Internal Borders under the Revised Schengen Borders Code

Sofia Matias/ December 24, 2024/

By Sofia Matias

Editors: Veronica Corcodel, Dimitra Fragkou

Abstract:

This blog post analyses the 2024 Schengen Borders Code reform, specifically in relation to internal borders. It argues that the reform shows a strong focus on addressing the security concerns of member states by legitimising practices that were previously contentious or considered as incompatible with EU law. In this context, it is crucial that the Commission fully takes on its responsibility to ensure Member States’ compliance with the new regime, as failing to do so risks pushing an already flexible system beyond its legal boundaries and raising challenges to fundamental rights.

Keywords: Schengen Area; 2024 Schengen Borders Code reform; internal border controls; European Commission; fundamental rights.

1. Introduction: The Current State of the Schengen Area

The Schengen Area was designed to be a space of ‘internal’ freedom of movement. The reintroduction of internal border controls was conceived as an exceptional measure, temporary and used only when necessary and in a proportionate manner. However, border controls at internal borders have been reinstated over 250 times since September 2015, invoking reasons such as the so-called 2015 migration ‘crisis’, risks of terrorism and health threats.^[1]

The general rule of the absence of border controls at internal borders is enshrined in Article 22 of the Schengen Borders Code (SBC)^[2], which remained unchanged by the reform adopted in May 2024,^[3] and in Article 67(2) of the Treaty on the Functioning of the European Union (TFEU).^[4] These provisions uphold Schengen’s initial purpose of facilitating the free movement of persons, goods, services, and capital across Member States, thereby fostering greater economic integration. The SBC allows, however, for the temporary reintroduction of border controls at internal borders in exceptional circumstances, but only for a limited time and in response to serious threats to public policy or security.

Nevertheless, some countries have continued the reintroduction of internal border controls beyond the time limits set by the 2016 SBC. Germany, France, Austria, Denmark, Sweden, Italy, Norway, the Netherlands and Slovenia have most recently reinstated such controls within the Schengen Area.^[5] These States have pointed to the threats posed by irregular migration and terrorism-related events as the main reasons for prolonging these measures despite statistical data showing that irregular border crossings and return rates have remained relatively low and consistent with previous years, raising questions about the actual necessity of such controls.^[6]In the past, secondary movements of asylum seekers were also part of the official justifications, having fuelled tensions between Southern and Northern states.^[7] Southern states, burdened by high arrival numbers, referred to these movements as evidence of a lack of solidarity among member states. Northern states, meanwhile, criticized the perceived weaknesses of asylum systems in the South.

The scale of the practice of reintroducing internal border controls has resulted in an unprecedented situation: these controls have not been maintained simultaneously by multiple states for such an extended period since their original removal in 1995. This situation has raised concerns about a potential threat to a cornerstone of the European integration project, i.e., free movement, while also questioning the compatibility of the prolonged internal border controls with the time limits imposed by the 2016 SBC.^[8] Such practice also risks straining diplomatic relations among neighbouring EU countries and triggering a crisis within the Schengen area.

The Commission typically addresses systematic breaches of EU law with infringement procedures, especially when the breach persists over a significant period in a crucial area of European integration. Despite past recommendations to member states for the progressive restoration of free movement,^[9]the Commission, however, has yet to initiate infringement proceedings regarding the reintroduction of internal border controls.

The 2024 Schengen Borders Code reform, as it will be argued below, falls short of providing a framework that would deter member states from carrying forward previous practices. These practices seem to be instead legitimised. This is regrettable, as such developments increase the risk of pushbacks and profiling among ‘third-country nationals’, while potentially also compromising EU citizens’ free movement.

2. The Schengen Borders Code Reform: legitimising previous practices?

One of the most troubling aspects of the reform is the encouragement of states to use measures such as the use of police powers in border areas, as well as monitoring and surveillance technologies, as ‘alternatives’ to the reintroduction of internal border controls, including for the purpose of “reducing illegal immigration”.^[10] To be sure, such alternatives were already possible before the reform, and have been encouraged previously by the European Commission.^[11] One of the novelties of the reform, compared to the 2016 regime, lies in the explicit mention of combating illegal migration and the objective of “contain(ing) the spread of an infectious disease with epidemic potential”, goals not seen as amounting as such to the prohibited practice of border checks. Such ‘alternatives’ to internal border controls risk mimicking past practices of reinstating border controls without resorting however to a formal reinstatement. This would be possible so long as states can distinguish these practices from “systematic checks on persons at the external borders”, a distinction that is far from clear and straightforward.^[12] Such ‘alternatives’, just like internal border controls, raise concerns over possible ‘pushbacks’ without access to an asylum procedure and the lack of (or the curtailment of) other procedural safeguards, something that has been documented in the EU, for example, at the border between Croatia and Slovenia, or at the German-Austrian border.^[13]

