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.

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9 comments

  1. C

    This may be due to the fact that border controls have been reintroduced at the western Polish/eastern German (Brandenburg) border. See: http://www.thelocal.de/20140313/german-polish-border-checks-to-start-again

  2. Jon

    @Michael – sorry but no, you are not right.

    There are two – somewhat contradictory – components of Schengen. One is that you have to have a document valid to travel with you to cross a border. But, conversely, the circumstances when this can be demanded are very few.

    So yes, I had to have my passport with me. But there was no reason why, in this circumstance, the officer could demand the passport from me because I was crossing a border, because border controls are not allowed.

    We instead then move to the realm of national ID law, and that then depends which side of a border you are on. Here on the Polish side, the Polish law applies, and that says any EU citizen has to show the same ID as they need to cross the border. So the officer could have said “You have to show a passport because that’s the only legally acceptable ID” and he would have been correct. To say, as he did, that I had to show a passport because I am crossing a border, is wrong, because border controls are not allowed, and this falls foul of the Schengen rules, and that’s exactly what O put in my complaint to the Commission.

  3. Michael

    Jon,

    As far as I can see, they were quite within their right to ask a document from you. It’s an offense under Polish law to cross the border without having a valid travel document in your possession, and it is clear that a driving licence is not a valid travel document. Driving licences in Poland are (legally) to prove your right to drive and nothing else.

    I don’t remember the law in question, but it is clear in Poland that you need a valid travel document in order to cross the border. In this sense, they were trying to establish whether or not you were complying with the law rather than conducting a border check.

    Border controls on Polish borders are far more thorough – they will carefully examine your passport, ask you questions and so on. These controls rarely involve more than a cursory look at your passport, which differentiate them from normal border controls.

  4. Leon S

    You are a brave one, Jon. Facing police and/or border control agents in Europe is never a pleasant task. You can never win against them, and they know it. Kudos to you.

  5. Graeme

    Hi Jon,

    A couple of corrections to the Google “translations”…

    Policjant ustala tożsamość legitymowanej osoby should be translated as: The officer determines the identity of the person subjected to the ID control

    innego niebudzącego wątpliwości dokumentu should be translated as: other reliable document

    Graeme

  6. Jon

    Thanks for the clarifications everyone.

    Pawel – whether I am German or British or whatever makes no odds. All EU citizens visiting Poland should be treated the same way. I am a UK citizen but have a German driving license as I am resident in German.

    Pawel / Adrian – as for ID, and ID control – the issue here is what ID control is allowed on Polish territory, and this varies enormously from Member State to Member State. From what you outline Poland has one of the tougher ID requirements (in France or Germany a driving license is OK for example). So the correct answer from the guard in response to my question should have been “you have to show ID in Poland anyway”, not “a driving license is not adequate as you are crossing the border”. Here I think he did not know, or at least did not correctly explain the Polish law.

  7. Pawel

    After a little thought, here’s what I came up with:
    Are you a german citizen Jon? I just wonder thats relevant to this case, because i believe that the german driving license is not given only to german citizens and is not a proof of citizenship. Having clarified that, let’s tontinue ad rem.
    Yes, it is absolutely true that BG didn’t have right to make a border check. But it is also true that aside from confirming the identity, the border guards can additionally check whether a person has a right to stay in Poland ( and if such person didn’t commit any offenses or is pursued by Interpol, lets call it security check). Furthermore BG can conduct border checks, and few other things that are irrelevant to my argumentation.
    While your identity could be confirmed just as you stated in your blog post and according to polish regulations in abovementioned §4 , a right to stay in Poland is given only to EU citizens and those, who have relevant a Schengen visa. And even though your driving license was enough to confirm your identity, it wasn’t sufficient to prove you have right to enter Poland, hence the need for a Passport/visa or the identity card.
    Anyway, thats my opinion on your case.
    Regards
    Pawel Kurzawski

  8. Adrian

    Hello Jon,
    I’m hoping that I’ll be explain the reasons, which caused your surprise.
    Firstly, the officer (I’m assuming that he/she was in plain clothing) that has asked you for the documents should have shown you his/her ID and allow you to copy his/her details, if you’d want to do so. (That’s covered by both the acts that you’ve cited.)
    Secondly, the identity check can be performed in Poland by a host of different organisations, such as the police, the Internal Security Agency, borough/district guards (sort of municipal organisations), the Border Guards, to name a few. Also, you might not realise it but you have been in the border zone (an area that covers all the boroughs/districts directly neighbouring another country and if the distance from the border of such borough/district to the country’s border, it also includes the one after it) and the EIC40 (in Poland) / EC40 (in Germany) doesn’t stop anywhere in Poland after Rzepin, the border guard has assumed that you’ll be crossing the border and the Polish law states that in order to cross it, one needs to have a valid passport (or in the case of going to other EU states an ID card), that’s why he was talking of crossing it and the need for appropriate documents (I’m sorry but I can’t find the appropriate legal act for this).
    Your point about the driving licence: Any driving licence is not accepted as a proof of ID by anyone apart from the situation, where you’re stopped while driving a car but then they’ll ask for an ID card as well (or passport). You’d surprised to know that the driving licence in Poland is not even accepted by most businesses in fact. It’s only used as an additional proof of ID, never on its own. This is caused by the way the way the legal act on the driving licences is written. What I mean here is, that the act does not say that a driving licence is a proof of ID and therefore it cannot be considered as such (the legal basis: the act on the people driving vehicles from 5th Jan 2011 (Dz.U. 2011 nr 30 poz. 151). I wouldn’t attempt to translate the whole thing as it’s 110 pages long. Anyway, the website of the Border Guards states: “Note!Driving licence, school or student ID, certificate of submission of an application for issuance of a passport or identity card, birth certificate are not documents confirming identity.” The link for this is here: http://www.strazgraniczna.pl/wps/portal/tresc?WCM_GLOBAL_CONTEXT=/pl/serwis-sg/niezbednik_podroznego/najczesciej_zadawane_pytania&locale=en

    While I’m not a lawyer nor I support the fact that driving licences are not accepted as a form of ID document in my own country, I hope that some of this made sense to you, Jon.
    Adrian

  9. jklsjgkljagla

    It is interesting how Schengen border checks differ from country to country. Down in the south, you are asked to show identity documents. Up here in the north, you need to show that you do not carry illegal drugs or unreasonably large amounts of alcohol, or that you are not smuggling live animals. As long as you can show that you are not transporting such items, you do not need to show any identification, and during the border checks, you will just walk past customs officials or see some of them walking through a train (sometimes accompanied with a dog), without the need to talk with them.