OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 17 October 2019 ( 1 )

Case C‑341/18

Staatssecretaris van Justitie en Veiligheid

v

J. and Others,

joined parties:

C. and H. and Others

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands)

(Reference for a preliminary ruling — Regulation (EU) 2016/399 — Article 11(1) — Meaning of ‘exit’ — Control of external borders — Stamping of travel documents of seamen — Time of affixing stamp — Moment of leaving the Schengen Area)

1. By this request for a preliminary ruling the Raad van State (Council of State, Netherlands) seeks the Court’s guidance as to the interpretation of Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders. ( 2 ) It wishes to ascertain the meaning of the word ‘exit’ in relation to the obligation on Member States’ competent authorities to affix an exit stamp to the travel documents of third-country nationals when crossing the external border and leaving the Schengen area.

2. All third-country nationals in the main proceedings work as seamen. They arrive by air transport in the Schengen area and then join ships to which they have already been assigned as crew. The vessels are in port in long-term mooring before the seamen arrive. The question for determination is whether the seamen exit the Schengen area at the moment when they sign on (or enrol) with their ship as crew or whether they exit only if they are working on board the vessel when it departs from port.

United Nations Convention on the Law of the Sea

3. Article 2 of the United Nations Convention on the Law of the Sea (‘UNCLOS’) states: ‘(1) The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of the sea, described as the territorial sea. (2) This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. (3) The sovereignty over the territorial sea is exercised subject to [the] Convention and to other rules of international law.’

4. In accordance with Article 3, every State can establish the breadth of the territorial sea up to a limit that does not exceed 12 nautical miles from the low-water line along the coast.

European Union law

The Schengen system — an overview

5. Key elements of the Schengen system are: the abolition of internal border controls between participating States; ( 3 ) freedom to travel between those States for any persons legally residing in or visiting them; and a common short-term visa policy. Rules for the Schengen system were initially set out in the Schengen Agreement and the detailed measures implementing it. ( 4 ) The application of the Schengen Borders Code is complemented by the Schengen Information System (‘SIS’) — a system for issuing alerts for refusal of entry of third-country nationals who should in principle be refused entry. ( 5 ) The European Union has also adopted Regulation (EU) 2017/2226 ( 6 ) establishing, inter alia, an entry and exit data system recording the crossing of all third-country nationals across the external Schengen borders in order to determine whether they have overstayed the permitted time of their visit.

6. The Schengen Convention (Chapter 3, Articles 9 to 18) originally made provision for visas. ( 7 ) The visa application system is supported by the Visa Information System (‘VIS’) introduced by Regulation (EC) No 767/2008. ( 8 ) Regulation (EC) No 539/2001 ( 9 ) lists those countries whose nationals do or do not require a visa to enter the territory of the Schengen area.

The Schengen Borders Code

7. The following statements in the recitals to the Schengen Borders Code are relevant: – The adoption of measures under Article 77 TFEU to ensure the absence of controls on persons crossing internal borders forms part of the European Union’s objective of establishing an area without internal frontiers in which the free movement of persons is ensured; ( 10 ) – The common policy on the crossing of external borders is a measure which flanks the creation of an area within the European Union in which persons may move freely; ( 11 ) – Common measures on the crossing of internal borders by persons and border control at external borders should reflect the Schengen acquis; ( 12 ) – Border control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations; ( 13 ) – Member States should ensure that control procedures at external borders do not constitute a major barrier to trade and social and cultural interchange. ( 14 )

8. In accordance with Article 1, the Schengen Borders Code lays down rules for the absence of border control of persons crossing the internal borders between the EU Member States and for the border control of persons crossing the external borders of the Schengen area.

9. The following definitions are set out in Article 2: ‘(2) “external borders” means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders; … (6) “third-country national” means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by point 5 of [Article 2]; [ ( 15 )] … (8) “border crossing point” means any crossing-point authorised by the competent authorities for the crossing of external borders; … (10) “border control” means the activity carried out at a border, in accordance with and for the purposes of [the Schengen Borders Code], in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance; (11) “border checks” means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it.’

10. Article 3 states that the Schengen Borders Code applies to any person crossing the Member States’ internal or external borders. ( 16 )

11. Title II is headed ‘External Borders’. Within Chapter I of that title (‘Crossing of external borders and conditions for entry’), Article 5(1) provides that external borders may be crossed only at border crossing points and during the fixed opening hours. Certain exceptions to that obligation are laid down in Article 5(2)(c) for specific types of border (such as sea borders) and particular categories of persons (including seamen). ( 17 )

12. Third-country nationals are subject to the entry conditions laid down in Article 6. These include possession of a valid travel document; (where required) a valid visa; justification of the purpose and conditions of the intended stay; that they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry; and that they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States. ( 18 )

