CJEU - Case C-9/16, A

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Country of Applicant: 
Germany
Date of Decision: 
21-06-2017
Citation: 
Case C-9/16
Court Name: 
Court of Justice of the European Union
Headnote: 

In line with its case-law, the CJEU ruled that Article 67(2) TFEU and Articles 20 and 21 Schengen Borders Code must be interpreted as precluding national legislation allowing police authorities to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other Schengen states, irrespective of the behaviour of the person concerned and of the existence of specific circumstances, unless that legislation lays down the necessary framework for that power ensuring that the practical exercise of it cannot have an effect equivalent to that of border checks.

These same provisions do not preclude national legislation that permits the police authorities to carry out, on board trains and on the premises of the railways, identity or border crossing document checks on any person, and briefly to stop and question any person for that purpose if those checks are based on knowledge of the situation or border police experience, provided that the exercise of those checks is subject under national law to detailed rules and limitations determining the intensity, frequency and selectivity of the checks.

Facts: 

The proceedings concerned a German national who, on 1 April 2014, crossed on foot from Strasbourg (France) to Kehl (Germany) and proceeded to the railway station where two officers of the German Federal Police carried out an identity check on him. He forcibly resisted the check and was charged with the offence of resisting an enforcement officer in accordance with the German Criminal Code. The Local Court of Kehl ruled that the check by the Federal Police was lawful, but referred two questions to the CJEU with regard to the compatibility of the German provisions on police checks with relevant EU law provisions, namely Article 20 and 21 of the Schengen Borders Code:

First, the referring court asked whether Article 67(2) and Articles 20 and 21 of the Schengen Borders Code must be interpreted as precluding a national legislation, such as that in Germany, which confers on the police authorities the power to check the identity of any person, within an area of 30 kilometres from a Schengen border, irrespective of the behaviour of the person concerned and of the existence of specific circumstances. Second, the referring Court sought clarification regarding the validity, in the light of those same provisions of EU law, of a national legislation which allows the police to carry out, on board trains and on the premises of the railways, identity or border crossing document checks on any person, including by briefly stopping and questioning the person for that purpose.

Decision & Reasoning: 

With regard to the first question, the CJEU relied largely upon its existing case-law on the compatibility of police powers and the absence of internal border checks (mainly Melki and Abdeli and Adil). It recalled that the abolition of border controls at internal borders does not affect the exercise of police powers under national law, as long as this exercise does not have an effect equivalent to border checks.

In the case in question, the CJEU found that it was apparent from the information submitted to it that the objectives pursued by the checks provided for in the relevant provisions of German law can be distinguished in certain essential respects from those pursued by border checks. They were not aimed at authorising entry or exit to the territory, but at preventing or terminating unlawful entry and preventing criminal offences that would undermine the border security of that Member State. The fact that the territorial scope of those powers is limited to a border area does not suffice in itself to conclude that the measures have an equivalent effect as a border check.

However, the Court advanced that it was not apparent from the available information that the checks were based on police knowledge of the situation or related experience, as it is provided for in Article 20(a)(ii). Moreover, the German Law on the Federal Police does not contain further details nor limitations on the power conferred, in particular in relation to the intensity and frequency of the checks which may be carried out.

In light of the above, the CJEU concluded as a reply to the first question that a national legislation allowing police authorities to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other Schengen states, irrespective of the behaviour of the person concerned and of the existence of specific circumstances, must be regarded as opposing the provisions of the Schengen Borders Code, unless the national legislation lays down the necessary framework for that power and ensures that the practical exercise of it cannot have an effect equivalent to that of border checks. It is for the referring court to assess whether that is the case of the German Law on the Federal Police.

Regarding the second question, the CJEU followed the same rationale to conclude that the German legislation allowing police authorities to carry out identity checks and to question any person on board trails and on the premises of the railways is only compatible with Article 67(2) TFEU and Articles 20 and 21 of the Schengen Borders Code if a framework establishing detailed rules and limitations capable of defining the intensity, frequency and selectivity of such checks exist, which is for the referring court to assess.

Outcome: 

Article 67(2) TFEU and Articles 20 and 21 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which confers on the police authorities of the Member State in question the power to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other States parties to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen (Luxembourg) on 19 June 1990, with a view to preventing or terminating unlawful entry into or residence in the territory of that Member State or preventing certain criminal offences which undermine the security of the border, irrespective of the behaviour of the person concerned and of the existence of specific circumstances, unless that legislation lays down the necessary framework for that power ensuring that the practical exercise of it cannot have an effect equivalent to that of border checks, which is for the referring court to verify;

Article 67(2) TFEU and Articles 20 and 21 of Regulation No 562/2006, as amended by Regulation No 610/2013, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which permits the police authorities of the Member State in question to carry out, on board trains and on the premises of the railways of that Member State, identity or border crossing document checks on any person, and briefly to stop and question any person for that purpose, if those checks are based on knowledge of the situation or border police experience, provided that the exercise of those checks is subject under national law to detailed rules and limitations determining the intensity, frequency and selectivity of the checks, which is for the referring court to verify.

Case Law Cited: 

CJEU - C-188/10, C-189/10 Melko/Abdeli

Case C-333/07, Regie Networks, 22 December 2008, EU:C:2008:764

Case C-478/07, Budejovicky Budvar, 8 September 2009, EU:C:2009:521

Case C-278/12 PPU, Adil, 19 July 2012, EU:C:2012:508
Attachment(s): 
Other sources cited: 

Recital 1, Articles 2, 20, 21 Schengen Borders Code

Article 2 of the Convention Implementing the Schengen Agreement

Article 26, 67(2), 77(1), 79(1), 79(2)(c) TFEU

 

Authentic Language: 
German
Country of preliminary reference: 
Germany
National / Other Legislative Provisions: 
Germany - German Law on the Federal Police Paras 2
3
12
22 and 23
Germany - German Criminal Code para 113