A. Introduction
In August 2019, I returned from a vacation in Croatia to Graz, a medium-sized Austrian town, where I lived at the time. About two kilometers before the border, traffic slowed down. I continued driving at a walking pace and, forty five minutes later, reached the Austrian border. “Travel documents!” barked the police officer. My explanation for refusing to show my travel documents—“the border controls are contrary to EU law”—was not met with much enthusiasm. I was charged with a fine for illegally entering the country. I contested the fine before an Austrian administrative court, which eventually referred several questions to the Court of Justice of the EU. In April 2022, the Court of Justice held that the Schengen Border Code—the principal EU legal instrument that governs the absence of internal border controls in the Schengen area—sets clear and precise limits on reintroducing internal border controls. Controls, the Court of Justice made clear, cannot be maintained beyond the maximum six months duration prescribed by the Schengen Borders Code.Footnote 1
The background of the litigation against border controls maintained by the Austrian government is exemplary of the broader “crisis of the Schengen regime” that has been noted both in the academic literature and in broader public discourse.Footnote 2 As a reaction to the increasing arrival of refugees, several member states—Austria, Germany, Denmark, Sweden and the Schengen-associated country Norway—had reintroduced in the fall of 2015 internal border controls and consecutively prolonged these controls every six months. Moreover, the French government reinstated controls at all of its internal borders in reaction to the terrorist attacks in Paris in November 2015 and consecutively prolonged these controls six months at a time during the following years. Although border controls in the area without internal borders are meant to be an experience of the past—they should only be exceptionally reinstated for a short time in situations of a serious threat to internal security or public policy—“temporary” controls “have become more or less permanent in six European countries,” as The Economist noted already in 2018.Footnote 3
My initial joy on “winning” the case was soon followed by disenchantment. Although the decision of the Court of Justice was meant to put an end to the quasi-permanent internal border controls, all member state mentioned above continued, seemingly unimpressed by the decision of the Court Justice, to carry out controls at their internal borders. Moreover, instead of faithfully implementing the decision of the Court of Justice, member states, together with the Commission, pushed for an amendment of the Schengen Borders Code in order to evade the implications of the decision. Two years after the decision of the Court of Justice, the amendment of the Schengen Borders Code entered into force, which adds additional grounds on which border controls may be reinstated,Footnote 4 and significantly extends the duration during which internal border controls may be reintroduced.Footnote 5 The amendment of the Schengen Borders Code illustrates how member states may evade the ramifications of strategic litigation by legalizing a blatantly unlawful situation.
This Article inquires into the promises and pitfalls of strategic litigation by focusing on the afterlife of a case of strategic litigation before the Court of Justice. I thereby focus on the implementation of judgments under the preliminary ruling procedure under article 267 of the Treaty on the Functioning of the European Union (TFEU). The reason for focusing on preliminary rulings is that the preliminary ruling procedure, although initially envisaged by the drafters of the Treaties as an instrument of cooperation between the national courts and the Court of Justice, became the most important means for private parties to enforce EU law.Footnote 6 Due to the narrow interpretation of standing requirements for direct actions by the Court of Justice, the preliminary ruling procedure has turned into an important instrument for private parties to litigate strategically against national policies and/or overturn EU legislation.Footnote 7 I take the decision of the Court of Justice in Landespolizeidirektion Steiermark —joined cases C-368/20 and C-369/20—which concerns the reintroduction of internal border controls in the area without internal borders, as case study to inquire into the different factors that affect the implementation of a judgment of the Court of Justice that is the outcome of strategic litigation. I understand strategic litigation as “legal action initiated to achieve broader social, political, or economic ends.”Footnote 8 It is a particular form of legal mobilization and a way to exert influence over policies and political processes.Footnote 9 As the principal objective of strategic litigants is to effectively achieve broader societal, political, economic, or legal change, the afterlife of a judgment is crucial for strategic litigants.Footnote 10 Achieving change through strategic litigation before the Court of Justice may require follow-up measures by strategic litigants. Even when the referring national court faithfully complies with a preliminary ruling, additional measures may be needed to give full effect to the judgment of the Court of Justice: A detention center for asylum seekers must be closed,Footnote 11 a residence permit be issued,Footnote 12 or a decision on disbursing social benefits be adopted.
The main argument in this Article is that the implementation of preliminary rulings is determined by the interplay between three different factors: (i) The role of strategic litigants and their networks to initiate follow-up litigation, (ii) the receptivity of national courts to comply with a preliminary ruling, and (iii) the European Commission’s willingness to enforce a preliminary EU law. I thereby focus on five different member states: Austria, Germany, Denmark, Sweden, and France. These are the states that maintain internal border controls since the fall of 2015 and intervened in the preliminary proceedings before the Court of Justice, which suggests that the outcome of the case has a direct bearing on their border policies.
In the literature, compliance with preliminary rulings by national courts and implementing authorities and the role of activists in enforcing compliance of preliminary rulings before national courts and, or, EU institutions are usually considered separate. Much of the literature on compliance with judgments of the Court of Justice focuses on decisions of the Court of Justice in infringement procedures under article 258 TFEU and the role of national implementing authorities.Footnote 13 The sparse literature on compliance with preliminary rulings, focuses on referring courts’ compliance and does not consider the role of activists in enforcing preliminary rulings.Footnote 14 By contrast, scholarship on strategic litigation and legal mobilization in EU law, which often relies on socio-legal methods, emphasizes the role of collective actors for initiating strategic litigation. However, that body of literature focuses of the role of collective actors in bringing preliminary references to the Court of Justice and shows little interests in in what happens after a preliminary ruling.Footnote 15 This Article thus contributes to the literature by linking a socio-legal perspective on the role of different actors in enforcing preliminary rulings with a more doctrinally oriented perspective on compliance with preliminary rulings. These aspects—the interplay of different actors in enforcing compliance with the rules of the Schengen Borders Code—have also been neglected by the literature discussing the crisis of Schengen.Footnote 16
Before proceeding with the remainder of this Article, a note on methodology is in order. Evidence on the role of different actors in enforcing EU law—especially activists at the national level and Commission officials—stems from semi-structured interviews that have been conducted from June to August 2024 via phone or Zoom. I conducted a total of five interviews with activists and lawyers in different member states, as well as officials from the European Commission. To obtain more candid responses, I promised the interviewees full anonymity. Interviewees were chosen on the basis of the following criteria: (1) when follow-up litigation occurred before national courts and (2) whether the interviewees were the applicants in the cases. When no follow up litigation occurred, interviewees were activists who contested internal border controls with political means chosen based on their public profile in the struggle against internal border controls and legal experts, to inquire into structural factors that may hamper litigation. Commission officials were chosen based on their technical expertise of and proximity with Schengen law. Notifications on the reintroduction of border controls have been obtained through access to information requests from the Commission and national ministries of interior.
