Normalization and exceptionalization in the post-2015 re-constitution of the EU’s border regime

Since 2015, the EU’s border regime has undergone a profound constitutional transformation. EU actors have responded to exogenous shocks with a concerted re-bordering, at both internal and external frontiers. National authorities have often acted unilaterally, prioritizing their security and political signalling needs above strict adherence to EU law. Yet, supranational actors, too, have been important agents of re-bordering. The European Commission, through tacit toleration and active accommodation, has facilitated legally questionable policies, including the prolonged return of internal border controls and reinforced efforts to deter asylum seekers at external borders. This article conceptualizes the transformation of the EU’s border regime as consisting in its legal hollowing out and re-constitution as a space governed by political discretion. It identifies and analyses two mechanisms through which the transformation has taken place – the normalization of previously exceptional measures, and the creation of new exceptions to existing rules.