In its judgment of 17 March 2025 (Ref. 10 BV 24.700), the Bavarian Higher Administrative Court (BayVGH) ruled that the personal check of an Austrian citizen carried out on 11 June 2022 in the train from Passau to Frankfurt as part of the temporarily reintroduced checks at the German-Austrian border was unlawful.
In June 2022, the plaintiff was subjected to an identity check by federal police officers in Passau, without any suspicion, after boarding a train coming from Austria. He was informed that this was taking place as part of the reintroduced, random border controls.
In court proceedings, the plaintiff asserts the unlawfulness of this control. He regularly crosses the German-Austrian border for professional and private reasons. The order of border controls violates the Schengen Borders Code and his freedom of movement under European law. The renewed six-month extension of the controls introduced in 2019, which took place in spring 2022, had not been sufficiently justified to the European Union on the basis of a new set of facts. The Munich Administrative Court dismissed the action as inadmissible and allowed the appeal to the Bavarian Higher Administrative Court.
In yesterday's oral proceedings, the responsible senate first discussed the subject matter of the dispute with the parties involved: the BayVGH was to decide only on the specific personal control of the plaintiff on 11 June 2022 in the context of the border controls carried out at the time, not on the general admissibility of internal border controls. Since the administrative court of first instance had denied an interest in a declaratory finding of the unlawfulness of the control, the first point of discussion in the hearing was whether, in light of the personal circumstances of the plaintiff and the legal changes to the provisions of the Schengen Borders Code in 2024, there was a sufficient probability that the plaintiff would be subject to further controls under essentially unchanged conditions. In the matter, the court discussed with the parties involved whether the reasons given at the time for reintroducing border controls were sufficient. According to the case law of the ECJ, a mere reassessment of an unchanged situation is not sufficient; new facts are required.
In the judgement announced today, the Bavarian Higher Administrative Court found that the inspection of the plaintiff was unlawful. The written reasons for the judgement are expected in the coming weeks.
Source: Press release of the Bavarian Higher Administrative Court
