81
7. REINSTATEMENT OF
INTERNAL BORDER CONTROLS
IN THE SCHENGEN AREA
CONFLICT, SYMBOLISM AND
INSTITUTIONAL DYNAMICS
Galina Cornelisse
1. Introduction
This Chapter addresses Schengen, focusing in particular on the
re-instalment of internal border controls by Member States. Since
2015, internal border controls have been reinstalled more than 80
times, with Member States justifying these measures on account
of secondary movements of migrants, the threat of terrorism and
the situation at the external borders of the EU. Currently, Norway,
Denmark, Sweden, France, Germany and Austria have reinstalled
internal border controls, either at all internal borders or at specific
points such as particular ferry crossings.1
Many of the current
1	 Norway (period from 12 November 2019 - 12 May 2020, Terrorist threats, secondary
movements; ports with ferry connections with Denmark, Germany and Sweden); Sweden
(period from 12 November 2019 - 12 May 2020, Terrorist threats, shortcomings at
the external borders; to be determined but may concern all internal borders); Denmark
(period from 12 November 2019 - 12 May 2020, Terrorist threats, organized criminality
from Sweden; land border with Germany and with Sweden, ferry connections to
Germany and to Sweden); Germany (period from 12 November 2019 - 12 May 2020,
Secondary movements, situation at the external borders; land border with Austria;
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82 PART II - BORDERS AND ASYLUM
re-instalments have been in place for a long time, their legal basis
alternating between the grounds mentioned in Articles 25, 28 and
29 of the Schengen Borders Code (SBC).2
These provisions provide for the temporary re-instalment of
border control either in case of a serious threat to public policy
or internal security in a Member State (Articles 25 and 28), or in
case of serious deficiencies in the external border management
of a Member State which put the overall functioning of the area
without internal border control at risk (Article 29). In both cases,
such measures are subject to strict conditions, mainly related to
their proportionality and necessity. Moreover, the permitted duration
of these measures is limited: In cases of foreseeable events
posing a serious threat to public policy or internal security, internal
border controls may not exceed a maximum of six months (Article
25), in cases requiring immediate action that period is two months
(Article 28). In situations where the serious threat to public policy
or internal security is related to deficiencies in the management
of the external borders, internal border controls may not exceed a
period of two years (Article 29).
As some of the current re-instalments have switched legal bases
each time their maximum duration had expired, questions arise
regarding their lawfulness. Along similar lines, concerns have
been raised regarding the proportionality and necessity of the
re-instalments, which are allegedly not well argued by the Member
States in their notifications to the Commission. The claim by the
Commission that it reviews the notifications carefully therefore
seems difficult to substantiate.3
These legal complexities need to
be addressed carefully, especially seeing that the Commission has
Austria (period from 12 November 2019 - 12 May 2020, Secondary movements, risk
related to terrorists and organized crime, situation at the external borders; land borders
with Hungary and with Slovenia; France (period from 31 October 2019 - 30 April 2020,
Persistent terrorist threat, upcoming high profile political event in Paris, secondary
movements; all internal borders) See https://ec.europa.eu/home-affairs/sites/homeaf-
fairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-bor-
der-control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf
3	 EU Observer 12 December 2019, “Revealed: Little Evidence to Justify Internal Border
Checks”, at https://euobserver.com/investigations/146897
83REINSTATEMENT OF INTERNAL BORDER CONTROLS IN THE SCHENGEN AREA - G. Cornelisse
recently put forward a proposal for amending the SBC.4
Nevertheless, the primary aim of this contribution is not to
answer questions regarding the legality of the current re-instalments.
Instead I will try to zoom out a little bit from the precise procedures
and legal requirements for introducing border control as
laid down in the SBC, and reflect on the significance of the absence
of internal border control for the EU, highlighting its character as
simultaneously highly symbolical and deeply functional. I argue
that placing too much emphasis on its symbolic dimension, as is
often done by the Parliament and the Commission, obscures from
sight the changing connotations of territorial borders and border
control in contemporary Europe, and has the unintended effect of
over-privileging economic interests to the detriment of the protection
of those individuals that are mostly affected by changing
‘border practices’.
A similar outcome can be seen in the case law on internal
border control by the Court of Justice of the EU. The Court, by
insisting upon a traditional conception of border control, also
attaches great weight to the very tangibility of territorial fault
lines, therewith refusing to acknowledge that border control and
surveillance have undergone fundamental shifts during the last
twenty years. Ironically however, it is precisely Schengen that has
facilitated such shifts in border control. Schengen is profoundly
two-faced: the portrayal of its symbolic dimension by the Commission
and Parliament is complemented by a pragmatic approach
and instrumental use by the Member States.
