Munich Rejects Austrian Border Checks

On 2 July, a court in Munich gave Schengen a small but awkward victory. The Munich Administrative Court found that three German police checks at the Austrian border had been unlawful (FAZ, DW). Its reasoning was simple enough: border checks that continue for years with little change no longer look like the temporary exception allowed under Schengen law, the EU rulebook for the passport-free travel area (Süddeutsche Zeitung).

The victory had a catch. The same court rejected an urgent request to stop future checks (ZEIT). Travellers must still submit to controls and challenge them afterwards, one stop at a time. A court can say yesterday’s checkpoint was illegal. It does not automatically give tomorrow’s traveller the right to walk on through.

The Exception That Became Normal

Schengen was built on a plain bargain: borders stay open inside the zone, but governments may bring back controls temporarily when there is a serious threat to public order or security. They must notify the European Commission, set a time limit and show the measure is proportionate (EUR-Lex, Commission).

Several governments have become comfortable living inside that exception. Germany has run checks at the Austrian border for years. Denmark has kept controls at its German frontier since 2016. Sweden renews its controls under the same public-order formula (Polisen). Every renewal is written as temporary. In practice, the checks settle into the landscape.

The EU’s top court tried to draw 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 on the basis of the same threat once the maximum period has expired (CURIA). Repeating the same justification does not make a permanent system temporary. It only gives it better paperwork.

Whether the 2024 Reform Resets the Clock

Governments now have a new answer. A 2024 reform of the Schengen Borders Code, Regulation 2024/1717, extended the permitted duration of internal border controls and gave interior ministries firmer ground to stand on (EUR-Lex). According to DW, Germany is likely to argue that the new code resets the legal clock.

Whether the Munich court accepted that argument is not yet clear. Its full written reasoning has not been published. That matters well beyond Bavaria. If the 2024 reform gives governments a clean start, years of rolling renewals may effectively disappear from the legal account. If judges instead look at the substance and see the same system continuing under updated language, the 2022 Court of Justice ruling still bites.

Denmark and Sweden are watching the same question. Their next border notifications will test whether the reform is treated as a practical adjustment to Schengen or as a broad permission slip for controls that keep renewing themselves.

EU Enforcement Is Slow by Design

Even when courts find border checks unlawful, the EU’s enforcement machinery moves slowly. The Commission can examine national notifications and issue opinions, but it cannot simply order police away from a border (Commission). To force compliance through financial penalties, it must bring an infringement case, which is the EU’s formal legal route for making a country obey EU law, before the Court of Justice, win it, and then bring a second case if the member state still refuses to comply.

That takes years. In the meantime, ordinary travellers carry much of the burden. They have to litigate checkpoint by checkpoint.

There is another way to police border regions without turning them back into routine frontiers. The Netherlands and Germany are expanding joint patrols, information sharing and cross-border special operations under a new policing agreement, rather than filtering everyone at the border (Government.nl). Schengen allows police work in border areas, provided it does not amount to ordinary border control (EUR-Lex). Targeted policing instead of blanket stopping is available, if governments choose it.

Two questions now decide whether the Munich ruling travels beyond the courtroom. Will the written judgment treat the 2024 reform as a fresh legal basis, or as new wording over the same rolling regime? And will the Commission demand stronger evidence from governments renewing controls, or accept the reformed code as a longer leash?

Until then, Schengen is not being abolished. It is being worn down by renewable exceptions, tested only when individual travellers decide that a checkpoint is worth a court case.