CELEX: 62008CJ0139
Language: en
Date: 2009-04-02
Title: Judgment of the Court (Third Chamber) of 2 April 2009.#Criminal proceedings against Rafet Kqiku.#Reference for a preliminary ruling: Oberlandesgericht Karlsruhe - Germany.#Visas, asylum, immigration - Third-country national holding a Swiss residence permit - Entry of and stay in the territory of a Member State for purposes other than transit - Lack of a visa.#Case C-139/08.

Case C-139/08
      Criminal proceedings
      against
      Rafet Kqiku
      (Reference for a preliminary ruling from the Oberlandesgericht Karlsruhe)
      (Visas, asylum, immigration – Third-country national holding a Swiss residence permit – Entry of and stay in the territory of a Member State for purposes other than transit – Lack of a visa)
      Summary of the Judgment
      Visas, asylum, immigration – Crossing of the Member States’ external borders – Conditions of movement of third country nationals
            subject to a visa requirement
      (Council Regulation No 539/2001, Arts 1(1) and 2; European Parliament and Council Decision No 896/2006)
      Decision No 896/2006 establishing a simplified regime for the control of persons at the external borders based on the unilateral
         recognition by the Member States of certain residence permits issued by Switzerland and Liechtenstein for the purpose of transit
         through their territory must be interpreted as meaning that the residence permits listed in the annex to that decision, issued
         by the Swiss Confederation or the Principality of Liechtenstein to third‑country nationals subject to a visa requirement,
         are considered to be equivalent to a transit visa only. As regards entering the territory of the Member States for the purpose
         of transit, the requirements laid down in Articles 1(1) and 2 of Regulation No 539/2001 listing the third countries whose
         nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that
         requirement are fulfilled if the person covered by that decision is in possession of a residence permit issued by the Swiss
         Confederation or the Principality of Liechtenstein and listed in the annex to that decision.
      
      (see para. 32, operative part)
JUDGMENT OF THE COURT (Third Chamber)
      2 April 2009 (*)
      
      (Visas, asylum, immigration – Third-country national holding a Swiss residence permit – Entry of and stay in the territory of a Member State for purposes other than transit – Lack of a visa)
      In Case C‑139/08,
      REFERENCE for a preliminary ruling under Articles 68 EC and 234 EC from the Oberlandesgericht Karlsruhe (Germany), made by
         decision of 4 April 2008, received at the Court on 7 April 2008, in the criminal proceedings against
      
      Rafet Kqiku,
      THE COURT (Third Chamber),
      composed of A. Rosas, President of the Chamber, A. Ó Caoimh, J.N. Cunha Rodrigues, U. Lõhmus and P. Lindh (Rapporteur), Judges,
      Advocate General: Y. Bot,
      Registrar: R. Grass,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –        Mr Kqiku, by A. Heidegger, Rechtsanwalt,
      –        the Commission of the European Communities, by M. Wilderspin and S. Grünheid, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Decision No 896/2006/EC of the European Parliament
         and of the Council of 14 June 2006 establishing a simplified regime for the control of persons at the external borders based
         on the unilateral recognition by the Member States of certain residence permits issued by Switzerland and Liechtenstein for
         the purpose of transit through their territory (OJ 2006 L 167, p. 8).
      
      2        The reference was made in the context of criminal proceedings brought in Germany against Mr Kqiku, a national of Serbia-Montenegro,
         who is accused of having entered the territory of the Federal Republic of Germany on 4 August 2006 and stayed there until
         6 August 2006 without the necessary residence document in the form of a visa.
      
       Legal context
       Community law
       The Schengen acquis
      3        In accordance with Articles 10 and 11 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments
         of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition
         of checks at their common borders (OJ 2000 L 239, p. 19), signed at Schengen (Luxembourg) on 19 June 1990, a uniform short-stay
         visa is introduced which may be issued to anyone other than nationals of Member States of the European Community for visits
         not exceeding three months. However, that convention makes a distinction between travel visas and transit visas. Transit visas
         are issued for transit that does not exceed five days. 
      
       Regulation (EC) No 539/2001
      4        In accordance with Article 1(1) of and Annex I to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries
         whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from
         that requirement (OJ 2001 L 81, p. 1), nationals of the Federal Republic of Yugoslavia (Serbia-Montenegro) are required to
         be in possession of a visa when crossing the external borders of the Member States.
      