To make this argument I will first discuss the symbolism of
Schengen as foregrounded by the Parliament and Commission
when they address the absence of internal border control. I will
then turn to Schengen’s pragmatism as seen in Member States
policies – a pragmatism which upon a closer look is firmly linked
4	 Proposal for a Regulation of the European Parliament and of the Council amending
Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction
of border control at internal borders. COM(2017) 571 final, 27 September 2017.
Although the Parliament has confirmed its position on the proposal and voted to open
inter-institutional negotiations, the Council has not yet taken a position.
84 PART II - BORDERS AND ASYLUM
to the symbolism of a resilient national border. Current tensions
result from the irreconcilability of both approaches. In my conclusions
I claim that such irreconcilability does not need to be
problematic because conflict is inherent in politics and can be productive.
A precondition for such productivity however is that the
manifestation of conflict goes beyond contesting views on a symbolism
that is modelled on experiences from the past, but it should
include opposing views on how Europe can address contemporary
global challenges such as economic and social inequality, the regulation
of migration, and threats to human security.
2. Schengen as Europe’s Greatest Achievement:
A Very Tangible Symbolism
Schengen as the area without internal border control has consistently
been portrayed as one of Europe’s greatest achievements,
most notably by the Commission and the Parliament. In official
documents by these institutions, a forceful but concise reminder
insisting on the great significance of a borderless Europe is generally
followed by a substantial discussion on how to strengthen
Schengen, and bring about more accountability and transparency.
What kind of achievement Schengen precisely represents is almost
never made explicit, apart from references to the individual rights
of free movement and the popularity that borderless travel enjoys
with European citizens.
Unsurprisingly then, such superficial appeals to the significance
of Schengen will not result in a productive confrontation
of the European institutions with those Member States that reintroduce
internal border control: the rights to free movement of
persons, goods and services in itself are not negated through the
introduction of internal border control.5
Moreover, the very fact
that these governments are democratically elected and generally
enjoy at least some popular support for their border control pol-
5	 That free movement and the absence of internal border control are not identical is
also apparent from the phenomenon of differentiated integration in this area – some
Member States are part of the internal market but do not participate in Schengen.
85REINSTATEMENT OF INTERNAL BORDER CONTROLS IN THE SCHENGEN AREA - G. Cornelisse
icies turns the popularity argument into a mere contestation of
facts, not of values or visions.
However, while the concrete achievement of Schengen may be
the ease of travelling a borderless Europe for the individual citizen,
borderless Europe obviously stands for something far larger in a
continent that has been defined by centuries of violent struggle
over territorial borders. Against the historical rationale of European
integration – the prevention of interstate war within Europe
– it makes sense to present a borderless Europe as a monumental
triumph. In such a narrative, re-instalment of internal border controls,
especially when done on a large and extended scale, signifies
the beginning of the end of the European ideal. What is problematic
here is that, while no-one would contest the importance of
historical awareness, unreflexive appeals to Schengen as Europe’s
greatest achievement obscure the fact that the meaning of territorial
borders has changed over the years.
Thus, in contemporary Europe, interstate war over territorial
fault lines between Member States is unlikely, but intense disagreement
over how the border relates to national identity and national
security can have profoundly destabilising effects. Insisting on
Schengen’s symbolism without explicitly linking its significance
to the contemporary meaning and functioning of borders then
impedes the development of a meaningful discussion about conflicting
visions of Europe.
A borderless Europe which is conceptually anchored to the
tangibility of territorial borders, without updating that vision so
that it may better align with the political reality of contemporary
border practices, can also be seen in the case law of the Court of
Justice. Thus, while controls at the internal borders are not allowed
under article 67 TFEU and Article 20 SBC, the latter instrument
does not prohibit checks within national territory, provided that
their effects are not equivalent to border checks. Article 21 SBC
specifies that such equivalent effect is absent if these checks do not
have border control as an objective; if they are based on general
police information regarding possible threats to public security
86 PART II - BORDERS AND ASYLUM
and aim to combat cross-border crime; if they are devised and
executed in a manner clearly distinct from systematic checks on
persons at the external borders; or if they are carried out on the
basis of spot-checks. The Court has maintained a very ‘territorial’
interpretation of the concept of border control, when assessing
whether 1) a measure could be designated as border control, or
2) whether it had an equivalent effect. Thus, if checks are carried
out, not ‘at borders’ or ‘when the border is crossed’, but inside the
territory of a Member State, those checks do not amount to prohibited
border control under Article 20 SBC.6
This is even when
the duty to carry out checks (imposed by national law on private
companies) “is intended to ensure that foreign nationals satisfy the
conditions [laid down national law] for crossing the border” and if
“those checks are triggered by the crossing of the internal border.”7
This very narrow interpretation to Article 20 of the SBC does
not do justice to contemporary practices where border control is
increasingly outsourced, either through privatisation or extra-territorialisation
(Rijpma 2018). With regard to measures having an
equivalent effect, the Court has held that a power which is exercised
in a frontier area “in order to detect persons whose presence
is unlawful and aim to deter illegal immigration”8
or “to check
compliance with the obligation to hold, carry and present identity
papers”9
pursues objectives that are different from border control.
