CJEU - Joined Cases C‑412/17 and C‑474/17 Bundesrepublik Deutschland v. Touring Tours und Travel GmbH and Sociedad de Transportes SA, 13 December 2018

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Country of Applicant: 
Date of Decision: 
Joined Cases C‑412/17 and C‑474/17
Court Name: 
Court of Justice of the European Union (Second Chamber)
Relevant Legislative Provisions: 
European Union Law

A national measure requiring private coach transporters crossing internal borders to check the documents of the passengers on board and refuse the access to those not provided with passport or residence permit is prohibited under Article 21(a) of Regulation No 562/2006 (Schengen Borders Code) as it has an effect equivalent to that of border checks.


The case concerns two companies of coach services, travelling to Germany from the Netherlands and Belgium. Since 2013, German authorities recorded a significant number of third-country nationals who travelled without the necessary travel documents. After an initial warning, the Directorate of the Federal Police issued the companies with a prohibition order together with a fine for each new infringement, requiring the transport service providers to check the passengers before boarding and refuse access to those who were not in possession of the required documents.

The measure was annulled by the Administrative Court of Germany (Verwaltungsgericht) , whhich found the order to be incompatible with Article 67(2) of the Treaty on the Functioning of the European Union (TFEU) and Articles 20 and 21 of Regulation No 562/2006, which prohibit Member States from introducing measure having an “effect equivalent to border checks”.

Germany appealed against the decision, arguing, inter alia, that the Directive 2002/90 and the framework Decision 2002/946 required Member States to impose penalties for infringements of transport prohibition. Moreover, it found that the documents’ verification cannot be considered equivalent to border checks for the purpose of Article 21(a) of Regulation no 562/2006 (Schengen Borders Code – SBC) as it did not aim to control the crossing of the borders but reinforce the provisions relating to the entry into the territory, carried out by the staff of a private undertaking, without the use of coercive measures.

The Bundersverwaltungsgericht (Federal Administrative Court) decided to stay the proceeding and to referred several questions to the Court of Justice of the EU on travel document checks in internal border crossings.

Decision & Reasoning: 

The Court started examining the applicability to Paragraph 63(1) of the domestic Residence Act (AufenthG) of Article 21(a) SBC, which refers to the “exercise of police powers by the competent authorities”. The Court answered positively, considering that the checks carried out by the staff employed by the transport company were imposed by legal obligations and carried out on the instruction and under the control of authorities exercising public powers.

The Court then moved to the examination on whether the checks in question, even if put in place within the territory of a Member State, had an effect equivalent to borders checks and, for this reason, were prohibited under the SBC. It was noted that the elements listed in the second sentence of Article 21(a) were indicators of the existence of an effect equivalent to border checks. If some of those elements were present in the context of internal checks, those would have been authorized only if the national legislation defined in detail  and strictly their framework, including the intensity, frequency and selectivity of those checks.

Firstly, the Court considered that the indicator of having “borders’ control as an objective” (Article 21(a), item (i)), characterized the German measures which aimed to ensure that the persons on the coach were actually allowed to enter the territory of the Member State of destination and prevent the entry without the necessary documentation, in the same way as the checks carried out by the border police in the context of the external borders. Secondly, the Court observed that while the checks imposed by Paragraph 63(2) of the AufenthG were issued following a particular behaviour regarding possible threats of public order, Paragraph 63(1) of the AufenthG had a generic character as it covered all cross-border services irrespectively of the conduct of the persons concerned.

Thirdly, on Article 21(a) items (III) and (IV), the Court recognized that even if the controls put in place by private transporters were by nature less in-depth than those carried out by the police, they were in any case carried out systematically on all the persons travelling, without any detailed rules and limitation in relation to intensity, frequency and selectively of those checks. Finally, the Court considered particularly indicative of an “effect equivalent to border checks, the fact that the checks under Paragraph 63(1) of the AufenthG were triggered precisely by the crossing of an internal border as confirmed by the existence of a distinct legal basis for checks on transport services that take place exclusively inside German territory.


Article 67(2) TFEU and Article 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 to the effect that they preclude legislation of a Member State, such as that at issue in the main proceedings, which requires every coach transport undertaking providing a regular cross-border service within the Schengen area to the territory of that Member State to check the passports and residence permits of passengers before they cross an internal border in order to prevent the transport of third-country nationals not in possession of those travel documents to the national territory, and which allows, for the purposes of complying with that obligation to carry out checks, the police authorities to issue orders prohibiting such transport, accompanied by a threat of a recurring fine, against transport undertakings which have been found to have conveyed to that territory third-country nationals who were not in possession of the requisite travel documents.


The validity of Paragraph 63(1) of the AufenthG under Directive 2002/90, Framework Decision 2002/946 and Directive 2001/51, requiring Member States to impose penalties against the infringements of transport prohibitions, could not be examined by the Court of Justice as the Bundersverwaltungsgericht (Federal Administrative Court) did not request any clarification on the point.  Moreover, either Article 20 of the Regulation No 562/2006 could not be taken in consideration for the referring case, considering that the companies were working exclusively inside the territory of the Member States and not “at the boarders” or “when the boarder is crossed”.

Regulation (EC) No 562/2006 is no longer in force. It has been replaced by Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code).

Other sources cited: 


CJEU case law cited

  • Consiglio Nazionale dei Geologi, C-136/12, 18 July 2013
  • Kelly, C-104/10, 21 July 2011
  • AC-ATEL Electronics Vertriebs, C-30/93, 2 June 1994
  • Engelbrecht, C-262/97, 26 September 2000
  • Alsatel, 247/86, 5 October 1988
  • Melki and Abdeli, C-188/10 and C-189/10, 22 June 2010
  • Adil, C-278/12 PPU, 19 July 2012
  • A, C-9/16, 21 June 2017
Authentic Language: 
Country of preliminary reference: 
National / Other Legislative Provisions: 
Paragraph 63(1)
(2) of the Residence Act (AufenthG)