OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 27 April 2006 1( )

Case C-241/05

Nicolae Bot

v

Préfecture du Val-de-Marne

(Reference for a preliminary ruling from the Conseil d’État (France))

(Convention implementing the Schengen Agreement – Article 20(1) – Aliens not subject to a visa requirement – First entry into the Schengen area – Free movement – Maximum period)

1. By an order of 9 May 2005, the Conseil d’État (France) (French Council of State) referred to the Court under Articles 68 EC and 234 EC a question on the interpretation of Article 20(1) of the Convention implementing the Schengen Agreement (hereinafter the ‘implementing Convention’ or simply the ‘Convention’), which lays down the maximum period during which aliens not subject to a visa requirement may move freely within the territories of the Contracting Parties (hereinafter also referred to as the ‘Schengen area’).

2. In particular, the Conseil d’État enquires about the definition of the concept of ‘date of first entry’, that is to say the starting date, under Article 20(1), of the period of ‘three months during the [period of] six months’ in which, under the Convention, the alien may move freely within the Schengen area.

I – Legal framework

A – Community law

The movement of aliens not subject to a visa requirement within the Schengen area

3. In order to ‘achieve the abolition of checks at their common borders … and to facilitate the movement of goods and services at those borders’, the Member States of the Benelux countries, France and Germany concluded the Schengen Agreement ( ) in 1985 and a Convention implementing that Agreement ( ) in 1990 (hereinafter referred to collectively as the ‘Schengen agreements’). Italy, Spain, Portugal, Greece, Austria, Denmark, Finland and Sweden subsequently acceded to these agreements. The Schengen agreements and the accession agreements form part of the so-called Schengen acquis.

4. The movement of aliens not subject to a visa requirement within the Schengen area is governed by the implementing Convention.

5. Under Article 1, ‘alien’ means:

‘any person other than a national of a Member State of the European Communities’.

6. Article 5(1) then lays down that:

‘For stays not exceeding three months, aliens fulfilling the following conditions may be granted entry into the territories of the Contracting Parties:

(a) that the aliens possess a valid document or documents, as defined by the Executive Committee, authorising them to cross the border;

(b) that the aliens are in possession of a valid visa if required;

(c) that the aliens produce, if necessary, documents justifying the purpose and conditions of the intended stay and that they have sufficient means of subsistence, both for the period of the intended stay and for the return to their country of origin or transit to a third State into which they are certain to be admitted, or are in a position to acquire such means lawfully;

(d) that the aliens shall not be persons for whom an alert has been issued for the purposes of refusing entry;

(e) that the aliens shall not be considered to be a threat to public policy, national security or the international relations of any of the Contracting Parties’.

7. Of particular interest here is Article 20(1), which provides as follows:

‘Aliens not subject to a visa requirement may move freely within the territories of the Contracting Parties for a maximum period of three months during the six months following the date of first entry, provided that they fulfil the entry conditions referred to in Article 5(1)(a), (c), (d) and (e)’.

8. It should also be noted that a protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community, as amended by the Treaty of Amsterdam, ( ) incorporated the so-called Schengen acquis into the institutional and legal framework of the European Union. To that end, the protocol authorised the 13 signatory States to the Schengen agreements to establish closer cooperation among themselves within the scope of those agreements and related provisions. In addition, it gave the Council the task of determining a legal basis in the Treaties for each of the provisions or decisions which constitute the Schengen acquis.

9. Under Article 2 of, and Annex A to, Council Decision 1999/436/EC, ( ) the legal basis of Article 20(1) of the Convention is Article 62(3) EC.

Specific provisions relating to Romanian citizens

10. Romania is listed as one of the countries whose citizens are exempt, under Article 1(2) of Regulation No 539/2001, ( ) from the requirement for a visa ‘for stays of no more than three months in all’ (see Annex II).

