Reviving the Promise of Schengen

The EU Treaties are not shy when it comes to making grand promises. Take Article 3 (2) TEU for instance, which stipulates that the EU proffers an area ‘without internal frontiers’. While, technically speaking, borders continue to exist within the EU, it is true that they have become largely intangible inside the Schengen area. This may reasonably be viewed one of the greatest achievements of European integration. Solemnities aside, however, this promise has been called into question in recent years.

Austria was among the group of Member States that had reintroduced internal border controls in September 2015, perpetually prolonging checks until this very day. Against this backdrop, the ECJ has been called to pronounce itself on the compatibility of such a practice with the rules of the Schengen acquis and the very idea of Schengen as an area with internal border controls abolished. On Tuesday, its judgment was finally pronounced. In Landespolizeidirektion Steiermark, the Court takes a bold and unswerving stance regarding Member States’ practices, ruling, to that end, that Austria’s practice of continued border controls was incompatible with Union law.

The Court’s reasoning is remarkable in at least three respects. First, it effectively puts a halt to Member States’ practices of treating Schengen as their quasi-sovereign domain (1.). Second, it appears to pillory the Commission’s inaction in relation to those practices (2.). Third, the Court expressly pronounces itself on the compatibility of that measure with Union law, thus departing from a more deferential stance characterising previous judgments in the field. This may be read as a relatively overt hint at those Member States that still have border controls in place, including Germany, Sweden, Denmark, and France (3.). In the aggregate, the judgment in Landespolizeidirektion Steiermark marks a strong judicial intervention incentivising a return to the principled absence of internal border controls in the Schengen area.

Borders Are No Quasi-sovereign Domain of Member States

In the aftermath of the so-called migration crisis, some Member States have gone to great lengths to practically reintroduce border controls on a permanent basis. For that purpose, governments have adopted a legal strategy that strings together several periods of permitted internal border controls, utilising different legal bases to that end. Austria, for instance, had introduced and prolonged internal border controls ever since 2015, relying on both Article 25 as well as Article 29 of the of the Schengen Borders Code. From November 2019 onwards, however, Austria merely relied on Article 25 thereof, which sets a strict six-month maximum period for such controls. Instead of terminating internal border controls after the expiry of this period though, the Austrian government argued, in essence, that it simply applied Article 25 anew every time the six-month period had passed. This constitutes a legal fiction according to which a ‘fresh assessment of the earlier threat should also enable fresh application of the relevant provision’ (para. 55). If accepted, such an argument would effectively undo any of the time limits enshrined in the Schengen Borders Code.

Unsurprisingly, the Court begged to differ. By highlighting that the wording and context of Article 25 (4) of the Schengen Borders Code precludes the successive reactivation thereof, the Court held that the six-month maximum period is mandatory and that any prolongation exceeding that period would be incompatible with the Schengen Borders Code (para. 78). While Member States may admittedly reintroduce such controls in the light of a new threat to public policy or internal security, this should not be misread as a blanket check. Rather, the Court emphasised that Member States are obliged to demonstrate the existence of such a new serious threat and that it accordingly does not suffice to carry out a new assessment or to find new elements to the same threat (para. 79).

On an intermediate level of abstraction, the Court’s judgment sends a strong reminder to Member State capitals that the Schengen acquis is not simply a vestige of its intergovernmental past. Rather, as an integral part of supranational law, the governmental decision whether to introduce internal border controls is subject to supranational instructions and limits, particularly, the principle of proportionality as well as, procedurally, the maximum time periods laid down in Article 25 (4) of the Schengen Borders Code. Against this backdrop, the Court’s judgment is a welcome intervention reminding national governments of the fact that borders are no quasi-sovereign domain.

The Court’s reasoning focuses on two aspects: first, the exceptional nature of border checks in the Schengen area and, second, the possibility of departing from binding supranational law in times of a severe crisis by virtue of Article 72 TFEU. In the first place, the ECJ appears to take issue with the fact that rule and exception are reversed, at least at some internal borders. Based on a contextual reading, it highlights that the possibility of introduced internal border controls, as an exception to a general rule, must be interpreted strictly. As a corollary, it cannot be accepted that Member States effectively circumvent time limits or disregard the proportionality requirements enshrined in the Schengen Borders Code.

