Council Regulation (EC) No 2133/2004 of 13 December 2004 on the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third country nationals when they cross the external borders of the Member States and amending the provisions of the Convention implementing the Schengen agreement and the common manual to this end
Date: 2004-12-13
Institutions: Council of the European Union
Subjects: admission of aliens, border control, document, external border of the EU, foreign national, illegal migration

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Official Journal of the European Union

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COUNCIL REGULATION (EC) No 2133/2004

of 13 December 2004

on the requirement for the competent authorities of the Member States to stamp systematically the
travel documents of third country nationals when they cross the external borders of the Member
States and amending the provisions of the Convention implementing the Schengen agreement and
the common manual to this end

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community, and in particular Article 62(2)(a) thereof,

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament

(1),

Whereas:

(1)

(2)

(3)

(4)

The European Council held in Seville on 21 and 22 June
2002 called for closer co-operation in combating illegal
immigration and called on the Commission and the
Member States to take operational steps to ensure an
equivalent level of control and surveillance of external
borders.

lack clarity and precision as

The provisions of
the Convention implementing the
Schengen Agreement of 14 June 1985 (2), and of the
common manual (3) concerning the crossing of external
borders
the
obligation to affix stamps to the travel documents of
third-country nationals when they
external
borders. As a result, such provisions lead to divergent
practices in the Member States and make it difficult to
check whether the conditions relating to the duration of
short stays for such third country nationals on the
territory of the Member States are fulfilled, namely a
three months in any six-month period.
maximum of

regards

cross

existing rules

At its meeting of 27 and 28 February 2003, the Council
for the Commission's intention to
expressed support
clarify the
in this area, notably by
specifying, by way of a proposal for a Council Regulation
the obligation for
to stamp
the Member
systematically third country nationals' travel documents
on entry and exit at external border crossings.

States

In its Conclusions of 8 May 2003 the Council called for
separate control lanes for different nationalities, differen-
tiated by signs. Specific Community rules on local border
traffic should improve the management of external
borders by the services responsible, making it easier to
overcome any practical difficulties arising from the

(1) Opinion delivered on 21 April 2004 (not yet published in the

Official Journal).

(2) OJ L 239, 22.9.2000, p. 19. Convention at last amended by Regu-

lation (EC) No 871/2004 (OJ L 162, 30.4.2004, p. 29).

(3) OJ C 313, 16.12.2002, p. 97. Manual as last amended by Decision

2004/574/EC (OJ L 261, 6.8.2004, p. 36).

(5)

(6)

(7)

(8)

to stamp third country nationals'

travel
requirement
documents systematically. These measures will also help
to ensure that any measures relaxing checks on persons
at external borders are exceptional.

The obligation on the Member States to stamp third-
country nationals' travel documents systematically when
they enter the territory of the Member States provides, in
conjunction with the limitation regarding the circum-
stances in which measures relaxing checks on persons
at external borders may be adopted, the possibility of
in the absence of a stamp on such travel
presuming,
documents, that their holder is not, or is no longer,
respecting the conditions relating to the duration of a
short stay.

it should be possible for the third country
However,
national concerned to overturn this presumption by
any form of relevant and credible proof. In such cases,
the competent national authorities should certify the date
and the place of the relevant border crossing so as to
provide the third country national concerned with
evidence of the compliance with the conditions relating
to the duration of the stay.

The stamping of the travel document makes it possible
to establish, with certainty, the date and place of the
crossing of the border, without establishing in all cases
that all the required travel document control measures
have been carried out.

This Regulation should also define the categories of
persons whose documents do not have to be stamped
systematically upon crossing the external borders of the
Member States. In this context, it should be stressed that
Community rules on local border traffic, including rules
on the stamping of travel documents of border residents,
are in the course of preparation. Pending the adoption of
Community rules on local border traffic, the possibility
of exempting the travel documents of border residents
from the obligation of stamping should be maintained in
accordance with existing bilateral agreements on local
border traffic.

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(9)

(10)

the Convention implementing the
The provisions of
Schengen Agreement and the common manual should
be amended accordingly.

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on
European Union and to the Treaty establishing the
European Community, Denmark is not taking part in
the adoption of this Regulation and is not bound by it
or subject to its application. Given that this Regulation
builds on the Schengen acquis under the provisions of
the Treaty establishing the
Title IV of Part Three of
European Community, Denmark shall,
in accordance
with Article 5 of
the said Protocol, decide within a
period of six months after the Council has adopted this
Regulation whether it will
implement it in its national
law.

(11) As

Iceland

regards

and Norway,

the provisions of

this Regulation
constitutes a development of
the
Schengen acquis, within the meaning of the Agreement
concluded by the Council of the European Union and the
Republic of
Iceland and the Kingdom of Norway
concerning the association of those two States with the
implementation, application and development of
the
Schengen acquis (1), which fall within the area referred
to in Article 1(A) of Decision 1999/437/EC (2) on
that
certain arrangements
Agreement.

application of

the

for

(12) As regards Switzerland,

this Regulation constitutes a
development of the provisions of the Schengen acquis
within the meaning of the Agreement signed between
the European Union, the European Community and the
Swiss Confederation concerning the association of the
Swiss Confederation with the implementation, appli-
the Schengen acquis (3),
cation and development of
in the area referred to in Article 1(A) of
which fall
Decision 1999/437/EC read in conjunction with Article
4(1) of the Council Decisions of 25 October 2004 on
the signing on behalf of the European Union, and on the
signing on behalf of the European Community, and on
the provisional application of certain provisions of that
Agreement (4).