13. Article 8(1) states that cross-border movement at external borders is subject to checks by border guards carried out in accordance with Chapter II (‘Control of external borders and refusal of entry’) of the Schengen Borders Code. Pursuant to Article 8(3), all third-country nationals are subject to thorough checks on entry to and exit from the Schengen area. Thorough checks comprise verification that the person concerned has a valid document for crossing the border; has genuine travel documentation; and (whenever possible) is not considered to be a threat to public policy, internal security or the international relations of any of the Member States. Additional thorough checks on exit may comprise verification that the individual is in possession of a valid visa and that he has not exceeded the maximum duration of authorised stay in the Schengen area and consultation of relevant alert systems. ( 19 )

14. Within Chapter II, Article 11 provides: ‘(1) The travel documents of third-country nationals shall be systematically stamped on entry and exit. In particular an entry or exit stamp shall be affixed to: (a) the documents, bearing a valid visa, enabling third-country nationals to cross the border … (3) No entry or exit stamp shall be affixed: … (c) to the travel documents of seamen who are present within the territory of a Member State only when their ship puts in and in the area of the port of call; (d) to the travel documents of crew and passengers of cruise ships who are not subject to border checks in accordance with point 3.2.3 of Annex VI; …’

15. Pursuant to Article 19 (part of Chapter IV ‘Specific rules for border checks’), specific rules for sea borders apply to checks as laid down in point 3 of Annex VI. The general checking procedures state: ‘checks on ships shall be carried out at the port of arrival or departure, or in an area set aside for that purpose, located in the immediate vicinity of the vessel or on board ship in the territorial waters as defined by [UNCLOS]. Member States may conclude agreements according to which checks may also be carried out during crossings or, upon the ship’s arrival or departure, on the territory of a third country … [inter alia the vessel’s master] shall draw up a list of the crew and any passengers containing the information required in the forms 5 (crew list) and 6 (passenger list) of the Convention on Facilitation of International Maritime Traffic (FAL Convention) [ ( 20 )] as well as, where applicable, the visa or residence permit numbers …’ ( 21 )

16. In accordance with Article 20 and point 3 of Annex VII, specific rules apply to checks on seamen: as follows ‘by way of derogation from Articles 5 and 8, Member States may authorise seamen holding a [seaman’s] identity document issued in accordance with [international law ( 22 )] and the relevant national law to enter the territory of the Member States by going ashore to stay in the area of the port where their ships call or in the adjacent municipalities, or exit the territory of the Member States by returning to their ships, without presenting themselves at a border crossing point, on condition that they appear on the crew list, which has previously been submitted for checking by the competent authorities, of the ship to which they belong’.

The Visa Code

17. Article 1(1) of Regulation (EC) No 810/2009 establishing a Community Code on Visas ( 23 ) states that the Visa Code establishes the procedures and conditions for issuing visas for transit through or intended stays within the territory of the Member States not exceeding 90 days in any 180-day period. ( 24 )

18. Article 2(2)(a) defines ‘visa’ as meaning ‘an authorisation issued by a Member State with a view to transit through or an intended stay in the territory of the Member States of a duration of no more than 90 days in any 180-day period’.

19. Under Article 35, visas may be issued at border crossing points in exceptional cases.

20. Article 36 provides that a seaman who is required to be in possession of a visa when crossing the external border of the Schengen area in transit may be issued with a visa at the border if he fulfils the conditions laid down in Article 35(1) and he is crossing the border to embark on, re-embark on or disembark from a ship on which he will work or has worked as a seaman. When issuing a visa the competent authorities must comply with the rules in Annex IX to the Visa Code. ( 25 )

Directive 2010/65/EU

21. Directive 2010/65/EU on reporting formalities for ships arriving in and/or departing from ports of the Member States ( 26 ) aims to simplify, harmonise and rationalise the administrative procedures and reporting formalities applied to maritime transport by standardising the electronic transmission of information for ships arriving in and departing from ports situated in Member States.

22. Pursuant to Article 7, Member States are to accept information submitted on FAL forms in fulfilment of the reporting formalities. The Annex to the directive sets out the information to be included in the FAL form in order to comply with those formalities. That information includes notification of ships arriving in and departing from the ports of Member States (Part A, point 1); border checks on persons as laid down in Article 8 of the Schengen Borders Code (Part A, point 2); and the crew list (Part B, point 5).

Facts, procedure and the question referred

23. On various dates during the course of January, February and March 2016 a number of third-country nationals entered the Netherlands at Schiphol airport and travelled to the port of Rotterdam. All those concerned were engaged as ships’ crew and employed to work on vessels which were already berthed in Rotterdam. They travelled from Schiphol airport to the port, where they signed on as crew members on the same day that they arrived in the Netherlands. The vessels concerned were destined for the high seas and would leave the Netherlands territorial waters at a point in time unknown on the date when the seamen arrived in the Netherlands.