B – National law

11. At the time of the events in the main proceedings, the entry and residence requirements for aliens in France were governed by Regulation No 45-2658 of 2 November 1945. ( )

12. Article 22 of that Regulation provides as follows:

‘I – The State’s representative in the Département and, in Paris, the chief of police may, by reasoned decree, decide that an alien is to be deported in the following instances:

(1) If the alien is unable to prove that he has lawfully entered French territory, unless he holds a valid residence permit;

...

II – The provisions of subparagraph 1 of I apply to an alien who is not a national of a Member State of the European Community:

(a) if he does not satisfy the conditions for entry laid down in Article 5 of the [Convention implementing the Schengen Agreement];

(b) or if, coming directly from the territory of a State which is a party to that Convention, he is unable to prove that he has entered the territory of metropolitan France in compliance with the provisions of Article 19(1) or (2), Article 20(1) and Article 21(1) or (2) of the Convention [implementing the Schengen Agreement];

…’.

II – Facts and procedure

13. It is apparent from the order for reference that Mr Bot, a Romanian national, entered the Schengen area several times.

14. In particular, Mr Bot stayed in France from 15 August to 2 November 2002 and then again from the end of November 2002 until the end of January 2003. Having returned to France after passing through Hungary on 23 February 2003 and then, according to his own testimony, through Austria and Germany, he was stopped by the police on 25 March 2003.

15. By a decree of 26 March 2003, the Prefect of Val-de-Marne ordered that Mr Bot be escorted to the border under Article 22(2)(b) of Regulation No 45‑2658.

16. When the Tribunal administratif de Melun (Administrative Court, Melun) dismissed his action to challenge that decree, Mr Bot appealed to the Conseil d’État. As the latter had doubts about the interpretation of Article 20(1) of the implementing Convention, it referred the following question to the Court for a preliminary ruling:

‘What is meant by “date of first entry” in terms of Article 20(1) of the Convention implementing the Schengen Agreement and, in particular, should any entry taking place at the end of a period of six months during which there has been no other entry into the territory, as well as, in the case of an alien who carries out multiple entries for stays of short duration, any entry immediately following the expiry of a period of six months from the date of the last known “first entry”, be regarded as a “first entry” into the territory of the States which are party to that Convention?’

17. In the proceedings thus initiated, written observations have been submitted by the French, Finnish, Czech and Slovak Governments and by the Commission.

III – Legal assessment

18. As we have seen, Article 20(1) of the Convention provides that ‘[a]liens not subject to a visa requirement may move freely within the territories of the Contracting Parties for a maximum period of three months during the six months following the date of first entry’.

19. The Finnish Government and the Commission each propose, for the reasons that I shall examine in greater detail below (see paragraphs 34 to 41), their own interpretation of the concept of ‘date of first entry’ occurring in the provision in question. According to the Finnish Government, the concept refers to the alien’s first entry into the Schengen area during the six months preceding the last entry. According to the Commission, on the other hand, it means the alien’s entry at least three months after the last departure. The Commission explains that if the alien makes an entry less than three months from his last departure, his right to stay should be calculated by taking into account the periods of time he spent in the Schengen area over the preceding six months.

20. The French, Czech and Slovak Governments, by contrast, consider that the concept of ‘first entry’ refers to the alien’s very first entry into the Schengen area and to entries made subsequently at intervals of at least six months from one another.

21. For myself, I am inclined to share the latter interpretation, and not only for literal and systematic reasons but also because I consider it to be more consistent with the requirement of legal certainty.

22. Beginning with the textual arguments, I believe that the French, Czech and Slovak Governments, but also the Commission, are right to point out that it is apparent from the provision in question that from the ‘date of first entry’ into the Schengen area the alien has a period of six months ‘during’ which he may move freely within the territories of the Contracting Parties for a ‘maximum period of three months’.

