Polish man sues Germany over border checks

Jakub Wolinski seems like a quiet man, not the kind who goes looking for a fight. And yet he has decided to take Germany to court over its checks at the German-Polish border.

Wolinski, 37, has been positively surprised by the response to his case but also a little stressed. "Thankfully, I have my family at home," he says smiling, adding that his family helps him unwind.

Born in the Polish border town of Zgorzelec, Wolinski has been living in the German town of Görlitz for some time now. Zgorzelec and Görlitz are on the opposite banks of the Lusatian Neisse River and are like two parts of one city separated by the river.

He works for a large German company and commutes regularly between the two neighboring countries. Wolinski often gets stopped at the border, perhaps because he drives a minivan with tinted windows.

Do vans get special attention at the border?

In their search for migrants illegally entering the country, German police officers often focus on vehicles like this.

"I use this vehicle for private purposes. Children's car seats are in the back, and my papers state where I am registered. I don't know on what basis the police might assume that I could be smuggling people across the border," he told DW.

Germany and Poland are part of the Schengen area, which includes 29 European countries that have abolished checks at their shared borders. The rules governing travel within the area are contained in the Schengen Borders Code.

Wolinski says that he is not aware that the rules in the Schengen Borders Code do not apply to minivans and that these vehicles may be checked more often than others.

Case centers on the legality of the border checks

Although he has been stopped at the border and checked many times, Wolinski is taking Germany to court over one specific border check he experienced.

"Initially, the police officers were not able to explain to me on what legal basis they wanted to check my car," he says. "Then they got in touch with other officers. After that, they made reference to two paragraphs."

But the officers' arguments did not convince him, so he decided to bring an action against Germany.

'Germany is systematically breaching European law'

"The German government must stop the checks at the Polish border immediately," explains his attorney, Christoph Tometten. "It is not acceptable that Germany is systematically breaching European law with these checks. The freedom of movement of EU citizens is an outstanding good that must no longer be called into question. The European Court of Justice has emphasized this again and again, and that is binding for German authorities and courts."

This is not the first time the Berlin-based attorney has been asked for support in conjunction with a case relating to border controls within the EU. The website Legal Tribune Online (LTO) describes the case of an Austrian citizen who brought an action against Austria after being checked in a train traveling from Austria to Germany.

Tometten was also the attorney in that case, which went all the way to the European Court of Justice in Luxembourg. According to LTO, the court ruled that border checks could not simply be introduced and extended without reason.

Changes to the Schengen Borders Code

In short, Wolinski is not the first to take an EU Member State to court on this matter.

"Last year, the Schengen Borders Code was changed. Now, countries can introduce border checks for longer — two years — and can then extend them twice under certain conditions," explains Johanna Hase of the Institute for European Politics in Berlin.

"They can use the same reason to extend checks for up to three years," she told DW, "but they can, of course, change that reason."

A throwback to the past

Back in Görlitz, Walinski says life in the eastern German border town has really deteriorated since the reintroduction of border controls in October 2023.

Long-forgotten problems have returned, he says. "Congestion on the highway, in the town and at the border crossings."

He tells DW that another thing that locals had forgotten was the close scrutiny of police officers, adding that he feels like a suspected people smuggler every time he crosses the border.

Wolinski is suing the Federal Republic of Germany, "represented by the Federal Police Directorate in Pirna."

Because the case is ongoing, the German Federal Police declined to comment on it.

Temporary border checks are permissible

Schengen rules, which are the legal basis for Europe's open borders system, do indeed allow for temporary border checks in emergency situations. Such checks are permissible in the event of a "serious threat," for example, to domestic security.

However, there must be good reasons for introducing checks, and they cannot simply be extended at will, as the ruling against Austria at the ECJ showed.

Irregular migration and terrorist attacks are the reasons being used by Germany to justify the emergency border checks, which have been extended several times. "I really would question whether the threat is so great that Germany is forced — as the rules permit — to introduce border checks as a last resort," says Hase. "This is another reason why I am very curious to know how the case will pan out."

Schengen and Dublin

The reason why Germany and other countries are stretching the limits of the Schengen Borders Code with their border checks is linked to the Dublin Regulation. Named after the Irish capital, this EU regulation stipulates that persons seeking protection must register in the first EU country they enter — which is not, as a rule, Germany or Austria.

The fact is, however, that this regulation is being undermined on a massive scale, whether by the activities of people smugglers or the fact that some authorities wave migrants through at the border.

Wolinski is very aware of this. "I would suggest considering investment in our security elsewhere," he tells DW. "I am convinced that our Polish border guards, who are defending our eastern frontier and, therefore, the EU's external border, would be delighted if the men guarding the border here would support them there."

Protecting a fundamental European freedom

Wolinski says that what matters to him is protecting a fundamental European freedom, namely the freedom of movement guaranteed by the Schengen Agreement.

"I want to defend Schengen. I am taking Germany to court because I live at the German-Polish border, but mine is not the only case." Denmark controls its borders, as does Austria, France and others, he says.

"We are seeing the slow disintegration of the Schengen area, and I am of the opinion that we must act now to stop it," he tells DW. Otherwise, says Wolinski, Europe risks losing one of its great achievements.

The Pole is keen to point out that he is in no way trying to drum up anti-German sentiment with his case, which is certainly not without a chance. "That's the way it is with good friends: Sometimes one will do something dumb and get carried away," he says. In such cases, he continues, one "buddy" has to nudge the other and say: "Thus far and no further."

This article was originally published in German and adapted by Aingeal Flanagan.