Proportionality of Internal Border Controls: From the Covid-19 Pandemic to the 2021 Proposal

Most Schengen Member States reintroduced internal border controls in response to the COVID-19 pandemic. These controls, which in some instances lasted for several months, jeopardised the principle of an area without borders and had to comply with the principle of proportionality. This article examines four aspects of these controls related to proportionality: the type of threat invoked, the adequacy of the measures, the duration of the controls, and the scrutiny over proportionality. First, it demonstrates that the current Schengen Borders Code contains appropriate safeguards for each aspect. However, some Schengen Member States disregarded them during the COVID-19 pandemic, and the Commission did not use its scrutiny powers. In December 2021, the Commission proposed to amend the Schengen Borders Code. This 2021 proposal adapts the rules to the Schengen Member States' practices during the COVID-19 pandemic. Then, this article argues that this proposal improves the aspects of legal certainty and scrutiny but does not satisfactorily address the aspects of adequacy and duration of internal border controls. In addition, the article presents some recommendations to increase the proportionality of the controls that the Schengen Member States would reintroduce following the 2021 proposal.