OPINION OF ADVOCATE GENERAL
CRUZ VILLALÓN
delivered on 6 December 2012 (1)
Case C‑254/11
Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége
v
Oskar Shomodi
(Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary))
(Area of freedom, security and justice — ‘Local border traffic’ at the external land borders of the European Union — Regulation (EC) No 1931/2006 — Article 5 — Border residents — Calculation of the maximum duration of authorised uninterrupted stay — Bilateral Agreement — Maximum duration of uninterrupted stay of three months within a six-month period — Respect for private life — Article 7 of the Charter — Article 8 ECHR — Freedom to cross the border — Legitimate reasons — Prevention and sanction of abuses — Fair balance)
1. The Court is for the first time requested to interpret the provisions of Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention. (2)
2. The local border traffic regime, which derogates from the general rules governing the control of persons at the external land borders of the Member States, seeks, generally, to respond to the situation of populations in border areas, who often perceive the State border lines as an artificial circumstance which adversely affects or, at least, constitutes a practical obstacle to the development of the various aspects of their social life. That observation applies more particularly to populations which were affected by relatively frequent border changes during the last century.
3. The ratio legis of that unusual legislation, which has the specific feature of delegating to the Member States the task of concluding with the third countries concerned bilateral agreements implementing the regime which it establishes, will lead me to invite the Court to declare that a border crossing regime introduced in the context of local border traffic, such as that at issue in the main proceedings, cannot, in the light of the scheme of the regime laid down by Regulation No 1931/2006 and of the requirements stemming inter alia from the Charter of Fundamental Rights of the European Union (3) and the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, (4) find support in the provisions of Article 5 of that regulation, even if that provision is read in conjunction with Article 20 of the Convention implementing the Schengen Agreement, signed in Schengen on 19 June 1990. (5)
I – Legal framework
4. The present case is set in an unusual legal framework. That framework is principally constituted by an act of international law, in this case the local border traffic agreement, signed on 18 September 2007 in Oujgorod between the Hungarian Government and the Cabinet of Ministers of Ukraine, (6) and an act of EU secondary legislation, Regulation No 1931/2006, the former adopted on the ‘authorisation’ of the latter. Only the relevant principal provisions of that bilateral agreement and that regulation are set out below, although they are part of a more general legal framework, constituted inter alia by the Schengen acquis, (7) the Schengen Borders Code (8) and the Visa Code. (9)
A – International law: the bilateral agreement concluded by Hungary
5. Article 1(1) and (5) of the bilateral agreement concluded by Hungary provides:
‘1. Persons who have had permanent residence for at least three years in settlements along the State border listed in Annex I to the present Agreement and who are in possession of the local border traffic permit as defined in Article 2 may enter and stay in the border area of the State of the other Contracting Party without any further permission.
…
5. The permit as defined in Article 2 entitles its holder to multiple entry and to a continuous stay of a maximum of three months within a six-month period in the border area of the State of the other Contracting Party, in particular for social, cultural or family reasons, or substantiated economic reasons that are not to be considered as gainful activity for the purposes of national legislation. Border residents who have entered the State of the other Contracting Party with the permit are not authorised to stay outside of the border area of that State.
…’
B – European Union law: Regulation No 1931/2006
6. Recitals 2 to 4, 9 and 13 in the preamble to Regulation No 1931/2006 provide:
‘2. It is in the interest of the enlarged Community to ensure that the borders with its neighbours are not a barrier to trade, social and cultural interchange or regional cooperation. An efficient system for local border traffic should consequently be developed.
3. The local border traffic regime constitutes a derogation from the general rules governing the border control of persons crossing the external borders of the Member States of the European Union which are set out in [the Schengen Borders Code].
4. The Community should lay down criteria and conditions to be complied with when the crossing of an external land border under the local border traffic regime is being eased for border residents. Such criteria and conditions should ensure a balance between, on the one hand, the easing of border crossing for bona fide border residents having legitimate reasons frequently to cross an external land border and, on the other hand, the need to prevent illegal immigration and potential threats to security posed by criminal activities.
…
9. For the implementation of the local border traffic regime, Member States should be allowed to maintain or conclude, if necessary, bilateral Agreements with neighbouring third countries, provided that such Agreements comply with the rules laid down in this Regulation.
…
13. This Regulation respects the fundamental rights and freedoms and observes the principles recognised in particular by the [Charter].’