The remainder of this Article proceeds as follows. In Section B I first present a doctrinal argument on why preliminary rulings are binding not only on the referring court, but also on other actors. I then present the legal and political background on reintroduction of internal border controls in Section C, the preliminary rulings of the Court of Justice in Landespolizeidirektion Steiermark and its aftermath in Section D. As none of the member states complied with the preliminary ruling, I discuss in section E—the principal section in this Article—the interplay of the different actors in enforcing the preliminary ruling. Section F concludes.
B. Who is Bound by a Preliminary Reference Judgment?
The preliminary reference procedure has become the “most important”Footnote 17 means for private parties to enforce EU law and turned the preliminary reference procedure into a “citizens’ infringement procedure.”Footnote 18 This is also true in the context of strategic litigation. Even though article 267 TFEU is not a remedy available to private parties before a national court and litigants have only limited agency over whether the domestic court refers questions to the Court of Justice, literature on strategic litigation emphasizes that the preliminary reference procedure has become an important instrument for strategic litigants to contest the compatibility of national law with EU law, as well as the validity of EU Directives and Regulations with higher ranking EU law, before national courts.Footnote 19 Strategic litigants choice for using the preliminary reference procedure lies not only in the supremacy of EU law over national law, but also in the transnational effects of preliminary rulings, which are binding on all member states. In the following discussion on the legal effect of preliminary rulings, I distinguish between direct and indirect bindingness.
Preliminary rulings are directly binding on the national court that makes the preliminary reference. In its early case law, the Court of Justice made clear that the response that it gives to preliminary questions are binding on the referring national court.Footnote 20 The national court that makes the preliminary reference is not the only national court which is bound by the judgement; any subsequent appeal court that takes a decision in the concrete legal dispute is also bound.Footnote 21 Regarding the scope of the bindingness of preliminary rulings, national courts are not only bound by the operative part of the judgment, but also by the reasoning of the Court of Justice in the ruling. The operative part of a judgment must be understood in light of the reasons given in that judgment.Footnote 22 As a preliminary ruling constitutes only an interim stage in the national proceedings, which continue after the judgment from the Court of Justices, the preliminary ruling is neither directly binding on the parties in a preliminary proceeding, nor on national courts from other member states, EU institutions or other member states.Footnote 23 However, this does not mean that these actors may simply disregard the ruling.
In the years following the entry into force of the Treaty of Rome, there was much discussion in EU legal scholarship about whether preliminary rulings are binding only inter partes, that is between the Court of Justice and the national court making the preliminary reference, or erga omnes.Footnote 24 In the early 1980s the Court of Justice dispelled these doubts. In International Chemical Cooperation, the Court of Justice held that a national court cannot apply an act of an EU institution that had been declared void in a different preliminary ruling.Footnote 25 The corollary of the Court’s dictum was that that preliminary rulings are indirectly binding on all national courts—at least those preliminary rulings that declare invalid an act of EU law. However, preliminary rulings have a general erga omnes effect—not limited to rulings that declare an act of EU law invalid—which derives from different doctrinal considerations.
First, the function of judgments of the Court of Justice is like those of judgments of constitutional or supreme courts in continental legal systems.Footnote 26 Judgments by constitutional or supreme courts authoritatively interpret the law. In the same vein, the Court of Justice authoritatively “says what EU law is.”Footnote 27 Judgments of the Court of Justice, including preliminary rulings, have a declaratory function in that they authoritatively declare, often choosing between a plethora of different possibilities of interpretation, how a specific provision of EU law must be understood. A judgment of the Court of Justice becomes not only part of the specific EU legal norm that it interprets, but also of the EU legal order in general.Footnote 28 As all national courts are bound to faithfully apply EU law, they are also indirectly bound by a preliminary ruling.
Second, the core objective of the preliminary reference procedure is to ensure a uniform interpretation of EU law in all national legal orders. This objective is doctrinally reflected, among others, in the acte éclaire doctrine. A national court, which otherwise has a duty to refer questions to the Court of Justice, may refrain from doing so if the Court has answered these questions already in an earlier judgement. In fact, if the Court of Justice already addressed the same legal issue in an earlier judgment, it regularly rejects the preliminary reference as inadmissible,Footnote 29 which presupposes that judgments in preliminary references are not only binding inter partes—between the referring court and the Court of Justice—but erga omnes. The Court of Justice indeed suggested in several cases that it attaches such general effects to its judgments in preliminary references.Footnote 30
Third, disregarding a preliminary ruling that clarifies the interpretation of a norm of EU law might result in liability of a member state. If a member state continues a conduct despite a preliminary ruling from which it transpires that this conduct clearly infringes EU law, the state’s conduct will generally meet the threshold of a sufficiently serious breach of EU law for that member state to be liable under EU law.Footnote 31
Fourth, the general effect of preliminary rulings on member states is also reflected in article 23 of the Statute of the Court of Justice, which provides that member states and, where appropriate, EU institutions may make submissions to the CJEU in preliminary proceedings to which they are not parties. It is precisely because of the general effect of preliminary rulings that article 23 of the Statute of the Court of Justice provides member states—and EU institutions—which are not parties to the dispute, with a possibility to submit their views on the interpretation of EU law to the Court of Justice. In this regard, article 23 forms the link between the erga omnes effect of preliminary rulings and procedural rights of member states by ensuring that the legal interests of member states are upheld in proceedings which might have legal consequences for them but to which they are not parties.Footnote 32
The erga omnes effect of preliminary rulings renders the preliminary reference procedure a transnationally effective instrument for strategic litigants. Indeed, the reason for adopting a strategy of litigating at EU level, instead of merely at national level, is that EU law offers a “comparative advantage” to national law.Footnote 33 From the perspective of the litigant, the erga omnes effects of the judgment in a preliminary reference procedure might be such a comparative advantage, especially in situations in which several member states have similar laws or practices in place that are contrary to EU law. Unlike the judgment of a domestic supreme or constitutional court, which only unfolds legal effects in the domestic legal order, the erga omnes effect of a preliminary ruling means that instead of cumbersome separate litigation in, for example, five different member states it may be sufficient to initiate only one proceeding in one member state.Footnote 34 In principle, these transnational effects of preliminary rulings would also be favorable to building up an economy of scale in transnational strategic litigation expertise.
However, to what extent does legal obligation translate into factual compliance? In Part C, I first provide a description of the background of the strategic litigation against the reintroduction of internal border controls. In Part D, I discuss the judgment of the Court of Justice, before turning to the aftermath of the judgment in Part E.
