Law professor sues Germany for 'illegal' border controls

Border controls aren't supposed to exist between EU member states – that's the promise of the 1985 Schengen treaty. Yet today, travelers routinely face checks when crossing borders within the union.

And German EU law professor Werner Schroeder, who teaches at the University of Innsbruck, has had enough.

After federal police forcibly searched his bag to check his ID on a train between Austria and Germany, he's suing his own government.

He spoke to EUobserver about why he believes these controls are illegal and whether the Schengen system still works.

EUobserver: You decided to sue Germany over border controls. Can you explain what motivated you to take such action?

Schroeder: What led me to this step is the fact that these border controls that have been carried out throughout 2015 and at the latest since 2017 are no longer permissible according to European law, including according to the Schengen Border Code. An exception was the pandemic, during which such controls were allowed to be carried out.

But after that it was illegal again. And there is a decision from the European Court of Justice [from April 2022], which found that these border controls are not permissible, at least in this form, and also the decision of a German Administrative Court, namely the Bavarian Administrative Court. The rulings confirmed it being illegal, and were simply disregarded by politics, which ultimately continues to push for such controls to be carried out. All that has led me to become active here.

Why did you choose to bring this case now, rather than earlier?

The background was that I was sitting on the train between Innsbruck and Munich. And when crossing the border, two federal police officers explicitly asked me to undergo border control. I refused to show my ID.

This has happened a few times before, but in most cases the officers have refrained from checking my ID when I refused to show it.

This time, in June 2025, they did not do that, but instead used physical force to snatch my bag, take out my wallet, and then pull out my ID.

So they carried out this check using force. Only when I actually had such a check could I take legal action against it. Before that, there was no real reason to do so.

The European Court of Justice (ECJ) has already made other decisions regarding border controls. How do you think these precedents will play into your lawsuit?

Of course, it is a little different in every case. The ruling of the ECJ was about border controls between Austria and Slovenia and in a period between May 2022 and November 2022. Now it is about control on the German-Austrian border. So it's a different case and also a different period.

This is relevant, because the member states that carry out such border controls have to notify the European Commission in writing and renew this every six months, with a new notification.

Now, you have to look at whether this justification is bearable. 

The common justifications the member states have, which always vary slightly, are persistent migration, especially via the Balkan or Italy [routes]. The main focus lies on the threat posed by the number of migrants crossing the EU border.

The statistics show that the numbers are declining strongly. And, much more crucially, the European Court of Justice has decided that, according to Article 25 of the Schengen Border Code, which gives the basis for the possible introduction of border controls, only a six-month period of border control is allowed, unless a new justification is provided.

And this new justification actually needs a new occasion and not the continuation of the existing occasion. In this respect, these justifications are not sufficient.

This is actually quite clear from the European Court of Justice.

What are the next steps for your lawsuit?

We have submitted this complaint and an appeal of the federal republic followed.

They claim that my case is not comparable to the European one decided by the European Court of Justice.

Firstly, because the affected persons in this case, also a professor of European law from Amsterdam, who is an Austrian, commuted for private reasons. And with me, I indicated in my complaint, I was on the road work-related. That doesn't really make a difference, but that's what the federal government is depending on.

And, secondly, in my claim I refer to only one check. And therefore, according to the appeal, it's not clear that these border checks are systematic in nature, when, actually, checks are being carried out systematically. The police have their posts, they are always there.

We will now respond to this complaint with a reply. And then the question is how the court will proceed. Normally, an administrative court procedure takes a relatively long time.

And if they should ask the ECJ, it will take another year and a half to two years.

So if it goes badly, it can take a few more years. If it goes well, we will have a decision in a few months.

The European Commission is the guardian of the treaties. Why do you think the commission has so far avoided taking strong legal action on this issue?

It is surprising that the European Commission has not shown any reaction so far. Until a couple of days ago when the responsible EU commissioner, [Magnus] Brunner, spoke to Politico and said that Germany should now end these border controls because they were only allowed temporarily according to the Schengen Agreement Code. And temporarily did not mean permanently.

But this is the first public reaction of the commission on the subject. And what was really surprising was that the commission, not even after the European court decided in 2022 that the controls between Austria and Slovenia were illegal, did not find it necessary to point out to Austria or other countries that they would have to adjust these controls.

This is not a good sign.

Of course, the commission is under political pressure on the part of the member states.

And because it is obvious that states like Germany and Austria, that issue these controls, but also other states like Denmark and so on, exert pressure on the commission to allow them to do so.

How could your lawsuit affect all these other countries that also carry out border controls, if it is successful?

They have delivered the same justification.

So in the end, someone has to hold the countries accountable and it will have to be the European Commission. Because it is the only authority that can actually enforce European law against member states. If necessary, by bringing them in front of the ECJ with a contract infringement procedure.

I mean, of course, we can also do this individually, as citizens, by taking individual matters before the ECJ. 

But if the member states do not react to this, as in Germany, then, of course, it will be more difficult. Then we need support from Brussels. Otherwise it will be more difficult.

This is of course a problem overall. Because if states simply disregard European law, even though it has already been proven and therefore the European bodies are completely reluctant to react, then this is not a good signal for the legal community of the EU and for effective legal cooperation in the EU.

If national border controls continue to expand, is the Schengen system effectively being hollowed out?

The Schengen border code was modified in 2024 and some states wanted to achieve this change or modification so that it would have more leeway in the implementation of border controls. But in fact this has not happened to that extent.

This problem, namely the temporary implementation of controls, has not been resolved.

At the moment, as it is right now, even after the change of the Schengen border code, member states are only allowed to introduce such controls for very restrictive reasons.

So, yes, it has been undermined. It has been, not only by the many controls, but also because all actors have not committed to it in recent times.

But it is important that the achievements of Schengen, of free movement in Europe without border control are emphasised. Especially in the current time, where cohesion in the EU is endangered and threatened from many sides, from the outside and from the inside.

I don't think it's dead, but the Schengen system has been hit hard.

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