OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 6 December 2012 ( 1 )

Case C-254/11

Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége

v

Oskar Shomodi

(Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary))

‛Area of freedom, security and justice — ‘Local border traffic’ at the external land borders of the European Union — Regulation (EC) No 1931/2006 — Article 5 — Border residents — Calculation of the maximum duration of authorised uninterrupted stay — Bilateral Agreement — Maximum duration of uninterrupted stay of three months within a six-month period — Respect for private life — Article 7 of the Charter — Article 8 ECHR — Freedom to cross the border — Legitimate reasons — Prevention and sanction of abuses — Fair balance’

1. The Court is for the first time requested to interpret the provisions of Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention. ( 2 )

2. The local border traffic regime, which derogates from the general rules governing the control of persons at the external land borders of the Member States, seeks, generally, to respond to the situation of populations in border areas, who often perceive the State border lines as an artificial circumstance which adversely affects or, at least, constitutes a practical obstacle to the development of the various aspects of their social life. That observation applies more particularly to populations which were affected by relatively frequent border changes during the last century.

3. The ratio legis of that unusual legislation, which has the specific feature of delegating to the Member States the task of concluding with the third countries concerned bilateral agreements implementing the regime which it establishes, will lead me to invite the Court to declare that a border crossing regime introduced in the context of local border traffic, such as that at issue in the main proceedings, cannot, in the light of the scheme of the regime laid down by Regulation No 1931/2006 and of the requirements stemming inter alia from the Charter of Fundamental Rights of the European Union ( 3 ) and the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, ( 4 ) find support in the provisions of Article 5 of that regulation, even if that provision is read in conjunction with Article 20 of the Convention implementing the Schengen Agreement, signed in Schengen on 19 June 1990. ( 5 )

I – Legal framework

4. The present case is set in an unusual legal framework. That framework is principally constituted by an act of international law, in this case the local border traffic agreement, signed on 18 September 2007 in Oujgorod between the Hungarian Government and the Cabinet of Ministers of Ukraine, ( 6 ) and an act of EU secondary legislation, Regulation No 1931/2006, the former adopted on the ‘authorisation’ of the latter. Only the relevant principal provisions of that bilateral agreement and that regulation are set out below, although they are part of a more general legal framework, constituted inter alia by the Schengen acquis, ( 7 ) the Schengen Borders Code ( 8 ) and the Visa Code. ( 9 )

A – International law: the bilateral agreement concluded by Hungary

5. Article 1(1) and (5) of the bilateral agreement concluded by Hungary provides: ‘1. Persons who have had permanent residence for at least three years in settlements along the State border listed in Annex I to the present Agreement and who are in possession of the local border traffic permit as defined in Article 2 may enter and stay in the border area of the State of the other Contracting Party without any further permission. … 5. The permit as defined in Article 2 entitles its holder to multiple entry and to a continuous stay of a maximum of three months within a six-month period in the border area of the State of the other Contracting Party, in particular for social, cultural or family reasons, or substantiated economic reasons that are not to be considered as gainful activity for the purposes of national legislation. Border residents who have entered the State of the other Contracting Party with the permit are not authorised to stay outside of the border area of that State. …’

B – European Union law: Regulation No 1931/2006

6. Recitals 2 to 4, 9 and 13 in the preamble to Regulation No 1931/2006 provide: ‘2. It is in the interest of the enlarged Community to ensure that the borders with its neighbours are not a barrier to trade, social and cultural interchange or regional cooperation. An efficient system for local border traffic should consequently be developed. 3. The local border traffic regime constitutes a derogation from the general rules governing the border control of persons crossing the external borders of the Member States of the European Union which are set out in [the Schengen Borders Code]. 4. The Community should lay down criteria and conditions to be complied with when the crossing of an external land border under the local border traffic regime is being eased for border residents. Such criteria and conditions should ensure a balance between, on the one hand, the easing of border crossing for bona fide border residents having legitimate reasons frequently to cross an external land border and, on the other hand, the need to prevent illegal immigration and potential threats to security posed by criminal activities. … 9. For the implementation of the local border traffic regime, Member States should be allowed to maintain or conclude, if necessary, bilateral Agreements with neighbouring third countries, provided that such Agreements comply with the rules laid down in this Regulation. … 13. This Regulation respects the fundamental rights and freedoms and observes the principles recognised in particular by the [Charter].’

7. Article 2(a) and (b) of Regulation No 1931/2006 provides: ‘This Regulation shall not affect the provisions of Community and national law applicable to third-country nationals relating to: (a) long-term stays; (b) access to and exercise of economic activity.’

8. Article 5 of Regulation No 1931/2006, entitled ‘Duration of stay in the border area’, provides: ‘The bilateral Agreements referred to in Article 13 shall specify the maximum permissible duration of each uninterrupted stay under the local border traffic regime, which shall not exceed three months.’

9. The conclusion by the Member States of bilateral agreements with neighbouring third countries referred to in Article 5 of Regulation No 1931/2006 is governed by Article 13 of that regulation, which provides: ‘1. For the purposes of implementing the local border traffic regime, Member States shall be authorised to conclude bilateral Agreements with neighbouring third countries in accordance with the rules set out in this Regulation. Member States may also maintain existing bilateral Agreements with neighbouring third countries on local border traffic. To the extent that such Agreements are incompatible with this Regulation, the Member States concerned shall amend the Agreements in such a way as to eliminate the incompatibilities established. 2. Before concluding or amending any bilateral Agreement on local border traffic with a neighbouring third country, the Member States concerned shall consult the Commission as to the compatibility of the Agreement with this Regulation. If the Commission considers the Agreement to be incompatible with this Regulation, it shall notify the Member State concerned. The Member State shall take all appropriate steps to amend the Agreement within a reasonable period in such a way as to eliminate the incompatibilities established. 3. Where the Community or the Member State concerned has not concluded a general readmission Agreement with a third country, the bilateral Agreements on local border traffic with that third country shall provide for the readmission of persons found to be abusing the local border traffic regime as established by this Regulation to be facilitated.’

10. Article 14 of Regulation No 1931/2006 provides: ‘In the bilateral Agreements referred to in Article 13, Member States shall ensure that third countries grant persons enjoying the Community right of free movement and third-country nationals lawfully resident in the border area of the Member State concerned treatment at least comparable to that granted to the border residents of the third country concerned.’

11. Furthermore, Article 20 of Regulation No 1931/2006 amended Section 136(3) of the CAAS. Section 136, as amended, provides: ‘1. A Contracting Party which envisages conducting negotiations on border checks with a third State shall inform the other Contracting Parties thereof in good time. 2. No Contracting Party shall conclude with one or more third States agreements simplifying or abolishing border checks without the prior agreement of the other Contracting Parties, subject to the right of the Member States of the European Communities to conclude such agreements jointly. 3. Paragraph 2 shall not apply to bilateral Agreements on local border traffic as referred to in Article 13 of Regulation [No 1931/2006].’

