EMN Ad-Hoc Query on Intra-Schengen border monitoring and border control Requested by Dylano de Wilde on 4th June 2018 Border Responses from Austria, Belgium, Croatia, Cyprus, Czech Republic, Estonia, Finland, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Poland, Slovak Republic, Slovenia, Sweden, United Kingdom, Norway (20 in total) Disclaimer: The following responses have been provided primarily for the purpose of information exchange among EMN NCPs in the framework of the EMN. The contributing EMN NCPs have provided, to the best of their knowledge, information that is up-to-date, objective and reliable. Note, however, that the information provided does not necessarily represent the official policy of an EMN NCPs' Member State. Background information: Over the past couple of years, the Schengen area has come to face several challenges. In particular in response to a range of terrorist attacks as well as the so-called European refugee “crisis”. Member states have used a variety of measures to enhance the monitoring of cross border mobility. These measures are not exclusively taken at the external border of the European Union, but also increasingly at the physical borders between two Schengen States. By, for instance, temporarily reintroducing border checks under Article 29 of the Schengen Border Code (SBC) or by using the possibility to carry out police or immigration checks in a region around the physical border under Article 23 SBC. In the light of one of the core principles of the European Union and the Schengen Agreement, the principle of free movement, the temporary introduction of border checks under article 29 SBC is to be seen as a last resort that can only be justified by exceptional circumstances. While acknowledging the urge felt by Member States to nevertheless better monitor cross-border mobility, in May 2017 the European Commission issued a recommendation for the Member States to more effectively use the possibilities offered by article 23 SBC. Yet, whereas Member States have to inform the European Commission when temporarily reinstating border checks under article 29 SBC, the use of article 23 SBC is not registered anywhere. As a result, a comprehensible EU wide overview of what actors are involved in the monitoring of intra-Schengen cross-border mobility is lacking, as is an overview of the different measures that are taken by the Member States. The limited CJEU case law on Article 23 SBC shows that the implementation or, perhaps better said, the translation of the article into actual national and/or local policing practices is something that deserves to be monitored as Article 23 SBC provides countries, and thus also those who are in charge of exercising the checks, with quite some discretionary space on the specifics. This could result in big differences between the ways in which Member States control and monitor intra-Schengen cross- border mobility. By means of these 5 questions, we aim to come to a first overview. Questions 1. What actor(s)/institution(s) is/are involved in the monitoring and control of intra-Schengen cross-border mobility in your country? Please also specify how the actor(s)/institution(s) is/are involved, so in other words, what is their role. Multiple answers are possible. - (National) police - Immigratin Authorities - Army - Border Control Agency - Other, please specify 2. What measures are in place to monitor intra-Schengen cross border mobility in your country? Please specify your answer. - Physical barriers (e.g. fences, road blocks, barbed wire, etc) - Border checks at the border - Police checks in the border region - Immigration checks in the border region - Others, please specify 3. What is the aim of the measures identified under 2? 4. Could you please indicate and specify under what legal mandate – criminal law, administrative law, other –the responsible agencies mentioned under question 1 perform their police and/or immigration checks. 5. Are there landmark cases (administrative/criminal/constitutional) in your country? Yes/no, if yes, could you list the cases? *** A landmark case is an important case in (further) defining or refining the interpretation of laws. In the context of this question, a landmark case would be a case that discusses, in the light of article 23 of the Schengen Border Code, what national authorities can and cannot do in terms of crime control and/ or migration control in intra-Schengen border areas. 