7. Article 2(a) and (b) of Regulation No 1931/2006 provides:
‘This Regulation shall not affect the provisions of Community and national law applicable to third-country nationals relating to:
(a) long-term stays;
(b) access to and exercise of economic activity.’
8. Article 5 of Regulation No 1931/2006, entitled ‘Duration of stay in the border area’, provides:
‘The bilateral Agreements referred to in Article 13 shall specify the maximum permissible duration of each uninterrupted stay under the local border traffic regime, which shall not exceed three months.’
9. The conclusion by the Member States of bilateral agreements with neighbouring third countries referred to in Article 5 of Regulation No 1931/2006 is governed by Article 13 of that regulation, which provides:
‘1. For the purposes of implementing the local border traffic regime, Member States shall be authorised to conclude bilateral Agreements with neighbouring third countries in accordance with the rules set out in this Regulation.
Member States may also maintain existing bilateral Agreements with neighbouring third countries on local border traffic. To the extent that such Agreements are incompatible with this Regulation, the Member States concerned shall amend the Agreements in such a way as to eliminate the incompatibilities established.
2. Before concluding or amending any bilateral Agreement on local border traffic with a neighbouring third country, the Member States concerned shall consult the Commission as to the compatibility of the Agreement with this Regulation.
If the Commission considers the Agreement to be incompatible with this Regulation, it shall notify the Member State concerned. The Member State shall take all appropriate steps to amend the Agreement within a reasonable period in such a way as to eliminate the incompatibilities established.
3. Where the Community or the Member State concerned has not concluded a general readmission Agreement with a third country, the bilateral Agreements on local border traffic with that third country shall provide for the readmission of persons found to be abusing the local border traffic regime as established by this Regulation to be facilitated.’
10. Article 14 of Regulation No 1931/2006 provides:
‘In the bilateral Agreements referred to in Article 13, Member States shall ensure that third countries grant persons enjoying the Community right of free movement and third-country nationals lawfully resident in the border area of the Member State concerned treatment at least comparable to that granted to the border residents of the third country concerned.’
11. Furthermore, Article 20 of Regulation No 1931/2006 amended Section 136(3) of the CAAS. Section 136, as amended, provides:
‘1. A Contracting Party which envisages conducting negotiations on border checks with a third State shall inform the other Contracting Parties thereof in good time.
2. No Contracting Party shall conclude with one or more third States agreements simplifying or abolishing border checks without the prior agreement of the other Contracting Parties, subject to the right of the Member States of the European Communities to conclude such agreements jointly.
3. Paragraph 2 shall not apply to bilateral Agreements on local border traffic as referred to in Article 13 of Regulation [No 1931/2006].’
C – Hungarian law
12. Paragraph 40(1) of Law II of 2007 on the Admission and Right of Residence of Third-Country Nationals (2007. évi II. törvény a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról) (10) provides:
‘On the basis of the provisions of [Regulation No 562/2006], the border control authority shall refuse entry to third-country nationals seeking admission for stays of three months’ duration or less and, with due regard for their interests, shall return such persons …’
II – Facts at the origin of the dispute in the main proceedings
13. Mr Shomodi (11) is a Ukrainian national who is in possession of a valid local border traffic permit, issued pursuant to Regulation No 1931/2006, and who, on 2 February 2010, requested entry at the Záhony (Hungary) road border crossing to the Hungarian border area defined in accordance with that regulation.
14. However, the Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége (Border Police Office of Szabolcs-Szatmár-Bereg, County Police of Záhony) (12) refused him entry to Hungary, under the rules on local border traffic, pursuant to Paragraph 40(1) of Law II of 2007. It had established, on the basis of data in the Hungarian border registration system, that the defendant in the main proceedings had stayed in Hungary for 105 days during the period from 3 September 2009 to 2 February 2010, over multiple entries and exits, thus exceeding the 93 days permitted.
15. The Ukrainian Consul at Nyíregyháza (Hungary) and the defendant in the main proceedings appealed against the decision before the Szabolcs-Szatmár-Bereg megyei bíróság (County Court of Szabolcs-Szatmár-Bereg, Hungary), claiming that it infringed Article 1(5) of the bilateral agreement concluded by Hungary.
