Joined Cases C-261/08 and C-348/08

María Julia Zurita García

and

Aurelio Choque Cabrera

v

Delegado del Gobierno en la Región de Murcia

(Reference for a preliminary ruling from the Tribunal Superior de Justicia de Murcia)

(Visas, asylum and immigration – Measures concerning the crossing of external borders – Article 62(1) and (2)(a) EC – Convention implementing the Schengen Agreement – Articles 6b and 23 – Regulation (EC) No 562/2006 – Articles 5, 11 and 13 – Presumption concerning the duration of the stay – Unlawful presence of third-country nationals on the territory of a Member State – National legislation allowing for either a fine or expulsion, depending on the circumstances)

Summary of the Judgment

Visas, asylum, immigration – Crossing of the external borders of the Member States – Common rules on standards and procedures for border controls – Convention implementing the Schengen Agreement – Community Code on movement across borders – Unlawful stay of an individual in the territory of a Member State – Obligation on that Member State to adopt an expulsion order – None

(Convention implementing the Schengen Agreement, as amended by Regulation No 2133/2004, Arts 6b and 23; European Parliament and Council Directive 562/2006, Art. 11)

Articles 6b and 23 of the Convention implementing the Schengen Agreement as amended by Regulation No 2133/2004 on the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third‑country nationals when they cross the external borders of the Member States and amending the provisions of the Convention implementing the Schengen agreement and the common manual to this end, and Article 11 of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), must be interpreted as meaning that, where a third-country national is unlawfully present on the territory of a Member State because he or she does not fulfil, or no longer fulfils, the conditions of duration of stay applicable there, that Member State is not obliged to adopt a decision to expel that person.

(see para. 66, operative part)