      5        Article 2 of the regulation is worded as follows:
      
      ‘For the purposes of this Regulation, “visa” shall mean an authorisation issued by a Member State or a decision taken by such
         State which is required with a view to:
      
      –        entry for an intended stay in that Member State or in several Member States of no more than three months in total,
      –        entry for transit through the territory of that Member State or several Member States, except for transit at an airport.’
       Decision No 896/2006
      6        Recitals 2, 3, 6 and 7 in the preamble to Decision No 896/2006 are worded as follows:
      
      ‘(2)      The current Community rules do not … provide for a simplified regime for the control of persons at the external borders whereby
         the residence permits issued by third countries would be recognised as equivalent to the uniform visa for the purpose of transit
         through, or a short stay in, the [Schengen area].
      
      (3)      Third-country nationals who hold a resident permit issued by Switzerland and who are subject to a visa obligation under …
         Regulation [No 539/2001] must apply for a visa when they transit the common area on return to their country of origin. …
      
      …
      (6)      In order to address the situation in the consular offices in Switzerland and Liechtenstein both of Member States fully implementing
         the Schengen acquis and of new Member States, a simplified regime should be introduced for the control of persons at the external
         borders based on the unilateral recognition of certain residence permits issued by the authorities of Switzerland and Liechtenstein
         as equivalent to uniform or national visas.
      
      (7)      Such recognition should be limited to the purpose of transit and should not affect the possibility of Member States to issue
         visas for a short-term stay.’
      
      7        Article 1 of Decision No 896/2006 provides:
      
      ‘This Decision establishes a simplified regime for the control of persons at the external borders based on the unilateral
         recognition by Member States of residence permits issued by Switzerland and Liechtenstein to third-country nationals subject
         to a visa obligation pursuant to Regulation … No 539/2001 as equivalent to their uniform or national visas for the purpose
         of transit. 
      
      …’
      8        Article 2 of Decision No 896/2006 provides:
      
      ‘Member States fully implementing the Schengen acquis shall unilaterally recognise the residence permits issued by Switzerland
         and Liechtenstein which are listed in the Annex. 
      
      …’
      9        The first paragraph of Article 3 of that decision provides:
      
      ‘The duration of the transit of the third-country national through the territory of the Member State(s) shall not exceed five
         days.’
      
      10      One of the residence permits issued by the Swiss Confederation referred to in Article 2 of Decision No 896/2006 and appearing
         on the list in the annex to the decision is identity document C for foreign nationals, which is issued in connection with
         a permanent residence permit type C.
      
       National legislation
      11      Under the relevant provisions of the German Law on the Residence, Employment and Integration of Foreigners in Germany (‘Law
         on Foreigners’) (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet, BGBl.
         2004 I, p. 1950), foreign nationals must be in possession of a residence document unless the law of the European Union or
         a decree provides otherwise. Residence documents are granted, inter alia, in the form of a visa or a permit to stay.
      
      12      According to the referring court, where a foreign national is not in possession of one of the residence documents required
         under that law, his entry into Germany is illegal. Pursuant to Paragraph 95 of that law, a prison sentence of up to a year
         or a fine is imposed on anyone staying in German territory without the necessary residence document. The same punishment is
         envisaged where the foreigner enters German territory without a passport or without a valid residence document.
      
      13      In the order for reference, the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) explains that, according to
         German law, in assessing whether conduct is criminal for the purposes of Paragraph 95, the only factor to be taken into account
         is the existence of a formally valid permit to enter and stay in the country.
      
       The main proceedings and the question referred for a preliminary ruling 
      14      Mr Kqiku, who, according to his passport, is a national of Serbia-Montenegro, has been living in Switzerland since June 1993.
         Since 27 March 2006 he has held a Swiss identity document C for foreign nationals, together with a permanent residence permit
         type C, the ‘Kontrollfrist’ (probationary period) for which will expire on 19 June 2009. All members of his family also hold
         valid identity documents for foreign nationals or, as the case may be, equivalent documents for children.
      
      15      On 4 August 2006, Mr Kqiku travelled from Switzerland to Germany, together with his wife and three children. During their
         stay in Germany, they visited family members in Cologne and Stuttgart.
      
