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Non-Schengen (or non-Danish law?) compliant border control at Padborg, 16th January 2013, 0651

Screen Shot 2013-01-16 at 14.42.28Back in spring 2011, when Denmark still had a centre right government supported in parliament by the populist Dansk Folkeparti, the country drew sharp criticism from the European Commission with a plan to reintroduce border controls. The centre right lost the election later in 2011, and the borders plan did not see the light of day.

But that does not mean that checks that are illegal under Schengen do not occur. I was first checked at Padborg on 12th September 2012, and blogged about it. In light of that experience I was better informed when checked on the FR-IT border, transcribed the conversation with the border guard, and made an official complaint to the European Commission about the check (Commission response here). The essence of the Commission reply was that the check was not a border check, but an identity check, and that this was permissible under French law.

So then, to today’s case.

I was in the same night train as in the 12th September case, arriving from Germany at Padborg on Danish territory. Two policemen came through the train, asking for passports from all passengers in the train. Despite it being before 7am, and after a bad night of sleep, I tried to be as coherent as possible when asking the policeman a few questions. Unlike 12th September, this time I had a Danish Sundhedskort.

This is the transcript of the conversation, all conducted originally in English:

Policeman: Hello. Passport.
Jon: Excuse me, we are in Schengen, are we not?
P: Yes
J: Why is there a border control?
P: So it is
J: I’ll give you my Sundhedskort then. That’s the obligation when I am in Denmark. I can show you that and not a passport, can’t I?
P: What? Don’t you have your passport?
J: I have my passport with me, of course. But this is Schengen. So you are not allowed to do a border control.
P: You are very clever. Can I see your passport please?
J: What is your right to demand to see my passport? We are in Schengen.
P: Because it’s a control.
J: What is your right to control me?
[pause]
J: Would you like an official complaint made to the European Commission?
P: Yeah, you can do that.
J: You need to justify what the control is under Article 21 of the Schengen Borders Code.
P: We are making control about drugs and weapons and I need to see your ID.
J: At least you’re more clever than the French with that answer. Well done.
P: But why are you so…
J: Because Schengen means you are not supposed to control on the border!
P: Not regularly, but some control there is always. I don’t understand you. Everything is OK for you. Why are you so…
J: Because we are supposed to live in a border free Europe. We are not supposed to be controlled at the border.

By this time I handed over my passport, he checked the other passengers, and off he went. He paid no attention whatsoever to any of the bags anyone in the compartment had – including 3 huge suitcases there. Aside from the legal points discussed below, one thing is notable – there was genuine surprise in the officer’s voice that I would insist on this – his words “Everything is OK for you”. No it’s not, and I do not trust your intentions, officer, and there is no reason for you to assume that I do.

Anyway, where does all this leave us, legally?

There are two aspects to this. European law first, then Danish law below.

Is this, as defined by the Schengen Borders Code (Art 21, full text here), a border control? Here the answer is murky, because the behaviour of the officer and his words did not match. He stated the reason was for drugs and weapons control, and stated that the controls is not done ‘regularly’ – his words. I have crossed the border at Padborg and not been checked, so he might be right on that point.

But however two aspects of the policeman’s behaviour – only demanding passports and paying not attention to luggage, and also that the control took place in a stationary train at the border station – would seem that these checks did “have border control as an objective” (Art 21 (a) (i)). So once more I will test this by sending an official complaint to the European Commission.

So anyway, if, as I suspect, the Commission will rule that this was not a border check, but an identity check in the territory of a Member State, where does that leave us?

The important difference between the Danish case and the French case is the national ID obligations. In France (as the Commission’s letter to me explained) the French police has a right to demand ID. The Danish police does not have the same right, or at least it is more complicated.

There is no national ID card system in Denmark. Instead most Danes carry a Sundhedskort (like a UK National Insurance card), and that has the person’s address and CPR number on it (and from a CPR number the state can obtain all kinds of information about a person). Then comes the question whether even that can be demanded, because an identity check at Padborg is legally equivalent to the same being asked in the centre of Copenhagen.