C. Background: the “Temporary” Reintroduction of Internal Border Controls
On September 13, 2015, then German Minister of Interior, Thomas de Maizière, announced that Germany would reintroduce controls at its border to Austria as reaction to the increasing numbers of persons seeking international protection in Germany. De Maizière left no doubt that the objective of this measure was to “limit the actual flow [of refugees] to Germany and to return to an ordered entry procedure.”Footnote 35 The reintroduction of internal border controls by Germany set off a chain reaction and eight other states reinstated border controls in the fall of 2015 with the objective to curb the arrival of refugees to their territories.Footnote 36 After the terror attacks in Paris on November 13, 2015, the French government declared a state of emergency in the country and, as part of national emergency measures, reintroduced internal border controls on December 14, 2015.Footnote 37 France already had internal border controls in place since mid-November 2015 because of the 21st UN Conference on Climate Change.Footnote 38
The Schengen Borders Code includes narrow exceptions from the principle that there shall be no controls at internal borders. If a member state faces a serious risk to internal security or public policy, that member state may exceptionally reintroduce temporary internal border controls as a measure of last resort. The Schengen Borders Code stipulates two different procedures for the reintroduction of internal border controls. First, article 25 Schengen Borders Code 2016 permits member states to unilaterally reintroduce border controls after notifying the Commission on the reasons for reintroducing controls.Footnote 39 The reintroduction of controls must be proportionate and is subject to strict time limits: member states may reinstate controls for a maximum of six months, foreseeable threats, or two months, unforeseeable threats, respectively.Footnote 40 Under the amended Schengen Borders Code 2024, member states may now unilaterally extend border controls to a maximum of two years and, in exceptional circumstances and under stricter criteria, up to three years.Footnote 41
Second, article 29 Schengen Borders Code 2016 envisages a supranational procedure for the reintroduction of internal border controls. Under article 29 Schengen Borders Code 2016, member states may reinstate internal border control, after a proposal from the Commission, on the basis of a Council implementing decision. These controls can be extended to maximum of two years.Footnote 42 Although the amended Schengen Borders Code 2024 does not, in principle, change the maximum two-year limitation, it creates the possibility for the Council to recommend “as a last resort” and “where all other measures […] are ineffective in mitigating the serious threat” to reintroduce internal border controls ad infinitum.Footnote 43
When member states reinstated border controls in the fall of 2015, they first based these controls on article 28 Schengen Borders Code 2016, unforeseeable events, and when the two months time limit in article 28 had come to an end, they relied on article 25 from September 2015 to May 2016. From May 2016 to November 2017, internal border controls were based on article 29. The Council adopted on May 12, 2016 its first implementing decision, based on article 29, in which it recommended five member states—Germany, Austria, Sweden, Denmark, and Schengen associated country Norway—to carry out border controls at their internal borders for a maximum of six months.Footnote 44 In three subsequent implementing decisions the Council recommended that the same five member states prolong controls until November 11, 2017.Footnote 45 When the last implementing decision ended, these states relied again on article 25 Schengen Borders Code 2016 to prolong controls at their internal borders. Since November 2017, Austria, Germany, Denmark, and Sweden consecutively prolonged border controls each six months. Although these member states advanced a potpourri of justifications, from an elevated “terrorism threat level,”Footnote 46 to a “volatile migration situation in the neighbourhood of the EU,”Footnote 47 and an “increasing activity of human smugglers,”Footnote 48 to “increasing numbers of asylum applications,”Footnote 49 and “shortcomings in the protection of the external borders and irregular secondary migration that results from it,”Footnote 50 their prime concern in the notification is to prevent and deter irregular secondary migration. The French government also prolonged border controls at consecutive six months intervals; however, as France was not included in the Council implementing decisions, the French government based the prolongation of border controls exclusively on article 25 Schengen Borders Code 2016. Virtually all notifications by the French authorities refer to a threat of terrorism as reason for prolonging border controls, even though notifications from October 2019 onwards include secondary migration as well.Footnote 51
In 2017 and 2019, French migrant NGOs unsuccessfully challenged the quasi-permanent prolongation of internal border controls before the French Council of State.Footnote 52 In 2019, a member of the Bavarian parliament contested the reintroduction of internal border controls by the German government, but the Munich Administrative Court dismissed the action as inadmissible due to a lack of standing.Footnote 53 None of these national courts chose to refer questions on the interpretation of EU law to the Court of Justice. Neither private enforcement of the rules of the Schengen Borders Code before national courts nor public enforcement by the Commission through the use of the infringement procedure, article 258 TFEU, was succesful.
D. The Court’s Decision in Landespolizeidirektion Steiermark and its Aftermath
It was against this background that I challenged the reintroduction of internal border controls before the Administrative Court of Styria. When driving back from vacation in Croatia to Austria, I refused to show my travel documents at the Austrian-Slovenian border crossing point. I was fined €36 for illegally entering Austria and subsequently appealed the fine before the Administrative Court of Styria, where the single judge eventually referred three preliminary questions to the Court of Justice.Footnote 54
The principal legal question that the Court of Justice had to answer concerned the six-month time limit in article 25(4) Schengen Borders Code 2016. All intervening member states had argued that if a threat persisted beyond six months, EU law would not be contrary to maintaining internal border controls beyond the six-month maximum duration.
The Court of Justice distinguished between new threats and renewed threats. As the Advocate General put it, a new threat would be a “serious threat which is new by its nature.”Footnote 55 For example, a terrorist threat would be different from a large sporting event, as would be a pandemic from a political summit. The existence of a new threat would result in a new and different application of article 25 Schengen Border Code 2016. The clock would simply start to run anew. The Court of Justice followed the Advocate General on this point. A renewed threat, by contrast, refers to a situation in which the same threat persists beyond the six-month limitation in article 25(4) Schengen Borders Code 2016. The Court made clear that article 25(4) Schengen Borders Code 2016 lays down clearly and precisely the maximum duration of six months for prolonging internal border controls. Thus, any prolongation beyond the maximum duration “is difficult to reconcile with the setting of commonly agreed clear and objective criteria for such reintroduction.”Footnote 56 The Court thereby emphasized the exceptional nature of internal border controls.Footnote 57 As the provisions on reintroducing internal border controls constitute derogations from the free movement of persons, they must therefore be strictly interpreted, as the Court made clear.Footnote 58
Related to the strict time limits of article 25(4) Schengen Borders Code 2016, member states had argued that the prerogatives to maintain their national security in article 72 TFEU would permit them to derogate from the provisions of the Schengen Borders Code, if their national security was threatened. In its recent case law on article 72 TFEU, the Court had already stated that “when the EU legislator has already taken into account member states” interest in safeguarding public policy and internal security in EU secondary law, there is no room to invoke article 72 TFEU or article 4(2) TEU.Footnote 59 Because the EU legislator had laid down a “comprehensive framework” in the Schengen Borders Code on reinstating internal border controls, member states cannot invoke their security prerogatives enshrined in articles 72 TFEU and 4(2) TEU.Footnote 60 Contrary to the Advocate General, who thought that a fair balance between free movement and member states security prerogatives would need to be struck by the Court, the Court held that the EU legislator had already determined this balance by adopting a comprehensive framework on the reintroduction of internal border controls.Footnote 61
