VIEW OF ADVOCATE GENERAL MAZÁK

delivered on 7 June 2010 1(1)

Joined Cases C‑188/10 and C‑189/10

Aziz Melki and Sélim Abdeli

(References for a preliminary ruling from the Cour de cassation (France))

(General principles of European Union law – Mandatory requirement to refer the matter first to the Conseil constitutionnel when a provision of domestic legislation, because it is contrary to European Union law, is presumed to be in breach of the Constitution – No effect on the right or obligation to make a reference to the Court pursuant to Article 267 TFEU – Primacy of European Union law over national law – Freedom of movement for persons – Absence of internal border controls for persons – Articles 67 TFEU and 72 TFEU – Regulation (EC) No 562/2006 – Articles 20 and 21)





I –  Introduction

1.        These references for a preliminary ruling concern the interpretation of Articles 67 TFEU and 267 TFEU. The first question referred by the Cour de cassation (Court of Cassation) (France) concerns whether French Organic Law No 2009‑1523 of 10 December 2009 on the application of Article 61‑1 of the Constitution of the French Republic, which establishes the ‘priority question on constitutionality’ implementing Article 61‑1, is consistent with Article 267 TFEU. That new mechanism is the result of a constitutional reform which entered into force on 1 March 2010 and which establishes an ex post facto review of the constitutionality of legislative provisions. The Cour de cassation asks the Court whether Article 267 TFEU precludes Articles 23‑2 and 23‑5 of Order No 58‑1067 of 7 November 1958 on the organic law governing the Conseil constitutionnel (Constitutional Council), as amended by French Organic Law No 2009‑1523 (‘Order No 58‑1067’), which require national courts to rule, as a matter of priority, on whether to submit to the Conseil constitutionnel the question on constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to European Union law (‘EU law’), is in breach of the Constitution of the French Republic.

2.        The second question referred concerns whether Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure (code de procédure pénale) – which authorises the police authorities referred to therein to check the identity of any person, in particular, in an area between the land border of France with States party to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), signed at Schengen (Luxembourg) on 19 June 1990 (‘the Convention signed at Schengen on 19 June 1990’), and a line drawn 20 kilometres inside that border – is consistent with Article 67 TFEU which provides for the absence of internal border controls for persons.

II –  Legal framework

A –    EU law

3.        Under Article 20 of Regulation (EC) No 562/2006 of the European 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) (OJ 2006 L 105, p. 1):

‘Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out.’

4.        Article 21 of that regulation, entitled ‘Checks within the territory’, provides:

‘The abolition of border control at internal borders shall not affect:

(a)      the exercise of police powers by the competent authorities of the Member States under national law, in so far as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures:

(i)      do not have border control as an objective;

(ii)      are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime;

(iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders;

(iv)      are carried out on the basis of spot-checks;

(b)      security checks on persons carried out at ports and airports by the competent authorities under the law of each Member State, by port or airport officials or carriers, provided that such checks are also carried out on persons travelling within a Member State;

(c)      the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents;

(d)      the obligation on third-country nationals to report their presence on the territory of any Member State pursuant to the provisions of Article 22 of the Schengen Convention.’

5.        Article 37 of that regulation, entitled ‘Notification of information by the Member States’, provides:

‘By 26 October 2006, the Member States shall notify the Commission of national provisions relating to Article 21(c) and (d), …

The information notified by the Member States shall be published in the Official Journal of the European Union, C Series.’

6.        Under Article 37 of Regulation No 562/2006, the French Republic notified the following text relating to the obligation to hold or carry papers and documents pursuant to Article 21(c) of that regulation:

‘French legislation provides for this obligation under Article L.611-1 of the Code on the entry and stay of … foreigners and on the right of asylum (code de l’entrée et du séjour des étrangers et du droit d’asile, Ceseda), which states that irrespective of any identity check, persons of foreign nationality must be able to produce the papers or documents by virtue of which they are authorised to travel or stay in French territory at the request of [senior police officers] and, upon their orders and under their responsibility, [of police officers] and [assistant police officers] …’. (2)

B –    National law

7.        Article 61‑1 of the Constitution of the French Republic provides:

‘If, in the course of proceedings before a court or tribunal, it is claimed that a legislative provision prejudices the rights and freedoms which the Constitution guarantees, the matter may be brought before the Conseil constitutionnel further to a reference from the Conseil d’État [Council of State] or the Cour de cassation, which shall rule within a fixed period.

An organic law shall determine the conditions for implementing the present article.’

8.        Article 62 of the Constitution of the French Republic provides:

‘A provision declared unconstitutional on the basis of Article 61 cannot be promulgated or implemented.

A provision declared unconstitutional on the basis of Article 61‑1 shall be repealed as of the publication of the decision of the Conseil constitutionnel or as of a subsequent date determined by that decision. The Conseil constitutionnel shall determine the conditions and limits within which the effects produced by the provision may be affected.

No appeal shall lie from the decisions of the Conseil constitutionnel. They shall be binding on public authorities and on all administrative authorities and courts.’

9.        Article 88‑1 of the Constitution of the French Republic states:

‘The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common pursuant to the Treaty on European Union and the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on 13 December 2007.’

10.      Article 1 of Organic Law No 2009‑1523 provides:

‘A Chapter IIa shall be inserted after Chapter II of Title II of Order No 58‑1067 of 7 November 1958 on the organic law governing the Conseil constitutionnel, and shall state as follows:

Chapter IIa

Priority questions on constitutionality

Section 1

Provisions applicable before the courts and tribunals subject to the authority of the Conseil d’État or the Cour de cassation

Article 23‑1. − Before the courts and tribunals subject to the authority of the Conseil d’État or the Cour de cassation, a plea alleging that a legislative provision prejudices the rights and freedoms guaranteed by the Constitution shall be submitted in a separate, reasoned document, failing which it shall be inadmissible. Such a plea may be raised for the first time in appeal proceedings. A court or tribunal may not raise the issue of its own motion. 

Article 23‑2. − The court or tribunal shall rule without delay, by way of reasoned decision, on whether to submit the priority question on constitutionality to the Conseil d’État or the Cour de cassation. The question shall be so submitted if the following conditions are met:

1.      The contested provision is applicable to the dispute or to the proceedings, or forms the basis of the action;

2.      It has not already been declared constitutional in the grounds or the operative part of a decision of the Conseil constitutionnel, except where there has been a change in circumstances;

3.      The question is not devoid of substance.

In any event, where pleas are made before the court or tribunal challenging whether a legislative provision is consistent, first, with the rights and freedoms guaranteed by the Constitution and, secondly, with France’s international commitments, it must rule as a matter of priority on whether to submit the question on constitutionality to the Conseil d’État or the Cour de cassation.

