Case C35/20

Syyttäjä

v

A

(Request for a preliminary ruling from the Korkein oikeus)

 Judgment of the Court (Fifth Chamber), 6 October 2021

(Reference for a preliminary ruling – Citizenship of the Union – Right of Union citizens to move freely within the territory of the Member States – Article 21 TFEU – Directive 2004/38/EC – Articles 4 and 5 – Obligation to carry an identity card or a passport – Regulation (EC) No 562/2006 (Schengen Borders Code) – Annex VI – Crossing the maritime border of a Member State on board a pleasure boat – Rules on sanctions applicable when travelling between Member States without an identity card or a passport – Rules on daily fines in criminal cases – Calculation of the fine based on the offender’s average monthly income – Proportionality – Severity of the sanction in relation to the offence)

1.        Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Journey to another Member State – National legislation imposing on its nationals, on pain of criminal sanctions, an obligation to carry an identity card or passport – Whether permissible – Condition – Compliance with the principles of proportionality and non-discrimination – Means of transport and route – Irrelevant

(Art. 21 TFEU; Charter of Fundamental Rights, Art. 49(3); European Parliament and Council Regulation No 562/2006, Art. 20; Directive 2004/38, recital 7 and Arts 3(1) and 4(1) and (3))

(see paragraphs 52-55, 57-61, 64, 65, operative part 1)

2.        Border controls, asylum and immigration – Community code on movement across borders – Abolition of internal border controls – Checks within the territory – Possibility for Member States to carry out identity checks within the territory and to provide for the obligation to hold or carry papers and documents – Whether permissible

(European Parliament and Council Directive No 562/2006, Art. 21)

(see paragraph 62)

3.        Citizenship of the Union – Provisions of the Treaty – Right to move and reside freely within the territory of the Member States – Citizen returning to the Member State of nationality arriving from another Member State – National legislation imposing on its nationals an obligation to carry an identity card or passport on pain of criminal sanctions – Possibility of requesting the production of an identity card or passport in the case of a journey made on board a pleasure boat and crossing international waters – Whether permissible – Conditions – Obligation not affecting the right of entry – Compliance with the principles of proportionality and non-discrimination

(Art. 21(1) TFEU; European Parliament and Council Regulation No 562/2006, Annex VI, points 3.2.5 and 3.2.7)

(see paragraphs 70, 73-76, 78, 79, operative part 2)

4.        Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Rules on criminal sanctions applicable to movement between Member States without an identity card or passport – Calculation of the fine on the basis of the offender’s average net monthly income – Fine amounting to 20% of that income – Not permissible – Proportionality – Lack

(Art. 21(1) TFEU; Charter of Fundamental Rights, Art. 49(3); Directive 2004/38, Arts 4 and 36)

(see paragraphs 86-92, operative part 3)


Résumé

A Member State may require its nationals, on pain of sanctions, to carry a valid identity card or passport when travelling to another Member State, irrespective of the means of transport used and the route.

Although EU law does not preclude the imposition of criminal sanctions it does, on the other hand, preclude disproportionate sanctions, such as a fine of 20% of the offender’s average monthly net income.

A, a Finnish national, made a round trip between Finland to Estonia on board a pleasure boat in August 2015. During that journey, he crossed international waters between Finland and Estonia. However, he was not in possession of his valid Finnish passport when he travelled. Consequently, in the course of a border check carried out in Helsinki on his return, A was unable to present that passport or any other travel document, although his identity could be established on the basis of his driving licence.

The Syyttäjä (Public Prosecutor, Finland) prosecuted A for a minor border offence. Under Finnish law, Finnish nationals must, on pain of criminal sanctions, carry a valid identity card or passport when, by whatever means of transport and route, they make a journey to another Member State or enter Finland by arriving from another Member State.

At first instance, it was held that A had committed an offence by crossing the Finnish border without being in possession of a travel document. However, no penalty was imposed on him, since the offence was minor and the amount of the fine that could be imposed on him under the Penal Code provided for in Finnish law, based on his average monthly income, was excessive, the total amount of that fine being EUR 95 250.

Since the appeal brought by the Public Prosecutor against that decision was dismissed, the latter brought an appeal before the Korkein oikeus (Supreme Court, Finland). The referring court then decided to ask the Court about the compatibility with the right of Union citizens to freedom of movement laid down in Article 21 TFEU, (1) of the Finnish legislation at issue in the present case and, in particular, the rules on criminal sanctions in accordance with which the crossing of the national border without a valid identity card or passport punishable by a fine may amount to 20% of the offender’s net monthly income.

Findings of the Court

In its judgment, the Court sets out, first of all, the conditions under which an obligation to carry an identity card or passport may be imposed, on pain of sanctions, including criminal sanction, for travel to a Member State other than that of which the person concerned is a national.

In the first place, the Court observes that the words ‘with a valid identity card or passport’ used in Directive 2004/38, (2) clarifying Article 21 TFEU, mean that the exercise by nationals of a Member State of their right to travel to another Member State is subject to the condition that they carry one of those two valid documents. That formality related to free movement (3) is intended to facilitate the exercise of the right to freedom of movement by ensuring that all persons who enjoy that right are identified as such in the context of a possible check. Consequently, a Member State which requires its nationals to carry one of the documents referred to, when crossing the national border in order to travel to another Member State, contributes to compliance with that formality.

In the second place, as regards the sanctions that may be imposed on a Union citizen who does not comply with that formality, the Court states, referring to the autonomy of the Member States in that regard, that the Member States may provide for sanctions, where necessary of a criminal nature, provided that those principles comply, inter alia, with the principles of proportionality and non-discrimination.

The Court therefore concludes that the right of Union citizens to freedom of movement does not preclude national legislation by which a Member State requires its nationals, on pain of criminal sanctions, to carry a valid identity card or passport when they travel to another Member State, irrespective of the means of transport used and the route. However, the detailed rules for those sanctions must comply with the general principles of EU law, including those of proportionality and non-discrimination.

Moreover, the Court reaches the same conclusion as regards the requirement to carry an identity card or passport when a national of one Member State enters the territory of that Member State arriving from another Member State. It states, however, that although the presentation of an identity card or passport may be requested when the national of a Member State returns to its territory, the requirement to carry such a document cannot affect the right of entry.

Finally, the Court examines the question whether Article 21(1) TFEU and Directive 2004/38, read in the light of the principle of proportionality of the sanction, laid down by the Charter of Fundamental Rights of the European Union, (4) preclude rules on criminal sanctions such as those laid down in Finnish law in connection with the crossing of the national border without a valid identity card or passport.

In that regard, it observes that, while it is open to the Member States to impose a fine in order to penalise a failure to comply with a formal requirement relating to the exercise of a right conferred by EU law, that sanction must be proportionate to the gravity of the infringement. Where, as in the present case, the obligation to be in possession of a valid identity card or passport is disregarded by a beneficiary of the right to freedom of movement who possesses such a document but has merely failed to carry it when travelling, it is a minor offence. Therefore, a heavy financial penalty, such as a fine of 20% of the offender’s average net monthly income, is not proportionate to the seriousness of that offence.


1      Having regard to the provisions on border crossing set out in Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).


2      Article 4(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).


3      Recital 7 of Directive 2004/38.


4      Article 49(3) of the Charter of Fundamental Rights of the European Union.