24. Some of the seamen spent the entire period of their contract working on board vessels which remained berthed at Rotterdam. At the end of their tour of duty on board, they left the Netherlands (and therefore the Schengen area) by plane from Schiphol airport. Others, after having spent time working on board a vessel berthed at Rotterdam, remained on board and left the Netherlands territorial waters as crew members on that vessel.

25. The seamen were building specialists whose work involved, inter alia, erecting oil platforms (rigs) and pipelines at sea. Their work also covered preparing a docked vessel for a new voyage. The duration of the work and the time during which the vessel was moored depended on the scale of the works and the vessel concerned. The working and employment practice was not new. The seamen submitted requests to the Zeehavenpolitie Rotterdam (Rotterdam Seaport Police (‘the ZHP’)) to issue and affix exit stamps to their travel documents. Up to the beginning of 2016 seamen had always received an exit stamp on their travel documents at the time when they signed on as ship’s crew in Rotterdam (‘the old practice’).

26. After that date, the ZHP refused all such requests on the grounds that it was not possible to determine when the vessel concerned would leave port (‘the new practice’).

27. As third-country nationals the seamen were able to stay in the Schengen area for a maximum of 90 days within a period of 180 days under the Schengen Borders Code. ( 27 ) The seamen stated that the effect of the new practice was to reduce the period of their authorised stay as compared to the old practice, because time spent working on board a vessel as a crew member would now be counted in relation to that 90-day period. Under the old practice the time spent working on board was not taken into account and was not therefore deducted from the 90-day period. Also, because they had to wait for a period of 180 days before returning to the Schengen area they would work less and correspondingly would receive less income. ( 28 )

28. In July 2016, the Staatssecretaris van Justitie en Veiligheid (Netherlands Secretary of State for Security and Justice) (‘the Staatssecretaris’), declared inadmissible the administrative appeals lodged by various ship operators, (C. and H. and Others, ‘the operators’) against the ZHP’s decision refusing requests to issue exit stamps. The Staatssecretaris also declared the administrative appeals lodged by the seamen (J. and Others) themselves to be unfounded.

29. By four judgments of 17 May 2017, the Rechtbank Den Haag (District Court, The Hague, Netherlands) ruled the operators’ appeals challenging the Staatssecretaris’ decision to be unfounded. However, that court held that the seamen’s appeals were founded. The Staatssecretaris then appealed against those judgments whilst the operators lodged a cross-appeal before the referring court.

30. The order for reference states that the port of Rotterdam is part of the external border of the Schengen area for the purposes of the Schengen Borders Code and that on average 160 vessels per year are moored for long periods in that port. It notes that the Koninklijke Vereniging van Nederlandse Reders (Royal Association of Netherlands Ship Owners) drew attention to the fact that other European ports affix an exit stamp to seamen’s travel documents at the moment when crew sign on. The referring court expressly rejected the Staatssecretaris’ submission that the ZHP’s counterparts in other Member States do not necessarily affix an exit stamp when crew members sign on.

31. The referring court expressed the view that if the time when seamen exit the Schengen area for the purposes of the Schengen Borders Code is established differently in the ports of the various Member States, that would create distortions in competition for the EU offshore industry.

32. The referring court thus considers that in order to resolve the dispute in the main proceedings it is necessary to seek this Court’s guidance on the interpretation of Article 11(1) of the Schengen Borders Code, in particular the meaning of the word ‘exit’ in that provision. Accordingly, it submits the following question to the Court for a preliminary ruling: ‘Must Article 11(1) of [the Schengen Borders Code] be interpreted as meaning that a third-country national who previously entered the Schengen area, for example through an international airport, exits within the meaning of the Schengen Borders Code as soon as he, as a seaman, signs on with a seagoing vessel that is already berthed in a seaport which is an external border, irrespective of whether, and if so when, he will leave that seaport with that ship? Or, in order for there to be an exit, must it first be established that the seaman will leave the seaport with the seagoing vessel concerned, and if so, does a deadline apply within which the departure must take place and at what time must the exit stamp then be applied? Or should a different time, whether or not under other conditions, be equated with “exit”?’

33. Written observations were submitted by J. and Others and C. and H. and Others (the seamen and the ships’ operators), the Governments of Germany, Greece and the Netherlands and the European Commission. The same parties attended the hearing on 6 June 2019 and presented oral argument.

Assessment

Preliminary observations

34. In the particular circumstances of the main proceedings, at what moment in time should an exit stamp be affixed to the travel documents of seamen under Article 11(1) of the Schengen Borders Code? Whilst the referring court’s order for reference does not specify the nationalities of the individual seamen concerned, it seems from the description of the facts that they are all nationals of third countries falling within the scope of Article 1(1) of and Annex I to Regulation No 539/2001. Thus, they are persons required to be in possession of a visa when crossing the external border of the Member States. ( 29 ) Any such visa must be presented for inspection and to be stamped upon entry to and exit from the Schengen area. ( 30 )

35. Article 11(3) of the Schengen Borders Code makes provision for certain specific exceptions to those rules. Under Article 11(3)(c), no entry or exit stamp is to be affixed to the travel documents of seamen who are present within the territory of a Member State only when their ship puts in and (who remain) in the area of the port of call. It is common ground that that exception is not applicable here.

