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Dutch Border Checks

I love it when I’m proven right. As I explained last February, those cameras the Dutch government put at the borders do not actually violate Schengen law, as long as you carefully deny that they are there to prevent illegal immigration. From EUObserver:

Brussels defends Dutch border control project

TODAY @ 16:59

BRUSSELS - Existing Dutch border mobile surveillance and a new camera system to be launched in August on the Belgian and German borders do not contravene rules governing the EU passport-free area, the European Commission says.

“The legal analysis conducted by the commission led to the conclusion that Dutch mobile surveillance does not contravene the Schengen borders code,” EU home affairs commissioner Cecilia Malmstrom told MEPs in Strasbourg on Wednesday evening (4 July).

The Dutch royal military police [i.e. the Marechaussee] have been conducting mobile surveillance along the border for a number of years. The aim, says the Dutch minister of interior, is to stop crimes like smuggling, human trafficking, identity fraud and money laundering.

(…)

The commission says the Dutch surveillance systems are valid because the police checks do not have border control as an objective.

Malmstrom’s announcement came as a shock for some MEPs, notably Dutch Green MEP Judith Sargentini, who told this website the proposed system is a clear breach of EU border codes.

The problem with the position of GroenLinks is that they seem to be talking about two cases currently pending before the CJEU, Adil and Jaoo, where people were physically stopped, which is clearly a different issue from photographing cars. In those cases, I agree that there is a significant SBC issue. But taking pictures of car license plates for crime prevention purposes seems to be entirely OK to me.

UPDATE: The actual text of what Commissioner Malmström said in the plenary is now available. An excerpt:

Regarding the Dutch mobile surveillance, there have been several recent cases in various Dutch courts, questioning whether it is compatible with the Schengen Borders Code. In addition to the decision that you have highlighted, Dutch courts have referred two similar cases to the Court of Justice of the European Union for a preliminary ruling. The basic question is whether Dutch mobile surveillance contravenes the prohibition of border checks or their equivalent laid down in the Schengen Borders Code.

The Schengen Borders Code specifies that the abolition of border controls does not affect the use of police powers under national law, as long as they do not have an effect equivalent to border checks. This is valid in particular, but not only, if these police checks do not have border control as an objective – they are based on general police information and experience – and if they are carried out in a manner clearly distinct from border checks and on the basis of spot-checks.

In other words, it appears as if everyone is mostly talking about the spot checks. However, the Commissioner’s arguments apply a fortiori to the use of cameras, which do not have border control as an objective and are carried out in a manner very different from traditional border checks.



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