In fact, expedited returns with reduced procedural safeguards, a new procedure created by the 2024 reform for irregular migrants apprehended in border areas, serves as an additional potential ‘alternative measure’ to the reinstatement of internal border controls. In other words, swift transfers (within 24 hours^[14]) of migrants in border areas become legally possible without formally reintroducing internal border controls, if these do not appear to involve systematic border checks. The main constraint for implementing such transfers is the existence of a bilateral cooperation framework between member states.^[15] The new procedure essentially responds to calls for more flexibility coming from states that have resorted to ‘pushbacks’ at internal borders, thus providing a legal framework for carrying forward some of the previous practices, though with an important limit, excluding – at least in theory – asylum seekers and beneficiaries of international protection.^[16]

Encouraging member states to conduct police checks near internal borders, provided they are distinguished from systematic border controls, is, therefore, particularly problematic.^[17] The subtle but vague language used for distinguishing between prohibited systematic border controls and authorized police checks in border areas for purposes usually associated with border controls, ultimately might have the dangerous effect of producing that which the reform (allegedly) seeks to dissuade. Moreover, and especially when it comes to the objective of reducing illegal immigration, there is a high risk of entrenching previous practices of selective profiling of individuals based on ethnicity, religion, or appearance.^[18] This issue might be exacerbated, rather than mitigated, by the ‘risk assessments’ outlined in Article 26(2) for determining the necessity of controls in case of prolongation beyond an initial period of six months. As the responsibility of conducting them lies solely with the state reinstating border controls, such assessments could conceal subjective judgments. ^[19]

The revised Schengen Borders Code shows a leniency toward member states, offering not only flexible understandings of alternatives to internal border controls but also a more favourable regime for their reinstatement, building again on member states’ past practices. An important change concerns the duration of internal border controls. The revised Schengen Borders Code allows member states to reinstate internal border controls in case of a serious threat to public policy or internal security for a maximum period of two years, as opposed to the limit of six months under the 2016 regime.^[20] This change mirrors previous – illegal – state practices.^[21] Moreover, in case of “a major exceptional situation with regard to a persisting serious threat”, internal border controls can be extended beyond the two-years limit, for a period of up to six months.^[22] If this is not sufficient, member states can prolong border control for a further period of 6 months.^[23]

Furthermore, it should be recalled that the Court of Justice of the EU confirmed the possibility of continuing internal border controls beyond the time limits set up by secondary legislation, if ‘new threats’, such as terrorism instead of illegal immigration, justify the reinstatement.^[24] In such cases, the time limits set out in the revised Schengen Borders Code would reset. In this sense, the reform together with the case law of the Court of Justice of the EU ultimately create a framework that is more favourable to states and their practice of reinstating internal border controls for long periods of time.

A special regime is created for “large-scale public health emergencies,” reminiscent of the challenges posed by the Covid-19 pandemic. ^[25] Under this regime, the Council, after a proposal by the Commission, “may adopt an implementing Regulation providing for temporary restrictions on travel” both at external and internal borders.^[26] While this has the advantage of establishing a framework for decisions to be potentially (though not mandatorily) made at the EU level rather than by individual member states, the Council retains the authority to extend these controls indefinitely, prompting concerns about potential overreach.^[27]

The explicit inclusion of public health emergencies in the list of examples of serious threats is a positive development. However, the list also controversially mentions secondary movements as a potential serious threat, if they constitute “sudden large-scale” movements between member states, when these put “a substantial strain on the overall resources and capacities of well-prepared competent authorities and are likely to put at risk the overall functioning of the area without internal border control”.^[28] As Thym notes, while these requirements delineating an exceptional situation seeks to limit excessive state practices, “judges can be expected to grant governments some leeway when assessing” these conditions.^[29]

The overall reform seems to have focused largely on addressing the security concerns of member states by formalising practices that were previously either doubtful or considered in violation of the Schengen acquis. As highlighted by Moreno-Lax, a dual phenomenon takes place currently in the EU: the ‘softification’ of current hard law obligations with the introduction of quasi-legal policies that seek to evade international responsibility, and the ‘lawification’ of unacceptable violations.^[30] The SBC reform risks entrenching practices that were meant to be exceptional, thereby undermining the spirit of the Schengen acquis while raising fundamental rights concerns, particularly in relation to migrants, asylum seekers and refugees.^[31]

3. The Commission’s Inertia: Balancing Supranational Authority and National Security Concerns?

Despite prolonged extensions of internal border controls in violation of the 2016 SBC, the Commission has refrained from initiating infringement procedures, even in the presence of pressure coming from certain civil society actors. This inertia coexisted with recommendations issued for member states to progressively restore free movement, which were generally met with a lack of response. Moreover, as the NW case has shown, in some cases the Commission refrained from performing its role of oversight as laid down in the 2016 SBC.^[32] Under the 2016 regime, the Commission was required to issue an opinion if it has concerns over the necessity and proportionality of the reintroduction of internal border control planned by a member state or if it considers that some aspect requires consultation.^[33] In the NW case, the Commission, although it was of the opinion that the prolonged reintroduction of internal border controls by Austria was incompatible with the 2016 SBC, did not issue the opinion required under EU law.

