Case C-139/08

Criminal proceedings

against

Rafet Kqiku

(Reference for a preliminary ruling from the Oberlandesgericht Karlsruhe)

(Visas, asylum, immigration – Third-country national holding a Swiss residence permit – Entry of and stay in the territory of a Member State for purposes other than transit – Lack of a visa)

Summary of the Judgment

Visas, asylum, immigration – Crossing of the Member States’ external borders – Conditions of movement of third country nationals subject to a visa requirement

(Council Regulation No 539/2001, Arts 1(1) and 2; European Parliament and Council Decision No 896/2006)

Decision No 896/2006 establishing a simplified regime for the control of persons at the external borders based on the unilateral recognition by the Member States of certain residence permits issued by Switzerland and Liechtenstein for the purpose of transit through their territory must be interpreted as meaning that the residence permits listed in the annex to that decision, issued by the Swiss Confederation or the Principality of Liechtenstein to third‑country nationals subject to a visa requirement, are considered to be equivalent to a transit visa only. As regards entering the territory of the Member States for the purpose of transit, the requirements laid down in Articles 1(1) and 2 of Regulation No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement are fulfilled if the person covered by that decision is in possession of a residence permit issued by the Swiss Confederation or the Principality of Liechtenstein and listed in the annex to that decision.

(see para. 32, operative part)

JUDGMENT OF THE COURT (Third Chamber)

2 April 2009 ( )

(Visas, asylum, immigration – Third-country national holding a Swiss residence permit – Entry of and stay in the territory of a Member State for purposes other than transit – Lack of a visa)

In Case C‑139/08,

REFERENCE for a preliminary ruling under Articles 68 EC and 234 EC from the Oberlandesgericht Karlsruhe (Germany), made by decision of 4 April 2008, received at the Court on 7 April 2008, in the criminal proceedings against

Rafet Kqiku,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, A. Ó Caoimh, J.N. Cunha Rodrigues, U. Lõhmus and P. Lindh (Rapporteur), Judges,

Advocate General: Y. Bot,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Mr Kqiku, by A. Heidegger, Rechtsanwalt,

– the Commission of the European Communities, by M. Wilderspin and S. Grünheid, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Decision No 896/2006/EC of the European Parliament and of the Council of 14 June 2006 establishing a simplified regime for the control of persons at the external borders based on the unilateral recognition by the Member States of certain residence permits issued by Switzerland and Liechtenstein for the purpose of transit through their territory (OJ 2006 L 167, p. 8).

2 The reference was made in the context of criminal proceedings brought in Germany against Mr Kqiku, a national of Serbia-Montenegro, who is accused of having entered the territory of the Federal Republic of Germany on 4 August 2006 and stayed there until 6 August 2006 without the necessary residence document in the form of a visa.

Legal context

Community law

The Schengen acquis

3 In accordance with Articles 10 and 11 of the 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), signed at Schengen (Luxembourg) on 19 June 1990, a uniform short-stay visa is introduced which may be issued to anyone other than nationals of Member States of the European Community for visits not exceeding three months. However, that convention makes a distinction between travel visas and transit visas. Transit visas are issued for transit that does not exceed five days.

Regulation (EC) No 539/2001

4 In accordance with Article 1(1) of and Annex I to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1), nationals of the Federal Republic of Yugoslavia (Serbia-Montenegro) are required to be in possession of a visa when crossing the external borders of the Member States.

5 Article 2 of the regulation is worded as follows:

‘For the purposes of this Regulation, “visa” shall mean an authorisation issued by a Member State or a decision taken by such State which is required with a view to:

– entry for an intended stay in that Member State or in several Member States of no more than three months in total,

– entry for transit through the territory of that Member State or several Member States, except for transit at an airport.’

Decision No 896/2006

6 Recitals 2, 3, 6 and 7 in the preamble to Decision No 896/2006 are worded as follows:

‘(2) The current Community rules do not … provide for a simplified regime for the control of persons at the external borders whereby the residence permits issued by third countries would be recognised as equivalent to the uniform visa for the purpose of transit through, or a short stay in, the [Schengen area].

(3) Third-country nationals who hold a resident permit issued by Switzerland and who are subject to a visa obligation under … Regulation [No 539/2001] must apply for a visa when they transit the common area on return to their country of origin. …

…

(6) In order to address the situation in the consular offices in Switzerland and Liechtenstein both of Member States fully implementing the Schengen acquis and of new Member States, a simplified regime should be introduced for the control of persons at the external borders based on the unilateral recognition of certain residence permits issued by the authorities of Switzerland and Liechtenstein as equivalent to uniform or national visas.

(7) Such recognition should be limited to the purpose of transit and should not affect the possibility of Member States to issue visas for a short-term stay.’

7 Article 1 of Decision No 896/2006 provides:

‘This Decision establishes a simplified regime for the control of persons at the external borders based on the unilateral recognition by Member States of residence permits issued by Switzerland and Liechtenstein to third-country nationals subject to a visa obligation pursuant to Regulation … No 539/2001 as equivalent to their uniform or national visas for the purpose of transit.

