On 16 September 2015, Austria reintroduced border controls at its land borders with Hungary and Slovenia, which have been prolonged several times until 21 November 2021. An Austrian citizen (referred to as NW) has contested the legality of these prolonged internal border controls before the Austrian courts in two cases. In one case (Case C-368/20) NW challenged the exercise by the Austrian control authorities of the power to order and compel him to submit his identification documents during internal border controls. In the second case (Case C-369/20), NW appealed the fine imposed on him when he refused to comply with his obligation to show his passport during a border control at the internal border. NW argued that the Schengen Borders Code (hereinafter: SBC) and the right to free movement of EU citizens were violated as a result of the prolonged reintroduction of internal border controls by Austria and the order and fine imposed on him.

In both cases, the Landesverwaltungsgericht Steiermark decided to ask preliminary questions to the Court of Justice of the European Union (hereinafter: CJEU) about the legality of the border controls at the Austrian border with Hungary and Slovenia and the obligation for EU citizens to show a passport during these border controls on pain of receiving an administrative fine.

The Migration Law Clinic wrote an expert opinion in the context of this case, which can be found here.

The expert opinion argued first that cumulation of periods of internal border control based on Article 25 and 29 SBC is not allowed where there is no new information regarding the potential serious threat to public policy or internal security. Moreover, it contended that the ground that there are deficiencies in the border control at the external border of the EU cannot be invoked in the context of a reintroduction measure on the basis of Article 25 SBC and that the endless prolonging of internal border controls without a legal basis may be considered contrary to the principle of legal certainty and the principle of the rule of law.

The expert opinion also considered that the continuation of internal border controls on migratory grounds should be considered unnecessary and disproportionate. It was unnecessary, because after 2017, the migratory pressure on Member States such as Austria, had diminished (after the high influx of Syrian and other migrants in 2015-2016). Moreover, there were alternatives available to internal border controls, such as police controls. Internal border controls may also lead to infringements of fundamental rights of asylum seekers and refugees and circumvention of the guarantees provided to asylum seekers by the Common European Asylum System. Finally, the lack of coherence when Member States apply Articles 25 and 29 SBC (some Member States of the EU reintroduced internal border controls, while others did not) has detrimental effects on the integrity of the whole Schengen acquis and on the rule of law, EU economy, and the principle of solidarity and sincere cooperation with regard to the protection of asylum seekers and refugees.

With regard to the right to free movement of EU citizens, the expert opinion argued that requiring EU citizens to show a passport or identity card in the context of internal border controls and imposing a fine on them if they refuse to do so, constitutes a limitation to their freedom of movement. Since this limitation could not be based on the SBC, it could not be justified.

On 26 April 2022 the Grand Chamber of the CJEU ruled that the prolonged reintroduction of internal border controls by Austria were indeed not legal. It concluded as follows:

Article 25(4) SBC must be interpreted as precluding border control at internal borders from being temporarily reintroduced by a Member State on the basis of Articles 25 and 27 SBC where the duration of its reintroduction exceeds the maximum total duration of six months, set in Article 25(4), and no new threat exists that would justify applying afresh the periods provided for in Article 25.

Article 25(4) SBC must be interpreted as precluding national legislation by which a Member State obliges a person, on pain of a penalty, to present a passport or identity card on entering the territory of that Member State via an internal border, when the reintroduction of the internal border control in relation to which that obligation is imposed is contrary to that provision.