Opinion of the Advocate General — ECLI:EU:C:2021:821
Date: 2021-10-06
Language of the case: German
Subject matter: Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
5 August 2020 
Referring court: 
Landesverwaltungsgericht Steiermark (Austria) 
Date of the decision to refer: 
23 July 2020 
Appellant: 
NW 
Respondent authority: 
Landespolizeidirektion Steiermark (Regional Police Directorate, 
Styria) 
  
Subject matter of the main proceedings 
Regulation (EU) 2016/399 (Schengen Borders Code) — Ban on internal border 
control — Temporary reintroduction of border control — Prolongation of border 
control under several domestic decrees beyond the time limits laid down in the 
Schengen Borders Code — Admissibility — Compatibility with the right to 
freedom of movement 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Does EU law preclude domestic legislation in the form of consecutive 
domestic decrees prolonging border control which, cumulatively, allow for 
the reintroduction of border control for a period which exceeds the two-year 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/20 
 
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time limit laid down in Article 25 and Article 29 of Regulation (EU) 
2016/399 of the European Parliament and of the Council of 9 March 2016 
on a Union Code on the rules governing the movement of persons across 
borders (Schengen Borders Code) without a corresponding Council 
recommendation pursuant to Article 29 of Regulation (EU) 2016/399 of the 
European Parliament and of the Council of 9 March 2016 on a Union Code 
on the rules governing the movement of persons across borders (Schengen 
Borders Code)? 
2. If Question 1 is answered in the negative: 
Is the right to freedom of movement of EU citizens laid down in 
Article 21(1) TFEU and Article 45(1) of the Charter of Fundamental Rights 
of the European Union to be interpreted, especially in the light of the 
principle of the absence of checks on persons at internal borders established 
in Article 22 of Regulation (EU) 2016/399 of the European Parliament and 
of the Council of 9 March 2016 on a Union Code on the rules governing the 
movement of persons across borders (Schengen Borders Code), as meaning 
that it includes the right not to be subject to checks on persons at internal 
borders, subject to the conditions and exceptions listed in the Treaties and, in 
particular, in Regulation (EU) 2016/399 of the European Parliament and of 
the Council of 9 March 2016 on a Union Code on the rules governing the 
movement of persons across borders (Schengen Borders Code)? 
Provisions of EU law cited 
TFEU, specifically Article 21(1) and Article 72 
Charter of Fundamental Rights of the European Union, specifically Article 45(1) 
Regulation (EU) 2016/399 of the European Parliament and of the Council of 
9 March 2016 on a Union Code on the rules governing the movement of persons 
across borders (Schengen Borders Code) (‘the SBC’), specifically Articles 22, 25 
and 29 
Council Implementing Decision (EU) 2017/818 of 11 May 2017 setting out a 
Recommendation for prolonging temporary internal border control in exceptional 
circumstances putting the overall functioning of the Schengen area at risk 
Provisions of national law cited 
Verordnung des österreichischen Bundesministers für Inneres vom 9. Mai 2019 
über die vorübergehende Wiedereinführung von Grenzkontrollen an den 
Binnengrenzen (Decree of the Austrian Federal Minister for the Interior of 9 May 
2019 on the temporary reintroduction of border control at internal borders, ‘the 
decree of 9 May 2019’) 
LANDESPOLIZEIDIREKTION STEIERMARK 
 
  
Brief summary of the facts and procedure 
1 On entering the country by car from Slovenia on 16 November 2019, a check was 
carried out on the appellant at the Spielfeld motorway border crossing point, 
during which he was asked to produce his passport or identity card. When he 
asked whether he had been stopped for a border control or an identity check, he 
was told that it was for a border control. When he then asked what would happen 
if he refused to produce his passport, he was told that he would be issued with a 
penalty notice. 
2 On 19 December 2019, the appellant lodged an appeal with the referring court 
against the border control, on the grounds that it was an unlawful act of direct 
authority and coercive power. 
Brief summary of the basis for the reference 
3 The referring court has doubts as to the compatibility of the legal basis for the 
border control in question (the decree of 9 May 2019) with EU law, especially the 
SBC. 
4 Article 22 of the SBC prohibits border checks at the internal borders of the 
European Union and provides for two exceptions to that ban. According to 
Article 25 of the SBC, border control may be reintroduced at internal borders if 
there is a serious threat to public policy or internal security. According to 
Article 29 of the SBC, border control may be reintroduced in the event of 
persistent serious deficiencies relating to external border control which put the 
overall functioning of the area without internal border control and public policy or 
internal security at risk. 
5 Border control was reintroduced in Austria on 16 September 2015. Border control 
between 16 September 2015 and 10 May 2016 was based initially on Article 29 of 
the SBC and subsequently on Article 25(2) of the SBC. Border control was 
prolonged several times from 11 May 2016 to 11 November 2017 based on three 
consecutive Council implementing decisions, the most recent being the 2017/2018 
implementing decision. 
6 As the European Commission did not table any further proposals to the Council 
for prolonging border control after 11 November 2017, border control in Austria 
had to be based after that point on Article 25(1) of the SBC. 
7 On 12 October 2017, the Federal Minister for the Interior notified the European 
Commission of a further six-month prolongation to border control (11 November 
2017 to 11 May 2018), following which it was prolonged another three times by 
six months at a time pursuant to three further decrees of the Federal Minister for 
the Interior, the most recent being the decree of 9 May 2019 for the period from 
13 May 2019 to 13 November 2019. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/20 
 
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8 The referring court regards this seamless series of decrees prolonging border 
control as a cumulation of permissible maximum periods for the reintroduction of 
border control laid down in the SBC that is contrary to EU law, as it is precluded 
by the wording of Article 25(4) of the SBC. Were it permissible, any temporal 
limit on the prolongation of border control could be circumvented. 
9 The referring court has not overlooked the fact that it is also possible to derogate 
from the ban on checks at internal borders on the basis of Article 72 TFEU, but 
concludes that that article does not apply in the present case. 
10 The notifications which the Austrian Federal Minister for the Interior sent to the 
European Commission concerning the reintroduction of controls at internal 
borders are not based on Article 72 TFEU, as that provision was not referred to in 
any of those notifications. Furthermore, reliance upon Article 72 TFEU would 
appear to be generally inadmissible. The provisions of the SBC governing 
derogations are of themselves exceptions, as they concern public policy and 
internal security in connection with border control and must therefore be regarded 
as lex specialis in respect of Article 72 TFEU. The effect of the temporal limit on 
the reintroduction of border controls laid down in the SBC would be undermined 
if a Member State could repeatedly rely upon Article 72 TFEU on expiry of the 
time limit expressly enacted therein.