C – Hungarian law

12. Paragraph 40(1) of Law II of 2007 on the Admission and Right of Residence of Third-Country Nationals (2007. évi II. törvény a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról) ( 10 ) provides: ‘On the basis of the provisions of [Regulation No 562/2006], the border control authority shall refuse entry to third-country nationals seeking admission for stays of three months’ duration or less and, with due regard for their interests, shall return such persons …’

II – Facts at the origin of the dispute in the main proceedings

13. Mr Shomodi ( 11 ) is a Ukrainian national who is in possession of a valid local border traffic permit, issued pursuant to Regulation No 1931/2006, and who, on 2 February 2010, requested entry at the Záhony (Hungary) road border crossing to the Hungarian border area defined in accordance with that regulation.

14. However, the Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége (Border Police Office of Szabolcs-Szatmár-Bereg, County Police of Záhony) ( 12 ) refused him entry to Hungary, under the rules on local border traffic, pursuant to Paragraph 40(1) of Law II of 2007. It had established, on the basis of data in the Hungarian border registration system, that the defendant in the main proceedings had stayed in Hungary for 105 days during the period from 3 September 2009 to 2 February 2010, over multiple entries and exits, thus exceeding the 93 days permitted.

15. The Ukrainian Consul at Nyíregyháza (Hungary) and the defendant in the main proceedings appealed against the decision before the Szabolcs-Szatmár-Bereg megyei bíróság (County Court of Szabolcs-Szatmár-Bereg, Hungary), claiming that it infringed Article 1(5) of the bilateral agreement concluded by Hungary.

16. The Szabolcs-Szatmár-Bereg megyei bíróság allowed the appeal, considering that Article 1(5) of the bilateral agreement concluded by Hungary was to be interpreted, in the light of EU law, as entitling the holder of a local border traffic permit to multiple entries into Hungary, and to an uninterrupted stay of no more than three months within a six-month period. It therefore considered that the number of entries was unlimited for those in possession of a local border traffic permit, and the three-month time restriction applied only to uninterrupted stays. It also held that neither the Schengen Borders Code nor the provisions of Law II of 2007 were applicable to local border traffic.

17. The applicant in the main proceedings brought an appeal before the Magyar Köztársaság Legfelsőbb Bírósága against the judgment of the Szabolcs-Szatmár-Bereg megyei bíróság, in which it claims that the interpretation of Article 1(5) of the bilateral agreement concluded by Hungary accepted by the latter court is contrary to Article 20(1) of the CAAS, recital 3 in the preamble to the Schengen Borders Code and Articles 2(a) and 5 of Regulation No 1931/2006. It maintains that the uninterrupted stay to which that provision of the bilateral agreement concluded by Hungary refers is to be interpreted as meaning that the local border traffic permit is valid for a maximum duration of three 31-day months, that is, a total of 93 days within six months of the date of first entry.

III – The questions referred for a preliminary ruling and the procedure before the Court of Justice

18. In those circumstances the Magyar Köztársaság Legfelsőbb Bírósága decided to stay proceedings and to refer the following questions to the Court of justice for a preliminary ruling: ‘1. With particular regard to Article 2(a) and Article 3(3) of Regulation … No 1931/2006 …, is Article 5 of that regulation, which permits an uninterrupted stay not exceeding three months, to be interpreted as meaning that Regulation No 1931/2006 allows, on the basis of bilateral agreements between Member States and third countries as referred to in Article 13 of that regulation, multiple exits and entries and an uninterrupted stay not exceeding three months, with the result that a border resident in possession of a local border traffic permit may, prior to the expiry of the three-month period allowed for the stay, interrupt the uninterrupted stay and, once he has crossed the border again, be entitled anew to an uninterrupted stay of three months? 2. In the event that the answer to Question 1 is yes, can an exit and entry occurring on the same day or on consecutive days be regarded as an interruption of an uninterrupted stay under Article 5 of Regulation No 1931/2006? 3. In the event that the answer to Question 1 is yes, but the answer to Question 2 is no, what time interval or other examination criterion needs to be taken into consideration to establish an interruption of an uninterrupted stay, for the purposes of applying Article 5 of Regulation No 1931/2006? 4. In the event that the answer to Question 1 is no, can Article 5 of Regulation No 1931/2006, which permits an uninterrupted stay not exceeding three months, be interpreted as meaning that the periods of time covered by multiple exits and entries must be counted together and that, in view of Article 20(1) of the Convention implementing the Schengen Agreement …, or any other rules relating to Schengen law, if the total number of days thus calculated exceeds 93 days (three months), the local border traffic permit does not provide entitlement to any further stay within six months of the date of first entry? 5. In the event that the answer to Question 4 is yes, must multiple entries and exits occurring on the same day, or a single entry and exit on the same day, also be taken into account for the purposes of calculating the total number of days and, if so, using what counting method?’

19. Written observations were submitted by the defendant in the main proceedings, Hungary, the Republic of Poland, Romania and the Slovak Republic, and also by the Commission.

20. The applicant in the main proceedings, Hungary, Romania and the Commission also presented oral observations at the hearing held on 14 June 2012.

IV – Analysis

A – Preliminary observations concerning the order in which the questions referred for a preliminary ruling will be examined

21. It should be stated at the outset that, having regard to the facts at issue in the main proceedings and to the legal framework in which the case is set, and in particular to the relevant provisions of the bilateral agreement concluded by Hungary, it is essentially the problem raised by the fourth question referred for a preliminary ruling by the national court which must be given attention.

22. First of all, it is apparent from the file that the defendant in the main proceedings was refused access to Hungary because the sum of the stays he had made exceeded three months during a six-month period. More specifically, the contested decision was taken only on the basis of the total aggregate duration of the stays of the party concerned in Hungary and was based only on the provisions of Article 40(1) of Law II of 2007, referring only to the Schengen Borders Code.

23. The national court’s fourth question concerns, in direct relation to the facts at issue in the main proceedings, the compatibility with Article 5 of Regulation No 1931/2006 of the regime stemming from the bilateral agreement concluded by Hungary. Article 1(5) of that agreement gives authorisation ‘for multiple entry and for a continuous stay of maximum three months’, in accordance with Article 5 of Regulation No 1931/2006, but only, with implicit reference to Article 20 of the CAAS or Article 5 of the Schengen Borders Code, ‘within six months in the border area’ covered by that agreement. Moreover, that same provision permits, in accordance with the situation presented by the national court, the adding together of the durations of the multiple stays made by a person in Hungary for the purpose of calculating the maximum three-month duration of stay during a six-month period.

24. On the other hand, the first three questions from the national court rest on a hypothetical basis. Those questions envisage the situation of a person using his local border traffic permit in order, in some way, lawfully to optimise the time he spends in the territory of a Member State, by staying there uninterruptedly during the three-month maximum period laid down in Article 5 of Regulation No 1931/2006 and then going back over the border, if necessary in the same day, so as to reopen a right to a three-month stay, thus distorting the aim of the local border traffic regime.

