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Schengen states extend border checks, ignoring EU court

November 17, 2022

Though the top EU court recently ruled that Germany, Denmark and other Schengen states have no legal basis for extending border checks reimposed in 2015, the European Commission is not initiating infringement procedures.

Masked border police officer leans into the window of a car where a masked woman sits
Border police check people returning from Tirol at the Germany-Austria borderImage: Frank Hoermann/SVEN SIMON/picture alliance

According to the Schengen Agreement, people and goods may freely cross the borders of the 26 signatory countries without any checks or requirements. Internal border controls within the Schengen Area can only be reintroduced as a last resort in response to serious threats to domestic security.

Citing concerns about migration and/or terrorism, however, Germany, Austria, Norway, Sweden, Denmark and France have kept border controls in place continuously since displaced people began arriving to Europe in increased numbers in 2015. The countries have just prolonged checks along parts of their borders for another six months. 

Checks usually focus on parts of the border that are on routes commonly used by migrants: Germany, for example, monitors some crossings at its border with Austria, and Austria, in turn, checks people coming from the south, mainly through Slovenia or Hungary. This does not necessarily mean that police check every person passing through the border. Countries might perform spot checks instead, or rely on automated surveillance systems. 

That's the second extension since the European Court of Justice ruled in April that temporary reintroductions of border controls may not last longer than six months per announced threat. 

The court did not rule directly on whether the border controls in the six countries were legal. Instead, it clarified its interpretation of the Schengen Borders Code, according to which only new threats can justify extensions beyond six months. The Schengen Borders Code is considered a binding law for the 22 EU countries who have signed on, as well as Iceland, Liechtenstein, Norway and Switzerland.  

The court did not rule directly on whether the border controls in the six countries were legal. Instead, it clarified its interpretation of the Schengen Borders Code, according to which only new threats can justify extensions beyond six months. The Schengen Borders Code is considered a binding law for the 22 EU countries who have signed on, as well as Iceland, Liechtenstein, Norway and Switzerland, aDW analysis from 2019 had found.

'Too politically sensitive'

It would usually be the role of the European Commission to admonish member states for breaching EU laws. Such infringement proceedings can lead to heavy financial sanctions. In 2018, for example, Spain had not fully implemented rules mandating that all EU citizens have access to reasonably priced bank accounts. The Commission ordered Spain to pay €50,000 every day until it could implement a national law conforming to the rules.

The Commission has not launched infringement procedures against any of the relevant member states for continuing the border controls. "The issue is just too politically sensitive," said Leon Züllig, a research assistant at the Chair for Public Law, International Law and European Law at Justus Liebig University Giessen, who is writing his dissertation on the EU's internal borders. "The member states and their ministries of the interior would be furious."

The European Commission did not respond to requests for comment by DW. In a hearing with members of the European Parliament in January 2021, the Commission argued that adapting the rules might be a better solution than initiating infringement procedures. It acknowledged that member states were not complying with the rules, but offered that the rules themselves might be inadequate.

The Commission's recent State of Schengen report lists "lifting all long-lasting internal border controls" among its priorities for 2023.

It appears that the Commission intends to try to convince member states to voluntarily stop controls through changes to the Schengen Borders Code. A first draft of such a reform failed in 2017 because the Council of the European Union, a roundtable of relevant ministers from member governments, did not support it.

Proposed changes require mass surveillance

The latest proposal by the Commission would introduce a range of changes to the rules governing the Schengen Area. Notably, it aims to expand the range of "alternative measures" that member states can introduce instead of border controls. In consultations about the reform, member states specifically requested that technologies currently only used at the EU's external borders be applied within the Schengen Area, as well.

Such technologies would include automatic surveillance and data collection by authorities through, for example, analysis of Passenger Name Record and Advanced Passenger Information data. This adds up to what Leon Züllig calls an "invisibilization" of border controls. "From the point of view of fundamental rights, these measures are perhaps even more dangerous than a physical barrier," he said, "because they are ultimately relying on a kind of mass surveillance — including of EU citizens."

These alternatives might also increase the risk of discrimination at the border. PICUM, an NGO dedicated to safeguarding human rights of undocumented migrants, voiced concerns that the proposal opens the door to racial profiling. The organization also refers to reports showing that surveillance technologies replicate and enshrine biases against marginalized people.

The proposal now lies with the European Parliament’s Civil Liberties, Justice and Home Affairs Committee, which has just presented its draft report. The report suggests deleting some the relevant sections of the proposal, warning that "permitting more checks that will look and feel like border control does not match with the aim to offer EU citizens an area of freedom, security and justice without internal frontiers."

Juan Fernando Lopez Aguilar, the chair of the committee, also told DW: "Any technological developments must be consistent with the Charter of Fundamental Rights and the EU data and privacy standards, which are the highest in the world." The European Parliament has criticized the ongoing border controls in the past, and has generally supported free movement over increased national security.

It remains to be seen whether those suggestions, in turn, will be accepted by the Commission and the EU member states.

For now though, border controls in the free movement area will now enter their eighth consecutive year — with no consequences in sight.

Edited by: Milan Gagnon, Peter Hille, Gianna Grün

Note: This article has been updated on November 24 to include more detail on the scope of the border controls.

Correction from November 29:

The Commission did reply to DW’s questions after publication.

On why it had not initiated infringement proceedings against any of the member states with long-lasting internal border controls, a spokesperson told DW:

“We have consistently made clear that temporary controls may only be used in exceptional circumstances to provide a response to situations seriously affecting public policy or internal security and where no equally effective alternative measures are available. As a last resort measure, such controls should last only as long as the extraordinary circumstances persist. (...) We are working with the European Parliament and the Council to address this issue as part of the ongoing negotiations on updating the Schengen Borders Code. (…) Our approach has focused on working with member states to address long-lasting reintroductions of controls at internal borders. This has included: Promoting alternatives to border controls, as e.g. reinforced police cooperation, engaging in close technical and political dialogue with the member states concerned, and proposing a more structured procedure for any reintroduction of controls at internal borders.”  

On the concerns regarding the alternative measures that would not be considered equivalent to border controls under the reform proposal of the Schengen Borders Code, the spokesperson told DW:

“It is for the legislator to provide the necessary safeguards against racial profiling and other discriminatory practices when drafting legislation allowing for such checks. When applying the Schengen Borders Code, member states must act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union.”


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