The judgment of the referring Administrative Court of Styria followed barely a month and a half after the ruling of the Court of Justice. The Administrative Court of Styria held that “the Republic of Austria has not substantiated the existence of a new threat” since the last Council implementing decision had expired on November 10, 2017; therefore, since that date, border controls maintained by the Austrian government were contrary to EU law.Footnote 62
Despite the clear judgments delivered by Luxemburg and the referring national court, the reaction of the Austrian government was ambiguous. On the one hand, the government formally complied with the decision. It did not enforce the criminal sanction for illegally entering Austria and reimbursed, most of, my legal costs as the referring court had ordered the government. On the other hand, the Austrian government continued to prolong internal border controls. On May 11, 2022, the government adopted a national regulation that prolonged controls at its internal borders with Slovenia and Hungary for another six months.Footnote 63 In its notification to the Commission the government referred again to migratory events as serious threats to internal security and public policy that would require the prolongation of internal border controls.Footnote 64 Already the preceding notifications of the Austrian government to the European Commission were based on the same reasons of “high migratory pressure,” a “volatile migratory situation,” “increasing asylum application figures,” and the activity of human smuggler organizations.Footnote 65 When the government was quizzed by the Austrian parliament in May 2022 on how it implemented the judgment of the Court of Justice, it responded that:
The findings of the ECJ are taken into account when border controls are reintroduced. Such a measure can only be justified in the event of a new serious threat. A comprehensive evaluation of the aforementioned circumstances [i.e. continuing migratory movements to Europe and secondary migration in the Schengen area], in light of the ruling, has determined that there is certainly a new threat, necessitating the reintroduction of internal border controls at Austria’s national borders with Slovenia and Hungary.Footnote 66
The reference to a new threat by the government seems to be mere lip service, as the government had prolonged border controls for the twentieth time on the basis of essentially identical grounds, secondary migration and migratory movement, and remained silent on why secondary migration and migratory movements would amount to a new threat.Footnote 67 In October 2022, the Austrian government announced that it would again extend controls at its internal borders with Slovenia and Hungary for another six months. The reasons? Irregular “secondary migration” and an “increase in irregular migration flows.”Footnote 68 In subsequent years, the Austrian Ministry of the Interior continued to prolong internal border based on nearly identical reasons, which all concern unauthorized migration.Footnote 69 The implementation of the decision in Landespolizeidirektion Steiermark by the Austrian government reflects what Lisa Conant calls “contained compliance,” a national government complies with the specific terms of a preliminary ruling as it relates to the parties of the dispute but ignores the broader legal implications of the decision.Footnote 70
The Austrian government, however, was not alone in its practice of non-compliance. Although the Court of Justice emphasized the general importance of the principle that there shall be no border controls for the area without internal borders, the German, French, Danish, and Swedish government have been recalcitrant to faithfully heed to the Court’s dictum. The day after the publication of the preliminary ruling in Landespolizeidirektion Steiermark, the Bavarian Minister of the Interior called on the German Federal authorities to use all possible legal leeway to keep internal border controls as long as possible.Footnote 71 A few days later, the Swedish government announced the extension of internal border controls and justified these controls with “shortcomings at the external borders.”Footnote 72 Over the following years, these governments continued to consecutively prolong controls at their internal borders six months at a time and justify these controls with nearly identical reasons.Footnote 73
E. Implementing a Preliminary Ruling Through Follow-up Litigation
When member states are unwilling to implement a preliminary ruling, actors who are willing and capable of initiating follow up litigation before national courts are crucial in generating compliance pressure on member states.Footnote 74 Different actors mobilized in all member states to different degrees against the reintroduction of border controls: Engaged journalists investigated into the reasons given by national governments for extending internal border controls;Footnote 75 individuals citizens petitioned national parliaments and the European Parliament to take action;Footnote 76 and a few individuals engaged in deliberate acts of civil resistance by refusing to show their travel documents at the border. However, follow-up litigation did not occur in all five member states. Although individual and collective actors brought cases before national courts in France and Germany, no follow up litigation occurred in Denmark, Sweden, and Austria. In the following section, I inquire into the factors that determine why follow-up litigation has been brought in some but not other member states. In the folwing subsection, I discuss the meso-level and micro-level factors determine the capacities of individual and collective actors’ to bring follow-up litigation before national courts. Even when actors initiate follow up litigation, a court’s willingness to comply with a preliminary ruling is essential. As I will discuss in subsection -II-, national courts adopt different approaches to comply with the preliminary ruling. I subsection III, I argue that when national courts are unwilling to faithfully apply the Court’s interpretation of EU law in the preliminary ruling, the role of the Commission is essential in enforcing EU law (III).
I. Actors Initiating Follow Up Litigation
As courts cannot enforce their judgments themselves, they depend on other actors to ensure that judgments are complied with. Literature on strategic litigation has shown that individual and collective actors play an important role in enforcing judgments of the Court of Justice by generating compliance pressure through legal mobilization.Footnote 77 Although the actors that mobilized against internal border controls are heterogeneous, they share one particular characteristic: They were all individuals or groups who mobilized on behalf of migrants. It is interesting to note that even though the reintroduction of border controls imposes significant economic costs on transport companies and commuters, neither companies nor commuters initiated follow-up litigation before national courts.Footnote 78 Recent scholarship on strategic litigation before the Court of Justice notes that the forces that drive strategic litigation are, among others, the belief in a cause and the desire to advance the cause.Footnote 79 The specific context in which these altruistic motives materialize differ. In France, follow-up litigation was initiated barely two weeks after the publication of the preliminary ruling by collective actors. Three migrant rights groups, who had already unsuccessfully challenged border controls in 2017 and 2019, initiated follow-up litigation before the Council of State. One activist who initiated litigation in Germany reported that:
I started my observations in the fall of 2021. It was around the time when I began observing checks and who was being checked at all […] According to my empirical observations, meaning, I kept memory protocols, it was mainly racial profiling. Predominantly non-white persons were being checked. At the beginning of 2022, I started systematically recording these checks […] I also noticed a change over time. When stricter COVID-19 measures were in place, everyone was checked. When the measures were relaxed, it was very much racial profiling.Footnote 80
Litigating on behalf of a migrant is not merely a motive for but also a mode—strategy—of litigation against restrictive migration policies. As one interviewee put it: “It’s very important to understand that these controls are part of a broader migration debate in Denmark.”Footnote 81 Although the interviewee mentioned the Danish context specifically, this also applies to other member states. The constantly rehearsed reasons in the notifications on reinstating internal border controls, which were discussed above, make this clear. The litigation strategy is that Union citizens, who are “legal insiders” and thus have more rights available in their bundle of rights to challenge the reintroduction of border controls than unauthorized migrants as “legal outsiders,” contest restrictive migration policies. In times in which governments adopt increasingly restrictive migration laws and courts sanction these restrictions by scaling back the scope of human rights in the context of unauthorized migration, using human rights of unauthorized migrants might not be an effective strategy to contest restrictive migration policies and laws anymore.
