VERDICT
In the administrative matter
xxx,
– Plaintiff –
– Respondent –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen, Ref: 0575/13sva
against
Federal Republic of Germany,
represented by the Federal Police Directorate Stuttgart,
Wolfgang-Brumme-Allee 52, 71034 Böblingen
– Defendant –
– Appellant –
Legal representative:
Redeker Sellner Dahs Rechtsanwälte,
Willy-Brandt-Allee 11, 53113 Bonn, Ref: 46 15 3594
for the purpose of establishing personal details
The 1st Senate of the Administrative Court of Baden-Württemberg, composed of the President of the Administrative Court Ellenberger, Judge Hettich and Judge Dr. Hug, rendered the following decision based on the oral proceedings
Judgment of February 13, 2018:
The defendant's appeal against the judgment of the Stuttgart Administrative Court of 22 October 2015 – 1 K 5060/13 – is dismissed.
The defendant shall bear the costs of the appeal proceedings.
The appeal is not admitted.
FACTS
The plaintiff seeks a declaration that an identity check carried out by the Federal Police and the subsequent data comparison were unlawful.
The plaintiff, born in Kabul, is a German citizen of Afghan descent. On November 19, 2013, he was traveling on a business trip in first class on the ICE train from Berlin to Freiburg. There were six or seven other people in the carriage. At approximately 10:30 p.m. on the section of track between Baden-Baden and Offenburg, the plaintiff was approached by three officers of the Federal Police and asked to identify himself. The plaintiff presented his German identity card and handed it to Police Commissioner H. He then told the officers that this method of identity verification was unlawful and demanded that they provide their names and/or badge numbers. Police Commissioner H. checked the plaintiff's identity card and subsequently informed the plaintiff of the police stations and badge numbers of the three officers. No other passengers in the carriage were checked. After verifying the plaintiff's identity, the officers left the first-class section.
On December 18, 2013, the plaintiff filed a lawsuit with the Stuttgart Administrative Court seeking a declaratory judgment that the identity check and data comparison were unlawful. He argued that the identification of his personal details was materially unlawful. The legal basis cited by the defendant, Section 23 Paragraph 1 No. 3 of the Federal Police Information and Control Act (BPoIG), violated European law. It was incompatible with Articles 20 and 21 of Regulation (EC) No. 562/2006 (Schengen Borders Code). The only alternative legal basis, Section 22 Paragraph 1a BPoIG, was subject to the same legal concerns. Furthermore, the factual prerequisites of Section 22 Paragraph 1a BPoIG were not met. There had been no indication of any use of the ICE train in violation of immigration law. Moreover, the defendant had exceeded the limits of its discretionary powers. An identity determination based on the criterion of skin color violates Article 3 Paragraph 3 of the German Basic Law and also principles of international law, in particular Article 26 of the International Covenant on Civil and Political Rights and Article 14, Article 8 Paragraph 1 Alternative 1 of the European Convention on Human Rights.
The defendant contested the claim, arguing that the identity check carried out on the plaintiff was not unlawful. According to Section 2 Paragraph 1 of the Federal Police Act (BPoIG), the Federal Police are responsible for border police protection of the federal territory. Border protection includes, among other things, according to Section 2 Paragraph 2 Number 3 of the BPoIG, the prevention of dangers that impair border security within the border area up to a depth of 30 kilometers. This provision is not linked to the control of cross-border traffic as defined in Section 2 Paragraph 2 Number 2 of the BPoIG and thus permits police intervention measures that are not directly related to a border crossing. It does not require a concrete threat to the police, but rather reflects a precautionary concept and allows for a significant police presence in the border area, which can be "compensated" by limited data storage capacity. The train was traveling from Baden-Baden to Offenburg and was therefore within the 30-kilometer border zone. Since illegally entering the country had repeatedly been detected on trains in the past, identity checks were deemed appropriate and necessary based on the available information. The Federal Police Inspectorate in Offenburg identifies an average of 70 illegally entering individuals per month in the border region with France. On November 19, 2013, between ten and fifteen people – both of European and non-European origin – were checked against their warrants on ICE xxx. The comparison of the plaintiff's personal data was lawful in accordance with Section 34 Paragraph 1 Sentence 2 of the Federal Police Information Act (BPoIG). Several criteria are decisive for the selection of passengers to be checked. First, the situational assessment of the Federal Police Inspectorate in Offenburg must be taken into account. Furthermore, police experience and the overall appearance (age, belongings, clothing, behavior) must be considered. Ethnic appearance is not a selection criterion.
The Stuttgart Administrative Court, in its judgment of October 22, 2015, found the identity check and data comparison to be unlawful. The action, which was admissible as a declaratory judgment action regarding the identity check and as a general declaratory judgment action regarding the data comparison, was deemed admissible and well-founded. The identity check by officers of the Federal Police was unlawful. The defendant could not effectively base the measure of establishing personal details on the provision of Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPolG) because this provision is not in conformity with EU law and cannot be interpreted in conformity with EU law. It violates Article 21 of Regulation (EC) No. 562/2006. The enabling provision does not contain the normative limitations required by the European Court of Justice, which ensure that the actual exercise of the power cannot have the same effect as border controls. Therefore, it can remain open whether the factual prerequisites under Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG) were met at the time of the check and whether the defendant exercised its discretion in establishing identity in violation of Article 3 Paragraph 3 of the Basic Law (GG). The subsequent measure of data comparison following the identity check was also unlawful (see in detail Stuttgart Administrative Court, Judgment of October 22, 2015 – 1 K 5060/13 – juris).
The defendant pursues its motion to dismiss the action by way of an appeal admitted by the Administrative Court due to the fundamental importance of the legal issue. The Senate suspended the appeal proceedings by decision of April 7, 2016, pending a decision in the preliminary ruling procedure C-9/16 pending before the CJEU, and resumed them on June 29, 2017, following the CJEU's judgment in that case of June 21, 2017.
