Back in spring 2011, when Denmark still had a centre right government supported in parliament by the populist Dansk Folkeparti, the country drew sharp criticism from the European Commission with a plan to reintroduce border controls. The centre right lost the election later in 2011, and the borders plan did not see the light of day.
But that does not mean that checks that are illegal under Schengen do not occur. I was first checked at Padborg on 12th September 2012, and blogged about it. In light of that experience I was better informed when checked on the FR-IT border, transcribed the conversation with the border guard, and made an official complaint to the European Commission about the check (Commission response here). The essence of the Commission reply was that the check was not a border check, but an identity check, and that this was permissible under French law.
So then, to today’s case.
I was in the same night train as in the 12th September case, arriving from Germany at Padborg on Danish territory. Two policemen came through the train, asking for passports from all passengers in the train. Despite it being before 7am, and after a bad night of sleep, I tried to be as coherent as possible when asking the policeman a few questions. Unlike 12th September, this time I had a Danish Sundhedskort.
This is the transcript of the conversation, all conducted originally in English:
Policeman: Hello. Passport.
Jon: Excuse me, we are in Schengen, are we not?
J: Why is there a border control?
P: So it is
J: I’ll give you my Sundhedskort then. That’s the obligation when I am in Denmark. I can show you that and not a passport, can’t I?
P: What? Don’t you have your passport?
J: I have my passport with me, of course. But this is Schengen. So you are not allowed to do a border control.
P: You are very clever. Can I see your passport please?
J: What is your right to demand to see my passport? We are in Schengen.
P: Because it’s a control.
J: What is your right to control me?
J: Would you like an official complaint made to the European Commission?
P: Yeah, you can do that.
J: You need to justify what the control is under Article 21 of the Schengen Borders Code.
P: We are making control about drugs and weapons and I need to see your ID.
J: At least you’re more clever than the French with that answer. Well done.
P: But why are you so…
J: Because Schengen means you are not supposed to control on the border!
P: Not regularly, but some control there is always. I don’t understand you. Everything is OK for you. Why are you so…
J: Because we are supposed to live in a border free Europe. We are not supposed to be controlled at the border.
By this time I handed over my passport, he checked the other passengers, and off he went. He paid no attention whatsoever to any of the bags anyone in the compartment had – including 3 huge suitcases there. Aside from the legal points discussed below, one thing is notable – there was genuine surprise in the officer’s voice that I would insist on this – his words “Everything is OK for you”. No it’s not, and I do not trust your intentions, officer, and there is no reason for you to assume that I do.
Anyway, where does all this leave us, legally?
There are two aspects to this. European law first, then Danish law below.
Is this, as defined by the Schengen Borders Code (Art 21, full text here), a border control? Here the answer is murky, because the behaviour of the officer and his words did not match. He stated the reason was for drugs and weapons control, and stated that the controls is not done ‘regularly’ – his words. I have crossed the border at Padborg and not been checked, so he might be right on that point.
But however two aspects of the policeman’s behaviour – only demanding passports and paying not attention to luggage, and also that the control took place in a stationary train at the border station – would seem that these checks did “have border control as an objective” (Art 21 (a) (i)). So once more I will test this by sending an official complaint to the European Commission.
So anyway, if, as I suspect, the Commission will rule that this was not a border check, but an identity check in the territory of a Member State, where does that leave us?
The important difference between the Danish case and the French case is the national ID obligations. In France (as the Commission’s letter to me explained) the French police has a right to demand ID. The Danish police does not have the same right, or at least it is more complicated.
There is no national ID card system in Denmark. Instead most Danes carry a Sundhedskort (like a UK National Insurance card), and that has the person’s address and CPR number on it (and from a CPR number the state can obtain all kinds of information about a person). Then comes the question whether even that can be demanded, because an identity check at Padborg is legally equivalent to the same being asked in the centre of Copenhagen.
I asked as many Danes as possible on Twitter about this (everyone is thanked below), and there were three schools of thought.
The most minimal interpretation is that not even a Sundhedskort need be shown, or a CPR number stated, but instead when asked a person has to give their name, address and date of birth that the police officer could therefore check. This page (in Danish) explains it, relating to § 750 of the Code of Civil Procedure (Retsplejelovens) – mentioned by a number of the respondents.
Others argued that the normal procedure would be to show a Sundhedskort, and because this showed an address and CPR number, it would be sufficient. But here things start to get messy – I am an EU national living in Denmark, but I am not Danish. This means my Sundhedskort is precisely identical to a Dane’s one, but the Ny i Danmark website states (translated from the Danish in the middle of this page) “An EU / EEA citizen must be able to identify and prove his citizenship if the Danish police authorities ask for it at a personal checks. An EU / EEA national who will travel to Denmark must bring their passport or identity card.” (thanks Jacob C)
The problem is that no Dane can prove they are Danish from a Sundhedskort alone, as it does not state nationality. Neither does a driving license – that shows the issuing country, and place of birth, but that is not citizenship. To know citizenship would require the police officer to check the CPR number. But as the Oulane case in the European Court of Justice shows (thanks Andreas K), Member States are not allowed to impose extra ID burdens on citizens from other EU states. Perhaps Danes just ooze Danishness(?), but in any case I cannot see how, under Danish law, a passport could be demanded from either a Dane or another EU citizen.
A number of other people pointed out that a photo ID would be required. This I do not have for Denmark, as the Sundhedskort does not have a picture on it. I still have a UK driving license with photo – exchanging that for a Danish will cover this situation the next time I am checked.
So then, in conclusion, if this policeman at Padborg was OK under EU law, was he right under Danish law? I rather think he was not…
Further discussion with Twitter user @guan has turned up an additional complication. Article 39 of the udlændingeloven (Aliens Act, literally!), para 4 is translated as follows: “The provisions of paragraphs. 1-3 does not apply to nationals of another Nordic country residing in this country, or who enter from or exit to another Nordic country. Justice may exempt other foreigners for its obligations under paragraph. 1 and 3;” Para 1 states “during his stay in the country and on departure from being in possession of a passport or other document by the Minister of Justice provision can be approved as a travel document.” This would seem to imply that, as a UK citizen, I would have to keep a passport with me all the time, even in Denmark. But because this would treat Swedes differently it’s a discrimination under EU law (see Oulane case above). How could I find a way to test this I wonder?
[Thanks for assistance for the research for this post, in no particular order – @jacobchr @sorenhave @IPA_thanks @AndreasKjeldsen @Emily_Lucky @Leoparddrengen @guan @MaksBitter @KamillaVinther @NatashaLevanti @Nissemus @kimschulz @TobieDK @DijkstraHylke @MrMesserschmidt @anpe @mr_hansson]