OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 19 May 2009 1(1)
Joined Cases C‑261/08 and C‑348/08
María Julia Zurita García
v
Delegación del Gobierno en Murcia
and
Aurelio Choque Cabrera
v
Delegación del Gobierno en Murcia
(References for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain))
(Schengen acquis – Regulation (EC) No 562/2006 – Schengen Borders Code – Convention implementing the Schengen Agreement – Right to remain – Expulsion – Substitution of a fine)
I – Introduction
1. The present references for preliminary rulings relate to Community law provisions governing the expulsion of third-country nationals who do not fulfil, or no longer fulfil, the conditions for remaining in a Member State. According to the information provided by the referring court, Spanish law does not mandatorily require the expulsion of such persons, but instead allows for a fine alone to be imposed on them. The referring court has doubts as to whether this legal position is compatible with Community law. It enquires in particular about the interpretation of 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 (2) (the Schengen Borders Code). Article 23 of the Convention implementing the Schengen Agreement (3) (the CISA) (4) is also relevant.
II – Legal context
A – The Schengen Borders Code
2. The legal basis of the Schengen Borders Code is Article 62(1) and (2)(a) EC:
‘The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
1. measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;
2. measures on the crossing of the external borders of the Member States which shall establish:
a) standards and procedures to be followed by Member States in carrying out checks on persons at such borders;
b) …’
3. Pursuant to the first paragraph of Article 40 thereof, the Schengen Borders Code entered into force on 13 October 2006.
4. Article 1 defines the subject-matter of the Borders Code:
‘This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the European Union.
It establishes rules governing border control of persons crossing the external borders of the Member States of the European Union.’
5. Article 5 governs the conditions of entry. Three exceptions to those conditions are set out in Article 5(4), in particular where there are humanitarian grounds (Article 5(4)(c)).
6. Article 11 contains a statutory presumption that the permitted duration of stay has been exceeded in the case where there is no entry stamp, as well as provisions relating to rebuttal of this presumption and possible expulsion if the presumption is not rebutted:
‘Article 11
Presumption as regards fulfilment of conditions of duration of stay
1. If the travel document of a third-country national does not bear an entry stamp, the competent national authorities may presume that the holder does not fulfil, or no longer fulfils, the conditions of duration of stay applicable within the Member State concerned.
2. The presumption referred to in paragraph 1 may be rebutted where the third-country national provides, by any means, credible evidence, …
3. Should the presumption referred to in paragraph 1 not be rebutted, the third-country national may be expelled by the competent authorities from the territory of the Member States concerned.’
7. Article 13(1) provides that a third-country national who does not fulfil all of the entry conditions in the Borders Code is to be refused entry. This is without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.
B – The CISA
8. Article 23 of the CISA also includes provisions on the treatment of aliens who do not fulfil, or who no longer fulfil, the short-stay conditions:
‘1. Aliens who do not fulfil or who no longer fulfil the short-stay conditions applicable within the territory of a Contracting Party shall normally be required to leave the territories of the Contracting Parties immediately.
2. Aliens who hold valid residence permits or provisional residence permits issued by another Contracting Party shall be required to go to the territory of that Contracting Party immediately.
3. Where such aliens have not left voluntarily or where it may be assumed that they will not do so or where their immediate departure is required for reasons of national security or public policy, they must be expelled from the territory of the Contracting Party in which they were apprehended, in accordance with the national law of that Contracting Party. If under that law expulsion is not authorised, the Contracting Party concerned may allow the persons concerned to remain within its territory.
4. Such aliens may be expelled from the territory of that Party to their countries of origin or any other State to which they may be admitted, in particular under the relevant provisions of the readmission agreements concluded by the Contracting Parties.
5. Paragraph 4 shall not preclude the application of national provisions on the right of asylum, the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, paragraph 2 of this Article or Article 33(1) of this Convention.’
9. Pursuant to Council Decision 1999/436/EC of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis, (5) Article 62(3) EC was designated as the legal basis for Article 23 of the CISA.
10. Pursuant to Council Decision 2007/801/EC, (6) since 21 December 2007 the Schengen acquis has also applied to the Member States which acceded to the European Union in 2004, with the exception of Cyprus.
11. Article 23 of the CISA was recently replaced by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. (7) That directive regulates the expulsion and removal of third-country nationals in much greater detail than the previous Community law.