The 2024 reform does not enhance the Commission’s role in overseeing Member States’ decisions to reintroduce internal border controls. On the contrary, it reduces it: the mandatory opinion of the Commission, as required under the 2016 Schengen Borders Code, is no longer part of the current framework. ^[34] Without adequate oversight, there is a risk of unwarranted and prolonged controls that could undermine the fundamental principle of free movement within the Schengen Area.

As the “guardian of the treaties”, the Commission’s role is however vital in ensuring member states’ compliance with EU law, including the Schengen Borders Code.^[35] In this context, the Commission’s readiness to initiate infringement procedures when member states fail to address the issues it raises is essential.

Instead, it seems that the Commission is particularly cautious in matters of national security closely tied to state sovereignty. As Thym and Bornemann note, member states consider border controls to be within their quasi-sovereign domain.^[36] Indeed, member states are reluctant to relinquish control over security matters to the EU, viewing internal border controls as necessary for addressing security threats. The Commission faces the challenge of upholding EU law while respecting national sovereignty, leading to a cautious approach for avoiding political backlash while maintaining its authority in European integration. ^[37] In a politically charged environment, the Commission has practised “supranational forbearance” to maintain support from Member States and protect its role as the “engine of integration” to preserve its long-term influence.^[38] As the key institution responsible for proposing legislation, implementing decisions, and ensuring compliance with EU law, it plays a crucial role in promoting cohesion and unity of the EU. This strategic restraint demonstrates the Commission’s efforts to uphold its influence while navigating complex political dynamics. This comes, however, at a high cost, posing risks of unaddressed breaches of EU law.

4. Concluding Remarks

In conclusion, the revised SBC seems to reflect a strong focus on addressing the security concerns of Member States by formalizing practices that were previously contentious or considered incompatible with the SBC. This is regrettable, as the new regime risks further entrenching and deepening the deterioration of the Schengen Area, potentially creating a ‘new normal’ of internal border controls—either officially reinstated or disguised as purportedly authorized ‘unsystematic’ police checks, including for the purpose of reducing illegal immigration.

In this context, it is essential that the Commission fully assumes its responsibility to ensure member states’ compliance with EU law, as failing to do so risks pushing an already controversial system beyond its legal boundaries and raising challenges to fundamental rights. The Commission should monitor that police checks in internal border areas are not conducted systematically and that officially reinstated internal border controls do not exceed the already extended time limits (compared to the 2016 regime) without the presence of genuinely new threats. It is equally crucial for the Commission to monitor the new transfer procedure to ensure its compliance with fundamental rights, particularly the right to seek asylum.

[1] Commission Staff Working Document, ‘Impact Assessment Report: accompanying the document proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 on a Union Code on the Rules Governing the Movement of Persons across Borders’ (2021), para 1.2.1.

[2] European Parliament and Council Regulation 2016/399 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [ 2016] OJ L 77/1, Recitals 21 and 22, Article 26.

[3] Regulation (EU) 2024/1717 of the European Parliament and of the Council of 13 June 2024 amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders, PE/40/2024/REV/1.

[4] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47, <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012E%2FTXT> accessed 13 November 2024.

[5] European Commission, ‘Temporary Reintroduction of Border Control’ (home-affairs.ec.europa.eu) <https://home-affairs.ec.europa.eu/policies/schengen-borders-and-visa/schengen-area/temporary-reintroduction-border-control_en> accessed 13 November 2024.

[6] Ministry of Foreign Affairs, ‘Slovenia Responds to Austria’s Temporary Reintroduction of Border Control at the Slovenian Border | GOV.SI’ (Portal GOV.SI8 November 2022) <https://www.gov.si/en/news/2022-11-08-slovenias-statement-regarding-the-extension-of-control-on-the-border-with-slovenia-by-the-republic-of-austria/> accessed 9 April 2024.

[7] Daniel Thym, ‘Reinvigorating Schengen amid legal changes and secondary movements’ (2024), Discussion Paper, European Policy Centre, p.4, < https://www.epc.eu/content/Schengen_DPEMD1.pdf> accessed 20 December 2024.

[8] Article 3, paragraph 2 of the Consolidated Version of the Treaty on European Union (June 7 2016), <http://data.europa.eu/eli/treaty/teu_2016/oj> accessed August 26 2024.

