court of Justice of the European Union (ECJ) in Luxembourg last week.

The case was brought by the Austrian citizen N.W., who refused to show his passport at a checkpoint at the Slovenian border in Austria and was ordered to pay a €36 fine for this according to a court ruling. In a second case, W. challenged the judgement. The Regional Administrative Court of Styria therefore referred the matter to the ECJ for a preliminary ruling. Now the courts in Austria have to deal with it again.

Reaction to the „Arab Spring“

Austria was one of the six countries that, in view of high refugee numbers on the so-called Balkan route, has been controlling its land borders again since 2015. This was made possible by a revision of the Schengen Borders Code (SBC) two years earlier. A newly introduced Article 29 has in 2013 allowed the temporary reintroduction of internal border controls for an initial period of six months.

The EU member states thus reacted to the so-called „Arab Spring“. After the fall of their dictators, Libya and Tunisia, for example, had neglected to control their maritime borders. As a result, thousands of people also from other African countries tried to cross the Mediterranean by boat and apply for asylum in the EU.

Many of the refugees travelled on to France after arriving in Italy. These „secondary movements“ led to tensions between the two states. The government in Paris ordered the closure of the southern land border with Italy, while Rome demanded a solidarity mechanism for the asylum seekers from the EU.

Governments find new reasons

The subsequent revision of the SBC provided for an extension of the control period to a maximum of two years. The prerequisite is that a majority of the EU Council of Ministers recognises a „systematic threat“ to the Schengen zone. Such a decision was first and only taken at the beginning of 2016 in the face of increasing numbers of refugees arriving in Greece. Subsequently, Germany, Austria, Denmark, Sweden and Norway had based the controls introduced at some of their land borders on it.

The reintroduction and extension of controls over several months is also possible for other reasons. After several attacks, France, for example, justified this with a continuing terrorist threat. Many other countries also closed their borders because of health risks in the wake of the Corona pandemic, but only Finland still maintains them today.

After Germany, Austria and the three Nordic states had exhausted the triple chain extension of migration control checks, they used a new justification from 2018. From then on, the governments claimed a „serious threat to public policy and internal security“, invoking Article 25 SBC. Austria also recognised a risk of organised crime from 2019 onwards, and Denmark later joined in.

German government extends controls until November

However, the total period within which controls under Article 25 SBC can be reintroduced at internal borders is also a maximum of two years. This has now been confirmed by the Grand Chamber of the European Court of Justice in its judgement. Accordingly, the regulation is to be interpreted very narrowly with regard to the duration of the controls. Even a one-time extension because of the same threat could violate EU primary law.

It is unclear how the countries will react to the ruling. Germany extended the control period for the Bavarian-Austrian border by another six months two weeks before the ECJ ruling, as did Denmark.

Raphael Bossong, who wrote a study on the implementation of the Schengen Borders Code for the German Institute for International and Security Affairs (Stiftung Wissenschaft und Politik), believes that the German government has a duty. The preliminary ruling „clearly proves that the internal border controls, which five other Schengen states have also maintained since 2016, are not sufficiently justified or have violated the Schengen Code since the end of 2017 at the latest“. This applies in particular to border controls for the supposed „preservation of public order“.

„Dragnet controls“ instead of chain extensions?

Actually, the Commission should act as „guardian of the EU Treaties“ and demand the immediate withdrawal of the controls. So far, however, no public statement from Brussels is known.

In December, the EU Commission presented a draft reform of the SBC, which is currently being discussed by the member states in the Council. It continues to talk about up to three chain extensions of internal border controls.

Admittedly, the requirements for this are set higher. However, the draft also contains proposals for „alternative“ measures, including the general expansion of police cooperation and targeted police checks at the internal borders, as has been common practice in Germany for many years as „dragnet controls“.

Image: German Federal Police.

Autor: Matthias Monroy

Knowledge worker, activist, editor of the German civil rights journal Bürgerrechte & Polizei/CILIP.