This Article inquires into the aftermath of judgments by the CJEU under the preliminary ruling procedure under article 267 TFEU in cases of strategic litigation. As the principal objective of strategic litigants is to effectively achieve broader societal, political, economic, or legal change, the afterlife of a judgment is crucial for them. While excellent scholarship exists on strategic litigation in EU law, much remains unclear on what happens to a case after the Court of Justice of the EU (CJEU) has given its judgment. Does the referring court and other national courts faithfully comply with the judgment of the CJEU? Do governments implement the ruling? This Article takes the decision of the CJEU in Landespolizeidirektion Steiermark, which concerns the reintroduction of internal border controls, as case study to inquire into the different factors that affect the implementation of a preliminary ruling that is the outcome of strategic litigation. The main argument in this Article is that the implementation of preliminary rulings is determined by the interplay between three different factors: The role of strategic litigants to initiate follow-up litigation, the receptivity of national courts to comply with a preliminary ruling, and the European Commission’s willingness to enforce a preliminary ruling.

Schengen integration has been home to different visions from the outset. In this vein, it owes much of its success to the fact that it has been both practical and symbolic in nature. However, this equilibrium of different visions has been upset following a series of crises. By prioritizing security considerations over alternative visions of Schengen, some Member States have reintroduced internal border controls on a quasi-permanent basis. Current reform proposals seek to address this situation but may be unable to revive the co-existence of the different visions underpinning the earlier phases of Schengen integration. Rather, as this investigation suggests, the reform that is currently being discussed would reaffirm the nature of Schengen integration as a pan-European security project. While this goes hand-in-hand with elements of supranational governance and coordination, it may impair the role of Schengen as an identity-creating project. This investigation analyzes the elements of the reforms discussed, presents them in the light of different visions of Schengen, and draws attention to possible constitutional limits of its reform.

The Schengen Information System for law enforcement, border control, and judicial cooperation in the European Union has over the years seen a considerable expansion of the amount and types of data stored and its functionalities, as well as its user base. In light of this transformation from a simple information-sharing tool to a full-blown investigative database, there has, however, been surprisingly little public debate and pushback against the growing surveillance and control capacities that the system enables. This article proposes to understand the largely uncontested evolution of the SIS through the concept of ‘creep’, i.e. the incremental, unforeseen, and/or stealthy development of a technological system beyond what it was originally introduced for. More specifically, it retraces how creep has in the case of the SIS been enabled and facilitated through (1) latent development principles, i.e. the rationale of building dormant features into a system that can be activated at a later point in time once technology has sufficiently matured and/or legal foundations have been adopted; and (2) technology monitoring and steering mechanisms, i.e. the continuous assessment of the readiness of key technologies for anticipated updates to the system as well as interventions in publicly funded research programmes.

Border controls within the Schengen area are meant to be a thing of the past. Yet, since the refugee crisis of 2015, “temporary” border controls have become quasi permanent in several European Union Member States. Although these controls are against the letter and spirit of the Schengen Borders Code, the Commission has not taken any measures to enforce these rules. One of the reasons for the dismal state of the Schengen area is the one-sided focus on the abolition of internal border controls as primarily functional for the establishment of the internal market. This comes at the expense of Union citizens’ rights and disregards the fundamental role that the abolition of border controls has on how citizens see the Union in political terms and conceive themselves as Union citizens. Against this background, we argue that from its beginning the objective of the project to abolish border controls was to foster a supranational political identity of Union citizens by transforming citizens’ spatial experience. Union citizenship in the current EU Treaty framework constitutes the legal expression of that historical connection between the abolition of border controls and free movement. Emphasizing the citizenship dimension of an area without internal frontiers provides a different perspective on current controls at the Schengen internal borders.

In recent years, the Schengen Area—and the suppression within its territory of border controls—has become a strong focus of attention. This article focuses on another region of Europe where such controls have been suppressed: the Common Travel Area (‘CTA’). Historically, both Ireland and the United Kingdom have rejected membership of the Schengen system—albeit securing certain ‘opt-in’ rights—and instead maintained the CTA between their respective jurisdictions. The CTA has, however, garnered relatively little public attention until recently, when concerns as to the implications of Brexit for the maintenance of an open border between Ireland and Northern Ireland have gained ground, and threatened to be a deal breaker in the negotiations under Article 50 TEU on UK exit from the EU (‘Brexit’). This article examines the background to the CTA, exploring its surprisingly fluid legal framework; its development in the legal systems of Ireland and the United Kingdom; and subsequently, how it was exempted from what is now EU law as the Schengen arrangements were integrated into the Union. The recent introduction of the British-Irish Visa Scheme, which formalises some visa rules regarding citizens of third states, and which tends in the direction of consolidating CTA arrangements, is also examined. The article further explores the challenges that confront the CTA in coping with the outcome of the June 2016 Brexit referendum, which should result in the UK leaving the European Union in March 2019, and the implications of Brexit for the CTA. Finally, it seeks to identify some key characteristics of the CTA in light of experience to date.