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Let's start with a definition of "border controls" according to Article 2 of EU Regulation 2016/399:

‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance;

Continue with "border checks", "border surveillance" and "border crossing point"

‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it;

‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks;

‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders;

I have a "refusal of entry" from German police according ANNEX V, PART B of EU Regulation 2016/399 at "border crossing point" "Kiefersfelden / BAB93". This refusal of entry is issued only at external Schengen border. Therefore, German police claims they are doing border controls equivalent to external Schengen border.

This "refusal of entry" at "border crossing point" clearly indicates that we are talking about "border checks" within the definition in Article 2 of EU Regulation 2016/399.

Moreover, this person was accused of a criminal offense of illegal border crossing according to Article 95 of AufenthG and was deported to Austria (all, including the refusal of entry, is clearly stated in documents I posses. It is really just one event, not 2 independent events.)

This would indicate that we talk about "border surveillance" within the definition in Article 2 of EU Regulation 2016/399. The person was travelling on a regular bus lane from Switzerland to Austria. Therefore, it is clear that the bus driver was not trying to avoid "border crossing point". Therefore, "border surveillance" does not make any sense here.

To complicate things, both "border checks" and "border surveillance" within the definition of Article 2 of EU Regulation 2016/399 are not possible and therefore illegal without "border crossing points".

Germany never provided "border crossing points" when reintroducing border controls according to Article 25 of EU Regulation 2016/399, violating the procedure in Article 27(1)c of EU Regulation 2016/399. This could be verified here:

https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en

and

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/schengen/docs/lists_of_ms_notifactions_article_39.pdf

Despite all this, German police pretends they are conducting border controls equivalent to external Schengen border (the refusal of entry according to ANNEX V, PART B of EU Regulation 2016/399 is a sufficient proof). Moreover, they lie to the "refusal of entry" that it happened at "border crossing point" "Kiefersfelden / BAB93" despite such "border crossing point" legally does not exist.

Finally, does German police conduct "border checks" or "border surveillance" within the meaning of Article 2 of EU Regulation 2016/399? Or something else?

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  • That's political.
    – Trish
    Sep 4 '20 at 14:51
  • @Trish not necessarily. If the terms "border checks" and "border surveillance" may be held to comprise certain acts or behavior or what have you, then the activities on the border may be evaluated with respect to those definitions, either on the basis of the mandate officially given to those forces or on the basis of their actual behavior.
    – phoog
    Sep 4 '20 at 16:03
  • user108860: I never get very far into your long questions before I come up against the fact that internal border controls are supposed to be in place for a maximum of two years, yet they have been in place for much longer, and the Schengen Borders Code was amended to address this, and I don't have time lately to study it in detail. But obviously the fact that aspects of these controls do not comply with the EU regulations is widely recognized and tolerated. Is it for some reason important to identify specific aspects of the noncompliance?
    – phoog
    Sep 4 '20 at 16:09
  • It seems that a central issue is the lack of designation of crossing points on the internal border. I'm not sure it's worth going beyond that before examining the issue in full: was there in fact no such notification? Does that make the controls illegal, or is there some legal basis for tolerating the lack of notification?
    – phoog
    Sep 4 '20 at 17:21
  • @phoog, thank you for your interest into this topic. "Schengen Borders Code was amended to address this" I am aware that the time of border controls already exceed the limit but not that it is legal Schengen Borders Code. "is widely recognized and tolerated" this sounds awful but I know there is some truth in it. Nevertheless, Court of Justice of EU has never said something like this as nobody asked so far. "Is it for some reason important to" I am not sure yet. Anyway, even for educational purpose the whole topic is interesting for me. I have already learned so much - it is exciting...
    – user108860
    Sep 4 '20 at 19:39
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This is a partial answer addressing one paragraph of the question:

I have a "refusal of entry" from German police according ANNEX V, PART B of EU Regulation 2016/399 at "border crossing point" "Kiefersfelden / BAB93". This refusal of entry is issued only at external Schengen border. Therefore, German police claims they are doing border controls equivalent to external Schengen border.

For internal border controls, any provision pertaining to external border controls may be adopted under Article 32:

Article 32

Provisions to be applied where border control is reintroduced at internal borders

Where border control at internal borders is reintroduced, the relevant provisions of Title II shall apply mutatis mutandis.

Title II comprises articles 5 through 21, and the article specifying the refusal of entry form is article 14, So whether it is appropriate for a police officer to issue the form depends only on whether the form is (mutatis mutandis) "relevant." It seems likely that any judge would find that it is.

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  • Of course this question is not about some paper used. I know Article 32 and "mutatis mutandis" This still does not give you a "full-flexibility". Article 25 says "temporary reintroduction of border control at internal borders shall not exceed what is strictly necessary to respond to the serious threat." Moreover, I want to point out that for German police is a "refusal of entry" automatically a criminal offense(!) This is more strict than a border control at external Schengen border(!) I consider such German actions as completely illegal and crazy. There is no rule of law at internal borders.
    – user108860
    Sep 4 '20 at 16:53
  • @user108860 yet it seems that there has been no prosecution of this purported criminal offense, so it seems that the German authorities, out at least the prosecutor, agrees with you. Have you tried taking it up with SOLVIT? Another thing that you might consider is to focus your questions more closely. If you're not asking "about some paper used" then why are you bringing up the form? The question asserts that its use shows that the German police are treating the border as external, but in light of Art. 32 that conclusion doesn't follow.
    – phoog
    Sep 4 '20 at 17:12
  • @user108860 the shorter each question is, the more likely it is to receive a response, and the more likely the response is to address the issue that you are asking about. Whether these controls comply with EU law is an interesting question that is surely on topic here. The consequence of noncompliance is as well. The law governing the travel of the person turned back at the border is another interesting question, along with the remedies that might be available in the face of continued refusals. But, as it is, these issues get mixed up in each question, making the questions confusing.
    – phoog
    Sep 4 '20 at 17:14
  • "there has been no prosecution" most likely. The police talked to my wife very confident that she will be not punished much. If I would not literally shout at them maybe the case would end up at court. What I never mentioned is that I appealed against the refusal of entry and the arguments what I received from "federal police headquarters" were so so weak and wrong. At the end they just reject it and told me to take the Federal Republic of Germany to civil court. Which is more than I can handle. Nevertheless, I posses proofs against the police in my pocket - I just don't know how to use them.
    – user108860
    Sep 4 '20 at 20:02
  • SOLVIT is useless. I reported the incident to European Commission and I got multiple letters from "Migration and Home Affairs" and "Justice and Consumers". They both claimed that everything is according to the law but their arguments were very weak and arguments from these two departments even often contradicted each other. Obviously, there was no will from their side. And SOLVIT is really useless. I complained that Article 10 of EU 2004/38/EC residence card is more expensive than Austrian ID because of a hidden fee which does not apply for Austrian ID. They never solved anything.
    – user108860
    Sep 4 '20 at 20:10

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