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Posts tagged with: Schengen

Non-Schengen compliant border control between Rzepin and Frankfurt (Oder), 11th March 2014, 2156

Screen Shot 2014-03-12 at 01.40.243 police officers or border guards, 2 Polish and 1 German as far as I could tell (the one who spoke to me was Polish) boarded train EC 40, the Warszawa – Berlin express, at Rzepin on 11th March 2014. I was in the front carriage of the train, where the officers boarded. A few minutes after the train departed Rzepin the police passed through the train, and the following conversation followed when I was approached by the officer. This is the word for word transcript of the conversation:

Border Guard (BG): (says something in Polish)

Jon (J): Sorry I don’t speak Polish

BG: Polish border guard. I would like to see your ID or passport.

J: It’s an identity check or a border control?

BG: No it’s not a border control

J: (I get my wallet and take out my German driving license)

BG: It’s not enough. It’s a driving license. Your ID or passport.

J: Could you tell me why that’s not enough?

BG: Because the driving license does not allow you to cross the border

J: But this is an identity check not a border control?

BG: It’s not a border control.

J: So you’re demanding the document from me…

BG: I’m not demanding you. The law says that in order to cross the border which you are going to cross…

J: So it IS a border control

BG: No it is not a border control. It is an identity control.

J: So hence my driving license is OK.

BG: You need to show what you need to cross the border.

J: Sorry. That is a contradiction. That is a border control.

BG: It isn’t.

J: (I show him my passport)

BG: When you are going from France to Great Britain they do the same as here.

J: Yes, I know, I teach European law, that’s why I am asking you.

BG: European law says exactly what I told you.

J: No it doesn’t.

BG: You better read… (Border Guard walks off)

So what is going on here?

The official had no obvious emblems on his clothing, so I cannot confirm whether he was indeed a policeman or border guard. His jacket was obscured by a yellow high visibility vest. However he introduced himself with the words “Polish border guard”.

Border controls are not allowed in Schengen, and ID checks in border areas are regulated by Article 21 of the Schengen borders code:

Article 21
Checks within the territory

The abolition of border control at internal borders shall not affect:

(a) the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures:

(i) do not have border control as an objective,
(ii) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime,
(iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders,
(iv) are carried out on the basis of spot-checks;

The check to which I was subjected clearly breaches (iii) – the officer introduced himself as a border guard, and talked about “the border you are going to cross” as if this were central to the control he was about to carry out. The guard is right that I do need more than a driving license to cross the border, but he also has no right to demand that from me as he is only conducting an identity check.

The further question then arises: if this were simply an identity check, and not a border control, what are the ID requirements for non-Poles in Poland. The law regulating this is here (in Polish). The important part of this is § 4, Google translated as follows:

§ 4 The officer determined the identity of the person legitymowanej based on:
1) ID card;
2) passport;
3) foreign identity document;
4) else establish a reliable instrument equipped with a photograph and indicating the number or series;
5) statements of another person, whose identity was determined on the basis of the documents referred to in paragraphs 1-4.

So what is my German-issued photocard driving license? Is that covered by 4) or not? If so then the correct procedure would have been similar to the Puttgarden experience where the official could have checked my identity on the basis of the driving license alone, and would have no right to demand to see my passport.

Anyway, I will submit an official complain to the European Commission about this to test what is happening here. If you’ve managed to read this far then you might also be interested in similar stories from St Jean de Maurienne and Padborg, and the website dedicated this this issue – FreeMovement.net

[UPDATE, 12.3.2014 at 0200]
Since publishing the original blog entry, I have been sent the link to the Polish law covering the border guard rules. PDF here. The rules there are rather similar to the law above that applies to the police – again Google Translated:

§ 4 The officer determined that the person identity legitimacy reformed on the basis of:
1) the identity card;
2) passport document,
3) the travel document;
4) any other niebudzacego doubt a document bearing a photograph-and assigned a number or series;
5) benefits a person who the officer is known to the person;
6) benefits of another person, whose identity it was-cond breakthrough was determined in a way, about whom referred to in paragraphs 1-5.

