Opinion of the Advocate General — ECLI:EU:C:2011:789
Date: 2011-11-29
Language of the case: French
Subject matter: Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: France

summary, it is apparent from my deliberations above that the Schengen Borders Code does not prohibit the Member States from issuing a re-entry visa with limitations on the point of entry. 45. There are no other apparent objections, on the basis of primary or secondary law, to Member States limiting re-entry visas to entry via the external Schengen borders of that Member State. Significant evidence in support of the compatibility, in principle, of such a limitation with European Union law is found in the provision on the Schengen visas with limited territorial validity. 46. Prior to the adoption of the Visa Code, the European Union law requirements with regard to visas with limited territorial validity were found in various articles of various regulatory instruments, in particular in the CSA and in the CCI. In part 1, section 2, point 2.3 of the CCI it was expressly stated in relation to the detailed rules on entry on the basis of a visa with limited territorial validity that both entry and exit had to be through the territory of the Member State to the territory of which the validity of the visa was limited. 47. Although the Visa Code does not contain any clear statement as to the detailed rules on entry on the basis of a visa with limited territorial validity within the meaning of Article 25 of the Visa Code, the Commission’s Explanatory Memorandum to the Draft proposal for a Regulation on the Visa Code indicates that in this respect the existing legal position should be retained according to the intention of the legislature. (15) Once more, this provides an important indication of the compatibility, in principle, with European Union law of a national re‑entry provision which limits entry into the Schengen area to certain external borders. 48. In the light of the foregoing, the second question referred must be answered to the effect that a Member State which issues to a third‑country national a re‑entry visa within the meaning of Article 5(4)(a) of the Schengen Borders Code may limit re-entry on the basis of that re‑entry visa to its external Schengen borders. 49. Finally, it should be noted that the French Government, in its answer to the second question, submitted that the re‑entry of third‑country nationals whose temporary residence permit does not entitle them to re-entry is better achieved, if it is necessary, by the issue of a national long-stay visa. The Belgian Government submits that the re-entry of such third-country nationals is in practice made possible by the issue of a visa with limited territorial validity within the meaning of Article 25 of the Visa Code. 50. If, as is submitted by the French Government, a Member State decides to permit the re-entry of third-country nationals whose temporary residence permit does not entitle them to re-entry by the preferred means of issuing a national long‑stay visa, in principle European Union law does not preclude a limitation of that visa to re‑entry into the Schengen area only via points of entry into the territory of that State: pursuant to Article 18 of the CSA, long-stay visas are national visas, so that in principle the Member States are entitled, from a European Union law perspective, to limit entry into the Schengen area on the basis of that visa to points of entry into the territory of that State. (16) 51. In addition, it is apparent from my deliberations above that if a Member State, as the Belgian Government submits, decides to permit the re-entry of third‑country nationals by means of the issue of a visa with limited territorial validity within the meaning of Article 25 of the Visa Code, re-entry must generally take place via the external Schengen borders of the Member State to the territory of which the validity of the visa is limited. (17) C – The third question 52. By its third question referred, the referring court refers to the prohibition, laid down in the Schengen Borders Code, on entry for third‑country nationals subject to a visa requirement who merely hold a temporary residence permit issued pending examination of a first application for a residence permit or an application for asylum. In essence, it asks if the principles of legal certainty and protection of legitimate expectations preclude the application of those provisions to the prohibition on entry if as a result of their application third-country nationals who left the Schengen area prior to the Schengen Borders Code coming into force on the assumption that they would be able to re‑enter with their temporary residence permits are no longer in a position to do so after the entry into force of the Borders Code. 53. The referring court poses this question because, evidently, prior to the ministerial circular dated 21 September 2009 an administrative practice had developed in France pursuant to which third-country nationals subject to a visa requirement who merely held a temporary residence permit issued pending examination of a first application for a residence permit or an application for asylum could leave national territory via the external Schengen borders and enter that territory again provided that that permit had not expired. By means of the ministerial circular, that practice was to be put to an end without a transitional period, so that third-country nationals subject to a visa requirement who had left French territory prior to the ministerial circular with such a temporary residence permit could no longer return to the Schengen area without a visa or other permit entitling them to entry. 