C – Spanish law
12. The referring court sets out the Spanish legal position as follows.
13. Under Article 53(a) of Ley Orgánica (Framework Law) 4/2000, in the version of Ley Orgánica 8/2000, a serious offence is committed if:
‘[The party concerned is] unlawfully present on Spanish territory, on the ground that the person concerned has not obtained an extension of permission to stay or a residence permit, or on the ground that these have expired more than three months previously, and that person has not applied for renewal of that permission to stay or residence permit within the period laid down by law.’
14. Such conduct carries a financial penalty which may be substituted with expulsion under Article 57 of that law:
‘If the offender is a foreign national and behaves in a manner defined by law as very serious, or serious, within the meaning of Article 53(a), (b), (c), (d) or (f) of this Framework Law, it is possible, instead of imposing a fine, to expel that person from Spanish territory, at the conclusion of the corresponding administrative procedure.’
15. However, Article 57(3) of that law provides as follows:
‘Under no circumstances may the penalties of expulsion and a fine be imposed together.’
III – Facts of the cases and references for preliminary rulings
16. Julia Zurita García and Aurelio Choque Cabrera are Bolivian nationals. During checks it was established that they were staying in Spain even though they did not fulfil, or no longer fulfilled, the conditions for remaining there.
17. Ms Zurita García was subjected to a check on 26 September 2006. Subsequently, on 15 November 2006, the Delegado del Gobierno en la Regíon de Murcia (government representative for the region of Murcia) ordered her to be expelled from Spanish territory and prohibited from entering the Schengen area for a period of five years. After Mr Choque Cabrera was subjected to a check on 14 May 2007, on 30 July 2007 the government representative for the region of Murcia issued against him the same decision as had been issued against Ms Zurita García.
18. The actions brought against those decisions were dismissed at first instance. Appeals are at present pending before the Tribunal Superior de Justicia de Murcia (High Court of Justice of Murcia), which is the court of final instance.
19. According to the information provided by the referring court, recent Spanish legislation has defined expulsion as a penalty which may replace a fine. Consequently, it states that a fine is in principle to be imposed upon third-country nationals if they are found to be in contravention of the conditions for entering and remaining in Spain. Under the principle of proportionality, such persons may be expelled only if there are aggravating circumstances.
20. However, the referring court is inclined to the view that the Community legislation on this matter requires that third-country nationals who are present in the European Union without satisfying the conditions authorising them to stay must be required to leave that territory, either by being refused entry or by expulsion. Consequently, in both cases, it has referred the following question to the Court for a preliminary ruling:
‘Should Article 62(1) and (2)(a) of the Treaty establishing the European Community and Articles 5, 11 and 13 of 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) be interpreted as precluding national legislation, and the case-law which interprets it, which permits the substitution of the expulsion of any “third-country national” who does not have documentation authorising him to enter and remain in the territory of the European Union by imposition of a fine?’
21. Mr Choque Cabrera, the Kingdom of Spain, the Italian Republic, the Republic of Austria and the Commission of the European Communities took part in the written procedure. There was no oral procedure. By order of the President of the Third Chamber of 27 March 2009, the two cases were joined for the purposes of judgment.
IV – Legal appraisal
22. The referring court wishes to ascertain whether Articles 5, 11 and 13 of the Schengen Borders Code preclude national legislation which permits the substitution of the expulsion of third-country nationals who do not fulfil, or no longer fulfil, the conditions for remaining by the imposition of a fine.
A – Admissibility and interpretation of the references for preliminary rulings
23. Since the Borders Code was based on Article 62(1) and (2)(a) EC, pursuant to Article 68(1) EC only courts of final instance may request the Court of Justice to give a preliminary ruling in relation to the Borders Code.
24. In the main proceedings, the Tribunal Superior de Murcia is an appellate court. As far as is apparent, there are no further judicial remedies which could affect its decisions in the main proceedings. Accordingly, the referring court is entitled to make the references.
25. However, Spain considers the reference in the Zurita García case to be inadmissible on the ground that it is hypothetical. It submits that the Borders Code does not apply ratione temporis to this case due to the principle of non-retroactivity. Ms Zurita García was in fact checked before the Borders Code became applicable. Since the referring court also has doubts as to the application in time of the Borders Code, it has referred the Choque Cabrera case, which is unaffected by such doubts.