If Gibraltar wants to solve its border headache with Spain, it should join Schengen

gibraltarSo the Spain-Gibraltar border dispute rumbles on. Queues at the land border to enter Gibraltar persist, and suggestions abound that Spain may introduce a charge to cross from Gibraltar into Spain. Meanwhile Tory MEP for the South West & Gibraltar, Ashley Fox, has called on the European Commission to take immediate action and send a team to check what’s happening at the border.

It strikes me that the Commission is not going to care too much about checks and delays at the border. This complaint, after all, comes from the UK, and the UK does precisely that to any visitor coming to the British Isles from anywhere else in the EU as the UK is not in Schengen. Plus the UK’s political capital on any Justice & Home Affairs issue is very low in Brussels just now. So I cannot see the Commission caring too much about some queues as a result of border checks. Charging to cross a border is a different matter, but we are not there yet.

But what should Gibraltar do?

Here’s an idea. Rather than trying to whip up nationalist fervour in the UK, how about making a case for Gibraltar to join Schengen? That would mean Spain would not actually be allowed to control systematically at the border to Gibraltar. Problem solved.

How then could it work?

Gibraltar is part of the EU, although not a part of the common VAT area or customs union (details here). But neither of those has stopped Switzerland joining Schengen. There is also the precedent of Mount Athos that is in Schengen. There are also numerous precedents for parts of Member States being in Schengen, and others not being in Schengen – French overseas territories for example. Furthermore, Gibraltar is not part of the UK-Ireland Common Travel Area, so passports are needed for travel to the UK. This would mean Gibraltar joining Schengen would be a lot less complicated than the Republic of Ireland doing so.

To do so two things would have to happen. The UK government would have to agree to let Gibraltar join Schengen (but if it took a diplomatic problem off their hands, why not agree?) and then all current EU Member States would have to agree to its accession. If Spain were to threaten to veto, other Member States would surely point out Spain’s inconsistency as it is itself within Schengen and has no problem with the principle. If Gibraltar were to signal its intention to join Schengen it would also surely receive a more favourable attitude from the Commission in the meantime.

So then folks, when you face a border dispute, how about thinking of getting rid of the border?

FreeMovement.net – mapping breaches of Schengen

Screen Shot 2013-04-30 at 11.09.02As any regular reader of this blog knows, non-Schengen compliant border controls (and my documentation of them) have been a regular topic in the last few months. I’ve been checked at St Jean de la Maurienne, Buchs, Puttgarden, Oldenburg and Padborg recently, and further in the past at Brenner and Venlo and Paris. With the help of my blog readers I have started to work out what documentation I need to show at borders, and how this varies between different Member States.

All of this work has now culminated in the launch of a new website – FreeMovement.net – that went online yesterday, and has been covered in this week’s New Europe newspaper in Brussels. The basic idea is that if you cross a border and are subjected to a check then you report it. This can be done on the website, or through an iPhone and an Android app. The site is an application of the open source Ushahidi tool.

The idea is that reports from citizens should help work out the patterns of border checks, and that this data could then help push the European Commission to conduct proper investigations about breaches of Schengen. At the moment it seems that some borders – notably in and out of France (especially to Italy), and Denmark-Germany, are hot spots. But as the site develops that pattern may change.

Anyway, if you are a regular border-crosser then do have a look at the site and report breaches as and when you encounter them!

A little Brussels-London security paranoia case study – this coming Friday

I have not taken Eurostar recently, but judging by comments posted on my previous blog posts about the service, it seems that the security paranoia that afflicts the route has not diminished.

Anyway, for the first time in months, I am going to be on Eurostar on Friday this week, and am taking my journey as a little experiment.

I will be on service number 9157, between Brussels and London, leaving Brussels at 1856. This is the Brussels – London timetable excerpt (full PDF here):

Screen Shot 2013-04-16 at 14.25.57

Right then. My train does stop in Lille Europe, and not in Calais.

The next task: can tickets even be booked on this service between Brussels and Lille? I used SNCB’s search to check this, and it only shows trains 9133 (1256 departure), and 9161 (1952 departure) – i.e. it will not let me book Brussels – Lille on train 9157. I also checked with the same search on Capitaine Train, and it is even clearer – train 9157 shows up, but the site tells me that booking anything on it for Brussels – Lille is impossible. I have also tried multiple days for my searches, just to make sure that it is not only because one service is full.