(13)

(14)

a development of

This Regulation constitutes
the
provisions of the Schengen acquis in which the United
Kingdom does not take part, in accordance with Council
Decision 2000/365/EC of 29 May 2000 concerning the
request of
the United Kingdom of Great Britain and
Northern Ireland to take part in some of the provisions
the Schengen acquis (5). The United Kingdom is
of
therefore not
in its adoption and is not
taking part
bound by it or subject to its application.

the
This Regulation constitutes
the Schengen acquis in which Ireland
provisions of
does not
in accordance with Council
Decision 2002/192/EC of 28 February 2002 concerning

a development of

take part,

(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.
(3) Council doc. 13054/04 accessible on http://register.consilium.eu.int
(4) Council doc. 13464/04 and 13466/04 accessible on

http://register.consilium.eu.int

(5) OJ L 131, 1.6.2000, p. 43.

Ireland's request to take part in some of the provisions of
the Schengen acquis (6). Ireland is therefore not taking
part in its adoption and is not bound by it or subject
to its application,

HAS ADOPTED THIS REGULATION:

Article 1

The purpose of this Regulation is:

— to reiterate the obligation for the competent authorities of
the Member States to stamp systematically third-country
nationals' travel documents when they cross the external
borders of the Member States;

— to specify the conditions under which the absence of an
entry stamp on third country nationals' travel documents
may constitute a presumption that the authorised duration
of a short stay by such nationals on the territory of the
Member States has been exceeded.

Article 2

The provisions of the Convention implementing the Schengen
Agreement are hereby amended as follows:

1. Article 6(2)(e) shall be replaced by the following:

‘e)

If in exceptional and unforeseen circumstances requiring
immediate measures such checks cannot be carried out,
priorities must be set. In that case, entry checks shall as a
rule take priority over exit checks’;

2. The following Articles shall be inserted:

‘Article 6a

The travel documents of third-country nationals referred to
in Article 5(1)(a), shall be systematically stamped on entry
and exit.

Article 6b

1.
If the travel document of a third-country national does
not bear an entry stamp, the competent national authorities
may presume that the holder does not fulfil, or no longer
fulfils, the conditions of duration of stay applicable within
the Member State concerned.

(6) OJ L 64, 7.3.2002, p. 20.

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This presumption may be rebutted where the third-
2.
country national provides, by any means, credible evidence
such as transport tickets or proof of his or her presence
outside the territory of the Member States, which shows
that he or she has respected the conditions relating to the
duration of a short stay.

In such cases:

the

competent

a) where the third-country national is found on the territory
of the Member States applying the Schengen acquis in
full,
in
accordance with national law and practice, in the third-
country national's travel document the date on which,
and the place where,
the person has crossed the
external border of one of these Member States;

authorities

indicate,

shall

b) where the third-country national is found on the territory
of a Member State in respect of which the decision
contemplated in Article 3(2) of
the 2003 Act of
Accession has not been taken, the competent authorities
law and
shall
practice, in the third-country national's travel document
the date on which, and the place where, the person has
crossed the external border of that Member State;

in accordance with national

indicate,

c)

in addition to the indication as referred to in (a) and (b), a
form as shown in the Annex may be given to the third-
country national concerned;

shall

d) Member States

and the
Commission and the Council
their
national practices with regard to the indication referred
to in this Article.

inform each other

Secretariat of

3.
Should the presumption referred to in paragraph 1 not
be rebutted, the third-country national may be expelled by
the competent authorities from the territory of the Member
States concerned.’.

Article 3

Part II of the common manual is hereby amended as follows:

3. Point 2.1.1. is hereby amended as follows:

a) The introductory phrase of the first subparagraph shall be

replaced by the following:

‘2.1.1. On entry into, or exit from, the territory of a
Member State, a stamp shall be affixed to’;

b) The second subparagraph shall be replaced by the

following:

‘No entry or exit stamp shall be affixed to the documents
the
of citizens of
countries of the European Economic Area, nationals of
the Swiss Confederation.

the European Union, nationals of

In addition, entry and exit stamps shall not be affixed to
documents of nationals of third countries who are family
members of citizens of the European Union, of nationals
of the countries of the European Economic Area or of
nationals of the Swiss Confederation provided that they
present a residence card issued by a Member State or by
one of these third States in accordance with Directive
2004/38/EC of
the
Council of 29 April 2004 on the right of citizens of
family members to move and
the Union and their
reside freely within the territory of the Member States (1).

the European Parliament and of

___________
(1) OJ L 158, 30.4.2004, p. 77.’.

4. The following indent shall be added to point 2.1.5.:

‘— on the travel documents of the beneficiaries of bilateral
agreements on local border traffic that do not provide
for the stamping of these documents, if these bilateral
agreements are in accordance with Community law’.

5. The following subparagraph shall be added to point 3.4.2.3.:

‘Even in the event of a relaxation of the checks, the officials
responsible must proceed in accordance with point 1.3.5.4.’

1. Point 1.3.5. shall be replaced by the following:

Article 4

‘1.3.5. Checks at land borders may be relaxed as a result of
exceptional and unforeseen circumstances. This will
be the case where unforeseen events lead to such
intensity of traffic that the delay in the time taken
to reach checking posts becomes excessive, and all
staff,
resources have been exhausted as
facilities and organisation.’.

regards

The text appearing to the Annex shall be annexed to the
common manual.

Article 5

The Commission shall report to the Council on the operation of
this Regulation at the latest three years after its entry into force.

2. The following point shall be inserted:

Article 6

‘1.3.5.4. Even in the event of checks being relaxed,

the
officials locally responsible for border checks must
stamp the
third-country
travel documents of
nationals both on entry and exit.’.

This Regulation shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

It shall apply from 1 December 2005.

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This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaty establishing the European Community.

Done at Brussels, 13 December 2004

For the Council
The President

B. R. BOT

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ANNEX

‘ANNEX 16

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