Munich court rules Austrian border checks illegal

On 2 July, the Munich Administrative Court found three German police checks at the Austrian border unlawful (FAZ, DW). The court reasoned that checks maintained for years with little change no longer count as the temporary exception that Schengen law (the EU regulation governing the passport-free zone) allows (Süddeutsche Zeitung). But the same court rejected an urgent request to halt future checks (ZEIT). Travellers must still tolerate controls and challenge them one encounter at a time, because a court can declare past stops illegal without giving anyone the power to walk through the next checkpoint unchallenged.

The Exception That Became Normal

Schengen allows governments to bring back border controls temporarily when they face a serious threat to public order or security. The measure must be notified to the European Commission, time-limited, and proportionate (EUR-Lex, Commission). Several governments have learned to live inside the exception. Germany has run checks at its Austrian border for years. Denmark has maintained controls at its German frontier since 2016. Sweden renews under the same public-order formula (Polisen). Each renewal uses the language of temporariness. The checks become normal.

The EU's top court drew a line in 2022. In the NW judgment (cases C-368/20 and C-369/20), the Court of Justice ruled that a member state cannot keep extending controls based on the same threat once the maximum period expires (CURIA). Serial renewal with the same justification is not temporary. It is a permanent regime wearing a temporary label.

Whether the 2024 Reform Resets the Clock

Governments have a counter-argument. A 2024 reform of the Schengen Borders Code (Regulation 2024/1717) extended the permitted duration of internal controls, giving interior ministries a stronger legal basis (EUR-Lex). According to DW reporting, Germany is likely to argue the new code resets the legal clock. Whether the Munich court accepted that logic is unknown: the full written reasoning has not been published.

The answer matters beyond Bavaria. If the reformed code gives governments a fresh legal start, years of rolling renewals vanish from the record. If judges look past the updated text and see the same regime continuing, the 2022 Court of Justice ruling still binds. Denmark and Sweden face the same question when they next renew their border notifications.

EU Enforcement Is Slow by Design

Even when courts rule against border checks, the EU's enforcement tools cannot act quickly. The Commission can scrutinise national notifications and issue opinions, but it cannot order police away from a border (Commission). To impose financial penalties, the Commission must first bring an infringement case (the EU's legal tool for forcing countries to follow EU law) before the Court of Justice, win, and then bring a second case if the member state still does not comply. That chain takes years. Individual citizens carry most of the enforcement burden, litigating one checkpoint at a time.

The Netherlands and Germany are testing whether security can work without permanent checkpoints. Under a new policing agreement, they are expanding joint patrols, information sharing, and cross-border special operations rather than filtering everyone at the border (Government.nl). Schengen explicitly permits police activity in border areas, provided it does not function as routine border control (EUR-Lex). Targeted policing instead of blanket stops: the alternative exists, if governments choose it.

Two questions will determine whether this ruling changes anything beyond the courtroom. Does the court's written reasoning treat the 2024 reform as a fresh legal basis, or see through the updated text to the same rolling regime? And will the Commission demand stronger evidence from governments renewing controls, or treat the reformed code as an extended permission slip? Until those answers arrive, Schengen is being thinned out by renewable exceptions whose legality gets tested only when individual travellers go to court, one checkpoint at a time.