Introduction
This case note takes a close analysis of the seminal Landespolizeidirektion Footnote 1 case as a starting point to examine worries about underenforcement by the Commission as provokingly argued for by Kelemen and Pavone.Footnote 2 While a political science perspective is indispensable to an empirical grounding of the argument about Commission’s underenforcement, I seek to legalise their argument into the language of constitutional theory and propose possible institutional improvements which would better realise the ideal of the separation of powers. The Landespolizeidirektion case is consequential in its own right, but my suggestion is that it also points to and helps us understand broader issues in EU constitutional law.
The case note proceeds in three parts. I begin with the summary and analysis of the case, then continue to place it within Kelemen and Pavone’s framework of ‘politics of forbearance’ and restate it in terms of constitutional theory, and finally offer some possible institutional improvements.
Schengen fragmented
The Landespolizeidirektion case takes place against the backdrop of the fragmentation of the Schengen area, largely as a result of the proliferation of temporary reintroductions of border checks in the wake of the 2015 migration ‘crisis’.
The Schengen Border Code and the European Court of Justice proudly affirm that Schengen is an ‘area in which the free movement of persons without internal border controls is ensured is one of the main achievements of the European Union’.Footnote 3 We can think of the achievement of Schengen as a corollary of the four fundamental freedoms, namely the free movement of persons, services, goods, and capital. It is also an integral part of the project of identity building, of ‘fostering a supranational political identity of Union citizens’.Footnote 4
At an even deeper level, the removal of internal frontiers is part of the broader vision of the EU as a project of European integration which aims to make Europe ‘whole again’, by overcoming the physical and legal ‘walls’ and ‘curtains’ which have divided the continent in the post-Second World War period. In short, the undermining of Schengen can plausibly be considered an existential risk to the idea of the EU, one among many others. Given its importance, one would expect that the Union’s institutions would be steadfast and aggressive in defending the achievements of Schengen. While the Court has arguably done so in the judgment analysed below, the Commission has unfortunately failed to take any meaningful enforcement action to defend Schengen against fragmentation.
The fragmentation of Schengen has principally occurred through the reintroduction of temporary border checks in a number of member states. These checks have effectively been in place from 2015 until the present day, with no end date in sight. It seems safe to say they are quasi-permanent and that the promise of Schengen as an area without internal frontiers is in this sense compromised. While most intra-Schengen borders remain intact, it is the entrenched and predictable variable geometry of the reintroductions of the border checks which amounts to a fragmentation of Schengen as a whole.
The border checks were initially started as part of the member states’ response to the refugee and migration crisis of 2015. While they had a solid legal basis for the first two years, until November 2017, these measures have arguably been incompatible with EU law ever since. This is where the Landespolizeidirektion case enters the picture.
Case summary
An Austrian citizen identified as NW underwent two inspections while entering Austria from Slovenia in 2019. NW declined to present a passport or ID to the border control officer, which he was not required to present pursuant to the general rules of the Schengen Border Code, instead requesting the officer’s registration number and questioning the nature of the check, specifically whether this was an identity or a border check. While identity and police checks are allowed under the Border Code, border checks are in principle prohibited.
Arguing that border checks were inconsistent with EU law, NW, who only agreed to provide a driving licence, received a €36 fine. He appealed to the Styrian Regional Administrative Court, which, acknowledging the fine as an application of Austrian law, sought clarification from the European Court of Justice on its compatibility with EU law.
Austria has, along with other member states such as, inter alia, Denmark, Germany, France, and Sweden, reinstated internal border controls in 2015 amid the refugee crisis in the aftermath of the Syrian war. Initially, the border controls were authorised under Article 29 of the Code through a Council recommendation based on a Commission proposal. The last Council recommendation expired on 10 November 2017.
After November 2017, any further extensions could only be grounded in a serious threat to public policy or internal security in the member state concerned. The Schengen Border Code covered unforeseeable threats in Article 28 and foreseeable threats in Article 25(1). Extensions were based on Article 25(1), allowing 30-day periods, with notification to the Commission and other member states as per Article 27 of the Code.
Austria adhered to the steps laid out in this process, yet Article 25(4) of the Code stipulates a maximum six-month period for reintroduced border controls, including extensions. Here is the crucial paragraph: ‘the total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed six months’.Footnote 5 The six-month limit has clearly been exceeded, many times over.