25. Finally, the fifth question, which in a way supplements the fourth question by expanding it, concerns the rules for calculating the duration of stays resulting from single or multiple trips of less than 24 hours.

26. A reply in the negative to the fourth question means that it will not be necessary to reply to the fifth question. Moreover, since the first three questions envisage a situation of abuse of law, in that they refer to transborder movements which may camouflage a concealed residency and distort the aim of the local border traffic regime, it is from that point of view that they will be addressed, in the reply to be given to the fourth question.

B – Implementation of Regulation No 1931/2006

1. The bilateral agreements provided for in Article 13 of Regulation No 1931/2006

27. Regulation No 1931/2006 has the original feature of delegating certain aspects of its implementation to the Member States concerned, authorising them to conclude, ( 13 ) pursuant to Article 13, bilateral agreements in accordance with the rules of that regulation, required to replace those which existed previously. ( 14 )

28. Article 5 of Regulation No 1931/2006 therefore provides that those bilateral agreements must specify the maximum permissible duration of each uninterrupted stay under that regime, which shall not exceed three months.

29. Therefore, the Member States, within the framework of the obligation thus imposed on them, that is to say, provided that a maximum duration of uninterrupted stay of three months at most is set, and subject, more widely, to observance of EU law, ( 15 ) have a real margin of negotiation with the third countries concerned for laying down the rules, particularly temporal rules, governing the exercise of the rights arising under the local border traffic regime.

30. Moreover, that latitude is shown, in so far as it can be judged, ( 16 ) by the practice followed by the various Member States and third countries concerned. Some of those agreements may provide for a relatively short maximum duration of stay, ( 17 ) without further conditions. Others, following the example of the bilateral agreement concluded by Hungary, set the permissible maximum duration of uninterrupted stay, but over a specific period, as is the case of the agreements concluded by the Republic of Poland with, respectively, the Ukraine ( 18 ) and the Republic of Belarus, ( 19 ) or the agreement concluded by the Slovak Republic with the Ukraine. ( 20 ) The agreement concluded by Romania with the Republic of Moldavia merely lays down a maximum limit of uninterrupted stay of three months in the provision defining local border traffic. ( 21 )

31. It is also important to point out, however, that, under Article 13 of Regulation No 1931/2006, those bilateral agreements are concluded and maintained if ‘authorised’ by the European Union and subject to prior verification by the Commission, before their conclusion or amendment, of their compatibility with the rules of that regulation. Consequently, although it is true that, under the rules laid down by Regulation No 1931/2006, the Member States do actually have latitude in defining by mutual agreement with third countries the specific rules for implementing that regulation, the competent authorities and courts of the Member States must also interpret and apply the provisions adopted in the light of the wording and aims of that regulation and in accordance with all the provisions of EU law.

2. The bilateral agreement concluded by Hungary

32. Article 1(5) of the bilateral agreement concluded by Hungary satisfies the requirements laid down in Article 5 of Regulation No 1931/2006, but in terms which are not unambiguous.

33. That provision stipulates that the local border permit provided for in Article 2 ‘entitles its holder to multiple entry and to a continuous stay of a maximum of three months within a six-month period in the border area’. By so doing, it clearly sets the maximum duration of permissible continuous stay in respect of local border traffic at three months, while limiting those opportunities for continuous stay to ‘within a six-month period’.

34. However, that provision, thus worded, lends itself to diverging interpretations on the part of the Hungarian authorities and courts, as is apparent from the order for reference.

35. According to the first approach, taken by the Szabolcs-Szatmár-Bereg megyei bíróság, the defendant in the main proceedings and the Ukrainian Consul in Hungary, Article 1(5) of the bilateral agreement concluded by Hungary authorises multiple entry and a continuous stay of a maximum of three months within a six-month period.

36. According to the second approach, taken by the competent Hungarian authorities, that provision is to be interpreted and applied in such a way that the maximum three-month duration within a six-month period may be calculated by adding together the duration of any multiple stays made by a person, whatever their respective durations.

37. The bilateral agreement concluded by Hungary is therefore based, in accordance with this second approach, on the notion that Article 5 of Regulation No 1931/2006, read in conjunction with Article 20 of the CAAS or Article 5 of the Schengen Borders Code, establishes a ‘time credit’ regime, each unit of continuous presence being counted for the purpose of calculating the three-month maximum duration within an authorised six-month period. The holders of a local border traffic permit are therefore entitled, in each six-month period, to a total stay of three months, which may be spread freely, including in a concentrated and continuous manner over a single period, on the clear understanding that, in the latter case, any possibility of crossing the border under the local border traffic regime during the following three-month period is precluded. Consequently, a border resident who stays continuously for three months in the border area of a Member State at the very beginning of a six-month period and who returns to his third country at the end of that period can no longer cross the border again during the following three months.

The compatibility of the bilateral agreement concluded by Hungary and of its interpretation with Article 5 of Regulation No 1931/2006

38. Article 1(5) of the bilateral agreement concluded by Hungary ‘expressly’ meets the requirement laid down by Article 5 of Regulation No 1931/2006, by setting the maximum permissible duration of uninterrupted stay at three months. That provision cannot therefore be regarded as incompatible as such with the relevant provisions of Regulation No 1931/2006 and may even be regarded as complying with them quite literally. ( 22 ) The problem is that this grammatical interpretation is not enough.

39. The mere acknowledgment that it complies textually with Regulation No 1931/2006 does not support the conclusion that Article 5 of the regulation permits an interpretation according to which the regime thus established by Article 1(5) of the bilateral agreement concluded by Hungary, as interpreted and implemented by the competent Hungarian authorities, is fully compatible with EU law, notwithstanding the provisions of Article 20 of the CAAS and Article 5 of the Schengen Borders Code.

40. It is necessary to examine in particular whether the further requirement of limiting the opportunity for uninterrupted stay to three months ‘within a six-month period’, ( 23 ) together with the method of calculating the maximum duration of stay of three months within a six-month period, by adding together the durations of all the multiple stays in the border area, are fully compatible with the wording and aims of Regulation No 1931/2006 and, more generally, with all the provisions of EU law and, in particular, primary legislation.

3. The meaning of Regulation No 1931/2006

a) The scheme of the local border traffic regime

41. The recitals in the preamble to Regulation No 1931/2006 provide some information about the bases and aims of the local border traffic regime which it establishes. ( 24 ) They state that that specific legislation was especially adopted in order to prevent the European Union’s borders with its neighbours being ‘a barrier to trade, social and cultural interchange or regional cooperation. ( 25 ) Article 3(3) of Regulation No 1931/2006, which defines ‘local border traffic’, also refers to social and cultural reasons but, in addition, to ’substantiated economic reasons’ or ‘family reasons’. ( 26 )

42. From that point of view, the fundamental aim of the local border traffic regime established by Regulation No 1931/2006 is to ensure a balance between, on the one hand, the need to ease the crossing of the European Union’s external land borders for ‘bona fide border residents having legitimate reasons frequently to cross [them]’ and, on the other hand, ‘the need to prevent illegal immigration and potential threats to security posed by criminal activities’. ( 27 )

43. In very general terms, the introduction of an ‘efficient and user-friendly system for small border traffic’ ( 28 ) is thus seen both as an ‘essential part of any regional development policy’ ( 29 ) and a necessary element in the effectiveness of the mechanism for controlling external borders put in place by the European Union and also in the suppression of internal borders in the context of the creation of a space of freedom, security and justice. ( 30 )

44. It is therefore in the light of the historical, cultural, economic and social context in which the regime which it establishes is set that the ratio legis of Regulation No 1931/2006 must be identified, its provisions interpreted and its implementation assessed.