16. The Szabolcs-Szatmár-Bereg megyei bíróság allowed the appeal, considering that Article 1(5) of the bilateral agreement concluded by Hungary was to be interpreted, in the light of EU law, as entitling the holder of a local border traffic permit to multiple entries into Hungary, and to an uninterrupted stay of no more than three months within a six-month period. It therefore considered that the number of entries was unlimited for those in possession of a local border traffic permit, and the three-month time restriction applied only to uninterrupted stays. It also held that neither the Schengen Borders Code nor the provisions of Law II of 2007 were applicable to local border traffic.
17. The applicant in the main proceedings brought an appeal before the Magyar Köztársaság Legfelsőbb Bírósága against the judgment of the Szabolcs-Szatmár-Bereg megyei bíróság, in which it claims that the interpretation of Article 1(5) of the bilateral agreement concluded by Hungary accepted by the latter court is contrary to Article 20(1) of the CAAS, recital 3 in the preamble to the Schengen Borders Code and Articles 2(a) and 5 of Regulation No 1931/2006. It maintains that the uninterrupted stay to which that provision of the bilateral agreement concluded by Hungary refers is to be interpreted as meaning that the local border traffic permit is valid for a maximum duration of three 31-day months, that is, a total of 93 days within six months of the date of first entry.
III – The questions referred for a preliminary ruling and the procedure before the Court of Justice
18. In those circumstances the Magyar Köztársaság Legfelsőbb Bírósága decided to stay proceedings and to refer the following questions to the Court of justice for a preliminary ruling:
‘1. With particular regard to Article 2(a) and Article 3(3) of Regulation … No 1931/2006 …, is Article 5 of that regulation, which permits an uninterrupted stay not exceeding three months, to be interpreted as meaning that Regulation No 1931/2006 allows, on the basis of bilateral agreements between Member States and third countries as referred to in Article 13 of that regulation, multiple exits and entries and an uninterrupted stay not exceeding three months, with the result that a border resident in possession of a local border traffic permit may, prior to the expiry of the three-month period allowed for the stay, interrupt the uninterrupted stay and, once he has crossed the border again, be entitled anew to an uninterrupted stay of three months?
2. In the event that the answer to Question 1 is yes, can an exit and entry occurring on the same day or on consecutive days be regarded as an interruption of an uninterrupted stay under Article 5 of Regulation No 1931/2006?
3. In the event that the answer to Question 1 is yes, but the answer to Question 2 is no, what time interval or other examination criterion needs to be taken into consideration to establish an interruption of an uninterrupted stay, for the purposes of applying Article 5 of Regulation No 1931/2006?
4. In the event that the answer to Question 1 is no, can Article 5 of Regulation No 1931/2006, which permits an uninterrupted stay not exceeding three months, be interpreted as meaning that the periods of time covered by multiple exits and entries must be counted together and that, in view of Article 20(1) of the Convention implementing the Schengen Agreement …, or any other rules relating to Schengen law, if the total number of days thus calculated exceeds 93 days (three months), the local border traffic permit does not provide entitlement to any further stay within six months of the date of first entry?
5. In the event that the answer to Question 4 is yes, must multiple entries and exits occurring on the same day, or a single entry and exit on the same day, also be taken into account for the purposes of calculating the total number of days and, if so, using what counting method?’
19. Written observations were submitted by the defendant in the main proceedings, Hungary, the Republic of Poland, Romania and the Slovak Republic, and also by the Commission.
20. The applicant in the main proceedings, Hungary, Romania and the Commission also presented oral observations at the hearing held on 14 June 2012.
IV – Analysis
A – Preliminary observations concerning the order in which the questions referred for a preliminary ruling will be examined
21. It should be stated at the outset that, having regard to the facts at issue in the main proceedings and to the legal framework in which the case is set, and in particular to the relevant provisions of the bilateral agreement concluded by Hungary, it is essentially the problem raised by the fourth question referred for a preliminary ruling by the national court which must be given attention.
22. First of all, it is apparent from the file that the defendant in the main proceedings was refused access to Hungary because the sum of the stays he had made exceeded three months during a six-month period. More specifically, the contested decision was taken only on the basis of the total aggregate duration of the stays of the party concerned in Hungary and was based only on the provisions of Article 40(1) of Law II of 2007, referring only to the Schengen Borders Code.
