Over the past 11 years, Schengen has been dying a death by a thousand cuts. Even though internal border controls are only to be used as exceptional measures subject to strict temporal limitations, they have proliferated since 2015. Refugees are being pushed back at internal borders. Mayors of border towns are increasingly annoyed about German border controls (see here, here and here), which cost German taxpayers millions of Euros a year and impose even higher costs on companies and commuters.

Although the Commission solemnly declares that Schengen is “one of the biggest achievements of European integration”, it has done little to keep Schengen alive. After years of deafening silence, there is now a sign of life from the Commission. On 2 June 2026, the Commission finally issued an opinion on the necessity and proportionality of internal border controls under the new Art. 27a(3) Schengen Borders Code (SBC), a provision introduced as an antidote to the Schengen area’s worrying condition. However, the application of Art. 27a(3) SBC by the Commission, not only fails as an antidote, but it also presents a troubling vision of the future development of the Schengen area.

The Commission’s Long Silence

Art. 25a SBC permits Member States to temporarily reintroduce controls at their internal borders as a measure of last resort in situations of a serious threat to their internal security or public policy. Member States may reintroduce controls for a period of six months and, if the serious threat persists, prolong them for up to two years (Art. 25a(5) SBC). If controls are prolonged for more than 12 months in total, Art. 27a(3) SBC requires the Commission to issue an opinion on the proportionality and necessity of border controls.

Art. 27a(3) SBC has been inserted by the 2024 amendment of the SBC, which provided Member States with more leeway for unilaterally reinstating internal border controls (e.g. by expanding the grounds and time limits) in exchange for stricter procedural requirements and supranational scrutiny when reinstating internal border controls (for instance, more consultation with the Commission, detailed assessments of border-related threats, and more reporting obligations). Art. 27a(3) SBC is part of these stricter procedural requirements. Its purpose is to ensure an effective scrutiny by the Commission and therefore enhance Member States compliance with the rules on border controls.

Already prior to 2024, Art. 27(4) SBC stated that the Commission shall issue an opinion when it has concerns regarding the necessity and proportionality of controls. Although the legal service of the Commission considered Member States prolonged border controls contrary to EU law, the Commission did not issue an opinion. A stern reminder of both the Court of Justice (para 92) and the Advocate General (para 73) to the Commission to take its obligations under Art. 27(4) SBC seriously did not change the Commission’s inertia. The only instance in which the Commission did issue an opinion was in September 2015 regarding Germany and Austria, in which it concluded that the reintroduction of controls would be justified due to the public policy concerns arising from the uncontrolled entry of third country nationals – despite serious doubts that these controls were disproportionate.

According to the rather unambiguous wording of Art. 27a(3) SBC, the Commission should have already issued an opinion after it had received the German notification in May 2025. The fact that it had not done so shows the political reluctance of its political leadership to antagonise Germany (and other Member States). We will return to that.

Beating Around the Bush

On 2 June 2026, the Commission finally published its overdue opinion on the proportionality and necessity of internal border controls of Germany (and eight other Member States). Even though the opinions differ in detail, their content is largely similar: Member States did not comply with formal requirements like the timely submission of notifications, failed to submit (sufficiently) detailed risk assessments, and have not substantiated why alternative measures to border controls would be insufficient. However, not a single opinion dares to call a spade a spade and concludes that the controls were disproportionate and therefore incompatible with EU law. Since German border controls are currently the most drastic ones and the Commission’s opinion on Germany is the most critical, we focus on that opinion.

The basis for the Commission’s opinion is Germany’s notifications under Art. 27 SBC, which include the reasons for prolonging controls. The Commission raises several points of critique.

First, the Commission criticizes the lack of detailed risk assessments and the absence of information from Union agencies (paras 24-25). This is necessary when Member States prolong controls for over six months and when they invoke Art. 25(1)c) SBC, that is in cases of serious threats to public policy or internal security arising from an exceptional situation of sudden large-scale secondary migration.

Second, the Commission criticises the vagueness of the threats alleged by the German government, like the “difficult global security situation” and “violent crimes perpetrated by [non-citizens]”. This renders it impossible to establish whether internal border controls are actually necessary to address these alleged threats (paras 40-41).

Third, the most critical part of the opinion is dedicated to migration (paras 42-49). The Commission acknowledges that “Germany is facing a complex migration situation” and notes that the new Art. 25(1)c) SBC defines criteria for border controls in such a situation. Data, however, suggests that the migratory situation has improved. The German notifications do not sufficiently consider this development and therefore do not justify the general prolongation and reinforcement of controls at all borders.

The Commission’s critique concerning illegal pushbacks of asylum seekers is particularly sharp. It “underlines” Germany’s obligations under EU asylum and return law and refers to the Berlin Administrative Court’s decision concerning an illegal pushback of an asylum applicant at the border to Poland. Lastly, the Commission refers to complaints by neighbouring States concerning unilateral “direct turn backs”, a euphemism for pushbacks.

