CJEU: Request for preliminary ruling from the Federal Administrative Court (Germany)

Thursday, June 1, 2017

The German Federal Administrative Court has referred the following preliminary questions to the CJEU on 1 June 2017:

1. Does Article 67(2) TFEU and Articles 22 and 23 of the Schengen Borders Code preclude a national rule of a Member State obliging bus companies operating regular services within the Schengen area to check documents of their passengers upon crossing a border in order to prevent the transportation of foreigners without passport or residence permit into the territory of the Federal Republic of Germany? In particular:

  • a. Does the general statutory obligation, or the official obligation addressed to a single transport company requiring that foreigners are transported into the German federal territory without the required passport or residence permit, which can only be complied with by checking the documents of all passengers before crossing an internal Schengen border, constitute an identity check within the meaning of Article 22 of the Schengen Border Code?
  • b. Are the duties mentioned in the first question to be exercised in line with Article 23 (1)(a) of the Schengen Border Code despite the transport companies not exercising police powers as per those provisions and despite not being formally authorised to make use of sovereign powers by the public authorities to undertake checks?
  • c. If 1b is answered in the affirmative: are the demanded checks by the transport companies a prohibited measure of similar effect as border checks, in light of the criteria set out in Article 23 (a) sentence 2 of the Schengen Border Code?
  • d. Insofar as they concern bus companies, are the duties mentioned in the first question to be measured in line with Article 23 (1) (b) of the Schengen Borders Code, according to which the absence of border control at internal borders shall not affect the power of transport companies to perform security checks of persons at sea and airports? Does it follow that checks are inadmissible as per question 1 also outside of sea- and airports, if they do not constitute security checks and if they are not undertaken in relation to persons that are travelling in between Member States?

2. Do Articles 22 and 23 of the Schengen Borders Code allow national rules, according to which a suspension of the operating licence and a fine can be issued against a bus company to ensure implementation of that obligation, if, as a result of the failure to undertake checks, foreigners without passport and residence permit have been transported into the territory of the Federal Republic of Germany?

Based on an unofficial translation by the ELENA Weekly Legal Update. The EWLU would like to thank Christian J. Freuling for his kind assistance with translating these questions.

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