Austria and intervening member states contended that a new threat or a reassessment of a prior threat could justify further extensions. While the Court accepted the argument about new threats, it firmly rejected the idea of reassessing prior threats, as well as direct appeals to primary law.Footnote 6
The Court, employing literal, contextual, and teleological analysis, emphasised the strict interpretation of any reintroduction of internal border controls. The wording of Article 25(4) of the Code sets the limit at six months. Moreover, the entire structure of how border checks can be reintroduced or extended, as well as their total duration, is set out in clear and precise language by the Schengen Border Code, creating a tight legislative instrument with little ambiguity. Teleologically speaking, the Code seeks to balance free movement of persons with public policy and national security. As such, the latter are to be treated as derogations from the fundamental freedom of free movement and interpreted strictly. On this basis, the Court ruled that the continuation of an existing threat cannot justify a prolongation of border checks. It is only a new threat which can be used as a basis to institute a new temporary reintroduction of border checks. Unfortunately, the European Court of Justice did not specify what constitutes a new threat, leaving this open to the determination of the referring court.Footnote 7
Considering the vague guidance on what constitutes a new threat, the application of this ruling in the various member states which have temporarily reintroduced border checks remains uncertain. Thus far, member states have found a variety of ways to continue and indeed expand the temporary reintroduction of border checks, often relying on shifting the legal basis for extensions of border checks and thus finding ever-new threats. Germany, for example, introduced temporary border checks on all of its land borders in September 2024. As justification, it cited everything from the burden on housing and healthcare from irregular migration all the way to protecting against Islamist terrorism and cross-border crime. Thus far, we have no proportionality analysis of this, or other, reintroductions of border checks from the Commission.
Beyond the underdetermined language in the judgment about what constituted a new threat, there are some commentators who contend that the Court’s strict interpretation was too rigid and that it should have followed Advocate General Saugmandsgaard Øe’s Opinion, in which he suggested that extensions beyond six months should not be banned tout court but should instead be subject to a refined proportionality test, thus giving more margin of appreciation to the member states and their concern for public order and internal security.Footnote 8 The Advocate General was sensitive to the situation of the member states who at the end of a six-month period still face the continuing threat on the basis of which they reintroduced border checks in the first place.Footnote 9 Rather than preclude border checks beyond the six-month limit, the Advocate General invited the Court to recognise the potential legitimacy of border checks on the basis of a renewed threat so long as the member state passed the test of enhanced proportionality.Footnote 10 The enhanced proportionality proposed looked very much like normal proportionality, with the main difference being that the appropriateness and necessity of the measure needed to be assessed ‘in even greater detail’.Footnote 11
The idea here was that a more flexible posture from the Court would have allowed for an evolution in the interpretation of the Schengen Border Code, which many member states see as unworkable in its current form, without the need for legislative changes which are hard to come by due to the politically sensitive nature of the file. One can see the appeal of this approach, but I would suggest that the Court was right to conclude that the Code already contains a very careful balancing in its legislative language and so the clearly determined hard limit of six months had to be interpreted strictly. Anything other than that would amount to the Court second-guessing the balance struck by the legislature and imposing its own view on how free movement and security are to be balanced. The fact that the Schengen Border Code is hard to amend is a real problem, but it should arguably be left for the legislature to resolve rather than for the Court.
The questions of interpretation and guidance discussed above are very important, but I would argue that the most striking feature of the Landespolizeidirektion case lies elsewhere. It is a case which reveals the Commission’s reluctance to actively enforce the Schengen Border Code and thus points to the larger constitutional issue of underenforcement and the separation of powers. It is the role this case can play as a symptom of a wider issue which I would like to focus on.
An absent guardian
The Landespolizeidirektion ruling came as a result of a preliminary reference from the Austrian court. Ultimately, the case is a result of scholarly activism since the applicant (NW) is himself a scholar on EU law.Footnote 12 Without such activism this case would not have happened, even though during the proceedings before the Court the Commission itself argued that Austria’s actions were not within the limits of EU law after 10 November 2017. As per the Court:
NW and the Commission contend that the reintroduction of internal border control under Articles 25 and 27 of the Schengen Borders Code for a period exceeding the maximum duration of six months laid down in Article 25(4) necessarily results in that border control being incompatible with EU law.Footnote 13
The problem with this is that under Article 27(4) of the Schengen Border Code, as confirmed by the Court, if ‘the Commission has concerns as regards the necessity or proportionality of the planned reintroduction, it is required to issue an opinion to that effect’.Footnote 14 Despite this requirement, the Commission admitted during oral hearings that ‘it did not issue such an opinion … even though it takes the view that … that border control was incompatible with the Schengen Borders Code and, consequently, with EU law’.Footnote 15 This is a rather serious failure on the part of the Commission, and the Court itself admonishes ‘that it is essential, in order to ensure proper operation of the rules established by the Schengen Borders Code’Footnote 16 that the Commission exercise its functions properly as conferred on it by the Code, specifically in Article 27.