I asked as many Danes as possible on Twitter about this (everyone is thanked below), and there were three schools of thought.

The most minimal interpretation is that not even a Sundhedskort need be shown, or a CPR number stated, but instead when asked a person has to give their name, address and date of birth that the police officer could therefore check. This page (in Danish) explains it, relating to § 750 of the Code of Civil Procedure (Retsplejelovens) – mentioned by a number of the respondents.

Others argued that the normal procedure would be to show a Sundhedskort, and because this showed an address and CPR number, it would be sufficient. But here things start to get messy – I am an EU national living in Denmark, but I am not Danish. This means my Sundhedskort is precisely identical to a Dane’s one, but the Ny i Danmark website states (translated from the Danish in the middle of this page) “An EU / EEA citizen must be able to identify and prove his citizenship if the Danish police authorities ask for it at a personal checks. An EU / EEA national who will travel to Denmark must bring their passport or identity card.” (thanks Jacob C)

The problem is that no Dane can prove they are Danish from a Sundhedskort alone, as it does not state nationality. Neither does a driving license – that shows the issuing country, and place of birth, but that is not citizenship. To know citizenship would require the police officer to check the CPR number. But as the Oulane case in the European Court of Justice shows (thanks Andreas K), Member States are not allowed to impose extra ID burdens on citizens from other EU states. Perhaps Danes just ooze Danishness(?), but in any case I cannot see how, under Danish law, a passport could be demanded from either a Dane or another EU citizen.

A number of other people pointed out that a photo ID would be required. This I do not have for Denmark, as the Sundhedskort does not have a picture on it. I still have a UK driving license with photo – exchanging that for a Danish will cover this situation the next time I am checked.

So then, in conclusion, if this policeman at Padborg was OK under EU law, was he right under Danish law? I rather think he was not…

[UPDATE]
Further discussion with Twitter user @guan has turned up an additional complication. Article 39 of the udlændingeloven (Aliens Act, literally!), para 4 is translated as follows: “The provisions of paragraphs. 1-3 does not apply to nationals of another Nordic country residing in this country, or who enter from or exit to another Nordic country. Justice may exempt other foreigners for its obligations under paragraph. 1 and 3;” Para 1 states “during his stay in the country and on departure from being in possession of a passport or other document by the Minister of Justice provision can be approved as a travel document.” This would seem to imply that, as a UK citizen, I would have to keep a passport with me all the time, even in Denmark. But because this would treat Swedes differently it’s a discrimination under EU law (see Oulane case above). How could I find a way to test this I wonder?

[Thanks for assistance for the research for this post, in no particular order - @jacobchr @sorenhave @IPA_thanks @AndreasKjeldsen @Emily_Lucky @Leoparddrengen @guan @MaksBitter @KamillaVinther @NatashaLevanti @Nissemus @kimschulz @TobieDK @DijkstraHylke @MrMesserschmidt @anpe @mr_hansson]

Photo: "Padborg 15.2.2009 23.55" by demoshelsinki on February 16, 2009 via Flickr, Creative Commons Attribution

12 Comments

  • Karsten Lucke |

    Hi Jon,

    just want to say that this post is a brilliant thing for European education. I can use it to show how Europe works really in reality – thank you!

  • Jon |

    Use it together with the FR-IT case, and the Commissioner’s Twitter response then. It’s a good case study. I also used it as an example at Maastricht University yesterday – before this new episode!

  • Peter Lemmich |

    Great initiative!

    I find that the most annoying thing is not so much the occasional control, but the irregularity and inconsistency, and the blatant legal double moral (checking for drugs and weapons, but actually just checking identification). The concept of ‘borderless Europe’ is rather hollow if I have to carry national identification *just in case*. Why, for example, can I fly with Easyjet from Basel to Copenhagen without *once* showing my passport (not even in Security), but then randomly be demanded to show ID (ie. passport) in the middle of Belgium? This happened to me in 2011 on a regular IR train from Brussels to Bruges. As I, obviously, didn’t have my passport on me (living in Bruges), I showed my EU drivers license. They didn’t kick me off the train or take me with them (I’m guessing only because I ‘ooze’ white, legal, European citizen), but I did get a ‘warning’ … It has only happened to me once.