45. It may be useful to point out, in that regard, that the region in which the main proceedings have arisen was the scene of turbulent events during the Twentieth Century, marked by numerous border changes. ( 31 )

46. Against that background, Regulation No 1931/2006 introduces the local border traffic permit, ( 32 ) defining its main conditions and issuing procedure ( 33 ) and also the validity conditions, ( 34 ) and sets out the conditions for permit-holders to enter and leave the territory of the Member States, while authorising the Member States to maintain or conclude with neighbouring third countries the bilateral agreements necessary for implementing the regime thus introduced.

47. In that regard, it is important, first of all, to emphasise the fact that neither Article 5 of Regulation No 1931/2006 nor any other provision of that regulation provides that the total duration of the right of stay of persons to whom the local border traffic regime applies must be limited to the maximum duration of uninterrupted stay calculated over a specific six-month period. ( 35 )

48. It must also be pointed out that the local border traffic regime is characterised, essentially, by the limitation, both ratione personae ( 36 ) and ratione loci, ( 37 ) subject to penalties, ( 38 ) of its scope of application, and by its aim, which is to allow the persons to whom it applies to cross an external land border ‘frequently’ ( 39 ) and ‘regularly’, ( 40 ) provided they have legitimate reasons for doing so.

49. It must be stated, however, that Regulation No 1931/2006 provides only few details of what that frequency and regularity mean. It is therefore for the Court to rule, as necessary, on that point, taking account of the legitimate reasons which may justify benefiting from the local border traffic regime.

50. It must be stated in that regard that, although Article 9(b) of Regulation No 1931/2006 makes the issue of a local border traffic permit conditional on the applicant producing documents proving, as well as his status as a border resident, ‘the existence of legitimate reasons frequently to cross an external land border under the local border traffic regime’, that regulation also says very little about the nature of the legitimate reasons likely to be accepted. ( 41 )

51. Recital 2 in the preamble to Regulation No 1931/2006, as I have already stated, merely mentions ‘trade, social and cultural interchange’, and Article 3(3) defines ‘local border traffic’ as ‘the regular crossing of an external land border by border residents in order to stay in a border area, for example for social, cultural ... reasons, or for family reasons’, but also for ‘substantiated economic reasons’; it is stipulated, however, in the latter case, that under Article 2(b) of Regulation No 1931/2006, the regulation applies without prejudice to the provisions of EU law and national law applicable to third country nationals relating to access to, and exercise of, economic activity. ( 42 )

52. It is therefore apparent from the foregoing considerations that the ratio legis of the local border traffic legislation is to enable the residents of the border areas concerned to cross easily, that is to say, without excessive administrative constraints, ( 43 ) frequently, ( 44 ) but also regularly, ( 45 ) for legitimate economic, social, cultural or family reasons, the European Union’s external land borders; it is stated, however, that that freedom cannot be distorted, deflected from its purpose or fraudulently or abusively exploited, on pain of sanction. ( 46 )

53. It is for the competent national authorities to assess those legitimate reasons when they issue local border traffic permits, ( 47 ) having regard to the historical, cultural, economic and social context in which each bilateral agreement implementing the local border traffic regime is negotiated and concluded by the Member States and the third countries concerned. They must also take those legitimate reasons into consideration when they exercise the power to control entries and exits conferred on them by Article 6 of Regulation No 1931/2006 in order to ensure compliance with the conditions laid down in Article 4 of that regulation or the power to impose penalties for abuse conferred on them by Article 17 of the regulation.

b) The scheme of the CAAS and of the Schengen Borders Code

54. The competent Hungarian authorities maintain, however, in essence, that the local border traffic regime is part of the more general regime established by the CAAS and the Schengen borders code and that the provisions of Regulation no 1931/2006 must therefore be interpreted in the light of these. However, the two regimes do not have the same basis.

55. It is apparent from Article 1(5) of the bilateral agreement concluded by Hungary that it is, implicitly but clearly, by reference to the regime applicable to short stays by third country nationals, as established by Articles 5 and 20 of the CAAS, on the one hand, and by Article 5 of the Schengen Borders Code and Article 2 of the Visa Code, on the other, that the two States concerned formulated the requirement laid down by Article 5 of Regulation No 1931/2006.

56. Article 20 of the CAAS provides that third country nationals who are not required to have a visa may move freely within the Schengen area during a maximum period of three months during the six months following the date of first entry, ( 48 ) provided that they satisfy the conditions laid down in Article 5(1)(a),(c) and (e) of the CAAS.

57. That same limitation of the permissible duration of stay to three months within a six-month period is found again in Article 5 of the Schengen Borders Code, laying down the general conditions of entry of third-country nationals to European Union territory for a short-term stay, and in Article 2(2)(a) of the Visa code, defining the meaning of visa. ( 49 )

58. Unlike Regulation No 1931/2006, the scope ratione loci and ratione personae of which is strictly limited, the CAAS, just like the Schengen Borders Code and the Visa Code, applies, with the occasional exception, to the short-term stays of all third country nationals throughout the territory of the Member States concerned.

59. The ordinary law limitation, applicable to all third country nationals, of the short-term stay to a period not exceeding three months within a six-month period does therefore not apply to the derogating local border traffic regime.

60. The argument put forward by Hungary, that the derogating character of Regulation No 1931/2006 is not total and relates only to the entry procedures, so that Article 5 should be read in the light of Article 20 of the CAAS or Article 5 of the Schengen Borders Code must be rejected in that regard.

61. Recital 3 in the preamble to Regulation No 1931/2006 expressly states that the local border traffic regime constitutes a derogation from the general rules governing the border control of persons crossing the external borders of the Member States of the European Union which are set out in the Schengen Borders Code. ( 50 ) Moreover, Article 35 of the Schengen Borders Code also states that the Code is without prejudice to EU rules on local border traffic and to existing relevant bilateral agreements.

62. It follows that all the provisions of Regulation No 1931/2006, the purpose of which is specifically to lay down the rules relating to local border traffic, must be regarded as derogating from the short-term stay regime established by the Schengen Borders Code.

