EU’s Highest Court Says Prolonged Border Controls Are Against Schengen Code /news/eus-highest-court-says-prolonged-border-controls-are-against-schengen-code/ 27/4/2022

The Court of Justice of the European Union, which is the EU’s highest court, has noted that internal border controls reintroduced for periods longer than six months are against the Schengen Regulation, and as such, illegal.

The Court has issued such a judgement on Tuesday, April 26, after a traveller who was fined €36 at the Spielfeld border crossing point, when travelling to Austria from Slovenia, in November 2019, had taken the issue to the Regional Administrative Court, Styria, reports.

The traveller had been fined for refusing to present a passport at this border point, telling the border guards he did not have to do so as they were contrary to the Schengen Borders Code. After the Regional Administrative Court, Styria had its doubts on the issue, it took the case to the Court of Justice.

In its judgement published on Tuesday, the Court notes that while the Member States are permitted to reintroduce border controls in cases when there is a serious threat to their public policy or internal security, the same cannot exceed a maximum total period of six months.

The EU legislature considered that a period of six months was sufficient for the Member State concerned to adopt, where appropriate in cooperation with other Member States, measures enabling such a threat to be met while maintaining, after that six-month period, the principle of free movement,” the Court notes in a press release regarding the judgement on this issue.

The Court, however, notes that it is possible for the Member States to prolong internal border controls for periods longer than six months, when a new threat is detected, that is different from the threat initially identified as a result of which the first controls where imposed.

The extension of the border controls for a maximum of two years should also be possible, the Court notes, on the recommendation of the EU Council, in exceptional circumstances when a particular threat is putting the functioning of the Schengen area at risk.

After the end of those two years as well, the Member State concerned may, where it is faced with a new serious threat to its public policy or internal security and all the conditions imposed by the Schengen Borders Code are met, immediately reintroduce border control for a maximum total duration of six months,” the Court explains.

Regarding the case of the traveller that was fined in 2019 while crossing the border to Austria, the Court claims that the Member States cannot oblige a traveller to present a passport or identity card on entry, threatening with penalties, in cases when the border controls have been reintroduced against the Schengen Borders Code.

Austria had first reintroduced border controls with Slovenia and Hungary in September 2015, amidst a wave of migration from Syria and threats of terrorist attacks. Since then, border controls have continuously been extended.

In mid-April, reported that Denmark had extended the existing border checks, which were set to expire in May, for another six months. The same have been in place and continuously extended, since 2016.