A Member State facing serious and persistent threats to public order or internal security may reintroduce for six months and periodically maintain controls at internal borders in the Schengen area of free movement of people, provided that it can be shown that such a policy is justified, Advocate General Henrik Saugmandsgaard Øe of the Court of Justice of the European Union ruled in his opinion on Wednesday 6 October (Case C-368 and 369/20).
A citizen is challenging in the Austrian courts two fines he received in 2019 for not providing a valid travel document at the Austrian-Slovenian border. At the time of the events, Austria had made use of the exception in the Schengen Borders Code (Regulation 2016/399) allowing it to reintroduce border controls in exceptional circumstances.
The Advocate General considers that an interpretation according to which the exception cannot be renewed several times in a row - and would therefore be subject to absolute time limits - would risk leading to absurd results. Indeed, the serious threats that an EU country may face are not necessarily of limited duration. Above all, such an interpretation would undermine the States’ competences to maintain public order and safeguard internal security.
However, Mr Saugmandsgaard Øe recalls that there are strict conditions for the application of the exception in the Schengen Borders Code. The Member State concerned must explain, on the basis of objective and detailed analyses of the matter, why the renewal of the control is appropriate and still necessary, in particular by demonstrating that no other less coercive measures (e.g. the use of police controls, intelligence or police cooperation at EU and international level) are sufficient.
And when a new application is made several times in a row, the conditions stipulated become stricter with each renewal. According to the Advocate General, the European Commission must check carefully each time whether this condition is met. In this respect, Mr Saugmandsgaard Øe regretted that the Commission had not issued an opinion on the notifications sent by Austria, which it considered to be unfounded.
See the conclusions (in French): https://bit.ly/3lhOdy8 (Original version in French by Mathieu Bion)