European Law
Probleem 1.1
What is the Schengen Area?
What are the Schengen-rules on border checks for persons entering the Schengen Area?
Is it possible for Schengen Member States to conduct checks within their territory?
What are the rules regarding the reintroduction of border controls/closing the borders within the
Schengen area?
Probleem 1.2
To which rights are EU citizens and their family members entitled with regard to movement and
residence in another Member State? What about TCNs?
Under what conditions can EU citizens and their family members lose their right to residence in
another Member States?
Are TCNs entitled to family reunification under EU law? And what are the conditions?
What is the fundamental status of Union citizenship and how far-reaching is this right?
Probleem 2.1
What are the grounds for being considered as a refugee?
What are the criteria for subsidiary protection?
Probleem 2.2
What are the common rules on the reception (or: living conditions) of refugees and migrants?
What are the common rules for asylum procedures?
Are there EU rules that determine which Member State is responsible regarding applications for
international protection?
Can a transfer under Dublin III Regulation be stopped due to human rights violations?
Probleem 3.1
What is the European Arrest Warrant?
When does the European Arrest Warrant apply?
Can the execution of a European Arrest Warrant be refused?
Probleem 3.2
How are fundamental rights intertwined within the legal framework of the EAW?
Can an EAW be refused for human rights grounds?
Probleem 4.1
What is the EU legal framework on data protection?
When and to whom do the EU-rules on data protection apply?
What are the important principles of data protection?
What are the data protection rights for individuals?
Can personal data be transferred to third-countries?
What are the rules and principles the same for collecting and processing personal data for criminal
justice purposes?
Probleem 4.2
What is Europol?
What is the difference and similarities between Europol and Eurojust? And, how do Europol and
Eurojust cooperate?
What are the consequences of the fact that Eurojust and Europol were established through
intergovernmental cooperation?
What is Frontex?
Probleem 1.1
,Legislation
Schengen Border Code 2016 (Regulation (EU) 2016/399), latest consolidated version
Regulation (EU) 2021/1134 (Article 3 amending Regulation 2016/399)
Case Law
Case C-278/12 PPU Atiqullah Adil
Joined cases C-412/17 and C-474/17 Bundesrepublik Deutschland v. Touring Tours und Travel
GmbH and Sociedad de Transportes SA
Joined Cases C-368/20 and C-369/20 NW v Landespolizeidirektion Steiermark (C-368/20),
Bezirkshauptmannschaft Leibnitz (C-369/20)
Learning goal 1: What is the Schengen Area?
Art. 77 & 79 TFEU - legal basis of Schengen: The EU is given the competence to develop policies
about the absence of internal border controls, external border control, and the gradual introduction
of integrated management system for external borders.
○ Art. 77 TFEU – The absence of any controls.
▪ Right to develop policies, for example:
o Policy on visas
o Prohibition of internal border control
o External border crossings by neighbouring third-country nationals
o Third country nationals’ freedom to travel
○ Art. 79 TFEU – A common immigration policy.
▪ Illegal immigration law
Schengen area
○ 23 member states. Who is not in it? Ireland, Romania, Bulgaria, Cyprus.
▪ Non-union at Schengen area – 4 states: Switzerland, Liechtenstein, Norway, Iceland.
○ The story began in 1985, when five EU states decided to abolish (vernietigen) internal border
controls — the Schengen area was born. A Europe without internal borders brings huge
benefits to the economy, which shows how tangible, popular and successful the Schengen
achievement is and the importance it has for our daily lives and for our societies.
○ Being part of the area without internal border controls means that these countries:
▪ do not carry out border checks at their internal borders (i.e. borders between two
Schengen states);
▪ carry out harmonised controls, based on clearly defined criteria, at their external borders
(i.e. borders between a Schengen state and a non-Schengen state).
○ As a result, both EU citizens and non-EU nationals may freely travel within the Schengen area
and are checked only when crossing the external border.
○ At the external border:
▪ EU nationals generally undergo minimum checks to verify their identities on the basis of
travel documents.
▪ Non-EU nationals must present a valid travel document and a visa, if required, or a
residence permit, as well as documents that justify the purpose of their stay and prove that
they possess sufficient financial resources to support themselves during their stay.
Learning goal 2: What are the Schengen-rules on border checks for persons entering the
Schengen Area?
, Schengen Border Code (SBC)
○ Art. 8 SBC – external borders rules on how border checks should be conducted
(uitgevoerd).
○ Art. 8(1) SBC – checks by border guards
○ Art. 8(2) SBC – EU-citizens
▪ Amendment 15 march 2017 - article 8 paragraph 2
Before: EU citizens had minimal checks, and since 2017: its more thorough (grondig) for
EU citizens as well. In article 8 in the bundle its written that 2a &2b the checks for EU
citizens used to be even less before this. It was changed because of the terrorist attacks.
○ Art. 8(3) SBC – TCN’s
○ Art. 6(1) SBC – Entry conditions TCN’s
○ Art. 14(1) SBC – Refusal of entry
Extra
○ Art. 2 SBC – Definitions
▪ Art. 2(1) SBC – Definition ‘internal borders’
▪ Art. 2(2) SBC – Definition ‘external borders’
▪ Art. 2(5) SBC – Definition ‘persons enjoying the right of free movement under Union
Law.’
