LUXEMBOURG (CN) — The European Union’s highest court found on Tuesday that countries can only install border controls temporarily and in response to serious security threats.
In a case referred by an Austrian court, the European Court of Justice ruled that border checkpoints in the Schengen area, a passport-free travel zone, can only be used for six months and only renewed if a new threat to public safety arises. Vienna has been using them since 2016.
Austria installed a 2.3-mile fence along its border with Slovenia, near the tiny southern town of Spielfeld, in 2017. The move was made in response to thousands of refugees crossing the border to head westward to Germany and France and partially closed a border that had been opened since Slovenia joined the EU in 2007.
An EU citizen, identified in court documents only as N.W., refused to present his passport to Austrian authorities when crossing the border near Spielfeld in 2019 and was fined 36 euros ($38). He appealed the fine, arguing that border checks between EU countries are illegal. The Provincial Administrative Court of Styria referred the matter to the Luxembourg-based European Court of Justice.
Following the 1985 Schengen Agreement, countries in the Schengen area abolished their passport controls and now share a common visa policy. According to the treaty, a country may reestablish border checks for short periods of time only in “exceptional circumstances.”
During the 2015 refugee crisis stemming from the Syrian civil war, several countries - including Austria, Denmark, Germany and Sweden - partially reintroduced controls in certain locations along their borders, arguing they were needed to support the orderly flow of migration.
"This is about ensuring an orderly, controlled entry into our country, not about shutting down the border," Austria’s then-Interior Minister Johanna Mikl-Leitner said at the time.
The EU court’s Grand Chamber, however, ruled Tuesday that such measures can only be introduced for a maximum period of six months and only in response to a direct and serious threat.
“It is apparent that the EU legislature considered that a period of six months was sufficient for the member state concerned to adopt, where appropriate in cooperation with other member states, measures enabling such a threat to be met,” the 15-judge panel wrote.
After that six-month period, the court said, border controls can only remain in place if there is a new and distinct threat.
“In the present instance… the Republic of Austria did not demonstrate the existence of a new threat,” the ruling states.
Longer periods of border checkpoints are only allowed if they are advised by the European Council, the organization of EU heads of state. In this case, the council did not make such a recommendation.
The Court of Justice's ruling has effects beyond Austria. Many countries have continued to extend their border controls every six months. At present, seven EU countries have at least partial border checks in place, including six that were established in response to the Syrian migrant crisis.
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