CJEU - C 254/11 / Opinion
Key facts of the case:

The Court is for the first time requested to interpret the provisions of Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention. (2)

The local border traffic regime, which derogates from the general rules governing the control of persons at the external land borders of the Member States, seeks, generally, to respond to the situation of populations in border areas, who often perceive the State border lines as an artificial circumstance which adversely affects or, at least, constitutes a practical obstacle to the development of the various aspects of their social life. That observation applies more particularly to populations which were affected by relatively frequent border changes during the last century.

The ratio legis of that unusual legislation, which has the specific feature of delegating to the Member States the task of concluding with the third countries concerned bilateral agreements implementing the regime which it establishes, will lead me to invite the Court to declare that a border crossing regime introduced in the context of local border traffic, such as that at issue in the main proceedings, cannot, in the light of the scheme of the regime laid down by Regulation No 1931/2006 and of the requirements stemming inter alia from the Charter of Fundamental Rights of the European Union (3) and the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, (4) find support in the provisions of Article 5 of that regulation, even if that provision is read in conjunction with Article 20 of the Convention implementing the Schengen Agreement, signed in Schengen on 19 June 1990. (5)

Results (sanctions) and key consequences of the case:

In the light of all the foregoing considerations, I propose that the Court give the following reply to the Magyar Köztársaság Legfelsőbb Bírósága (Hungary):

Article 5 of Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention, in so far as it sets at three months the maximum duration of uninterrupted stay permitted under the local border traffic regime, is to be interpreted as precluding a bilateral agreement adopted pursuant to Article 13 of that regulation, or the interpretation given to it, from refusing to allow a person entitled to benefit under the regime to cross the border of a Member State:

here that person holds a valid local border traffic permit issued in accordance with the regulation,

solely on the ground that, within a specific period, he has had multiple stays in the border area of that Member State of a total duration equivalent to the maximum duration of uninterrupted stay provided for in that agreement, whatever that duration may be, and

unless it is established that those stays are connected with fraudulent or abusive conduct.

It is for the competent national authorities, subject to review by the national courts, to establish that the local border traffic permit is used abusively or fraudulently.
Paragraphs referring to EU Charter

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