▪ Art. 2(6) SBS – Definition ‘third-country national’
○ Art. 3 SBC – The scope of the regulation.
○ Art. 5 SBC – General rules on the crossing of external borders.
○ Art. 7 SBC – General rules on the conduct of border checks (respect for human dignity,
proportionality & prohibition of discrimination.
Learning goal 3: Is it possible for Schengen Member States to conduct checks within their
territory?
Art. 22 SBC – crossing internal borders
○ Article states that no internal border checks shall be conducted, irrespective (ongeacht) of a
person’s nationality.
Art. 23 SBC – checks within the territory
○ Nuances the previous article by listing a couple of actions, who are allowed to be conducted
checks within the territory.
○ (a) – The exercise of police powers by the competent authorities if it does not have an effect
equivalent to border checks. Police checks may be considered as such when:
▪ They do not have border control as an objective.
▪ They are based on general police information and experience regarding possible threats to
public security and aim to combat cross-border crime.
▪ They are devised and executed in a manner clearly distinct from systematic checks on
persons at the external borders.
▪ They are carried out based on spot-checks (steekproeven).
○ (b) – Checks on persons who are travelling by port or airport, if these checks are carried out
on persons travelling withing a Member State as well.
○ (c) – The possibility for a MS (member state) to provide by law for an obligation to hold or
carry papers and document is unaffected.
○ (d) - The possibility of Member states to enforce law for an obligation for third country
nationals to report their presence is unaffected.
,Case C-278/12 PPU Atiqullah Adil
(para. 21, 22, 24, 38, 60, 62, 64, 75-80, 86, 87, 88): Checks within the territory
Issue: Par 21-24: Adil claims that there was an unlawful situation in Netherlands territory, after
having been stopped during a check carried out in the Netherlands in the frontier area with
Germany (in Venlo). But they were in fact not looking for illegals; it were spot-on checks. The
Dutch immigration law permitted spot-checks on persons in border areas in order to combat illegal
residence after crossing of the border.
Legal question: par 38: Is this exercise of police powers in border areas lawful?
Rule: To be lawful, the police check must meet the four conditions laid down in art. 23 SBC.
Application:
○ Par 60: MTV checks can be distinguished from border checks.
○ Par 62: Border checks aim to establish whether a person has the right to enter the territory of
the MS, whereas MTV checks seek to establish the identity, nationality, or residence status of
a person in order to combat illegal residence.
○ Par 64
○ Par 75, 76: The rules regarding this exercise of police powers must be strict and sufficiently
clear.
○ Par 77
○ Par 78: The exercise of police powers was based on general police information and
experience.
○ Par 79: MTV checks are by nature not systematic.
○ Par 80: MTV checks are based on spot-checks.
○ Par 86: ‘MTV…are selective and thus not systematic like border checks, and they are police
measures applied on the basis of spot-checks’.
○ Par 87
Conclusion:
○ Par 88: MTV checks are lawful. 3 belangrijke punten.
▪ When those checks are based on general information and experience regarding the illegal
residence of persons at the places where the checks are to be made.
▪ When they also be carried out to a limited extent in order to obtain such general
information and experience-based data in that regard.
▪ And when the carrying out of those checks is subject to certain limitations concerning
their intensity and frequency.
Joined cases C-412/17 and C-474/17 Bundesrepublik Deutschland v. Touring Tours und Travel GmbH
and Sociedad de Transportes SA
(para. 59, 61, 66, 71)
Issue: A German national measure requiring private coach transporters crossing internal borders
(companies travelling to Germany from the Netherlands and Belgium) to check the documents of
the passengers on board and refuse the access to those not provided with passport or residence
permit is prohibited (verboden) under Article 21(a) of Regulation No 562/2006 (Schengen
Borders Code) as it has an effect equivalent to that of border checks.
Germany said that the documents’ verification cannot be considered equivalent to border checks
for the purpose of article 21(a) of regulation 562/2006 (tegenwoordig art. 23(a) SBC) as it did not
aim to control the crossing of the borders but reinforce the provisions relating to the entry into the
territory, carried out by the staff of a private undertaking, without the use of coercive measures.
The Court rules that it is prohibited.
Difference between Adil case and this case
○ With Adil, it didn't look enough like a border check to be illegal, because it was based on
general information and experience, it was done in a very limited way, and not intense/ very
frequent etc. (die 3 punten bij Adil case par. 88). So it’s not the same as border control (where
you check everybody, all the time. With touring cars, they did stop everybody. And because it
was triggered when they were going to cross the border, that's not the idea of Schengen.
,Learning goal 4: What are the rules regarding the reintroduction of border controls/closing the
borders within the Schengen area?
There are three cases in which reintroduction of border control is allowed:
1. Temporary reintroduction of border controls
○ Foreseeable cases – art. 25, 26, 27 SBC
▪ Example: Olympic games. Or the coronavirus keeps spreading – practice assignment.