      16      During this stay and until his return to Switzerland on 6 August 2006, Mr Kqiku carried with him his valid passport, his Swiss
         identity document C for foreign nationals and his valid Swiss driver’s licence. The family members accompanying him were all
         also carrying valid passports and identity documents for foreign nationals or, where appropriate, equivalent documents for
         children.
      
      17      For the purposes of his stay in Germany, Mr Kqiku did not apply for a visa for himself or his family members, which he had
         done for the purpose of his previous short visits to Germany.
      
      18      Criminal proceedings were brought against Mr Kqiku on account of his having entered Germany and stayed there from 4 to 6 August
         2006 without a residence document in the form of a visa, which, as a national of Serbia-Montenegro, he would have needed.
      
      19      By decision of 29 November 2006, the Amtsgericht Singen (local district court, Singen) (Germany) found Mr Kqiku not guilty
         of illegal entry and an illegal stay under the Law on Foreigners, because in view of Decision No 896/2006, his conduct did
         not present the elements of a crime. The Public Prosecutor’s office brought an appeal (‘Revision’) against that decision.
         The Oberlandesgericht Karlsruhe is required to rule on that appeal, as the court of final appeal.
      
      20      The Oberlandesgericht Karlsruhe took the view that determining whether Mr Kqiku is guilty of illegal entry and an illegal
         stay in German territory for the purposes of Paragraph 95(1)(3) and 95(2) of the Law on Foreigners depends on an interpretation
         of the rules on unilateral recognition of residence permits laid down in Decision No 896/2006, and decided to stay proceedings
         and to refer the following question to the Court of Justice:
      
      ‘Are the provisions of Articles 1 and 2 of Decision No 896/2006 … to be interpreted as meaning that the residence permits
         issued by the Swiss Confederation and Liechtenstein listed in the Annex acquire, by virtue of the unilateral recognition by
         the Member States fully implementing the Schengen acquis of those residence permits as equivalent to their uniform or national
         visas, directly the effect of a residence document allowing transit through the common area;
      
      or
      are the provisions of Articles 1 and 2 of Decision No 896/2006 … to be interpreted as meaning that third-country nationals
         holding one of the residence permits issued by the Swiss Confederation and Liechtenstein listed in the Annex unilaterally
         recognised by the Member States fully implementing the Schengen acquis are exempt, for the purpose of transit through the
         common area, from the requirement to be in possession of a visa under Article 1(1) of Regulation … No 539/2001?’
      
       The question referred for a preliminary ruling
      21      By its question, the referring court essentially asks about the scope of the recognition of the residence permits referred
         to in Decision No 896/2006, in the light of the visa requirement laid down in Regulation No 539/2001.
      
      22      Mr Kqiku submits that Decision No 896/2006 covers the recognition of residence permits issued by the Swiss Confederation and
         the Principality of Liechtenstein for the purposes of transit through the Schengen area or short stays in that area. He submits
         that his identity document C for foreign nationals is one of the residence permits issued by the Swiss Confederation listed
         in the annex to Decision No 896/2006, that that document does not have the effect of exempting him from the visa requirement
         laid down in Regulation No 539/2001 and that the document constitutes a valid permit to enter and stay in the country.
      
      23      The Commission of the European Communities submits that the scope of the equivalence under Decision No 896/2006 is limited
         to the purpose of transit through the Schengen area. The Commission takes the view that a residence permit such as the one
         at issue in the main proceedings can be treated like a ‘Schengen visa’ in respect of transit only, and that recognition of
         a residence permit issued by the Swiss Confederation or the Principality of Liechtenstein relates to a visa exemption under
         Article 1(1) of Regulation No 539/2001 for the purpose of transit only.
      
      24      First of all, it must be recalled that, according to Article 1 of Decision No 896/2006, the regime established by that decision
         is based on the unilateral recognition by Member States of residence permits issued by the Swiss Confederation and the Principality
         of Liechtenstein to third-country nationals subject to a visa obligation pursuant to Regulation No 539/2001 as equivalent
         to their uniform or national visas for the purpose of transit.
      
      25      As is apparent, in particular, from Article 2 of Regulation No 539/2001, the Schengen acquis distinguishes between two main
         categories of visas, namely short-stay visas and transit visas. Short-stay visas cover stays of no more than three months
         in total, and transit visas cover transit through the common area that must not exceed five days.
      