However, as Passalacqua points out, we should not overestimate the role of individual litigants or ordinary citizens when bringing follow-up litigation.Footnote 82 Persisting with follow-up litigation often requires resources, time, and EU legal expertise. EU legal expertise is essential when bringing follow-up litigation.Footnote 83 The type of actors that brought follow-up litigation before national courts after the decision in Landespolizeidirektion Steiermark reflects that. The three migrant rights organizations that initiated litigation before the French Council of State regularly litigate before the Court of Justice.Footnote 84 One follow-up litigation in Germany was initiated by a group of migrant rights activists. Although the group’s activities primarily “operates at the political level and not through strategic litigation […] Solidarity actions, everything related to the right to stay, and restrictive migration policies,” the group is also comprised of lawyers with EU law expertise who had suggested to litigate before national courts.Footnote 85 A second case before German administrative courts was initiated by Christoph Tometten, a Berlin-based lawyer who had argued the case Landespolizeidirektion Steiermark before the Court of Justice, and a legal academic—the author. The absence of follow-up litigation in Austria illustrates the limitations of individual litigants: Litigation had been initiated by a “loner,” an individual litigant with extensive knowledge in EU law but limited network embeddedness and limited access to resources to persist with litigation.Footnote 86 This situation was exacerbated by the absence of migrant rights organizations with the requisite EU legal expertise and experience in strategic litigation in Austria, which meant there were no collective actors that could readily initiate follow-up litigation.
Another factor that determines why follow-up litigation occurred in some—Germany and France—but not other member states—notably Denmark and Sweden—is the political culture in a member state. Sociolegal scholarship has shown that political culture significantly shapes actors’ inclination to turn to courts for solving conflicts in the first place. Scholarship on the Nordic countries emphasizes the prevalence of a “prudent and cautious” position towards judicial review due to a strong cultural preference for popular sovereignty,Footnote 87 which is reflected in low levels of referrals by Danish and Swedish courts,Footnote 88 as well as lower levels of litigation in public law compared to other European countries.Footnote 89 The strong cultural preference for majoritarian democracy in Denmark and Sweden does not only affect judges’ inclination not to refer cases to the Court of Justice, but also lawyers’ behavior to use EU law to overturn national laws or administrative practices. As one interviewee put it:
It’s a wide-spread cultural thing. If you use EU law in Danish courts, judges are almost laughing. The common view is that Danish law has supremacy, and the majority has supremacy … A lot of lawyers say EU law is not relevant, it’s too cumbersome, and the majority should decide.Footnote 90
Indeed, the absence of any litigation before Danish and Swedish courts against the reintroduction of internal border controls shows actors inclination to turn to political routes rather than litigating with EU law before Danish or Swedish courts. In Denmark, media covered extensively and critically the reintroduction of border controls by the government, which resulted in a parliamentary consultation on the legality of Danish border controls. When quizzed by members of the parliament on the necessity of prolonging border controls, the Danish Minister of Justice stated that “our assessment is that it constitutes a sufficiently new threat to justify implementing border controls for a new period. But we cannot deny that the European Court of Justice would see it differently.”Footnote 91 Yet, despite these legal doubts by the government itself on the legality of its own practice of prolonging border controls, no legal actions to challenge these controls occurred; rather, individuals citizens lodged petitions before the PETI Committee of the European Parliament to take action against the Danish border control practice.Footnote 92
II. The Implementation of Preliminary Rulings by Domestic Courts: Acceptance, Evasion, Refusal
When activists and lawyers seek the implementation of a preliminary ruling before national courts, national courts have—legally speaking—only one possibility: To faithfully follow the reasoning of the Court of Justice in the preliminary ruling. However, empirical research presents a more detailed and nuanced picture of different degrees of compliance by national courts with the interpretation of EU law by the Court of Justice in preliminary rulings. Even though referring national courts almost always fully comply with preliminary rulings, even if they do not agree with the reasoning of the Court of Justice,Footnote 93 national judges can comply with a preliminary ruling to different degrees: They can accept, evade or overtly refuse to comply. Even though cases of overt refusal are rare, research has shown that referring national courts adopts different strategies to evade compliance with the interpretation in a preliminary ruling with which they disagree.Footnote 94 In the following, I discuss the different degrees of compliance by national courts with the preliminary ruling in Landespolizeidirektion Steiermark.
1. Acceptance: The Referring Austrian Court
A domestic court accepts a preliminary reference judgment when it faithfully follows in its judgment not only the operative part of the preliminary ruling but also its legal reasoning. The judgment of the Administrative Court of Styria, which made the preliminary reference to the Court of Justice, demonstrates acceptance. After the Court of Justice had delivered its ruling, the referring court held that, if no new threat exists, article 25 of the Schengen Borders Code precludes the reintroduction of internal border controls for longer than six months.Footnote 95 The judgment of the referring court not only reproduces ad verbatim the operative part of the preliminary ruling, but also closely follows the Court of Justice in its legal reasoning and its thinly veiled suggestion on how the facts of the case ought to be appreciated. The Court of Justice suggested that:
In the present instance, as the Commission contends, it seems—a matter which will, however, be for the referring court to determine—that, from November 10, 2017, the date on which the last of the four Council recommendations […] expired, the Republic of Austria did not demonstrate the existence of a new threat [. . .] that would have justified triggering anew the periods provided for in Article 25 [Schengen Borders Code].Footnote 96
The referring court took up this suggestion and held that “since November 10, 2017, the day the last Council implementing decision expired, the Republic of Austria has not substantiated the existence of a new threat,” which meant that since that date border controls were contrary to EU law.Footnote 97
Notably, the referring court reiterates the reasoning of the Court of Justice in another part of the judgment. Although the Court of Justice stated in an obiter dictum that the area without internal borders where persons may move freely “constitutes one of the main achievements of the European Union,” it did not answer the preliminary question whether Union citizens to freedom of movement, article 21 TFEU and article 45 Charter of Fundamental Rights of the EU, entails the right to cross internal borders without being subject to border controls.Footnote 98 The Administrative Court of Styria reiterated the Court of Justice’s obiter dictum as premise for its interpretation that article 21 TFEU and article 45 EU-CFR entail the right of Union citizens to “move freely” across internal borders, which may only be restricted under exceptional circumstances.Footnote 99
2. Evasion: German Administrative Courts
National courts can also avoid compliance with a preliminary ruling. Instead of directly rejecting the interpretation by the Court of Justice, research has shown that national courts avoid compliance by reinterpreting the facts of a case, referring questions again to the Court of Justice, deciding a case on points of national law, or rejecting a case as inadmissible on the basis of national procedural norms after a preliminary ruling. In this way, domestic courts may “contain” the effects of a preliminary ruling without directly questioning the Court of Justice. The position adopted by German administrative courts showcases evasion.
After the decision of the Court of Justice, activists brought two legal actions before German administrative courts to challenge the reintroduction of internal border controls.Footnote 100 Already in 2019, a member of the Bavarian parliament had brought a legal action that challenged internal border controls at the German border to Austria. German administrative courts dismissed all actions as inadmissible.Footnote 101 Before going into the details of the decisions, it might be helpful to provide a brief background on the relevant legal remedies under German administrative procedural law that govern admissibility under German administrative procedural law—and thus, the possibilities for strategic litigants to challenge border controls before German courts.