23. The national court’s fourth question concerns, in direct relation to the facts at issue in the main proceedings, the compatibility with Article 5 of Regulation No 1931/2006 of the regime stemming from the bilateral agreement concluded by Hungary. Article 1(5) of that agreement gives authorisation ‘for multiple entry and for a continuous stay of maximum three months’, in accordance with Article 5 of Regulation No 1931/2006, but only, with implicit reference to Article 20 of the CAAS or Article 5 of the Schengen Borders Code, ‘within six months in the border area’ covered by that agreement. Moreover, that same provision permits, in accordance with the situation presented by the national court, the adding together of the durations of the multiple stays made by a person in Hungary for the purpose of calculating the maximum three-month duration of stay during a six-month period.
24. On the other hand, the first three questions from the national court rest on a hypothetical basis. Those questions envisage the situation of a person using his local border traffic permit in order, in some way, lawfully to optimise the time he spends in the territory of a Member State, by staying there uninterruptedly during the three-month maximum period laid down in Article 5 of Regulation No 1931/2006 and then going back over the border, if necessary in the same day, so as to reopen a right to a three-month stay, thus distorting the aim of the local border traffic regime.
25. Finally, the fifth question, which in a way supplements the fourth question by expanding it, concerns the rules for calculating the duration of stays resulting from single or multiple trips of less than 24 hours.
26. A reply in the negative to the fourth question means that it will not be necessary to reply to the fifth question. Moreover, since the first three questions envisage a situation of abuse of law, in that they refer to transborder movements which may camouflage a concealed residency and distort the aim of the local border traffic regime, it is from that point of view that they will be addressed, in the reply to be given to the fourth question.
B – Implementation of Regulation No 1931/2006
1. The bilateral agreements provided for in Article 13 of Regulation No 1931/2006
27. Regulation No 1931/2006 has the original feature of delegating certain aspects of its implementation to the Member States concerned, authorising them to conclude, (13) pursuant to Article 13, bilateral agreements in accordance with the rules of that regulation, required to replace those which existed previously. (14)
28. Article 5 of Regulation No 1931/2006 therefore provides that those bilateral agreements must specify the maximum permissible duration of each uninterrupted stay under that regime, which shall not exceed three months.
29. Therefore, the Member States, within the framework of the obligation thus imposed on them, that is to say, provided that a maximum duration of uninterrupted stay of three months at most is set, and subject, more widely, to observance of EU law, (15) have a real margin of negotiation with the third countries concerned for laying down the rules, particularly temporal rules, governing the exercise of the rights arising under the local border traffic regime.
30. Moreover, that latitude is shown, in so far as it can be judged, (16) by the practice followed by the various Member States and third countries concerned. Some of those agreements may provide for a relatively short maximum duration of stay, (17) without further conditions. Others, following the example of the bilateral agreement concluded by Hungary, set the permissible maximum duration of uninterrupted stay, but over a specific period, as is the case of the agreements concluded by the Republic of Poland with, respectively, the Ukraine (18) and the Republic of Belarus, (19) or the agreement concluded by the Slovak Republic with the Ukraine. (20) The agreement concluded by Romania with the Republic of Moldavia merely lays down a maximum limit of uninterrupted stay of three months in the provision defining local border traffic. (21)
31. It is also important to point out, however, that, under Article 13 of Regulation No 1931/2006, those bilateral agreements are concluded and maintained if ‘authorised’ by the European Union and subject to prior verification by the Commission, before their conclusion or amendment, of their compatibility with the rules of that regulation. Consequently, although it is true that, under the rules laid down by Regulation No 1931/2006, the Member States do actually have latitude in defining by mutual agreement with third countries the specific rules for implementing that regulation, the competent authorities and courts of the Member States must also interpret and apply the provisions adopted in the light of the wording and aims of that regulation and in accordance with all the provisions of EU law.
2. The bilateral agreement concluded by Hungary
32. Article 1(5) of the bilateral agreement concluded by Hungary satisfies the requirements laid down in Article 5 of Regulation No 1931/2006, but in terms which are not unambiguous.
33. That provision stipulates that the local border permit provided for in Article 2 ‘entitles its holder to multiple entry and to a continuous stay of a maximum of three months within a six-month period in the border area’. By so doing, it clearly sets the maximum duration of permissible continuous stay in respect of local border traffic at three months, while limiting those opportunities for continuous stay to ‘within a six-month period’.
34. However, that provision, thus worded, lends itself to diverging interpretations on the part of the Hungarian authorities and courts, as is apparent from the order for reference.
