Based on which law Germany shall remove illegal third-county citizens on German/Austrian borders?

Question

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

1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.

2. 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)

The situation:

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.

CJEU C-459/99:

1. 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.

Question:

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.

Answer 1

Based on which law Germany shall remove illegal third-county citizens on German/Austrian borders?

For (non-German) EU Citizens and their Family Dependents who are not EU citizens:

• for visits up to 3 months
  • § 2(5) Freedom of Movement Act/EU
    • which implements Article 5 (1) DIRECTIVE 2004/38/EC (Freedom of Movement)

For non-EU Citizens:

• for visits up to 3 months
  • § 15 (2)(3) AufenthG
    • which implements Article 14 of the Schengen Borders Code

German law is irrelevant. If German law is not properly aligned to EU law then EU law takes precedence.

This is not correct. EU directives/regulations (not laws) must correctly implemented into national laws.

The Austrian border guards will then enforce:

• Fremdenpolizeigesetz 2005 - Bundesrecht konsolidiert

The Czech border guards will then enforce:

• Act on the Residence of Foreigners in the Czech Republic and on the Amendment of Certain Acts

and the German border guards will enforce:

• Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory - Residence Act (AufenthG)
• Act on the General Freedom of Movement for EU Citizens (Freedom of Movement Act/EU)

all of which implements the shared competence regulation / directive:

• Schengen Borders Code
• DIRECTIVE 2004/38/EC (Freedom of Movement)

but also themes that are outside the competence of the EU.

All 3 countries require a valid travel document (passport or id) and, when a non-EU citizen requires a visa, an EU-residence card/title.

Also consider that Schengen area is a common area of security, justice, immigration policy. Therefore, a border was never crossed here.

This is, also, not correct. An internal border was crossed. Article 3 of the Schengen Borders Code defines the scope of the regulation applying

to any person crossing the internal or external borders of Member States

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Summery of corresponding regulations, directives and national laws:

Monitoring implementation of EU directives

The Commission verifies that EU countries communicate all national implementing measures and that they fully and correctly incorporate the provisions of a directive into national law. This needs to be done by the deadline set in the directive.

DIRECTIVE 2004/38/EC (Freedom of Movement)

• Germany: Act on the General Freedom of Movement for EU Citizens (Freedom of Movement Act/EU)

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Division of competences within the European Union

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SUMMARY

The EU has only the competences conferred on it by the Treaties (principle of conferral). Under this principle, the EU may only act within the limits of the competences conferred upon it by the EU countries in the Treaties to attain the objectives provided therein. Competences not conferred upon the EU in the Treaties remain with the EU countries. The Treaty of Lisbon clarifies the division of competences between the EU and EU countries. These competences are divided into 3 main categories:

• exclusive competences;
• shared competences ; and
• supporting competences.

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exclusive competences

(Article 3 of the Treaty on the Functioning of the European Union — TFEU)
areas in which the EU alone is able to legislate and adopt binding acts. EU countries are able to do so themselves only if empowered by the EU to implement these acts. The EU have exclusive competence in the following areas:

...

...

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shared competences

(Article 4 of the TFEU ):
the EU and EU countries are able to legislate and adopt legally binding acts. EU countries exercise their own competence where the EU does not exercise, or has decided not to exercise, its own competence. Shared competence between the EU and EU countries applies in the following areas:

...

• area of freedom, security and justice
  • Justice and Fundamental rights
  • Schengen borderless travel area
    • Documents you need for travel in Europe
      • Travel documents for EU nationals
      • Travel documents for non-EU family members
      • Travel documents for non-EU nationals
      • Expired or lost passports
      • Travel documents for minors
  • Data Protection - Factsheets

...

Travel documents for EU nationals

If you are an EU national, you do not need to show your national ID card or passport when you are travelling from one border-free Schengen EU country to another.

Even if you don't need a passport for border checks within the Schengen area , it is still always highly recommended to take a passport or ID card with you, so you can prove your identity if needed (if stopped by police, boarding a plane, etc.). Schengen EU countries have the possibility of adopting national rules obliging you to hold or carry papers and documents when you are present on their territory.

Driving licences, post, bank or tax cards are not accepted as valid travel documents or proof of identity.

Travel documents for non-EU family members

Your non-EU family members must carry a valid passport at all times and, depending on the country they are from, they may also have to show an entry visa at the border.

For EU Citizens and their family members, this is defined in:

Article 5, DIRECTIVE 2004/38/EC (Freedom of Movement)

1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.
   No entry visa or equivalent formality may be imposed on Union citizens.
2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

and implemented into German law with:

Act on the General Freedom of Movement for EU Citizens (Freedom of Movement Act/EU)
...
§2 Right of entry and residence
...
(5) The possession of a valid identity card or passport shall be sufficient for a stay by EU citizens of up to three months. Dependants who are not EU citizens shall have the same right if they are in possession of a recognized or otherwise approved passport or passport substitute and if they accompany the EU citizen or subsequently immigrate to join the EU citizen in the federal territory.
...
§8 Obligation to carry identification papers
(1) EU citizens and their dependants shall be obliged,

1. to carry a passport or a recognized passport substitute on their person when entering or leaving the federal territory and,

a) to carry a passport or a recognized passport substitute on their person and,

b) on request, to present such identification papers to a competent official for inspection,

2. to possess the necessary passport or passport substitute for the duration of their stay in the federal territory,

3. to present, upon request, the passport or passport substitute and the residence card, the certificate confirming the right of permanent residence and the permanent residence card to the authorities charged with implementing this Act and to hand over the aforesaid papers and leave them with the said authorities temporarily, should this be necessary in order to enforce or safeguard measures under this Act.

