Information;Order — ECLI:EU:C:2020:439
Date: 2020-06-04
Language of the case: German
Court formation: Tenth Chamber
Subject matter: Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Area of freedom, security and justice;Acts of the institutions;Administrative cooperation;Border checks
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-554/19 — 1 
Case C-554/19 
Request for a preliminary ruling 
Date lodged: 
18 July 2019 
Referring court: 
Amtsgericht Kehl (Germany) 
Date of the decision to refer: 
28 June 2019 
Applicant: 
Staatsanwaltschaft Offenburg (Germany) 
Accused: 
FU 
  
… 
Amtsgericht Kehl 
(Local Court, Kehl) 
Order 
In the criminal proceedings against 
FU,  
… 
charged with deliberately driving a vehicle without a licence 
the Amtsgericht Kehl … ordered as follows on 28 June 2019: 
EN 
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I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to the first paragraph, under (a), and 
the second paragraph of Article 267 TFEU: 
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) 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. 
(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 
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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. 
(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)? 
II. The proceedings are stayed pending a ruling from the Court of Justice of the 
European Union on the questions referred. 
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Grounds: 
I. 
The Amtsgericht Kehl, in the person of the single judge sitting in criminal matters 
(‘the referring court’), is required to give a ruling on the request of the Public 
Prosecution Service in Offenburg that it impose a fine, by way of a penalty order, 
on the accused for the offence of deliberately driving a vehicle without a licence. 
1. At the present stage of the investigation, the following facts form the basis 
of the request for a preliminary ruling: 
The accused, a French national residing in France, drove a passenger car on 
Straßburger Straße in 77694 Kehl (Germany) … at around 3:20 a.m. on 
20 July 2018 even though, as he was aware, he did not have the required 
driving licence. [Or. 4] 
The accused was identified as the driver of the vehicle during a check 
carried out by the Federal Police after he had entered the territory of the 
Federal Republic from France via the Europabrücke bridge between Kehl 
and Strasbourg. During the check, it was established that he did not have the 
required driving licence. 
According to a note recorded by the police, the check was carried out on the 
basis of point (3) of Paragraph 23(1) of the Bundespolizeigesetz (Law on the 
Federal Police; ‘the BPolG’) in order to prevent or eliminate illegal 
migration and to … prevent cross-border crime pursuant to points (1) to (4) 
of Paragraph 12(1) of the BPolG. Furthermore, the police merely noted that 
the check carried out was ‘a random, irregular measure not implemented on 
a permanent basis’. Temporary border controls pursuant to [Title III] of 
Chapter II of the Schengen Borders Code were not in place at this border 
section at the time of the check. 
2. Constituting the offence of deliberately driving a vehicle without a licence, 
this act would be [punishable] pursuant to point (1) of Paragraph 21(1) of 
the Straßenverkehrsgesetz (Law on road transport), which [provides for] the 
imposition of a criminal penalty in the form of imprisonment for a maximum 
of one year or a fine of between five and 360 units under the daily rate 
system. 
3. The Public Prosecution Service requests that the accused be ordered to pay a 
fine of 30 units of EUR 30 under the daily rate system. 
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II. 
The referring court considers an answer to the questions referred to be necessary 
in order to enable it to decide on the request that a penalty order be issued. It 
therefore refers those questions to the Court of Justice of the European Union 
(‘the Court of Justice’) for a preliminary ruling pursuant to the first paragraph, 
under (a), and the second paragraph of Article 267 TFEU. 
Regarding the decision on the issuing of the penalty order applied for, the 
referring court must assess whether there are adequate grounds to suspect that the 
accused committed an offence. This requires that a conviction is probable on the 
basis of the available evidence. It must be noted here that unlawfully obtained 
evidence may be subject to a prohibition on its use. In the present case, the finding 
that the accused was the driver of a passenger car is based on the check carried out 
by the Federal Police. According to the referring court, there would not be 
adequate grounds to suspect that the accused committed the offence [if] the check 
had been unlawful, and this would result in a prohibition on the use, in criminal 
proceedings, of the information and evidence obtained as a result of that check. 