Two different types of legal remedies are relevant in the context of unlawful border checks. The first type is an action for annulment against an administrative act.Footnote 102 Under German administrative law, any type of action by authorities that entails an order to do or abstain from doing something amounts to an administrative act. In the context of internal border controls, measures by the police that require a person to establish their identity, such as stopping someone or requesting travel documents, amounts to an administrative act. An action for annulment is only admissible if the contested administrative act still unfolds legal effects. The principal problem in the context of border controls is that an administrative act, in the moment it is contested before courts, does not anymore produce legal effects because the specific measures, for example showing a passport or being stopped, has ended. An action of annulment is therefore generally inadmissible.Footnote 103
The second type of legal remedy is an action for a declaratory judgment.Footnote 104 With the action for a declaratory judgment a plaintiff can seek a judicial declaration that an administrative act had been unlawful, even if the act does not anymore produce legal effects. The action for a declaratory judgment is however subject to strict standing requirements. German courts consider an action for a declaratory judgment only admissible if the plaintiff has a legitimate interest in the ex-post determination of the lawfulness of an administrative act. A legitimate interest can result from, among others, a particularly serious infringement of fundamental rights that results from a border check or the risk that the plaintiff is subject to a recurrent unlawful border check—risk of recurrence. Both standing criteria are restrictively interpreted by German administrative courts.
The Administrative Court Munich held that there was no risk of recurrence or serious infringement of fundamental rights. The court held that the high threshold for a risk of recurrence would only be met if the plaintiff would be frequently subject to unlawful border checks. The court considered that crossing the German-Austrian border several times a year did not suffice for meeting the threshold of recurrence.Footnote 105 Likewise, the court rejected that an unlawful border check would amount to a serious infringement of fundamental rights:
An identity check is generally a relatively minor interference. [T]he measures to establish identity only interfere with the general right of personality or the general freedom of action of the plaintiff in an insignificant manner without any recognizable lasting effect due to their objective, the short duration of a few minutes and the intensity of the interference with the protected legal interest.Footnote 106
Therefore, the court rejected the action for a declaratory judgment as inadmissible. Already in an earlier decision by a different chamber, the Administrative Court of Munich considered an action for a declaratory judgment, which was brought by a member of the Bavarian parliament, as inadmissible on the same grounds of a lack of risk of recurrence and lack of serious infringement of fundamental rights.Footnote 107
Evasion becomes obvious in the approach adopted by the Administrative Court of Munich. The Administrative Court of Munich explicitly acknowledges the dilemma between narrow standing criteria in German administrative procedural law and the right to an effective remedy under article 47 of the EU Charter of Fundamental Rights. A narrow interpretation of standing criteria means that individuals have no legal remedy against, unlawful, border controls under German administrative law. Yet, the Administrative Court of Munich based its hermeneutic position entirely on German law. It neither substantively addressed this dilemma, nor did it decide to refer the case to the Court of Justice. Instead, the court referred to the case law of the German Federal Administrative Court and argued that article 47 of the Charter on Fundamental Rights would clearly not mandate a higher standard of protection than German fundamental rights law.Footnote 108
However, the court stated in an obiter dictum that the prolongation of internal border controls by the German government is very likely contrary to EU law, because the government had not shown the existence of a new threat. The court relied in its argumentation on the legal reasoning of the Court of Justice in Landespolizeidirektion Steiermark. The court argued that the Court of Justice stated “unequivocally” that unexceeding the six-month maximum duration would inevitably mean that internal border controls are incompatible with the Schengen Border Code.Footnote 109 The upshot of the ambiguous position adopted by the Administrative Court Munich is that it creates spaces in which the exercise of state power remains unchecked by the courts.
3. Refusal: The French Council of State
A national court may also overtly refuse to comply with a preliminary reference judgment. Prominent examples are the decisions of the German Constitutional Court in Weiss,Footnote 110 the Italian Constitutional Court in the Taricco decisions,Footnote 111 or the Danish Supreme Court in the Dansk Industri judgment.Footnote 112 Such cases of overt disagreement on the interpretation of EU law between a highest national court and the Court of Justice are rare though. Much more common is a more subtle form of non-compliance: The refusal of highest courts to refer a case to the Court of Justice when they are clearly obliged to do so. We can see both forms of refusals in the decisions of the French Council of State on the reintroduction of internal border controls by the French government.
Two weeks after the Court of Justice had published its decision in Landespolizeidirektion Steiermark, three organizations for migrant rights brought legal actions before the Council of State against the prolongation of internal border controls from May 1 to October 31, 2022 by the French government. The Council of State held that the novel prolongation of internal border controls by the French government was in accordance with EU law, because the controls were based on the existence of new threats. Several points in the decision demonstrate the overt refusal of the Council of State to comply with the preliminary ruling in Landespolizeidirektion Steiermark.
First, the Council of State seems to deliberately ignore the decision in Landespolizeidirektion Steiermark. Although the Council of State refers to Landespolizeidirektion Steiermark when it distinguishes between new and renewed threats, it is the only reference to the Court of Justice in the entire decision by the Council of State. The Council of State’s decision does not include any substantive engagement with the reasoning of the Court of Justice. Second, the Council of State develops its own broad interpretation of a new threat that is difficult to square with the reasoning in Landespolizeidirektion Steiermark.Footnote 113 For the French judges, a new threat would constitute either circumstances that are “of different nature than the preceding threat” or “new circumstances and events that modify” its timeliness, scope or intensity, or the geographic origins of a threat.Footnote 114 This broad interpretation runs afoul of the Court of Justice’s reasoning that the existence of a new threat must be assessed against the same criteria used for the assessment of the initial threat.Footnote 115 The Court of Justice unequivocally held that assessing an initial threat “in light of new elements” is not sufficient to amount to a new threat, which would permit a fresh application of article 25(4) of the Schengen Borders Code 2016.Footnote 116 Third, the appreciation of the facts by the Council of State show an almost boundless deference to the government. When the Council of State assesses whether the French Prime Minister’s decision to extend internal border controls is based on threats relating to terrorism, the Council haphazardly enumerates various situations that would constitute a new serious threat to internal security or public policy: An attack on a prison in Northern Syria, the general instability in regions of Iraq and Syria, an increase of calls by ISIS to carry out attacks against Western targets, and terrorist networks in central and western Africa.Footnote 117 Following this reasoning, events occurring anywhere in the world would amount to a serious threat to the internal security of France that would justify the prolongation of internal border controls.Footnote 118 The generic and haphazard assessment by the Council of State is difficult to square with the dictum of the Court of Justice that the assessment of whether an event amounts to a serious threats must be based on “clear and objective criteria.”Footnote 119
The Council of State’s overt refusal to comply with the decision in Landespolizeidirektion Steiermark has a longer trajectory. In 2017 and 2019 the Council of State rejected two legal actions brought by migrant rights organizations against the decision of the government to prolong internal border controls.Footnote 120 In both cases, the Council of State did not make a preliminary reference to the Court of Justice, although it is obliged to submit a reference as a highest national court.Footnote 121 As mentioned above, overt disagreement on the interpretation and the refusal of a highest court to make a reference to the Court of Justice represent two sides of the same coin of non-compliance.