23. Hence, according to that provision, an alien’s entry into the Schengen area triggers the start of a period that ends six months later. It is ‘during’ those six months that the alien may move freely within the territories of the Contracting Parties; that is to say, for a continuous period of three months or for several shorter periods, but which in total may not exceed the ‘maximum period’ of three months. Once the three months calculated in this way have expired, the alien must leave the territory of the Contracting Parties and may only return during the subsequent six-month period. The alien’s return at least six months after the ‘first entry’ constitutes a new ‘first entry’, which again initiates the abovementioned periods of six and three months respectively.

24. A systematic argument can also be put forward to support this interpretation. As the French Government has observed, the approach set out above coincides with that which the Convention lays down even more clearly for aliens subject to the visa requirement.

25. Under Article 19(1) of the Convention, ‘aliens who hold uniform visas … may move freely within the territories of all the Contracting Parties during the period of validity of their visas’, which under Article 11 are valid for ‘one or more entries, provided that neither the length of a continuous visit nor the total length of successive visits exceeds three months in any half-year, from the date of first entry’. ( ) Hence, the Convention very clearly grants aliens subject to a visa requirement a right to travel for three months ‘in any half-year’ calculated ‘from the date of first entry’.

26. In my opinion, it would be illogical and inconsistent to consider that this system, which is also based on the division into successive half-years, applies to aliens subject to the visa requirement but not to those who are exempt. On the contrary, on that interpretation, the latter would have to be subject to the more restrictive methods of calculation suggested by the Finnish Government and by the Commission (which we shall examine more closely below, in points 40 and 41), with the truly bizarre result that less favourable treatment would be given to persons who are in fact viewed more favourably in the Schengen system. Aliens who are not subject to the visa requirement are those from countries to which the Community, on the basis of a ‘considered, case-by-case assessment of a variety of criteria relating inter alia to illegal immigration, public policy and security, and to the European Union’s external relations’, grants preferential treatment consisting precisely in exemption from the visa requirement (see recital (5) to Regulation No 539/2001).

27. Moreover, to my mind the reading I propose is more consistent with the principle of legal certainty, which requires that ‘Community legislation … be clear and its application foreseeable for all interested parties’. ( ) Indeed, the long-accepted interpretation gives rise to an extremely clear system which, on the one hand, enables national authorities to apply the rules of the Convention easily and without doubt and, on the other, permits aliens who wish to move within the Schengen area to ‘ascertain the full extent of their rights and, where appropriate, rely on them before the national courts’. ( )

28. That having been said, I must nevertheless point out that the interpretation endorsed here is open to two important objections, which must therefore be taken into account.

29. First, it could be objected that if the alien’s right to move freely is calculated according to separate and successive six-month periods an alien who has been present for more than three months in the first half-year would nevertheless be entitled to stay for a further three months in the next half-year. Essentially, an infringement committed in the first half-year could not be punished in subsequent six-month periods.

30. This could happen, for instance, precisely in the case of Mr Bot. He entered the Schengen area on 15 August 2002. By applying the suggested system, the six-month period would have expired on 15 February 2003. During that period Mr Bot stayed in France for more than three months (from 15 August 2002 to 2 November 2002 and from the end of November 2002 until the end of January 2003). Despite this, it is objected, in the next half-year (commencing with the new ‘first entry’ on 23 February 2003) Mr Bot would have been able, according to the interpretation I have endorsed, to enjoy a new right to free movement for three months. On the date on which he was stopped (25 March 2003), he would therefore still have been able to claim almost two months’ stay in France and hence could not have been deported.

31. In my opinion, however, that objection must be rejected.

32. In the interpretation that I support, the six-month period beginning with the new ‘first entry’ establishes a new right of residence for three (continuous or cumulative) months. However, it is clear that the commencement of the new half-year does not ‘absolve’ a previous infringement of the Schengen regulations. That infringement continues to exist, and as such can be punished.

33. Along with the French Government, I am thus also of the view that even where the person concerned is stopped in half-years other than that of the infringement the Member States can punish him by imposing penalties laid down for that purpose in their respective systems of law, subject of course to compliance with Community law and in particular with the principle of proportionality.

