View of the Advocate General — ECLI:EU:C:2012:430
Date: 2012-07-09
Language of the case: Dutch
Subject matter: Internal market - Principles;Area of freedom, security and justice;Border checks
Procedure: Preliminary reference - urgent procedure
Origin: Netherlands

Summary of the Judgment Border controls, asylum and immigration — Community code on movement across borders — Abolition of border control at internal borders — Checks within the territory — National legislation conferring on officials responsible for border surveillance and for monitoring foreign nationals the power to carry out checks in an area of 20 kilometres from the common land border with the other States which are party to the Schengen Convention — Lawfulness — Conditions (Art. 3(2), TEU; Arts 26(2) TFEU and 67(1) TFEU; European Parliament and Council Regulation No 562/2006, Arts 20 and 21) Articles 20 and 21 of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) must be interpreted as not precluding national legislation which enables officials responsible for border surveillance and the monitoring of foreign nationals to carry out checks, in a geographic area 20 kilometres from the land border between a Member State and the State parties to the Convention on the Implementation of the Schengen Agreement, with a view to establishing whether the persons stopped satisfy the requirements for lawful residence applicable in the Member State concerned, when those checks are based on general information and experience regarding the illegal residence of persons at the places where the checks are to be made, when they may also be carried out to a limited extent in order to obtain such general information and experience-based data in that regard, and when the carrying out of those checks is subject to certain limitations concerning, inter alia, their intensity and frequency. First, those checks are not border checks prohibited by Article 20 of Regulation No 562/2006 and, second, Article 21(a) of that regulation prohibits such checks only if they have an equivalent effect to that of border checks. However, the more extensive the evidence of the existence of a possible equivalent effect, within the meaning of Article 21(a) of Regulation No 526/2006, apparent from the objective pursued by the checks carried out in a border area, from the territorial scope of those checks and from the existence of a distinction between the basis of those checks and that of those carried out in the remainder of the territory of the Member State concerned, the greater the need for strict detailed rules and limitations laying down the conditions for the exercise by the Member States of their police powers in a border area and for strict application of those detailed rules and limitations, in order not to imperil the attainment of the objective of the abolition of internal border controls set out in Articles 3(2) TEU, 26(2) TFEU and 67(1) TFEU, and provided for in Article 20 of Regulation No 562/2006. (see paras 56, 57, 75, 88, operative part)