54. For the purposes of answering the third question, it must first of all be stated that the prohibition on re-entry laid down in the ministerial circular dated 21 September 2009 meets the requirements of the Schengen Borders Code. It follows from Article 5(1) of the SBC in conjunction with Article 2(15)(b) and Article 5(4)(a) of the SBC that temporary residence permits which have been issued pending examination of a first application for a residence permit or an application for asylum may not be used for the purposes of entry into the Schengen area. Against this background, the ministerial circular dated 21 September 2009 correctly makes clear that third-country nationals subject to a visa requirement who left French territory with only such a temporary residence permit may not be granted free re-entry via the external Schengen borders. 55. Since pursuant to Article 40 of the SBC, the Schengen Borders Code had already come into force on 13 October 2006, the ministerial circular dated 21 September 2009 merely clarifies the legal position as it applied in France as well, or at least in the territories of France in Europe — from 13 October 2006. (18) Against that background, it is immediately apparent that the fact that third-country nationals subject to a visa requirement left French territory via an external Schengen Border shortly before the ministerial circular dated 21 September 2009, in reliance on an administrative practice which was contrary to European Union law, without holding a permit entitling them to re-entry into the Schengen area cannot be used to call into question the applicable provisions of the Schengen Borders Code in the light of the European Union law principles of protection of legitimate expectations and legal certainty. 56. In relation to the principle of protection of legitimate expectations, it suffices to state in this context that it is possible to invoke that principle as against European Union law rules only to the extent that a situation has been created by the European Union itself, and accordingly by a European Union institution, which can give rise to a legitimate expectation. (19) In the present case, there was no such conduct by a European Union institution which could give rise to a legitimate expectation: in so far as a contrary expectation with regard to their re‑entry into French territory had arisen amongst third-country nationals subject to a visa requirement with temporary residence permits which did not entitle them to re-entry into the Schengen area, this was due to a French administrative practice which is contrary to European Union law. Such a national administrative practice which is contrary to European Union law cannot give rise to a legitimate expectation on the part of a third-country national of continued beneficial treatment contrary to European Union law. (20) 57. It is established case‑law that the principle of legal certainty requires that European Union legislation must be certain and its application foreseeable by those subject to it. (21) In my opinion, the provisions of the Schengen Borders Code on re-entry on the basis of temporary residence permits which have been issued pending examination of a first application for a residence permit or an application for asylum fulfil the requirements of certainty and foreseeability. As I have already stated, it follows from Article 5(1) of the SBC in conjunction with Article 2(15)(b) and Article 5(4)(a) of the SBC that such temporary residence permits do not entitle the holder to re-entry into the Schengen area. (22) In addition, it should be emphasised that the Schengen Borders Code was published in the Official Journal on 13 April 2006 and therefore six months before its entry into force so that the foreseeability of the provisions which applied from 13 October 2006 was also ensured. 58. It follows from the above that the examination of the third question referred has not resulted in anything which would lead to the conclusion of an infringement of the European Union law principles of legal certainty and protection of legitimate expectations in the context of the entry into force of the Schengen Borders Code. VI – Conclusion 59. In the light of the foregoing considerations, I suggest that the Court should reply to the questions referred for a preliminary ruling as follows: (1) Article 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) does apply to re-entry, via the external Schengen borders, by a third-country national into the territory of a Member State which has issued that person with a temporary residence permit, even where re-entry into its territory does not require entry, transit or stay in the territory of the other Member States. (2) A Member State issuing a third-country national a re-entry visa within the meaning of Article 5(4)(a) of the Schengen Borders Code may limit re‑entry on the basis of this re-entry visa only to its external Schengen borders. (3) The examination of the third question referred has not revealed any factors which would lead to the conclusion of an infringement of the European Union law principles of legal certainty and protection of legitimate expectations in the context of the entry into force of the Schengen Borders Code. 1 – Original language: German. 