Explanation and definition of the term ‘internal border’
Die Internal border is a legal term that holds central significance particularly in the context of the European legal area and the national legal systems of the Member States of the European Union (EU) as well as Schengen-associated states. The term is used to distinguish from external state boundaries (“external borders”) and refers to those boundaries that run between the territories of the contracting parties to the Schengen Agreement or within a common market. Internal borders thus stand in contrast to external borders, which separate a national territory from third countries.
Legal framework of the internal border
European legal foundations
The legal significance of the internal border is primarily derived from the Treaty on the Functioning of the European Union (TFEU), the Schengen Implementing Convention, as well as further directives and regulations of the European Union. In particular, the Schengen acquis led to the elimination of personal checks at internal borders.
Concept of the internal border in Union law
According to Article 2(1) of the Schengen Borders Code (Regulation (EU) 2016/399) internal borders are “the common land borders, including river and lake borders, of the Member States applying the Schengen Agreement, as well as their airports and sea ports for internal flights and sea routes between areas of the Member States where the Agreement applies.”
National legal provisions
The domestic implementation of the provisions regarding internal borders is based on Union law and regulated in the respective border protection, passport, and residence laws of the Member States. The relevant regulations are guided by the definition and requirements of the Schengen legal framework.
Function and significance of the internal border
Abolition of controls
With the creation of the Schengen Area, the goal was to facilitate the free movement of people and goods within Europe, eliminating systematic personal checks at internal borders. The internal border therefore has above all a symbolic and administrative character, since, from a legal standpoint, there are no longer border crossing points with systematic controls.
Control and intervention powers
The removal of permanent border controls at internal borders does not mean a complete elimination of state intervention powers. According to Article 23 of the Schengen Borders Code Member States may continue to exercise national powers in the context of law enforcement and risk prevention, such as random checks. However, such measures must not have an effect equivalent to systematic border controls.
Reintroduction of controls at internal borders
The temporary reintroduction of border controls at internal borders is permissible according to Articles 25 et seq. of the Schengen Borders Code under certain conditions, if a serious threat to public order or internal security is identified. These always constitute exceptional cases that must be limited in time and scope to what is strictly necessary.
Distinction from other border types
Difference from the external border
Die External border is the border of the European Union with countries that are not part of the Schengen Area. It is subject to systematic border controls and is especially regulated with regard to protection, surveillance, and passage of persons.
Other internal boundaries
The term internal border also refers to internal connections such as railway lines, roads, or airports where no control takes place if the travel is within the Schengen Area. Nevertheless, certain special regulations apply to flights, sea, and inland ports.
Legal consequences and practical implications
Right to unrestricted border crossing
Within the European legal area, the internal border is associated with the right to move generally freely and without checks within the participating states. Restrictions are possible only in exceptional cases and under strict legal conditions.
Significance for movement of goods and customs
In the EU internal market, internal borders are also relevant in terms of the free movement of goods. Customs duties and import restrictions have largely been abolished at internal borders. Nevertheless, there are notification obligations, for example, relating to tax customs provisions within the Member States.
Data protection and police cooperation
The elimination of physical border controls is accompanied by enhanced police and judicial cooperation. Data sets are made available across borders via information systems such as the Schengen Information System (SIS) on a cross-border basis.
Special regulations and recent developments
Health protection and pandemic
During the COVID-19 pandemic, many Member States temporarily closed or monitored internal borders for reasons of public health. These measures were implemented on the basis of Union law and national legal orders.
Security policy aspects
In view of terrorist threats or specific security policy challenges, the option of temporarily reintroducing border controls has been repeatedly used. The legality and proportionality of these measures are always subject to scrutiny by the European Court of Justice and the relevant authorities.
Literature references and further regulatory frameworks
- Regulation (EU) 2016/399 establishing a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code).
- Treaty on the Functioning of the European Union (TFEU), especially Title V.
- Schengen Agreement and Schengen Implementing Convention.
- National legal foundations, e.g., the Federal Police Act (Germany).
Summary: The internal border is a term used in European and national law, describing the border between Schengen States where regular border controls are generally abolished. The concept of the internal border affects numerous legal regulations in the Schengen Area, the internal market, and border protection, and stands at the center of the implementation of the free movement of people and goods in Europe. The temporary reintroduction of controls at the internal border is possible only under strict conditions and is subject to stringent legal requirements.