As one would expect, pretty much every commentator on the case notes this failure to issue an opinion and ensure the proper operation of the rules by taking enforcement steps. Some of the phrases are: ‘astonishing passivity of the Commission’,Footnote 17 ‘the Commission … remained silent’,Footnote 18 ‘the Commission was absent’,Footnote 19 ‘the Commission’s inertia did not go unnoticed’.Footnote 20
On the relation between underenforcement and Schengen
In this section I will discuss Kelemen and Pavone’s argument for underenforcement on the part of the Commission. While their evidence is rather compelling on a general level, one is always faced with the difficulty of establishing that the enforcement has been too weak in any given case. For example, Scheppele argues that the Commission largely failed in its (lack of) efforts to protect EU law against the rule of law crisis in Hungary and Poland, particularly in relation to judicial independence. Her basic contention is that the Commission did too little in relation to Hungary, while acting too late to change the facts on the ground in respect to Poland. In her analysis, she draws on Kelemen and Pavone’s work discussed above, expounding on the cases of Hungary and Poland as examples of the general trend of the politics of forbearance.Footnote 21 While intriguing and thought provoking, Scheppele’s argument, like its underlying hypothesis of forbearance, is rather controversial since it is unclear what tools the Commission had to enforce rule of law backsliding in the years preceding the 2018 Portuguese Judges Footnote 22 judgment of the European Court of Justice. Like in this instance, most accusations of underenforcement in specific cases can usually be parried in one way or another.
The importance of Landespolizeidirektion, beyond its direct doctrinal and practical impact, thus lies in its status as a case where underenforcement is clear cut. While we may have sympathy for the Commission’s reluctance to launch infringement proceedings on judicial independence without a watertight legal argument prior to Portuguese Judges, the temporary reintroductions of border controls by Austria and other member states run against the plain language of the Schengen Border Code.
Enforcing the literal provisions of Article 25(4) by following the duty to issue an opinion laid out in Article 27 presents no extraordinary challenges of legal argumentation. This is why some commentators on the case themselves allude to a version of the underenforcement argument.
As Rom suggests, ‘the Commission abstained from initiating any infringement proceedings because this would have fed into the Member States’ narrative that the Commission prevented them from protecting their citizens against terrorism. Their reasoning, in other words, was purely political and not legal’.Footnote 23 One can expand Rom’s argument by noting the broader fear that if the Commission is seen to be fighting member state governments when the latter are trying to be ‘tough on migration’, such interventions risk pushing their electorates into further Euroscepticism. It was in Austria, after all, that the Eurosceptic and right populist Freedom Party first came into power in 2000 and emerged as the largest party in the 2024 elections. Now that these types of parties and political programmes are present throughout the Union (from Sweden to Italy), strong enforcement of the Schengen Border Code may indeed further exacerbate the existential political crisis in the EU, namely nationalist Euroscepticism. The political and the legal logic are hard to reconcile here, so one can be quite sympathetic to the Commission’s predicament.
It is important to stress that the case law in this area is rather limited and that there is a danger of over-reading this one judgment. However, the claim that there is underenforcement in relation to the temporary reintroduction of border checks within Schengen has precisely to do with the absence of opinions and infringement actions brought by the Commission. At least prima facie, it is not clear whether the temporary border checks since 2017 have been proportionate and so the very fact that the Commission has not provided opinions on this matter over such a length of time and the great number of member states involved is itself the core part of the argument for underenforcement. The Landespolizeidirektion case may thus offer clues to understanding a broader dynamic of underenforcement in the area of the Schengen Border Code.
