Study shows: German internal border controls partly contrary to EU law

I have commissioned a critical analysis of Germany's internal border controls for the Green Group in the European Parliament to see whether they are compatible with EU law. You can read the whole study here on German and English read.

The current situation in the Schengen area

The absence of internal border controls is a fundamental principle of European law and the basic principle of the free Schengen area. Although internal border controls in the Schengen area should therefore be a strict exception, there has been a massive increase in these controls in Germany and other member states since 2015. According to the German government, the main reasons for this are more irregular migration, the threat of terrorism and the coronavirus pandemic. However, the question arises as to what extent the reintroduction of these internal border controls is compatible with EU legal obligations.

When internal border controls are permitted

The Schengen Borders Code only allows internal border controls in exceptional situations, for example if there is a threat to the security and order of a Member State. However, internal border controls may only be used as a last resort and may only be reintroduced temporarily, as the European Court of Justice (ECJ) has also confirmed.

The practice in Germany

Germany does not always seem to adhere to these regulations. The various federal governments have repeatedly extended internal border controls, especially at the border with Austria, since 2015. This is a clear violation of EU law. The expert opinion I commissioned comes to the conclusion that there is no legal basis for the controls at the border with Austria, which have been taking place since November 2017 "for reasons of migration and security policy". This means that these controls have been unlawful since then. 

The main problem here is that the German government is referring to increasingly vague risk situations instead of actual threats, as required by the Schengen Borders Code. In addition, border controls are often disproportionate.

Internal border controls are politically motivated

Overall, border controls increasingly appear to have a socio-political symbolic effect. At the same time, the European Commission is finding it difficult to stop this structural erosion of the Schengen Borders Code and is only insufficiently fulfilling its mandate and role as "guardian of the treaties". 

The way the German administrative courts deal with complaints against these internal border controls is similarly problematic. Here, the admissibility requirements are interpreted so narrowly that complaints against internal border controls are dismissed as inadmissible. Those affected therefore currently have no effective legal protection against unlawful internal border controls. This primarily affects EU citizens.

The reform in response – effectiveness to be awaited

After years of systematic misapplication of the Schengen Borders Code, the reform of certain parts of the law was recently completed. You can read more about this here in my briefing. The current reform of the Schengen Borders Code is therefore a response to these challenges. On the one hand, it expands the member states' scope for action, for example in the case of increased migration controls at internal borders. On the other hand, the requirements for Member States' internal border controls are being tightened. Whether this will lead to a reduction in internal border controls in practice depends above all on the Commission's willingness to enforce the new rules of the Schengen Borders Code.