Controls at the Czech-German Border

Subject: Controls at the Czech-German Border

Article 25 of the Schengen Borders Code allows the reintroduction of internal border controls in the event of a serious threat to public policy or internal security, in particular following terrorist incidents, threats or organised crime. At the same time, Recital 26 states that migration by a large number of third-country nationals should not, per se, be considered to be a threat to public policy or internal security.

Since the migration crisis in 2015, the Czech Republic has stepped up national controls on migrants in transit. The number of detentions, meanwhile, has been very low for a long time, and since the beginning of 2018 only around 130 foreigners have been detained. This trend is not increasing. The vast majority of people coming to Germany are not persons transiting through Czech territory, but persons legally resident in the Czech Republic or in Germany.

Is the Commission closely monitoring these controls, and is it aware of very thorough and lengthy controls of citizens coming from the Czech Republic to Germany by the German police, particularly in Bavaria?

Does the Commission consider these controls as appropriate, proportionate and in line with Article 25 and Recital 26 of the Schengen Borders Code?

Answer given by Mr Avramopoulos on behalf of the European Commission (18 October 2018)

Germany has temporarily reintroduced border controls only at its internal border with Austria. Hence, checks to which the Honourable Member is referring to do not fall under the remit of Article 25 and Recital 26 of the Schengen Borders Code and therefore there is no need to assess the compliance of these checks with those provisions.

As concerns police checks on persons travelling from the Czech Republic to Germany, according to Article 23 of the Schengen Borders Code the absence of border control at internal borders remains without prejudice to ‘the exercise of police powers [...], insofar as the exercise of those powers does not have an effect equivalent to border checks’ (1).

The judgment of the Court of Justice of the European Union (CJEU) in the so-called Melki (2) case clarifies that such checks are not per se prohibited but must be subject to some limitations laid down in national law. In 2016, German authorities issued an Advisory Decree addressed to the Federal Police putting limits to the discretionary powers of the police to carry out such checks, which in the opinion of the Commission meet the criteria set out by the CJEU.

The Commission has, in its Recommendation of 12 May 2017 addressed to the Member States ‘on proportionate police checks and police cooperation in the Schengen area’ (C(2017) 3349), encouraged Member States to use the existing police powers under national law in an efficient way and to give precedence to police checks in case of serious threats to internal security or public policy instead of resorting to the temporary reintroduction of border controls at the internal borders.

⋅1∙ Article 23 of Regulation 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), OJ L77/1, 23.3.2016.

⋅2∙ C-188/10.