The defendant argues in its appeal that the identity check was lawful. Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG) is, in particular, compliant with EU law. The European Court of Justice (ECJ) requires a legal framework that ensures that the practical exercise of the power to conduct identity checks cannot have the same effect as border crossing controls. The specifications and limitations required by the ECJ do not necessarily have to be statutory in nature, and certainly not stipulated in Section 23 of the BPoIG itself. Rather, administrative regulations could also be used. At the relevant time of the check in dispute here, on November 19, 2013, sufficient control over the intensity, frequency, and selectivity of the checks was achieved through "BRAS 120," Volume I, Section II, with the information contained therein on the performance of border police duties ("Best Grepo") as it stood on March 1, 2008. The "BRAS 120" regulations are administrative rules. They clarify that it is inadmissible to conduct identity checks at internal borders without any specific reason, solely on the basis of a previous border crossing. Furthermore, they contain more detailed guidelines, compliant with the requirements of the European Court of Justice, for measures taken by the Federal Police to combat illegal immigration within the internal border area. Among other things, they clarify that checks pursuant to Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG) are only permissible "in individual or exceptional cases" and require the existence of "sufficient evidence of illegal entry or human smuggling." The administrative rule further specifies when such evidence exists. The identity checks permitted under Section 23 Paragraph 1 Number 3 of the Federal Police Act (BPoIG) were therefore based on situational awareness and/or police experience and also depended on the behavior of the person concerned or other circumstances that indicated a risk of public order. Practical experience also demonstrated that the provisions of "BRAS 120" had been effective and that inadmissible systematic identity checks were not being carried out by invoking Section 23 Paragraph 1 Number 3 of the BPoIG. The checks provided for therein were, in practice, only carried out on a random basis and in a manner that clearly differed from systematic identity checks at the external borders.
The legal requirements for an identity check of the plaintiff pursuant to Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPolG) were met on November 19, 2013, also taking into account BRAS 120. At that time, a special situation report for the Offenburg Federal Police Inspectorate was available, which stated, among other things, that the continuous increase in illegal entries within the area of responsibility of this Federal Police Inspectorate had continued uninterrupted since the second half of 2012 throughout 2013. With one of the largest border crossings along the German-French border (Europabrücke) in the Strasbourg-Kehl area, the area of responsibility of the Offenburg Police Inspectorate will continue to play a crucial role in illegal entries into Germany in the near future. For details, reference is made to the document "Offenburg Police Inspectorate: Situation Report 'Irregular Migration and Human Trafficking', 4th Quarter 2013" (Appendix B1 = pp. 145 ff. of the Administrative Court file). According to this document, the patrols of the ICE xx were based on information regarding past and anticipated future illegal entries and human trafficking operations using trains. The approximately ten to fifteen identity checks carried out on the ICE xxx in question did not involve all passengers on the train. They were therefore limited in number and selective. The officers' spontaneous decision to establish the plaintiff's identity arose from the specific situation they encountered. The plaintiff was sitting in a single seat approximately in the middle of a first-class carriage, facing backwards, just as the officers were walking through the train facing backwards. Since the plaintiff was in his seat Because the plaintiff was sitting slumped in his seat with his back to the officers walking through the train, neither the plaintiff nor the officers could see the approaching officers before they were level with his seat. The plaintiff was wearing headphones and had his eyes closed. In such a situation—slumped in his seat, headphones on, eyes closed—it is by no means clear whether the person in question actually intends to rest or whether he is perhaps pretending to be asleep and his behavior is possibly aimed at avoiding any checks. Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG) is also in accordance with German constitutional law and is, in particular, proportionate. The identity check was also carried out without any other errors.
The data comparison was also carried out lawfully. In particular, Section 34 Paragraph 1 Sentence 2 of the Federal Police Act (BPolG) is constitutional. The criticism raised in some legal literature regarding the vagueness of the provision is unfounded, as the provision is open to interpretation. There are also no concerns regarding the proportionality of the intrusion associated with the comparison.
The defendant requests that
to amend the judgment of the Stuttgart Administrative Court of 22 October 2015 – 1 K 5060/13 – and to dismiss the action.
The plaintiff requests that
to reject the appeal.
In a written submission dated November 9, 2017, the Office for the Implementation of Equal Treatment (Büro zur Umsetzung von Gleichbehandlung eV) applied to be admitted as counsel pursuant to Section 67 Paragraph 7 Sentences 1 and 3 of the German Code of Administrative Procedure (VwGO), as requested by the plaintiff. Alternatively, xxx, who co-signed the submission of the Office for the Implementation of Equal Treatment, indicated his intention to appear personally as counsel pursuant to Section 67 Paragraph 7 Sentence 2 of the VwGO. The Office for the Implementation of Equal Treatment argues that the BRAS 120 (Regulations on the Implementation of Equal Treatment) do not meet the requirements of the European Court of Justice (ECJ) that a legal framework is needed to guide the intensity, frequency, and selectivity of inspections. They were not published at the time of the inspection carried out in this case. Even today, the defendant refuses to readily release the BRAS 120 from 2008. The lack of publicity leads to a lack of the necessary predictability of state action, as well as the possibility of adequate judicial review. Furthermore, the BRAS 120 guidelines lack the necessary practical effectiveness. The fact that inspections are only carried out based on a suspicion of danger and depending on the situation contradicts the submissions made in the first instance and likely even the law itself. Moreover, the BRAS 120 guidelines lack the necessary specificity. They contain no provisions regarding the frequency of inspections. Finally, there is an error in the exercise of discretion, which has occurred in violation of Article 3, Paragraph 3 of the Basic Law.
The plaintiff, by letter from his legal representative dated November 15, 2017, adopted the statements of the Office for the Implementation of Equal Treatment eV as his own.
By decision of 15 January 2018, the Senate rejected the application for admission of the Office for the Implementation of Equal Treatment eV as an advisor to the plaintiff.
For further details of the facts and the legal arguments, reference is made to the defendant's administrative file and the exchanged written submissions.
REASONS FOR DECISION
The appeal must be dismissed. It is admissible, but unfounded.