The decision to submit the question shall be sent to the Conseil d’État or to the Cour de cassation within eight days of its being made, together with the pleadings or the submissions of the parties. It shall not be open to appeal. A refusal to submit the question may be challenged only at the time of an appeal against the decision disposing of all or part of the case.

Section 2

Provisions applicable before the Conseil d’État and the Cour de cassation

Article 23.4 – Within a period of three months from receipt of the submission provided for in Article 23‑2 or in the last paragraph of Article 23‑1, the Conseil d’État or the Cour de cassation shall rule on whether to refer the priority question on constitutionality to the Conseil constitutionnel. A reference shall be made where the conditions laid down in Article 23-2(1) and (2) are met and where the question is new or of substance.

Article 23‑5. − A plea alleging that a legislative provision prejudices the rights and freedoms guaranteed by the Constitution may be raised, including for the first time on appeal on a point of law, in proceedings before the Conseil d’État or the Cour de cassation. The plea shall be submitted in a separate, reasoned document, failing which it shall be inadmissible. The court may not raise the issue of its own motion.

In any event, where pleas are made before the Conseil d’État or the Cour de cassation challenging whether a legislative provision is consistent, first, with the rights and freedoms guaranteed by the Constitution and, secondly, with France’s international commitments, it must rule as a matter of priority on the referral of the question on constitutionality to the Conseil constitutionnel.

The Conseil d’État or the Cour de cassation shall have a period of three months from the date on which the plea is submitted to deliver its decision. The priority question on constitutionality shall be referred to the Conseil constitutionnel where the conditions laid down in Article 23-2(1) and (2) are met and the question is new or of substance.

Where a reference has been made to the Conseil constitutionnel, the Conseil d’État or the Cour de cassation shall stay proceedings until it has made its ruling. …’

11.      Article L.611‑1 of Ceseda provides:

‘Irrespective of any identity check, persons of foreign nationality must be able to produce the papers or documents by virtue of which they are authorised to travel or stay in French territory at the request of senior police officers and, upon their orders and under their responsibility, of the police officers and assistant police officers referred to in Articles 20 and 21‑1 of the Code of Criminal Procedure.

Following an identity check carried out pursuant to Articles 78‑1, 78‑2 and 78‑2‑1 of the Code of Criminal Procedure, persons of foreign nationality may also be required to produce the papers and documents referred to in the preceding paragraph.’

12.      Under Article 78‑1 of the French Code of Criminal Procedure:

‘The application of the rules laid down in this Chapter is subject to review by the judicial authorities referred to in Articles 12 and 13.

Any person in the national territory must consent to an identity check carried out under the conditions and by the police authorities referred to in the following articles.’

13.      Article 78‑2, first to third paragraphs, of the French Code of Criminal Procedure provides:

‘Senior police officers and, upon their orders and under their responsibility, the police officers and assistant police officers referred to in Articles 20 and 21-1 may ask any person to prove his identity by any means, where one or more plausible reasons exist for suspecting that:

–        the person has committed or attempted to commit an offence;

–        or the person is preparing to commit a “crime” [most serious criminal offence] or a “délit” [less serious criminal offence];

–        or the person is likely to provide information useful for the investigation in the event of a “crime” or a “délit”;

–        or the person is the subject of inquiries ordered by a judicial authority.

On the public prosecutor’s written recommendations for the purposes of the investigation and prosecution of offences specified by him, the identity of any person may also be checked, in accordance with the same rules, in the places and for a period of time determined by the public prosecutor. The fact that the identity check uncovers offences other than those referred to in the public prosecutor’s recommendations shall not constitute a ground for invalidating the related proceedings.

The identity of any person, regardless of his behaviour, may also be checked pursuant to the rules set out in the first paragraph, to prevent a breach of public order, in particular, an offence against the safety of persons or property.’

14.      Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure states:

‘In an area between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line drawn 20 kilometres inside that border, and in the publicly accessible areas of ports, airports and railway or bus stations open to international traffic, designated by order, the identity of any person may also be checked, in accordance with the rules provided for in the first paragraph, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled. Where that control takes place on board an international train, it may be carried out on the section of the journey between the border and the first stop situated beyond the 20 kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next 50 kilometres. Those lines and those stops shall be designated by Ministerial order. Where there is a section of motorway starting in the area referred to in the first sentence of this paragraph and the first motorway tollbooth is situated beyond the 20 kilometre line, the control may also take place up to that first tollbooth, on parking areas and on the site of that tollbooth and the adjoining parking areas. The tollbooths concerned by this provision shall be designated by order. The fact that the identity check reveals an offence other than the non‑observance of the aforementioned obligations shall not constitute a ground for invalidating the related proceedings.’

III –  Factual background

15.      Mr Melki and Mr Abdeli, both of Algerian nationality and unlawfully present in France, were subject to a police control, under Article 78-2, fourth paragraph, of the French Code of Criminal Procedure, in the area between the land border of France with Belgium and a line drawn 20 kilometres inside that border. On 23 March 2010, the Prefect for the North of the French Republic served, on both Mr Melki and Mr Abdeli, a deportation order and a decision for continued detention in premises not falling within the control of the prison service.

16.      Before the juge des libertés et de la détention (judge deciding on provisional detention), to which the Prefect had referred an application for extension of that detention, both Mr Melki and Mr Abdeli lodged a pleading raising a priority question on constitutionality. They both claimed that Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure prejudices the rights and freedoms guaranteed by the Constitution of the French Republic. By two orders of 25 March 2010, the juge des libertés et de la détention ordered that the following question be submitted to the Cour de cassation:

‘Does Article 78‑2, fourth paragraph, of the Code of Criminal Procedure prejudice the rights and freedoms guaranteed by the Constitution of the French Republic?’

17.      The juge des libertés et de la détention also ordered that the detention of Mr Melki and Mr Abdeli be extended by 15 days.

18.      According to the referring court, Mr Melki and Mr Abdeli rely on Article 81‑1 of the Constitution of the French Republic as a basis for their claim that Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure is contrary to that constitution. They argue that the commitments resulting from the Treaty of Lisbon, including that relating to the freedom of movement for persons, have constitutional value in the light of Article 88‑1 of the Constitution and that Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure, which authorises border controls at the borders of France with other Member States, is contrary to the principle of freedom of movement for persons set out in Article 67 TFEU, which provides that the European Union is to ensure the absence of internal border controls for persons.