§10 - Provisions on fines

• (1) Anyone who fails to submit a document referred to in Section 8 (1) no. 1 letter b or in violation of Section 8 (1) no. 3, or fails to do so in good time, shall be deemed to have committed an administrative offence.
• (2) Anyone who, with intent or through negligence, is not in possession of a passport or passport substitute in violation of Section 8 (1) no. 2 shall be deemed to have committed an administrative offence.
• (3) Anyone who, with intent or through negligence, does not carry a passport or passport substitute on their person in violation of Section 8 (1) no. 1, letter a, shall be deemed to have committed an administrative offence.
• (4) The administrative offence shall be punishable with a fine of up to two thousand five hundred euros in the cases covered by subsections 1 and 3, and with a fine of up to one thousand euros in the other cases.
• (5) In the cases covered by subsections 1 and 3, the administrative authorities within the meaning of Section 36 (1), no. 1 of the Administrative Offences Act shall be the Federal Police regional offices determined by the statutory instrument pursuant to Section 58 (1) of the Act on the Federal Police.

§11 Application of the Residence Act

• Note: §95(1) AufenthG is not included in this list
  • administrative offences are covered in § 10

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Travel documents for non-EU nationals

If you are a non-EU national wishing to visit or travel within the EU, you will need a passport:

• valid for at least 3 months after the date you intend to leave the EU country you are visiting,
• which was issued within the previous 10 years,

...
If you have a valid residence permit from one of those Schengen countries, it is equivalent to a visa. You may need a national visa to visit non-Schengen countries.

This is defined in:

Schengen Borders Code
Article 3 - Scope
This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the right of free movement under Union law;
(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.
...
Article 6 - Entry conditions for third-country nationals
(1) For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:
(a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria:

(i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived;
(ii) it shall have been issued within the previous 10 years;

(b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 (25), except where they hold a valid residence permit or a valid long-stay visa;
...
Article 14 Refusal of entry
(1) A third-country national who does not fulfil all the entry conditions laid down in Article 6(1) and does not belong to the categories of persons referred to in Article 6(5) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.

and implemented into German law with:

§ 3 Passport requirement
(1) Foreigners may enter or stay in the federal territory only if they possess a recognised and valid passport or passport substitute, unless they are exempt from the passport requirement by virtue of a statutory instrument. For the purpose of residence in the federal territory, possession of a substitute identity document also suffices in order to meet the passport requirement (section 48 (2)).
...
§15 - Refusal of entry
...
(2) A foreigner may be refused entry at the border if

1. there is a public interest in expelling the foreigner,
2. there is a well-founded suspicion that the foreigner does not intend to stay in the federal territory for the stated purpose,
   2a. the foreigner only possesses a Schengen visa or is exempted from the visa requirement for a short-term stay and intends to pursue an economic activity in breach of section 4a (1), sentence 2, or
3. the foreigner does not fulfil the conditions for entry into the territory of the parties signatory in accordance with Article 5[6] of the Schengen Borders Code.

...
§48 Obligations related to identification papers
...
(2) To meet the obligation to have and present identification papers, it is sufficient for a foreigner who neither possesses a passport or passport substitute nor can reasonably be expected to obtain one to carry the certificate confirming a residence title or the suspension of deportation, if this document contains the foreigner’s personal details and a photograph and is marked to indicate that it is a substitute identity document.
...
§95 - Penal provisions
(1) The following persons are punishable with up to one year’s imprisonment or a fine: anyone who

1. resides in the federal territory in contravention of section 3 (1) in conjunction with section 48 (2),

...

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supporting competences

(Article 6 of the TFEU ):
the EU can only intervene to support, coordinate or complement the action of EU countries. Legally binding EU acts must not require the harmonisation of EU countries’ laws or regulations. Supporting competences relate to the following policy areas:

...

...

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Sources:

• Monitoring implementation of EU directives
• Division of competences within the European Union (EUR-Lex - ai0020 - EN - EUR-Lex)
  • exclusive competences
  • shared competences
    • Justice and Fundamental Rights
      • Schengen borderless travel area
        • Documents you need for travel in Europe
          • Travel documents for EU nationals
          • Travel documents for non-EU family members
          • Travel documents for non-EU nationals
          • Expired or lost passports
          • Travel documents for minors
  • supporting competences
• Schengen Borders Code
• Article 5, DIRECTIVE 2004/38/EC (Freedom of Movement)
  • Act on the General Freedom of Movement for EU Citizens (Freedom of Movement Act/EU)
    • Allgemeine Verwaltungsvorschrift zum Freizügigkeitsgesetz/EU (AVV zum FreizügG/EU) (German only)
• Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory - Residence Act (AufenthG)
  • Aufenthaltsverordnung (AufenthV) (German only)
• Passport Act (PassG)
• CJEU C-459/99, Judgment of the Court of 25 July 2002
• Fremdenpolizeigesetz 2005 - Bundesrecht konsolidiert, Fassung vom 06.08.2015
• Entering the Czech Republic, duties, length of stay - Ministry of the interior of the Czech Republic
• Act on the Residence of Foreigners in the Czech Republic and on the Amendment of Certain Acts (Czech only)

Answer 2

If a third-country citizen is found within the territory staying illegally then this citizen shall be removed based on EU Directive 2008/115/EC.

Judgement from CJEU C-444/17:

Article 2(2)(a) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 32 of Regulation (EU) 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), must be interpreted as not applying to the situation of an illegally staying third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, even where that Member State has reintroduced border control at that border, pursuant to Article 25 of the regulation, on account of a serious threat to public policy or internal security in that Member State.

Article 2 of EU 2008/115/EC Scope:

1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.
2. 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 appre­hended 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.

Therefore other (simplified, not based on EU 2008/115/EC) removal procedure of a third-country citizens is not possible.