The German Elephant in the Room

Even though the Commission’s obligation under Art. 27a(3) SBC is to assess the legality – their proportionality and necessity – of the prolongation of controls, the Commission doesn’t lose a word on whether German controls are contrary to EU law. This is shown most clearly in the absence of any reference to several judgments of German administrative courts that find internal border controls incompatible with EU law. In March 2025 and again in April 2026, the Bavarian Higher Administrative Court (BayVGH) held German border controls to be unlawful under EU law. Most recently, at the end of April 2026, the Administrative Court of Koblenz reached the same conclusion (for a detailed analysis of those judgments see here).

In all of these judgments, the courts found – unlike the Commission – clear words on the legality of German border controls. The omission of these judgments is not negligence – it is deliberately and carefully engineered by the Commission’s political cabinets to avoid antagonising Member States, above all Germany, in a politically sensitive area. This omission is also problematic for consolidating a troubling understanding of the rule of law. For instance, the German Federal Minister of the Interior dismissed each ruling by German administrative courts on internal border controls as a mere “individual case decision” that would not require the government to cease border controls. Such a response reveals a troubling understanding of the rule of law. Although courts usually “only” decide individual cases, they interpret general norms. If, as in the case of border controls, a growing number of courts of different instances decide identically, reducing each of these decisions to mere “individual cases” becomes untenable. Executive discretion then tilts towards disrespect for the rule of law. Rather, these court decisions should lead the government to question its course of action, as the president of the German Federal Administrative Court recently put it in an interview concerning pushbacks of asylum seekers.

Instead of standing with the German courts and calling Germany’s internal border controls what they are – unlawful – the Commission retreats and leaves the courts hanging. Doing so would inevitably raise the uncomfortable question of why the Commission, as guardian of the treaties, refrains until today from defending EU law against Germany.

Palantir’s Dystopia

Instead of delivering a clear verdict on the legality of German border controls, the Commission proposes a series of alternative measures. Most notably, the Commission suggests that Member States increase the use of state-of-the-art surveillance systems that allow the large-scale collection of personal data, including number plate recognition. However, Member States regularly note in their notifications that alternative measures would not provide adequate alternatives to internal border controls. More importantly, such surveillance technology would be incompatible with existing legal obligations. The German Federal Constitutional Court (BVerfG) considers automatic number plate recognition compatible with the right of informational self-determination under German Basic Law only when its use is objectively defined and limited to either specific or general threats (paras 91-93). This rules out the standardised operation of number plate recognition in border areas, as envisaged by the Commission. The Commission instead suggests that German authorities should

“address any legal or operational obstacles that stand in the way of the effective […] use of technological means, such as number plate recognition, at its internal land borders for migration management purposes.” (para 86)

This is fundamentally misguided in two respects. First, the BVerfG grounds the right of informational self-determination on Art. 2(1) and Art. 1(1) of the German Basic Law. As these provisions are subject to the eternity clause (Art. 79(3) Basic Law), shielding these constitutional principles from amendment, German authorities cannot simply remove these ‘legal obstacles’. Second, EU law also stands in the way of expanding mass surveillance technologies in border areas. In Ligue des droits humains, the ECJ found that the processing and transfer of passenger data at intra-EU flights is incompatible with Art. 3(2) TEU, Art. 67(2) TFEU and Art. 45 EU-CFR. The principal argument of the ECJ was that the systematic processing of sensitive personal data at internal borders imposes disadvantages on Union citizens for the sole reason of exercising their free movement rights, which may deter them from exercising those rights (para 279). This standard would arguably apply to the use of mass surveillance technology in border areas, as the processing of personal data would occur for the sole reason of having exercised one’s freedom of movement.

The Commission’s suggestion to expand mass surveillance is not only legally problematic – it also reflects a techno-solutionism that would turn the Schengen area into Palantir’s dystopia in which the movement of Union citizens would be systematically monitored, documented, and analysed through surveillance technology.

Conclusion

While the procedure under Art. 27a(3) SBC is not a substitute for the enforcement of EU law, it might nevertheless create political pressure and serve as a compliance pull in proceedings before national courts. At the same time, the Commission’s embarrassing tip-toeing around a verdict on the legality of border controls reflects a broader decline in the Commission’s enforcement of EU law (see here and here). To ensure the political support of Member States for its law-making agenda, the Commission avoids legal conflicts on sensitive topics and withdraws from its role as guardian of the Treaties. The architectural flaw in the EU Treaties that ascribes to the Commission simultaneously the role of motor of integration and guardian of the Treaties, coupled with an insufficient political insulation from Member States pressure, results in a dysfunctional enforcement of one of the fundamental rules of EU law, namely that there shall be no controls at internal borders.

The opinions also reveal the weakness of the 2024 reform of the SBC, as stricter procedural rules and enhanced supranational scrutiny remain ineffective. Controls and pushbacks at internal borders are still ongoing even though they are unlawful plain as daylight. And the Commission’s fantasies on transforming Schengen into a cyborg reflects more a techno-solutionism than an effective remedy for restoring the area without internal borders.

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