Schengen area: European Court of Justice reminds of illegality of border control

In a judgment of 26 April, the European Court of Justice reminded that border controls within the Schengen area can only be restored for a maximum period of six months. However, several countries, including France, have reintroduced controls at their borders since 2015 and extended them every six months. On May 1, Paris renewed this system once again.

It is a judgment that reminds us that France is illegal. The European Court of Justice emphasized on Tuesday 26 April that the Member States of the Schengen area (22 EU countries plus Iceland, Liechtenstein, Norway and Switzerland) cannot reintroduce border controls in the event of a threat, only for a period of six months. This can be extended, provided that a new threat, separate from the previous one, imposes it.

The court had been brought by an Austrian court following the complaint of an applicant who had been fined for refusing to present his passport during a check in Austria at the border with Slovenia.

Several European countries, including France, have extended these controls since 2015 for similar reasons: the terrorist threat to which the Covid-19 health crisis was added in 2020. Last extension of controls to date: from 1 May to 31 October 2022.

“[En 2015], the re-establishment of border controls was not shocking. But at some point, this situation is no longer unusual and the solution is cooperation between Member States. That’s what the lyrics give. That is what should have made France suspend control. There, it is clearly no longer possible to justify the maintenance of border controls “, confirms Serge Slama, professor of public law at the University of Grenoble-Alpes.

Controls that are legally indefensible, but which make it possible to keep a permanent eye on the movements of migrants and to reject those who try to enter France from border countries, especially Italy and Spain. Arrests and deportations of people seeking asylum are common on these highly guarded borders.

No infringement procedure

For those associations that have been trying since 2015 to condemn France for the illegality of this border control, the verdict of 26. April by the European Court of Justice encouraging. “The verdict supports the position that we, associations, have had for years, and which would say that the French authorities are using an extraordinary measure to make it a routine. Which is illegal under European law,” emphasizes Émilie Pesselier. , Coordinator of Internal Border Emissions at Anafé.

The associations also hope that the ruling of the European Court of Justice will give greater weight to their future actions. Several inquiries from Anafé, Cimade and Gisti have had no effect. In 2017 and 2019, these associations had appealed to the Council of State to try to get border control extensions canceled, without success. In 2018, Anafé and Gisti also lodged a complaint against the French authorities with the European Commission over these illegal border controls, but this remained unanswered.

The European executive has never initiated infringement proceedings against a country because of these controls, and favors “dialogue” with the Member States on this very sensitive issue. Following the judgment of 26. April, the European Commission contented itself with stating that it would analyze the court’s decision.

In December, the Commission proposed a reform allowing for a joint response at the internal borders of the Schengen area in the event of threats affecting the majority of Member States, such as threats to health or to security and public order.

At the same time, the new rules aim to “promote effective alternatives to border controls”, so that the latter “remains a last resort”.

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