35. According to the first approach, taken by the Szabolcs-Szatmár-Bereg megyei bíróság, the defendant in the main proceedings and the Ukrainian Consul in Hungary, Article 1(5) of the bilateral agreement concluded by Hungary authorises multiple entry and a continuous stay of a maximum of three months within a six-month period.
36. According to the second approach, taken by the competent Hungarian authorities, that provision is to be interpreted and applied in such a way that the maximum three-month duration within a six-month period may be calculated by adding together the duration of any multiple stays made by a person, whatever their respective durations.
37. The bilateral agreement concluded by Hungary is therefore based, in accordance with this second approach, on the notion that Article 5 of Regulation No 1931/2006, read in conjunction with Article 20 of the CAAS or Article 5 of the Schengen Borders Code, establishes a ‘time credit’ regime, each unit of continuous presence being counted for the purpose of calculating the three-month maximum duration within an authorised six-month period. The holders of a local border traffic permit are therefore entitled, in each six-month period, to a total stay of three months, which may be spread freely, including in a concentrated and continuous manner over a single period, on the clear understanding that, in the latter case, any possibility of crossing the border under the local border traffic regime during the following three-month period is precluded. Consequently, a border resident who stays continuously for three months in the border area of a Member State at the very beginning of a six-month period and who returns to his third country at the end of that period can no longer cross the border again during the following three months.
The compatibility of the bilateral agreement concluded by Hungary and of its interpretation with Article 5 of Regulation No 1931/2006
38. Article 1(5) of the bilateral agreement concluded by Hungary ‘expressly’ meets the requirement laid down by Article 5 of Regulation No 1931/2006, by setting the maximum permissible duration of uninterrupted stay at three months. That provision cannot therefore be regarded as incompatible as such with the relevant provisions of Regulation No 1931/2006 and may even be regarded as complying with them quite literally. (22) The problem is that this grammatical interpretation is not enough.
39. The mere acknowledgment that it complies textually with Regulation No 1931/2006 does not support the conclusion that Article 5 of the regulation permits an interpretation according to which the regime thus established by Article 1(5) of the bilateral agreement concluded by Hungary, as interpreted and implemented by the competent Hungarian authorities, is fully compatible with EU law, notwithstanding the provisions of Article 20 of the CAAS and Article 5 of the Schengen Borders Code.
40. It is necessary to examine in particular whether the further requirement of limiting the opportunity for uninterrupted stay to three months ‘within a six-month period’, (23) together with the method of calculating the maximum duration of stay of three months within a six-month period, by adding together the durations of all the multiple stays in the border area, are fully compatible with the wording and aims of Regulation No 1931/2006 and, more generally, with all the provisions of EU law and, in particular, primary legislation.
3. The meaning of Regulation No 1931/2006
a) The scheme of the local border traffic regime
41. The recitals in the preamble to Regulation No 1931/2006 provide some information about the bases and aims of the local border traffic regime which it establishes. (24) They state that that specific legislation was especially adopted in order to prevent the European Union’s borders with its neighbours being ‘a barrier to trade, social and cultural interchange or regional cooperation. (25) Article 3(3) of Regulation No 1931/2006, which defines ‘local border traffic’, also refers to social and cultural reasons but, in addition, to ‘substantiated economic reasons’ or ‘family reasons’. (26)
42. From that point of view, the fundamental aim of the local border traffic regime established by Regulation No 1931/2006 is to ensure a balance between, on the one hand, the need to ease the crossing of the European Union’s external land borders for ‘bona fide border residents having legitimate reasons frequently to cross [them]’ and, on the other hand, ‘the need to prevent illegal immigration and potential threats to security posed by criminal activities’. (27)
43. In very general terms, the introduction of an ‘efficient and user-friendly system for small border traffic’ (28) is thus seen both as an ‘essential part of any regional development policy’ (29) and a necessary element in the effectiveness of the mechanism for controlling external borders put in place by the European Union and also in the suppression of internal borders in the context of the creation of a space of freedom, security and justice. (30)
44. It is therefore in the light of the historical, cultural, economic and social context in which the regime which it establishes is set that the ratio legis of Regulation No 1931/2006 must be identified, its provisions interpreted and its implementation assessed.