Here the Court discloses a similarly limited understanding of the
function of contemporary border control (Cornelisse, 2014), one
which does not take account of the fact that security checks and
surveillance more generally have taken over the function of the
traditional border.
This view on the function of border control is even more
striking when regarded in light of Council Implementing Decision
(EU) 2017/246, in which the Council has explicitly encour-
6	 Case C-412/17, Touring Tours and Travel, ECLI:EU:C:2018:1005.
7	 See AG Bot in his opinion to Touring Tours and Travel, ECLI:EU:C:2018:671, para 85.
8	 C278/12 PPU, Adil, EU:C:2012:508.
9	 Case C188/10 and C189/10, Melki and Abdeli, EU:C:2010:363.
87REINSTATEMENT OF INTERNAL BORDER CONTROLS IN THE SCHENGEN AREA - G. Cornelisse
aged the Member States “to assess whether police checks would
not achieve the same results as temporary internal border controls,
before introducing or prolonging such controls.”10
The legal
interpretation of border control by the Court of Justice fits with a
political portrayal of Schengen as Europe’s greatest achievement,
in that they both make it difficult to address, in the political and
legal sphere, that “the promise of a borderless Europe applies only
to a privileged group of bona fide travellers and not to those who
are seen as the crimmigrant ‘other’” (Aas, 2011; Van der Woude
and Van der Leun, 2017, at 41).
3. Schengen’s Pragmatism: Flanking Measures and
Economic Interests
Schengen cooperation itself has also contributed greatly to changes
in border practices, for example precisely through outsourcing
border control, or through the use of modern technologies that
conflate the distinction between crime control and border control.
Many of these changed border practices have a disparate racial,
religious or social impact.11
This perspective on Schengen cooperation
also brings another, much more pragmatic side of Schengen
to the fore: its instrumental use by Member States in order to attain
certain policy objectives.
Schengen’s pragmatism is exemplified first and foremost
by its economic rationale: the economic benefits of the absence
of internal border control are significant and stretch far beyond
a positive impact on the transport sector (European Parliament
2019). The very origins of a borderless Europe can be traced
back to economics: the Saarbrucken agreement came into being
as a reaction to protests by lorry drivers who blocked the Franco-German
border because they were upset about the long waiting
10	 Council Implementing Decision (EU) 2017/246 of 7 February 2017 setting out a
Recommendation for prolonging temporary internal border control in exceptional
circumstances putting the overall functioning of the Schengen area at risk (OJ L 36,
11.2.2017, p. 59)
11	 See Den Heijer (2018) on visa policies.
88 PART II - BORDERS AND ASYLUM
times. The economic foundations for Schengen explain the vision
of the Court on what constitutes border control discussed above –
such controls are prohibited once they interfere with the smooth
travel of economically active citizens and providers of services.
‘Scattered security checks’ (Atger, 2008) based on risk technology
generally do not have this effect.
While economic incentives thus pushed for the abolishment of
internal borders in the early eighties, the larger political implications
of such a project were apparent from the outset: abolishing
internal border controls would presuppose amongst other things
“the gradual application of a common policy on third country citizens”
(Adonnino Report, 1985). However, further cooperation
with regard to what were originally meant as ‘compensatory measures’
was soon driven by a very different rationale: national concerns
over rising immigration by third-country nationals, especially
after the fall of the Berlin Wall. The result was that before
long the ‘flanking’ measures had acquired a logic of their own. And
while supranationalisation could arguably have served as some
sort of correction mechanism, insisting on a coherent policy on
immigration and asylum for an area without internal borders, the
intergovernmental character of Schengen cooperation made sure
that states and their governments considered little more than their
own national interest in protecting their national borders (Cornelisse,
2014).
