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
| Country of Domestic Proceedings: | Germany |
| Country of applicant: | Germany |
| Court name: | Court of Justice of the European Union (Second Chamber) |
| Date of decision: | 13-12-2018 |
| Citation: | Joined Cases C‑412/17 and C‑474/17 |
Keywords:
| Keywords |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
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.
Facts:
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.
Outcome:
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.
Observations/comments:
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).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Paragraph 63(1) |
| (2) of the Residence Act (AufenthG) |
Follower Cases:
| Follower Cases |
| Luxemburg - Administrative Tribunal, A. and B (Iraq) v. Ministry for Migration and Asylum, N° 43536, 6 November 2019 |
Other sources:
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