    I look forward to seeing the Commission’s response to the episode in Padborg.

  • Francis Sedgemore |

    Speaking from experience of having lived in Denmark and been immersed in Danish-speaking culture, my impression is that the Danes and the English are birds of a feather when it comes to national identity. The Danes are universally conservative on such matters, whatever their politics, and while they may be a little more EU-philic than the Brits, there is always a set distance between Danishness and the Other.

    When travelling within the Schengen Zone Danes habitually carry their passports, and are often nonplussed when it’s pointed out to them that they need not do this. They really don’t get it, and maybe never will. This might explain the reaction of your police officer on the train, who could not understand why you were kicking up such a fuss. Like the English the Danes are also fond of kicking up a fuss when it suits them, but not on matters such as this.

    My own solution to the travel document problem was to carry my Opholdskort – the photo ID card given to EU member state citizens resident in Denmark, but who are not Danish citizens. At the time I was told by Danish authorities that photo ID with home address was required for all Schengen Zone travel, but not a passport. The gulekort (sundhedskort) was never acceptable as a travel document.

    As for the “Aliens Act”, don’t be cheeky. :-) Udlændige translates literally as outlanders, or foreigners. As I’ve said, Danes like to be very clear on the distinction, but it’s not so much a blood and bone thing, but a question of civic identity. Ethnic minority immigrants (nydansker) tend to get sucked quickly into this culture, and as long as they accept it the old Danes accept them as brothers and sisters in Danishness. Well, apart from the out and out racists, that is.

  • Jon |

    @Francis – thanks for the comment. A few reactions:

    1) The ‘Opholdskort’ does not exist any more for EU citizens. So I cannot show it, as I do not have one, nor should I have one. So this contributes to the confusion, not least as non-EU citizens in Denmark still have them. I know the Sundhedskort is not acceptable as a travel document, but it it acceptable as an identity document? That’s the question.

    2) The distinction here, perhaps not entirely clearly explained in my post, is whether this check is a border control, or an identity check conducted on the territory of a Member State. If it’s the former, the Schengen rules apply, and then the question is whether Denmark would comply. To cross a border I need a passport (as I do not have any other adequate valid photo ID, nor is there any I could have). But if it is an identity check conducted in a Member State (which is the usual way Member States get around the Schengen rules), then the rules should be the same as if I were checked anywhere else in Denmark – as discussed above there is no obligation to show a photo ID.

  • Jon |

    @Francis – further, while I might have UK citizenship, I am behaving here very much as an EU citizen. I can’t think there are too many Brits that give a damn about the legal applicability of Schengen…

  • Paul Knoll |

    As far as i know the idea behind the Schengen agreement is to allow people to move around freely in those countries covered by the agreement, without having to prove AT THE BORDER who they are and where they are from. So effectively they cannot prohibit you from entering a Schengen country if you do so coming from another one. They might want to detain you in order to check on you, but that is a totally different matter. They would have to detain you in Denmark, and after checking on you decide whether to let you go or put you in jail or whatever, but NOT to send back to the previous country.

  • Francis Sedgemore |

    EU citizenship remains a culturally alien concept outwith the core of the union. Danes very often talk of going on holiday “to Europe”, as do the Finns, even though Finland is a eurozone country. Now I personally identify as a “European Citizen”, and in a political and economic context this takes precedence over my nationality, which cannot be “British” given that Britain is not a nation. But then I have a euro-federalist axe to grind.

    As for the Brits and Schengen, I wouldn’t be surprised to see them come out en masse in favour of joining if the matter were discussed in the UK media. The Irish only remain out of Schengen as to join would mean abrogating the common travel area treaty with the UK.

    Coming back to the question of a Schengen and EU member state-friendly travel and ID document, we may have an unresolvable problem, but it’s even more farcical than originally portrayed. That is, British passports neither carry nor are linked to current home addresses. British passports should therefore not be acceptable for travel between the UK and Schengen states. Try telling that to the Danish rozzers. Or on second thoughts maybe not.