45. It may be useful to point out, in that regard, that the region in which the main proceedings have arisen was the scene of turbulent events during the Twentieth Century, marked by numerous border changes. (31)
46. Against that background, Regulation No 1931/2006 introduces the local border traffic permit, (32) defining its main conditions and issuing procedure (33) and also the validity conditions, (34) and sets out the conditions for permit-holders to enter and leave the territory of the Member States, while authorising the Member States to maintain or conclude with neighbouring third countries the bilateral agreements necessary for implementing the regime thus introduced.
47. In that regard, it is important, first of all, to emphasise the fact that neither Article 5 of Regulation No 1931/2006 nor any other provision of that regulation provides that the total duration of the right of stay of persons to whom the local border traffic regime applies must be limited to the maximum duration of uninterrupted stay calculated over a specific six-month period. (35)
48. It must also be pointed out that the local border traffic regime is characterised, essentially, by the limitation, both ratione personae (36) and ratione loci, (37) subject to penalties, (38) of its scope of application, and by its aim, which is to allow the persons to whom it applies to cross an external land border ‘frequently’ (39) and ‘regularly’, (40) provided they have legitimate reasons for doing so.
49. It must be stated, however, that Regulation No 1931/2006 provides only few details of what that frequency and regularity mean. It is therefore for the Court to rule, as necessary, on that point, taking account of the legitimate reasons which may justify benefiting from the local border traffic regime.
50. It must be stated in that regard that, although Article 9(b) of Regulation No 1931/2006 makes the issue of a local border traffic permit conditional on the applicant producing documents proving, as well as his status as a border resident, ‘the existence of legitimate reasons frequently to cross an external land border under the local border traffic regime’, that regulation also says very little about the nature of the legitimate reasons likely to be accepted. (41)
51. Recital 2 in the preamble to Regulation No 1931/2006, as I have already stated, merely mentions ‘trade, social and cultural interchange’, and Article 3(3) defines ‘local border traffic’ as ‘the regular crossing of an external land border by border residents in order to stay in a border area, for example for social, cultural ... reasons, or for family reasons’, but also for ‘substantiated economic reasons’; it is stipulated, however, in the latter case, that under Article 2(b) of Regulation No 1931/2006, the regulation applies without prejudice to the provisions of EU law and national law applicable to third country nationals relating to access to, and exercise of, economic activity. (42)
52. It is therefore apparent from the foregoing considerations that the ratio legis of the local border traffic legislation is to enable the residents of the border areas concerned to cross easily, that is to say, without excessive administrative constraints, (43) frequently, (44) but also regularly, (45) for legitimate economic, social, cultural or family reasons, the European Union’s external land borders; it is stated, however, that that freedom cannot be distorted, deflected from its purpose or fraudulently or abusively exploited, on pain of sanction. (46)
53. It is for the competent national authorities to assess those legitimate reasons when they issue local border traffic permits, (47) having regard to the historical, cultural, economic and social context in which each bilateral agreement implementing the local border traffic regime is negotiated and concluded by the Member States and the third countries concerned. They must also take those legitimate reasons into consideration when they exercise the power to control entries and exits conferred on them by Article 6 of Regulation No 1931/2006 in order to ensure compliance with the conditions laid down in Article 4 of that regulation or the power to impose penalties for abuse conferred on them by Article 17 of the regulation.
b) The scheme of the CAAS and of the Schengen Borders Code
54. The competent Hungarian authorities maintain, however, in essence, that the local border traffic regime is part of the more general regime established by the CAAS and the Schengen borders code and that the provisions of Regulation no 1931/2006 must therefore be interpreted in the light of these. However, the two regimes do not have the same basis.
55. It is apparent from Article 1(5) of the bilateral agreement concluded by Hungary that it is, implicitly but clearly, by reference to the regime applicable to short stays by third country nationals, as established by Articles 5 and 20 of the CAAS, on the one hand, and by Article 5 of the Schengen Borders Code and Article 2 of the Visa Code, on the other, that the two States concerned formulated the requirement laid down by Article 5 of Regulation No 1931/2006.
56. Article 20 of the CAAS provides that third country nationals who are not required to have a visa may move freely within the Schengen area during a maximum period of three months during the six months following the date of first entry, (48) provided that they satisfy the conditions laid down in Article 5(1)(a),(c) and (e) of the CAAS.