36. I agree with that view.

37. It seems to me that the exception in Article 11(3)(c) applies to seamen when they arrive on board a vessel which moors in a port within the Schengen area. They can then request and be granted shore leave. Such personnel do indeed fall within the scope of the exception in Article 11(3) of the Schengen Borders Code and the derogation in Article 20 of and Annex VII, point 3, to that regulation. However, the facts and circumstances of the seamen in the main proceedings as described in the order for reference fall outwith the scope of those provisions. They did not sail into the port of Rotterdam on board a ship. They reached the Netherlands by air, arriving at Schiphol airport.

38. Thus, the seamen in those proceedings are not attempting to rely on the special arrangements for shore leave under the Schengen Borders Code. They are crossing the external border at the port of Rotterdam in order to sign on to work as crew. They are not enjoying a temporary respite from their duties on board ship by taking leave to benefit from the amenities of the port area.

39. Likewise, it seems to me that the referring court is correct in its view that Articles 35 and 36 of the Visa Code (which govern issuing visas at the external borders) are not relevant to the interpretation of Article 11(1) of the Schengen Borders Code for the purposes of resolving the point at issue here. Pursuant to Article 35 of the Visa Code, in exceptional cases the competent authorities can issue visas at the external border. Article 36 of and Annex IX to the Visa Code make specific provision for issuing such visas to seamen in transit at the external border. However, the main proceedings are not concerned with issuing transit visas. Rather, the question is whether an exit stamp should have been placed on their travel documents when they signed on as crew. Those circumstances have nothing to do with whether the seamen were in transit in the Netherlands.

40. In my examination of the meaning of the word ‘exit’ in Article 11(1) of the Schengen Borders Code, I shall therefore not refer further to the special regime for shore leave for seamen or the regime for issuing visas at the external border for seamen in transit.

Substance

41. What does ‘exit’ mean for the purposes of Article 11(1) of the Schengen Borders Code?

42. That question arises in the specific context of seamen who arrive in a Member State by air. They travel to their ship, which is already moored in a port which comprises part of the external Schengen border. They sign on to work for a period as crew on board the moored vessel. Some of them return to a third-country by air. Others continue as crew on the vessel when it leaves the port (and shortly thereafter the Netherlands territorial waters). The referring court also seeks guidance as to how the Schengen Borders Code should apply if seamen are deemed to exit the Schengen area only when the date that the vessel on which they are working will depart from port is known.

43. The third-country nationals and the operators submit that in such circumstances seamen ‘exit’ the Schengen area when they present themselves at a border crossing point and sign on as crew on a vessel moored at a sea port, such as Rotterdam. The Greek Government supports that submission.

44. Germany, the Netherlands and the Commission disagree with that view.

45. The German Government argues that seamen ‘exit’ the Schengen area only when the vessel on which they have signed on actually leaves port. An exit stamp should thus be affixed to a seaman’s travel documents only when the date of departure is known. The Netherlands Government likewise, maintains that signing on as crew and leaving the terrestrial area of the port to work on board the vessel is not ‘exiting’ the Schengen area within the meaning of Article 11(1) of the Schengen Borders Code. For a third-country national to leave the Schengen area, he must cross the external geographic border of one of the Schengen States. The external sea border is established by reference to UNCLOS and is located at 12 nautical miles from the shoreline. ( 31 ) In order to obtain an exit stamp, a seaman must establish that he will leave the Schengen area on board the vessel in question and that once the exit stamp has been affixed that vessel will cast off (or up anchor) ( 32 ) within a short period thereafter.

46. The Commission submits that a seaman does not exit the Schengen area within the meaning of Article 11(1) of the Schengen Borders Code when he signs on as crew. It must first be established that the seaman concerned will leave port on board the vessel, and the relevant stamp is to be affixed to his travel documents only when cast-off (or up anchor) is imminent.

47. The information in the order for reference and the observations made by the seamen and the ships’ operators at the hearing in answer to questions from the Court indicate that the seamen normally travelled to the port of Rotterdam on the same day that they arrived in the Netherlands by air and obtained their arrival entry stamp. Under the old practice, they signed on as crew, obtained an exit stamp from the ZHP and boarded the vessel which was in long-term mooring, all on the same day. The time thereby spent within the Netherlands taken into account for the purposes of the Schengen Borders Code and the Visa Code would therefore never be more than one day. Under the new practice the timing of the entry stamp would remain the same (on arrival), whereas the exit stamp would only be affixed after the seaman’s tour of duty on board was completed or when the vessel on which he was working was about to cast off. For the seamen the result was that they would use up a significant portion of the 90 days in any 180-day period permitted under the Visa Code. ( 33 ) As a result, they were able to undertake fewer tours of duty and their income was correspondingly reduced.