  • Leon S Kennedy |

    Hey Jon,

    Your whole blog actually pisses me off for it gives a perfect perspective of the murky practices carried out throughout Europe that are often against the law and are useless and/or costly. I could see much better ways to spend public money than to pay public workers to uselessly delay public transportation and traffic at the borders to perform useless ID controls.

    I lived in Switzerland for 5 years, 3 before Switzerland joined Schengen and 2 after. And I can tell you that NOTHING ever changed. The Swiss and German border police used to be literally on every second train between Basle and Freiburg i. Breisgau, and they still are. The French police keeps stopping commuters driving back from Geneva every day. I think the only real change that I saw is that the systematic passport control at the airports for intra-Schengen flights arriving to/from Switzerland vanished. It’s funny when you think about it: locals, commuters and train users still get to be bothered by those rude, useless, intimidating controls, while air travellers flying from thousands of kilometres away are not.

    As you are, I am a huge fan of rail travel (my current stay in the US it’s proving a torture in that respect) and I could tell you innumerable border issues I had while travelling around Europe. I too was once woken up in Padborg early in the morning when taking the night train from Cologne Central (Köln Hbf) to Copenhagen. I even remember the German conductor kindly “informing” (how dare he!) the border police that the train was already 15 minutes late! Or this other time, crossing the Mont Blanc tunnel, where our bus (running from Chamonix to Milan via Turin) was stopped (aka delayed) for 1 hour by the Italian border force. Or the uncountable times I have travelled between Spain (my home state) and France and have been controlled at the border (or have seen the border police stopping every non-white person).

    May I state my admiration for your staunch “resistance”. I have also tried a few times inquiring whoever was controlling me at the border about the nature of the control, and very often the situation automatically became very tense. I was once even threatened by French police (on a TER train somewhere between Annemasse and Évian-les-Bains) who said to me that unless I shut up and limit myself to answering their questions I will have “big trouble”. I was 19, they were big, and they were two. So yes, I did shut up and paid the price for my daring: they inspected every single pocket of my backpack, and even unwrapped my sandwich and checked between the cheese and the tomato whether something was in there…

    I am now of the opinion that you can’t really win against police and border agents. They have the upper hand, and they know it. As much as it is frustrating to know and experience that the borderless Schengen zone is a myth, I feel that anything other than readily handing over your passport to the border agent is time-consuming, tense and above all useless. These people do not take suggestions from single citizens, especially not from those telling them that they haven’t got the right (aka power) to do whatever. A very common feature of many members of the various state police forces is that somehow they get addicted to the feeling of power, and will certainly fight back and intimidate if necessary as they did to me. Any answer to this limitation of liberties of European citizens has to come from above. But unfortunately no politician seems ready to do what’s required, for in 2013 public opinion in the EU still seems to believe that internal EU borders actually do something.

    The biggest joke is that I often feel that external EU controls are miserably weak. I walked over the border from Morocco to Ceuta (Spain) and they barely looked at the cover of my passport. When flying back from the USA to some EU airports the border control didn’t feel particularly thorough to say the least. I hear that the Ukraine (non-Schengen) – Slovakia (Schengen) is a huge open door for illegal immigration.

    Wouldn’t it be much better if politicians explained to the people that it would make much more sense to effectively protect external Schengen border instead of uselessly boycotting citizens’ liberties inside Schengen? Although, as sorry as I am for you, that would also include strengthening the border controls when travelling from/to the UK :)

  • Caessar Akbar |

    This is interesting, i had an experience was in a bus Eurolines from Amsterdam – Aalborg. Stopped over in Hamburg and heard from some passenger that another bus from Belgium to Germany had been checked by the police in the border. But luckily the bus ive been used didnt check at all from Amsterdam till my destination in Aalborg. But i always wondering how if i crossed the border using a private car. Would they check it as well or they only check on public transportations? Because if so then i feel like Schengen just useless program that EU have since apperently it doesnt work at all.
    Anyone knows about checking on private vehicle? Thank you

So, what do you think ?