…’

8 Article 2 of Decision No 896/2006 provides:

‘Member States fully implementing the Schengen acquis shall unilaterally recognise the residence permits issued by Switzerland and Liechtenstein which are listed in the Annex.

…’

9 The first paragraph of Article 3 of that decision provides:

‘The duration of the transit of the third-country national through the territory of the Member State(s) shall not exceed five days.’

10 One of the residence permits issued by the Swiss Confederation referred to in Article 2 of Decision No 896/2006 and appearing on the list in the annex to the decision is identity document C for foreign nationals, which is issued in connection with a permanent residence permit type C.

National legislation

11 Under the relevant provisions of the German Law on the Residence, Employment and Integration of Foreigners in Germany (‘Law on Foreigners’) (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet, BGBl. 2004 I, p. 1950), foreign nationals must be in possession of a residence document unless the law of the European Union or a decree provides otherwise. Residence documents are granted, inter alia, in the form of a visa or a permit to stay.

12 According to the referring court, where a foreign national is not in possession of one of the residence documents required under that law, his entry into Germany is illegal. Pursuant to Paragraph 95 of that law, a prison sentence of up to a year or a fine is imposed on anyone staying in German territory without the necessary residence document. The same punishment is envisaged where the foreigner enters German territory without a passport or without a valid residence document.

13 In the order for reference, the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) explains that, according to German law, in assessing whether conduct is criminal for the purposes of Paragraph 95, the only factor to be taken into account is the existence of a formally valid permit to enter and stay in the country.

The main proceedings and the question referred for a preliminary ruling

14 Mr Kqiku, who, according to his passport, is a national of Serbia-Montenegro, has been living in Switzerland since June 1993. Since 27 March 2006 he has held a Swiss identity document C for foreign nationals, together with a permanent residence permit type C, the ‘Kontrollfrist’ (probationary period) for which will expire on 19 June 2009. All members of his family also hold valid identity documents for foreign nationals or, as the case may be, equivalent documents for children.

15 On 4 August 2006, Mr Kqiku travelled from Switzerland to Germany, together with his wife and three children. During their stay in Germany, they visited family members in Cologne and Stuttgart.

16 During this stay and until his return to Switzerland on 6 August 2006, Mr Kqiku carried with him his valid passport, his Swiss identity document C for foreign nationals and his valid Swiss driver’s licence. The family members accompanying him were all also carrying valid passports and identity documents for foreign nationals or, where appropriate, equivalent documents for children.

17 For the purposes of his stay in Germany, Mr Kqiku did not apply for a visa for himself or his family members, which he had done for the purpose of his previous short visits to Germany.

18 Criminal proceedings were brought against Mr Kqiku on account of his having entered Germany and stayed there from 4 to 6 August 2006 without a residence document in the form of a visa, which, as a national of Serbia-Montenegro, he would have needed.

19 By decision of 29 November 2006, the Amtsgericht Singen (local district court, Singen) (Germany) found Mr Kqiku not guilty of illegal entry and an illegal stay under the Law on Foreigners, because in view of Decision No 896/2006, his conduct did not present the elements of a crime. The Public Prosecutor’s office brought an appeal (‘Revision’) against that decision. The Oberlandesgericht Karlsruhe is required to rule on that appeal, as the court of final appeal.

20 The Oberlandesgericht Karlsruhe took the view that determining whether Mr Kqiku is guilty of illegal entry and an illegal stay in German territory for the purposes of Paragraph 95(1)(3) and 95(2) of the Law on Foreigners depends on an interpretation of the rules on unilateral recognition of residence permits laid down in Decision No 896/2006, and decided to stay proceedings and to refer the following question to the Court of Justice:

‘Are the provisions of Articles 1 and 2 of Decision No 896/2006 … to be interpreted as meaning that the residence permits issued by the Swiss Confederation and Liechtenstein listed in the Annex acquire, by virtue of the unilateral recognition by the Member States fully implementing the Schengen acquis of those residence permits as equivalent to their uniform or national visas, directly the effect of a residence document allowing transit through the common area;

or

are the provisions of Articles 1 and 2 of Decision No 896/2006 … to be interpreted as meaning that third-country nationals holding one of the residence permits issued by the Swiss Confederation and Liechtenstein listed in the Annex unilaterally recognised by the Member States fully implementing the Schengen acquis are exempt, for the purpose of transit through the common area, from the requirement to be in possession of a visa under Article 1(1) of Regulation … No 539/2001?’

The question referred for a preliminary ruling

21 By its question, the referring court essentially asks about the scope of the recognition of the residence permits referred to in Decision No 896/2006, in the light of the visa requirement laid down in Regulation No 539/2001.

22 Mr Kqiku submits that Decision No 896/2006 covers the recognition of residence permits issued by the Swiss Confederation and the Principality of Liechtenstein for the purposes of transit through the Schengen area or short stays in that area. He submits that his identity document C for foreign nationals is one of the residence permits issued by the Swiss Confederation listed in the annex to Decision No 896/2006, that that document does not have the effect of exempting him from the visa requirement laid down in Regulation No 539/2001 and that the document constitutes a valid permit to enter and stay in the country.

