A significant legal precedent from Munich may disrupt German border policy. As reported by Deutsche Welle, the administrative court has ruled that actions taken by the German federal police against an Austrian citizen were unlawful. Despite a ruling by the Court of Justice of the European Union (CJEU), Germany continues to expand border controls with impunity—frequently employing them to carry out illegal returns of migrants, including at the Polish border.
Lack of Legal Basis for Prolonging Controls
The case in question involved an Austrian citizen who was subjected to a border check on a train in Bavaria in June 2022. According to the spokesperson for the Bavarian Administrative Court in Munich, the ruling has become final, as the Federal Republic of Germany did not file an appeal.
The court determined that the German federal police’s order to extend border controls did not meet the criteria of a “new serious threat,” a requirement under EU law for the legitimacy of such measures. In the spring of 2022, then-Interior Minister Nancy Faeser once again extended the controls for six months, but without adequate justification.
The judgment emphasizes that, under European Union law, border controls lasting more than six months are permissible only in exceptional and well-documented circumstances. A “persisting threat” alone cannot serve as the sole basis for their continuation.
Germany Continues Unlawful Practices. Poland Remains Silent
Although the case concerned the Austrian border, Germany’s Interior Ministry has not drawn any broader conclusions regarding other borders, including that with Poland. On the contrary, in February 2024, Berlin again extended the controls and expanded them to additional countries, including Denmark, Belgium, and the Netherlands.
In fact, since 2023 Germany has imposed controls at the Polish border without prior consultation with Warsaw, thus violating both the spirit and the letter of the Schengen Agreement.
According to independent sources, in 2024 alone, German police turned back over 10,000 migrants to Polish territory, frequently in a manner inconsistent with established procedures.
A Test of Strength and the Absence of a Response from Warsaw
Though the Munich court ruling concerned an individual case, it may carry substantial legal implications. It demonstrates that German border checks, even when framed under the guise of “public security,” may constitute a breach of European law.
Meanwhile, the Polish government remains unresponsive. Germany continues to impose its unilateral decisions on its neighbors—including Poland—without consultation or regard for community mechanisms, a policy apparently accepted by Prime Minister Donald Tusk. The result has been thousands of illegal “returns” of migrants and escalating tensions at the border.