57. That same limitation of the permissible duration of stay to three months within a six-month period is found again in Article 5 of the Schengen Borders Code, laying down the general conditions of entry of third-country nationals to European Union territory for a short-term stay, and in Article 2(2)(a) of the Visa code, defining the meaning of visa. (49)
58. Unlike Regulation No 1931/2006, the scope ratione loci and ratione personae of which is strictly limited, the CAAS, just like the Schengen Borders Code and the Visa Code, applies, with the occasional exception, to the short-term stays of all third country nationals throughout the territory of the Member States concerned.
59. The ordinary law limitation, applicable to all third country nationals, of the short-term stay to a period not exceeding three months within a six-month period does therefore not apply to the derogating local border traffic regime.
60. The argument put forward by Hungary, that the derogating character of Regulation No 1931/2006 is not total and relates only to the entry procedures, so that Article 5 should be read in the light of Article 20 of the CAAS or Article 5 of the Schengen Borders Code must be rejected in that regard.
61. Recital 3 in the preamble to Regulation No 1931/2006 expressly states that the local border traffic regime constitutes a derogation from the general rules governing the border control of persons crossing the external borders of the Member States of the European Union which are set out in the Schengen Borders Code. (50) Moreover, Article 35 of the Schengen Borders Code also states that the Code is without prejudice to EU rules on local border traffic and to existing relevant bilateral agreements.
62. It follows that all the provisions of Regulation No 1931/2006, the purpose of which is specifically to lay down the rules relating to local border traffic, must be regarded as derogating from the short-term stay regime established by the Schengen Borders Code.
63. The derogating character of Regulation No 1931/2006 does not mean, however, that its provisions are bound to be interpreted strictly or restrictively. It means, above all, as we shall see below, that, as lex specialis, the provisions of that regulation cannot be exploited for purposes which are not envisaged by the regulation and used with the aim of circumventing the rules of EU law and national law applicable inter alia to short-term stays (51) and to access to or exercise of an economic activity. (52)
64. In short and in conclusion, it is apparent from the foregoing arguments that Article 20 of the CAAS or Article 5 of the Schengen Borders Code cannot alter the scheme of the local border traffic regime established by Regulation No 1931/2006, which is to allow eligible border residents, as far as possible, to cross local borders normally, that is to say easily and as frequently as necessary, except in the case of fraud or abuse.
4. Compliance with the Charter and the ECHR
65. In the light of the foregoing, the main question which is therefore submitted for the assessment of the Court is whether the regime established by the bilateral agreement concluded by Hungary, as interpreted and/or implemented by the competent Hungarian authorities, is compatible, in the first place, with the spirit of the local border traffic regime which I have just examined in detail, as interpreted in accordance with primary EU law, (53) and, more specifically, with the relevant provisions of the Charter, (54) or, if appropriate, of the ECHR and, in the second place and more widely, with all EU law, (55) in accordance with Article 4(3) TEU. (56)
66. It should be noted, in that regard, that recital 13 in the preamble to Regulation No 1931/2006 states that the regulation respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter.
67. Moreover, the conclusion of bilateral agreements such as the one at issue in the main proceedings falls within the scope of the implementation (57) of the local border traffic regime, so that those agreements, which must be in accordance with the rules of Regulation No 1931/2006, must, more generally, be concluded in compliance with primary law and in particular with the provisions of the Charter, in accordance with Article 51(1) thereof or, failing that and as appropriate, the provisions of the ECHR, in accordance with Article 6(3) TEU.
68. One may, very intuitively, be prompted to approach the question initially from the point of view of freedom of movement.
69. However, it should be pointed out, putting aside the situation of ‘persons enjoying the Community right of free movement’ or equivalent rights, (58) within the meaning of Article 3(4) of Regulation No 1931/2006, that Article 45(1) of the Charter, which establishes the right of every citizen of the European Union to move and reside freely within the territory of the Member States, does not apply ratione personae to the main proceedings, any more than Article 45(2) of the Charter, which provides that those same rights may be granted to third-country nationals legally resident in the territory of a Member State. (59)
70. However, and without the need to question whether the main proceedings fall, in any way at all, within the scope of Article 2 of Protocol No 4 to the ECHR, (60) which enshrines the right to freedom of movement, it is clear that it is covered, in any event, (61) owing to the scheme of the local border traffic regime, by Article 7 of the Charter, which guarantees respect for private and family life, a provision which, in accordance with Article 52(3) of the Charter, must be interpreted in the light of Article 8 ECHR. (62)
71. Third-country nationals who are not included within the definition of family members of a European Union citizen, within the meaning of the aforementioned Directive 2004/38 and who therefore do not enjoy an automatic right of entry and residence in the host Member State, but who fall within the scope of Regulation No 1931/2006, must, in my view, be able to have, in the implementation of the regulation, guarantees of the right to a private and family life in the broad sense, (63) as do, reciprocally, the border residents in the Member States.
