Analysis: “Seamen working on board ships in long-term mooring in a sea port do not exit the Schengen area” by Janine Silga
In its judgment of 5 February 2020 (Staatssecretaris van Justitie en Veiligheid v J. e.a., C-341/18), the Court of Justice has clarified what constitutes an ‘exit’ from the Schengen area within the meaning of Article 11(1) of Regulation 2016/399 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). While the Schengen Borders Code defines ‘internal’ and ‘external’ borders, it includes no definition of ‘entry’ or ‘exit’. Article 11(1) of this instrument only requires that the travel documents of third-country nationals ‘shall be systematically stamped on entry and exit’.
Among the applicants in the main proceedings were third-country national seamen who had entered the Schengen area through Schiphol Airport in early 2016. Upon their arrival, they reached the sea port of Rotterdam by land to sign on as crew members of ships in long-term mooring to perform work on board. Following a former practice, seamen had always received an exit stamp on their travel documents when they signed on as ship crew in Rotterdam. However, this was denied to the applicants on the ground that the date on which the vessel would leave the port – and the Schengen area as a result – was unclear.
Given that the sea port of Rotterdam qualifies both as an external border and a border crossing point according to the Schengen Borders Code, it was unclear whether the seamen were actually leaving the Schengen area by signing on those ships. More precisely, the Court of Justice was asked to determine the specific point in time in which the exit stamp had to be affixed to their travel documents. To answer this question, the Court had to define the notion of ‘exit’ within the meaning of Article 11(1) of the Schengen Borders Code.
Supported by Greece, the applicants argued that by signing on as crew on the ships, seamen actually exit the Schengen area. Germany and the Netherlands rejected this interpretation and considered that in order to exit, the seamen must physically cross the geographical external sea border on the vessel concerned.
While the Court of Justice and Advocate General Sharpston agreed on the fact that the notion of ‘exit’ has an autonomous meaning in EU law, they had diverging views on its definition. In her Opinion, the Advocate General considers that exiting the Schengen area does not have to coincide with physically crossing the external border. On the contrary, the Court concludes that this concept must be understood as the ‘physical act of movement of a person from a place which is part of the Schengen area to a place which is not part of that territory’. The fact that someone finds themselves at a border crossing point does not mean that they have left the Schengen area. Rather, it only reflects their intention to do so shortly. For the Court, this is not the case of the applicants as they do not intend to leave the territory of the Member State concerned shortly after their arrival.
Janine Silga is a postdoctoral researcher at the University of Luxembourg. Her recent publications include: Le droit au regroupement familial des réfugiés mineurs non accompagnés devenus majeurs: l’affaire A et S, entre progrès incontestable et portée relative (European Papers) and Luxembourg Financial Aid for Higher Studies and Children of Frontier Workers: Evolution and Challenges in Light of the Case-Law of the Court of Justice (European Public Law).