63. The derogating character of Regulation No 1931/2006 does not mean, however, that its provisions are bound to be interpreted strictly or restrictively. It means, above all, as we shall see below, that, as lex specialis, the provisions of that regulation cannot be exploited for purposes which are not envisaged by the regulation and used with the aim of circumventing the rules of EU law and national law applicable inter alia to short-term stays ( 51 ) and to access to or exercise of an economic activity. ( 52 )

64. In short and in conclusion, it is apparent from the foregoing arguments that Article 20 of the CAAS or Article 5 of the Schengen Borders Code cannot alter the scheme of the local border traffic regime established by Regulation No 1931/2006, which is to allow eligible border residents, as far as possible, to cross local borders normally, that is to say easily and as frequently as necessary, except in the case of fraud or abuse.

4. Compliance with the Charter and the ECHR

65. In the light of the foregoing, the main question which is therefore submitted for the assessment of the Court is whether the regime established by the bilateral agreement concluded by Hungary, as interpreted and/or implemented by the competent Hungarian authorities, is compatible, in the first place, with the spirit of the local border traffic regime which I have just examined in detail, as interpreted in accordance with primary EU law, ( 53 ) and, more specifically, with the relevant provisions of the Charter, ( 54 ) or, if appropriate, of the ECHR and, in the second place and more widely, with all EU law, ( 55 ) in accordance with Article 4(3) TEU. ( 56 )

66. It should be noted, in that regard, that recital 13 in the preamble to Regulation No 1931/2006 states that the regulation respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter.

67. Moreover, the conclusion of bilateral agreements such as the one at issue in the main proceedings falls within the scope of the implementation ( 57 ) of the local border traffic regime, so that those agreements, which must be in accordance with the rules of Regulation No 1931/2006, must, more generally, be concluded in compliance with primary law and in particular with the provisions of the Charter, in accordance with Article 51(1) thereof or, failing that and as appropriate, the provisions of the ECHR, in accordance with Article 6(3) TEU.

68. One may, very intuitively, be prompted to approach the question initially from the point of view of freedom of movement.

69. However, it should be pointed out, putting aside the situation of ‘persons enjoying the Community right of free movement’ or equivalent rights, ( 58 ) within the meaning of Article 3(4) of Regulation No 1931/2006, that Article 45(1) of the Charter, which establishes the right of every citizen of the European Union to move and reside freely within the territory of the Member States, does not apply ratione personae to the main proceedings, any more than Article 45(2) of the Charter, which provides that those same rights may be granted to third-country nationals legally resident in the territory of a Member State. ( 59 )

70. However, and without the need to question whether the main proceedings fall, in any way at all, within the scope of Article 2 of Protocol No 4 to the ECHR, ( 60 ) which enshrines the right to freedom of movement, it is clear that it is covered, in any event, ( 61 ) owing to the scheme of the local border traffic regime, by Article 7 of the Charter, which guarantees respect for private and family life, a provision which, in accordance with Article 52(3) of the Charter, must be interpreted in the light of Article 8 ECHR. ( 62 )

71. Third-country nationals who are not included within the definition of family members of a European Union citizen, within the meaning of the aforementioned Directive 2004/38 and who therefore do not enjoy an automatic right of entry and residence in the host Member State, but who fall within the scope of Regulation No 1931/2006, must, in my view, be able to have, in the implementation of the regulation, guarantees of the right to a private and family life in the broad sense, ( 63 ) as do, reciprocally, the border residents in the Member States.

C – Application of Article 7 of the Charter and Article 8 ECHR

72. In the end, therefore, it is definitely in the light of the relevant provisions of the Charter and the ECHR and also the general principles of EU law, and in particular the principle of proportionality, that Regulation No 1931/2006 must be interpreted and that the application of the relevant provision of the bilateral agreement concluded by Hungary must be assessed.

73. However, a purely mechanical application of the rule laid down in Article 1(5) of the bilateral agreement concluded by Hungary, as interpreted in accordance with the approach taken by the competent Hungarian authorities and resulting in a refusal to allow the holder of a local border traffic permit, who is able to prove that he has personal and family links or, more generally, social links ( 64 ) with European Union citizens residing in the border area of a Member State covered by Regulation No 1931/2006, to enter the territory of that Member State merely because he has accumulated three months’ presence in that territory within a six-month period, disproportionately limits his right to respect for private and family life.

74. As the European Court of Human Rights has held, admittedly in different contexts, ( 65 ) Article 8 ECHR protects, as well as family life in the strict sense, a person’s right to establish and enjoy relationships with his own kind and with the outside world and may include aspects of an individual’s social identity. ( 66 )

75. Therefore, just as, irrespective of the existence or otherwise of a ‘family life’, the deportation of an immigrant established in a Member State is regarded as an infringement of his right to respect for his private life, the refusal to allow the holder of a local border traffic permit to enter the territory of a Member State may be regarded as such and must, therefore, be in accordance with the law and be necessary in a democratic society, that is to say, justified by an overriding social need and, in particular, proportionate to the legitimate aim pursued. ( 67 )

76. It is for the competent national authorities, subject to review by the national courts, to ensure a fair balance between the interests at issue, in the present case the right of the defendant in the main proceedings to enjoy full use of his local border traffic permit and the need of the competent authorities of the Member State to prevent and penalise abuse in accordance with Article 17 of Regulation No 1931/2006. From that point of view, their task is to examine on a case-by-case basis whether a local border traffic permit is used abusively or fraudulently by its holder, taking due account of the legitimate reasons he provides, at the time the permit is issued, in order to obtain it.

77. In those circumstances, a practice of the competent authorities of a Member State which consists in systematically refusing holders of a local border traffic permit, validly issued in accordance with the provisions of Regulation No 1931/2006, the right to enter the territory of that Member State solely on the ground that, within a six-month period, those permit-holders have made several stays of a total duration of more than three months, with no account taken either of the legitimate reasons for those stays or of the circumstances in which they have taken place and without proof of the abusive or fraudulent use of those permits, does not, in any event, even if it is ordered by the provisions of a bilateral agreement implementing that regulation, satisfy the requirements of the principle of proportionality.

78. It follows that Regulation No 1931/2006 is to be interpreted as precluding a bilateral agreement adopted pursuant to Article 13 of that regulation, such as the bilateral agreement concluded by Hungary, or the interpretation given to it by the competent national authorities and courts, from refusing to allow a person entitled to benefit under the aforementioned regime to cross the border of a Member State in circumstances such as those at issue in the main proceedings, unless the existence of fraud or abuse is established.

V – Conclusion

79. In the light of all the foregoing considerations, I propose that the Court give the following reply to the Magyar Köztársaság Legfelsőbb Bírósága (Hungary): Article 5 of Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention, in so far as it sets at three months the maximum duration of uninterrupted stay permitted under the local border traffic regime, is to be interpreted as precluding a bilateral agreement adopted pursuant to Article 13 of that regulation, or the interpretation given to it, from refusing to allow a person entitled to benefit under the regime to cross the border of a Member State: — where that person holds a valid local border traffic permit issued in accordance with the regulation, — solely on the ground that, within a specific period, he has had multiple stays in the border area of that Member State of a total duration equivalent to the maximum duration of uninterrupted stay provided for in that agreement, whatever that duration may be, and — unless it is established that those stays are connected with fraudulent or abusive conduct. It is for the competent national authorities, subject to review by the national courts, to establish that the local border traffic permit is used abusively or fraudulently.