C – Application of Article 7 of the Charter and Article 8 ECHR
72. In the end, therefore, it is definitely in the light of the relevant provisions of the Charter and the ECHR and also the general principles of EU law, and in particular the principle of proportionality, that Regulation No 1931/2006 must be interpreted and that the application of the relevant provision of the bilateral agreement concluded by Hungary must be assessed.
73. However, a purely mechanical application of the rule laid down in Article 1(5) of the bilateral agreement concluded by Hungary, as interpreted in accordance with the approach taken by the competent Hungarian authorities and resulting in a refusal to allow the holder of a local border traffic permit, who is able to prove that he has personal and family links or, more generally, social links (64) with European Union citizens residing in the border area of a Member State covered by Regulation No 1931/2006, to enter the territory of that Member State merely because he has accumulated three months’ presence in that territory within a six-month period, disproportionately limits his right to respect for private and family life.
74. As the European Court of Human Rights has held, admittedly in different contexts, (65) Article 8 ECHR protects, as well as family life in the strict sense, a person’s right to establish and enjoy relationships with his own kind and with the outside world and may include aspects of an individual’s social identity. (66)
75. Therefore, just as, irrespective of the existence or otherwise of a ‘family life’, the deportation of an immigrant established in a Member State is regarded as an infringement of his right to respect for his private life, the refusal to allow the holder of a local border traffic permit to enter the territory of a Member State may be regarded as such and must, therefore, be in accordance with the law and be necessary in a democratic society, that is to say, justified by an overriding social need and, in particular, proportionate to the legitimate aim pursued. (67)
76. It is for the competent national authorities, subject to review by the national courts, to ensure a fair balance between the interests at issue, in the present case the right of the defendant in the main proceedings to enjoy full use of his local border traffic permit and the need of the competent authorities of the Member State to prevent and penalise abuse in accordance with Article 17 of Regulation No 1931/2006. From that point of view, their task is to examine on a case-by-case basis whether a local border traffic permit is used abusively or fraudulently by its holder, taking due account of the legitimate reasons he provides, at the time the permit is issued, in order to obtain it.
77. In those circumstances, a practice of the competent authorities of a Member State which consists in systematically refusing holders of a local border traffic permit, validly issued in accordance with the provisions of Regulation No 1931/2006, the right to enter the territory of that Member State solely on the ground that, within a six-month period, those permit-holders have made several stays of a total duration of more than three months, with no account taken either of the legitimate reasons for those stays or of the circumstances in which they have taken place and without proof of the abusive or fraudulent use of those permits, does not, in any event, even if it is ordered by the provisions of a bilateral agreement implementing that regulation, satisfy the requirements of the principle of proportionality.
78. It follows that Regulation No 1931/2006 is to be interpreted as precluding a bilateral agreement adopted pursuant to Article 13 of that regulation, such as the bilateral agreement concluded by Hungary, or the interpretation given to it by the competent national authorities and courts, from refusing to allow a person entitled to benefit under the aforementioned regime to cross the border of a Member State in circumstances such as those at issue in the main proceedings, unless the existence of fraud or abuse is established.
V – Conclusion
79. In the light of all the foregoing considerations, I propose that the Court give the following reply to the Magyar Köztársaság Legfelsőbb Bírósága (Hungary):
Article 5 of Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention, in so far as it sets at three months the maximum duration of uninterrupted stay permitted under the local border traffic regime, is to be interpreted as precluding a bilateral agreement adopted pursuant to Article 13 of that regulation, or the interpretation given to it, from refusing to allow a person entitled to benefit under the regime to cross the border of a Member State:
– where that person holds a valid local border traffic permit issued in accordance with the regulation,
– solely on the ground that, within a specific period, he has had multiple stays in the border area of that Member State of a total duration equivalent to the maximum duration of uninterrupted stay provided for in that agreement, whatever that duration may be, and
– unless it is established that those stays are connected with fraudulent or abusive conduct.
It is for the competent national authorities, subject to review by the national courts, to establish that the local border traffic permit is used abusively or fraudulently.