IV –  The reference for a preliminary ruling

19.      In its references for a preliminary ruling, the referring court explains, first, that it is clear from Article 23‑2 of Order No 58‑1067 that courts adjudicating on the substance cannot rule on the ‘conventionnalité’ (3) of a legislative provision before submitting the question on constitutionality. In addition, pursuant to Article 62 of the Constitution of the French Republic, no appeal lies from the decisions of the Conseil constitutionnel and they are binding on public authorities and on all administrative authorities and courts. According to the Cour de cassation, it follows that the courts adjudicating on the substance are denied, by the effect of Organic Law No 2009‑1523, the opportunity to refer a question to the Court of Justice for a preliminary ruling, before submitting a question on constitutionality. Furthermore, if the Conseil constitutionnel holds that the contested legislative provision is compatible with EU law, they are unable, after that decision, to refer a question to the Court of Justice for a preliminary ruling. The Cour de cassation also states that, under Article 23-5 of Order No 58-1067, the Cour de cassation is also unable, in such a situation, to make a reference for a preliminary ruling despite the mandatory provisions of Article 267 TFEU or to rule on whether the legislation is consistent with EU law.

20.      Second, the Cour de cassation raises the question whether the provisions of Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure are consistent with Article 67 TFEU. According to the referring court, Article 67 TFEU does not repeat the derogation from the principle of freedom of movement stemming from the exception in respect of public policy and national security contained in the Convention signed at Schengen on 19 June 1990.

21.      In those circumstances, the Cour de cassation has referred, by two references of 16 April 2010, the following questions to the Court for a preliminary ruling:

‘(1)      Does Article 267 [TFEU] signed at Lisbon on 13 December 2007 preclude legislation such as that resulting from Article 23-2, [second paragraph], and Article 23‑5, [second paragraph], of Order No 58‑1067 …, in so far as those provisions require courts to rule as a matter of priority on the submission to the Conseil constitutionnel of the question on constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to European Union law, is in breach of the Constitution?

(2)      Does Article 67 [TFEU] preclude legislation such as that resulting from Article 78-2, [fourth paragraph], of the Code of Criminal Procedure, which provides that “[i]n an area between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line drawn 20 kilometres inside that border, and in the publicly accessible areas of ports, airports and railway or bus stations open to international traffic, designated by order, the identity of any person may also be checked, in accordance with the rules provided for in the first paragraph, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are [fulfilled]. Where that control takes place on board an international train, it may be carried out on the section of the journey between the border and the first stop situated beyond the 20 kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next 50 kilometres. Those lines and those stops shall be designated by Ministerial order. Where there is a section of motorway starting in the area referred to in the first sentence of this paragraph and the first motorway tollbooth is situated beyond the 20 kilometre line, the control may also take place up to that first tollbooth, on parking areas and on the site of that tollbooth and the adjoining parking areas. The tollbooths concerned by this provision shall be designated by order”?’

22.      By order of the President of the Court of 20 April 2010, Cases C‑188/10 and C‑189/10 were joined for the purposes of the written and oral procedures and of the judgment.

23.      In its references for a preliminary ruling, the Cour de cassation asked the Court to give its ruling as a matter of urgency.

24.      By order of the President of the Court of 12 May 2010, it was decided to apply to the present cases the accelerated procedure provided for in Article 23a of the Statute of the Court of Justice and the first paragraph of Article 104a of the Court’s Rules of Procedure.

25.      Written observations were submitted by Mr Melki and Mr Abdeli, by the French, Belgian, Czech, German, Greek, Netherlands, Polish and Slovak Governments and by the Commission. With the exception of the Slovak Government, they all made oral submissions at the hearing on 2 June 2010.

V –  The second question referred

26.      I consider that it is appropriate to examine, first, the second question referred inasmuch as I am of the opinion that the answer to the first question can be found in the relevant established case‑law of the Court, whereas the second question is to some extent new.

A –    The admissibility of the second question referred

27.      The French Government disputes the admissibility of the second question referred. In that regard, it contends that the proceedings on the substance – in the course of which the juge des libertés et de la détention ruled on whether Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure is consistent with EU law – are resolved. (4) Therefore, the only proceedings still pending are those resulting from the submission to the Cour de cassation of a priority question on constitutionality, so that that court can rule on a possible referral of the question to the Conseil constitutionnel. By Decision No 2010-605 DC of 12 May 2010, the Conseil constitutionnel confirmed its case‑law under which review of compliance with international law or EU law is not part of the review of constitutionality and is therefore not within its jurisdiction. In those circumstances, the French Government considers that the question whether Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure is consistent with Article 67 TFEU is totally irrelevant for the only proceedings still pending, which are those before the Cour de cassation. Therefore, as the answer which the Court might provide to the second question of the Cour de cassation would serve no purpose, that question is inadmissible.

28.      It should be noted that the objection to admissibility made by the French Government in relation to the second question is based on its interpretation of the national law according to which review of compliance with EU law is not part of the review of constitutionality (5) and is therefore not within the jurisdiction of the Conseil constitutionnel. In that regard, the French Government relies on, in particular, Decision No 2010‑605 DC of 12 May 2010.

29.      In the light of the references, in the orders for reference, to Articles 23‑2 and 23‑5 of Order No 58‑1067, which provide for not only pleas challenging the compatibility of a legislative provision with the rights and freedoms guaranteed by the Constitution of the French Republic, but also pleas challenging the compatibility of a legislative provision with the French Republic’s international commitments and, therefore, EU law, I consider that it is not obvious from the case‑file before the Court that the second question referred by the Cour de cassation is totally irrelevant in relation to the proceedings pending before that court on the admissibility of the priority question on constitutionality. It appears that Decision No 2010‑605 DC of 12 May 2010 constitutes an instrument for interpretation of Articles 23‑2 and 23‑5 of Order No 58‑1067, but that that decision has not amended the wording of the provisions in question.

30.      It follows that I consider the second question to be admissible.

B –    Substance

31.      The applicants in the main proceedings consider that Regulation No 562/2006 draws no distinction between nationals of the Member States and third‑country nationals who enjoy the freedom to come and go within the territory of the European Union. They point out that Articles 67 TFEU and 77 TFEU envisage no qualification or exception to the exercise of that freedom and that those provisions provide, purely and simply, that there should be no internal border controls, and no circumstances, of any kind whatsoever, may re-establish the possibility of a control. According to the applicants in the main proceedings, Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure, in itself, infringes that freedom in so far as the checks are carried out solely ‘in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled’. They consider that that provision allows for the development of systematic identity checks in the border areas of France, and therefore at borders which are internal for the purposes of the European Union. In addition, that is the way in which Article 78‑2 of the French Code of Criminal Procedure is applied by the French courts. The applicants in the main proceedings are also of the view that the exceptional circumstances – clearly defined in Articles 23 to 25 of Regulation No 562/2006 – in which it is possible to carry out internal border controls are different from those referred to in the French legislative provision.