6. Have cases mentioned under 5 influenced or changed national policies or practices? Yes/no, if yes, could you include an explanationhow these landmark cases influenced national policies or practices? Responses Wider Country Response Dissemination Austria Yes 1. The provincial police directorates, respectively the public security bodies (police) subordinated to it, are the competent bodies for surveillance of the (internal Schengen) borders (Art. 8 para. 1, Art. 9 para. 1 Border Control Act) in Austria. The authorities/public security bodies are responsible to carry out border controls. Equipment for recording audio and video material may be used (Art. 12 Border Control Act). The public security bodies are for checking reasons inter alia empowered to establish identities of persons concerned, to seize travel documents (owing to circumstances) or to refuse border crossing and impede it (Art. 12a Border Control Act, Art. 41 Alien Police Act 2005). The Austrian armed Forces are primarily used to monitor the “green border” within the framework of the assistance deployment decided by the Federal Government. --- Source: Ministry of the Interior 2. Physical barriers like fences and border management infrastructure (containers and tents for facilitating border control) can partially be found at Austria’s borders. Besides controls at point of entries (Art. 11 Border Control Act), the public security bodies are authorised to impede entry and onward travel of aliens (rejection at the border) in the border control zone. This applies for example in cases of illegal entry or if there is a prohibition of entry and/or stay and no visa has been issued for re-entry or in cases where no re-entry authorisation has been issued (Art. 41 Alien Police Act 2005). The border control zone comprises an inland area in the range of 10km around the point of entry (Art. 7 para. 1 Border Control Act). Besides border crossing controls (primarily visual checks at point of entries of the categories 1 and 2) so-called compensatory measures (Ausgleichsmaßnamen/AGM) are in place in all of the Federal Territory on grounds of European Commission recommendations from May 2017. --- Source: Ministry of the Interior 3. Due to existing grave deficits in the protection of the external border and uncontrolled, illegal secondary migration a serious risk to the public safety and security persists. The installed measures therefore target, in light of a possible renewed increase of migration movements, the prevention of illegal migration for migration and security policy reasons – this in tangible case and as a pre-emptive measure. Reducing border controls in the current situation would send wrong signals to illegal migrants and organisations active in the field of human trafficking. --- Source: Ministry of the Interior 4. The public bodies mentioned under point 1 use their competencies on grounds of relevant provisions in administrative law (especially: Aliens Police Act 2005 and Border Control Act). These competencies are also based on pertinent European Union legal provisions like for instance the Schengen Border Codex. --- Source: Ministry of the Interior 5. The internal border controls at the border to Slovenia have been assessed as legally faultless by the provincial administrative court of Styria. --- Source: Ministry of the Interior 6. No. --- Source: Ministry of the Interior Belgium Yes 1. In Belgium, it is the police and the Immigration authorities (Immigration Office) who are involved in the monitoring and control of intra-Schengen cross border mobility. 2. The federal police and the local police carry out monitoring activities in the border region within the framework of the fight against illegal and transit migration. Joint actions are held over the entire territory of Belgium, this in cooperation with all involved actors such as the federal police (railway police, maritime police, aviation police, federal judicial police), local police zones, the immigration office, guardianship service, etc. 3. The actions are aimed at keeping the phenomenon of illegal and transit migration manageable and controllable. The actions are also aimed at tracing human smugglers and traffickers and foreign nationals who pose a threat to public security, for example in the context of terrorism or other criminal acts. These people are apprehended and detained for the purpose of removal. 4. The Organic Law on Police Functions (5 August 1992) and the Belgian Immigration Act (15 December 1980). 5. No, but the Belgian Federal police and the Immigration Office take into account relevant case law of the Court of Justice such as the Judgement Melki and Abdeli (C-188/10 and C-89/10) and the Judgement Adil (C-278/12) for what concerns conditions and criteria for border controls and identity checks carried out by border police services. 6. See reply to question 5 Croatia Yes 1. 1. Croatia is still not a part of Schengen area. Supervision of passengers, vehicles, and things in the cross-border traffic is under the competence of the Border Police of the Ministry of the Interior, while the customs are responsible for the goods traffic at the external borders. 2. 2. Given that the Republic of Croatia does not apply a fully Schengen acquis, supervision is primarily carried out by border police at border crossings. Apart from the surveillance at border crossings, surveillance is carried out at approach routes along the border through compensatory measures while the surveillance is conducted by the police officers responsible for managing illegal migration. 3. 3. The aim is to prevent illegal crossings at the state border either through the so called ''green'' or ''blue'' border surveillance or by avoiding border controls over border crossings and controlling the legality of stay in the territory.