Legal incrementalism and the abolition of border controls: the shifting meaning of the abolition of border controls in recent cases before the Court of Justice

The abolition of border controls in the Schengen area is considered as a key area of European integration. This area of integration is in a dismal state. Member states reintroduced controls, first, as response to the migration crisis in 2015 and subsequently to the Covid-19 pandemic. Neither of the two grand theories of European integration – intergovernmentalism and neofunctionalism – can adequately explain the current state of the Schengen area. This article enquires into recent case law on border controls before the Court of Justice of the EU. It seeks to show that judicial disputes on border controls in the Schengen area result in a politicization of the reasons for abolishing border controls and that this shift occurs by legal incrementalism, i.e. by linking different grand narratives about the nature of internal borders in the EU to technical legal norms governing, inter alia, time limits.