32.      The French Government observes that the provisions at issue are justified, first, by the presence of significant numbers of people passing through. In order, in particular, to combat illegal immigration effectively, national police authorities must therefore be able to check, in the area in question, that the documents prescribed by law are held. Pursuant to Article L.611‑1 of Ceseda, persons of foreign nationality must be able to produce the papers or documents by virtue of which they are authorised to travel or stay in France. Furthermore, the provisions at issue are justified by the need to combat a specific type of criminality in crossing areas and along borders. According to the French Government, the police controls carried out on the basis of Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure in an area 20 kilometres inside the border are clearly distinguishable from border controls. In the first place, the purpose of those controls is to establish the identity of a person, either in order to prevent the commission of offences or disruption to public order, or to seek the perpetrators of an offence. In the second place, they are based on general information and police experience which have shown the particular benefit of checks in that area. In the third place, they are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders. The French Government takes the view that those controls have none of the characteristics of border control, which, as Article 7 of Regulation No 562/2006 states, must be fixed, permanent and systematic.

33.      The German Government considers that (non‑systematic) police checks in border areas are still permissible in compliance with the conditions laid down in Article 21 of Regulation No 562/2006. The Greek Government is of the opinion that the police measures provided for in Article 78‑2 of the French Code of Criminal Procedure are not intended to control borders and do not result in entry being refused. It considers that those measures have the sole aim of ascertaining whether the person being checked holds and can produce, as he is required to, the authorisations and documents prescribed by law in order to prove his identity. According to the Greek Government, those checks do not take place systematically, but come within the discretionary powers of the relevant authorities, which ‘may’ carry them out but are not obliged to do so. That being so, it takes the view that those measures involve checks which are devised and executed in a manner clearly distinct from systematic checks on persons at external borders. Lastly, those police measures are justified by possible threats to public security and seek, specifically, to combat cross‑border crime.

34.      The Slovak Government considers that, for reasons of public policy and internal security, Member States have the right to carry out police checks on their territories – where the purpose of those checks is not internal border controls – with the aim, for example, of combating cross‑border crime or terrorism. It is also of the opinion that the power to carry out identity checks in connection with the internal borders of the Member State and thus to ensure that the obligation to carry or possess a visa and relevant document is fulfilled, is also compatible with Article 21(c) of Regulation No 562/2006.

35.      The Netherlands Government observes that the French controls in the border area are, in their purpose and content, distinguishable from border control. The aim of border control is to ensure that persons, modes of transport and objects may be authorised to enter or leave the territories of the Member States belonging to the Schengen area. Those controls centre round the conditions for entry to a Member State belonging to the Schengen area or those for leaving it. Those controls include, on any view, ascertaining that a valid travel document is held. In the event of entry into the territory, the purpose of the stay and the means of existence may also be checked. According to the Netherlands Government, it may also be ascertained whether the entry of a person, a mode of transport or an object into the territory might represent a risk to public order or security. Those controls are completely different from the French controls in the border area. The purpose of those latter controls is to ascertain whether the obligations, laid down by law, to hold, carry and produce papers and documents – inter alia, identity or residence documents – are fulfilled. Checking that those documents are held is, as regards its content, different in kind and purpose from border control. Furthermore, the French controls in the border area also differ from border control – as the Netherlands Government understands it – in the way they are carried out. According to the Netherlands Government, border controls are carried out systematically, continuously and in respect of all persons who cross the border. According to the Belgian Government, Article 67 TFEU must be read in the light of the Convention signed at Schengen on 19 June 1990 which is an integral part of EU law and does not prohibit national authorities from carrying out identity checks. Consequently, according to the Belgian Government, EU law does not preclude legislation such as that resulting from Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure.

36.      The Czech Government is of the opinion that the conditions laid down by Regulation No 562/2006 preclude the police authorities of a Member State from being generally stricter when carrying out identity checks in border areas (inside the borders of the Schengen area) than in the rest of the national territory, irrespective of whether that approach results from laws or regulations, internal directives or simply from the practice of the competent bodies. According to that government, the establishment of specific police powers or procedures for the purpose of a control linked, generally, to a specific border area, without particular grounds which merit being taken into account, is by nature a measure of internal border control. That conclusion in no way affects the Member State’s prerogative to carry out police checks on its territory on the basis of a general rule, that is to say, with no link to internal borders and the crossing of those borders. The Commission, subject to the findings which come within the national court’s jurisdiction, considers that the only category of persons more likely to be caught by identity checks carried out close to the border consists of precisely those persons who have just crossed the border illegally. Therefore, according to the Commission, the provisions of Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure are not merely ensuring that the obligation to hold identity documents is fulfilled. Instead, they should be categorised as disguised border controls, which are prohibited, prima facie, by Article 20 of Regulation No 562/2006. (6)

37.      In the orders for reference, the referring court expressly referred to Article 67(2) TFEU which provides, inter alia, that the European Union is to ensure the absence of internal border controls for persons. Accordingly, it is my view that the second question referred by the Cour de cassation is based on the premiss that the provisions of Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure might constitute internal border controls for persons.

38.      Given that it is my opinion that this question concerns solely the crossing of internal borders by persons, I will not examine either the rules applicable to controls at external borders, or the vast body of other measures put in place within the European Union to compensate for an absence of internal border controls for persons, as desired by the Member States. (7)

39.      With the adoption of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders, measures intended to ensure the absence of any controls on persons crossing internal borders and rules governing border control of persons crossing the external borders of the Member States of the European Union were put in place. (8) According to recital 20 in the preamble to Regulation No 562/2006, that regulation respects fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union.

40.      It is apparent from Article 20 of Regulation No 562/2006 that internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out. In ensuring that there are no checks on persons at internal borders, Article 20 of Regulation No 562/2006 prohibits those checks as a general rule. (9) Under point 10 of Article 2 of Regulation No 562/2006, ‘border checks’ means ‘the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it’.

41.      It follows that border checks are geared towards the right to enter or leave the territory of the Member States. (10)

42.      Article 21 of that regulation provides that the abolition of border control at internal borders is not to affect certain prerogatives of the Member States. However, I am of the view that the wording used to describe those prerogatives is to be narrowly construed, given that they are derogations from the general principle of abolition of internal border controls. Those prerogatives must be applied in good faith by the Member States and be consistent with the purpose and spirit of that general principle.

43.      Therefore, I consider that those prerogatives, which are exhaustively listed in Article 21 of Regulation No 562/2006, should not prejudice the abolition of internal border controls. Moreover, that is clearly apparent from Article 21(a) of Regulation No 562/2006 which provides that the abolition of border control at internal borders is not to affect, inter alia, the exercise of police powers by the competent authorities of the States under national law, including also in border areas, in so far as the exercise of those powers does not have an effect equivalent to border checks. That provision sets out four sets of circumstances in which the exercise of police powers may not be considered equivalent to the exercise of border checks, namely, first, when the police measures do not have border control as an objective, second, when they are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, third, when they are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders and, fourth, when they are carried out on the basis of spot-checks.

