Citizens Crossing EU Borders Without Valid Identity May Face Sanctions

by | Oct 23, 2021

On 6 October 2021 The Court of Justice of the European Union ruled on the possibility of imposing a criminal sanction for not having a valid identity card or passport when travelling interstate within the European Union. An undefined legal issue has arisen – do penalties in the form of fines constitute an infringement of one of the general principles of European Union law as structured by Article 21 of the Treaty on the Functioning of the European Union (TFEU)1?

1 OJ 2004.90.864/2.

In development: Judgment of the Court of Justice of the European Union of 6 October 2021 (case C-35/20).

As a further clarification of the principle of free movement of citizens of the Member States of the European Union, 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 entered into force, stipulating that the exercise of the right of citizens of a Member State to go to another Member State is conditional upon their carrying one of these two valid documents.

This has given rise to a legal issue which requires a position to be taken by the Court of Justice of the European Union, i.e. whether it is possible to apply criminal sanctions for not having an identity card or passport when crossing the borders of the Member States of the European Union. The Court has unequivocally taken the view that the Member States may provide for penalties of a criminal nature if the principles of proportionality and non-discrimination, in particular, are respected. At the same time, the Member State must bear in mind that the penalty must not be too severe. Furthermore, the Court of Justice has made it clear that such a document is also necessary for entry into the home State, but it is not possible to make entry conditional on possession of such a document.

Therefore, it is advisable to have the identity card or passport, even if you are only flying over Poland or another EU Member State.


1 OJ 2004.90.864/2.

In development: Judgment of the Court of Justice of the European Union of 6 October 2021 (case C-35/20).

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