Interpretation of ‘exit’

48. Article 11(1) of the Schengen Borders Code states that the travel documents of third-country nationals must be systematically stamped on entry (to) and exit (from) the Schengen area. The words ‘entry’ and ‘exit’ are not defined in that regulation.

49. The referring court starts its assessment of Article 11(1) by comparing the different language versions of the text. It concludes that a consideration of the English, French, German and Netherlands versions does not give any indication of the meaning of ‘exit’. As there is no obvious divergence between the different linguistic versions of that provision that I have examined, ( 34 ) I shall not pursue that line of enquiry further.

50. As the Court has consistently held, the interpretation of a legislative term is to be determined by considering the usual meaning in everyday language, while taking into account the context in which it occurs and the purposes of the rules of which it forms part. The usual meaning of ‘exit’ is ‘to go out or to go forth’ from a place. The word ‘exit’ is also understood in the sense of ‘authorisation’ or ‘permission to leave a country’. ( 35 )

51. Two contradictory views have been expressed as to the meaning of ‘exit’ in Article 11(1) of the Schengen Borders Code. Germany, the Netherlands and the Commission are of the view that signing on as crew on board ship at a border crossing point does not constitute exiting the Schengen area. Germany and the Netherlands submit further that in order to exit, the seamen must physically cross the geographical external sea border on the vessel concerned (‘option 1’).

52. The applicants in the main proceedings (seamen and operators alike), supported by Greece, argue that by signing on seamen do indeed exit the Schengen area. The relevant stamp should therefore be affixed to their travel documents at that moment (‘option 2’). Both options seem to me plausibly to fall within the everyday meaning of the word ‘exit’. Thus, the context and the legislative scheme of the Schengen Borders Code will be the determinative factors in deciding the interpretation.

53. I shall start by examining option 1.

Option 1

54. The obvious attraction of option 1 is that it links exit from the Schengen area to the physical location of the person concerned. According to this rationale, so long as the seaman is physically present in the port of Rotterdam — whether walking along the quayside, on board a ship moored at that quay or working on a ship at anchor in 50 metres of water — he has still not ‘left’ the Netherlands. He is therefore not entitled to have an exit stamp affixed to his visa, because he is still using his visa to visit an EU Member State.

55. On closer inspection, however, this simple ‘physical presence’ approach to a legal question runs into difficulties.

56. First, I recall that the Court has stated, ‘… even where the different language versions are entirely in accord with one another, … [EU] law uses terminology which is peculiar to it. Furthermore, it must be emphasised that legal concepts do not necessarily have the same meaning in [EU] law and in the law of the various Member States’. ( 36 ) Thus, the word ‘exit’ in Article 11(1) of the Schengen Borders Code will have an autonomous meaning in EU law and is to be interpreted uniformly throughout the Member States. It does not necessarily have the same meaning in national law. Furthermore, it does not necessarily follow that ‘exit’ in EU law must be synonymous with crossing a Member State’s geographical external border as established by reference to UNCLOS. ( 37 ) Accordingly, whether the external Schengen border and the geographical external border happen to coincide is irrelevant.

57. I therefore disagree with the contention advanced by Germany and the Netherlands that it follows from the Schengen Borders Code that a third-country national must cross the external geographical border of one of the Member States in order to exit from the Schengen area for the purposes of Article 11(1) of that regulation.

58. Second, as Advocate General Fennelly stated in his Opinion in Commission v Council, ( 38 ) two aspects should be distinguished when a person crosses a border. The first aspect is that of exiting the territory of a Member State in the physical sense, without necessarily crossing at a border control point. The second aspect is that of exiting the Schengen area in the legal sense when the person concerned crosses at a border control point and is subject to the necessary checks. ( 39 ) All of those procedures will indicate that the person concerned also physically crosses the external border of the Schengen area.

59. Here, the referring court seeks specific guidance as to whether it is necessary to establish that the seamen in question cross the external border in both the physical and legal sense (at the same moment) in order for an exit stamp to be affixed to their travel documents.

60. Third-country nationals are subject to thorough checks on exit, as laid down in Article 8(3)(g) of the Schengen Borders Code. These include verification that the person concerned is in possession of a valid visa (Article 8(3)(h)(i)). Such checks comprise part of the second aspect: confirmation that the individual leaves the Schengen area in the legal sense. As the Court explained in Commission v Council, ( 40 ) a visa authorises the holder to pass border control on entry, not merely to cross the geographical borders of a Member State. Where a third-country national exits a Member State, the process of affixing a stamp to the travel documents confirms that the person leaving is the same individual who entered the Schengen area and indicates that the period for which the visa was been issued has been respected. Thus, the visa is a legal document which allows and confirms passage through a border control point at the external border.

