Case C‑368/20

Landespolizeidirektion Steiermark

(Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark)

Judgment of the Court (Grand Chamber), 26 April 2022

(Reference for a preliminary ruling – Area of freedom, security and justice – Free movement of persons – Regulation (EU) 2016/399 – Schengen Borders Code – Article 25(4) – Temporary reintroduction of border control at internal borders for a maximum total duration of six months – National legislation providing for a number of successive periods of border control resulting in that duration being exceeded – Non-compliance of such legislation with Article 25(4) of the Schengen Borders Code where the successive periods are based on the same threat or threats – National legislation requiring, on pain of a penalty, a passport or identity card to be presented when the internal border control is carried out – Non-compliance of such an obligation with Article 25(4) of the Schengen Borders Code when the border control itself is contrary to that provision)

Border controls, asylum and immigration – Community code on movement across borders – Abolition of border control at internal borders – Temporary reintroduction of border control at internal borders where there is a serious threat to public policy or internal security – Duration of that reintroduction exceeding the maximum total duration of six months without there being a new threat – Not permissible

(Art. 72 TFEU; European Parliament and Council Regulation 2016/399, Arts 25, 27, 29 and 30)

(see paragraphs 66, 68, 70, 77-81, 89, 90, 94, operative part 1)
Border controls, asylum and immigration – Community code on movement across borders – Abolition of border control at internal borders – Temporary reintroduction of border control at internal borders where there is a serious threat to public policy or internal security – Reintroduction contrary to that code on account of exceeding the maximum total duration of six months without being based on a new threat – National legislation obliging a person, on pain of a penalty, to present a passport or identity card on entering the territory of the Member State via an internal border – Not permissible

(European Parliament and Council Regulation 2016/399, Art. 25(4))

(see paragraphs 97, 98, operative part 2)

Résumé

From September 2015 to November 2021, the Republic of Austria reintroduced border control at its borders with Hungary and Slovenia a number of times. In order to justify the reintroduction of the border control, it relied upon various provisions of the Schengen Borders Code. ( 1 ) In particular, from 11 November 2017 it relied upon Article 25 of that code, headed ‘General framework for the temporary reintroduction of border control at internal borders’, which provides for the possibility for a Member State to reintroduce border control at its internal borders if there is a serious threat to public policy or internal security, and sets maximum periods in which such border control may be reintroduced.

In August 2019, NW, who was coming from Slovenia, was subject to a border check at the border crossing point at Spielfeld (Austria). Having refused to present his passport, he was declared guilty of having crossed the Austrian border without being in possession of a travel document and was ordered to pay a fine. In November 2019, NW was subject to another border check at the same border crossing point. He contested the legality of those two checks before the referring court.

The referring court questions whether the checks to which NW was subject and the penalty that was imposed upon him are compatible with EU law. When the contested border control measures were carried out, the reintroduction by Austria of border control at its border with Slovenia had already, through the cumulative effect of the application of successive periods of border control, exceeded the maximum total duration of six months laid down by Article 25 of the Schengen Borders Code.

By its judgment, the Court of Justice, sitting as the Grand Chamber, rules that the Schengen Borders Code precludes border control at internal borders from being temporarily reintroduced by a Member State on the basis of a serious threat to its public policy or internal security where the duration of its reintroduction exceeds the maximum total duration of six months and no new threat exists that would justify applying afresh the periods provided for by the code. The code precludes national legislation by which a Member State obliges a person, on pain of a penalty, to present a passport or identity card on entering the territory of that Member State via an internal border, when the reintroduction of the internal border control in relation to which that obligation is imposed is itself contrary to the code.

Findings of the Court

So far as concerns the temporary reintroduction of internal border control by a Member State on the basis of a serious threat to its public policy or internal security, ( 2 ) the Court recalls, first of all, that it is necessary, when interpreting a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part.

As regards, first of all, the wording of Article 25 of the Schengen Borders Code, the Court observes that the words ‘shall not exceed six months’ would indicate that any possibility of that duration being exceeded is precluded.

