Criminal proceedings against A.
Date: 2017-06-21
26


It should be recalled that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments of 22 December 2008, Regie Networks, C‑333/07, EU:C:2008:764, paragraph 46; of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph 63; and of 22 June 2010, MelkiandAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27).
30


It should be recalled, as a preliminary step, that Article 67(2) TFEU, which falls within Title V of the FEU Treaty concerning the area of freedom, security and justice, provides that the Union is to ensure the absence of internal border controls for persons. Article 77(1)(a) TFEU states that the Union is to develop a policy with a view to ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 48)..
31


As is apparent from recital 1 of Regulation No 562/2006, the abolition of internal border controls forms part of the Union’s objective, stated in Article 26 TFEU, of establishing an area without internal borders in which the free movement of persons is ensured (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 49).
32


Article 20 of that regulation provides that internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out. Under Article 2, point 10, of that regulation, ‘border checks’ means the checks carried out at border crossing points to ensure that persons may be authorised to enter the territory of the Member States or authorised to leave it (judgments of 22 June 2010, MelkiandAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 67, and of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 51).
33


Article 72 TFEU provides that Title V of the FEU Treaty is not to affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 52).
34


Article 21(a) of Regulation No 562/2006 provides that the abolition of border control at internal borders is not to affect the exercise of police powers by the competent authorities of the Member States under national law, in so far as the exercise of those powers does not have an effect equivalent to border checks; that is also to apply in border areas (judgments of 22 June 2010, Melki andAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 69, and of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 53).
35


According to the second sentence of that provision, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures do not have border control as an objective, are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders and are carried out on the basis of spot-checks (judgments of 22 June 2010, Melki andAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 70, and of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 54).
36


Furthermore, the possibility for a Member State to provide for an obligation to hold or carry papers and documents in its national law is not, pursuant to Article 21(c) of Regulation No 562/2006, affected by the abolition of border control at internal borders (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 63 and the case-law cited).
37


In those circumstances, compliance with EU law and, in particular, Articles 20 and 21 of Regulation No 562/2006, must be ensured by setting up and complying with a framework of rules guaranteeing that the practical exercise of that power, consisting in carrying out identity controls, cannot have an effect equivalent to border checks (see, to that effect, judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 68).
38


In particular, in the face of evidence of an effect equivalent to that of border checks, compliance by those controls with Article 21(a) of Regulation No 562/2006 must be ensured by the details and limitations contained in the framework for the practical exercise of the police powers enjoyed by the Member States, a framework which should be such as to avoid such an equivalent effect (see judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 70 and the case-law cited).
39


In that regard, national legislation granting a power to police authorities to carry out identity checks — a power which, first, is restricted to the border area of the Member State with other Member States and, second, does not depend upon the behaviour of the person checked or on specific circumstances giving rise to a risk of breach of public order — must, inter alia, guide the discretion which those authorities enjoy in the practical application of that power (judgment of 22 June 2010, Melki andAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 74).
40


The Court has also stated that the more extensive the evidence of the existence of a possible equivalent effect, within the meaning of Article 21(a) of Regulation No 562/2006, 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 Article 3(2) TEU, Article 26(2) TFEU and 67(1) TFEU, and provided for in Article 20 of Regulation No 562/2006 (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 75).
41


Last, the framework required must be sufficiently clear and precise to enable the need for the checks and the checks actually authorised themselves to be checked (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 76).
43


Those checks are thus checks within the territory of a Member State, referred to in Article 21 of Regulation No 562/2006 (see, to that effect, judgments of 22 June 2010, Melki andAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 68, and of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 56).
47


The fact that the checks based on point (3) of Paragraph 23(1) of the BPolG thus aim to prevent or terminate illegal entry into the territory of the Federal Republic of Germany or to prevent criminal offences such as crimes which undermine border security or the carrying out of Federal Police tasks — whereas Article 21(a) of Regulation No 562/2006 does not refer specifically to that objective — does not mean that there is an objective of border control contrary to Article 21(a)(i) (see, by analogy, judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 64).
48


First, Article 21(a) of Regulation No 562/2006 provides neither an exhaustive list of the conditions which must be satisfied by police measures in order not to be considered as equivalent to border checks, nor an exhaustive list of the objectives which those police measures may pursue. That interpretation is confirmed by use of the words ‘in particular’ in the second sentence of Article 21(a) of Regulation No 562/2006 and in Article 21(a)(ii) (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 65).
49


Second, neither Article 79(1) and (2)(c) TFEU – which provides for the development by the European Union of a common immigration policy aimed at ensuring, inter alia, the prevention of illegal immigration and unauthorised residence – nor Regulation No 562/2006 rules out Member State powers in the field of combating illegal immigration and unauthorised residence, even if it is clear that Member States must adjust their laws in that field in order to ensure compliance with EU law (see, to that effect, judgment of 6 December 2011, Achughbabian, C‑329/11, EU:C:2011:807, paragraphs 30 and 33).
50


The provisions of Article 21(a) to (d) of Regulation No 562/2006 and the wording of Article 72 TFEU confirm that the abolition of internal border controls has not affected the responsibilities of the Member States with regard to the maintenance of law and order and the safeguarding of internal security (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 66).
52


In the third place, as regards the question of whether the exercise of control powers granted, in the present case, by point (3) of Paragraph 23(1) of the BPolG has an equivalent effect within the meaning of Article 21(a) of Regulation No 562/2006, it must be recalled that the fact that the territorial scope of those powers is limited to a border area does not suffice in itself to warrant the finding of such an effect. The first sentence of that provision refers expressly to the exercise of police powers by the competent authorities of the Member States under national law, also in border areas (see, by analogy, judgments of 22 June 2010, MelkiandAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 72, and of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 69).
53


However, the checks set out in point (3) of Paragraph 23(1) of the BPolG are subject, as far as their territorial scope is concerned, to specific rules, unlike the other provisions of Paragraph 23, a factor which might constitute evidence of the existence of such an equivalent effect (see, by analogy, judgment of 22 June 2010, MelkiandAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 72).
55


Therefore, it seems that those checks are authorised irrespective of the behaviour of the person checked and of circumstances giving rise to a risk of breach of public order.
57


In particular, point (3) of Paragraph 23(1) of the BPolG contains neither further details nor limitations on the power thus conferred — in particular in relation to the intensity and frequency of the checks which may be carried out on that legal basis — for the purposes of preventing the practical application of that power by the competent authorities from leading to controls with an effect equivalent to border checks within the meaning of Article 21(a) of Regulation No 562/2006 (see, by analogy, judgment of 22 June 2010, MelkiandAbdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 73). Nevertheless, it is for the referring court, which alone has jurisdiction to decide on the facts, to verify whether that is, in practice, the case.
59


In those circumstances, it must be stated that the powers conferred by point (3) of Paragraph 23(1) of the BPolG must be subject to a regulatory framework meeting the requirements set out in paragraphs 38 to 41 of the present judgment. In the absence of such detailed rules or limitations, themselves sufficiently precise and detailed, in national legislation for the purposes of defining the intensity, frequency and selectivity of checks, it cannot be ruled out that the practical exercise of the police powers granted under German law results — contrary to Article 21(a) of Regulation No 562/2006 — in controls which have an effect equivalent to border checks.