Schengen rules and the Federal Police Act

The Schengen Convention, which entered into force in 1993, has the goal of creating a common area of security and justice by abolishing internal border controls. Article 6 paragraph 2 of the agreement requires border guards respect the principle of equality while carrying out identity checks.

The European Community Code on the rules governing the movement of persons across borders, better known as the Schengen Borders Code, is a regulation which defines when, where and how the external borders of the EU may be crossed. It also defines the conditions under which border controls can be reintroduced between member states of the Schengen area. It allows the police to perform identity checks in order to follow up on crimes. It grants member states the right to introduce, at their own discretion, a general obligation for residents and visitors to produce evidence of identity on demand, as long this obligation is in keeping with the principle of equality.

At the federal level, the Federal Police Act (Bundespolizeigesetz) (German) regulates the functions and legal position of the Federal Police. According to s. 22 and 23, the Federal Police are authorised to perform checks without reason for suspicion in airports, railway stations, trains and near (up to 30 km away from) the frontiers, as a means of impeding illegal entry. In response to a minor interpellation (German) (17/6778) from the Green party in August 2011, the federal government stated that the unequal treatment of people is not consistent with the understanding of police work in a democratic state under the rule of law, thereby declaring opposition towards ethnic profiling in Federal Police investigations. After the verdict of the Administrative Court of Koblenz, the Green party made another minor interpellation (17/10007), in which the federal government qualified its previous statement. It now endorses the Federal Police’s right to call on their experience and their knowledge of current potential dangers whilst exercising their powers. In making this statement, the federal government fall into line with the argument of the judges in Koblenz that identity checks on the basis of external characteristics are permissible.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011