[9] See e.g., Communication from the Commission, COVID-19 Towards a phased and coordinated approach for restoring freedom of movement and lifting internal border controls, C(2020) 3250 final; Communication from the Commission to the European Parliament, the European Council and the Council, ‘Back to Schengen – A Roadmap’, COM(2016) 120 final.

[10] Art. 23 Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[11] See Commission Recommendation (EU) 2024/268 on cooperation between the member states with regard to serious threats to internal security and public policy, C/2023/8139.

[12] Art. 23 Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[13] Falk Matthies, ‘Schengen’s Paper Pushbacks’ (2024) Verfassungsblog. On Matters Constitutional, <https://verfassungsblog.de/schengens-paper-pushbacks/> accessed 20 December 2024.

[14] Annex III, Part A (6) Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[15] Article 23(a)(1)(a) Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[16] Daniel Thym (n 7), p.6.

[17] Art. 23 Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[18] Platform for International Cooperation on Undocumented Migrants (PICUM), ‘Press Release: New Schengen Borders Code to Legitimise Racial Profiling at Borders’ (PICUM, 22 June 2022) <https://picum.org/blog/press-release-new-schengen-borders-code-to-legitimise-racial-profiling-at-borders/> accessed 18 November 2024. Statewatch, ‘Racial Profiling and Internal Pushbacks in New Schengen Borders Legislation’ (Statewatch, February 2024) <https://www.statewatch.org/news/2024/february/racial-profiling-and-internal-pushbacks-in-new-schengen-borders-legislation/> accessed 18 November 2024; European Union Agency for Fundamental Rights, ‘Fundamental Rights Survey: Police Stops’ (2021) <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2021-fundamental-rights-survey-police-stops_en.pdf> accessed 13 November 2024.

[19] Sergio Carrera and others, ‘The Future of the Schengen Area: Latest Developments and Challenges in the Schengen Governance Framework since 2016 | Think Tank | European Parliament’ (March 2018) <https://www.europarl.europa.eu/thinktank/en/document/IPOL_STU(2018)604943> accessed 15 November 2024.

[20] Article 25(a)(5) Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[21] Daniel Thym (n 7).

[22] Art 25(a)(6) Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[23] Ibid.

[24] Joined cases C-368/20 and C-369/20, NW v Landespolizeidirektion Steiermark and Bezirkshauptmannschaft Leibnitz [2022] ECLI:EU:C:2022:298.

[25] Articles 21(a) and 28 Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[26] Art. 21(a) Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[27] Article 28 Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[28] Recital 35 Schengen Borders Code, as amended by Regulation (EU) 2024/1717.

[29] Daniel Thym (n 7).

[30] Violeta Moreno-Lax, ‘The “Crisification” of Migration Law: Insights from the EU External Border’ (20 September 2023, p.5 <https://ssrn.com/abstract=4577364> accessed 18 November 2024.

[31] Jorrit J. Rijpma, ‘Watching the guards: Ensuring compliance with fundamental rights at the external borders’ (2024) 30(1-2) European Law Journal 74; Euractiv, ‘EU Nears Racial Profiling Approval at Schengen Borders, Risking Discrimination’ (Euractiv, 9 May 2023) <https://www.euractiv.com/section/migration/opinion/eu-nears-racial-profiling-approval-at-schengen-borders-risking-discrimination/> accessed 18 November 2024.

[32] Joined cases C-368/20 and C-369/20, NW v Landespolizeidirektion Steiermark and Bezirkshauptmannschaft Leibnitz [2022] ECLI:EU:C:2022:298, para 92.

[33] Art 27(4) Schengen Borders Code under Regulation (EU) 2016/399.

[34] Ibid, Articles 27(a) (3).

[35] This function is guaranteed by Article 17(1) of the Consolidated Version of the Treaty on European Union [2012] OJ C326/13; through the mechanism of Article 258 of the TFEU and, finally, supported by Article 211 of the Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community [2002] OJ C325/1.

[36] Daniel Thym and Jonas Bornemann, ‘Schengen and Free Movement Law during the First Phase of the Covid-19 Pandemic: Of Symbolism, Law and Politics’ (2021) 5 European Papers – A Journal on Law and Integration 1143.

[37] Pola Cebulak, ‘Who can end the border controls within Schengen? Implementing the CJEU’s judgment in NW v Steiermark’ (ADIM BLOG, May 2022) <https://www.adimblog.com/wp-content/uploads/2022/05/SodaPDF-processed-1-4.pdf>  accessed 13 November 2024.

[38] Tommaso Pavone and Roger Daniel Kelemen, ‘Where have the guardians gone? Law enforcement and the politics of supranational forbearance in the European Union’ (2023) 75(4) World Politics 779.

How to cite this blogpost: Matias, Sofia Teruszkin. “Internal Borders under the Revised Schengen Borders Code” NOVA Refugee and Migration Clinic Blog, December 2024, available at: