Schengen Border Controls illegal according to Court
- VG3
- Apr 18
- 2 min read
On March 18, 2025, the Bavarian Administrative Court (BayVGH) ruled that the border control at the German-Austrian border in 2022 was unlawful (judgment of March 18, 2025, case number 10 BV 23.700). The control concerned an identity check on an ICE train near Passau, during which international law expert Stefan Salomon, the plaintiff in this case, was checked. The ruling represents an important step in the context of the legality of internal border controls in the Schengen area and sheds light on a continuous practice of border controls that is repeatedly justified by migration-related risks.
Background of the lawsuit
Dr. Stefan Salomon, Junior Professor of European Law at the University of Amsterdam , is a long-time critic of border controls in the Schengen Area . He had previously been active in proceedings against border controls in Austria and successfully argued before the European Court of Justice (ECJ) that the introduction and extension of border controls would only be possible under strict conditions.
The disputed check of the plaintiff took place on June 11, 2022, when Salomon was checked by the Federal Police as a passenger on an ICE train traveling from Munich to Vienna . Salomon filed a lawsuit against this measure with a continuation declaratory action, as he regularly crossed the border between Germany and Austria. In its decision, the Bavarian Higher Administrative Court (Bavarian VGH) followed Salomon's argument and declared the identity check carried out unlawful . The court clarified that the reintroduction of border controls in the Schengen area is only justified if there is a "new factual situation" that demonstrates the necessity of such measures. The continued justification based on migration-related risks, which the Federal Government repeatedly cited, was considered by the court to be incompatible with the requirements of EU law .
Impact on Schengen freedom of movement
The Bavarian Higher Administrative Court's decision underscores the importance of freedom of movement within the Schengen area. Schengen law only permits internal border controls in exceptional cases , such as serious security threats or unforeseen events. Controls maintained for political or migration-related reasons without any concrete danger are therefore inadmissible . Attorney Christoph Tometten, who represented Salomon in these proceedings, emphasized, according to LTO : " It was long overdue for a German court to establish this ."
Conclusion: Outlook and possible consequences
If the ruling ultimately stands, it could call into question the existing practice of border controls in Germany and possibly also in other Schengen states. The Bavarian Higher Administrative Court's decision represents a significant step in the legal debate surrounding border controls in the Schengen area. It is a reminder of the fundamental principles of freedom of movement that lie at the heart of the Schengen Agreement. While the practice of border controls remains possible in certain cases, the requirements for their justification have been clearly strengthened by this ruling. It remains to be seen whether and how the German government will react to this ruling and whether further legal steps will follow.
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