4. Explaining Variations in Judicial Receptivity
The preceding discussion of the different degrees of (non)compliance—acceptance, evasion, refusal—by national courts with the preliminary reference judgment in Landespolizeidirektion Steiermark suggests that these differences are determined by a variety of structural factors: The hegemonic national legal culture, national procedural rules, entrenched institutional hierarchies and institutional path dependencies, among others, determine compliance by national courts. For instance, the narrow doctrine the admissibility of actions for a declaratory judgment shapes the approach by German administrative courts in follow-up cases. Virtually every textbook on German administrative procedural law includes this doctrine, which is symptomatic of the reluctance of judges, especially first instance judges, to change that doctrine. Yet, at the same time, German judges did not shy away from finding clear words that the reintroduction of border controls is substantively contrary to EU law. Compare this to the French context: Liberal standing rules enable civil society organizations to seek annulment of the decision of the government to reintroduce internal border controls before the Council of State. The position of the judges at the Council of State on such a sensitive question as internal border controls seems to be conditioned by their proximity to the government,Footnote 122 as well as the Council of State’s track record of non-compliance with judgments of the Court of Justice.Footnote 123
Yet, even full compliance with a preliminary reference judgment by national courts is not necessarily a cause for celebration for strategic litigants, as the practice of contained compliance by the Austrian government shows. By ignoring the erga omnes effect of the judgment by the Court of Justice and “containing” its effects to the individual case, the government effectively forces individuals to claim their free movement rights under EU law again and again, which is, as Hofmann notes, a “cumbersome strategy that only few can afford.”Footnote 124 Moreover, contained compliance by the Austrian government also shows a more structural legal issue. The prolongation of border controls in Austria are based on a new national regulation that the ministry of interior adopts every six months. However, the average duration of procedures before Austrian administrative courts amounts from almost six months to significantly more than six months given regional differences between different administrative courts.Footnote 125 This means that by the time Austrian administrative courts invalidate a national regulation that reinstates internal border controls, the government will likely have adopted a novel national regulation that must be contested again in new proceedings that again are likely to last longer than six months. In such a context of contained compliance, judicial review becomes a farcical spectacle in which the rule of law is reduced to an absurdity.
III. The Absent Guardian: the Enforcement of Preliminary Rulings by the Commission
Public and centralised and private and decentralised enforcement of EU law are often described as two complementary sides of the enforcement of EU law. As the Commission lacks the adequate resources to monitor compliance with EU law in member states, let alone to bring a representative number of infringement cases before the Court of Justice,Footnote 126 an effective enforcement of EU law depends on private individuals bringing their cases to the Court of Justice by way of preliminary references. Strategic litigation through preliminary reference procedures is part of an effective enforcement of EU law.Footnote 127 What is less noticed, however, is that private enforcement of EU law is only effective if it is backed up by public enforcement, especially in situations in which governments or courts at the national level are unwilling to comply with a preliminary ruling. I distinguish between two different forms of enforcement by the Commission: First, traditional “hard” enforcement of preliminary rulings under article 258 TFEU; and second “soft” enforcement of preliminary reference judgments by exercising pressure on member states through processes of cooperation mandated by EU legislative instruments.
First, if a member state fails to comply with a preliminary ruling, the Commission may use its powers under article 258 TFEU and initiate an infringement procedure against the recalcitrant member state. When a member state still does not take the necessary steps to comply with the judgment in the infringement procedure, the Commission can seek in a second procedure the imposition of financial sanctions against the member state under article 260(2) TFEU. In the enforcement of preliminary reference judgments, this two-step procedure might prove inefficient as it takes several years before financial sanctions might be finally imposed on a recalcitrant member state. To avoid such an inefficient enforcement of preliminary rulings, some scholars point out that article 260(2) TFEU could be applied to preliminary rulings under article 267 TFEU. Indeed, the wording of article 260(2) TFEU only speaks of judgments in general and does not distinguish between different types of judgments. Although structural differences between the preliminary reference procedure and the infringement procedure militate against the application of article 260(2) TFEU to preliminary rulings—in preliminary references the Court of Justice neither decides on the compatibility of national law with EU law, nor does it apply EU law to a specific case, and the ruling is only directly binding on the referring court—article 260(2) TFEU could, nevertheless, be applied to preliminary rulings which “in fact pass judgment on the legality of the national measure.”Footnote 128 This would include preliminary rulings in which the reasoning of the Court of Justice leaves little doubt that the national measure is incompatible with EU law.Footnote 129 Indeed, the Court of Justice acknowledges that specific preliminary rulings make it “apparent that national legislation is incompatible with EU law.”Footnote 130 By contrast, the enforcement of preliminary rulings in which the Court of Justice expressly leaves different options on how to faithfully apply the preliminary ruling to the case before the domestic court would not be covered by article 260 TFEU.
Second, in addition to the hard enforcement of EU law under article 258 TFEU, article 27a of the Schengen Borders Code 2024 entails a procedure for the “soft” enforcement of the rules of the Schengen Borders Code. Under article 27a Schengen Borders Code 2024, the Commission shall, first, establish consultations when a member state plans to reinstate internal border controls with the objective to establish the necessity and proportionality of controls. If a member state reinstates controls contrary to a negative assessment by the Commission, the Commission shall issue an opinion on the necessity and proportionality of controls. The opinion issued by the Commission is thus part of a broader framework of mutual cooperation between member states and the Commission with the objective to ensure the proper functioning of the Schengen Borders Code.Footnote 131 This could be labeled the preemptive function of article 27a Schengen Borders Code 2024—it essentially aims at avoiding litigation by triggering procedures of political cooperation and deliberation. Yet, article 27a Schengen Borders Code 2024 also has a remedying function. When strategic litigants seek to implement the decision in Landespolizeidirektion Steiermark before national courts, an opinion on the compliance of internal border controls with EU law by the Commission can create a normative compliance pull on national judges who often have little knowledge on the EU law that governs the absence of internal border controls. Moreover, a public opinion might also be an important source in shaping a broader public discourse by feeding valuable legal information into a broader public discourse on migration policies, of which border controls are part.