( 1 ) Original language: French.

( 2 ) OJ 2006 L 405, p. 1, and corrigendum OJ 2007 L 29, p. 3. Concerning that regulation, see Peers, S., EU Justice and Home Affairs Law, 3rd edition, Oxford EU Law Library, 2011, p. 210 et seq.; Beaudu, G., ‘La politique européenne des visas de court séjour’, Cultures & Conflits, put on line on 29 September 2003, consulted on 4 November 2012, http://conflits.revues.org/909.

( 3 ) ‘The Charter’.

( 4 ) ‘ECHR’.

( 5 ) OJ 2000 L 239, p. 19, ‘the CAAS’.

( 6 ) ‘The bilateral agreement concluded by Hungary’. Agreement promulgated by Law CLIII of 2007 publishing the Agreement between the Government of the Republic of Hungary and the Cabinet of Ministers of Ukraine on the Rules of Local Border Traffic (2007. évi CLIII. Törvény a Magyar Köztársaság Kormánya és Ukrajna Miniszteri Kabinetje között a kishatárforgalom szabályozásáról szóló Egyezmény kihirdetéséről).

( 7 ) The Agreement 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, signed at Schengen (Luxembourg) on 14 June 1985, and the CAAS, form part, since the entry into force of the Treaty of Amsterdam (see the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and the Treaty establishing the European Community by the Treaty of Amsterdam), of the Schengen acquis, which is applicable to Hungary pursuant to Article 2 of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union. The Schengen acquis has been applicable to Hungary since 21 December 2007. See Article 1 of Council Decision 2007/801/EC of 6 December 2007 on the full application of the provisions of the Schengen acquis in the Czech Republic, the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ 2007 L 323, p. 34).

( 8 ) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

( 9 ) Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1).

( 10 ) ‘Law II of 2007’.

( 11 ) ‘The defendant in the main proceedings’.

( 12 ) ‘The applicant in the main proceedings’.

( 13 ) Or to maintain, for agreements concluded before the entry into force of Regulation No 1931/2006 and which may continue to produce their effects in so far as they comply with EU law; see, also, to that effect, the Report from the Commission to the European Parliament and the Council on the implementation and functioning of the local border traffic regime introduced by Regulation (EC) No 1931/2006 of the European Parliament and of the Council laying down rules on local border traffic at the external land borders of the Member States (COM(2009) 383 final, ‘the Commission’s first report on the local border traffic regime’). Such is, inter alia, the case of the agreement concluded between the Republic of Slovenia and the Republic of Croatia, in force since 2001, mentioned by that report.

( 14 ) On that ‘acquis’ comprising the pre-existing bilateral agreements on local border traffic, see the Commission Working Paper of 9 September 2002, entitled ‘Developing the acquis on local border traffic’, SEC(2002) 947.

( 15 ) As we shall see below.

( 16 ) Notwithstanding Article 19 of Regulation No 1931/2006, under which the Commission must make available to the Member States and to the public the information concerning the bilateral agreements concluded by the Member States concerned and notified by them, it has not been possible to draw up a definitive list of all the agreements concluded or, consequently, to gather all the relevant information in that regard. See, however, the information contained in the Commission’s first report on the local border traffic regime and the information in the Communication from the Commission to the European Parliament and the Council, entitled ‘Second report on the implementation and functioning of the local border traffic regime set up by Regulation No 1931/2006’ (COM(2011) 47 final, ‘the Commission’s second report on the local border traffic regime’), reports published in accordance with Article 18 of Regulation No 1931/2006, which show that fourteen agreements have been concluded or soon will be. See also Eckstein, A., ‘Cross-border travel to become easier in Kaliningrad area’, Europolitics, 29 July 2011.

( 17 ) See Article 3(2) and (3) of the agreement between the Republic of Slovenia and the Republic of Croatia concerning local border traffic and cooperation, which limits the uninterrupted stay to seven days, while retaining the possibility of force majeure; see also Article 2(2) of the agreement between the Republic of Austria and the Swiss Confederation on the movement of persons across borders in the context of local border traffic, signed in Vienna on 13 June 1973.

( 18 ) See Article 4 of the agreement between the Government of the Republic of Poland and the Council of Ministers of the Ukraine on the rules governing local border traffic, signed in Kiev on 28 March 2008, which provides for a maximum duration of uninterrupted stay of 60 days, but limited to a total of 90 days within a six-month period from the first crossing of the border. See also Article 4(5) of the agreement concluded by the Republic of Latvia with the Republic of Belarus, signed in Riga on 23 August 2010.

( 19 ) See Article 4 of the Agreement between the Republic of Poland and the Government of the Republic of Belarus on the local border traffic rules, signed in Warsaw on 12 February 2010, which provides for a maximum uninterrupted stay of 30 days within a six-month period, calculated from the first border crossing.

( 20 ) It is apparent from the observations presented by the Slovak Republic that that agreement limits the period of uninterrupted stay to 30 days and the total duration of stay to 90 days within a 180-day period. The new agreement, signed in Bratislava on 17 June 2011, provides for a maximum duration of uninterrupted stay of 90 days within a period of 180 days.

( 21 ) See Article 1(c) of the agreement between the Government of the Republic of Moldavia and the Government of Romania on local border traffic, signed in Bucharest on 13 November 2009.

( 22 ) Moreover, it should be pointed out that, in its task of monitoring the compatibility of bilateral agreements entrusted to it by Article 13(2) of Regulation 1931/2006, the Commission, as is apparent both from its first and second reports on the local border traffic regime, has not pointed to that ‘discordance’ as constituting incompatibility, doubtless for the reasons stated below, in footnote 23.

( 23 ) It must be pointed out, in that regard, that the Commission itself is rather ambiguous. Accordingly, in its first report on the local border traffic regime, it states that all the bilateral agreements which have been brought to its attention ‘set additional restrictions regarding the period of stay in the border area, i.e. 90 days within 180 days’ (p. 7, paragraph 4; emphasis added), although it also stated, in the same report, that the possibility of 90 days of uninterrupted stay constituted ‘a derogation from the standard rule of the Schengen Borders Code that limits short stay to a maximum of 90 days in 180 days’ (p. 3, paragraph 2). It also points out in its second report on the local border traffic regime that Regulation No 1931/2006 ‘allows a person to stay in a Member State for up to three months within a given period (p. 4, paragraph 3.1; emphasis added).

( 24 ) The problems of local border traffic were more precisely set out by the Commission in its working document of 9 September 2002, at the beginning of the legislative process culminating in the adoption of Regulation No 1931/2006.