34. The second objection raised by the Finnish Government and the Commission appears to be more delicate.

35. The Finnish Government and the Commission set out from the correct premiss that, irrespective of the half-years, the Convention and Regulation No 539/2001 authorise aliens who are not subject to the visa requirement to stay in the Schengen area for periods not exceeding three consecutive months.

36. Indeed, under Article 5 of the Convention, entry to the Schengen area may be granted to an alien ‘in possession of a valid visa if required’ only ‘for stays not exceeding three months’. That absolute limit is subsequently confirmed in Article 10, which introduces ‘a uniform visa valid for the entire territory of the Contracting Parties … for visits not exceeding three months’. The limit is then specifically repeated for aliens not subject to the visa requirement. Article 1(2) and the first indent of Article 2 of Regulation No 539/2001 lay down that the nationals of third countries on the relevant list (which includes Romania) are exempt from the visa requirement, but only ‘for stays of no more than three months in all’.

37. From this array of rules it is therefore apparent that in no case can aliens not subject to the visa requirement stay for longer than three consecutive months. For longer stays, they must obtain appropriate permits or national visas, issued by the Member States. ( )

38. The same conclusion can be drawn from Article 62(3) EC, which, in accordance with Decision 1999/436/EC, constitutes the legal basis of Article 20(1) of the Convention (see paragraph 9 above). That provision authorises the Community to adopt ‘measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States during a period of no more than three months’. ( ) Hence, in no event could Article 20(1) be interpreted in such a way as to permit aliens not subject to the visa requirement to remain in the Member States for more than three consecutive months.

39. However, according to the Finnish Government and the Commission, that is precisely what would happen if the interpretation of Article 20(1) that I have described above were followed.

40. They give the following example for that purpose. Imagine an alien who makes his first entry into the Schengen area on 1 January 2006 and leaves again on the same day. Suppose then that this person re-enters the territory in question on 2 April and stays until the end of the half-year, that is to say 30 June (hence, two months and thirty days). A new half-year begins on 1 July, and for that reason the alien remains in the Schengen area for a further three months. His stay has therefore lasted almost six consecutive months (more precisely, six months less one day) and hence almost three months more than the maximum indicated above.

41. In order to prevent situations of this kind, however, the Finnish Government and the Commission envisage two different interpretations of Article 20(1) of the Convention.

42. According to Finland, the following logic should be applied to determine when the alien’s ‘first entry’ occurred. The point of departure is the date of the alien’s last entry into the Schengen area. A period of six months is counted backwards from that date to establish whether the alien had already entered the Schengen area. If so, then the ‘first entry’ within the meaning of the Convention is the alien’s first arrival in the area in the six months preceding the last entry. From the ‘first entry’ determined in this way the periods of three and six months laid down in Article 20(1) must then be calculated in order to decide whether, at the time of the last entry, the alien had or had not used up the number of days at his disposal.

43. I find the solution suggested by the Commission even more elaborate. This also takes the alien’s last arrival as the starting point for ascertaining whether he had already entered the Schengen area before that date. If so, the Commission proposes the following distinction: if more than three months have elapsed between the last arrival and the last departure, the last arrival constitutes the ‘first entry’ for the purposes of the Convention; if, on the other hand, less than three months have passed, it is necessary to go back six months from the last arrival to check whether, during those six months, the alien had already used up the three months’ stay in the Schengen territory.

44. That having been said, I must observe that although the solutions I have just described set out from a sound premiss I do not find them entirely convincing.

45. In fact, in calculating the periods laid down in Article 20(1), they both ultimately ignore or downplay the concept of ‘first entry’ adopted as the date of reference in that provision and rely instead on the concept of ‘last arrival’, which the provision in question does not even mention.

46. Furthermore, I find the solutions in question uncommonly complicated and, partly for that reason, inconsistent with the need for clarity and legal certainty which, as I have stated above (see paragraph 27), must be a feature of Community legislation, and hence also of the Schengen acquis assimilated by the Community.

