Munich Court Curbs Border Checks

On 2 July, the Munich Administrative Court ruled that three German police checks on the Austrian border were unlawful (FAZ, DW). Its reasoning goes to the heart of Schengen: checks kept in place for years, with little real change, no longer look like the temporary exception allowed under the EU rules that created the passport-free travel area (Süddeutsche Zeitung).

The same court, however, refused an urgent request to stop future checks (ZEIT). That leaves travellers in a familiar legal trap: a past stop can be declared illegal, but the next checkpoint still stands. Anyone affected must challenge each encounter separately.

The Exception That Became Normal

Schengen allows member states to reintroduce internal border controls when there is a serious threat to public order or security. The government must notify the European Commission, limit the measure in time, and show that it is proportionate (EUR-Lex, Commission).

Several governments have become comfortable living inside that exception. Germany has kept checks on its Austrian border for years. Denmark has maintained controls on the German frontier since 2016. Sweden keeps renewing controls under the same public-order language (Polisen). Each renewal says temporary. The practical effect is permanent.

For Maltese readers, this is not an abstract argument about Alpine crossings. Schengen is the system that makes a flight from Malta to Munich or Amsterdam feel domestic once you are inside the zone. If large member states can keep stretching the emergency clause, the passport-free area becomes less a shared legal space and more a privilege that depends on where you land.

The EU's top court tried to draw that line in 2022. In the NW judgment (cases C-368/20 and C-369/20), the Court of Justice held that a member state cannot keep extending controls on the basis of the same threat once the maximum period has expired (CURIA). A series of renewals using the same justification is not temporary control. It is a standing regime with a temporary label.

Whether the 2024 Reform Resets the Clock

Governments now have a fresh 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 footing (EUR-Lex). According to DW, Germany is likely to argue that the new code resets the clock.

Whether the Munich court accepted that argument is not yet clear, because the full written reasons have not been published. That detail matters. If the 2024 reform gives governments a clean legal start, years of rolling renewals are effectively wiped from the file. If judges look through the new wording and see the same system continuing, the 2022 Court of Justice ruling still bites.

The consequences go beyond Bavaria. Denmark and Sweden face the same question every time they renew their notifications. Smaller states, Malta included, have an obvious interest in the answer: Schengen only works if the rules are not quietly rewritten by the biggest police administrations in the bloc.

EU Enforcement Is Slow by Design

Even where 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 officers to leave a border post (Commission).

To force compliance, the Commission must bring an infringement case, the EU procedure used when a member state is accused of breaching EU law, before the Court of Justice. It must win. If the government still fails to comply, the Commission then needs a second case before financial penalties can follow. That process takes years. In the meantime, citizens carry much of the burden, fighting one stop at a time.

The Netherlands and Germany are testing another route. Under a new policing agreement, they are expanding joint patrols, information sharing and cross-border special operations instead of filtering everyone at the frontier (Government.nl). Schengen allows police work in border areas, so long as it does not become routine border control in another form (EUR-Lex). Targeted policing, rather than blanket stops, is already available if governments want to use it.

Two issues will decide whether the Munich ruling changes anything outside the courtroom. The first is whether the written judgment treats the 2024 reform as a new legal basis or as updated text covering the same old regime. The second is whether the Commission demands stronger evidence from governments renewing border controls, or treats the revised code as a broader permission slip.

Until then, Schengen is being narrowed by renewable exceptions. Its legality is tested not by a swift EU intervention, but by individual travellers taking governments to court, checkpoint by checkpoint.