Joined Cases C-261/08 and C-348/08: Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia (Visas, asylum and immigration — Measures concerning the crossing of external borders — Article 62(1) and (2)(a) EC — Convention implementing the Schengen Agreement — Articles 6b and 23 — Regulation (EC) No 562/2006 — Articles 5, 11 and 13 — Presumption concerning the duration of the stay — Unlawful presence of third-country nationals in the territory of a Member State — National legislation allowing for either a fine or expulsion, depending on the circumstances)
Date: 2009-10-22
Institutions: Court of Justice
Subjects: Schengen Agreement, border control, fine, foreign national, interpretation of the law, removal, residence permit








C_2009297EN.01001201.xml










5.12.2009   


EN


Official Journal of the European Union


C 297/12





Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia
(Joined Cases C-261/08 and C-348/08) (1)

(Visas, asylum and immigration - Measures concerning the crossing of external borders - Article 62(1) and (2)(a) EC - Convention implementing the Schengen Agreement - Articles 6b and 23 - Regulation (EC) No 562/2006 - Articles 5, 11 and 13 - Presumption concerning the duration of the stay - Unlawful presence of third-country nationals in the territory of a Member State - National legislation allowing for either a fine or expulsion, depending on the circumstances)
2009/C 297/11
Language of the cases: Spanish

Referring court

Tribunal Superior de Justicia de Murcia

Parties to the main proceedings


Appellants: María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08)

Respondent: Delegación del Gobierno en Murcia

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Murcia — Interpretation of Article 62(1) and (2)(a) EC and Articles 5, 11 and 13 of 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) — National rules allowing the penalty of expulsion to be replaced by the payment of a fine

Operative part of the judgment

Articles 6b and 23 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990, as amended by 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, and Article 11 of 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), must be interpreted as meaning that, where a third-country national is unlawfully present on the territory of a Member State because he or she does not fulfil, or no longer fulfils, the conditions of duration of stay applicable there, that Member State is not obliged to adopt a decision to expel that person.


(1)  OJ C 209, 15.8.2008.

OJ C 260, 11.10.2008.