Despite the various possibilities to enforce the rules of the Schengen Borders Code and the preliminary ruling in Landespolizeidirektion Steiermark, the Commission chose not to use any of the available instruments. Rather, the Commission made use of its discretion and did not initiate an infringement procedure under article 258 TFEU against any of the member states that maintain internal border controls. The non-initiation of infringement proceedings by the Commission reflects a general and significant decrease of infringement procedures initiated by the Commission.Footnote 132 Keleman and Pavone argue that the decrease in infringement procedures reflects the Commission’s turn to a “politics of forbearance.”Footnote 133 With the swearing in of the new Commission in 2004, the political leadership of the Commission seem to have worried that vigorous public enforcement would jeopardize member states support for its law-making agenda. The Commission’s political leadership therefore privileged its role as motor of integration over its role as guardian of the Treaties. This became possible, as Keleman and Pavone argue, because the political leadership of the Commission was not sufficiently insulated from external political pressure from member states.Footnote 134 To implement this agenda of prioritizing the Commission’s role as motor of integration, cabinets of the Commissioners increasingly began to rein in the Commission’s career officials and lawyers who handled the infringements.Footnote 135 The Commission’s choice to prioritize its agenda setting role and push for an amendment of the Schengen Borders Code became clear soon after member states reinstated internal border controls. In 2017, the Commission tabled a legislative proposal to reform the Schengen Borders Code.Footnote 136 Due to different political views between member states, as well as the Commission and the European Parliament, the proposal got stuck in the legislative process. However, the priority of the Commission’s political leadership was set on reforming the Schengen Borders Code for which it needed the support of member states. Even though Commission officials were “convinced” that maintaining internal border controls beyond November 2017 was contrary to EU law,Footnote 137 the Commission’s political leadership decided not to take any action against member states— neither under article 258 TFEU, even though enforcing the preliminary ruling in Landespolizeidirektion Steiermark would qualify as priority case under the Commission’s own criteria,Footnote 138 nor to issue an opinion under article 27a Schengen Borders CodeFootnote 139— even though several opinions on under article 27a Schengen Borders Code had been prepared by Commission officials.
However, none of these opinions were eventually published and they were all shelved after interventions from the political cabinets. As one Commission official explains: “It’s [i.e. the opinion] a political signal to the member states. It’s a shot across the bow of the member states, which is why the procedure is not being applied. The next logical step in the case of a negative opinion would be to initiate infringement proceedings.”Footnote 140 Notably, the Commission’s role as motor of integration and the resulting politicization of enforcement of EU law also seems to be prioritized over the Commission’s legal obligations by its political leadership. Both the Court of Justice and the Advocate General held in clear terms that the Commission has a legal obligation to issue an opinion under article 27a Schengen Borders Code, if it has doubts on the necessity or proportionality of internal border controls.Footnote 141 Indeed, in 2021 the Commission tabled another legislative proposal to amend the Schengen Borders Code, which sought to change primarily the rules relating to the reintroduction of internal border controls with the objective of giving member states more leeway when deciding to reinstate internal border controls.Footnote 142 The behavior of the Commission seems to be more influenced by the “hard-nosed interest politics of the cabinets” to pursue the reform of the Schengen Borders Code,Footnote 143 and the unwillingness of several Commissioners to go against “their” member states on such a politically sensitive issue of reintroduction of border controls.
Politicization of enforcing the rules of the Schengen Borders Code and the tight control exercised by the cabinets over Commission officials was also confirmed in interviews, as well as the different past approaches to the enforcement of the Schengen rules by the Commission. In the past, the Commission took a fiercer stance on defending the principle that there shall be no border controls.Footnote 144 When France reintroduced internal border controls in 2011 as reaction to Italian migration policies, “there was still fundamental support in the [Commission] for initiating infringement proceedings.”Footnote 145 This changed in 2015 and the ensuing more restrictive migration policies and discourse in member states: “A politicization of infringement proceedings [in AFSJ] has taken place, especially since 2015. From that moment on, there has been very strong control by the political level.”Footnote 146 The tight political control exercised over the enforcement of EU law might also have a chilling effect on Commission officials and lawyers: “This political expediency is frustrating. It also leads to pre-emptive obedience of the technical staff: if it no longer seems politically opportune, the technical staff does not even propose initiating infringement proceedings anymore.”Footnote 147
F. Conclusion
This Article discussed the promises and pitfalls of strategic litigation in EU law by focusing on the afterlife of a preliminary ruling in several member states. I want to emphasise three specific points that emulate from the preceding discussion. First, the preceding discussion has shown the limits of strategic litigation by collective actors and individual citizens when they face recalcitrant implementing authorities. Even though national courts remain the most important for implementing preliminary rulings, public enforcement by the Commission is crucial when either implementing authorities contain the effects of a preliminary ruling or national courts are unwilling to faithfully apply the Court of Justice’s reasoning in the preliminary ruling. A more political Commission and the prioritization of its legislative function as well as a reduction of public enforcement imply a stronger shift of enforcement of EU law towards private actors and individual citizens. Indeed, the Commission’s policy entails, among others, to enhance the capacities of citizens to strategically litigate with EU law.Footnote 148 Yet, if strategic litigation by citizens and private actors is not backed up by the threat of public enforcement by the Commission, it might counter these efforts to enhance citizens’ strategic use of EU law. EU law then does not live up to its promise of ensuring that citizens enjoy effective rights under EU law.
Second, in situations in which national authorities are unwilling to implement a preliminary ruling, national courts are reluctant to faithfully apply the preliminary ruling, and the Commission as guardian of the Treaties is absent, litigants may need to adapt their litigation strategies. For instance, if national administrative courts are unwilling to faithfully apply the preliminary ruling in Landespolizeidirektion Steiermark, either because of strict standing requirements or their proximity to the executive, as discussed above, litigants may need to adapt their litigation strategies and identify other branches of the national judiciary and other remedies under national law through which the preliminary ruling could be enforced. Further, in member states where administrative courts open refuse to comply with the preliminary ruling, litigants may adapt their litigation strategies and turn to either criminal courts—contesting criminal charges that are based on border checks that are contrary to EU law—or civil courts by using the doctrine of state liability to claim damages incurred by travelers, companies, or commuters from border checks contrary to EU law.Footnote 149 Yet, there are limitations to such a change of the litigation strategy; the actors that contested the reintroduction of internal border controls are migrant rights NGOs or other collective actors with expertise in migration law, who likely lack an expertise in the field of state liability in EU law and national torts law. The specific knowledge of EU law is, as the introductory Article emphasizes, perhaps the most important resource that actors require to litigate strategically with EU law.Footnote 150
Third, the aftermath of the preliminary ruling in Landespolizeidirektion Steiermark also shows the necessity to embed strategic litigation, as Lisa Conant points out, in broader strategies of and campaigns of legal mobilization.Footnote 151 For otherwise a “successful” judgment, from the view of the litigants, risks to be legislatively overturned and the objectives of strategic litigation—to achieve broader societal, political, or economic change—to be buried. Strategic litigation would then be nothing but the fulfilment of individual ambitions of lawyers, rather than an effective means for change.
Acknowledgements
Thanks to Alberto Alemanno, Pola Cebulak, and Marta Morvillo for comments and feedback that helped to improve earlier drafts of this article. I also want to thank the participants of the workshop “Strategic litigation in EU law”, held in Amsterdam on 21-22 March 2024, for critical feedback.
Competing Interests
The author declares none.
Funding Statement
Research for this article has been partly funded by the startersbeurs grant by the Dutch Ministry of Education, Science, and Culture.
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