So train 9157 does not set down any passengers in Lille, it only picks them up, and beyond Lille it does not stop the whole way to St Pancras. This means that the Lille Loophole does not apply to this service (but would apply to trains 9133 and 9161).

What does this mean for security checks on board this service? It means that a passport check by the UK Borders Authority in Brussels should suffice, and the same for passengers boarding in Lille. No further checks should be needed on board the train, nor at St Pancras.

Let’s see what happens on Friday, because I would be really surprised if that is actually what happens.

[UPDATE: thanks to digging by @philrichardsuk and I, we are now even more confused than we were. It seems SNCB can only offer Eurostar tickets up until 27th April inclusive, at the time of writing, and often only train 9133 (1256 departure), and 9149 (1656 departure) show, and not the 1952 departure. In any case, I think the main gist of this piece holds!]

A border control dressed up as a customs control, inside Schengen. Buchs, Switzerland, 1020, 14 March 2013

4231096905_6aea8de9b0_oSwitzerland is in the Schengen Area. But it is not part of the EU Customs Union. Therein is the newest excuse I’ve heard for a border control within the Schengen area.

I was a passenger on Railjet 362, departing Feldkirch* (Austria) at 0948 this morning, and scheduled in Buchs (Swiss border station) at 1005, although we were 10 minutes late, and it took the guards some time to go through the train.

An officer of the Corps des gardes-frontière / Grenzwachtkorps comes through the train and asks me for my passport. Not all passengers were asked.

Initially I assumed he was a policeman performing a border control so, as is my normal behaviour, I stated (in Hochdeutsch) that Switzerland was in Schengen, and hence there should not be a border control. No, he said, this is not a border control, but it is a customs control, and this is allowed as Switzerland is not in the EU Customs Union. OK, a customs control, fair enough, so I show the guy my passport, and then awaited questions about my luggage, was I carrying money etc… But no such questions were forthcoming (and I had a huge rucksack with me), the guy thanked me, and off he went.

Only passports / IDs were demanded from the few other passengers in the train that the guy spoke to. No mention whatsoever of anything to do with customs.

This then strikes me as some kind of border control, but dressed up as a customs check when you push the officer for an explanation. Yet another story to add to add to my ever-lengthening list

* – how I ended up in Feldkirch is a story in itself. In short: splitting my Zagreb-Geneva rail trip there meant the whole lot cost less than half the price than if I booked the whole lot in one go.

A perfectly correct border control. No, sorry, identity control. Between Puttgarden and Oldenburg (Holst), 1105, Friday 1st March

polizeiThe 0744 København H to Berlin train (although I’m getting off at Hamburg Hbf). Friday 1st March. Two policemen wait at the German border station Puttgarden, board the train at 1040, it departs at 1042, and the two of them reach my seat (at the opposite end of the 4 car train) by about 1105, just before the train arrives in Oldenburg (Holst). This is the very same train and same spot as when I was checked in January.

Today however I tried my new Schengen tactic. Rather than showing anything initially, I asked the policeman a question: is this a border control or an identity control? Doing this in German helped, as he was not annoyed. Identity control he told me. So it is OK for me to just show you my driving license then? He looked confused for a moment, and then realised the connection with the first question. I pushed, gently, stating that as far as I was aware an EU photo driving license was adequate as an identity in Germany. But the UK is not in Schengen he stated, looking at my UK driving license. No it’s not I confirmed, but that does not matter. It is still valid as identification in Germany.

But the problem, he correctly stated, is that while this driving license tells me that it is issued in the UK, it does not tell me that you are a British citizen. That is correct, I confirmed. So he reached for his telephone, and called HQ, giving them my surname and date of birth. This of course passed whatever check was done on the other end very swiftly.

But how do you speak such good German he asked me? I used to live in Berlin I replied, and by the way I work in EU politics, so that is why I am checking that Schengen is working. He smiled, thanked me, gave me my card back and wished me a pleasant journey.

So, what conclusions, if any, to draw from this?

A friend quipped to me in a text message that someone must have been reading my blog entries. I wish that were so, but I think that today I just ended up with an intelligent and polite police officer. The time it took for the police to go through the train indicates that more or less all passports must have been checked – this was a systematic check like they always are. As ever the question arises: how often, and on how many trains, are these checks taking place? But, as concerns the behaviour of the policeman towards me personally, it was done by the book and I can have no quibble with that.

