Atiqullah Adil v Minister voor Immigratie, Integratie en Asiel.
Date: 2012-07-19
34. Justifying that request, the referring court stated that, having been stopped in the Netherlands, in the frontier area with Germany, Mr Adil was in custody and the answer to the questions referred was relevant for the purposes of ruling on his detention. It also stated that a number of cases concerning similar acts of detention are pending before various Netherlands courts.
35. The Second Chamber of the Court decided, on 11 June 2012, on the Judge-Rapporteur’s proposal and after hearing the Advocate General, to grant the referring court’s request that the reference for a preliminary ruling be dealt with under the urgent procedure.
The questions referred for a preliminary ruling
48. It should be recalled 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.
49. As is apparent from recital 1 in the preamble to 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.
50. That aspect of the absence of internal border controls was implemented by the European Union legislature by adopting, pursuant to Article 62 EC (now Article 77 TFEU), Regulation No 562/2006 which seeks, according to Recital 22 in its preamble, to build on the Schengen acquis . That regulation establishes, in Title III, a Community scheme on the crossing of internal borders.
51. Article 20 of Regulation No 562/2006 provides that internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out. According to Article 2(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.
52. 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.
53. In that regard, 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.
54. That provision of Regulation No 562/2006 makes clear that 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 ext ernal borders and are carried out on the basis of spot-checks.
56. It follows that, contrary to what is argued by the Czech Government, those checks are not border checks prohibited by Article 20 of Regulation No 562/2006 but checks within the territory of a Member State, covered by Article 21 of the regulation.
57. It must next be examined whether checks within the territory, devised and carried out like MTV checks, are in any event prohibited under Article 21(a) of Regulation No 562/2006. That would be the case if those checks proved, in fact, to have an equivalent effect to border checks ( Melki and Abdeli , paragraph 69).
61. According to Article 2(9) to (11) of Regulation No 562/2006, border checks serve, first, to ensure that persons may be authorised to enter the territory of the Member State or authorised to leave it and, second, to prevent persons from circumventing those checks (see Melki and Abdeli , paragraph 71). The checks concerned may be carried out systematically.
63. According to Article 21(c) of Regulation No 562/2006, the possibility for a Member State to provide in its national law for an obligation to hold or carry papers and documents is not affected by the abolition of border control at internal borders (see, to that effect, Melki and Abdeli, paragraph 71).
64. The fact that the identity checks based on Article 50(1) of the law on foreign nationals and carried out in accordance with Article 4.17a of the decree of 2000 aim mainly to combat illegal residence after crossing of the border and that Article 21(a) of Regulation No 562/2006 does not refer specifically to that objective, also does not mean that there is an objective of border control contrary to Article 21(a)(i).
65. First, as the Netherlands Government and the Commission inter alia pointed out, 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).
66. 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 adapt their laws in that field in order to comply with European Union law (see, to that effect, Case C-329/11 Achughbabian  [2011] ECR I-12695, paragraphs 30 and 33). 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.
68. Compliance with European Union 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, in the context of combating illegal residence and cross-border crime linked to illegal immigration, cannot have an effect equivalent to border checks ( Melki and Abdeli , paragraphs 73 and 74).
69. In the second place, the fact that the territorial scope of the powers to carry out checks under national law, such as the Netherlands legislation, is limited to a border area does not suffice, in itself, to warrant the conclusion that the exercise of those powers has an equivalent effect, within the meaning of Article 21(a) of Regulation No 562/2006, in view of the wording and objectives of Article 21(a) ( Melki and Abdeli , paragraph 72). 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.
70. It is true that, in relation to controls carried out on roads or waterways, the Court has held that the fact that the national provision at issue lays down specific rules regarding its territorial scope might be evidence of the existence of an equivalent effect, within the meaning of Article 21(a) of Regulation No 562/2006. However, given such evidence, compliance by those controls with that provision 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, to that effect, Melki and Abdeli , paragraph 72).
73. Furthermore, as can be seen from the observations of the German Government, the Commission’s proposal seeking to require the same detailed rules and objectives with regard to the checks carried out by Member States within their territory was not accepted by the European Union legislature. The absence in Article 21(a) of Regulation No 562/2006 of a requirement that police checks in a border area be the same as those carried out in the entirety of the national territory is also confirmed by the fact that, by contrast, there is an explicit requirement to have the same checks under Article 21(b), with regard to security checks carried out at ports and airports.
74. In addition, in paragraph 74 of Melki and Abdeli , the Court already acknowledged that national legislation could confer a specific power on police authorities to carry out identity checks limited to a border area without being in breach of Article 21(a) of Regulation No 562/2006, provided that certain detailed rules and limitations are laid down and complied with.
75. It must however be 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 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.
76. The framework required in that regard must be sufficiently clear and precise to enable the need for the checks and the checks actually authorised themselves to be checked.