      26      The purpose of Decision No 896/2006, as is apparent from its title and Articles 1 and 2, is to establish a simplified regime
         for the control of persons at the external borders, limited to the purpose of their transit through the territory of the Member
         States. Consequently, under those articles, residence permits issued by the Swiss Confederation or the Principality of Liechtenstein
         to third-country nationals are equivalent to a uniform visa or national visas for the purpose of transit only. According to
         Article 3 of that decision, the duration of the transit is to be limited and must not exceed five days.
      
      27      Given that the unilateral recognition of certain residence permits issued by the Swiss Confederation or the Principality of
         Liechtenstein under the simplified regime for control established by Decision No 896/2006 is limited to entry into the Schengen
         area for the purpose of transit, it must be held that the residence permits issued by those States and listed in the annex
         to that decision are recognised as equivalent to a uniform visa or a national visa for the purpose of transit only.
      
      28      That interpretation is supported by recitals 3 and 7 in the preamble to Decision No 896/2006, which set out the purpose of
         that decision, which is to offer third-country nationals, inter alia from Serbia and Montenegro, who hold residence permits
         issued by the Swiss Confederation or the Principality of Liechtenstein, the possibility to transit the common area on return
         to their country of origin without applying for a transit visa. Recital 7 in the preamble to that decision states explicitly
         that the recognition of those residence permits should be limited to the purpose of transit and should not affect the possibility
         of Member States to issue visas for a short-term stay.
      
      29      Moreover, the simplified regime established by Decision No 896/2006 does not seek either to extend or to restrict the circle
         of third-country nationals who are exempt from the visa requirement pursuant to Regulation No 539/2001.
      
      30      That interpretation is supported by the legal bases of Regulation No 539/2001 and Decision No 896/2006. Regulation No 539/2001
         is based on Article 62(2)(b)(i) EC, which concerns measures on the crossing of the external borders that establish rules on
         visas, including the list of third countries whose nationals are subject to a visa requirement and those whose nationals are
         exempt from that requirement, while Decision No 896/2006 is based on Article 62(2)(a) EC, which governs measures relating
         to standards and procedures to be followed by Member States in carrying out checks on persons at the external borders.
      
      31      Consequently, it follows that a residence permit issued by the Swiss Confederation or the Principality of Liechtenstein to
         third-country nationals subject to a visa requirement is a document that must be considered to be equivalent to a visa for
         transit through the territory of the Member States. Within the framework of the simplified procedure introduced by Decision
         No 896/2006, persons covered by that decision are therefore not required to be in possession of a transit visa when they cross
         the external borders for the purposes of transiting the territory of the Member States, provided the transit does not exceed
         five days.
      
      32      In the light of the foregoing and in accordance with the distinction between transit visas and short-stay visas made by Regulation
         No 539/2001, the answer to the question referred is that Decision No 896/2006 must be interpreted as meaning that the residence
         permits listed in the annex to that decision, issued by the Swiss Confederation or the Principality of Liechtenstein to third‑country
         nationals subject to a visa requirement, are considered to be equivalent to a transit visa only. As regards entering the territory
         of the Member States for the purpose of transit, the requirements laid down in Articles 1(1) and 2 of Regulation No 539/2001
         are fulfilled if the person covered by that decision is in possession of a residence permit issued by the Swiss Confederation
         or the Principality of Liechtenstein and listed in the annex to that decision.
      
       Costs
      33      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Third Chamber) hereby rules:
      Decision No 896/2006/EC of the European Parliament and of the Council of 14 June 2006 establishing a simplified regime for
            the control of persons at the external borders based on the unilateral recognition by the Member States of certain residence
            permits issued by Switzerland and Liechtenstein for the purpose of transit through their territory must be interpreted as
            meaning that the residence permits listed in the annex to that decision, issued by the Swiss Confederation or the Principality
            of Liechtenstein to third‑country nationals subject to a visa requirement, are considered to be equivalent to a transit visa
            only. As regards entering the territory of the Member States for the purpose of transit, the requirements laid down in Articles
            1(1) and 2 of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in
            possession of visas when crossing the external borders and those whose nationals are exempt from that requirement are fulfilled
            if the person covered by that decision is in possession of a residence permit issued by the Swiss Confederation or the Principality
            of Liechtenstein and listed in the annex to that decision.
      [Signatures]
      * Language of the case: German.