61. The present case gives rise to a third (potential) aspect for consideration. Is it also necessary to establish that the person has left the geographical territory of the Member State as delimited under international law?

62. That third aspect seems to me to be outwith the scope of the Schengen Borders Code, which defines the external border for the purposes of that regulation in Article 2(2). The aim is to control the crossing of the external Schengen borders, rather than the geographical border as such (where the two do not coincide).

63. It seems to me that option 1 places too much emphasis on the physical location of the third-country national within the geographical area of the Member State concerned, rather than assessing that person’s situation by reference to the objectives of border control and visa policy which lie at the root of the Schengen Borders Code in relation to controlling the movement of third-country nationals exiting the Schengen area. I am therefore not persuaded that focusing on the physical location of the seamen at the expense of giving weight to the legal sense of exiting by the external border which that legislation aims to regulate is the correct approach.

64. In this context, it is important to bear in mind that once a seaman signs on as crew on board a vessel, he is not his own master. He does not control when he works his shifts, when he rests, or whether (and if so, when and for how long) he can take shore leave. He has no say in whether, during his tour of duty, the vessel remains where she is (moored alongside or at anchor), moves to a different berth or leaves port. He ceases, in other words, to be able to decide on his physical location. As a working crew member, he is subject to the orders of the vessel’s master.

65. An imperfect analogy may perhaps be helpful here. Imagine an air passenger (a third-country national) who has gone through security and passport control and who has boarded the flight to his destination. As he went through passport control, an exit stamp was affixed to his Schengen visa. Once the passenger is on board the aircraft, he ceases to control his physical location. The captain will decide whether and when the aircraft takes off. If there is an air traffic control delay, the captain will decide whether the passengers wait patiently on board the plane or whether (if the delay is a long one), they will be disembarked and re-embarked at a later stage. In the latter case, after disembarkation the passenger will again be within the terminal building, albeit ‘airside’. He would be free, should he so choose, to go through passport control again and re-enter the territory of the Member State (at that point, a new entry stamp would be affixed to his Schengen visa). But as long as he remains ‘airside’, it is clear that he has exited — and that irrespective of the fact that he is no longer on board the aircraft, but having a coffee and a bite to eat in the terminal building.

66. Third, option 1 relies on tying the moment when the seaman exits the Schengen area to the departure date of the vessel on which he is working. At a practical level, that leads to uncertainty. It is possible to identify the scheduled departure date for the vessel but there is no guarantee that she will in fact leave on that date. Factors such as the weather and the progress of the works on board may oblige the departure date to be rescheduled.

67. Option 1 is thus inconsistent with the obligation in Article 11(1) of the Schengen Borders Code to affix exit stamps systematically to travel documents. If a criterion such as ‘shortly before departure’ is introduced (as the Commission submits), those words can all too easily be interpreted differently in the various Member States and indeed by the authorities at different ports within one State. Thus, such a condition would be inconsistent with establishing a uniform interpretation of Article 11(1).

68. I recall that, on the facts, there are here two categories of seamen. Some arrive by air, complete their tour of duty on board and depart by air. Others arrive by air, commence their tour of duty on board and, before it has ended depart by sea. Option 1 leads to a difference in treatment between the two categories of seamen. It seems that such a distinction did not exist under the previous system as both categories obtained exit stamps at the border control point when they signed on as crew.

69. Furthermore, as the seamen and the ships’ operators pointed out at the hearing, under option 1 whether an exit stamp is affixed turns on whether it can be established that the vessel concerned actually leaves the Schengen area. Thus, third-country nationals working on board a vessel which leaves Rotterdam for Las Palmas (the Canary Islands and therefore part of Spain) would not receive an exit stamp, because they remain within the Schengen area. However, third-country nationals working on board a vessel which leaves Rotterdam for Cairo (Egypt) would obtain an exit stamp (presumably), based on the declared destination of the vessel). Here, I draw attention to statements in the preparatory material for the Schengen Borders Code that ‘given the definition of internal and external maritime borders … ports are as a rule always treated as external borders; any vessel must therefore be checked on each entry and exit, since it is impossible to ascertain what happens outside port, whether in territorial or in international waters (embarkation/disembarkation of persons or goods). …’ ( 41 )

70. On closer inspection, therefore, the interpretation proposed in option 1 is not fully consistent with the obligations laid down in Article 11(1) of the Schengen Borders Code. Crossing the external border to exit the Schengen area should not be equated with crossing the geographical boundaries of a Member State.

Option 2

71. Under option 2, the third-country nationals exit the Schengen area when they cross the border control point in the port and sign on as crew on the vessel to which they have been assigned.

