A German court has ruled that repeated extensions of border controls at the German-Austrian border were unlawful because they were not sufficiently justified under EU law. The decision, however, does not immediately affect ongoing checks and is not yet legally binding.
Patrols at the German-Austrian border, in place since 2015 and repeatedly extended under emergency provisions, have again been declared unlawful by a German court, raising further legal doubts over their continued use.
The Bavarian Higher Administrative Court (VGH) in Munich ruled that spot Federal Police checks were unlawful in a case brought by a German woman living in Vienna, who was stopped on four occasions while traveling between Austria and Germany by train and long-distance bus in 2022 and 2023.
Although her claim had previously been rejected by the Munich Administrative Court, the higher court overturned that decision and ruled in her favor. However, the judgment does not have immediate practical consequences for the ongoing border checks, which remain in place.
Read AlsoGermany and the Netherlands to cooperate on speeding up deportations
Border control extensions insufficiently justified
In its reasoning, the court found that successive extensions of the controls ordered by Germany’s Federal Ministry of the Interior did not comply with the requirements of the Schengen Borders Code or relevant case law of the European Court of Justice.
According to the judges, each six-month extension between November 2021 and May 2022, as well as between November 2022 and May 2023, required a new and substantiated justification based on a serious and current threat. The court concluded that this threshold had not been met.
Arguments citing persistently high levels of secondary migration (when people who have already entered one country move onto another, defying the EU's Dublin regulation) or strain on Germany’s reception capacity for asylum seekers were deemed insufficient. The court said the official extension orders did not adequately demonstrate a new or specific threat situation, as required by EU law.
The judges further noted that, under European case law, border controls cannot be justified solely on grounds such as national security or the protection of public order and internal security.
Ruling not yet legally binding
The ruling is not yet legally binding. The federal government may appeal to Germany’s Federal Administrative Court.
The decision follows a similar ruling by the same court issued just over a year earlier, in which an Austrian traveler successfully challenged a Federal Police check carried out on a train in Bavaria in June 2022.
Germany and Austria have repeatedly tightened border controls in recent years in an effort to curb migrant arrivals, typically ahead of politically sensitive periods, as parties seek to retain voters amid growing anti-migrant sentiment and limit support for extreme far-right parties.
Germany currently carries out spot checks on most of its borders with neighboring countries. Many other European countries within the Schengen zone do the same. In total, according to the European Commission's page on the extension of temporary controls within the Schengen zone, eight countries have them in place. These are, France, Italy, Slovenia, The Netherlands, Austria, Denmark and Norway and Sweden. Germany is not currently on the list. Temporary extensions can be renewed every two months but should not have a duration of more than two years.
With dpa