Kelemen and Pavone on the Commission’s politics of forbearance
One way to understand why the Commission has not issued an opinion and launched an infringement procedure against Austria even though in oral hearings it took the view that the temporary reintroduction of border checks was not compliant with the Schengen Border Code, is by looking at the work of Kelemen and PavoneFootnote 24 and their argument that the Commission has been underutilising its infringement powers starting in 2004 and continuing, with modest variations, to the present day. This is a controversial position in political science debates on the EU and Kelemen and Pavone’s findings remain contested.Footnote 25 The present note does not engage directly in this underlying debate of whether there is underenforcement, instead taking Kelemen and Pavone’s findings as a plausible hypothesis.
The basic tenor of Kelemen and Pavone’s account is that an explanation is needed for the sudden drop in the number of infringements opened after 2004.Footnote 26 They argue that in the face of mounting scepticism for its legislative agenda in the Council and European Council ‘the Commission safeguarded its role as engine of integration by partially sacrificing its role as guardian of the Treaties’,Footnote 27 which is to say that it adopted a posture of forbearance.Footnote 28
Schematically put: the Commission has a legislative agenda for which it needs broad support and often unanimity in the European Council. In an environment of constrictive dissensus, an infringement procedure against any particular member state causes great problems in securing support for the said legislative agenda. To address this problem and secure support, the Commission takes a political rather than legal decision not to open or pursue an infringement action which it otherwise would, all things being equal. The way this is achieved within the Commission is to exercise direct political control from the top over the career lawyers and bureaucrats who were traditionally independent in pursuing infringement actions.Footnote 29
In relation to the Schengen Border Code and Landespolizeidirektion, Kelemen and Pavone’s framework allows us to understand the Commission’s reluctance to conduct a proportionality analysis or to launch an infringement procedure as a partial sacrifice of its function as the guardian of the Treaties, in this case mandated by Article 27 of the Code, so as to try to secure support for its legislative efforts to reform the Code. When the two basic tasks of the Commission come into direct tension, as they do over the question of enforcement of the Schengen Border Code, the framework suggests we should expect this kind of an outcome.
Separation of powers and the Commission’s dual role as motor and guardian
Kelemen and Pavone look at the issue of enforcement from a political science perspective, but much of their analysis implicitly suggests that there is a separation of powers problem at the core of Commission’s underenforcement of EU law. The thrust of the argument is that the Commission’s dual role as motor of integration and guardian of the Treaties under certain conditions leads to a situation where the latter is partially sacrificed in order to advance the legislative agenda. Insofar as the tension between legislation and enforcement lies behind the problem of underenforcement, this can be seen as a classic separation of powers problem.
I follow Waldron in singling out two central virtues which the concept of the separation of powers counsels to a sound constitutional design. These are articulated government and the integrity of each of the powers. The principle of integrity demands that the dignity of legislation is respected, that the judiciary is independent, and that the executive has the authority to enforce the law.Footnote 30 Just like an intrusive executive can undermine the independence of the judiciary, so too can an activist court erode the dignity of legislation. When each of the powers has its own integrity we can in turn benefit from articulated government, one in which the ‘undifferentiated political decision to do something about person X’Footnote 31 gives way to a succession of articulated stages in which the legislative branch lays down a general provision (and not simply one which targets X), the judiciary interprets and applies the law to the particular case, and the executive carries out the necessary administrative and other measures to make sure the law is complied with. This procedure prevents the exercise of arbitrary power in a number of ways and acts to enhance political liberty.
Separation of powers in the EU
As President Lenaerts suggested in 1991, the separation of powers ‘should condition every exercise of public authority’, whatever the particularities of constitutional design.Footnote 32 He proposed a ‘functional’ reading of the separation of powers in the context of the EU, where, for example, ‘… the executive power relates to the function of applying the said legislative rules to individual cases or specific categories of cases …’.Footnote 33 Under the EU’s executive federalism much implementation and enforcement will happen at the member state level, some will take place via EU agencies, while other aspects will be administered directly by the Commission or by the Council, e.g. in the area of the Common Foreign and Security Policy. What matters from a functional understanding of the separation of powers is that the executive function maintains its integrity in relation to the other two branches and works with them so as to deliver articulated government. Concretely, the Commission and the Council both fulfil some executive functions while also participating in the legislative process, the Commission with its right to initiate legislation and the Council as the European Parliament’s co-legislature.