A. The appeal is admissible after being granted leave to appeal by the Administrative Court and is also otherwise admissible. It was filed with the Administrative Court in due form and time (see Section 124a Paragraph 2 of the Code of Administrative Court Procedure). The statement of grounds of appeal was filed with the Higher Administrative Court in due form and time (see Section 124a Paragraph 3 Sentences 1 and 2 of the Code of Administrative Court Procedure) and also meets the substantive requirements of the law (specific request, sufficient grounds; see Section 124a Paragraph 3 Sentence 4 of the Code of Administrative Court Procedure).
B. The appeal is unfounded. The action seeking a declaration that the identity check and data comparison were unlawful is – as the Administrative Court correctly decided – admissible and well-founded. The identity check (-I.-) carried out on the plaintiff by officers of the defendant on November 19, 2013, on the ICE xxx train between Baden-Baden and Offenburg, and the subsequent data comparison (-II.-), were unlawful.
I. The identity check carried out on November 19, 2013 was unlawful.
As an infringement of the plaintiff's fundamental right to informational self-determination (Article 1 Paragraph 1 in conjunction with Article 2 Paragraph 1 of the Basic Law) and of the fundamental right to general freedom of action (Article 2 Paragraph 1 of the Basic Law, cf. W.-R. Schenke, in: Schenke/Graulich/Ruthig, Sicherheitsrecht des Bundes [Federal Security Law], Section 23 BPoIG, marginal note 3), the identity check required a legal basis. This was lacking. Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG), cited by the defendant and the only applicable provision, was inapplicable at the relevant time of the check itself, November 19, 2013, for reasons of EU law (-1.-). Regardless, even assuming the applicability of national law, the identity check would be materially unlawful because it was carried out improperly under the administrative regulations governing discretion cited by the defendant (-2.-). Since this is not relevant to the decision, it can therefore remain open whether the police officers' exercise of discretion violated Article 3 Paragraph 3 of the Basic Law.
1. The disputed identity verification has no legal basis in Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG). The provision (-a-) was not applicable in November 2013 (-b-).
a) According to Section 23 Paragraph 1 No. 3 BPoIG, the Federal Police may, in the border area up to a depth of thirty kilometers, establish the identity of a person in order to prevent or stop unauthorized entry into the federal territory or to prevent criminal offenses within the meaning of Section 12 Paragraph 1 Nos. 1 to 4 BPoIG. Criminal offenses within the meaning of this provision are misdemeanors (§ 12 para. 2 of the German Criminal Code) that (No. 1) are directed against border security or the performance of the duties of the Federal Police pursuant to § 2 of the Federal Police Act – i.e., the duties of border protection – or that (No. 2) are subject to prosecution under the provisions of the Passport Act, the Residence Act, or the Asylum Act, insofar as they were committed by crossing the border or in direct connection therewith, or that (No. 3) are intended to facilitate a border crossing by means of deception, threats, violence, or in any other unlawful manner, insofar as they are detected during the control of cross-border traffic, or that (No. 4) involve the transport of an object across the border without official authorization as a statutory element of the criminal provision, provided that the Federal Police are assigned the task of monitoring the prohibition on transport by or on the basis of a law (as is the case, for example, in the area of narcotics law, cf. § 21 para. 2 of the German Narcotics Act).
If the conditions for the establishment of identity under Section 23 Paragraph 1 Number 3 of the Federal Police Act (BPoIG) are met, the Federal Police may, pursuant to Section 23 Paragraph 3 Sentence 1 BPoIG, take the necessary measures to establish the individual's identity. In particular, they may stop the individual, ask for their personal details, and demand that they present identification documents for inspection. During police checks of cross-border traffic, the Federal Police may also demand that the individual present border crossing documents. The individual may be detained and taken to the police station if their identity or authorization to cross the border cannot be established otherwise, or only with considerable difficulty (Section 23 Paragraph 3 Sentences 2 to 4 BPoIG).
The aforementioned provisions regarding identity verification are part of the regulations governing so-called covert border searches (for more on the origins of these regulations, see Rachor, in: Lisken/Denninger, Handbuch des Polizeirechts [Handbook of Police Law], 5th ed., para. 355 et seq.; 385 et seq.; Gnüchtel, NVwZ 2013, 980 et seq.). Section 23 para. 1 no. 3 of the Federal Police Act (BPoIG) is characterized, like other regulations in this area, in particular by the fact that the elements of the provision do not make police intervention – in this case, identity verification – dependent on the existence of a concrete danger in the sense of police law (cf. W.-R. Schenke, ibid., § 23 BPoIG para. 12; Drewes/Malmberg/Walter, BPoIG, 4th ed., § 23 para. 14). According to the wording of this provision, the sole basis for establishing identity is the fact that a person is present at a specific location – in the border area as defined in the aforementioned regulations. The wording of the provision does not require any indication that the person being checked poses a threat to public safety or has committed a crime (hence the term "unrelated to cause, suspicion, or event," cf. Rachor, loc. cit., para. 357).
b) Section 23 paragraph 1 number 3 of the Federal Police Act (BPolG) was not a suitable legal basis for establishing the plaintiff's identity in November 2013. Even taking into account the supplementary administrative regulations issued by the defendant, it was incompatible with Union law (-aa-) and therefore inapplicable (-cc-).
(aa) Pursuant to Article 67(2) TFEU, the Union ensures, inter alia, that persons are not subject to checks at internal borders. Against this background, Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (OJ L 105, 13.04.2006, p. 1 – Schengen Borders Code), which was still applicable in November 2013, was adopted – and was still applicable in November 2013.<im Folgenden: SGK> Article 2, points 9 to 11, defines various terms in this context. According to this, "border controls" are measures carried out at a border, in accordance with and for the purposes of this Regulation, irrespective of any other reason, solely on account of an intended or already completed border crossing, and which consist of border crossing checks and border surveillance. "Border crossing checks" are the checks carried out at border crossing points to determine whether the persons concerned are permitted to enter or leave the territory of the Member States with their means of transport and the items they are carrying. "Border surveillance" means the monitoring of the borders between border crossing points and the monitoring of border crossing points outside of the established operating hours to prevent persons from circumventing border crossing controls.
