(CN) – The European Union’s unique treaty on borders bars Germany from requiring bus drivers to check passports and residence papers of passengers entering German territory, the EU’s highest court ruled Thursday.
The ruling stems from fines threatened in 2014 by the German government on two tour operators whose coaches regularly cross Germany’s borders with Belgium and the Netherlands. Under German law, tour operators who regularly cross the border must check the passports or IDs of travelers before entering Germany in an effort to keep out third-country nationals traveling without the proper papers.
Germany decided the tour operators had transported a large number of passengers who didn’t have travel documents and barred them from carrying such passengers under threat of a recurring fine. The companies sued in a German court, which asked the European Court of Justice to weigh in on whether the requirement to check papers at the border runs contrary to the Schengen Borders Code, a treaty which abolished internal borders across much of the EU.
In its preliminary ruling Thursday, the EU high court found the version of the borders code in force at the time – since altered albeit temporarily during the influx of refugees in 2016 – pre-empts Germany’s requirement to check documents at its borders.
The Luxembourg-based court found that since Germany requires the document checks to be done when the travelers board the bus, it amounts to a border check prohibited by the Schengen treaty. Such checks are the authority of border-control officers and are to be done at external – not internal – EU borders, as Schengen mandates a largely border-free union, the court found.
Originally signed in 1985 by 5 of the 10 member states of what was then the European Economic Community, the Schengen Agreement gradually did away with border checks between states and instituted a common visa policy. The agreement is now a fundamental part of EU law and joining states are required to do away with their borders.
Of the currently 28 EU member states, only the United Kingdom and Ireland do not belong to the Schengen Area thanks to a negotiated opt-out. Non-EU members Norway, Iceland and Switzerland do, however.
Thursday’s ruling by the EU high court does not decide the case, but is legally binding on the German court hearing it.