44.      It is not clear from the wording of Article 21(a) of Regulation No 562/2006 whether or not the four sets of circumstances in question are cumulative. In addition, I think that there is a certain overlap between them, in particular, between the third and fourth sets of circumstances. To my mind, those four sets of circumstances are listed merely by way of example, (11) as the key question is whether police measures have an effect equivalent to border checks, which must be examined on a case‑by‑case basis.

45.      The circumstances in question are therefore factors or indicators which may contribute to a finding that the exercise of police powers does not have an effect equivalent to border checks, but the existence of one or more factors is not necessarily decisive in that regard. Accordingly, I consider that it is apparent from Article 21(a) of Regulation No 562/2006 that the exercise of police powers precludes measures which have an effect equivalent to border checks, even if, in a given case, those measures correspond to one or more of the sets of circumstances set out in Article 21(a) of Regulation No 562/2006. (12)

46.      Article 21(c) of Regulation No 562/2006 provides that the abolition of internal border controls does not affect the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents. (13) None the less, I consider that any checks to ensure compliance with the obligation to hold or carry papers and documents may, depending on the circumstances, offend against the general principle of the abolition of internal border controls, in particular, where those checks are carried out in a systematic, arbitrary or unnecessarily restrictive manner. (14)

47.      It is apparent from the orders for reference that the police checks carried out on the applicants in the main proceedings pursuant to Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure were carried out in the area between the land border of France with Belgium and a line drawn 20 kilometres inside that border. It appears, subject to verification by the national court, that the checks at issue did not occur at a border‑crossing point or even at the border. I consider, as the Commission has also argued, that, in order to ensure the effectiveness of Article 20 of Regulation No 562/2006, and notwithstanding a certain ambiguity in the wording of point 10 of Article 2 of that regulation, (15) border checks need not necessarily take place in a geographical area which corresponds to a border to be regarded as internal border controls for persons. To my mind, to ascertain whether checks do not infringe Article 20 of Regulation No 562/2006, it is necessary to examine, in particular, their objective, and/or how they are implemented, and/or their effects depending on the circumstances of the case at issue. (16)

48.      The absence of internal border controls for persons would be compromised if the Member States could establish disguised border checks inside their territories, away from their borders.

49.      In order to determine the scope of Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure, and subject to verification by the national court, that provision must be compared with, inter alia, other provisions of Article 78‑2 which lays down the conditions under which the French police authorities can carry out identity checks.

50.      Under Article 78‑2, first paragraph, of the French Code of Criminal Procedure, the French police authorities may ask any person to prove his identity, where one or more plausible reasons exist for suspecting that the person has committed or attempted to commit an offence, or is preparing to commit a ‘crime’ or a ‘délit’, or is likely to provide information useful for the investigation in the event of a ‘crime’ or a ‘délit’, or is the subject of inquiries ordered by a judicial authority. Pursuant to Article 78‑2, second paragraph, of the French Code of Criminal Procedure, the identity of any person may be checked, in accordance with the same rules, on the public prosecutor’s written recommendations for the purposes of the investigation and prosecution of offences specified by him. Under Article 78‑2, third paragraph, of the French Code of Criminal Procedure, the identity of any person may also be checked pursuant to the rules set out in Article 78‑2, first paragraph, to prevent a breach of public order. (17)

51.      It appears that the scope of Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure is clearly distinguishable from the other provisions in that article, referred to above. First, Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure applies to a specific geographical area of the French national territory delimited in advance by law and, second, the identity of any person may be checked in accordance with the rules laid down, to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled. Therefore, that provision is intended to apply without any restriction to all persons who are in the target area. (18)

52.      It follows that Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure indisputably establishes a separate system for identity checks in border areas which is stricter than for the rest of the territory of France.

53.      The French Government explained to the Court that the purpose of the checks carried out pursuant to Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure was to establish the identity of a person, either in order to prevent the commission of offences or disruption to public order, or to seek the perpetrators of an offence. However, I consider that that observation is not supported by the documents before the Court. Subject to verification by the national court, the first three paragraphs of Article 78‑2 of the French Code of Criminal Procedure refer specifically to identity checks for those purposes. (19) By contrast, the identity checks carried out pursuant to Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure are based solely on the geographical location of the person concerned, that is to say, in particular, an area up to 20 kilometres inside the border.

54.      In the light of the geographical scope of the identity checks at issue, and of the fact that they are capable of being applied to each person who is in the geographical area indicated, and in the absence of a concrete explanation of the objective which they pursue, I consider that they constitute checks linked to the crossing of the border which are not covered by the prerogatives of the Member States under Article 21 of Regulation No 562/2006. In the light of all the foregoing, I consider that the identity checks at issue constitute disguised border checks which are prohibited under Article 20 of Regulation No 562/2006, and which do not come under the limited exceptions provided for in Article 21 of that regulation.

55.      Accordingly, I am of the opinion that Article 67 TFEU and Articles 20 and 21 of Regulation No 562/2006 preclude legislation such as that resulting from Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure which provides that ‘[i]n an area between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line drawn 20 kilometres inside that border, and in the publicly accessible areas of ports, airports and railway or bus stations open to international traffic, designated by order, the identity of any person may also be checked, in accordance with the rules provided for in the first paragraph, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled. Where that control takes place on board an international train, it may be carried out on the section of the journey between the border and the first stop situated beyond the 20 kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next 50 kilometres. Those lines and those stops shall be designated by Ministerial order. Where there is a section of motorway starting in the area referred to in the first sentence of this paragraph and the first motorway tollbooth is situated beyond the 20 kilometre line, the control may also take place up to that first tollbooth, on parking areas and on the site of that tollbooth and the adjoining parking areas. The tollbooths concerned by this provision shall be designated by order’.

VI –  The first question referred

56.      By its first question, which concerns the interpretation of Article 267 TFEU, the Cour de cassation asks the Court whether that provision precludes national legislation, resulting from an organic law on the application of Article 61‑1 of the Constitution of the French Republic, in so far as that legislation requires courts to rule, as a matter of priority, on whether to submit to the Conseil constitutionnel the question on constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to EU law, is in breach of the Constitution. In particular, the Cour de cassation is uncertain whether the procedural rules introduced, first, by Article 23‑2 of Order No 58‑1067 – which require a court, when pleas are made before it challenging the compatibility of a legislative provision with, on the one hand, the rights and freedoms guaranteed by that constitution and, on the other, the international commitments of the French Republic, to rule as a matter of priority on whether to submit the question on constitutionality to the Conseil d’État or to the Cour de cassation, to which it falls to decide whether to refer the matter to the Conseil constitutionnel – and, second, by Article 23‑5 of that order – which requires the Conseil d’État or the Cour de cassation, when such pleas are made before it, to rule as a matter of priority on whether to refer the question on constitutionality to the Conseil constitutionnel – limit the freedom of the French courts to refer questions to the Court of Justice for a preliminary ruling as guaranteed by Article 267 TFEU. In that regard, it is my view that Article 62 of the Constitution of the French Republic, to which the Cour de cassation has referred in its references for a preliminary ruling, and which provides that no appeal lies from the decisions of the Conseil constitutionnel, must also be examined in the context of the first question referred.

