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The context of this question is the Schengen Borders Code, but the question itself is about the underlying principle of interpretation, so reference to interpretations of other texts in judicial decisions or elsewhere is welcome.

The code's Article 11 establishes a requirement to stamp "travel documents" (for example, passports) of third-country nationals when the they cross the external Schengen border. There is a question over at Travel Stack Exchange that makes it clear that some Schengen countries do not stamp the documents of third-country nationals who have a residence permit from a Schengen country: Which Schengen countries don't stamp passports of ordinary residence permit holders?

The stamping requirement is stated thus:

  1. The travel documents of third-country nationals shall be systematically stamped on entry and exit. In particular an entry or exit stamp shall be affixed to:

    (a) the documents, bearing a valid visa, enabling third-country nationals to cross the border;

    (b) the documents enabling third-country nationals to whom a visa is issued at the border by a Member State to cross the border;

    (c) the documents enabling third-country nationals not subject to a visa requirement to cross the border.

(There are some additional provisions that do not apply to the hypothetical circumstances under discussion contained in 11(2) through 11(5). I would note that a "residence permit" is distinct for these purposes from the "residence card" provided for in the free movement directive 2004/38/EC.)

It is perhaps to be argued that "third-country nationals not subject to a visa requirement" includes residence permit holders who would need a visa if they didn't have a residence permit, but let us assume for the sake of argument that it does not. In that case, none of the examples enumerated in 11(1) covers those people. But none of the subsequent exceptions covers them either. It would seem therefore that the general requirement established in the first sentence of 11(1) should apply to them.

Some countries appear to have concluded the contrary: that because such people are not covered by the "in particular" list in 11(1), their passports do not need to be stamped. Is that reading defensible under established principles of statutory interpretation?

  • Not sure how important it would be in this case but note that EU law is not written in English, it's written in all 24 EU official languages. If something is unclear or some countries reach different interpretations (and the matter is brought to its attention), the Court will look at all of them (with the help of its “lawyer-linguists” or the référendaires from other cabinets, which customarily employ at least one lawyer who knows the judge's language). – Relaxed Jun 17 '20 at 18:13
  • I am not sure "that because such people are not covered by the "in particular" list in 11(1), their passports do not need to be stamped" is necessarily the reason. It might simply be that some member states think it is a useless provision (which it is) and no one at Schengen or EU cares enough about it to demand member states to enforce it uniformly in case of residence permit holders. The use of "in particular" elsewhere in the Code should indicate it is used to affirm particular examples only but does not preclude other cases. – zhantongz Jun 18 '20 at 22:05
  • @zhantongz Absent any shared database of entries and exits, stamps can be useful to ascertain period of absences or initiale date of entry. I suspect these dispositions were inherited from earlier national dispositions some member countries would rely on to enforce specific national rules. – Relaxed Jun 22 '20 at 9:09
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As I have been reading judgements from CJEU recently I will try to answer:

In this case "in particular" means that the list a), b), c) is not exhaustive. Simply, there is some space left for some unusual cases which have not even been identified yet.

Therefore, arguing that passports of third-country citizens with residence card (not Article 10, 20 of EU 2004/38/EC) shall/may not be stamped because it does not fall into "in particular" is according to me not correct. On the contrary, travel documents of third-country citizens shall always be stamped as long as it is technically possible (maybe even on a separate paper given by border guards like visa is special cases).

Btw. At Madrid Barajas airport, they stamp even passport of EU citizens. Once we entered via Madrid Barajas with a group of 20 of reduced mobility with assistance (my wife injured her leg). They took passports of the whole group, my wife gave them new passport, old passport, residence card (Article 10 EU 2004/38/EC) in a passport format. Eventually, she got stamps in all 3 documents. Meaning that they did not even count number of "passports" and people and they did not care that my wife and me were exempt of stamps. So, in Madrid they are relaxed regarding stamps and they probably do it based on their "feeling".

  • they might have just stamped all the documents they were given in that case, to get you through fast, relying on the screening that happened when you boarded the plane. – Trish Sep 2 '20 at 23:03
  • I cannot imagine this would happen in e.g. Germany. Anyway, there are cases when I prefer the Spanish way, such as border controls on my person. I am not complaining I was just very surprised... – user108860 Sep 2 '20 at 23:20

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