Of the legal limits when checking the national geographical ones: Reflections on the Court of Justice’s judgment of 26 April on Austria’s internal border control
For the past seven years, Union citizens have not only witnessed, but often first-hand physically experienced various Member State measures relating to their borders, including those which are internal Schengen borders as defined by Article 2 (1) of the Schengen Borders Code (SBC). Measures to better manage transit, border controls because of migration and even at times highly rigid entry bans due to the neighbouring region’s situation concerning COVID cases have led to a shift in the Union citizens’ “spatial experience”. The legality of some of these measures, such as a strict entry ban, is at least highly questionable. Measures in the area of traffic, such as prohibiting the evasion of traffic jams on the highway by passing through small neighbouring villages in high numbers, it was argued, was not problematic because the measures were subject to strict proportionality considerations.
To see these measures as mere more or less temporary nuisances overlooks their significance in highly both economically and socially integrated border regions. It is a discourse which makes emotions run high with unerring predictability, as the neighbourly feud between Bavaria and Tyrol exemplifies. These neighbouring regions continuously trade Union law arguments back and forth, openly contemplate infringement action and call on the Commission for legal support.
With its judgment of 26 April 2022 in joint cases NW v Landespolizeidirektion Steiermark and NW v Bezirkshauptmannschaft Leibnitz (C‑368/20 & C‑369/20), the Court of Justice has recently added an important and overdue clarification to the wider discourse of free movement, which is so heavily informed by Union law. This clarification concerns Article 25 (4) SBC, which provides for a limit to the duration of the reintroduction of internal border controls. Since many Member States have repeatedly prolonged their controls, the question arose whether these national measures were compatible with Union law. Pola Cebulak and Marta Morvillo have already presented an insightful first analysis of the judgment. My aim here is to expand on some of their points and to add aspects not yet mentioned. I would also like to point to the most recent developments of the last few weeks. My focus is on Austria here, but as the authors have rightly pointed out, given the similar, if not identical situation other Member States are in, some comments might be generalizable.
B. The Court of Justice’s judgment in a nutshell
The judgement essentially concerns internal border controls, which have taken place in summer and autumn of 2019. We are at a point in time when the peak of migration had passed and in the foreign country that is a pre-COVID past. The legal issue here is therefore “mere” border controls, but not any further movement restrictions we will experience later on during the COVID crisis.
When crossing from Slovenia into Austria at two instances in August and November 2019, the individual NW was checked at the border by Austrian officials (paras. 28 et seq. & 38 et seq.). He was later fined EUR 36 for his refusal to show his passport at one instance. He challenged both cases of border control via two types of proceedings. The Landesverwaltungsgericht Steiermark referred both cases to Luxembourg, doubting that the respective Austrian law, which the internal border controls were based on, was in conformity with the relevant provisions of the SBC as well as the citizens’ right to free movement guaranteed in Article 21 (1) TFEU, Article 45 (1) CFR and Directive 2004/38 (para. 31). The court wanted to know whether EU law, more specifically the SBC, is to be understood in such a way as to prohibit continuous domestic decrees extending border controls beyond the two years set out in Articles 25 & 29 without the existence of a Council recommendation (para. 37).
In the second constellation – in which NW was fined – the court additionally enquired whether the right to free movement prohibited sanctioning the individual for not showing their passport in case the border control was not in conformity with Union law. Simply put, the legal issue is if Austria breached Union law by controlling its border to Slovenia during the second half of 2019.
A brief explanatory note on the relevant SBC provisions: The SBC allows for a deviation from the general prohibition of internal border controls. Two categories can be distinguished here. The first category concerns serious threats to a Member State’s public policy or internal security, either foreseeable ones (Article 25 SBC) or a threat requiring immediate action (Article 28 SBC). The second category concerns the overall functioning of the area and involves the Council issuing a recommendation (Article 29 SBC); see here (pp. 4-5) for a short introduction to these provisions.
For this case, the exact dates of the relevant border controls are crucial. Austria introduced border controls in 2015, first drawing on what is now Article 28 SBC as the legal basis, later it resorted to what is now Articles 25 & 27 SBC. From May 2016 onwards, Austria based its controls on recommendations of the Council adopted on the basis of Article 29 SBC. On 10 November 2017, the last of the Council recommendations expired, leaving Austria with only Articles 25 & 27 SBC to continue its border controls (for a complete list of all Austrian border controls, see here). The core issue here is that Article 25 (4) (1) states that “the total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed six months.” This means that at the time of the two border controls, Austria had already exceeded the six months prescribed by Article 25 (4) SBC (para. 52).
In an exemplary manner, the Court analysed this provision (paras. 56 et seq.). The wording made makes unequivocally clear that Member States’ border controls must not exceed the time period of six months (paras. 56 et seq.). It further presented a contextual interpretation of the provision. It further underlines that exceptions are to be interpreted narrowly. In addition, any other understanding would make a distinction with Article 29 pointless (para. 70). The only constellation in which the time period of Article 25 (4) would start anew is in the case of a “new serious threat”. Cebulak & Morvillo have already pointed out that the Court said surprisingly little about what exactly constituted such a “new serious threat.” This, indeed, is striking; a mere three paras. (79-81) are dedicated to it. On the Court’s account, Article 25 (4) SBC is to be interpreted in a manner that prohibits national provisions threatening a sanction for not presenting a passport if the border control contradicts Article 25 (4) SBC. The essence of the judgment is very clear: Article 25 (4) SBC establishes an absolute time limit of six months. If this time limit has elapsed, Article 25 does not present a valid legal basis anymore, unless the Member State is faced with a new serious threat.