72. Article 11(1) of the Schengen Borders Code is to be read in the context of Article 2(2) thereof which states that the external borders include ‘sea ports’. It is common ground that the port of Rotterdam falls within that definition.

73. In accordance with Article 3 of the Schengen Borders Code, the regulation applies to any person crossing the (internal and) external borders of Member States. The general principle is that borders are to be crossed only at authorised border crossing points during the fixed opening hours. On entry and exit, third-country nationals are subject to thorough checks as laid down in Article 8 of the Schengen Borders Code. The wider legislative context includes the visa rules setting the conditions for entry to and exit from the Schengen area. Those rules are complemented by the VIS and SIS systems in that they enable the Member States to carry out checks to ensure that the individuals concerned do not constitute threats to the public policy, internal security and public health of Member States (recital 6). Such checks are carried out at the border crossing point. ( 42 )

74. Moreover, pursuant to Article 5(1) of the Schengen Borders Code the external borders may be crossed only at border crossing points. There is nothing to indicate that the circumstances at issue in the main proceedings give rise to any of the derogations set out in Article 5(2) including those which specifically relate to seamen (Article 5(2)(c)). ( 43 )

75. Therefore option 2 does not undermine the aims of the Schengen Borders Code. The seamen accept that they are subject to the normal rules: they must have visas and valid travel documents; they must pass through a border checkpoint and be subject to border controls on entry and exit; and their documents must be stamped in accordance with the Schengen Borders Code. Thus, no question of illegal immigration arises. The seamen concerned remain accounted for and within the system at all times. ( 44 ) The only issue is the timing and the place at which the border controls are to be conducted. In economic terms, however, that issue is very important to the seamen and the operators alike.

76. I consider that option 2 is preferable to option 1.

77. First, option 2 is consistent with the wording, scheme and objectives of the Schengen Borders Code; in particular it takes account of the definition in Article 2(2) that a seaport can constitute the external border of a Member State and the rule that external borders are to be crossed only at border crossing points; the port of Rotterdam is such a point. Option 1 does not satisfy that test.

78. Second, option 2 leads to both a uniform interpretation and a uniform application of Schengen Borders Code throughout the Member States. Checks can be carried out at the border crossing point (in cases such as this, at the port) where the third-country nationals concerned sign on as crew and board the vessel. Stamps may be affixed systematically in accordance with Article 11(1) at that time.

79. Third, option 2 creates fewer anomalies than option 1, as the time and place of affixing stamps to travel documents is certain.

80. Fourth, there is the practical advantage that all seamen would be treated in the same way. No distinction is drawn between those who leave by air after completing their work and those who sail with the ship when it departs from port.

81. Last, I recall that the referring court states that the Rotterdam port authorities previously affixed exit stamps to the travel documents of seamen such as the applicants in the main proceedings at the point when they signed on as crew; but that the practice changed at the beginning of 2016. It is unclear what prompted the change. There has been no suggestion that it was based on reasons that had to do with the application of EU law. The referring court indicates that the new practice is out of step with other sea ports in the Netherlands that form part of the external border, as well as other such ports in other Member States. The new practice would appear therefore to lead to distortions which are potentially contrary to the aims expressed in recital 17 to the Schengen Borders Code (avoiding major barriers, inter alia, to trade).

Conclusion

82. In the light of all the foregoing considerations, I suggest that the Court should answer the question raised by the Raad van State (Council of State, Netherlands) as follows: In circumstances where a third-country national seaman arrives in a Member State by air and subsequently signs on as crew on board a vessel already moored in a port which constitutes an external border within the meaning Article 2(2) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders, Article 11(1) of that regulation should be construed as meaning that the person concerned exits the Schengen area when he signs on as crew, even if the moment when the vessel in question will leave port cannot be established.

( 1 ) Original language: English.

( 2 ) Regulation of the European Parliament and of the Council of 9 March 2016 (Schengen Borders Code) (OJ 2016 L 77, p. 1).

( 3 ) Of the 28 EU Member States, 22 participate fully in the Schengen acquis. Bulgaria, Croatia and Romania are in the process of becoming full participants. Iceland, Liechtenstein, Norway and Switzerland participate in the Schengen acquis pursuant to bilateral agreements with the European Union. I shall refer to the States participating in the Schengen acquis as ‘the Schengen States’ within this text. I record for the sake of good order that there are particular arrangements for Ireland and the United Kingdom. Under Article 4 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the TFEU, Ireland and the United Kingdom are entitled to request to take part in some or all Schengen measures. Pursuant to Article 1 of Protocol (No 22) on the position of Denmark, annexed to the TEU and to the TFEU, that Member State does not participate in the adoption by the Council of proposed measures under Title V of Part Three, TFEU (Union policies and internal actions in the area of freedom, security and justice).

