Are police checks equivalent to border checks banned?

In Criminal proceedings against A- C-9/16 (ECLI:EU:C: 2017:483), the European Court of Justice ruled on whether national legislation may confer on the police authorities of a Member State the power to check the identity of any person, within the proximity to the land border with other Member States.

Article 67(2) TFEU and Articles 20 and 21 of Regulation (EC) No 562/2006 of 15 March 2006 (Schengen Borders Code), as amended by Regulation (EU) No 610/2013 of 26 June 2013, provide for the abolition of the internal borders check on persons irrespective of their nationality, and define the concept of “checks within the territory” in the context of border areas.

The case at issue concerns A, who crossed on foot the Europe Bridge from Strasbourg to Kehl, and proceeded directly to the railway station, located approximately 500 metres beyond the bridge. Two officers of the German Federal Police on patrol in the area at the front of the railway station. carried out an identity check on A. The latter, having forcibly resisted that check, was charged with the offence of resisting an enforcement officer. It must be observed that the check was carried out on the basis of the national law in Germany, which provides for border police surveillance to prevent inter alia unlawful entry into the territory and certain criminal offences directed against the security of the border.

The following questions were referred to the ECJ by the Local Court (Kehl):

  • Whether the EU law provisions must be interpreted as precluding a rule of national law confers on the German police authorities the power to check within the proximity to the land border with France” the identity of any person, irrespective of his behaviour and of specific circumstances”.
  • Whether the EU law provisions must be interpreted as precluding a rule of national law which grants the police authorities “the power briefly to stop and question any person on a train or on the premises of the railways” and to “request that person to hand over for examination the identity documents or border crossing papers carried by him and visually inspect the articles carried by him”.

In regard to the first question, the ECJ recalled that the abolition of borders control is not to affect the exercise of police powers under national law “in so far as the exercise of those powers does not have an effect equivalent to border checks; that is also to apply in border areas”. That condition will be met when “the police measures do not have border control as an objective, are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders and are carried out on the basis of spot”.

Finally, the ECJ observed that the national law in Germany does not provide for detailed rules and limitations for the exercise of the police power in a border area to grant a genuine abolition of internal borders controls, and ruled that the EU law provisions must be interpreted as precluding a rule of national law which confers on the police authorities the power to check the identity of any person, within the land border area with other 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”.

In regard to the second question, the ECJ observed that on the one hand, the provisions of the national law do not distinguish between controls carried out in a border area and controls carried out elsewhere in the national territory, and on the other hand, it is not apparent whether distinction is made from systematic checks on persons at the external borders of the European Union. However, as laid down by Article 21(a)(ii) of Regulation No 562/2006, the provision by the national law of checks on the basis of knowledge of a situation or experience that the installations mentioned in that provision (e.g. railway stations) will be used for unlawful entry, does not have an effect equivalent to a border check.

The ECJ ruled that the EU law “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”.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s