Building on these definitions, Article 20 of the Schengen Borders Code stipulates that internal borders may be crossed at any point without identity checks, regardless of the nationality of the persons concerned. However, according to Article 21 of the Schengen Borders Code, the abolition of border controls at internal borders does not affect:
“(a) the exercise of police powers by the competent authorities of the Member States in accordance with national law, provided that the exercise of such powers does not have the same effect as border checks; this also applies in border areas. For the purposes of the first sentence, the exercise of police powers may not, in particular, be equated with the carrying out of border checks if the police measures
i) are not aimed at border controls;
ii) are based on general police information and experience regarding potential threats to public safety and are aimed in particular at combating cross-border crime;
iii) are designed and carried out in a manner that is clearly distinct from systematic identity checks at external borders;
iv) are carried out on the basis of random sampling;
(…)
c) the possibility granted to Member States to provide in their legislation for the obligation to possess or carry documents and certificates; (…)..“
The ECJ has addressed the interpretation of these provisions and the question of whether they conflict with national regulations that allow suspicionless checks in border areas in three rulings concerning French law, which it found to be incompatible with EU law (Judgment of 22 June 2010 – C-188/10 – Sig. 2010, 1-5667).<Melki und Abdeli> ), to the Dutch law – which was approved as being in conformity with EU law (Judgment of 19 July 2012 – C-278/12 – juris<Adil> ) and most recently commented on German law, in particular on Section 23 Paragraph 1 No. 3 of the Federal Police Act (Judgment of 21 June 2017 – C-9/16 – EUGRZ 2017, 360; see also the referral order by the Kehl Local Court, Decision of 21 December 2015 – 3 Ds Js 7262/14 – juris).
Member States are therefore obliged to ensure compliance with Union law, and in particular with Articles 20 and 21 of the Schengen Borders Code, by establishing and maintaining a “legal framework” that guarantees that the practical exercise of the power to carry out identity checks cannot have the same effect as border crossing controls (see ECJ, Judgment of 21 June 2017, loc. cit., para. 37; Judgment of 19 July 2012, loc. cit., para. 68). In particular, where there is “indication” that identity checks have the same effect as border crossing controls, they must ensure the conformity of identity checks with Article 21(a) of the Schengen Borders Code by means of “specifications and limitations” that limit the practical exercise of the police powers vested in the Member States in such a way as to avoid such an equivalent effect (see ECJ, Judgment of 21 June 2017, loc. cit., para. 38; Judgment of 19 July 2012, loc. cit., para. 70 with further references). A national regulation that grants police authorities the power to carry out identity checks, which are limited, firstly, to the area at the border of the Member State with other Member States and, secondly, are independent of the conduct of the person being checked and the existence of special circumstances giving rise to a risk of a threat to public order, must in particular guide the discretion that these authorities have in the practical application of said power (see ECJ, Judgment of 21 June 2017, loc. cit., para. 39; Judgment of 22 June 2010, loc. cit., para. 74). The more numerous the indications of a possible equivalent effect within the meaning of Article 21(a) of the Schengen Borders Code (SBC), arising from the objective pursued by controls in a border area, their territorial scope, and the existence of different legal bases for these controls and controls in the rest of the territory of the Member State concerned, the stricter the specifications and limitations must be and must be observed in relation to the exercise of the police powers vested in them by the Member States in a border area, in order not to jeopardize the achievement of the objective of abolishing controls at internal borders (see ECJ, Judgment of 21 June 2017, loc. cit., para. 40; Judgment of 19 July 2012, loc. cit., para. 75). Finally, the required framework must be “sufficiently precise and detailed” so that both the necessity of the controls and the specific control measures permitted can themselves be subject to scrutiny (ECJ, Judgment of 21 June 2017, loc. cit., para. 40; Judgment of 19 July 2012, loc. cit., para. 76).
bb) Section 23 paragraph 1 no. 3 of the Federal Police Act (BPolG) does not meet these requirements, even in conjunction with the defendant's administrative regulations applicable in November 2013.
The checks provided for in Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPolG) do not take place "at a border" or "at a border crossing," but rather within German territory. They are therefore neither prohibited "border controls" nor "border crossing controls" within the meaning of the aforementioned legal definitions (cf. ECJ, Judgment of 21 June 2017, loc. cit., paras. 42 et seq.). However, there are several "indications" within the meaning of the ECJ's case law that suggest that they have "the same effect as border crossing controls" within the meaning of Article 21 of the Schengen Borders Code. Such indications arise, firstly, from the fact that special rules relating to the border area apply to the controls with regard to their territorial scope (see ECJ, Judgment of 21 June 2017, loc. cit., para. 53; also Judgment of 22 June 2010, loc. cit., para. 72). Secondly, the same effect is indicated by the fact that, according to the wording of the provision, the controls are permitted irrespective of the conduct of the person concerned and of circumstances that give rise to a risk of a disturbance of public order (see ECJ, Judgment of 21 June 2017, loc. cit., paras. 40, 55). The defendant must therefore ensure, by creating and maintaining a “legal framework” with sufficiently precise and detailed specifications or limitations for controlling the intensity, frequency and selectivity of the checks, that the practical exercise of the power to carry out identity checks granted by Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPolG) cannot have the same effect as border crossing controls (cf. ECJ, Judgment of 21 June 2017, loc. cit., paragraphs 57 et seq., 59, 63 on Section 23 Paragraph 1 No. 3 BPolG).
Such a restrictive “legal framework” was lacking in November 2013. Neither Section 23 BPoIG itself (1) nor the other legal provisions that were applicable in November 2013 (2) provided such a framework.