2 – OJ 2006 L 105, p. 1. 3 – As amended by Regulation (EU) No 265/2010 of the European Parliament and of the Council of 25 March 2010 (OJ 2010 L 85, p. 1). 4 – OJ 2009 L 243, p. 1. 5 – On the background to the introduction of the Schengen Borders Code see only Peers, S., ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law 2006, p. 321 et seq. 6 – See Article 1 of the SBC. However, on the territorial application of the Schengen Borders Code see its Recitals 22 to 28. Due to the exceptions which apply to Great Britain, Ireland and Denmark, the Schengen area only extends to Great Britain and Ireland in a few aspects. Bulgaria, Cyprus and Rumania are also not yet full members of the Schengen area. For these purposes, some non-member countries – Norway, Iceland and Switzerland – have associated themselves with the implementation, application and development of the Schengen acquis. See, in relation to this, Röben, in: Das Recht der Europäischen Union (publisher Grabitz/Hilf/Nettesheim), Article 67 TFEU, paragraph 149 et seq. (supplementary insert 44, May 2011). See also in connection with this: Genson, R./Van de Rijt, W., ‘Décembre 2007 – Un élargissement de l’espace Schengen sans précédent’, Revue du Marché commun et de l’Union européenne 2007, p. 652 et seq. In addition, it must be pointed out that the Schengen Borders Code only applies to the territories of France in Europe. 7 – See Article 20 of the SBC. 8 – Article 21 of the Convention Implementing the Schengen Agreement was amended, by Regulation (EU) No 265/2010 of the European Parliament and of the Council of 25 March 2010 amending the Convention Implementing the Schengen Agreement and Regulation (EC) No 562/2006 as regards movement of persons with a long-stay visa (OJ 2010 L 85, p. 1), to the effect that third-country nationals with a long-stay visa issued by one of the Member States may travel in other Member States for up to three months in any six-month period under the same conditions as the holder of a residence permit. See in relation to this Dienelt, K., in: Ausländerrecht (publisher Bergmann, J./Dienelt, K./Röseler, S.), 9th edition, 2011, Paragraph 6 of the Aufenthaltsgesetz (Law on residence), paragraph 37. 9 – In relation to the principle of non-refoulement and the right of asylum pursuant to Article 18 of the Charter of Fundamental Rights, see my Opinion delivered on 22 September 2011 in Case C‑411/10 N.S. and Others not yet published in the ECR, point 114. 10 – In its Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement (COM(2011) 118 final), the Commission also proposed that the term ‘re-entry visa’ in Article 5(4)(a) of the SBC should be removed because this term is outdated and misleading. 11 – OJ 2009 L 243, p. 1. 12 – Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19). 13 – Article 16 of the CSA was repealed by the Visa Code. 14 – Common consular instructions on visas for the diplomatic missions and consular posts (OJ 2005 C 326, p. 1). 15 – It is apparent from the individual Explanatory Notes to the draft that the provisions distributed through the CSA and the CCI in relation to visas with limited territorial validity were intended to be brought together in a single article primarily in the interests of clarity and to ensure the uniform application of the law. See the Draft proposal for a Regulation of the European Parliament and of the Council establishing a Community Code on Visas, COM(2006) 403 final, p. 12. 16 – In relation to the conformity of such a restriction with European Union law, see point 38 et seq. of this Opinion. 17 – See, in relation to this, point 45 et seq. of this Opinion. 18 – The Schengen Borders Code only applies to the territories of France in Europe: see in relation to this Recital 21 of the Schengen Borders Code. 19 – Case C‑14/01 Niemann [2003] ECR I‑2279, paragraph 56; Case C‑292/97 Karlsson and Others [2000] ECR I‑2737, paragraph 63; and Case C‑22/94 Irish Farmers Association and Others [1997] ECR I‑1809, paragraph 19. See further in relation to this: Bungenberg, M., in: Handbuch der Europäischen Grundrechte (publisher: Heselhaus/Nowak), Munich, 2006, section 33, paragraph 11 et seq.; Jarass, D., Charta der Grundrechte der Europäischen Union, Munich 2010, introduction, paragraph 37. 20 – See also in connection with this: Case C‑153/10 Sony Supply Chain Solutions (Europe) [2011] ECR I‑2775, paragraph 47; Case C‑94/05 Emsland-Stärke [2006] ECR I‑2619, paragraph 31; Joined Cases C‑31/91 to C‑44/91 Lageder and Others [1993] ECR I‑1761, paragraph 35; and Case 316/86 Krücken [1988] ECR 2213, paragraph 24. 21 – See only: Case C‑194/09 P Alcoa Trasformazioni v Commission [2011] ECR I‑6311, paragraph 71 and Case C‑67/09 P Nuova Agricast and Cofra v Commission [2010] ECR I‑9811, paragraph 77. 22 – See in relation to this point 54 of the present Opinion.