Legal status of temporary reintroduction of border controls on internal Schengen borders according to Article 25 of EU 2016/399 by Germany

Question

I would like to ask whether you think that reintroduction of border controls on internal Schengen borders according to Article 25 of EU 2016/399 (Schengen Border Code) by Germany is legal.

Germany reintroduced such border controls (lets not talk whether they are still temporary because they are not) without providing a list of border crossing points.

BUT, according to Article 27(1)c it is mandatory!

Article 27 Procedure for the temporary reintroduction of border control at internal borders under Article 25

1. Where a Member State plans to reintroduce border control at internal borders under Article 25, it shall notify the other Member States and the Commission at the latest four weeks before the planned reintroduction, or within a shorter period where the circumstances giving rise to the need to reintroduce border control at internal borders become known less than four weeks before the planned reintroduction. To that end, the Member State shall supply the following information:

(c) the names of the authorised crossing-points;

Also without border crossing points we cannot talk about border controls in the first place because of Article 23

Article 23 Checks within the territory

The absence of border control at internal borders shall not affect: (a) the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures: (i) do not have border control as an objective; (ii) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime; (iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders; (iv) are carried out on the basis of spot-checks;

Unfortunately, I have a very bad experience with German border controls on Austrian-German borders. There are no border crossing points but when police deports you from Germany to Austria they gave you a "Refusal of Entry" written on a template from EU 2016/399 suitable only for external Schengen borders and they write "border crossing point" "Kiefersfelden / BAB93" which actually does not exist. They use strictly TITLE II of EU 2016/399 and Articles from AufenthG I posses a proof of that.

Btw. Refusal of Entry is not a criminal offense at external Schengen border but it is a criminal offense at Austrian-German borders!

How do you distinguish a refusal of entry and an illegal border crossing? German police clasifies all cases as illegal border crossing, a criminal offense by German criminal law! At external Schengen border it is clear. Border controls without border crossing points are simply not technically possible.

Therefore, are German border controls legal? According to me they are just excercising police powers in border area.

The whole case is based on a family member of EU citizen according to EU 2004/38/EC without any legal issues when crossing from Austria to Germany with a residence card of a family member of EU citizen according to Article 10 of EU 2004/38/EC issued by Schengen state (really under the Directive) and without carrying passport.

Back to question. Is the temporary reintroduction of border controls on internal Schengen border without border crossing points by Germany legal or not? What do you think?

Btw. this question is not related to coronavirus restriction. But because of "Secondary movements, situation at the external borders; land border with Austria;" already in force since 2015. See:

https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en

Answer 1

Lack of "authorised border crossing points" per Article 23

It's entirely possible that there are no authorised crossing points at the moment. The world is in the grip of a pandemic and there is no positive obligation on the Member State to list out authorised border crossing points if there aren't any.

The Member State could choose to close the borders and refuse to authorise any crossing points. It would seem pragmatic given the current health crisis.

Freedom of movement

Freedom of movement under the Treaty on the Functioning of the European Union and specifically Directive EU 2004/38/EC ("the Directive") is not an absolute right. Member States have the ability to impose limitations and restrictions to safeguard public health as outlined in Article 25 of the Directive:

The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health.

Article 29 of the Directive appears to cover coronavirus:

The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State

In this case, German nationals are subject to the same freedom of movement restrictions so this appears entirely justified.

Public policy and security grounds

You mention that Germany has re-introduced border controls since 2015. Two further grounds for doing so is on public policy and public security grounds.

In this instance, the ongoing migration issues from Turkey and Libya, Syria, etc. could be held to justify the re-introduction of border controls on grounds of public security, separate to the ongoing pandemic.

Alternatively, the border controls could have been introduced on public policy grounds to prevent overwhelming the systems and resources of the Member State.

Conclusion

The re-introduction of border controls and the restriction on freedom of movement are currently justified on public health grounds under the Directive and Germany's actions here appear entirely appropriate. Further, they are also justified (prior to the pandemic) on public policy and security grounds given the ongoing migration issues with Libya, Syria, Turkey, etc. since 2011.