Preserving and strengthening Schengen or circumventing the prohibition of border checks at the internal borders? The case of outsourced checks on persons performed by carriers.
Regulation (EC) No 562/ 2006 — Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) — Article 20 – Article 21 — Abolition of internal border controls in the Schengen area — Checks within the territory of a Member State — Measures having an effect equivalent to border checks — Rules of a Member State requiring a coach travel operator on routes crossing the internal borders of the Schengen area to check passengers’ passports and residence permits.
In Touring Tours und Travel and Sociedad de Transportes of 13 December 2018 (joint cases C-412/17 and C-474/17), the Court of Justice rules on the prohibition of internal border controls within the Schengen Area. In line with its previous case-law, the Court addresses the issue of a national obligation imposing on coach travel operators the task of checking passengers’ passports and residence permits on routes crossing internal borders as a “measure having an effect equivalent to border checks”.
A. Facts and Ruling
1. Facts and circumstances of the case
The parties in the main proceedings are in dispute about the conformity of German domestic legislation, which requires coach transport operators (private companies) to check passengers’ passports and residence permits before they cross the German border (within the Schengen area) with Article 20 and Article 21 of the Schengen Borders Code (Regulation No 562/2006) and Article 67(2) of the Treaty on the Functioning of the European Union.
The coach service companies operate regular travels across the border between Germany and the Netherlands and Germany and Belgium. Since 2013, those companies have transported a large number of third-country nationals to Germany who were not in possession of the requisite travel documents. The issue at stake in this ruling is the undesirability, from a Member State perspective, of the so-called “secondary movement”. The latter is defined by the European Commission as “the movement of migrants, including refugees and asylum seekers who, for different reasons, move from the country in which they first arrived to seek protection or permanent resettlement elsewhere. This movement is without the prior consent of the national authorities, without an entry visa, or with no or insufficient documentation normally required for travel purposes, or with false or fraudulent documentation” (EMN glossary).
According to Paragraph 63 of the Law on residence, employment and integration of foreign nationals in the German Federal Territory, the transport carriers’ staff are required to check passengers’ travel documents when checking tickets at the boarding point. As such, they shall refuse travel to the passengers without the said documents. The aim of the legislation is therefore to prevent the entry of these third-country nationals to Germany.
In compliance with the domestic legislation at issue, the German Federal Police first sent a “warning” to the coach service operators implicated, listing the cases of transport of unauthorised passengers to Germany. As they persisted in their conduct, the warning was followed by prohibition orders, accompanied by a fine of 1,000 EUR per new infringement.
The two coach service companies, Touring Tours und Travel and Sociedad de Transportes, brought actions against those orders, which the German Administrative Court subsequently annulled. The Court deemed that Paragraph 63 is contrary to Article 67(2) TFEU and Article 20 and 21 of the Schengen Borders Code (in the version applicable in 2014). According to the German Administrative Court, the controls imposed on the coach service operators constitute “measures having an effect equivalent to border checks” for the purposes of Article 21 and are therefore prohibited.
The Federal Republic of Germany brought an appeal against that judgment before the referring Court. Germany argues that the controls imposed by Paragraph 63 on the transport carriers comply with a set of EU legislation to counter illegal migration, which, among other measures, seek to impose penalties for the facilitation of illegal migration. Germany claims that those measures act as special provisions compared to the Schengen Borders Code and that they justify the imposition of penalties for infringements of transport prohibitions such as Paragraph 63.
In the context of this dispute, the German Federal Administrative Court decided to stay the proceedings and to refer two main questions (with additional sub-questions), identical in case C-412/17 and case C-474/17, to the Court of Justice of the European Union concerning the interpretation of Article 67(2) TFUE and Articles 20 and 21 of Regulation N° 562/2006. The two main questions are formulated as follows:
- Do Article 67(2) TFEU and Articles 20 and 21 of Regulation N° 562/2006 preclude a provision of national law of a Member State which has the effect of requiring coach transport undertakings operating regular services across a Schengen internal border to check their passengers’ travel documents before crossing an internal border in order to prevent foreign nationals not in possession of a passport or residence permit from being brought into the territory of the Federal Republic of Germany?
- Do Articles 20 and 21 of Regulation N° 562/2006 permit provisions of national law under which, for the purposes of ensuring compliance with that duty to carry out checks as referred to in question 1, an order imposing a prohibition and a threat of a recurring fine against a coach transport undertaking in cases where the failure to carry out checks has enabled even foreign nationals not in possession of a passport or residence permit to be brought into the territory of the Federal Republic of Germany?’
2. Judgment and reasoning of the Court
The Court finds that European law precludes national legislation that requires coach transport services to check the passports and residence permits of passengers before they cross an internal border of the Schengen Area.