26. It is true that an obviously hypothetical reference is inadmissible. (8) That notwithstanding, I do not consider it necessary either to dismiss the reference in the Zurita García case on the ground that it is inadmissible, or to examine the temporal applicability of the Borders Code in this case.
27. As I will explain in more detail below, in the present cases it is not the Borders Code as a whole, but Article 11 in particular, which is of interest. However, a provision identical to this provision, namely Article 6b of the CISA, had already been in force since 1 January 2005 (9) and was replaced by Article 11 of the Borders Code. It may accordingly be assumed that Article 6b of the CISA was applicable in the Zurita García case before the referring court if Article 11 of the Borders Code was not.
28. Accordingly, in order to provide the referring court with a meaningful reply, the Court should also take into consideration Article 6b of the CISA, even though that provision is not referred to in the question. (10)
29. Italy and the Commission also correctly point out that the reference for a preliminary ruling does not contain any information which would make it possible to establish with certainty whether the Borders Code is actually applicable. Rather, it cannot be ruled out that the general provision in Article 23 of the CISA, discussed by Austria and the Commission, is relevant. Accordingly, the Court should also extend its assessment to this provision.
30. By contrast, Article 62(1) and (2)(a) EC, mentioned in the reference for a preliminary ruling, is not directly relevant to answering the question as those provisions constitute a legal basis. Article 62 EC does not, as such, contain any independent rights and duties of third-country nationals.
31. Construed thus, the references for preliminary rulings seek to ascertain whether Articles 5, 11 and 13 of the Borders Code and/or Articles 6b and 23 of the CISA preclude national legislation which allows the expulsion of third-country nationals who do not fulfil, or who no longer fulfil, the conditions for remaining to be replaced by the imposition of a fine.
B – Reply to the references for preliminary rulings
1. Articles 5 and 13 of the Borders Code
32. In principle, the subject-matter of the Borders Code does not include the treatment of third-country nationals who are already present in the Schengen area in the event that doubt emerges as to their entitlement to stay. This applies in particular to Articles 5 and 13.
33. Article 3 provides that the Borders Code applies to any person crossing internal or external borders. It is concerned above all with the supervision of external borders and with the abolition, in principle, of controls at internal borders.
34. This corresponds with the stated legal bases: Article 62(1) EC facilitates measures with a view to ensuring, in compliance with Article 14 EC, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders. Article 62(2)(a) EC authorises the adoption of measures on the crossing of the external borders of the Member States which establish standards and procedures to be followed by Member States in carrying out checks on persons at such borders.
35. In relation to this, Article 5 of the Borders Code regulates the conditions for the entry of third-country nationals into the Schengen area and Article 13 regulates the refusal of entry in the case where a third-country national does not fulfil all of the conditions.
36. However, the cases before the referring court are different, since, according to the information provided by the referring court, the parties concerned were not refused entry, but are being prosecuted for illegal residence within Spanish territory. Presumably the background is that, up to 1 April 2007, Bolivian nationals were allowed to enter the Schengen area without a visa in order to stay there for a maximum period of three months. (11) Possibly Ms Zurita García and Mr Choque Cabrera exceeded this period.
2. Article 11 of the Borders Code and Article 6b of the CISA
37. However, the fact that the cases before the referring court do not directly concern the crossing of borders does not rule out application to them of the Borders Code. The latter contains provisions which, while connected to the crossing of borders, concern the issue of stay. (12)
38. Article 11 of the Borders Code relates to the crossing of borders in so far as it refers to the entry stamp as being authoritative. Pursuant to Article 10, border guards must, in principle, stamp the travel documents of third-country nationals when they cross external borders. The stamping of the travel document makes it possible to establish, with certainty, the date and place of the crossing of the border. (13) Consequently, it is apparent from the entry stamp whether third-country nationals have exceeded the authorised duration of stay.
39. On that basis, Article 11(1) of the Borders Code establishes the rebuttable presumption that third-country nationals do not fulfil, or no longer fulfil, the conditions of duration of stay if their travel documents do not bear an entry stamp.
40. Article 11(3) of the Borders Code concerning expulsion refers to this presumption. Expulsion is provided for where the presumption that the third-country national has exceeded the authorised duration of stay is not rebutted. It cannot be ruled out that the cases before the referring court are based on this presumption.