The Commission is not exceptional insofar as it is a sort of executive power which also participates heavily in the legislative process, a practice present in many parliamentary systems. It is likewise not exceptional among supranational executives, such as those of the Andean or East African Community, which ‘double-hat’ as prosecutors and agenda-setters.Footnote 34 The question is one of functional integrity of each branch, which is needed to achieve the ideal of articulated government, itself a vital contributor to the ideals of the rule of law and political liberty. The Commission acknowledges as much in its 2024 Rule of Law Report when it discusses prosecutorial independence in the member states. While recognising that the ‘organisation of national prosecution services varies’Footnote 35 throughout the EU, ‘institutional safeguards should guarantee the autonomy of the prosecution service’.Footnote 36 Crucially, prosecution services need to be able to conduct their work ‘without interference’.Footnote 37
By looking at the practices across the member states of the Council of Europe, the Venice Commission observed that even in the countries where the prosecutors are formally subordinate to the executive, ‘there is a widespread tendency to allow for a more independent prosecutor’s office, rather than one subordinated or linked to the executive’.Footnote 38 The subordination of the prosecutors in these countries, which is somewhat analogous to the role of the prosecutorialFootnote 39 functions of the Legal Service inside the Commission, is thus more a matter of ‘principle than reality’,Footnote 40 with practical independence as the norm.
The central worry with respect to the Commission and its dual role is that the functional integrity of the two respective functions has been undermined ever since the President of the Commission, the College, and the Secretary-General took a more active role in approving or halting infringement procedures prepared by the Legal Service. If the account sketched by Kelemen and Pavone is correct, then the requirements of securing support for the legislative agenda has undermined the integrity of the Commission’s role as the guardian of the Treaties. The danger of such interference is also flagged by the Venice Commission’s analysis of national systems in which there are ‘no formal safeguards against such intervention’,Footnote 41 even where there was a previously established practice of prosecutorial independence, as in the case of the Legal Service.
The balance of evidence, from statistical studies of infringements launched,Footnote 42 to interviews with Commission officials,Footnote 43 and close readings of particularly salient cases such as Landespolizeidirektion, points in the direction of the undermining of the Commission’s integrity in its role as prosecutor and enforcer of EU law. While some have called for the Court to step up as a secondary guardian in the face of the Commission’s absence,Footnote 44 and sometimes (activist) EU citizens make sure EU law gets enforced, as in the Landespolizeidirektion case, none of these avenues can fully compensate for or replace the Commission’s unique role as the guardian of the Treaties. On this basis, I suggest that changes in institutional design are necessary which can credibly restore the integrity of each of the Commission’s two indispensable roles, as both motor and guardian.
Finally, even if there is no ‘proof’ that political considerations improperly impacted on the Commission’s decisions whether to pursue infringements, the appearance to the contrary is itself a sufficient reason to act. The arguments above illustrate, at a minimum, that the Commission had the ‘means, motive, and opportunity’ to partially sacrifice its role as guardian so as to secure support for its legislative agenda. This in itself arguably creates the ‘reasonable doubt’ on the part of us EU citizens, analogous to that articulated by the Court first in Repubblika Footnote 45 and later in Commission v Poland,Footnote 46 that the separation of powers is being undermined. Or in the language of the Venice Commission, ‘the appearance of intervention can be as damaging as real interference’.Footnote 47 If only to counteract that appearance of reasonable doubt, steps should be taken to properly insulate the two aspects of Commission’s mandate from each other and secure their respective integrity.
Three proposals
The task then is to translate the normative requirements of the separation of powers, namely the integrity of each branch which is necessary to realise the virtue of articulated government, into institutional design which would more robustly protect the Commission’s role as guardian from the political pressures it faces as the motor of integration. I discuss three ways in which the separation of powers could be strengthened – Treaty change, internal reorganisation of the Commission, and judicial review of infringement decisions by the Court – each with its own strengths and weaknesses.