( 25 ) See recital 2 in the preamble to Regulation No 1931/2006. See also recital 1 in the preamble to Regulation (EU) No 1342/2011 of the European Parliament and of the Council of 13 December 2011 amending Regulation (EC) No 1931/2006 as regards the inclusion of the Kaliningrad oblast and certain Polish administrative districts in the eligible border area (OJ 2011 L 347, p. 41).

( 26 ) Speaking of which, the Schengen Borders Code states, in recital 11, that ‘Member States should ensure that control procedures at external borders do not constitute a major barrier to trade and social and cultural interchange’.

( 27 ) See Recital 4 in the preamble to Regulation No 1931/2006.

( 28 ) Communication from the Commission to the Council and the European Parliament of 11 March 2003, entitled ‘Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ (COM(2003) 104 final).

( 29 ) See, as well as the Communication of 11 March 2003, the Communication from the Commission of 12 May 2004, entitled ‘European Neighbourhood Policy – Strategy paper’ (COM(2004) 373 final).

( 30 ) As the Commission has itself stated, Regulation No 1931/2006 forms, together with the Schengen Borders Code and Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349, p. 1), a ‘legal and operational framework through which border controls can be further developed to a high standard’; see, in that regard, the Communication from the Commission of 19 July 2006 on Policy priorities in the fight against illegal immigration of third-country nationals (COM(2006) 402 final, paragraph 18). See also the Communication from the Commission to the Council and the European Parliament of 7 May 2002, entitled ‘Towards integrated management of the external borders of the Member States of the European Union’ (COM(2002) 233 final), which advocates a common corpus of legislation on external borders.

( 31 ) The population relevant to the main proceedings thus formed part of five different States in one century. The region, integrated into the Kingdom of Hungary, was part of the Austrian-Hungarian Empire. After the birth of Czechoslovakia on 28 October 1918, it was assigned to that country under the Treaty of Trianon of 4 June 1920. Then it was reassigned to Hungary under the First Vienna Arbitration of 2 November 1938, which was subsequently declared null and void by the Treaty of Paris of 10 February 1947. The region was then made part of the USSR until the proclamation of independence of the Ukraine on 24 August 1991. According to the figures published in the Commission’s second report on the local border traffic regime, between 400000 and 450000 persons are eligible for the local border traffic permit in Hungary (Paragraph 3.2.1).

( 32 ) See Articles 1(1) and 7(1) of Regulation No 1931/2006. The terminology used, the word ‘permit’, it must be noted, was preferred to the word ‘visa’ initially proposed by the Commission. In any case, the Council of the European Union, in order to take account of the provisions of Regulation No 1931/2006, on the same day adopted Regulation (EC) No 1932/2006 amending Regulation (EC) 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 (OJ 2006 L 405, p. 23; in the present case, Article 1(2), second subparagraph, first indent of Council Regulation (EC) 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 (OJ 2001 L 81, p. 1), thus amended, exempts from the visa requirement holders of local border traffic permits who are nationals of the third countries listed in Annex I of the regulation; the annex provides an exhaustive list of the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States; they include the Ukraine, which is at issue in the main proceedings.

( 33 ) Articles 7 to 12 Regulation No 1931/2006.

( 34 ) Article 10 of Regulation No 1931/2006 as regards the period of validity, and Article 7(2) of the regulation as regards territorial validity, in this instance the border area defined in Article 3(2).

( 35 ) In its second report on the local border traffic regime (p. 5, paragraph 3.2.3), the Commission states that this point was the subject of discussion during the negotiations in 2006. It should be pointed out in that regard that, in its initial proposal, the Commission envisaged only a right to stay in the border area for a maximum of seven consecutive days, the total duration of successive visits not to exceed three months within any half-year period. See Article 6 of the Proposal for a Regulation of the European Parliament and of the Council of 23 February 2005 laying down rules on local border traffic at the external land borders of the Member States and amending the Schengen Convention and the Common Consular Instructions (COM(2005) 56 final). The wording of Article 5 of Regulation No 1931/2006 is that which results from the amendment proposed by the European Parliament; see the report of Brejc, M. of 13 December 2005, on the Proposal for a Regulation of the European Parliament and of the Council laying down rules on local border traffic at the external land borders of the Member States and amending the Schengen Convention and the Common Consular Instructions (A6-0406/2005).

( 36 ) See Article 3(6) of Regulation No 1931/2006, which defines the border resident who qualifies for the local border traffic regime, and Article 4 of the regulation, which lays down the conditions for those border residents to enter the territory of the Member States.

( 37 ) See Article 3(2) of Regulation No 1931/2006, defining the border area as an area that extends, with the occasional exception, no more than 30 kilometres from the border. See also recital 5 in the preamble to, and Article 7 of, that regulation, limiting the territorial validity of the local border traffic permit.

( 38 ) See Article 7(3), second subparagraph, of Regulation No 1931/2006.

( 39 ) See recital 4 in the preamble to, and Article 9(b) of, Regulation No 1931/2006.

( 40 ) See Articles 3(3) and 15(3) of Regulation No 1931/2006, defining local border traffic.

( 41 ) The European Parliament’s rapporteur on the Proposal for Regulation No 1931/2006, referred in that regard to ‘academic or professional reasons [and] the existence of family links’. The Commission, on the other hand, seems more restrictive, inasmuch as it perceives the local border traffic regime merely as making it possible to ‘promote people-to-people contacts in the border areas’. See, in addition to the Communication of 12 May 2004, which refers to the maintenance of ‘traditional contacts’, the Communication from the Commission to the European Parliament and the Council of 5 December 2007, entitled ‘A Strong European Neighbourhood Policy’ (COM(2007) 774 final, p. 6.)

( 42 ) Article 1(5) of the bilateral agreement concluded by Hungary states, furthermore, that it is permitted to cross the border ‘for substantiated economic reasons that are not to be considered as gainful activity’.

( 43 ) The point, as the Commission stated, is to ‘make it possible for border area populations to maintain traditional contacts without encountering excessive administrative obstacles’. See the Communication of 12 May 2004, p. 18. See also the Opinion of the European Parliament’s Foreign Affairs Committee of 25 November 2005 on the Proposal for Regulation No 1931/2006.

( 44 ) That frequency may, in some cases, be daily, as pointed out in the report of Brejc, M., of 13 December 2005.

( 45 ) This, it seems to me, is the main issue under discussion in the present case.

( 46 ) See recital 4 and Articles 7(3), second subparagraph, and 17 of Regulation No 1931/2006.

( 47 ) In accordance with Article 9(b) of Regulation No 1931/2006.

( 48 ) On the concept of ‘first entry’, and its implications, see the judgment in Case C-241/05 Bot [2006] ECR I-9627. It should be noted that, in the light of that judgment, the Commission proposed the adoption of ‘a clear definition of the method for calculating “stays not exceeding three months per six-month period”’. See the Proposal for a Regulation of the European Parliament and of the Council amending Regulation No 562/2006 and the Convention implementing the Schengen Agreement COM(2011) 118 final.

