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Many Schengen countries reintroduced border controls on internal Schengen border according to Article 25 of EU 2016/399. The procedure how to do it is described in Article 27 of EU 2016/399:

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:

(a) the reasons for the proposed reintroduction, including all relevant data detailing the events that constitute a serious threat to its public policy or internal security;

(b) the scope of the proposed reintroduction, specifying at which part or parts of the internal borders border control is to be reintroduced;

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

(d) the date and duration of the planned reintroduction;

(e) where appropriate, the measures to be taken by the other Member States.

Yet, especially after immigration crisis in 2015 most of the countries never supplied the names of the authorised crossing-points

Why is a list of authorized border crossing points not just a formality?

External Schengen border may be crossed only via border crossing points, internal Schengen border anywhere.

Border controls without border crossing points are simply not technically possible (How do you distinguish a refusal of entry at border crossing point vs. an illegal border crossing outside border crossing points?). Moreover, it is forbidden under Article 23 of EU 2016/399:

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;

Border controls without border crossing points are clearly devised and executed in a manner clearly distinct from systematic checks on persons at the external borders and therefore illegal.

Questions:

  1. What happened to border crossing points when border controls have been reintroduced on internal Schengen borders (EU Regulation 2016/399)?

  2. Are border controls without border crossing points legal?

Note: Consider German border controls on German/Austrian borders as a reference.

Note: AFAIK there is no case law from CJEU on this topic.

Note: Notifications to reintroduce border controls according to Article 25 of EU regulation 2016/399:

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

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf

Example Poland 2016:

https://www.mvcr.cz/mvcren/article/reintroduction-of-border-control-at-polish-internal-borders-for-the-period-from-4-july-to-2-august-2016.aspx

Border crossing points are in czech I found somewhere in polish. It is not ideal but border crossing points exist.

Note: Border crossing points according to notification based on Article 39 of EU Regulation 2016/399:

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/schengen/docs/lists_of_ms_notifactions_article_39.pdf

strictly speaking, border crossing points within the meaning of Article 2(8) of EU Regulation 2016/399 are only here. No other border crossing point exist And why not? If I am from other side of the planet, how can I find all border crossing points? I cannot make a research on every Schengen country, considering that next week everything may be different different.

Personal note: According to me all these Schengen states just wanted to increase exercising of police powers in the border area for obvious reasons and to keep European Commission quiet they claim that they reintroduced border controls according to Article 25 of EU 2016/399, despite they violated the procedure and actually never really reintroduced border controls. European Commission, to keep peace with Schengen states, "overlooked" the violation.

Personal note: Most of Schengen states do not really conduct formal border controls as at external Schengen border. Only Germany/Bavaria, from my experience, got crazy about border controls and they forgot common sense and border crossing points at the bottom of the Nord/Baltic sea (wanted to say ocean but Germany has no access to ocean)

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    Not convinced that there is only one possible answer. It could probably play out in multiple ways. – ohwilleke Aug 28 '20 at 16:13
  • @ohwilleke please specify your concerns. The reference is German/Austrian border. I have an insight knowledge about this border so I may add few more details. Nevertheless, the question aims to be general not about a particular case. – user108860 Aug 28 '20 at 17:01
  • For example, the Bavarian Constitutional Court just declared it unconstitutional for Bavaria to do customs and border controls, as those controls are an exclusively federal duty. It did held however, that Bavaria is allowed have a border police group, as long as that does no customs or border controls. Its task is for example monitor the flow of refugees. Bavaria's controls were unconstitutional as a result. Those of the Federal Customs though not. – Trish Aug 28 '20 at 17:54
  • ALSO note that case law is generally not governing in the EU: precedent is not a thing in the Code Civil. Only special cases that are declared "Grundsatzurteil" ( principle judgment) can, and then must be applied. – Trish Aug 28 '20 at 17:58
  • @Trish I also noticed the judgement of Bavarian Constitutional court. Nevertheless, this is some internal German problem, and it is not relevant to this question. My question is on EU level and therefore the Court of Justice of EU has jurisdiction here not Bavarian Constitutional court. AFAIK judgements from Court of Justice of EU are definitelly relevant and I have seen many references to it e.g. when EU 2004/38/EC was being created. (case law was meant here as judgements from CJEU) – user108860 Aug 28 '20 at 18:49
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As nobody is answering, I will try to answer and I am looking forward for feedback.

What happened to border crossing points when border controls have been reintroduced on internal Schengen borders (EU Regulation 2016/399)?

In 2015 there was a general immigration chaos and politicians were acting quickly and according to me illegally - I am not saying that politicians did not have a right to reintroduce border controls but that the practical implementation violated the procedure according to Article 27 of EU Regulation 2016/399.

So right now, we have border controls on e.g. Austrian/German borders without border crossing points. This is technically impossible (how do you distinguish a refusal of entry at border crossing point vs. illegal border crossing outside border crossing points?).

Moreover, this violates Article 27(1)c of EU Regulation 2016/399 saying that if a state wants to reintroduce border controls according to Article 25 of EU Regulation 2016/399 then they shall supply "the names of the authorised crossing-points".

Moreover, according to Article 23 of EU Regulation 2016/399: "the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures:" "are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders;" Therefore, border controls at Austrian/German border without border crossing points cannot be border controls in the first place as they are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders (they are missing border crossing points)

Conclusion:

Border controls without border crossing points are illegal. Legally the states increased exercising police powers in border areas (which is completely fine according to me) but such police powers may not be equivalent to border controls - a police control is equivalent both in the border area and e.g. in capital city (the same law provisions and the same implementation of the control)

Despite that Germany never supplied border crossing points and Austrian/German border may be crossed anywhere as any other internal Schengen border, they are illegally issuing refusal of entry according to ANNEX V, PART B of EU Regulation 2016/399, suitable only for external Schengen border (the law for crossing external Schengen borders implicitly assumes existence of border crossing points), and they are even brave enough to put there border crossing point e.g. "Kiefersfelden / BAB93" which legally does not exist(!) And as I already pointed out they are not able to distinguish a refusal of entry at border crossing point vs. illegal border crossing outside border crossing points. (I posses such refusal of entry, so I have a proof of that).

Therefore, Germany systematically violates EU Regulation 2016/399. Again, they have a right to do border controls but their practical implementation is illegal and Court of Justice of EU should have a look at that.

From the definition "border controls" ("border checks" and "border surveillance") without border crossing points are not border controls.

Article 2 of EU Regulation 2016/399:

  1. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders;

  2. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance;

  3. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it;

  4. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks;

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