(1) Section 23(1)(3) of the Federal Police Act (BPoIG) itself contains, in particular with regard to the intensity and frequency of the checks possible on this legal basis, neither specifications nor limitations of the power granted by it, which are intended to prevent the application and practical exercise of this power by the competent authorities from leading to checks which have the same effect as border crossing checks within the meaning of Article 21(a) of Regulation No 562/2006. The provision itself therefore does not provide the legal framework required by EU law, as the ECJ has already ruled in this respect (cf. regarding Section 23 Paragraph 1 No. 3 BPoIG ECJ, Judgment of 21 June 2017, loc. cit., para. 57, there referring to the corresponding considerations in the Judgment of 22 June 2010, loc. cit., para. 73; similarly – partly already previously – Groh, NVwZ 2016, 1678; Kugelmann, Polizei- und Ordnungsrecht, 2nd ed., Chapter 7, para. 90; Trennt, DÖV 2012, 216 <221 ff.>; Albrecht/Halder, jurisPRITR 4/2016 Note 6). The fact highlighted by the defendant that the legislative materials contain indications that the federal legislature may not have intended to introduce "comprehensive" controls in the border area (cf. regarding Section 22 Paragraph 1a BGSG aF BT-Drs. 13/11159, p. 6; Gnüchtel, ibid., p. 981) does not change this.
(2) The Court of Justice of the European Union (CJEU) did not further examine, in its preliminary ruling procedure C-9/16 concerning Section 23(1)(3) of the Federal Police Act (BPoIG), whether German national law contains a restrictive legal framework in the aforementioned sense outside of this provision, stating that this examination is a matter for the national courts (see CJEU, Judgment of 21 June 2017, loc. cit., Headnote 1 and paragraphs 60 et seq., 63). This examination reveals that, at least at the relevant time – November 2013 – German national law did not provide a “legal framework” sufficient to meet the aforementioned requirements for excluding identity checks with the same effect as border crossing controls (similarly, Groh, loc. cit., p. 1678; Kugelmann, loc. cit., Chapter 7, paragraph 90; Trennt, loc. cit., pp. 222 et seq.; Albrecht/Halder, loc. cit., note 6).
(a) A “legal framework” that meets the requirements of the CJEU did not arise from Section 15 of the Federal Police Act (BPoIG), which was cited by the defendant in the preliminary ruling procedure C-9/16. This provision, in the general part of Section 2 (“Powers”) of the Federal Police Act, establishes the principle of proportionality for measures taken by the Federal Police. This principle protects the addressee of a measure from disproportionate interference. However, the principle of proportionality relates to police action in each specific individual case and is not suitable for preventing police practice from generally acquiring the effect of border crossing controls when applying Section 23(1)(3) BPoIG. This is because the principle of proportionality does not relate the individual measure to other measures and thus does not achieve effective control over the question of how often suspicionless identity checks are carried out in the border area. In particular, it cannot prevent “cumulative effects” (as correctly noted by Michl, DÖV 2018, 50 <57>). Section 15 of the Federal Police Act (BPoIG) does not itself provide a legal framework for controlling the “frequency and selectivity” (cf. ECJ, Judgment of 21 June 2017, loc. cit., paras. 57, 59) of random checks in border areas.
(b) A “legal framework” that complies with the requirements of the ECJ did not result in November 2013 from the internal service regulations on Section 23(1)(3) BPoIG cited by the defendant as an addition.
The defendant refers in this respect to "BRAS 120", Volume I, Section II, with its provisions on the performance of border police duties ("Best Grepo") and the version applicable in November 2013, dated March 1, 2008, which it considers to be administrative regulations guiding discretion. However, "BRAS 120" in the version of March 1, 2008, was neither in its form (-aa-) nor in its content (-bb-) suitable to guarantee the sufficiently precise and detailed legal framework required under EU law for controlling the intensity, frequency, and selectivity of the checks permitted by Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG).
(aa) In the present proceedings, it is not necessary to decide whether the “legal framework” required under EU law must always be established by provisions of external law (statutes in the formal sense, statutory instruments) or whether, in principle, administrative regulations as internal law can also be considered (cf., on the state of the opinion, on the one hand – dissenting – Trennt, loc. cit., pp. 222 et seq.; Groh, NVwZ 2016, 1678 <1682 et seq.>, idem, NVwZ 2017, 1608 <1609 et seq.>, and on the other hand – affirmative – Graf Vitzthum, ELR 2010, 236 <240 et seq.>; Kempfler, BayVBI. 2012, 9 <11>; in this respect also tendentially Michl, loc. cit., pp. 57 et seq.). In any case, it is necessary that the specific internal directive in question meets the minimum requirements for the existence of a legal regulation. This is because EU law requires a "national regulation" (see ECJ, Judgment of 22 June 2010, loc. cit., pp. 74 et seq., and the language version of the then procedural language: "législation nationale") to govern suspicionless border police powers. Such a regulation must serve the requirements of legal certainty ("sécurité juridique," see ECJ, Judgment of 22 June 2010, loc. cit., para. 75), be sufficiently specific, and enable effective legal protection ("control of the control," see ECJ, Judgment of 21 June 2017, loc. cit., para. 40; Judgment of 19 July 2012, loc. cit., para. 76). Therefore, only those internal administrative regulations that are at least published and thus accessible and foreseeable for those subject to the norm qualify as a "legal framework" (cf. Michl, loc. cit., p. 57; generally on the requirements for the qualification of a regulation as "law" or "loi" ECtHR, Judgment of 24 April 1990 – 11105/84 –).<Huvig ./. Frankreich> (See also "accessibility" and "foreseeability"; see also ECJ, Judgment of 15 March 2017 – C-528/15 – NVwZ 2017, 777). Internal service regulations that are not published, however, generally do not meet the minimum requirements for a "legal framework." If they are not accessible by other means either, the application of the law is unpredictable for those subject to the regulations. Moreover, they would be forced to seek legal recourse "blindly," which is incompatible with the requirement of effective legal protection (cf. regarding the national requirement of effective legal protection under Article 19 Paragraph 4 of the Basic Law, Federal Constitutional Court, Decision of 9 July 2007 – 2 BvR 206/07 – NVwZ 2007, 1178). The fact that German national law does not impose a general obligation to make administrative regulations publicly available (cf. Federal Administrative Court, Judgment of April 8, 1997 – 3 C 6.95 – BVerwGE 104, 220) does not lead to a different conclusion. This is because the sole standard of review in the present context is EU law, which requires a "legal framework" that meets the aforementioned minimum requirements.