So far as concerns, next, the context of Article 25 of the Schengen Borders Code, the Court notes, first, that that provision lays down clearly and precisely the maximum durations both for the initial reintroduction of internal border control and for any prolongation thereof, including the maximum total duration applicable to such border control. Second, that provision constitutes an exception to the principle that internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out. ( 3 ) Since exceptions to the free movement of persons are to be interpreted strictly, the reintroduction of internal border control should remain an exception and should only be effected as a measure of last resort. Thus, that requirement for strict interpretation militates against an interpretation of Article 25 of the code under which the persistence of the threat initially identified ( 4 ) would be sufficient to justify such border control being reintroduced beyond the period of a maximum total duration of six months that is laid down in that provision. Such an interpretation would in practice effectively allow its reintroduction on account of the same threat for an unlimited period, thereby compromising the very principle that there is to be no internal border control. Third, to interpret Article 25 of the Schengen Borders Code as meaning that, where there is a serious threat, a Member State could exceed the maximum total duration of six months for internal border control would render pointless the distinction drawn by the EU legislature between, on the one hand, internal border control reintroduced under that article and, on the other, internal border control reintroduced under Article 29 of the code, ( 5 ) the maximum total duration of the reintroduction of which cannot exceed two years. ( 6 )

Finally, the Court points out that the aim pursued by the rule relating to the maximum total duration of six months falls within the general objective consisting in reconciling the principle of free movement with the Member States’ interest in safeguarding the security of their territories. Whilst it is true that in the area without internal border control a serious threat to public policy or internal security in a Member State is not necessarily limited in time, the EU legislature considered that a period of six months was sufficient for the Member State concerned to adopt measures enabling such a threat to be met while maintaining, after that six-month period, the principle of free movement.

Consequently, the Court holds that that period of a maximum total duration of six months is mandatory, with the result that any internal border control reintroduced under Article 25 after it has elapsed is incompatible with the Schengen Borders Code. Such a period may be applied afresh only where the Member State concerned demonstrates the existence of a new serious threat affecting its public policy or internal security. In order to assess whether a given threat is new in relation to the threat identified initially, reference should be made to the circumstances giving rise to the need to reintroduce border control at internal borders and to the circumstances and events that constitute a serious threat to the public policy or internal security of the Member State concerned. ( 7 )

Furthermore, the Court holds that Article 72 TFEU ( 8 ) does not permit a Member State to reintroduce, in order to meet such a threat, temporary internal border control founded on Articles 25 and 27 of the Schengen Borders Code for a period exceeding the maximum total duration of six months. In the light of the fundamental importance that the free movement of persons possesses among the objectives of the European Union and of the detailed way in which the EU legislature circumscribed the Member States’ ability to interfere with that freedom by temporarily reintroducing internal border control, the EU legislature, in laying down that rule relating to the maximum total duration of six months, took due account of the exercise of the responsibilities incumbent upon the Member States in relation to public policy and internal security.

( 1 ) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1), as amended by Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 (OJ 2016 L 251, p. 1). That regulation replaced Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

( 2 ) More specifically, the Court examines Articles 25 and 27 of the Schengen Borders Code. Article 27 of that code lays down the procedure for the temporary reintroduction of border control at internal borders under Article 25.

( 3 ) See, to that effect, Article 22 of the Schengen Borders Code, as well as Article 3(2) TEU and Article 67(2) TFEU.

( 4 ) Even when assessed in the light of new elements, or of a reappraisal of the necessity and proportionality of the border control established to respond to it.

( 5 ) Where exceptional circumstances put at risk the overall functioning of the area without internal border control, Article 29 of the code provides for the possibility for the Member States to reintroduce internal border control on the basis of a Council recommendation.

( 6 ) That said, the Court explains that the reintroduction of internal border control under Article 29 of the code for a maximum total duration of two years does not prevent the Member State concerned, in the event of a new serious threat to its public policy or internal security arising, from reintroducing, directly after those two years have come to an end, border control under Article 25 of the code for a maximum total duration of six months, provided that the conditions imposed in the latter provision are met.

( 7 ) Article 27(1)(a) of the Schengen Borders Code.

( 8 ) That provision states that Title V of the FEU Treaty is not to affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.