41. However, the language versions of Article 11(3) of the Borders Code are not identical. According to the Spanish version, the third-country national is to be expelled. This could be construed as being mandatory. As the Commission submits, the other language versions, by contrast, provide that the third-country national may be expelled. This would not be an obligation, but a mere possibility.
42. The different language versions of a Community provision must be given a uniform interpretation. Accordingly, in the case of divergence between language versions, the provision concerned must, in principle, be interpreted by reference to the purpose and general scheme of the rules of which it forms a part. (14) In the present cases, however, it is not necessary to examine this in detail. A provision which diverges in the language versions must also be interpreted on the basis of the real intention of its author. (15) It is apparent from the legislative history of Article 11(3) of the Borders Code that the Spanish version does not correspond to the real intention of the legislature, but arises from an error in translation.
43. As has already been stated, (16) Article 11 of the Borders Code incorporated the pre-existing Article 6b of the CISA into the Borders Code. The Spanish version of Article 6b(3) of the CISA did not differ from the other language versions with regard to the optional nature of expulsion. (17) According to that Spanish version, Member States may expel the third-country national, but are not obliged to do so.
44. It appears that this older version was overlooked when the Spanish version of the Borders Code was being prepared. This may have been due to the fact that the incorporation of an existing provision is not apparent from the recitals or from the publicly available documents concerning the drafting of the Borders Code. (18)
45. It must therefore be recorded as an interim conclusion that Article 6b(3) of the CISA and the identically worded Article 11(3) of the Borders Code do not impose an obligation to expel third-country nationals on the basis of the presumption of non-compliance with conditions of stay.
3. Article 23 of the CISA
46. However, Austria in particular infers an obligation, from Article 23 of the CISA, to bring an end to the illegal stay of third-country nationals. Under that provision, aliens are required to leave a Schengen State if they do not fulfil, or no longer fulfil, the conditions of stay. If this does not happen voluntarily, or in the event that there is particular urgency, Article 23(3) of the CISA provides that they must be expelled from the territory of the Contracting Party in which they were apprehended, in accordance with the national law of that Contracting Party.
47. If each of the German versions of Article 6b(3) of the CISA and Article 11(3) of the Borders Code respectively and Article 23(3) of the CISA are viewed in isolation, they appear to concern different cases, since, on the one hand, ‘Ausweisung’ is mentioned and, on the other, ‘Abschiebung’. According to the German understanding of these terms, the former is the decision concerning bringing the stay to an end and the latter the enforcement of such a decision.
48. However, it would be a mistake to attribute too great a significance to these differences in terminology. After all, in other language versions the distinction is not so clearly recognisable. The English-language versions use the term ‘to expel’ in both sets of rules, while the Spanish versions use the term ‘expulsar’ and one French version uses the term ‘expulser’, while the other uses the term ‘éloigner’.
49. In addition, both Article 6b(3) of the CISA and Article 11(3) of the Borders Code lack any provisions concerning the enforcement of the expulsion, while in Article 23 of the CISA no express provision is discernible concerning a decision on expulsion which could be enforced by means of removal. It is only Directive 2008/115, adopted in the interim, which distinguishes clearly between a return decision (19) and removal (20) as the enforcement of that decision.
50. Therefore, it must be assumed that Article 6b(3) of the CISA and Article 11(3) of the Borders Code respectively and Article 23(3) of the CISA relate to the objective of the departure of the third-country national, without distinguishing precisely between the administrative decision and its enforcement.
51. Like the refusal of entry under Article 13 of the Borders Code, which was also raised by Austria, Article 23 of the CISA is based on the common interest of the Schengen States in preventing or at least bringing to an end the unlawful presence of third-country nationals within the Schengen area. As there are no longer checks at internal borders, it is to be feared that third-country nationals who are staying illegally in one Member State will move on to other Member States and then stay illegally there. Italy correctly emphasises that Directive 2008/115 proceeds in this same direction.
52. Article 23 of the CISA in principle covers all third-country nationals staying in the Schengen area although they do not fulfil, or no longer fulfil, all of the conditions governing their stay. One may only wonder whether the presumption under Article 6b of the CISA or Article 11 of the Borders Code that the duration of stay has been exceeded is subject to other rules.
