Despite clear legal situation: Federal government extends illegal border controls again

It's a foggy morning at one of Germany's many land borders. Where once there was free passage in the spirit of European unity, traffic is now backed up. Flashing blue lights, uniformed officers, the systematic intrusion into privacy – an image we thought we had long since overcome in a united Europe . But what is superficially presented as a measure to ensure public safety, upon closer legal examination reveals itself to be a highly questionable maneuver by the executive branch . The federal government under Interior Minister Alexander Dobrindt is continuing its restrictive migration policy with a vehemence that not only touches upon the foundations of European Union law but actively undermines them. We are witnessing a worrying development here: the attempt to achieve political goals by effectively circumventing existing laws.

The Schengen Borders Code as a mere recommendation?

The cornerstone of European freedom of movement is the Schengen Borders Code (SBC) . Its fundamental principle is that internal borders may be crossed without identity checks. While the Code grants member states the right to temporarily reintroduce controls in exceptional circumstances , these are subject to extremely high hurdles. Articles 25 to 28 of the SBC precisely define that a serious threat to public order or internal security must exist. Furthermore, the law emphasizes the importance of time: such measures must be proportionate and of the shortest possible duration . However, if controls have been in place at the border with Austria since 2015, and this practice has now been extended under Minister Dobrindt to almost all of Germany's neighboring countries and prolonged until at least September, we are leaving the realm of "temporary exceptions." We are entering the realm of a permanent institution for which there is simply no basis in Schengen law .

Flimsy justifications and the reality of the numbers

The German government repeatedly argues that this is a “necessity for migration and security policy.” However, a glance at the current statistics causes this argument to collapse. To speak of an “unforeseeable” or “exceptional” situation justifying comprehensive surveillance of internal borders when arrival and asylum application numbers are declining is hardly tenable from a legal standpoint. As a law firm, we experience daily how important legal clarity is for our clients. What we are seeing here, however, is the opposite: The executive branch is creating a fait accompli, while the legal process lags behind the political pace . Here, “migration-related emergencies” are being fabricated to pursue a hard line that is primarily motivated by symbolic politics, rather than being based on a sound legal analysis of the elements of the offense under the Social Security Code.

Courts agree: Border controls are illegal

We are particularly critical of the practice of border rejections and checks. Several courts, including the Berlin Administrative Court, have previously expressed serious doubts about the compatibility of these measures with EU law . The Bavarian Administrative Court has also already declared the border controls unlawful . If the Federal Government now announces that this practice will continue despite these legal concerns, it constitutes a deliberate breach of the applicable legal order . We see this as a threat to the rule of law, as the administration simply ignores rulings by the highest courts and European legal requirements in order to enforce its political will.

A look towards Brussels and into the courtrooms

There is hope in the fact that the German government's actions are not going unnoticed. The Society for Civil Rights is already supporting several legal proceedings before German administrative courts to have the legality of these ongoing checks reviewed . The EU Commission will also conduct an evaluation in March. It remains to be seen whether Brussels will finally and decisively assume its role as "guardian of the treaties" or continue to turn a blind eye while one of the EU's most important achievements—freedom of movement—is dismantled piece by piece. For us as legal professionals, one thing is clear: A state governed by the rule of law is characterized by the fact that the government, in particular, adheres to the laws it has itself co-signed. These continued checks are not an expression of strength, but a sign of legal erosion.

Conclusion: A dangerous precedent for Europe

In summary, the current policy of border controls and pushbacks rests on shaky ground. The Schengen Borders Code is being misused to implement a migration policy that would hardly be compatible with European law through regular legislative channels . We consider the extension of these controls unlawful, as the strict conditions for an exception to the Schengen ideal no longer exist. It is hoped that the pending legal proceedings against the German government will soon demonstrate the legal limits it is currently exceeding in its political zeal. A Europe that sacrifices its core values at its borders will ultimately lose its integrity.