57.      I take the view that, by its first question, the Cour de cassation seeks, in particular, to ascertain whether national law may limit the freedom of a national court to make a preliminary ruling to the Court of Justice pursuant to Article 267 TFEU.

A –    The admissibility of the first question referred

58.      The French Government disputes the admissibility of the first question referred. In that regard, it contends that that question is based on a manifestly erroneous interpretation of national law, so that it is purely hypothetical in nature. The Commission, while not disputing the admissibility of the first question referred, expresses uncertainty as regards the national legal context described in the orders for reference. In particular, it considers that the scope of the review of constitutionality carried out by the French Conseil constitutionnel is not fully apparent from the information supplied by the referring court.

59.      It is settled case‑law that it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct. The Court must take account, under the division of jurisdiction between itself and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set. (20)

60.      It is apparent from the references for a preliminary ruling that they are based on the premiss that French law, in particular Articles 23‑2 and 23‑5 of Order No 58‑1067, and Article 62 of the Constitution of the French Republic, limits the freedom of the national courts, including that of the referring court, to make a reference to the Court of Justice pursuant to Article 267 TFEU and to rule on the compatibility of a national provision with EU law. To my mind, given that the disputes in the main proceedings centre on whether the national law is consistent with EU law, (21) the first question referred does not appear to be totally irrelevant for the outcome of the disputes in the main proceedings.

61.      In the light of the foregoing, the first question referred should be declared admissible.

B –    Substance

62.      As a preliminary point, I would note that the Court has already had occasion to give rulings in cases where provisions of national law limited the possibility for a national court or tribunal to make a reference to the Court for a preliminary ruling under Article 267 TFEU. (22) In its judgments on the subject, the Court has ruled systematically in favour of the broadest freedom for national courts or tribunals to refer to it questions on the validity and interpretation of EU law. In answer to the first question referred, I shall therefore recall the consistent and settled case‑law of the Court on the subject. Furthermore, I consider that the answer to be given to the first question cannot be influenced by the fact that the purpose of the organic law in question appears to be to grant additional procedural protection to individuals under national law.

63.      Under Article 19(3)(b) TEU and Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of EU law or the validity of acts adopted by the European Union’s institutions. (23)

64.      The essential purpose of the jurisdiction conferred on the Court by Article 267 TFEU is to ensure that EU law is applied uniformly by national courts and tribunals. That purpose is pursued by the Court of Justice and the national courts and tribunals in a spirit of cooperation, (24) and on the basis of mutual trust and judicial dialogue. The preliminary ruling procedure established by Articles 19 TEU and 267 TFEU is a procedural instrument which is vital in ensuring the coherent application of, and respect for, EU law before all the national courts and tribunals in the 27 Member States.

65.      It is clear from the wording of Article 267 TFEU itself that the Court has a very broad jurisdiction and that, acting in a spirit of cooperation, the Court is, in general, reluctant to declare inadmissible questions referred by national courts or tribunals on the interpretation of the Treaties or the validity and interpretation of acts of the European Union’s institutions.

66.      According to settled case‑law, questions on the interpretation of EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (25) Furthermore, under Article 267 TFEU a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. (26) It is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of each case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (27) Consequently, where the questions submitted concern the interpretation of EU law, the Court is bound, in principle, to give a ruling. (28)

67.      Any national courts or tribunals against whose decisions there is a judicial remedy under national law are, under the second paragraph of Article 267 TFEU, free to assess whether or not a reference to the Court for a preliminary interpretative ruling is necessary, where a question of EU law is raised before them, whereas national courts or tribunals against whose decisions there is no judicial remedy under national law are required – pursuant to the third paragraph of Article 267 TFEU – to make a reference to the Court when such a question is raised before them. (29)

68.      In that regard, it is clear from Cilfit and Others (30) that a national court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question had already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. (31)

69.      In Rheinmühlen‑Düsseldorf, (32) the Court stressed that national courts have the widest power in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part. (33) In addition, the Court held that the power of the national court to refer matters to the Court of Justice cannot, generally, be negated by a rule of national law under which the court is bound on points of law by the rulings of a superior court. (34) In that regard, in ERG and Others, (35) the Court ruled that a lower court not ruling at last instance must be free, in particular if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court the questions which concern it.

70.      In Kücükdeveci, (36) the Court recently underlined the optional nature of the second paragraph of Article 267 TFEU and, in my view, the discretion enjoyed by the courts and tribunals of Member States when applying that provision. In the proceedings which gave rise to that judgment, the question which arose was whether a national court had to make a reference to the Court of Justice for a preliminary ruling on the interpretation of EU law, before it could disapply a provision of national law which it considered to be contrary to EU law where, under national law, the referring court could not disapply the provision of national law unless that provision had first been declared unconstitutional by the Bundesverfassungsgericht (German Federal Constitutional Court). The Court held that it was for the national court, hearing proceedings between individuals, to ensure compliance with EU law, disapplying if need be any contrary provision of national legislation, independently of whether it makes use of its entitlement, in the cases referred to in the second paragraph of Article 267 TFEU, to ask the Court for a preliminary ruling on the interpretation of EU law. (37)

71.      In addition, in Mecanarte, (38) the Court stated that the effectiveness of the system established by Article 267 TFEU requires that the national courts have the widest possible power to refer questions to the Court of Justice. The Court ruled in that case – a case which I consider moreover somewhat analogous to the present case – that a national court which, in a case concerning EU law, declares a provision of national law unconstitutional does not lose the right or escape the obligation under Article 267 TFEU to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that such a declaration is subject to a mandatory reference to the constitutional court. (39) Moreover, as regards the question whether a national court may dispense with a reference for a preliminary ruling where the national legal order provides means of remedying defects in a domestic provision, the Court held that the discretion enjoyed by the national court under the second paragraph of Article 267 TFEU also includes a discretion to decide at what stage of the procedure it is appropriate to refer a question to the Court for a preliminary ruling. Thus, the fact that a breach of EU law may be remedied within the national legal system does not in any way affect the discretion afforded to national courts or tribunals for the purposes of the second paragraph of Article 267 TFEU.