( 49 ) That same limitation is systematically reiterated in Council decisions concerning the signature and provisional application of agreements concluded by the European Community with third-party countries on the short-stay visa waiver. See, for example, Council Decision 2009/478/EC of 6 April 2009 on the signing and provisional application of the Agreement between the European Community and Antigua and Barbuda on the short-stay visa waiver (OJ 2009 L 169, p. 1), and Council Decisions 2009/479/EC, 2009/480/EC, 2009/481/EC and 2009/483/EC of the same date and subject-matter concerning, respectively, Barbados (OJ 2009 L 169, p. 9), the Republic of Mauritius (OJ 2009 L 169, p. 16), the Commonwealth of the Bahamas (OJ 2009 L 169, p. 23), the Republic of the Seychelles (OJ 2009 L 169, p. 30) and Saint Kitts and Nevis (OJ 2009 L 169, p. 37).

( 50 ) Article 3 of the CAAS already provided that the Schengen Executive Committee was to adopt provisions concerning ‘exceptions and arrangements for local border traffic’; those provisions were never adopted, however, before the adoption of Regulation No 1931/2006.

( 51 ) Inter alia, as the Republic of Poland has pointed out, the provisions of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).

( 52 ) See Article 2 of Regulation No 1931/2006.

( 53 ) In particular Articles 67 TFEU and 8 TEU. It should be pointed out, in that regard, that, under Article 8 TEU, ‘[t]he Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation’. With regard to that ‘neighbourhood clause’, see, inter alia, Hanf, D., ‘The European Neighbourhood Policy in the Light of the new “Neighbourhood Clause” (Article 8 TEU)’, in Lannon, E., The European Neighbourhood Policy Challenges – Les défis de la politique européenne de voisinage, Peter Lang, p. 109 to 123.

( 54 ) Case C-101/01 Lindqvist [2003] ECR I-12971, paragraph 87; Case C-305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I-5305, paragraph 28; Case C-403/09 PPU Detiček [2009] ECR I-12193, paragraph 34; Joined Cases C-411/10 and C-493/10 N.S. and Others [2011] ECR I-13905, paragraph 77; and Case C-277/11 M.M. [2012] ECR, paragraph 93.

( 55 ) It should be pointed out that, in accordance with Protocol No 23 on external relations of the Member States with regard to the crossing of external borders, annexed to the EU Treaty and the TFEU, if, in the absence of provisions adopted on the basis of Article 77(1)(b) TFEU, Member States retain a competence to negotiate and conclude agreements with third countries, they may do so only provided they respect European Union law and other international agreements. The same applies a fortiori in the case of bilateral agreements the conclusion of which is provided for, ordered, by an act of secondary legislation adopted on the basis of Article 77(2)(a) TFEU, such as Regulation No 1931/2006.

( 56 ) See, in that regard, in addition to the judgments in Case C-55/00 Gottardo [2002] ECR I-413, paragraph 33, and Case C-433/03 Commission v Germany [2005] ECR I-6985, concerning ‘open skies’ bilateral agreements, for example, Case C-467/98 Commission v Denmark [2002] ECR I-9519, paragraphs 110 to 112. See also Case C-523/04 Commission v Netherlands [2007] ECR I-3267, paragraphs 74 to 76.

( 57 ) That is, moreover, the title of Chapter IV of Regulation No 1931/2006, which includes Article 13 providing for the conclusion of bilateral agreements.

( 58 ) The latter are covered by the provisions of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

( 59 ) The local border traffic regime applies not, by definition, to third-country nationals legally resident in the territory of a Member State, but to border residents, as defined in Article 3(6) of Regulation No 1931/2006.

( 60 ) Protocol securing certain rights and freedoms other than those already included in the ECHR and in the first additional Protocol thereto.

( 61 ) Several provisions of the Charter and/or the ECHR may certainly be more or less directly affected. In the light of the mainly social and cultural function of Regulation No 1931/2006, I may, by way of example, cite Article 9 of the Charter (Article 12 ECHR), guaranteeing the right to marry and found a family, Article 14 of the Charter (Article 2 of the first additional Protocol to the ECHR) enshrining the right to education, but also Article 17 of the Charter on the right to property (Article 1 of the first Protocol to the ECHR), or Article 35 of the Charter on health care, since the exercise or enjoyment of those rights depends on a right to move freely on both sides of borders and consequently, any limit on that freedom of movement may affect the exercise of those rights.

( 62 ) See also the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17).

( 63 ) Moreover, that is, very specifically, what is established by recital 6 in the preamble to Directive 2004/38, which provides that Member States may, on the basis of their own national legislation, decide whether entry and residence could be granted to such persons, ‘[i]n order to maintain the unity of the family in a broader sense’, ‘taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen’.

( 64 ) To that effect, see ECHR, Niemietz v Germany [1992] Reports of Judgments and Decisions 1992, Application No 13710/88, series A no 251-B, paragraph 29. The European Court of Human Rights held in that judgment that, although it is not ‘possible or necessary to attempt an exhaustive definition of the notion of “private life”, it would, however, be ‘too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle’. It adds that ‘[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings’. See also ECHR, C v Belgium [1996] Reports of Judgments and Decisions 1996-III, Application No 21794/93, paragraph 25. Concerning the elasticity of the concept of private life, see inter alia ECHR Burghartz v Switzerland [1994] Application No 16213/90, series A no 280-B, paragraph 24 (retention of surname after marriage); Pretty v United Kingdom [2002] Reports of Judgments and Decisions 2002-III, Application No 2346/02, paragraph 61 (right to assisted death); Bigaeva v Greece [2009], Application No 26713/05, paragraphs 22 to 25 (refusal of membership of the Bar); M. v Switzerland [2011] Application No 41199/06, paragraphs 36 and 37 (non-renewal of a passport); Fernández Martínez v Spain [2012] Application No 56030/07, paragraphs 56 to 60 (non-renewal of contract of employment of a teacher of religion), and Godelli v Italy [2012] Application No 33783/09, paragraph 46 (Search for the identity of birth parents).

( 65 ) It was a question, in those cases, of the deportation of foreign nationals; see ECHR, Üner v Netherlands [2006] Reports of Judgments and Decisions 2006-XII, Application No 46410/99, paragraph 59, and Maslov v Austria [2008] Reports of Judgments and Decisions 2008, Application No 1638/03, paragraph 63.

( 66 ) ECHR, Mikulić v Croatia [2002] Reports of Judgments and Decisions 2002-I, Application No 53176/99, paragraph 53.

( 67 ) See, inter alia, regarding deportation, ECHR, Mehemi v France [1997] Reports of Judgments and Decisions 1997-VI, Application No 25017/94, paragraph 34, and Dalia v France [1998] Reports of Judgments and Decisions 1998-I, Application No 26102/95, paragraph 52; for the principle of non-refoulement, ECHR, Mubilanzila Mayeka and Kniki Mitunga v Belgium [2006] Reports of Judgments and Decisions 2006-XI, Application No 13178/03, paragraph 80; see also Kurić and Others v Slovenia [2010] Application No 26828/06, paragraph 351 et seq.