23 The Commission of the European Communities submits that the scope of the equivalence under Decision No 896/2006 is limited to the purpose of transit through the Schengen area. The Commission takes the view that a residence permit such as the one at issue in the main proceedings can be treated like a ‘Schengen visa’ in respect of transit only, and that recognition of a residence permit issued by the Swiss Confederation or the Principality of Liechtenstein relates to a visa exemption under Article 1(1) of Regulation No 539/2001 for the purpose of transit only.

24 First of all, it must be recalled that, according to Article 1 of Decision No 896/2006, the regime established by that decision is based on the unilateral recognition by Member States of residence permits issued by the Swiss Confederation and the Principality of Liechtenstein to third-country nationals subject to a visa obligation pursuant to Regulation No 539/2001 as equivalent to their uniform or national visas for the purpose of transit.

25 As is apparent, in particular, from Article 2 of Regulation No 539/2001, the Schengen acquis distinguishes between two main categories of visas, namely short-stay visas and transit visas. Short-stay visas cover stays of no more than three months in total, and transit visas cover transit through the common area that must not exceed five days.

26 The purpose of Decision No 896/2006, as is apparent from its title and Articles 1 and 2, is to establish a simplified regime for the control of persons at the external borders, limited to the purpose of their transit through the territory of the Member States. Consequently, under those articles, residence permits issued by the Swiss Confederation or the Principality of Liechtenstein to third-country nationals are equivalent to a uniform visa or national visas for the purpose of transit only. According to Article 3 of that decision, the duration of the transit is to be limited and must not exceed five days.

27 Given that the unilateral recognition of certain residence permits issued by the Swiss Confederation or the Principality of Liechtenstein under the simplified regime for control established by Decision No 896/2006 is limited to entry into the Schengen area for the purpose of transit, it must be held that the residence permits issued by those States and listed in the annex to that decision are recognised as equivalent to a uniform visa or a national visa for the purpose of transit only.

28 That interpretation is supported by recitals 3 and 7 in the preamble to Decision No 896/2006, which set out the purpose of that decision, which is to offer third-country nationals, inter alia from Serbia and Montenegro, who hold residence permits issued by the Swiss Confederation or the Principality of Liechtenstein, the possibility to transit the common area on return to their country of origin without applying for a transit visa. Recital 7 in the preamble to that decision states explicitly that the recognition of those residence permits should be limited to the purpose of transit and should not affect the possibility of Member States to issue visas for a short-term stay.

29 Moreover, the simplified regime established by Decision No 896/2006 does not seek either to extend or to restrict the circle of third-country nationals who are exempt from the visa requirement pursuant to Regulation No 539/2001.

30 That interpretation is supported by the legal bases of Regulation No 539/2001 and Decision No 896/2006. Regulation No 539/2001 is based on Article 62(2)(b)(i) EC, which concerns measures on the crossing of the external borders that establish rules on visas, including the list of third countries whose nationals are subject to a visa requirement and those whose nationals are exempt from that requirement, while Decision No 896/2006 is based on Article 62(2)(a) EC, which governs measures relating to standards and procedures to be followed by Member States in carrying out checks on persons at the external borders.

31 Consequently, it follows that a residence permit issued by the Swiss Confederation or the Principality of Liechtenstein to third-country nationals subject to a visa requirement is a document that must be considered to be equivalent to a visa for transit through the territory of the Member States. Within the framework of the simplified procedure introduced by Decision No 896/2006, persons covered by that decision are therefore not required to be in possession of a transit visa when they cross the external borders for the purposes of transiting the territory of the Member States, provided the transit does not exceed five days.

32 In the light of the foregoing and in accordance with the distinction between transit visas and short-stay visas made by Regulation No 539/2001, the answer to the question referred is that Decision No 896/2006 must be interpreted as meaning that the residence permits listed in the annex to that decision, issued by the Swiss Confederation or the Principality of Liechtenstein to third‑country nationals subject to a visa requirement, are considered to be equivalent to a transit visa only. As regards entering the territory of the Member States for the purpose of transit, the requirements laid down in Articles 1(1) and 2 of Regulation No 539/2001 are fulfilled if the person covered by that decision is in possession of a residence permit issued by the Swiss Confederation or the Principality of Liechtenstein and listed in the annex to that decision.

Costs

33 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Decision No 896/2006/EC of the European Parliament and of the Council of 14 June 2006 establishing a simplified regime for the control of persons at the external borders based on the unilateral recognition by the Member States of certain residence permits issued by Switzerland and Liechtenstein for the purpose of transit through their territory must be interpreted as meaning that the residence permits listed in the annex to that decision, issued by the Swiss Confederation or the Principality of Liechtenstein to third‑country nationals subject to a visa requirement, are considered to be equivalent to a transit visa only. As regards entering the territory of the Member States for the purpose of transit, the requirements laid down in Articles 1(1) and 2 of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement are fulfilled if the person covered by that decision is in possession of a residence permit issued by the Swiss Confederation or the Principality of Liechtenstein and listed in the annex to that decision.

[Signatures]