The Court proceeds with an overall assessment of the German legislation based on the relative weight of the indicators listed in the Article 21(a) Schengen Borders Code. The Court analyses if the controls required by the domestic provision (the above-mentioned Paragraph 63) constitute a “measure having effects equivalent to border checks”. Because of the absence of sufficient, detailed rules and limitations with regard to the intensity, selectivity and frequency of the checks imposed under the German legislation, the imposition of such checks constitute a violation of Article 21 of the Schengen Borders Code.
The interest of this case-law resides in the interplay of the Court’s arguments and the opinion of the Advocate General Bot as well as in the interpretation of the prohibition of border checks in light of the Court’s previous case-law concerning the Schengen Borders Code.
1. The argument of the German government: compliance with legislation on the fight against irregular migration
The German government argues that the legislation in question complies with “special” legislation of the European Union, namely Directive 2002/90 defining the facilitation of unauthorised entry, transit and residence, Framework Decision 2002/964 and Directive 2001/51 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 198. This set of measures aims to counter irregular migration by imposing penalties for the aiding of illegal migration. Indeed, the German Government has used this argument in its written observations, at the hearing at the Court of Justice and as a base for its appeal against the domestic judgment, the object of the dispute in the main proceedings.
However, the Court of Justice considers that the national referring Court did not need any clarification in reply to this line of argument of Germany regarding the possible effect of this body of legislation (§28). Therefore, it did not embark in the interpretation of the border checks in light of those provisions and decided not to extend the scope of the questions referred. Yet, the Court recalls that any obligation emanating from those provisions should be implemented as part of the Schengen Borders Code.
On the contrary, the Advocate General Bot in his opinion in joint cases C-412/17 and C-474/17 analyses the compliance of the obligation to check travel documents with the provisions of EU legislation aimed at fighting illegal immigration. He concludes that this body of legislation does not establish the legality of those checks. Moreover, the Advocate General recalls a series of means and measures that the Member States can use to (lawfully) counter irregular migration into their territory. Among those, operation cooperation (Article 16 of the Schengen Borders Code) obliges Member States “to exchange all relevant information, assist each other and maintain close cooperation with a view to the effective implementation of the external border control” (§108).
In its latest Progress Report on the implementation of the European Agenda on Migration (March 2019), the European Commission affirms: “there is a clear correlation between strong border and migration policies and our ability to preserve the benefits of the Schengen area (…). The Commission has set out how security can be intensified through proportionate police checks and cooperation, without requiring border controls, and proposed changes to the rules on the temporary reintroduction of border controls at internal borders. (…) It is time to take stock of the situation with a view to having the internal border controls lifted and restoring a fully functioning Schengen area”.
2. A matter of perspective: border checks or checks within the territory?
The Advocate General Bot and the Court looked at the obligation that requires coach transport operators to check the passports and residence permits of passengers (before they cross an internal border of the Schengen Area) from two different perspectives, reaching, in any case, the same conclusion.
According to the Advocate General, the obligation at issue should be understood in light of Article 20 of the Schengen Borders Code titled “Crossing internal borders”. According to Article 20 “internal borders may be crossed at any point without a border check on persons, irrespective of nationality, being carried out”. The checks that coach service operators were required to conduct are comparable to border checks, prohibited within the Schengen Area.
The checks take place before the border is crossed, when the passengers aboard the coach. In the view of the Advocate General, even if not performed at the physical internal border, those checks work as “remote checks” or “outsourced checks” (§85). Border control is therefore doubly externalised. On the one hand, border control is externalised beyond the physical border, outside the territory of the Member State concerned (at the coach boarding point in another Member State within the Schengen Area, e.g. in Belgium or The Netherlands). On the other hand, border control is externalised to private actors and therefore privatized (because the coach service’s staff performs the checks).
The opinion of the Advocate General is not entirely shared by the Court. According to the latter, the obligations should be understood in light of Article 21(a) Schengen Borders Code titled “Check within the territory”. Since the checks are carried when the passengers aboard the coach, at the start of a cross-border journey, they happen within the territory of a Member State.
3. Measure having an effect equivalent to border checks: an assessment framework
A preliminary point made by the Court in reply to the referring court is that Article 21(a) Schengen Borders Code is applicable to transporters and not only to police authorities. This is true particularly when the power of the transporters stems from a general obligation (the national provision) or from a police order (the prohibiting orders following the “warning”). The transporters carry out the checks on the instruction and under the control of the authorities. The Court explains, “if that were not the case, that provision could easily be circumvented and its effectiveness compromised” (§50).
The Court also explains that, in the present case, “the checks at issue (…) are characterised by the particularly close connection which they have with the crossing of an internal border, inasmuch as that is specifically the event which triggers those checks” (§67). In order to assess whether the provision requiring coach services to check passports and residence permits of the passenger is a measure having an effect equivalent to border checks (and is, therefore, prohibited), the Court undertakes a comprehensive analysis of the indicators listed in Article 21(a) Schengen Borders Code.