Measured against this standard, the “BRAS 120” in the version of 01.03.2008 are already excluded as a “legal framework” because they were classified by the defendant as “classified – For official use only” (VS NfD). This means that the defendant classifies the information in the "BRAS 120" as facts and findings requiring confidentiality (see Section 4 Paragraph 1 of the Security Clearance Act), which may only be accessed by persons who, due to the nature of their duties, must be aware of. These persons are bound by confidentiality and are generally prohibited from disclosing the information to non-public bodies (see Section 4 Paragraphs 1a, 3, and 4 of the Security Clearance Act). The defendant has implemented these restrictions in practice. The "BRAS 120" were not published in 2013 – and remain so to this day. In the present case, the defendant initially failed to inform the plaintiff of their existence, did not even address them in the initial statement of defense, and only submitted excerpts marked "NfD" (For Official Use Only) during the appeal proceedings. Even in 2017, the Federal Ministry of the Interior (BMI) rejected extrajudicial requests to make the text of "BRAS 120" available for legal research purposes (see Michl, ibid., p. 57, where he also refers to the supplementary decree issued by the BMI on the application of Section 23 Paragraph 1 No. 3 BPoIG of March 7, 2016, GMBI. 2016, p. 203, which was drafted and published under the impression of infringement proceedings initiated by the EU Commission – but did not yet exist in 2013).
(bb) Regardless, the “BRAS 120” were also not suitable in terms of their content to guarantee the sufficiently precise and detailed legal framework required under Union law for controlling the intensity, frequency and selectivity of the checks made possible by Section 23(1)(3) of the Federal Police Act.
The “BRAS 120” in the version applicable in 2013, for details of which reference is made to Annex B 1 (pp. 955-971 of the VGH file), contained in the section “Best Grepo” under the heading “The deployment of the Federal Police in the internal border area” the following information (emphasis in the original):
"1. Police control of cross-border traffic pursuant to Section 2 Paragraph 2 No. 2 of the Federal Police Act (BPoIG
): After the entry into force [of the Schengen Borders Code], the Federal Police may no longer conduct border controls at the common borders of the Schengen Contracting Parties (internal border) without suspicion or specific incident, pursuant to Article 20 of the Schengen Borders Code. Every person – regardless of their nationality – may cross the internal border at any point unhindered and without formalities. Section 2 Paragraph 2 No. 2 of the Federal Police Act (BPoIG) is superseded by the provisions of the Schengen Borders Code. This also applies to identity checks in connection with border crossings if these are carried out within the framework of police controls of cross-border traffic pursuant to Section 2 Paragraph 2 No. 3 of the Federal Police Act (BPoIG) at a distance from the border line in the border area (30 kilometers). Such substitute border controls are likewise not in accordance with the provisions of the Schengen Borders Code and are therefore inadmissible." (…)
2. Police surveillance of the border (pursuant to Section 2, Paragraph 2, No. 1 of the Federal Police Act (BPoIG)):
Police surveillance of the border is a general border police task of preventing danger.
(...) However, identity checks carried out as part of police surveillance of internal borders, which are conducted solely on the basis of a previous border crossing and without any other reason, are not in accordance with the Schengen rules. Such checks would also constitute a form of suspicion- and event-independent control, which, as substitute border controls, violates Article 20 of the Schengen Borders Code.
3. Actions of the Federal Police in the Internal Border Area for the Prevention of Specific Dangers and for Law Enforcement.
Preventive measures (§ 2 para. 2 no. 3 BPoIG) and law enforcement activities or measures (§ 12 BPoIG) of the Federal Police in the internal border area (this applies at the land border as well as in domestic air traffic) in cases of concrete suspicion of danger or in the case of law enforcement do not contradict Article 20 of the Schengen Borders Code. Rather, they are applications of Article 21 of the Schengen Borders Code.
– According to § 2 para. 2 no. 3 BPoIG, the Federal Police are responsible for preventing dangers within their area of responsibility.
This includes, among other things, the illegal import of narcotics, since the resulting possibility of their illegal distribution within Germany poses a significant danger to the population. This is also evident from the legislator's assessment of drug offenders in Sections 53 No. 2 and 54 No. 3 of the Residence Act (AufenthG), insofar as a special deportation regulation exists for them precisely "due to particular dangerousness." Therefore, the illegal import of narcotics constitutes both a punishable violation of the prohibition against bringing an object into the country within the meaning of Section 12 Paragraph 1 No. 4 of the Federal Police Act (BPoIG) and a danger within the meaning of Section 2 Paragraph 2 No. 3 of the BPoIG. (...)
4. Measures by the Federal Police to combat illegal immigration in the internal border area up to a depth of 30 km in connection with the performance of duties pursuant to Section 2 Paragraph 2 No. 1 or Section 2 Paragraph 2 No. 3 of the Federal Police Act (BPoIG).
The elimination of border controls at the common borders of the Schengen Contracting States, independent of suspicion and specific incidents, prohibits controls carried out solely on the basis of or in connection with a crossing of the internal border, as well as related formalities. The exercise of general police powers by the competent authorities remains unaffected. Therefore, even after the Schengen Borders Code came into force, the Federal Police retains – albeit significantly reduced – authority to combat illegal entry and human smuggling at the internal borders. It may do so on the basis of Section 2 Paragraph 2 No. 1 and Section 2 Paragraph 2 No. 3. Pursuant to Section 23 Paragraph 1 Number 1 Letter c of the Federal Police Act (BPoIG), checks may be carried out at internal borders and within a 30 km border zone in individual or exceptional cases if sufficient indications of illegal entry or human smuggling .
Indications of such suspicion exist if – with regard to a relevant section of the internal border –
information about actual or imminent illegal entry or human smuggling)
and
the person to be checked in the individual case may, based on their outward appearance
or , other suspicious information
, or may have assisted others in illegal entry.
If these conditions are met, a border connection pursuant to Section 23 Paragraph 1 Number 1 Letter c of the Federal Police Act (BPoIG) exists.
The checks are carried out in such a way that persons who could fall into the aforementioned categories may be stopped and checked with regard to their identity and their immigration status. (...)