47. On the day on which the alien presents himself at the Schengen frontier (the so-called last arrival), the police officers would have to embark upon very complicated calculations based on the available data. Only then could and should they, on that day, tell the alien whether he still has days remaining in order to move freely within the Schengen area or whether he has already used up his allotment. In short, the application of the Convention would become extremely complicated for national authorities and rather unpredictable for individuals.

48. Moreover, it seems to me that the two solutions I have just criticised cannot even be justified on the grounds that they are the only ones that can ensure compliance with the maximum limit of three consecutive months described above (see paragraphs 34 to 36).

49. Indeed, in contrast to what the Finnish Government in particular maintains, it seems to me that the solution I endorse, which is based on separate and successive six-month periods during which the alien is allowed a (continuous or cumulative) stay of three months, automatically precludes infringement of the maximum limit.

50. Let me explain. The solution I advocate here identifies the ‘first entry’ as the alien’s first arrival in the Schengen area and subsequent arrivals at intervals of at least six months. That means that once the first half-year has ended the next one does not begin automatically but only runs from the alien’s next ‘first entry’.

51. In other words, the alien’s presence in the area at the end of the half-year does not trigger the following half-year. For that to happen, at that deadline the alien must leave the Schengen area and then return. This necessarily separates the half-years, thereby eliminating the risk that, by ‘tacking’ the last few months of the first half-year onto the first few of the following, the alien can breach the absolute limit of three consecutive months (see the example described in paragraph 38).

52. According to the Commission, however, the requirement for the alien to leave the Schengen area at the end of the half-year would not be sufficient to ensure compliance with the limit. In fact, the alien could: (i) stay for the last two months and thirty days of the first half-year; (ii) leave the Schengen area and return on the following day, and hence claim the right to move freely for a further three months. In that way, the alien would easily be able to circumvent the Schengen regulations, because by leaving for a single day he could move freely for almost six consecutive months.

53. Here too, the Commission’s objection is based on a correct premiss, that is to say the need to prevent the easy circumvention of Community legislation. It is clear that the application of Community regulations ‘must in no case be extended to cover abusive practices’ on the part of individuals. ( )

54. However, it appears to me that this requirement can be met in another way, without having to distort the scope of Article 20(1) of the Convention.

55. Rather than envisaging a complicated mechanism, and one which moreover is inconsistent with the letter of the provision in question, I believe that the provision can be interpreted as permitting the State authorities and national courts to ascertain, case by case, whether the alien intended wrongfully to create the conditions for claiming the rights granted to him and, if so, to deny him those rights.

56. In that regard, I would point out that the Court has already discussed the possibility of punishing abuses, requiring two elements to be present for that purpose. First, there must be ‘a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved’; and second, ‘a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it’. ( )

57. On that basis, I believe that the (frankly, rather contrived) scenario envisaged by the Commission, in which the alien might leave the Schengen area at the end of the half-year and then return on the following day, can be viewed by the State authorities and the national courts as evidence of an attempt to circumvent the provisions of the Convention in order to obtain an unlawful advantage, namely to stay in the territory in question for longer than the permitted limit of three consecutive months. In that situation, then, it seems to me that the national authorities should deny entry to the alien or, if entry has already occurred, deem it unlawful.

58. It appears to me that, with this improvement, Article 20(1) of the Convention may be interpreted in a way that is more in keeping with the letter of the provision without running the risks described by the Commission.

59. In conclusion, I therefore consider that ‘first entry’ within the meaning of Article 20(1) of the Convention should be taken to mean the very first entry into the Schengen area by an alien exempt from the visa requirement and the entries he subsequently makes at intervals of at least six months.

IV – Conclusion

60. In the light of the foregoing considerations, I propose that the Court reply as follows to the Conseil d’État:

‘Within the meaning of Article 20(1) of the Convention implementing the Schengen Agreement, “first entry” should be taken to mean the very first entry into the Schengen area by an alien exempt from the visa requirement and the entries he subsequently makes at intervals of at least six months.’