A bridge over Schengen’s troubled borders

Friday 2 June  2017 was an important day for Germany, and more specifically for the German Bundespolizei. Like other countries, Germany had been using the possibility offered by Article 23 of the Schengen Border Code to carry out police checks in intra-Schengen border areas.  After the Dutch and French national legislative frameworks and intra-Schengen border practices had already been assessed in the light of EU Law by the Court of Justice for the EU, it was now Germany’s turn.

Preventing unauthorised entry through ID checks

On 1 April 2014 the plaintiff ‘A’ was walking across the Europabrücke (Europe Bridge) to cross from Strasbourg (France) to Kehl (Germany). After crossing the bridge ‘A’ proceeded directly to the railway station operated by Deutsche Bahn AG, located approximately 500 metres beyond the bridge. This was observed by two officers of the German Federal Police (Bundespolizei) on patrol in the area at the front of the railway station.

Based on point (3) of Paragraph 23(1) of the “Gesetz über die Bundespolizei”, the Law on the Federal Police, the  officers carried out an identity check on ‘A’. According to this provision the Federal Police may check the identity of a person “(…) within 30 kilometres of the border for the purpose of preventing or terminating any unauthorised entry into Federal territory or preventing criminal offences within the meaning of points (1) to (4) of Paragraph 12(1)”. The offences the article refers to are all related to border crossings and border security. Not amused – and perhaps not convinced - by the reasons for the identity check, ‘A’ forcibly resisted and was arrested and charged for doing so.

Questioning the lawfulness of the national legislation

The Amtsgericht Kehl (Local Court, Kehl, Germany) took the view that the offence of resisting an enforcement officer had been established and that ‘A’ was to be punished, in so far as the acts of the police officers acting in the performance of their official duties were lawful. Whereas the Amtsgericht was of the opinion that the check by the Federal Police officers on the identity of ‘A’ based on Paragraph 23(1) of the Law on the Federal Police was lawful, it had doubts as to the compatibility of the provisions with EU law which has priority. If those doubts were well-founded, the attempt made by ‘A’ to avoid a check on his identity using force would not be punishable under Paragraph 113 of the German Criminal Code.

A clear and precise national framework?

According to the Court of Justice for the EU (the CJEU) the local Court rightfully questioned the compatibility of the local legislation with the European framework, in particular with the Schengen Border Code. Article 23 of the Schengen Border Code allows countries to exercise police powers – and thus, for instance, carry out identity checks – as long as: (1) the exercise of these powers cannot be considered equivalent to the exercise of border checks, (2) the police measures do not have border control as an objective, (3) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, and lastly (4) as long as the measures 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-checks. In order to meet these requirements, and thus compliance with the Schengen Border Code, countries have to set up a regulatory framework with detailed rules and limitations contained on the practical exercise of police powers. Also, the framework must be clear and precise in defining the intensity, frequency and selectivity of checks. As the CJEU explains, the national framework must “guide the discretion that national authorities enjoy in the practical application of their powers” (Paragraph 39) and prevent these checks from being a “veiled” form of permanent border control. Whereas such a detailed national framework is always required, the need for it is even more pressing when – as was the case in Kehl - the checks are carried out in close proximity to the border and when the legal basis for these checks – in this case identity checks – differs from a similar check being carried out in the remainder of the territory.

The German identity check was specifically limited to a border area – the 30 km zone – and, by looking at the national legislation, in fact entailed a proactive identity check – so there was no need for a concrete let alone a reasonable suspicion of any sort. Yet, a clear and precise framework “guiding” the responsible officers in the enforcement of their task was lacking in Germany. As a result, the CJEU had no proof – and thus no reason – to rule out the possibility that the practical exercise of the police powers granted under German law results in controls that would have an effect equivalent to border checks.

It is all about discretion

EU countries have been, and will continue to be, monitoring intra-Schengen border mobilities by exploring the possibilities the Schengen Border Code offers, among other things. Especially the use of Article 23 SBC – the police checks in border areas – seems to becoming more popular besides the – more problematic in the light of what the European Union stands for – possibility to temporarily close the border and reintroduce permanent border checks as laid down in Articles 25 -35 SBC. A reason for this could be found in the fact that the European Commission has been encouraging countries to make use of Article 23, but also in the ever-growing feelings of uneasiness and concern about increased cross-border mobility as a result of what has come to be known as the European refugee “crisis”. Sweden for instance is exploring the “Dutch Model” of how the Netherlands has been using Article 23 SBC to police their border areas for many years now.

Nevertheless, as the limited case law on Article 23 SBC shows, the implementation or, perhaps better said, the translation of the article into actual national police practice is something that deserves to be monitored as Article 23 SBC provides countries, and thus also those who are in charge of exercising the checks, with quite some discretionary space on the specifics. And, whereas a certain amount of discretion is necessary for the proper functioning of (legal) systems and institutions, in the light of the proper functioning of Schengen and the European project at large, it is precisely these discretionary decisions on the national (country), organizational and individual level that can make all the difference. It is for this reason that addressing and researching these discretionary decisions is central to the 5-year research project “Getting to the Core of Crimmigration”, funded by the Netherlands Organization for Scientific Research (NWO).

This blog has been originally published on the Leiden Law Blog.