▪ Art. 25 SBC – General framework
o Serious threat to public policy or internal security.
o Limited period = 30 days or the foreseeable duration of the serious threat
(maximum extension of 6 months).
o The scope of the duration must not exceed what is strictly necessary.
o Case Landespolizeidirektion Steiermark – total period of six months (para 78, 79).
▪ Art. 26 SBC – criteria
o The reintroduction of border controls is temporary in nature.
o The measure must be likely to adequately remedy the threat.
o The proportionality of the measure in relation to the threat has to be considered.
▪ Art. 27 SBC – procedure
2. Immediate reinstatement of border controls
○ Cases requiring immediate action – art. 28 SBC
▪ Example: terrorist attack.
▪ Art. 28 SBC – immediately (example: terrorist attack)
o Can last 10 days without prior notification.
o The commission and the Member States must be informed of such decisions
immediately.
o It can be prolonged for periods of up to 20 days, the overall period of border
control shall not exceed 2 months.
3. Exceptional circumstances relating to deficiencies at the external border of the Schengen Area
○ Threat outside of Schengen area, exceptional circumstances put the overall functioning of the
Schengen area at risk – art. 29, 30 SBC
▪ Example: migrant crisis in Greece.
o Of het begin van corona, want toen kon je het nog proberen tegen te houden van
external borders, maar toen corona eenmaal in het land is, dan geldt het niet meer.
▪ Art. 29 SBC – external border
o If this is the case, the Council may, based on a proposal from the Commission,
recommend that one or more Member States decide to reintroduce border control
at all or at specific parts of their internal borders. Such a recommendation shall
only be made as a last resort and as a measure to protect the common interests
within the Schengen Area.
▪ Art. 30 SBC – criteria
Joined Cases C-368/20 and C-369/20 NW v Landespolizeidirektion Steiermark (C-368/20),
Bezirkshauptmannschaft Leibnitz (C-369/20)
The Court of Justice added an important clarification to the wider discourse of free movement.
This clarification concerns Article 25 (4) SBC, which provides for a limit to the duration of the
reintroduction of internal border controls.
Par 78, 79: total of 6 months & a fresh only if there is a new serious threat. if they want to
exceed the max. time of 6 months, there has to be a new serious threat.
, Het tijdelijk herinvoeren van grenscontroles aan interne grenzen door een lidstaat wordt
uitgesloten wanneer de duur van deze herinvoering de maximale totale duur van zes maanden
overschrijdt, en er geen nieuwe dreiging bestaat die het opnieuw zou rechtvaardigen.
Jorrit Rijpma's article on COVID-19 and Schengen (2020): alle literatuur als voorbeeld.
○ Celebrates the 35th anniversary of the Schengen Agreement in June 2020.
○ Despite the celebration, the reintroduction of border checks due to COVID-19 indicates that
Schengen should not be taken for granted.
○ Key challenges for the Schengen system include the threat of a second wave, travel
restrictions and quarantine measures, and the lack of progress in reforming EU asylum policy.
European Commission on Temporary Reintroduction of Border Control (Migration and Home
Affairs):
○ Member States have the ability to temporarily reintroduce border controls at internal borders
in the event of serious threats to public security.
○ Reintroduction of border control should be considered an exceptional measure and must be
proportionate.
European Commission on COVID-19: Guidelines for border management measures:
○ Highlights the challenge of protecting public health while ensuring the free movement of
people and goods.
○ Member States may introduce temporary border controls at internal borders if justified for
public health reasons.
European Commission on a phased approach for restoring freedom of movement:
○ Phased approach to restoring freedom of movement, considering epidemiological situations
and economic considerations.
○ Guidelines for gradually lifting travel restrictions and border controls based on the
epidemiological situation.
Council Recommendation (EU) 2020/1475 on a coordinated approach to restriction of free
movement in response to COVID-19 pandemic:
○ Member States should coordinate actions based on principles such as protection of public
health, non-discrimination between Member States, and attention to cross-border regions.
○ Key criteria for restricting free movement include the 14-day cumulative COVID-19 case
notification rate, test positivity rate, and testing rate.
Practice assignment
Issue: The coronavirus keeps spreading and the situation seems more threatening to the public
health every minute. Should the internal borders be (temporarily) reintroduced?
Rule
○ Applicable:
▪ Legal basis = art. 77 and 79 TFEU
▪ Forseeable (art. 25-27 SBC)
○ Non applicable
▪ Immediate action (art. 28 SBC): not applicable. Covid-19 is not an immediate threat
because you can’t compare it with something like a terrorist attack happening right now.
This case is in 2021 and covid has been around since 2019.
▪ Risk (Art. 29 SBC): no, it is not the same as a migrant crisis which is an external threat
coming to the Schengen area.
Application
○ Art. 25 SBC gives possibility of temporary reintroduction of internal borders case law NW
v Landespolizeidirektion Steiermark
1. Serious threat (art. 25(1))
2. Exceptional situation (art. 25(1))
3. Last resort (art. 25(2) & 26 & 27)
4. proportionality (art. 25(1) & 26)
5. temporary in nature (art. 26)
6. Adequately remedy the threat (art. 26)