( 4 ) 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). The Convention is still in force, although it has been replaced in part by the Schengen Borders Code which repealed Articles 2 to 8 of the Convention. See also the Decision of the Executive Committee of 28 April 1999 on the definitive versions of the Common Manual and the Common Consular Instructions (SCH/Com-ex (99) 13) (OJ 2000 L 239, p. 317). An updated version of the Common Manual, without certain confidential annexes, was published in (OJ 2002 C 313, p. 97).

( 5 ) See Article 24 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2006 L 381, p. 4).

( 6 ) Regulation of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011 (OJ 2017 L 327, p. 20).

( 7 ) Those rules would have been complemented by the implementing measures. Also, see further point 17 below.

( 8 ) Regulation of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ 2008 L 218, p. 60).

( 9 ) Council Regulation 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).

( 10 ) Recital 2.

( 11 ) Recital 3.

( 12 ) Recital 4.

( 13 ) Recital 6.

( 14 ) Recital 17.

( 15 ) Point 5 of Article 2 defines persons enjoying the right of free movement under EU law as ‘[EU] citizens within the meaning of Article 20(1) TFEU and third-country nationals who are members of the family of an [EU] citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004; [‘the Citizens Rights Directive’] … applies … [together with] third-country nationals and their family members, whatever their nationality, who under agreements between the [EU] and its Member States, on the one hand, and those third countries on the other hand, enjoy rights of free movement equivalent to those of [EU] citizens’.

( 16 ) That is without prejudice to the rights of persons enjoying the right of free movement under EU law and the rights of refugees and persons requesting international protection.

( 17 ) See further Articles 19 and 20 and Annexes VI and VII (points 15 and 16 below).

( 18 ) Annex I lists non-exhaustively the supporting documents that a third-country national may be requested to produce.

( 19 ) Article 8(3)(g) and (h). As regards the operation of the SIS, see point 5 above.

( 20 ) The International Maritime Organisation Convention on Facilitation of Maritime Traffic (FAL) adopted on 9 April 1965, as amended, which entered into force on 5 March 1967.

( 21 ) Annex VI, points 3.1.1 and 3.1.2 respectively.

( 22 ) The relevant international legal instruments are the International Labour Organisation Seafarers Identity Documents Convention No 108 (1958) and No 185 (2003) and the FAL Convention. The main aims of the latter are to prevent unnecessary delays in maritime traffic, to aid cooperation between governments and to secure the highest practicable degree of uniformity in formalities and other procedures regarding maritime traffic. See further point 22 below.

( 23 ) Regulation of the European Parliament and of the Council of 13 July 2009 (Visa Code) (OJ 2009 L 243, p. 1).

( 24 ) The Visa Code applies to any third-country national who is required by Regulation No 539/2001 to be in possession of a visa when crossing the external borders of Member States.

( 25 ) Annex IX lays down the rules for issuing visas at the border to seamen in transit where those individuals are subject to visa requirements.

( 26 ) Directive of the European Parliament and of the Council of 20 October 2010 and repealing Directive 2002/6/EC (OJ 2010 L 283, p. 1).

( 27 ) See Article 6(1) of the Schengen Borders Code and Article 2(2) of the Visa Code. The referring court also states that if seamen require a visa, then the length of authorised stay is generally shorter, 45 days in a period of 180 days (see point 3.3 of the order for reference).

( 28 ) See further point 47 below.

( 29 ) See points 6 and 12 above.

( 30 ) See point 12 above.

( 31 ) See points 3 and 4 above.

( 32 ) The material before the Court suggests that whilst some vessels may have been moored alongside at quays, others will have been at anchor within the wider port area.

( 33 ) See point 18 above.

( 34 ) From the other languages that I have been readily able to translate I have established that the following terms are used: ‘udrejse’ (Danish); ‘dell’uscita’ (Italian); ‘wyjazd’ (Polish); ‘de saída’ (Portuguese); ‘vystup’ (Slovak); and ‘la salida’ (Spanish).

( 35 ) The Concise Oxford English Dictionary.

( 36 ) Judgment of 6 October 1982, Cilfit and Others283/81, EU:C:1982:335, paragraph 19.

( 37 ) See point 4 above.

( 38 ) C‑170/96, EU: C:1998:43, point 24.

( 39 ) Article 2(8), (10) and (11) of the Schengen Borders Code, see also Article 5(1) of that regulation.

( 40 ) Judgment of 12 May 1998C‑170/96, EU:C:1998:219, paragraph 23.

( 41 ) Proposal for a Council Regulation establishing a Community Code on the rules governing the movement of persons across borders COM(2004) 391 final of 26 May 2004, p. 26.

( 42 ) See further the new rules in Regulation 2017/2226 establishing, inter alia, an entry and exit data system recording the crossing of all third-country nationals across the external Schengen borders mentioned in point 5 above.

( 43 ) See points 11, 16, and 34 to 38 above.

( 44 ) See points 21 and 22 above.