The Court of Justice examines the compatibility with Community law of national legislation governing identity checks on citizens when crossing frontiers
When entering the Netherlands through Rotterdam Airport on 17 December 1993, Mr Wijsenbeek, a Dutch national, refused to present and hand over his passport to the national police officer responsible for border controls.
Mr Wijsenbeek was ordered by the Kantonrechter to pay a fine of HFL 65 or to serve one day's imprisonment for infringement of the relevant Netherlands legislation. This requires Dutch nationals, when entering the Netherlands, to present to officials responsible for border inspections, the travel and identity papers in their possession and to establish, if necessary by any other means, their Dutch nationality.
The Arrondissementsrechtbank, to which Mr Wijsenbeek appealed, made a reference to the Court of Justice asking whether that legislation was compatible with Community law: could national legislation, carrying criminal penalties, require a person, whether or not a citizen of the European Union, to present a passport upon entry into a Member State when that person enters that State by a national airport from another Member State, that is to say by an internal Community frontier?
In its judgment, the Court observes first of all that Mr Wijsenbeek was exercising his right to move freely, which is a right conferred by the Treaty on nationals of the Member States and that he may rely on that right in his State of origin.
In the absence of measures adopted by the Council requiring the Member States to abolish controls of persons at the frontiers and the necessary accompanying measures (on harmonisation of laws governing the crossing of external frontiers, immigration, the grant of visas, asylum and the exchange of information on such matters), the provisions inserted by the Single Act providing for the creation of an internal market by 31 December 1992 did not have the effect of automatically imposing such an obligation at the end of that period.
In its judgment the Court accepts the argument advanced by the Commission: the exercise by Union citizens of the right to move and reside freely in the territory of the Member States presupposes, as long as harmonisation measures have not been adopted, that the person concerned is able to establish that he or she has the nationality of a Member State.
As Community law stood at the time of the events in question, the absence of such harmonisation rules therefore allowed the Member States to carry out identity checks at the internal frontiers of the Community in order to be able to establish whether the person concerned was a national of a Member State, thus a person having the right to move freely within the territory of the Member States, the Member States remaining competent to impose penalties for breach of such an obligation.
The penalties provided for by national legislation must be comparable to those which apply to similar national infringements and must not be so disproportionate as to create an obstacle to free movement. In the Court's view, a term of imprisonment would appear to be disproportionate.
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