Permissible ID checks in EU Member States – I need your help

Screen Shot 2013-02-11 at 12.42.35

As regular readers of this blog know, the problems within the Schengen Area have been giving me cause for concern over the last few months. I have been wondering what best to do in light of my experiences, and my current plan is to find a way to more systematically document breaches of the Schengen Area rules.

But the problem is then: what are the rules? And where does EU law end and national law begin?

Here is where I need readers’ help before I can work out how to document breaches.

The essential issue is that, if asked, a policeman asking to see a passport or ID at a border should say that they are not conducting a border control, but they are performing an identity check on the territory of a Member State. So what then is a permissible identity check? This is important because a police officer may exceed what he/she is allowed to do under national law.

We know what identity documents are permissible in each Member State – that is laid out in detail in the PRADO database here. What we do not have a list of is what a police officer can demand of a citizen, and under what circumstances.

So ask yourself this question: if you are on the street in the centre of the capital city of one of the 26 Schengen Area Member States, and you are stopped by a police officer and asked to prove your identity, what do you have to show? Please comment below explaining the situations you are aware of.

So far I am aware of the following:
Denmark has no national ID card system, so if a police officer asks me to prove my identity on the street in Copenhagen I have to only give my name, date of birth, and address. I do not have to show ID. From this data a police officer could determine my CPR number if I am resident in Denmark, and from that has access to a whole lot more information. If I am a non-resident EU citizen I could be asked to present myself with ID at a police station within a certain period of time. (see more here, inc. comments)
Netherlands has a compulsory national ID card system, and this applies to EU nationals in Netherlands. If a “valid reason” is given by a police officer this ID has to be shown – this of course would prevent IDs being demanded from every person in a bus or a train, unless one is in a security risk area (such as Schipol Airport) where ID can be demanded.
Greece has a compulsory ID card system, so if ID is demanded by a police officer then it has to be shown. This applies to EU nationals as well as Greek nationals.

Non-Schengen compliant border control at Puttgarden, 21st January 2013, 1244

puttgardenToday I’m at least as angry at myself as a blogger (who was not adequately prepared) as I am about yet another breach of EU law and Schengen.

My ICE train had just left the ferry, heading into Germany at Puttgarden at 1244, and was stationary at the station when 2 German police (Polizei) boarded the carriage and demanded to see passports. They were so swift that I was unable to ready myself to make a recording of the conversation.

As normal with my previous experiences (Padborg Jan 2013, Modane Oct 2012, Padborg Sep 2012) I asked the policeman why they were asking for passports as Germany and Denmark are in Schengen. The reaction was predictable – because we can.

However, conscious of my previous experience I was ready with the follow up question – is this check a border control, or a check on the territory of a Member State? The latter they said. So then, I asked, how is what you are doing here any different for me as a citizen in comparison to a border control? How does this comply with Article 21 of the Schengen Borders code? – which I have printed out in German and hence showed to the policeman. His response was, rather flippantly, that it would take too long to explain it, and that anyway, under German law they had the right to control in this area, and indeed had an office in Puttgarden (he vaguely gesticulated out of the window). I thought Schengen meant we had a border free EU, I asked. No, the borders still exist he said.

I of course had no option but to show my passport – when asked to show ID by a police officer you have to comply as far as I am aware (there is Ausweispflicht). So they paid a cursory glance at my passport (no check with any sort of machine), to check the picture looked like me (and indeed told me they were just checking the photo matched), and off they went.

So what are the conclusions this time? This experience is more in common with the Modane experience (with the exception that the police were much politer here) than it does with the Padborg experience, because in the end when in Germany I have to show ID. The difference to Modane however was that this check was at the border, in a stationary train – not even any effort to make it look like it was not a border check. That is what caught me so unaware – I would not have expected the German police to be so blatant.

Once again the question cannot be answered – how did this check “not have border control as an objective” (Article 21, 1, (I), Schengen Borders Code). So once again the European Commission is going to receive an official complaint from me. That means I’ve been checked twice in a week, and I’m heading through Padborg again in two days…