3 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:
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;
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.