Treaty change
While Treaty change is very unlikely as a matter of political feasibility, this approach nonetheless has virtues that recommend it. A possible Treaty change could separate the ‘prosecuting’ part of the Commission, establishing an independent institution or agency which would maintain the powers currently contained in the Treaties. In other words, this would amount to splitting Article 17 TEU between two bodies, where the Commission would maintain all of its current functions including the right to legislative initiative laid out in Article 17(2), staying the course as the motor of integration. But the part of Article 17(1) which tasks the Commission with ensuring ‘the application of the Treaties’ would be removed from its purview and given to a separate body. This new body could be populated with the same kind of personnel which is now responsible for drawing up files on possible infringements, namely career lawyers of the Legal Service. The difference would of course be that this body would have full prosecutorial autonomy on which infringements to pursue. This would enshrine the principle of functional separation of powers – a real firewall between the legislative and prosecutorial functions – in the Treaties and thus allow the Court to police it by following its current approach on institutional balance. We would have career professionals making prosecutorial decisions, enjoying immunity from political pressures which come from the attempts to advance a legislative agenda, as well as enjoying wide prosecutorial discretion largely free of judicial review. My main concern here is with the separation of powers, so I can remain agnostic as to whether this new body should be more technocratic or political in nature. To increase the political legitimacy of the discretionary powers wielded by this enforcement body one can imagine parliamentary oversight by the European Parliament ranging from formal hearings to motions of censorship. The crucial point is that the political agents with the mandate to advance European integration would not have any means to influence those officials whose job it is to enforce the law as written.
The main weakness of this proposal is that it is, well, pie in the sky. It is hardly possible to imagine either the Commission or the Council supporting such a change, so a Treaty change is in practical terms a non-starter. It is nonetheless important to clearly spell out what the normative advantages of such a change would be, for it would in my view be the optimal institutional design from the perspective of separation of powers and institutional balance.
Commission’s internal reorganisation
A second possibility would be for the Commission to internally reorganise itself, so as to create a firewall between the two broad functions it performs. The separation of powers entails the ‘separation of institution, office, and personnel’,Footnote 48 and if the separation of institutions is practically unfeasible – as I believe a Treaty change would be – the barrier to a separation in office and personnel is less high. Under the current approach, institutional balance ‘presupposes that each institution is empowered to determine its own organisation and manner of operation …’,Footnote 49 meaning that the Commission could easily reorganise in such a way as to safeguard the integrity of its prosecutorial mandate. The necessary change is rather simple: there needs to be a firewall between: first, the office and personnel of those legal career officials (Legal Service) who make an autonomous call, based on legal and prosecutorial strategic grounds, on when to open infringement procedures; and, second, the part of the Commission which works to advance a legislative agenda. Neither the President of the Commission, the College of Commissioners, nor the Secretary-General should have any power to block or interfere in an infringement action if the Legal Service has determined that a member state has breached EU law. The Commission itself recommended a similar arrangement to Poland in its 2024 Rule of Law Report, highlighting the need to ‘strengthen institutional safeguards for the prosecution service … to ensure the independence of the prosecution service from the Government and to separate the office of the Minister of Justice from that of the Prosecutor General’.Footnote 50
While this proposal has the virtue of being much more feasible than Treaty change, since it involves fewer actors and may better align with some powerful interests within the Commission, its drawback is that it could at any time be changed without external oversight. Insofar as one wants to enshrine the separation of powers into constitutional design, there is good reason to heed the advice of legal constitutionalists and entrench the specifics of the separation of powers such as those under discussion. While an internal reorganisation would create a good institutional division between the two functions of the Commission, it would at any time be open to revision. We can expect that most actors would respect the new arrangement but from time to time there are bound to be characters who would try to aggressively aggregate power and seek to revise the firewall between the motor and guardian. We need only recall Martin Selmayr’s plans to disband the Legal Service and merge it into Directorates-General.Footnote 51 While under the Treaty change proposal the Court would step in and defend the firewall on the grounds of institutional balance, any internal reorganisation would be vulnerable to revision, based on the discretion conferred by institutional balance as it currently stands.
Judicial review of infringement actions
The third proposal is that the European Court of Justice develop its case law on the limits of the Commission’s discretion to launch infringement proceedings. While the current case law allows very broad discretion, based on the wording of Article 258 TFEU that the Commission ‘may’ bring the matter before the Court, it may be possible to strengthen the Court’s approach. As the European Court of Justice confirmed in the Landespolizeidirektion case, Article 27(4) of the Schengen Border Code demands that if the Commission ‘has concerns as regards the necessity or proportionality of the planned reintroduction, it is required to issue an opinion to that effect’.Footnote 52 In oral arguments the Commission admitted it did have such concerns, but it did not issue an opinion to that effect. This appears to be a justiciable case of a failure to act. Article 258(1) TFEU likewise says that ‘if the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion …’. The combination of Article 17 TEU, which asks the Commission to ensure the application of the Treaties, and the above provision of Article 258 TFEU may constitute enough of a legal ground for the Court to be able to assess whether or not the Commission has fulfilled its obligation as the guardian or if it has in some instances failed to act. While the Commission has discretion on whether or not it brings the matter before the Court, it is obliged to issue an opinion. At least on that count, its actions or failures to act should be amenable to judicial review under Article 263 TFEU.