[Or. 5] 
1. The first question referred: 
a. Regarding point (3) of Paragraph 23(1) of the BPolG, the Court of Justice 
held, by judgment of 21 June 2017 (… A, C-9/16, EU:C:2017:483), that 
Article 67(2) TFEU and Articles 20 and 21 of Regulation (EC) No 562/2006 
of the European Parliament and of the Council of 15 March 2006 
establishing a Community Code on the rules governing the movement of 
persons across borders (Schengen Borders Code 2006), as amended by 
Regulation (EU) No 610/2013 of the European Parliament and of the 
Council of 26 June 2013 (since replaced by 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), must be interpreted as precluding a national 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 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 and of the 
existence of specific circumstances, unless that legislation lays down the 
necessary framework for that power ensuring that its practical exercise 
cannot have an effect equivalent to that of border checks. 
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b. On 7 March 2016, the Federal Ministry of the Interior issued a decree 
clarifying the application of the powers of the Federal Police to carry out 
identity checks in border areas pursuant to point (3) of Paragraph 23(1) of 
the BPolG (Gemeinsames Ministerialblatt [Joint Ministerial Gazette], 
GMBl, 2016, number 10, page 203; ‘the ministerial decree’). This decree 
reads as follows: 
‘(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 [Or. 6] 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. 
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 
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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 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.’ 
c. Whether the ministerial decree fulfils the conditions imposed by the Court of 
Justice on the required regulatory framework is a matter of debate in 
German case-law …. 
The referring court also has doubts as to whether this decree clarifies the 
enabling rule under point (3) of Paragraph 23(1) of the BPolG in the 
requisite manner …. It is true that this ministerial decree can in principle be 
ascribed a judicially reviewable capacity to bind control practice and thus 
the normative character that is clearly expected by the Court of Justice. The 
decree does not contain specific provisions — which guide discretion — on 
how the random nature of all the controls should be ensured, for example by 
means of a quantitative restriction …. 
d. Upon enquiry by the referring court, the Federal Police stated that police 
action is regulated not only by the ministerial decree but also by the internal 
instructions ‘BRAS 120’ in the version of August 2016. However, these 
service instructions essentially do nothing more than reproduce the wording 
of the provisions of the ministerial decree and, beyond that, likewise do not 
contain any specific provisions on the conduct of the controls. In addition, 
these service instructions are not publicly accessible, meaning that they do 
not meet the minimum requirements for a provision that can form the 
regulatory framework required by the Court of Justice …. 
e. The same applies to the situational surveys on irregular migration and the 
smuggling of human beings, which are drawn up periodically and used to 
plan the deployment of resources. The referring court can only assume that 
these are the ‘continuously updated situational intelligence’ referred to in the 
ministerial decree. Moreover, it should be noted in this regard that it is clear 
that these situational surveys, which are intended to justify the exceptional 
nature of the controls, are essentially based on intelligence that was obtained 
through controls pursuant to point (3) of Paragraph 23(1) of the BPolG 
itself. 
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f. In so far as the judgment of the Court of Justice already discusses 
Paragraph 15 of the BPolG, pursuant to which, among several possible and 
suitable measures, the measure that is likely to be the least harmful to 
individuals and the general public must be taken (subparagraph 1), a 
measure [Or. 8] must not result in detriment that is clearly disproportionate 
to the outcome sought (subparagraph 2), and a measure is permissible only 
until its purpose has been achieved or it becomes apparent that it cannot be 
achieved (subparagraph 3), this provision is not capable of providing the 
required regulatory framework, even in conjunction with the ministerial 
decree of 7 March 2016. The reason for this is that Paragraph 15 of the 
BPolG is merely a statutory reproduction of the principle of proportionality 
of all government action in individual cases. Going beyond individual cases, 
it is unable to prevent police practice from having the effect of border 
checks when point (3) of Paragraph 23(1) of the BPolG is implemented, 
particularly as a result of ‘cumulative effects’ …. 