72.      I therefore consider that it is clear from the settled case‑law of the Court that the effectiveness of EU law would be frustrated if the existence of an obligation to refer a matter to a constitutional court could limit or fetter the autonomous discretion conferred on all national courts and tribunals, for the purposes of the second paragraph of Article 267 TFEU, to refer to the Court of Justice questions concerning the interpretation or validity of EU law in cases pending before them.

73.      Furthermore, where national law limits or fetters the discretion of national courts or tribunals to refer questions to the Court of Justice for a preliminary ruling pursuant to Article 267 TFEU, I consider that the principle of primacy, which is the cornerstone of EU law, should be applied. That principle was recalled again, recently, in the declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon signed on 13 December 2007. (40)

74.      In accordance with well‑established case‑law, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national law, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting-aside of such provision by legislative or other constitutional means. (41)

75.      In my view, Article 267 TFEU constitutes an integral part of the legal order of the Member States and takes precedence over rules of national law to the extent to which they are incompatible with that article. Every national court and tribunal can and must apply Article 267 TFEU fully and, in the event of conflict between that article and a provision of national law, if necessary refuse of its own motion to apply that provision of national law in a case pending before it.

76.      It should also be observed that, besides the fact that the national courts and tribunals enjoy, pursuant to the second paragraph of Article 267 TFEU, in cases pending before them, a discretion relating to referral of a question to the Court of Justice for a preliminary ruling and that that discretion cannot be limited or fettered by national measures, a judgment in which the Court gives a preliminary ruling is binding on those national courts and tribunals for the purposes of the decision to be given in the main proceedings. (42) In Simmenthal, the Court held that the effectiveness of the referral procedure would be impaired if the national court were prevented from forthwith applying EU law in accordance with the decision or the case‑law of the Court. Accordingly, I consider that, in the event of conflict between a decision of the Court of Justice following a reference for a preliminary ruling and a decision of a national court, including a decision of a constitutional court, the primacy of EU law requires the national court or tribunal to apply the decision of the Court of Justice and disapply the conflicting decision of the national court. (43)

77.      In the light of the referring court’s description of the national legal framework and, in particular, the rules concerning the priority question on constitutionality, I consider that Article 267 TFEU precludes legislation such as that resulting from Article 23‑2, second paragraph, and Article 23‑5, second paragraph, of Order No 58‑1067, in so far as those provisions require courts to rule as a matter of priority on whether to submit to the Conseil constitutionnel the question on constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to EU law, is in breach of the Constitution of the French Republic.

VII –  Conclusion

78.      In the light of the foregoing considerations, I propose to the Court that the answer to the questions referred by the Cour de cassation should be as follows:

(1)      Article 67 TFEU and Articles 20 and 21 of Regulation (EC) No 562/2006 of the European 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) preclude legislation such as that resulting from Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure which provides that ‘[i]n an area between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line drawn 20 kilometres inside that border, and in the publicly accessible areas of ports, airports and railway or bus stations open to international traffic, designated by order, the identity of any person may also be checked, in accordance with the rules provided for in the first paragraph, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled. Where that control takes place on board an international train, it may be carried out on the section of the journey between the border and the first stop situated beyond the 20 kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next 50 kilometres. Those lines and those stops shall be designated by Ministerial order. Where there is a section of motorway starting in the area referred to in the first sentence of this paragraph and the first motorway tollbooth is situated beyond the 20 kilometre line, the control may also take place up to that first tollbooth, on parking areas and on the site of that tollbooth and the adjoining parking areas. The tollbooths concerned by this provision shall be designated by order’.

(2)      In the light of the referring court’s description of the national legal framework and, in particular, the rules concerning the priority question on constitutionality, Article 267 TFEU precludes legislation such as that resulting from Article 23‑2, second paragraph, and Article 23‑5, second paragraph, of Order No 58‑1067 of 7 November 1958 on the organic law governing the Conseil constitutionnel, as amended by French Organic Law No 2009‑1523 of 10 December 2009, in so far as those provisions require courts to rule as a matter of priority on whether to submit to the Conseil constitutionnel the question on constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to European Union law, is in breach of the Constitution of the French Republic.


1 – Original language: French.


2 –      Notifications required under Article 37 of Regulation No 562/2006 – The possibility for a Member State to provide by law for an obligation to hold or carry papers and documents pursuant to Article 21(c) (2008/C 18/03) (OJ 2008 C 18, p. 15).


3 – That is to say, the compatibility of a legislative provision with an international agreement.


4 – According to the French Government, the procedure for recognition of those concerned by the Algerian authorities, which is necessary for the execution of the deportation order, could not be carried out before the end of the 15-day period of administrative detention. Therefore, on 9 April 2010, the Prefect for the Nord-Pas-de-Calais region, the Prefect for the North, decided to release Mr Melki and Mr Abdeli. It follows that, since that date, Mr Melki and Mr Abdeli have no longer been the subject of any measure depriving them of their liberty and the two orders of the juge de la liberté et de la détention, which had not been challenged by Mr Melki and Mr Abdeli, have also ceased to have any effect and have become definitive.


5 – According to the French Government, it is the ordinary courts which are responsible for reviewing ‘conventionnalité’, that is to say, whether a law is compatible with an international agreement.


6 – The Polish Government did not submit observations on the second question.


7 – See, to that effect, inter alia, Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ 2008 L 210, p. 12); Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349, p. 1); Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ 2006 L 386, p. 89); Council Decision of 6 April 2009 establishing the European Police Office (Europol) (OJ 2009 L 121, p. 37); and Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2006 L 381, p. 4).


8 – The Court held, in Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 43, that Article 62(1) and (2)(a) EC (now Article 77(2)(e) TFEU) constitutes the legal basis for the Council’s action with a view to the adoption of measures ensuring the absence of any checks on persons when crossing internal borders, and measures on the crossing of the external borders of the Member States, and does not, in and of itself, have the object or effect of granting rights to third‑country nationals, or of imposing obligations on Member States.


9 – Where there is a serious threat to public policy or internal security, Member States may exceptionally, and subject to compliance with certain strict conditions, reintroduce temporarily border control at their internal borders. The scope and duration of any border control should not go beyond what is necessary to respond to that threat. See Articles 23 to 31 of Regulation No 562/2006.


10 – It should be observed that according to recital 6 in the preamble to Regulation No 562/2006 ‘[b]order control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations’.


11 – I consider that it is apparent from the wording ‘in particular’ that the list in Article 21(a) of Regulation No 562/2006 is by way of example and not exhaustive.


12 – For example, as regards the third and fourth sets of circumstances in question, to my mind, the actual regularity of the checks is only an indicative factor. It is possible to imagine that disguised border checks may be carried out less regularly than those authorised under EU law.