Frequently asked questions
What legal regulations apply to the abolition of controls at internal borders within the European Union?
The abolition of controls at internal borders within the European Union is primarily governed by the Schengen Borders Code (Regulation (EU) 2016/399), which has been the key legal framework for border controls in the Schengen Area since 2016. According to Article 22 of the Schengen Borders Code, internal borders between the contracting states may generally be crossed at any point without personal checks. National provisions regarding the crossing of internal borders that do not correspond to the Schengen legal framework are superseded. However, there are exceptions where the reintroduction of border controls at internal borders is permitted, for example in the event of a serious threat to public order or internal security (Art. 25 et seq. Schengen Borders Code). These measures must be temporary, proportionate, transparent, and notified to the European institutions and other Member States.
Under what circumstances may internal border controls be temporarily reintroduced?
The reintroduction of controls at internal borders is permitted under the Schengen Borders Code only under strict conditions. According to Article 25, this is possible if there is a serious threat to public order or internal security in a Member State. The measure must be announced in advance and may not exceed 30 days or—in the case of foreseeable events—a maximum of six months. In exceptional circumstances, for example in the context of ongoing threats, the period may be extended up to two years (Art. 25 paragraph 4, Art. 29). The reasons and proportionality of the measure must be documented precisely, and both the Commission and other EU states must be informed.
How are possible legal violations in connection with internal border controls reviewed?
Legal violations in connection with internal border controls can be reviewed at various levels. On the one hand, affected individuals have legal recourse through the national courts, for example to challenge the legality of a control or refusal of entry. In addition, the European Commission is empowered to initiate infringement proceedings against Member States if the Schengen Borders Code is not complied with. The European Court of Justice (ECJ) may also be involved through preliminary rulings or direct actions relating to the interpretation and application of the relevant provisions. There is also political oversight at EU level, as Member States must regularly report on the implementation of internal border controls.
What are the legal implications of temporary border controls for the movement of people?
Temporary border controls do not abolish the freedom of travel within the Schengen Area but do result in a temporary restriction of the ability to cross internal borders anywhere without checks. Only identity and border checks proportionate to the current threat situation may be carried out in such cases to uphold the principle of proportionality. These controls must be targeted, temporary, and event-related, and must not amount to a de facto reintroduction of permanent border controls. Regular entry and residence requirements continue to apply for EU citizens and third-country nationals. The measures must not lead to unequal treatment or discrimination.
To what extent can the Schengen Information System (SIS) be used for internal border controls?
The Schengen Information System (SIS) is a central tool for supporting cooperation between Member States in ensuring internal security. It is also permissible, within the scope of lawful internal border controls, to check personal data using the SIS, for example to search for alert entries or travel bans. The use of the SIS is subject to the same rule-of-law and data protection principles as at external borders, especially regarding purpose limitation, data storage periods, and data subjects’ rights. This is to ensure that fundamental rights such as data protection and informational self-determination are not disproportionately limited.
What notification obligations do Member States have when reintroducing or extending internal border controls?
According to the Schengen Borders Code, Member States are obligated to inform the European Commission, the European Parliament, the other Member States, and the public as early as possible, but at least four weeks before the reintroduction of controls. The notification must include the reasons, anticipated duration, location, and timeline of the measures. In the case of unforeseeable, immediately necessary controls, this deadline is reduced accordingly, but the information must still be provided without delay (Art. 27). Any extensions of the measures must also be justified and notified. Furthermore, after the controls end, Member States must submit a final report detailing implementation, results, and potential cross-border impacts.
How do judicial decisions affect the practice of internal border controls within the EU?
Judicial decisions, especially those by the European Court of Justice (ECJ), have a significant impact on the interpretation and application of the legal provisions concerning internal border controls. For instance, the ECJ has ruled that reintroductions of controls are only permissible under narrowly defined conditions and temporal limitations. National measures may not unduly restrict freedom of movement within the Schengen Area and must always be proportionate. Courts review in each specific case whether there was a real, objective, and serious threat and whether the control was appropriate in terms of time and scope. Such judgments are binding and regularly lead to adjustments in the application of national law and administrative practice.