2. The second question referred: 
a. The German law on criminal procedure does not make provision for a 
general prohibition on the use of evidence arising from the unlawfulness of 
the manner in which the evidence was obtained. With the exception of a 
number of special provisions that expressly provide for a prohibition on the 
use of evidence …, the erroneous taking of evidence does not always result 
in a prohibition on the use of that evidence …. Rather, according to the 
settled case-law of the Bundesverfassungsgericht (Federal Constitutional 
Court) and the Bundesgerichtshof (Federal Court of Justice), it is necessary 
to weigh up all the relevant aspects of each individual case and the 
conflicting interests, namely the principle in the German law on criminal 
procedure that the court must investigate the truth and, to that end, extend of 
its own motion the taking of evidence to all facts and evidence, and the 
individual interest of the party adversely affected by the unlawful measure 
…. A prohibition on the use of evidence constitutes an exception requiring 
justification; a prohibition is, however, at least necessary in the case of 
serious, deliberate or arbitrary procedural irregularities where fundamental 
safeguards have been methodically or systematically disregarded …. This 
judicial practice is in principle compatible with the European Convention on 
Human Rights, in particular Article 6 …. The rule/exception relationship 
postulated in the case-law is criticised by some commentators in the legal 
literature, who, conversely, call for a prohibition on the use of evidence as a 
rule, and for specific justification for the use of [Or. 9] unlawfully obtained 
evidence …. 
According to this case-law of the highest courts, in the case to be decided by 
the referring court an infringement of EU law in the collection of evidence 
would not entail a prohibition on the use as evidence of the information 
obtained as a result of the check carried out on the accused, even if the crime 
involved is not serious, as is the case here. This is because, unlike in the case 
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of a search of a home, for example, the encroachment on the rights of the 
party concerned is only slight in terms of its intensity. 
b. However, if the check on the accused infringes provisions of EU law and 
was therefore unlawful, the question that arises for the purpose of effective 
implementation of EU law and the uniform application of that law across the 
European Union, especially in view of the potential existence of stricter 
rules on the possibility of using unlawfully obtained evidence in other 
Member States, is whether EU law requires that information and evidence 
that has been obtained in breach of EU law should automatically be subject 
to a prohibition on use in criminal proceedings or, at the very least, that the 
interests of the European Union must be duly considered in the appraisal to 
be carried out, such that, at least in the case of crimes that are not serious in 
nature, the State’s interest in criminal prosecution must take second place. 
So far as can be ascertained by the referring court, the Court of Justice has 
not yet given a — general — answer to this question. However, the 
[judgment of 10 April 2003, Steffensen, C-276/01, EU:C:2003:228] …, for 
example, indicates that, in accordance with the principle of effectiveness, 
EU law can have such an influence on the law and practice of obtaining and 
using evidence in a Member State. The referring court understands that, 
although in the [Steffensen] case [C-276/01] … the Court of Justice found 
that a prohibition on the use of evidence did not result directly from EU law, 
it ruled that the national court is obliged to determine, in accordance with 
national law, which facts it considers to be proven and relies on as the basis 
for its decision, observing the adversarial principle and the right to a fair 
hearing. 
Unlike the case to be ruled on by the referring court here, however, the issue 
in the [Steffensen] case [C-276/01] was not the general, effective 
implementation of EU law in — moreover — a key policy area of the 
European Union. This is because [Or. 10] controls carried out by the Federal 
Police, such as those in the case to be ruled on by the referring court here, 
take place not just sporadically, but rather on a large scale. According to the 
Federal Government’s reply to a question put by Members of the German 
Bundestag, 1 475 499 controls were carried out on the basis of point (3) of 
Paragraph 23(1) of the BPolG throughout the territory of the Federal 
Republic in 2016, 1 730 499 in 2017 and 1 604 184 in 2018 […]. 
It should be noted here that it is clearly only in very isolated cases that the 
persons affected by the controls question their legality with the police or 
even seek judicial review of that legality. According to the same replies 
provided by the Federal Government to the parliamentary questions, there 
were a total of 28 complaints in the period from 1 January 2017 to 30 April 
2018 and a total of 58 complaints in the period from 1 January 2018 to 
30 April 2019; four and three sets of judicial proceedings, respectively, were 
pending throughout Germany at the time of the replies. By contrast, at least 
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22 sets of comparable criminal proceedings relating to non-serious crime, in 
which information or evidence had been obtained via checks pursuant to 
point (3) of Paragraph 23(1) of the BPolG and in which criminal 
proceedings were initiated solely on the basis of those checks, have been 
pending since September 2018 before the referring court, the jurisdictional 
area of which covers approximately 50 kilometres of the border of the 
Federal Republic. It can be assumed here that, on grounds of expediency, the 
competent public prosecution service closed a significant number of sets of 
proceedings of this nature at the end of the investigations. 
III. 
The referring court requests that, pursuant to Article 95(2) of the Rules of 
Procedure of the Court of Justice of the European Union, the Court of Justice 
maintain the anonymity of the person accused in the main proceedings. 
…