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Parliamentary questions
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23 September 2008
Answer given by Mr Barrot on behalf of the Commission
Question reference: E-3948/2008

According to the Schengen acquis, third-country nationals travelling within the Schengen area need to fulfil all entry conditions referred to in Article 5 of Regulation (EC) No 562/2006 of 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)(1). One of the entry conditions is to be in possession of a valid travel document and a valid visa, if required pursuant to Council Regulation (EC) No 539/2001(2), except when the person holds a valid residence permit issued by a Schengen Member State.

Pursuant to Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States(3), EU citizens have the right to leave the territory of a Member State to travel to another Member State with a valid identity card or passport, both issued by their Member State of nationality. The same applies to third-country family members who must have a valid passport and a valid entry visa, if required pursuant to Council Regulation (EC) No 539/2001.

However, as Article 5(4) of this directive provides, where an EU citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents, or, if required, the necessary visa, when presenting himself at the external borders of the Union, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement (i.e. EU citizens must establish their identity and nationality and their third country family members their identity and family ties with the EU citizen). The same applies if an EU citizen or his/her family member is checked by the police authorities within the territory of the Member States of the Union.

Beneficiaries of the right to move and reside freely can use expired identity cards or passports or valid driving licences to help attest that they are covered by the right of free movement but those documents are not valid travel documents and alone, in principle, should not be enough to unequivocally establish their identity, nationality or family ties with an EU citizen.

It has to be noted that as the scope of the directive is limited to EU citizens and their third-country family members, the above described flexibility does not apply to other third-country nationals.

This is without prejudice to penalties a Member State may impose on a person found not to be holding or carrying papers and documents if national law provides for such an obligation.

Airlines and ferry operators are entitled to carry out identity checks on all passengers based on valid travel documents and on all flights or ferry connections, thus including intra-Schengen flights or ferry connections, within a commercial framework for security or identification purposes. The refusal of an expired identity card or a valid driving licence by their staff would not be contrary to Community law.

Regardless of the above Community rules, some Member States are bound by the Council of Europe’s European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe which obliges them to grant entry to Austrian, Belgian, French, German, Luxembourgish, Portuguese and Spanish nationals travelling with an expired passport.

(1)OJ L 105, 13.4.2006.
(2)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 L 81, 21.3.2001.
(3)Directive 2004/38/EC of Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004.

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