The Court examines the indicators listed in Article 21(1) Schengen Borders Code whereby the exercise of police power (in this case delegated to transporters) should not be considered equivalent to the exercise of border checks when the measures:
a. Do not have border control as an objective
The purpose of the checks in question is precisely border control with the aim of “preventing passengers from entering the territory of that State if they do not have the requisite travel documents” (§59). This is clear from the wording of the obligation at Paragraph 13 of the German legislation entitled “Crossing Borders”; it is compulsory for “all foreign nationals to have in their possession a recognised valid passport or a document replacing a passport on entering or leaving the national territory and to submit to police checks on cross-border traffic” (§57). The staff of the coach services are therefore required by Paragraph 63 to verify, at the coach boarding point, if the passengers are in possession of the documents to comply with those conditions for entering Germany.
b. Are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime.
The German Police issued prohibiting orders to the coach service operators where it is ascertained that third-country nationals are entering the German territory without the requisite travel document. Those orders are, as a matter of fact, based on general police information and experience regarding possible threats to public order. However, this is not true when checks are imposed on coach service operators based on a general obligation (§60 and §61).
c. Are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders
Although the checks performed by the staff of coach services operators are “less in-depth than that carried out by the police” (§63), they must be carried out systematically on all persons travelling on all cross-border coaches.
d. Are carried out on the basis of spot-checks
Since the obligation is of a general character, the checks are clearly not carried out on the basis of spot-checks (§65
4. Reference to previous case-law on the Schengen Borders Code:
This ruling is the first where the Court expresses its views on the prohibition of measures having effects equivalent to border controls operated by coach service companies. However, the analysis of the Court is in line with its previous case-law interpretation of Article 21(a) in respect of checks carried out within the territory of a Member State (at the border or at the border area) by State authorities exercising public powers.
The three cases (A., Melki and Abdeli, Adil) concerned checks of identity, nationality and residence status within a limited distance from an internal border. In these cases, the Court established criteria which allow the national Court to determine if Article 67(2) TFEU and Article 20 and 21 of the Schengen Borders Code preclude national legislation conferring to police authorities the power to check the identity of any persons within a certain distance from a Member State’s border. The principle drawn by the Court is that the Schengen Borders Code precludes such legislation “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” (A., §63).
The compliance of such checks with the Schengen Borders Code in respect of their nature and geographical scope must be subject to the verification of the national Court. The latter shall examine if national law enabling the exercise of certain checks is subject to detailed rules and limitations determining the intensity, frequency and selectivity of the checks.
The Court recalls that the checks imposed under Paragraph 63 and those carried out in the rest of Germany (within the territory) have distinct legal bases. The latter are directed to coach services which cover distances comparable or even larger to the one of companies offering cross-border travel service (§69). The circumstance that different rules apply to similar coach transport services is an additional indicator of the “effect equivalent to border checks” for the purposes of Article 21(a) Schengen Borders Code attached to the measure at issue.
5. External border control vs internal border control
The Advocate General stresses that, by introducing an obligation for carriers to carry out checks, Germany is using legislation originally intended for external border controls and is “covertly and with less obvious effectiveness restoring borders where they have, in principle, been abolished and is circumventing the fundamental prohibition set out in Article 1 and 20 of the Schengen Borders Code”.
In an era where Member States call for the restoration of internal border controls to counter the undesirability of “secondary movements”, the Court of Justice reiterates, with the ruling Touring Tours und Travel and Sociedad de Transportes, the importance of the prohibition of internal border controls within the Schengen Area. In line with its previous case-law, the Court addresses the issue of a national obligation imposing on coach travel operators the task of checking passengers’ passports and residence permits on routes crossing internal borders as a “measure having an effect equivalent to border checks”. Border checks at the internal borders of the Schengen Area can only be carried out in the presence of a clear framework, accompanied by detailed rules and limitations.
C. Suggested Reading
F. Mc Namara, “Externalised and privatised procedures of EU migration control and border management: a study of EU member state control and legal responsibility” European University Institute PhD theses; Department of Law, European University Institute, Florence, 2017
Other materials :
EUROPEAN COMMISSION (2017) Communication from the Commission to the European Parliament and the Council on preserving and strengthening Schengen, Brussels, 27/9/2017 COM (2017) 570 final
EUROPEAN COMMISSION (2019) Communication from the Commission to the European Parliament, the European Council and the Council, Progress report on the Implementation of the European Agenda on Migration, Brussels, Brussels, 6/3/2019 COM(2019) 126 final
To cite this contribution: E. Frasca, “Preserving and strengthening Schengen or circumventing the prohibition of border checks at the internal borders? The case of outsourced checks on persons performed by carriers.”, Cahiers de l’EDEM, March 2019
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