In the second place, the Court used this opportunity to pronounce itself on Article 72 TFEU and its capacity to form an inroad for the disapplication of binding supranational law in times of severe crises (paras. 83 et seq.). Understandably, this provision has been in the special interests of several Member State governments recently, including Hungary and Poland in their attempts to effectively sidestep the so-called refugee relocation mechanism. Since Article 72 TFEU highlights that the maintenance of law and order and the safeguarding of internal security continues to be a responsibility incumbent on the Member States, it has been purposively interpreted by some national governments (including, in Landespolizeidirektion Steiermark: the German government) to allow for a derogation from binding Union law in times of severe risks for public order or internal security.

In the context of the Schengen Borders Code, however, the Court highlighted that such an argument does not hold water. Rather, the grand chamber stressed that ‘a fair balance’ must be struck between Member States’ possibility to adopt appropriate measures to safeguard internal security and public order (para. 88) and the objective of establishing an area without internal frontiers and, by extension, the free movement of persons. Against this backdrop, the provisions allowing for a temporary reintroduction of internal border controls, subject inter alia to certain maximum time limits, are aimed at establishing such a balance precisely. Accordingly, the Court concluded that the EU legislature took due account of Member States’ responsibilities in this regard, to the effect that they may not rely on Article 72 TFEU to derogate from mandatory procedural safeguards in Union law, such as the maximum time limits in the Schengen Borders Code.

What’s the Matter, European Commission?

In a sense, it is astounding that the practices of perpetually prolonged internal border controls have reached the Court only after years of legal twilight. One could assume that the Commission, as the guardian of the Treaties, should have had an interest in bringing the matter to the attention of the Court much earlier. Despite some recent indications pointing to the contrary, however, the Commission still appears to be reluctant to do so. Instead, the Commission’s inaction stands in stark contrast to the efforts of the applicant in the main proceedings, for whom it took an impressive amount of civic intransigence and strategic foresight to have the case be brought before the ECJ in a preliminary reference procedure. The Commission, so it seems, could have certainly taken a leaf out of his book in this regard.

This being said, the Commission’s inertia did not go unnoticed in Landespolizeidirektion Steiermark. The Court highlighted that the Schengen Borders Code establishes a procedure whereby the Commission is required to issue an opinion if it has doubts regarding the proportionality of a planned reintroduction of internal border controls. The Commission, however, has not issued such an opinion regarding the practices of Austria. This is particularly irritating since the Commission itself had posited the view, during the litigation, that the internal border controls reintroduced by Austria were incompatible with the Schengen Borders Code (para. 91). This is as close as it gets to the Court openly criticising the Commission for its inconsistency. It stresses that ‘it is essential, in order to ensure the proper operation of the rules established by the Schengen Borders Code, that, when a Member State wishes to reintroduce internal border control, both the Commission and the Member States exercise the powers conferred upon them by that code’, including the exchange of opinions. If the Commission is of the view that a national measure is incompatible with the principle of proportionality, at a bare minimum, it should communicate its view to the Member State concerned.

The Compatibility of Border Controls with Union Law

Lastly, in Landespolizeidirektion Steiermark, the Court explicitly pronounces itself on the substance of the question whether Austria’s practice of reintroduced internal border controls may be compatible with the Schengen Borders Code. In the context of a preliminary reference procedure, this is far from evident. The Court’s earlier jurisprudence on internal border controls, for instance, was notably deferential, to the effect that the implications of its interpretation were principally left to the referring national court. In the present case, however, the ECJ endorsed the view put forward by the Commission, suggesting that Austria did not demonstrate the existence of a new threat that would have justified the re-introduction of internal border controls. While the Court is fast to add that this matter should be for the referring court to determine, it seems hard to imagine that the Austrian regional administrative court would arrive at a different conclusion once the ECJ has pronounced itself on this matter.

Accordingly, it can be concluded that the Court’s judgment in this case constitutes a significant and unprecedented supranational judicial intervention to the possibility of Member States to carry out border checks. By highlighting that Austria’s practice appears to be incompatible with the Schengen Borders Code, it sets an example for other Member States. On the one hand, the implications that such a judgment creates for other Member States may not always be easy to anticipate. On the other hand, it can safely be presumed that the Court’s interpretation in Landespolizeidirektion Steiermark will exert pressure on other governments to lift internal border controls. Above all, this applies to the group of Member States that has introduced internal border controls since autumn 2015, essentially keeping these controls in place to this very day. Through its intervention, the Court therefore appears to pave the way for a return to a Schengen area in which internal border controls are abolished in practice – thereby catering to the fulfilment of one of the core promises of Union law.