These explanations from the “BRAS 120” did not guarantee sufficient control under Union law of the “intensity, frequency and selectivity of the controls made possible by Section 23 Paragraph 1 No. 3 BPoIG”.
As demonstrated, the legal framework for the "specification and limitation" of border-related suspicionless checks must be "sufficiently precise and detailed" so that both the necessity of the checks and the specific control measures permitted can themselves be subject to scrutiny (ECJ, Judgment of 21 June 2017, loc. cit., para. 40; Judgment of 19 July 2012, loc. cit., para. 76). This is already lacking here. The explanations quoted from "BRAS 120" are formulated in a way that does not clearly indicate their precise significance for the application of Section 23 Paragraph 1 Number 3 of the Federal Police Act (BPoIG). Section 23 Paragraph 1 Number 3 BPoIG itself is not mentioned in the quoted excerpts from "BRAS 120." The only provision from Section 23 BPoIG mentioned there is "Section 23 Paragraph 1 Number 1 Letter c BPoIG." Such a provision no longer existed in November 2013. The intended reference was likely to Section 23 Paragraph 1 Number 1 Letter c BPoIG in the version of October 19, 1994 (hereinafter: BPoIG 1994), which, however, had already expired on August 31, 1998. However, an administrative regulation that refers to repealed law is not "sufficiently precise" and is also not suitable in substance to bring about effective control of police behavior.
The aforementioned deficiency cannot be dismissed as a minor drafting error. Section 23 Paragraph 1 Number 1 Letter c of the Federal Police Act of 1994 (BPoIG 1994) permitted identity checks "to prevent or stop unauthorized entry into the federal territory in the border area up to a depth of thirty kilometers." In contrast, Section 23 Paragraph 1 Number 3 of the BPoIG, in the version in force since July 1, 2005, and therefore also applicable in November 2013, permits identity checks "in the border area up to a depth of thirty kilometers to prevent or stop unauthorized entry into the federal territory or to prevent criminal offenses within the meaning of Section 12 Paragraph 1 Numbers 1 to 4 (Federal Police Act)." The scope of the new version is thus broader than that of the old version (for more on the legislative history of this amendment, see Gnüchtel, op. cit., pp. 980 et seq.). The "BRAS 120" guidelines, in their 2013 version, did not incorporate this legislative change. Therefore, it is not sufficiently clear what specific requirements the issuing authority of "BRAS 120" intended to establish for each variant of the offense under Section 23 Paragraph 1 Number 3 of the Federal Police Act (BPoIG). In any case, a "legal framework" for the second variant of the offense, added in 2005 (establishing identity "for the prevention of criminal offenses within the meaning of Section 12 Paragraph 1 Numbers 1 to 4 of the Federal Police Act (BPolG)") is entirely absent from "BRAS 120.".
This regulatory deficit cannot be remedied by the defendant's proposed "supplementary interpretation" of "BRAS 120." This is precluded by the fact that no standards have been established or are otherwise sufficiently clear upon which such an interpretation of "BRAS 120" could be based. Furthermore, a virtually "unwritten administrative regulation," which each individual officer could only deduce through "continuous interpretation," would not meet the requirements of a "sufficiently precise" legal framework suitable for effectively controlling police conduct.
Furthermore, the “BRAS 120” do not meet the requirements of EU law in substance because EU law requires a legal framework that, by its very nature, guarantees control over the “intensity, frequency, and selectivity” of checks (see ECJ, Judgment of 21 June 2017, loc. cit., para. 59). This requirement is also lacking. The “BRAS 120” contain concrete provisions for carrying out identity checks only in the aforementioned point 4, which—under a charitable interpretation—refers to the “prevention or suppression of unauthorized entry” (Alternative 1 of Section 23(1)(3) of the German Federal Police Act). However, even these provisions relate only to the requirements for a check in individual cases. Since they – unlike, for example, the Dutch regulations approved by the ECJ (see ECJ, Judgment of 19 July 2012, loc. cit., paras. 14 ff., 80) – do not relate to the totality of all checks and do not provide for any restriction, for example, to random sampling, they are not suitable for effectively limiting the overall "frequency" of checks in the border area (similarly, Michl, loc. cit., p. 58, regarding the decree of the Federal Ministry of the Interior of 7 March 2016). As shown, the second alternative of Section 23 Paragraph 1 No. 3 of the Federal Police Act ("prevention of criminal offenses within the meaning of Section 12 Paragraph 1 Nos. 1 to 4 of the Federal Police Act") lacks any further specifying and limiting provisions.
(c) Finally, in November 2013, a “legal framework” that complied with the requirements of the ECJ did not result from the fact, emphasized by the defendant, that it did not apply Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPolG) across the board in administrative practice – due to the number of officers available – but only for random checks. An administrative practice – which is subject to change at any time anyway – does not constitute a “legal framework” in the aforementioned sense, either in form or content, and would certainly not be suitable for guaranteeing the “specifications and limitations” of border-related suspicionless controls required by Union law – which are themselves subject to control (see Groh, NVwZ 2016, 1678 <1682>; Michl, ibid., pp. 55 et seq.; in this respect, even the voices in the literature that consider administrative regulations but require at least “positive legal provisions”; see Graf Vitzthum, ibid., p. 241; Kempfler, ibid., p. 11).
(cc) Since, after all this, the legal framework required under EU law for specifying and limiting Section 23 Paragraph 1 No. 3 of the Federal Police Act (BPoIG) was lacking in November 2013, this provision was inapplicable at that time (see ECJ, Judgment of 15 July 1964 – 6/64 – Sig. 10, 1251; Federal Constitutional Court, Decision of 6 July 2010 – 2 BvR 2661/06 – NJW 2010, 3422; Federal Administrative Court, Judgment of 7 July 2011 – 10 C 26.10 – BVerwGE 140, 114; on the primacy of application in police law, see also Lindner, JuS 2005, 302 <303>). The identity check carried out against the plaintiff was therefore unlawful due to lack of a legal basis.