The lack of attention for the way in which flanking measures
should relate to the proper functioning of a Europe without
internal borders has resulted in laws and policies that have no concern
for the “structural inequalities and asymmetric shocks”12
that
characterise Schengen (Cornelisse, 2014). Structural inequalities
are caused by the considerable variation amongst the Member
States regarding their geographical location: not all of them have
external land or sea borders, and amongst those who do, considerable
differences exist in the feasibility of guarding them ade-
12	 Hinarejos uses these terms to discuss the challenges facing the European Monetary
Union (Hinarejos, 2013).
so there is a duplicity in this flanking policy logic
89REINSTATEMENT OF INTERNAL BORDER CONTROLS IN THE SCHENGEN AREA - G. Cornelisse
quately against unwanted immigration. Asymmetric shocks are
shocks that affect some Member States, but not all -the current
situation in Greece providing a particularly apt illustration of this.
Asymmetric shocks are obviously related to the concept of structural
inequalities, in that disparities with regard to geographical
particularities make the occurrence of these asymmetric shocks
more likely. The Schengen system, where structural inequalities
and asymmetric shocks are the order of the day, should have some
sort of mechanism to deal with them.
This idea is reflected in Article 80 TFEU, which requires that EU
policies on border checks, immigration and asylum are governed
by the principle of solidarity and the fair sharing of responsibility.
However, since 2015 most efforts at supranationalising Europe’s
response to the so-called refugee crisis have failed, not in the
least because of “mobilisation of national identities by right-wing
populist parties” (Börzel and Risse, 2018). Besides, previous legal
measures adopted in the area of asylum, most prominently the
Dublin Regulation, even exacerbate inequalities between Member
States. In the absence of an effective supranational mechanism to
deal with structural inequalities and asymmetric shocks, national
responses such as re-instalment of internal border control are an
entirely predictable response.13
As long as the roots of the crisis
are not addressed, devising ever more stringent procedures, conditions
and time limits for such measures – even the introduction
of supranational oversight over internal border control – remains
a mere fight against symptoms.
This is even more so when measures of re-instalment remain
marginally motivated and are never subject to scrutiny by a court,
also because in this policy field the Commission rather acts a
mediator between Member States, and not as guarantor of the
13	 A good illustration of such self-evidence can be found in a statements such as by a
Danish minister of integration in 2016: “I think we should prolong border control.
There is still an uncertain situation in southern Europe, where thousands of refugees
and migrants care coming ashore in Sicily. That can create pressure on Danish borders.”
See https://www.thelocal.no/20161013/norway-eu-must-accept-extended-bor-
der-controls.
90 PART II - BORDERS AND ASYLUM
Treaties (Guild et al, 2016). It would be interesting to see how the
Court of Justice (or national courts)14
would assess the proportionality
and necessity of re-instalment: in light of the specific characteristics
of EU law, these courts would inevitably need to rule
on the seriousness of the security and public order threats. Moreover,
courts would be required to elaborate upon the relationship
between re-instalment of border control and alternative measures,
therewith making explicit what Member States are purportedly
protecting with internal border control. A mere insistence on the
function of border control as firmly linked to the tangibility of territorial
borders, or on the symbolic implications of re-instalment
cannot take the place of such a legal assessment.15
4. Conclusion
The portrayal of Schengen as Europe’s greatest achievement is
deeply linked to Europe’s past as a continent defined by violent
conflict over territorial borders. But the symbolism of a borderless
Europe is in dire need of modernization to be able to engage in a
productive conflict over opposing visions of Europe. The insistence
on Schengen’s symbolism and the occasional emphasis on
its perceived economic benefits in the political arena are a weak
counterforce to the link made by right-wing populism between
national identity, security and the necessity of border control, and
they obscure the actual workings of the contemporary border.
Credible proposals regarding the regulation of re-instalment
of internal border control can therefore not remain limited to the
devising of more stringent procedures and increased supranational
oversight if they do not simultaneously recognise the specific
forms of violence that contemporary borders give rise to. Such
proposals need to be based upon explicit alternatives regarding
14	 To my knowledge there are no national legal challenges to the reinstatement of border
controls, although such challenges could easily be brought on the basis of EU law (direct
effect and primacy).
15	 In any case, internal border control does not turn the internal border in all respects
into an external border. See Case C-444/17, Arib, ECLI:EU:C:2019:220.
91REINSTATEMENT OF INTERNAL BORDER CONTROLS IN THE SCHENGEN AREA - G. Cornelisse
the relationship between borders, identity and security. In other
words, revising the Schengen Borders Code cannot remain a technical
exercise the details of which are only understandable to a
select group of experts and subsequently sold to the public as the
strengthening of Europe’s biggest achievement – for such legislation
to be sustainable it should be preceded by a confrontation of
competing visions on Europe and its policies regarding global justice,
human mobility, and human security.16
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Börzel, T and T. Risse (2018) “From the euro to the Schengen
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of agonistic pluralism formulated by Chantal Mouffe (Mouffe, 1999).
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