Bundesrepublik Deutschland v Touring Tours und Travel GmbH and Sociedad de Transportes SA.
Date: 2018-12-13
39


In that regard, it should be recalled that it is for the referring court alone to determine and formulate the questions to be referred for a preliminary ruling concerning the interpretation of EU law which are necessary in order to resolve the dispute in the main proceedings (judgment of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 31).
40


Thus, although the referring court is at liberty to request the parties to the dispute before it to suggest wording suitable for the question to be referred, the fact remains that it is for that court alone ultimately to decide both its form and content (judgment of 21 July 2011, Kelly, C‑104/10, EU:C:2011:506, paragraph 65).
41


It is also clear from the case-law of the Court of Justice that, if the referring court expressly stated in its order for reference that it did not consider it necessary to ask a question or if it implicitly refused to submit to the Court of Justice a question raised by one of the parties, the Court of Justice may not answer that question or take it into account in the reference for a preliminary ruling (see, to that effect, judgments of 5 October 1988, Alsatel, 247/86, EU:C:1988:469, paragraph 8; of 2 June 1994, AC-ATEL Electronics Vertriebs, C‑30/93, EU:C:1994:224, paragraph 19; and of 26 September 2000, Engelbrecht, C‑262/97, EU:C:2000:492, paragraphs 21 and 22).
45


It is clear from the case-law of the Court of Justice that, where the checks at issue in the main proceedings are carried out, not ‘at borders’ or ‘when the border is crossed’, but, in principle, inside the territory of a Member State, in the present case the one in which the travellers board the coach at the start of the cross-border journey, those checks do not amount to border checks prohibited by Article 20 of Regulation No 562/2006, but checks within the territory of a Member State, referred to in Article 21 of that regulation (see, by analogy, judgments of 22 June 2010, Melki and Abdeli, 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).
46


Therefore, it is necessary to examine whether checks within the territory of a Member State, such as those devised and carried out under Paragraph 63 of the AufenthG, are prohibited under Article 21(a) of Regulation No 562/2006. That would be the case if those checks, in fact, had an effect equivalent to border checks, within the meaning of that provision (see, by analogy, judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 57).
51


With regard to Article 21(a), it should be recalled, in the first place, that the Court has already held that that provision cannot be interpreted to the effect that it includes a condition requiring that police checks in a border area be identical, in terms of their methods and purposes, to those carried out throughout the national territory. That interpretation is supported by the fact, on the one hand, that the European Commission’s proposal to introduce such a condition was not adopted by the EU legislature and, on the other, that it is expressly provided for in Article 21(b) of that regulation in relation to security checks carried out in ports and airports which are authorised only if they are also carried out on persons travelling within a Member State (see, to that effect, judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 73).
54


In the second place, it is apparent from the case-law of the Court that the indicia listed in the second sentence of Article 21(a) of Regulation No 562/2006 are indicators of the existence of an effect equivalent to border checks. If some of those indicators are present, the checks in question will be authorised only if they are carried out within a framework, in national legislation identifying those checks, which is governed by detailed rules and limitations, which are themselves sufficiently precise and detailed with regard to the intensity, frequency and selectivity of those checks. Thus, the more extensive the indicia reflected in that national legislation, in relation to the objective pursued by the checks carried out in a border area, the territorial scope of those checks and the existence of a distinction between the basis of those checks and that of the checks carried out in the remainder of the territory of the Member State concerned, the greater the need for those detailed rules and limitations to be strict and strictly observed (judgment of 21 June 2017, A, C‑9/16, EU:C:2017:483, paragraphs 38 to 41).
55


In the present case, with regard to the examination of Paragraph 63(2) of the AufenthG against, in the first place, the indicator in the second sentence of Article 21(a), item (i), of Regulation No 562/2006, according to which the exercise of police powers cannot be regarded as ‘equivalent to the exercise of border checks’, in particular where the checks provided for in that national legislation ‘do not have border control as an objective’, the Court has already held that it is clear from Article 2(9) to (11) of that regulation that that objective aims, first, to ensure that persons may be authorised to enter the territory of the Member State or to leave it and, secondly, to prevent persons from circumventing border checks. The checks concerned may be carried out systematically (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 61).
61


On the other hand, that would not be the case for checks imposed on the basis of the obligation under Paragraph 63(1) of the AufenthG, since that obligation is of a general character, covering all cross-border services, irrespective of the conduct of the persons concerned or of circumstances giving rise to a risk to public order (see, by analogy, judgment of 21 June 2017, A, C‑9/16, EU:C:2017:483, paragraph 55).
64


Paragraph 63(1) of the AufenthG contains neither detailed rules nor limitations in relation to the intensity, frequency and selectivity of the checks which have to be carried out on that legal basis (see, by analogy, judgment of 21 June 2017, A, C‑9/16, EU:C:2017:483, paragraphs 57 and 59).