Schengen Borders Code

Subject: Schengen Borders Code

Since the migration crisis in 2015, the Austrian authorities have continued to exercise regular police checks of buses and passenger cars crossing the Austrian-Slovak border. These checks take place within 20 kilometres of the land border with Slovakia and are equivalent to border checks as they do not reflect actual threats and are systemic in their nature. By continuing to perform these checks, the Austrian authorities are violating the Schengen Borders Code and undermining European citizens’ trust in their fundamental freedoms.

1. Is the Commission aware that frequent and regular police checks in border areas are being used by some Member States as a way of reintroducing border controls which are prohibited by the Schengen Borders Code, as confirmed by European Court of Justice case law?

2. Will the Commission verify the concern that the measures adopted by the Government of Austria have an effect equivalent to border checks?

3. Given the importance of freedom of movement for European citizens, what steps will the Commission take to ensure that Member States do not violate the Schengen acquis by introducing arbitrary police measures intended as a substitute for border checks?

Answer given by Mr Avramopoulos on behalf of the European Commission (14 May 2019)

1. In its Recommendation of 12 May 2017 (1), the Commission recommended Member States to give precedence to police checks in case of serious threats to internal security or public policy instead of resorting to the temporary reintroduction of border controls at the internal borders. According to the Schengen Borders Code, the absence of border controls at internal borders remains without prejudice to ‘the exercise of police powers [...], insofar as the exercise of those powers does not have an effect equivalent to border checks’ (2).

2. The Commission carries out unannounced Schengen evaluation missions in the Member States, amongst others, to verify the absence of border control at internal borders. The last such evaluation of Austria took place in October 2016. The evaluation report did not note any concerns in this respect.

3. Over the past years, a number of Member States including Austria have intensified police checks in the border areas in the context of the increased threats to public policy or internal security. The Commission did not contest any of those cases, and some have set examples of good practice in addressing persistent, increased threats to public policy or internal security without resorting to reintroducing internal border control. Whichever measure a Member State takes to address a specific threat to its public policy or internal security, it should of course ensure that the implementation of the measure does not lead to obstacles to the free movement of persons, which would not be necessary, justified by and proportionate to those threats.

⋅1∙ Commission recommendation on proportionate police checks and police cooperation in the Schengen area, C(2017) 3349.

⋅2∙ Article 23 of Regulation 2016/399 (Schengen Borders Code).