CJEU C-444/17 says that Article 2(2)a of EU 2008/115/EC does not apply for such removal (CJEU also considers reintroduction of border controls on internal Schengen borders). Article 2 of EU 2008/115/EC:
Article 2 Scope
This Directive applies to third-country nationals staying illegally on the territory of a Member State.
Member States may decide not to apply this Directive to third-country nationals who:
(a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are appre- hended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;
(b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.
Meaning that Germany shall remove illegal staying third-country citizens at German/Austrian borders according to 2008/115/EC.
Yet, I have a proof from June 2019 that Germany removes illegal staying third-country citizens based on Article 13 of EU 2016/399 (refusal of entry which Germany in reality implements as deportation)
A family member of EU citizen identified itself at a border crossing point Kiefersfelden/BAB93 with a residence card according to Article 10 of EU 2004/38/EC issued by Austria (there is no doubt about EU 2004/38/EC as I am a citizen of Germany and Czech republic and I genuinly exercised my right of freedom of movement and residence in Austria) and with a residence card according to Article 20 of EU 2004/38/EC issued by Czech republic (The Czech republic does not distinguish between a migrating and non-migrating Czech citizens so there may be a doubt about EU 2004/38/EC)
The family member was issued a refusal of entry at border crossing point Kiefersfelden/BAB93 (legally such border crossing point does not exist) on a template from ANNEX 5 PART B of EU 2016/399, later executed as a deportation for irregular crossing of borders to Austria for not carrying a passport (does not posses a valid travel document). This was classified as a criminal offense based on Article 95 of AufentG. Despite the police promised that this will go to court it never arrived to court. Probably a state prosecutor did not give a blessing to it.
The family member was travelling to Austria (police wrote this to the protocol), therefore joining the EU citizen (austrian residence card proves an existence of EU citizen living in Austria). German police completely ignores Article 6(5)a of EU 2016/399 and Article 5(4) of EU 2004/38/EC and Article 26 of EU 2004/38/EC (Schengen area is supposed to be a common area of justice, security, immigration policy. Plus a principle of mutual recognition and proportionality).
Police ignored Article 6(5)a of EU 2016/399 (despite I stressed it out). Police rejected EU 2004/38/EC stating that it does not apply to German citizens in Germany. I may be a German and Czech citizen, but I never lived in Germany and I already exercised my right freedom of movement and residence in Austria. CJEU in C-202/13 clearly supports a wider interpretation of beneficiaries of EU 2004/38/EC.
Based on Recital 8 of EU 2004/38/EC I also claim that family members of EU citizens have an autonomous right of freedom of movement (not residence). CJEU in its judgements limits and autonomous right of residence but I never saw a right of freedom of movement (this is actually supported in C-754/18). Also consider that Schengen area is a common area of security, justice, immigration policy. Therefore, a border was never crossed here. Plus principle of mutual recognition and proportionality.
Based on Recital 21 of EU 2016/399 I disagree with German police that they are imposing formalities like at external Schengen borders.
I also disagree with German police regarding refusal of entry vs. deportation vs. regular crossing via border crossing point vs. irregular border crossing. Refusal of entry is not a criminal offense at external Schengen borders. Deportation may be carried out only based on EU 2008/115/EC (consider here C-444/17)
Btw. consider that my conversation with German police started that they told me "I don't really know EU law". So don't assume that german police know what they are doing.
- On a proper construction of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.
Based on which law Germany shall remove illegal third-county citizens on German/Austrian borders?
Note: Unfortunately, I got carried away, and this question ended up to be about my one particular case. That was not intended. The intention was since the beginning to prove that Germany systematicaly violates EU law on "so-called border controls" on German/Austrian borders.