CJEU: Judgment in joined cases C‑412/17 and C‑474/17

Thursday, December 13, 2018

On the 13 December, the Court of Justice of the European Union ruled on the conformity of passport checks on cross border coach journeys with EU law.

The case concerned the conformity of national legislation imposing an obligation on private carrier companies to perform checks on passengers’ travel documents with certain provisions under the Treaty on the Functioning of the European Union and Schengen Borders Code.

The Court first noted that it is clear from its previous case law that, where checks are carried out, not ‘at borders’ or ‘when the border is crossed’, but inside the territory of a Member State, such as when travellers board a coach at the start of the cross-border journey, those checks do not amount to border checks prohibited by Article 20 of the Schengen Borders Code, but are to be considered as checks within the territory of a Member State, referred to in Article 21. Therefore, it is necessary to examine whether checks within the territory of a Member State, such as those devised and carried out under German law, are prohibited under Article 21(a) of the Schengen Border Code. According to this provision, the checks would be unlawful if they had an effect equivalent to border checks.

The Court found that the purpose of such checks is to prevent passengers from entering the territory of that State if they do not have the requisite travel documents, which is the same as the purpose of the checks carried out by the border police in connection with the crossing of external borders. Consequently, there is a particularly close connection between the checks and the crossing of an internal border, inasmuch as that is specifically the event which triggers those checks. It further noted that, due to the intensity, frequency and selectivity of the checks imposed under the national law at issue, they must be classified as a measure having an ‘effect equivalent to border checks’, prohibited by the first sentence of Article 21(a), in concurrence with AG Bot’s opinion on the matter.

It then went on to conclude that EU law precludes national legislation which requires every coach transport undertaking 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.


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