On Tuesday 26 April, the European Commission indicated that it would have to analyse the judgment of the EU Court of Justice of the same day on the maximum duration of the reintroduction of internal border controls in the Schengen area (joined cases C-368/20 and C-369/20).
The Court held that a Member State has the right, when faced with a serious threat to its public order or internal security, to reintroduce border controls with other Member States, but not exceeding a maximum total duration of 6 months. A further period of 6 months remains possible, if justified and in response to a threat of a new nature, which might not be the case for the measure imposed by the Austrian government on the border with Slovenia from 2017 and referred to in the judgment.
At the end of 2021, the Advocate General had found in the same cases (see EUROPE 12806/22) that a Member State facing “serious and persistent threats to public order or internal security” could reintroduce controls at its internal borders for “more than just 6 months” and had put forward mainly the need for a country to ensure internal security.
Tuesday’s judgment could therefore prove to be a little stricter and give countries less flexibility, as the judge specified that a new six-month control period, although possible under the Schengen Code, must be justified by a serious threat to public order or internal security “distinct from that initially identified”.
The Court also appears to be calling Member States to order concerning the juggling of various articles of the Schengen Code to justify such checks, between Article 25 (six-month periods) combined with Article 27 and Article 29 (exceptional circumstances justifying checks for up to 2 years).
In the context of the migration crisis, Austria had reintroduced border controls with Hungary and Slovenia in mid-September 2015. This control has been reintroduced several times, with Austria relying for the period from 16 May 2016 to 10 November 2017 on four successive EU Council recommendations (based on Article 29).
As of 11 November 2017, Austria subsequently reintroduced border control for successive six-month periods (Article 25).
It was in this context that an Austrian returning from Slovenia was checked at a cross-border crossing point in August and November 2019. He was also fined for refusing to produce his passport.
Taking the view that these controls and the fine were contrary to the Schengen Code, he applied to an administrative court, which asked the Court whether the Schengen Code allows Austria to reintroduce, on its own initiative, border controls beyond a maximum total duration of 6 months.
Austria has not been the only country to introduce quasi-permanent internal controls since 2015, either on the basis of migration flows or the threat of terrorism, with seven countries (France, Denmark, Estonia, Austria, Norway, Sweden and Germany) still applying temporary measures.
In its judgment, the Court recalls that the Schengen Code lays down the principle that borders between Member States may be crossed at any point without checks being carried out on persons, regardless of their nationality. The reintroduction of internal border controls should therefore remain exceptional and a last resort. And such a measure, including any extensions, may not exceed a total maximum duration of 6 months.
Indeed, a period of 6 months should be sufficient for the Member State concerned to adopt, where appropriate, in cooperation with other Member States, measures to deal with such a threat while preserving, after this six-month period, the principle of free movement.
The Court clarifies, however, that the Member State may reapply such a measure, even directly after the end of the six-month period, when it is faced with a new serious threat to its public order or internal security, which must however be distinct from the previous one.
In the event of exceptional circumstances jeopardising the overall functioning of Schengen, the EU Council may also recommend to one or more countries to reintroduce controls at their internal borders for a maximum period of 2 years. At the end of these 2 years, a Member State may still directly reintroduce controls for a maximum total duration of 6 months.
However, since 10 November 2017, Austria has not demonstrated the existence of a new threat, so that the two control measures to which this Austrian was subjected would be incompatible with the Schengen Code.
“By the dates on which these control measures took place, the reintroduction by the Republic of Austria of control at its border with the Republic of Slovenia under those Articles 25 and 27 had already exceeded the maximum total duration of 6 months provided for”, the Court explains.
The Court also found that a person cannot be obliged, on pain of penalty, to present a passport or identity card when arriving from another Member State where the reintroduction of border control is contrary to the Schengen Code.
On Article 25 and the fact that the reintroduction of internal border controls should remain exceptional, the Court concludes that an interpretation, according to which the persistence of the threat initially identified would be sufficient to justify the reintroduction of such control beyond the period of a maximum total duration of 6 months, would amount “to allowing, in practice, such reintroduction on account of the same threat for an unlimited period of time”.
This interpretation would also “render pointless the distinction drawn by the EU legislature between internal border control reintroduced under Article 25 and that reintroduced under Article 29 of the Code”.
Link to the judgment: https://aeur.eu/f/1dg (Original version in French by Solenn Paulic)