Permanent border controls are illegal under Schengen rules, which govern much of Europe. As a workaround, participating countries can apply for an “exception” by justifying a need to impose temporary ones.
Though these “exceptions” are supposed to be a 'last resort', the European Commission has normalised granting them. Still, since they are time-limited, both the commission and member states can claim the exceptions fall within the law.
Thus, Schengen is preserved in principle even as it is hollowed out in practice — one temporary exception at a time, and renewable to confront supposed threats that, conveniently, rarely have a specified end.
Germany is one of 10 Schengen zone countries with so-called temporary border controls in place. Given its size, the number of borders it shares, and its location in Europe — not to mention its history with checkpoints and expulsion — the EU’s largest member does more damage than others to one of the bloc’s most fundamental norms.
German officialdom, however, has shown itself not only unbothered by, but openly celebrating its drip-drip dismantling of rule of law. Of late, it can’t even muster the decency to pretend it’s not.
In a recent Instagram post, the Christian Democratic Union, which governs the country with the Social Democrats in tow, celebrated Germany’s “introduction of permanent border controls” (emphasis added) as a means of enforcing “law and order.”
The blatant admission fazed no one.
Neither the German interior ministry, controlled by the CDU’s Bavarian counterpart, the CSU, nor the EU Commission responded to a request for comment. A CDU reply arrived by way of doublespeak generator, with a party spokesperson explaining that Germany’s border controls couldn’t be permanent because officials have said they aren’t.
Guess the CDU social media team didn’t get the message.
The obfuscations are not only annoying politics as usual; they are dangerous.
If Schengen is the law, then implementing “permanent” controls does not enforce “law and order,” as the CDU claims; it undermines them.
Without technically breaking the law, these quasi-legal antics make the law increasingly optional, and its application arbitrary. The exception — even if officially “temporary” — starts to look more like the norm.
States of exception, who gets to decide what they are and when they apply, should raise a big red flag.
Carl Schmitt, the German jurist who belonged to the NSDAP, is most infamously connected with the concept, which was instrumental in giving the Nazis the jurisprudential legitimacy to pervert Weimar Germany’s constitutional order.
In this sense, the Nazis rarely broke the law.
They went around it, suspended it, or redefined what “legal” meant. That’s why some Nazis argued, in subsequent war crimes trials, that they may have been morally culpable of atrocities but not legally accountable.
International law was the answer to that cynical logic, but it’s still up to states to enforce it. Yet thanks to the politics of permacrisis, which the EU seems trapped in, an ongoing threat can justify almost any deviation from the legal norm.
As Italian philosopher Giorgio Agamben has argued, liberal democracies have been ruled by exception — that is, structures outside the law — for a long time. Schengen is just one prominent example. Suspending deficit rules explicitly for national military spending is another.
But the biggest state of exception is Israel — and Europe’s near pathological denial of the egregious crimes committed against Palestine long before, and with exponential ferocity and intent since 7 October.
Germany, whose performative memory culture makes it unfit to credibly weigh in on the issue, leads the way on this exception.
The Germans call this exception by their own neologism: Staatsräson. Elsewhere, it’s known better as raison d’etat or the national interest.
By definition, Staatsräson is incompatible with constitutional law or democratic norms.
Germany’s own Federal Agency for Civic Education describes it as an “absolutist or authoritarian principle” that “justifies the use of all means, regardless of morality or law” to preserve state power.
If Germany's Staatsräson is the protection of Israel, as it is and über alles, then Germany can only subjugate itself to Israeli state prerogatives. Paradoxically, it also forces Israel into Germany’s service — a different kind of “dirty work,” absolving it of crimes that Israel is in no position to forgive.
Such a dynamic carries more than a whiff of colonial subjectification and antisemitic implications.
Since former chancellor Angela Merkel popularised the term, in an address before Israel’s parliament in 2008, Staatsräson has helped normalise increasingly violent expressions of state power in both countries.
It gave rise to the Bundestag’s 2019 resolution condemning the Boycott, Divestment, and Sanctions movement, which as a nonbinding expression of the legislature has become another kind of exception.
Despite its lack of legal significance, Germany’s domestic intelligence agency leaned on it to classify BDS and other activist groups, including Jewish ones, as “extremist threats.”
Thanks to Staatsräson, German state and federal authorities have been able to squeeze legally protected artistic and cultural expression, shut down events, issue travel bans, deport EU citizens, ratchet up police brutality, and implement Israel loyalty oaths as a precondition for German citizenship.
Even when officials ultimately back off, or get rebuked by domestic courts or European oversight, the damage — to lives, livelihoods, and the democratic system as a whole — is already done.
It also trickles up and out, rippling across EU institutions.
The German conservative at the top of the commission is cut from the same cloth; it’s no accident that the bloc’s first anti-antisemitism coordinator is, too.
Germany is a leading obstacle to EU action against Israel, putting it in much the same category as Hungary when it comes to confronting Russia.
German officialdom defends its Staatsräson as a recognition of its “historical responsibility.”
Yet employing one state of exception in response to the crimes that emerged from another is more likely to replicate those authoritarian effects than compensate for them.
This year, we turn 25 and are looking for 2,500 new supporting members to take their stake in EU democracy. A functioning EU relies on a well-informed public – you.
William Noah Glucroft is an American journalist who covered Germany from Berlin for Deutsche Welle, among others, for 15 years before moving to Brussels in 2024.
William Noah Glucroft is an American journalist who covered Germany from Berlin for Deutsche Welle, among others, for 15 years before moving to Brussels in 2024.