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SCHENGEN AREA: New European Regulation Clarifies Calculation of Authorized Length of Short-Term Stay in EU

A new European regulation clarifies the calculation of the authorized length of short-term stays in the European Union (new "90-day rule,") and amends other rules.

Short-term stay is defined by European Union (EU) legislation as residence up to "three months during the six months following the date of first entry." This wording has led to interpretation problems.

A recent European Regulation of June 26, 2013 (hereafter "Regulation 610/2013") amended the Schengen Borders Code and the Schengen Agreement by replacing the reference to "three months during the six months following the date of first entry" by "90 days in any 180-day period." The aim of the new wording is to install "clear, simple and harmonized rules" with regard to the "calculation of the authorized length of short-term stays in the [EU]."

One of the amended articles is article 5, para. 1, introductory part, of the Schengen Borders Code. In this same article a new para. 1a is inserted:

1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:

….

1a. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorized under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States." (Emphasis added.)

All amended articles with regard to the new 90-day rule took effect on October 18, 2013.

Regulation 610/2013 has also amended other rules, already effective as of July 19, 2013. One of these rules is article 5, para. 1(a) of the Schengen Borders Code, pursuant to which the short-term stay entry conditions relating to a valid travel document have been modified. Under the new rules, the required valid travel document not only must entitle the holder to cross the border, but also must (i) be valid "at least three months after the intended date of departure from the territory of the Member States" (this requirement may be waived in "a justified case of emergency") and (ii) "have been issued within the previous 10 years."

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