C. An example of scholarly activism
The first aspect I would like to highlight is that this clarification of Article 25 SBC’s language came about by what could be called scholarly activism. The applicant, the individual having been checked at the border, is an academic specialized in this very area of Union law (already alluding to this, see also Cebulak & Morvillo). The “quasi-permanence” of border controls combined with a noticeably absent Commission (an aspect to which I will turn below) has led to this piece of strategic litigation, which was discussed in the Austrian (regional) media. The applicant’s link to academia has the convenient side effect that underlying ideas of the law of Schengen (and the nature of Europe) held by the applicant have also been presented in academic form: In this publication, the authors argue that the abolition of internal border controls should not only be thought of within the framework of the internal market. Rather, abolishing borders has always been meant to further a “supranational political identity of Union citizens by transforming citizens’ spatial experience. It is Union citizenship which constitutes the legal expression of that historical connection between the abolition of border controls and free movement.”
In order to not be misunderstood: By calling this an instance of scholarly activism, I do not mean anything more by it than a description of the approach. It is neither a praise for a pro-European stance nor reproach for knowing how to play the game of Union law. I only mean to highlight this activist dimension because it actually shows in the case, the individual being stopped at the border meticulously enquiring whether this was a border control or an identity check (paras. 29 and 39 and here). The applicant himself has pointed to research which observed that a feeling of “Europeanness” is more pronounced among very mobile citizens as compared to less mobile ones. Viewed through this prism, this very case is an exemple par excellence for exactly that.
D. An absent guardian?
It is also worth looking at the Commission’s role in this case a little bit closer. The prime motivation for the applicant was to step in where the Commission was absent. Although by now the Commission has reacted with regard to freedom of movement and COVID (see e.g. this communication), it did not insist on its role of guardian of the Treaties in the period concerned here. As became clear in the oral hearing, the Commission abstained from initiating any infringement proceedings because this would have fed into the Member States’ narrative that the Commission prevented them from protecting their citizens against terrorism. Their reasoning, in other words, was purely political and not legal. The Court joins in on this criticism, reminding the Commission of its role (paras. 91 et seq., see also here for this point). In this context, it might be interesting to look at what the Commission has envisaged for itself in the most current proposal regarding a reform of the governance of the Schengen area. The proposal aims at more coordination and highlights alternatives to internal border checks. The list of elements Member States must assess when reintroducing controls is clarified and expanded (p. 7, proposed Article 26) and the maximum time frame in case of foreseeable threats extended to two years (proposed Article 25a (5)). The proposal stipulates that after 18 months, the Commission is obliged to issue an opinion on the border controls’ proportionality and necessity and may launch a consultation process with the Member States (proposed Article 27a (3) & (4)). It may thus be argued that, while the proposal foresees an extension of the current maximum length, it simultaneously establishes a duty for the Commission to issue an opinion after 18 months.
A few days ago, Luxembourg’s clarification with regard to Article 25 (4) SBC has already found application. Austria announced its continuation of internal border controls at the borders with Hungary and Slovenia until 11 November 2022. The Federal Ministry of Interior cited the war in Ukraine, secondary migration and organised crime as reasons, explicitly pointing out that the first represents a new threat. The Minister of the Interior Gerhard Karner argued that the smuggling of humans had increased in the shadow of the war in Ukraine. Given the war’s immense, multi-level impact, it seems likely other Member States will invoke this reason as well when prolonging their internal border controls. To assess whether the Austrian argumentation will fulfil the requirements of a “new serious threat” is a lot of guesswork, given the scarcity of the Court’s guidance on this point. The war in Ukraine is certainly a new development, and it seems at least imaginable that in its shadow, Austria is faced with a serious threat from criminal activities. On the other hand, criminal activities like the smuggling of humans are not new in kind – the Ministry only argues that they have increased in intensity. One must also note that in the dire, but not improbable case that the war continues for months to come, this argumentation will have run its course. The threat will have lost its newness with 12 November. It should be remembered, however, that the Commission suggests longer periods in its proposal to reform the SBC, which means that the discussion of what amounts to a “new serious threat” will be of the greatest relevance in the next few months or years, but might be superseded by new Union law in the foreseeable future.
Just two weeks ago, the police succeeded in breaking up an international smuggling organisation which operated on the Hungarian-Austrian border, taking over 200 individuals into custody. All of this makes it very likely that, from a political point of view, Austria will not stop internal border controls anytime soon. While of lately, Austrian politics are characterised by a short life span, this position will most probably remain a constant.
The author wants to warmly thank Dr. Andreas Orator, diplômé, LL.M., and Sophie Bohnert, LL.M., for their helpful comments.