28.7.2012

Official Journal of the European Union

C 227/3

(Case C-606/10) (<span class="super">1</span>)

(Regulation (EC) No 562/2006 - Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) - Article 13 - Third-country nationals holding a temporary residence permit - National legislation banning the re-entry of those nationals into the territory of the Member State which issued the temporary residence permit in the absence of a re-entry visa - Meaning of ‘re-entry visa’ - Earlier administrative practice authorising re entry without re-entry visa - Need for transitional measures - Absence)

2012/C 227/04

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Association nationale d’assistance aux frontières pour les étrangers (ANAFE)

Defendant: Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Article 5(4)(a) and Article 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) — National rules prohibiting third-country nationals holding a provisional residence permit from re-entering the territory of the Member State which issued that permit where they do not have a re-entry visa issued by the consular or prefectural authorities — Concept of a ‘re-entry visa’ — Permissibility of transitional measures for such nationals who have left the territory — Principles of legal certainty and protection of legitimate expectations

Operative part of the judgment

1.The rules relating to the refusal of entry to third-country nationals laid down in Article 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), as amended by Regulation (EC) No 81/2009 of the European Parliament and of the Council of 14 January 2009, are also applicable to third-country nationals subject to the requirement to obtain a visa who wish to return via the Schengen area external borders to the Member State which issued them with a temporary residence permit but not to enter for that purpose the territory of another Member State;

2.Article 5(4)(a) of Regulation No 562/2006, as amended by Regulation No 81/2009, must be interpreted as meaning that a Member State which issues to a third-country national a re-entry visa within the meaning of that provision cannot limit entry into the Schengen area solely to points of entry to its national territory;

3.The principles of legal certainty and protection of legitimate expectations did not require the provision of transitional measures for the benefit of third-country nationals who had left the territory of a Member State when they were holders of temporary residence permits issued pending examination of a first application for a residence permit or an application for asylum and wanted to return to that territory after the entry into force of Regulation No 562/2006, as amended by Regulation No 81/2009.

(<span class="super">1</span>) OJ C 72, 5.3.2011.