19 December 2018
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The Schengen Borders Code precludes Germany from requiring coach transport operators of cross-border services to check the passports and residence permits of passengers before entering or leaving German territory
Such checks have an effect equivalent to border checks and are therefore prohibited
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Touring Tours und Travel and Sociedad de Transportes are coach travel operators established, respectively, in Germany and in Spain, operating regular services to Germany, which cross the German-Netherlands and GermanBelgian borders. Having decided that those undertakings had transported to Germany a large number of third-country nationals who were not in possession of the requisite travel documents, the Bundespolizeipräsidium (Directorate of the Federal Police, Germany), in 2014, after sending a warning, issued an order prohibiting them, subject to the imposition of a recurring fine, from transporting third-country nationals not in possession of the requisite passport or residence permit to German territory.
Both coach transport operators brought actions against those prohibition orders before the German courts. Uncertain as to the compatibility of the obligation to carry out the checks at issue with the abolition of internal border controls in the Schengen area, the Bundesverwaltungsgericht (Federal Administrative Court, Germany) referred the matter to the Court of Justice.
In todays judgment, the Court finds that the Schengen Borders Code (in the version applicable in 2014) precludes the obligation to carry out checks at issue imposed on coach travel operators traveling to Germany and the issuing of orders prohibiting, subject to the imposition of a recurring fine, operators which infringed that obligation from providing any further transport services under the same conditions.
Since the checks at issue are carried out when the travellers board the coach at the start of the cross-border journey, they constitute checks within the territory of a Member State, which are prohibited where they have an effect equivalent to border checks.
According to the Court, the checks at issue have such an effect and are therefore prohibited.
The sole purpose of those checks is to ensure that the persons on board the coach who intend to cross the German border are actually permitted to enter German territory. Thus, the purpose of those checks is to prevent passengers from entering German territory 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. The triggering event is precisely the crossing of an internal border.
Moreover, the obligation to carry out checks is of a general character, covering all cross-border services, irrespective of the conduct of the persons concerned or of circumstances giving rise to a risk to public order. In addition, the checks on travel documents must be carried out systematically on all persons travelling on all cross-border coach services. By contrast, the obligation to carry out checks at issue does not cover coach transport services which are confined to German territory alone, even though they may be of a distance equal to, or even greater than, the cross-border services to which that obligation to carry out checks applies.
Since the obligation to carry out checks as such is contrary to the Schengen Borders Code, that code also precludes sanctions for infringement of that obligation through the issuing of orders prohibiting transport, together with a threat to impose a recurring fine.
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