53. However, particularly in the light of the legislative history of Article 11 of the Borders Code, especially the drafting of Article 6b of the CISA, the wording does not suggest any grounds for such an interpretation. The Commission also proposed that, where there was a presumption that the duration of stay had been exceeded, the competent authorities might apply Article 23(3) of the CISA. (21) Accordingly, the Member States would have been free to apply Article 23(3). On the other hand, Spain proposed that the Member States should be expressly obliged to apply Article 23(3) of the CISA. (22) Whilst this proposal was not accepted, the version of Article 6b(3) of the CISA which was eventually adopted no longer contains any reference whatsoever to Article 23(3) of the CISA.
54. Consequently, the applicability of Article 23 of the CISA in cases of the presumption under Article 6b of the CISA or Article 11 of the Borders Code must be determined according to the general rules of interpretation. The respective third paragraphs of both of the last-mentioned provisions do not provide for any derogation from Article 23 of the CISA in relation to this, but merely clarify that the presumption that the duration of stay has been exceeded may justify expulsion. (23)
55. However, contrary to Austria’s view, it cannot be inferred from Article 23(3) of the CISA that the Member States are obliged under Community law to proceed with expulsion. On the contrary, the Commission correctly emphasises the qualifications contained in Article 23 of the CISA.
56. First of all, expulsion is not the norm, but an exception. Paragraphs 1 and 2 of Article 23 of the CISA in fact proceed on the basis that the third-country national leaves voluntarily. This is a less stringent measure than expulsion and, according to Spain’s submissions, also corresponds to the national legal position.
57. Most notably, however, Article 23(3) does not include any legal basis for an expulsion, but refers to national law. No particular requirements as to how national law should deal with this are apparent. Instead, the second sentence of Article 23(3) of the CISA expressly permits the Member States to allow the third-country national to stay if their national law does not authorise expulsion. This provision necessarily presupposes that the Member States may make exceptions to expulsion, but does not contain any restriction on Member States’ freedom to define such exceptions. There cannot for that reason be any obligation to expel.
58. Furthermore, the restricted scope of the rules in Article 23 of the CISA points against construing its provisions as mandatory rules on expulsion or removal. The provision merely contains basic principles and minimum standards, which essentially require more detailed definition by national law.
59. This is illustrated in particular by a comparison of Article 23 of the CISA with Directive 2008/115, which has been adopted in the interim. The latter contains very much more detailed provisions concerning the treatment of third-country nationals who are staying in the Schengen area although they do not fulfil, or no longer fulfil, the conditions of stay. Nevertheless, Article 4 of the directive expressly allows the Member States the freedom to apply more favourable provisions.
60. The absence of an obligation to expel cannot be cited as being against the common interest of all Schengen States in bringing to an end the illegal presence of third-country nationals. On the contrary, it may be assumed that the reference to national law in Article 23 of the CISA is based on the high degree of trust and solidarity between the Member States. In other areas too this justifies the mutual recognition of significant decisions (24) and argues against the need for a Community law obligation to bring to an end illegal stays. Rather, it may be assumed that the Member States will adopt the required measures even without such an obligation.
61. Nor is it apparent either that this trust is undeserved by Spain. According to the information provided by the Spanish Government, a fine is not in fact tantamount to toleration of an illegal stay. On the contrary, the third-country national concerned is obliged by statute to leave within 15 days. If this does not happen, a new enforcement procedure is commenced on the ground of continuing stay in the absence of compliance with the corresponding conditions. As a fine has already been imposed, this triggers the expulsion procedure.
62. Article 23(3) of the CISA therefore does not preclude national legislation, such as that in the present cases, which allows the expulsion of a third-country national who is present in the European Union without documentation entitling him to enter and/or remain there to be replaced by the imposition of a fine.
V – Conclusion
63. Accordingly, I propose that the Court should rule as follows:
(1) Article 6b(3) of the Convention implementing the Schengen Agreement and the identically worded Article 11(3) of 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 do not impose an obligation to expel third-country nationals on the basis of the presumption of non-compliance with the conditions governing their stay laid down in Article 6b(1) of the Implementing Convention and Article 11(1) of Regulation No 562/2006.
(2) Article 23(3) of the Convention implementing the Schengen Agreement does not preclude national legislation, such as that in the present cases, which allows the expulsion of a third-country national who is present in the European Union without documentation entitling him to enter and/or remain there to be replaced by the imposition of a fine.