In conclusions handed down on Thursday 6 September (Joined Cases C-412/17 and C-474/17), Advocate General Yves Bot said that the member states cannot oblige bus transport companies to check the travel documents of passengers before crossing a national border within the Schengen Area.
Travel companies Touring Tours und Travel and Sociedad de Transportes offer bus trips to Germany from the Netherlands and Belgium. Having noted that these companies had transported foreign people without the required travel documents to Germany, the German authorities asked the two bus companies to check the travel documents when tickets are checked as passengers get on the bus. The German authorities also asked the bus companies to refuse access to people who do not have the travel documents required.
The bus companies took the case to the German law courts, which in turn asked the European Court of Justice if the authorities of a member state can require bus transport companies to check the travel documents of their passengers before crossing an internal EU border.
In his conclusions, Bot disagrees with the German authorities, saying that the checks in question must be likened to the "border checks" forbidden by the Schengen Borders Code. By setting up such a requirement to check travel documents, the member state could circumvent the ban in principle on internal border checks by re-establishing – in a disguised way – borders where they have, in principle, been removed.
In Bot's view, it is not through setting up an arrangement instituted outside the framework and limits of the Schengen Borders Code, nor through obliging companies to carry out checks that pertain just to police authorities, that illegal immigration must be fought, as EU law includes many rules to manage migration flows better.
Nevertheless, Bot says that in cases where it is proven that bus transport companies are taking advantage of their activities to deliberately promote illegal immigration, the competent national authorities could adopt an effective, proportionate and dissuasive criminal sanction. (Original version in French by Mathieu Bion)