The stronger version of the argument would demand that the Commission explain what actions it took to ‘ensure the application of the Treaties’. For example, if the Commission delivered an opinion in 2017 saying it has concerns about the proportionality of Austria’s measures, which it did have and so should have done, then even the discretion over launching an infringement procedure could have been reviewed by the Court. If Austria continued with the disproportionate measures of border checks and the Commission decided not to refer it to the European Court of Justice, which is within its discretion, then the question could be raised before the Court on what steps the Commission has taken to fulfil its Article 17 TEU obligations. While the Court probably cannot determine the Commission’s failure to act under Article 265 TFEU solely on the basis of it not launching an infringement procedure in any given case, it could ask it to give evidence on what steps it did take to ensure the application of the Treaties, as well as review whether those steps were effective. This would be within the spirit of Les Verts which established that the institutions are subject to judicial review. One can imagine a procedure in which the Court is able to examine a case based on objective factors amenable to judicial review, on whether or not the Commission has taken sufficient steps to fulfil its Article 17 TEU obligations. This would respect institutional balance insofar as the Commission would retain the discretion conferred on it by Article 258 TFEU and could present evidence to show that it managed to successfully ensure the application of the Treaties by other methods than bringing the matter before the Court. While I believe a strong case can be made for at least the weaker version of this argument, around the obligation to issue an opinion under Article 258 TFEU, this would require overruling of decades of case law. In Star Fruit, for example, the Court denied the possibility of finding a failure to act in the Commission’s use of discretionary powers not only to bring an infringement action before the court but also to issue an opinion.Footnote 53 More generally, the Court has resisted requiring specific rather than general obligations on the Commission.Footnote 54 In short, this proposal is asking for a major overruling on the part of the European Court of Justice.
There is also something uncomfortable about this proposal, since we are very used to the idea of prosecutorial independence and discretion, which is typically not subject to judicial review. Nonetheless, given the current configuration of institutional balance enshrined in the Treaties this may be the most effective way to ameliorate the separation of powers concerns presented above. While Treaty change is unrealistic and internal reorganisation cannot be entrenched and is always in danger of erosion, judicial review of the Commission’s overall enforcement activities belongs to the logic of review which runs from Les Verts to the present day. The fact that such review would also apply to prosecutorial decisions may simply be yet another sui generis aspect of the EU’s institutional design, but one which is grounded in the Treaties and gives a concrete expression to the ideal of the separation of powers.
Conclusion
The Landespolizeidirektion case is remarkable and worthy of note for several reasons. It is a rare case in which the widespread practice of member states reintroducing temporary border checks has received judicial scrutiny from the European Court of Justice. The Court’s judgment appears strong and enforces a strict interpretation of the Schengen Border Code. However, by underdetermining what constitutes a new threat in the context of the Code, the Court has left the door open for national courts and member state governments to look for ways to extend border checks beyond the six-month limit. This is indeed what has happened since the judgment, with border checks expanding and extending throughout the Schengen area.
If there is some merit to my hypothesis that the fragmentation of Schengen is partly exacerbated by an imperfect separation of powers between the Commission’s two roles, as suggested through empirical analysis by Kelemen and Pavone, then we have good reason to consider institutional adjustments which would better protect the Schengen acquis. I make three proposals in this direction, with Treaty change and judicial review of infringement actions being the normatively preferrable but much less feasible options, and the internal reorganisation of the Commission as a more feasible if less normatively attractive alternative. In the current climate, any change which would result in greater scrutiny of the member states’ migration policies is of course highly unlikely, but recognising this worrying trend should make us redouble our critical and normative efforts rather than give up in despair so as to preserve Schengen as ‘one of the main achievements of the European Union’.
Acknowledgments
This research was part of the Fundamental Research Fellowship funded by Research Foundation Flanders (FWO), grant number: 11C5420N. I am grateful to the editors and the anonymous reviewers for their helpful comments. Special thanks to Geert De Baere, Elise Muir, and Orlando Scarcello for their insightful feedback on earlier drafts. The usual disclaimer applies.
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