On 6 September 2018, Advocate General Yves Bot delivered his opinion in joint cases C-412/2017 & C-474/2017, which concerned the conformity of national legislation imposing an obligation on private carrier companies to perform checks on passengers’ travel documents with certain provisions under the Treaty on the Functioning of the European Union and Schengen Borders Code. The questions arose in the context of a legal procedure initiated by two bus companies, who were issued fines by the German State due to the transfer of third-country nationals that did not possess the necessary travel documents.

First, AG Bot stated that despite this form of border control not taking place in physical proximity to the borders, a criterion the Court’s jurisprudence often applies in such cases, the ratio of the legislation is to essentially check whether the passengers are allowed to enter the country, and deny entry in case of irregularities. Second, the general prohibition for carriers to transfer passengers, who do not possess regular credentials, has indeed a systematic character that amounts to border controls, notwithstanding that the controls are carried out by private actors, in what is often a controversial case of competence and legitimacy.

However, according to the Advocate General’s view, this does not preclude Member States from taking action when issues of public safety arise, including in situations of massive influx of third-country nationals. In this context, the Advocate General examined the possibility of such controls being permissible by virtue of international and EU law regarding the fight against illegal migration. Among other considerations, the AG heavily focused on the crime of facilitation of unauthorised entry, as defined in Directive 2002/90/EC, after Germany’s observations that carriers could be liable under this provision if they don’t perform controls on their passengers’ travel documents. Following a strict interpretation of the criminal definition of facilitation, the AG concluded that any criminal liability of carriers would have to involve an intention by the carriers to participate in the criminal act.