# C_2019357EN.01001901.xml

| 21.10.2019 | EN | Official Journal of the European Union | C 357/19 |
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21.10.2019

EN

Official Journal of the European Union

C 357/19

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Reference for a preliminary ruling from the Amtsgericht Kehl (Germany) lodged on 18 July 2019 – Criminal proceedings against FU

(Case C-554/19)

(2019/C 357/25)

Language of the case: German

Referring court

Amtsgericht Kehl

Party to the main proceedings

Staatsanwaltschaft Offenburg

Accused:

FU

Questions referred

| 1. | Are Article 67(2) TFEU and Articles 22 and 23 of Regulation (EC) 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) (1) to be interpreted as precluding a national legislative provision which confers on the police authorities of the Member State in question the power to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other States that are party to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen (Luxembourg) on 19 June 1990, with a view to preventing or terminating unlawful entry into or [Or. 2] residence in the territory of that Member State or preventing certain criminal offences which undermine the security of the border, irrespective of the conduct of the person concerned or the existence of specific circumstances, and which is supplemented as follows by ministerial decree:






  (a) | Cross-border crime takes place dynamically (in terms of time and location, and using various means of transport) and flexible police powers are therefore required to combat it. The exercise of the aforementioned power ultimately aims to prevent or eliminate cross-border crime; |
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1.

Are Article 67(2) TFEU and Articles 22 and 23 of Regulation (EC) 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) (1) to be interpreted as precluding a national legislative provision which confers on the police authorities of the Member State in question the power to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other States that are party to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen (Luxembourg) on 19 June 1990, with a view to preventing or terminating unlawful entry into or [Or. 2] residence in the territory of that Member State or preventing certain criminal offences which undermine the security of the border, irrespective of the conduct of the person concerned or the existence of specific circumstances, and which is supplemented as follows by ministerial decree:

(a)

Cross-border crime takes place dynamically (in terms of time and location, and using various means of transport) and flexible police powers are therefore required to combat it. The exercise of the aforementioned power ultimately aims to prevent or eliminate cross-border crime;

| (b) | The control measures must be executed within the strictly defined framework of the abovementioned criteria of Article 21(a) of the Schengen Borders Code. They must be devised in such a way that they are clearly distinct from systematic checks on persons at the external borders and do not have an effect equivalent to border checks. The implementation of these control measures must in turn be subject to a framework so that it is ensured that they are not equivalent to border checks in terms of intensity and frequency. |
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(b)

The control measures must be executed within the strictly defined framework of the abovementioned criteria of Article 21(a) of the Schengen Borders Code. They must be devised in such a way that they are clearly distinct from systematic checks on persons at the external borders and do not have an effect equivalent to border checks. The implementation of these control measures must in turn be subject to a framework so that it is ensured that they are not equivalent to border checks in terms of intensity and frequency.

| (c) | This framework is structured as follows: | The control measures shall not be implemented on a permanent basis, but rather executed in an irregular manner, at different times, in different places and on a random basis, taking into account the volume of traffic. |
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(c)

This framework is structured as follows:

The control measures shall not be implemented on a permanent basis, but rather executed in an irregular manner, at different times, in different places and on a random basis, taking into account the volume of traffic.

| | The control measures shall not be executed solely in response to the crossing of borders. They shall be carried out on the basis of continuously updated situational intelligence and/or (border) police experience, which the Federal police services are to develop on the basis of their own situational information or that of other authorities. General or specific police information and/or experience relating to cross-border crime, for example relating to frequently used transport means or routes or certain patterns of behaviour, and analysis of the available information on cross-border crime obtained from the police services’ own sources or from other authorities shall be the starting point for the exercise of police measures and for the intensity and frequency of those measures. |
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The control measures shall not be executed solely in response to the crossing of borders. They shall be carried out on the basis of continuously updated situational intelligence and/or (border) police experience, which the Federal police services are to develop on the basis of their own situational information or that of other authorities. General or specific police information and/or experience relating to cross-border crime, for example relating to frequently used transport means or routes or certain patterns of behaviour, and analysis of the available information on cross-border crime obtained from the police services’ own sources or from other authorities shall be the starting point for the exercise of police measures and for the intensity and frequency of those measures.

| | The form taken by the control measures shall be the subject of regular administrative and technical supervision. Fundamental rules are set out in the fourth sentence of Paragraph 3(1) of the Gemeinsame Geschäftsordnung der Bundesministerien (Common Rules of Procedure of the Federal Ministries; ‘the GGO’) and in the Grundsätze zur Ausübung der Fachaufsicht der Bundesministerien über den Geschäftsbereich (Principles governing the exercise of technical supervision by the Federal Ministries over their areas of activity). Regarding the Federal Police, these rules are given concrete form by the ‘Ergänzende Bestimmungen zur Ausübung der Dienst- und Fachaufsicht des BMI über die Bundespolizei’ (Supplementary provisions for the exercise of administrative and technical supervision by the BMI [Federal Ministry of the Interior] over the Federal Police). The Federal Police Headquarters and the bodies and agencies subordinated thereto have made provision for the execution [Or. 3] of administrative and technical supervision in their task allocation plans and implemented it via their own concepts. |
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The form taken by the control measures shall be the subject of regular administrative and technical supervision. Fundamental rules are set out in the fourth sentence of Paragraph 3(1) of the Gemeinsame Geschäftsordnung der Bundesministerien (Common Rules of Procedure of the Federal Ministries; ‘the GGO’) and in the Grundsätze zur Ausübung der Fachaufsicht der Bundesministerien über den Geschäftsbereich (Principles governing the exercise of technical supervision by the Federal Ministries over their areas of activity). Regarding the Federal Police, these rules are given concrete form by the ‘Ergänzende Bestimmungen zur Ausübung der Dienst- und Fachaufsicht des BMI über die Bundespolizei’ (Supplementary provisions for the exercise of administrative and technical supervision by the BMI [Federal Ministry of the Interior] over the Federal Police). The Federal Police Headquarters and the bodies and agencies subordinated thereto have made provision for the execution [Or. 3] of administrative and technical supervision in their task allocation plans and implemented it via their own concepts.

| (d) | In order to avoid a proliferation of controls, the control measures should be coordinated with other authorities to the greatest extent possible or should be executed within the framework of joint operation/cooperation schemes.? |
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(d)

In order to avoid a proliferation of controls, the control measures should be coordinated with other authorities to the greatest extent possible or should be executed within the framework of joint operation/cooperation schemes.?

| 2. | Is the law of the European Union, in particular the second subparagraph of Article 4(3) ... TEU, Article 197(1) TFEU and Article 291(1) TFEU, to be interpreted as precluding, automatically or after weighing up prosecution interests and those of the accused party, the use of intelligence or evidence in criminal proceedings if it was obtained from a police check on the accused party that is contrary to Article 67(2) TFEU or to Articles 22 and 23 of 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)? |
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2.

Is the law of the European Union, in particular the second subparagraph of Article 4(3) ... TEU, Article 197(1) TFEU and Article 291(1) TFEU, to be interpreted as precluding, automatically or after weighing up prosecution interests and those of the accused party, the use of intelligence or evidence in criminal proceedings if it was obtained from a police check on the accused party that is contrary to Article 67(2) TFEU or to Articles 22 and 23 of 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)?

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(1)  OJ 2016 L 77, p. 1.

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