2. Regardless, even considering national law – assuming its applicability – the identity check would be materially unlawful. This is because it was carried out improperly, based on "BRAS 120," which, according to the defendant, was intended to serve as an administrative guideline for discretionary decision-making.
Section 23 Paragraph 1 of the Federal Police Act (BPoIG) grants the defendant discretion ("may"). According to the defendant, the "BRAS 120" guidelines are intended to govern this discretion. Number 4 of the aforementioned section of the "BRAS 120," when interpreted favorably, refers, as demonstrated, to the first alternative of Section 23 Paragraph 1 Number 3 of the Federal Police Act (BPolG) (establishing identity to prevent or stop unauthorized entry into the federal territory, referred to in the terminology of Number 4 of the "BRAS 120" as "illegal entry or smuggling"). According to the relevant explanations in the "BRAS 120," an identity check should be carried out if there are indications of such suspicion, which is supposed to be the case if..
"There are concrete indications of illegal entry or smuggling (footnote: For example, information about actual or imminent illegal entry or smuggling.)
and
– the person to be checked in the individual case may have entered illegally based on their outward appearance
– or on other suspicious findings
– or may have provided assistance to others in illegal entry."
These conditions were not met here. While the defendant demonstrated, with its detailed "situation report" (see ibid., pp. 10 et seq. = pp. 163 et seq. of the Administrative Court file), that there were indications of illegal entry using trains within the jurisdiction of the Federal Police Inspectorate Offenburg – in accordance with the first of the two cumulative conditions – the defendant failed to present any comprehensible evidence that the plaintiff – in accordance with the second condition – might have entered the country illegally based on his "outward appearance" or "other suspicious findings," or even assisted others in illegal entry. Such evidence is not otherwise apparent. During the check itself on November 19, 2013, the officers did not mention any such indications to the plaintiff. In its initial statement of defense dated January 22, 2014 (p. 21 of the Administrative Court file) and in its statement of grounds of appeal dated February 11, 2016 (p. 41 of the Higher Administrative Court file), the defendant explained that the plaintiff had been addressed by Police Commissioner H. with the words, "Good evening, the Federal Police from Offenburg, identity check." The plaintiff was wearing headphones and had his eyes closed. Since he did not react, he was addressed again. Only upon this second address did he open his eyes, turn away, and close them again. The defendant argued that the plaintiff's closed eyes and the fact that he was wearing headphones did not provide any evidence of illegal entry. Whether such indications arise from the plaintiff's reaction to the police officers—not reacting, only opening his eyes the second time, and turning away—can remain open, since this reaction was not decisive for the police officers' decision to check the plaintiff. According to the defendant's submissions, they had already exercised their discretion to check the plaintiff based on the criteria of "closed eyes" and "wearing headphones." As the case demonstrates, a reaction like the plaintiff's can also be a mere expression of unwillingness to be checked and does not necessarily indicate illegal entry.
The defendant cannot successfully counter this with her most recent objection, namely that the second of the two cumulative requirements merely necessitates that the person to be checked in the individual case "could" have entered the country illegally based on their outward appearance. While this would exclude, for example, employees of a bakery in a train station from being subject to an identity check, it would, in principle, make any traveler a potential candidate. The Senate cannot accept this interpretation of paragraph 4 of "BRAS 120," cited above, as last offered by the defendant. This interpretation would overstretch the wording of the provision, which requires "suspicion-giving" findings. This interpretation would also run counter to the limitation of checks that "BRAS 120" is intended to achieve, at least in principle. Regardless, the action would be even more justified if the defendant's most recent interpretation of point 4 were applied – in light of what was stated above (under 1.). This broad interpretation, according to which practically every passenger on a train in the border region could be subject to a random check, would mean that "BRAS 120" would certainly not provide a framework that guarantees the control of the intensity, frequency, and selectivity of checks required under EU law. Furthermore, with this broad understanding of the term, "BRAS 120" would also fail to meet the aforementioned requirement of legal certainty under EU law.
The foregoing concerns do not imply that national legislators must necessarily codify the restrictions required by EU law through provisions that make controls dependent on the existence of concrete dangers or other evidence giving rise to suspicion. This approach, pursued in BRAS 120 – albeit with shortcomings – is one possible, but not the only, way to implement the necessary restrictions. Neither EU law nor national law fundamentally precludes the conduct of suspicionless controls. However, if such controls are to be permitted under national law, suitable limitations must be enshrined in the national legal framework in other ways, for example, by sufficiently specific requirements regarding the quantity of (suspicionless) controls (cf. regarding the corresponding "random sampling approach" in Dutch law, ECJ, Judgment of 19 July 2012, loc. cit., paras. 14 et seq.).
II. The data comparison carried out following the identification process was also unlawful.
The only possible legal basis for this measure is Section 34 Paragraph 1 Sentence 2 of the Federal Police Act (BPolG), which the defendant also cites. According to this provision, the Federal Police may, in the course of fulfilling their duties, compare personal data obtained with the wanted persons database (so-called wanted
persons comparison). The person concerned may be detained for the duration of the comparison (Section 34 Paragraph 1 Sentence 3 BPolG). This provision requires that the Federal Police have obtained the personal data to be compared in a lawful manner (Arzt, in: Schenke/Graulich/Ruthig, loc. cit., Section 34, marginal note 7; Drewes/Malmberg/Walter, loc. cit., Section 34, marginal note 12 with further references). This is not the case here for the aforementioned reasons relating to EU and federal law.
C. The decision on costs follows from Section 154 Paragraph 2 of the Administrative Court Procedure Act (VwGO).
D. The appeal on points of law is inadmissible because none of the grounds listed in Section 132 Paragraph 2 of the Code of Administrative Court Procedure (VwGO) are present. The question of whether Section 23 Paragraph 1 Number 3 of the Federal Police Act (BPolG) was incompatible with EU law and therefore inapplicable in November 2013 is not of fundamental importance, since the "BRAS 120" in its then-applicable version are no longer applicable and have been replaced by other internal service regulations. Moreover, the aforementioned question is not decisive for the outcome of the case, as the measure in question was unlawful even under the then-applicable national law for the reasons stated above.
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