13 – See, by analogy, Case C‑215/03 Oulane [2005] ECR I‑1215, paragraph 34. In that judgment, the Court ruled that ‘Community law does not prevent a Member State from carrying out checks on compliance with the obligation to be able to produce proof of identity at all times, provided that it imposes the same obligation on its own nationals as regards their identity card’.


14 – See, by analogy, Case 321/87 Commission v Belgium [1989] ECR 997, paragraph 15.


15 – See also point 9 of Article 2 of Regulation No 562/2006 which defines ‘border control’ as ‘the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance’.


16 – See also, to that effect, Article 21(a) of Regulation No 562/2006.


17 – To my mind, the other provisions of Article 78‑2, fifth and sixth paragraphs, of the French Code of Criminal Procedure relating to Guadeloupe, French Guiana, Mayotte, Saint Martin and Saint Barthélemy are not relevant in the present case since the French overseas departments, collectivities and territories are excluded from the Schengen free movement area.


18 – The French Government has also relied on Article L.611‑1 of Ceseda in its observations. It must be pointed out that that provision is not relevant in the present case, given that it is clear from the orders for reference that the applicants in the main proceedings were subject to checks pursuant to Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure. In any event, it appears also, subject to verification by the national court, that, normally, residence permit checks pursuant to Article L.611‑1 of Ceseda are carried out throughout French territory and must be based on very strict criteria as regards the status of the person being checked as a person of foreign nationality. However, since Article L.611‑1 of Ceseda provides that persons of foreign nationality can also be obliged to produce the papers or documents by virtue of which they are authorised to travel or remain in France, following an identity check carried out pursuant to Articles 78‑1, 78‑2 and 78‑2‑1 of the French Code of Criminal Procedure, it appears, subject to verification by the national court, that Article L.611‑1 could, in fact, be applied in a more rigorous manner in the relevant geographical area in the light of its link with Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure. Furthermore, Article 78‑2‑1 of the French Code of Criminal Procedure, which provides that the police authorities are entitled, on the public prosecutor’s recommendations, to enter professional premises, is irrelevant in the present case. In any event, it appears that that provision is applied throughout the whole of the territory of France.


19 – That does not mean that identity checks carried out pursuant to Article 78‑2, fourth paragraph, of the French Code of Criminal Procedure could not, in certain cases, reveal or prevent offences, but it appears, subject to verification by the national court, that there are other provisions of that code dealing specifically with those issues.


20 – See, to that effect, Case C‑244/06 Dynamic Medien [2008] ECR I‑505, paragraph 19 and case‑law cited.


21 – See point 18 above.


22 – Formerly Article 234 of the EC Treaty and Article 177 of the EEC Treaty.


23 – Given that the validity of an act adopted by the European Union’s institutions is not at issue in the present case, I shall focus my remarks in this View on the question of interpretation of EU law pursuant to Article 267 TFEU.


24 – See, by analogy, Case C‑350/07 Kattner Stahlbau [2009] ECR I‑1513, paragraph 29 and case‑law cited.


25 – See, inter alia, Case C‑333/07 Régie Networks [2008] ECR I‑10807, paragraph 46 and case‑law cited.


26 –      See order in Case 138/80 Borker [1980] ECR 1975, paragraph 4; order in Case 318/85 Greis Unterweger [1986] ECR 955, paragraph 4; Case C‑111/94 Job Centre [1995] ECR I‑3361, paragraph 9; and Case C‑178/99 Salzmann [2001] ECR I‑4421, paragraph 14.


27 – Case 170/82 Les Fils d’Henri Ramel [1983] ECR 1319, paragraph 8.


28 – See, to that effect, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38, and Case C‑118/08 Transportes Urbanos y Servicios Generales [2010] ECR I‑635, paragraph 25.


29 – See, inter alia, Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraphs 31 and 33.


30 – Case 283/81 [1982] ECR 3415, paragraph 21.


31 – However, it is also clear from Cilfit and Others that the possibility for a national court or tribunal, against whose decisions there is no judicial remedy under national law, not to refer to the Court every question on the interpretation of EU law raised before it must be assessed, inter alia, on the basis of the different language versions of the provisions of EU law in question. Given that there are currently 23 official working languages within the European Union and that all the language versions are authentic, it is unlikely that such a court or tribunal could, in practice, avail itself of that (extremely narrow) possibility.


32 –      Case 166/73 [1974] ECR 33, paragraph 3.


33 – See also Case C‑210/06 Cartesio [2008] ECR I‑9641, paragraph 88.


34 – The Court went on to state, in Case 166/73 Rheinmühlen‑Düsseldorf, that it would be otherwise if the questions put by a court were the same as questions already put by the court of last instance. It must be noted that in Case 146/73 Rheinmühlen‑Düsseldorf [1974] ECR 139, paragraph 3, the Court stated that, in the case of a court or tribunal against whose decisions there is a judicial remedy under national law, Article 267 TFEU does not preclude decisions of such a court or tribunal by which questions are referred to the Court for a preliminary ruling from remaining subject to the remedies normally available under national law (see also Cartesio, paragraph 89). The question therefore arises whether and to what extent national remedies could limit the power of a national court or tribunal to make a preliminary reference under Article 267 TFEU. In Case 146/73 Rheinmühlen‑Düsseldorf, the Court stressed that despite the existence of national remedies it must nevertheless abide by the decision to refer, which must have its full effect so long as it has not been revoked (see also Cartesio, paragraphs 92 to 97). It is clear from the Court’s case‑law on the subject that, while the Court acknowledges the existence of remedies under national law, where a case is pending before a national court or tribunal, national law may not limit the independent power of that court or tribunal to make a reference to the Court for a preliminary ruling. In those circumstances, the Court must abide by the decision to make a reference for a preliminary ruling, which must have its full effect so long as it has not been revoked or amended by the referring court, such revocation or amendment being matters on which that court alone is able to take a decision. For a case in which the Court declined jurisdiction because the dispute was no longer pending before the referring court, see order in Case C‑525/06 Nationale Loterij [2009] ECR I‑2197, paragraphs 8 to 11. It should be noted that in that case the referring court did not withdraw the reference for a preliminary ruling.


35 – Joined Cases C‑379/08 and C‑380/08 [2010] ECR I‑2007, paragraph 26.


36 – Case C‑555/07 [2010] ECR I‑365.


37 – In paragraph 55 of that judgment, the Court held that ‘[t]he optional nature of such a reference is not affected by the conditions of national law under which a court may disapply a national provision which it considers to be contrary to the constitution’.


38 – Case C‑348/89 [1991] ECR I‑3277, paragraph 44.


39 – See paragraphs 45 to 49 of Mecanarte. In the proceedings giving rise to the judgment in that case, the Tribunal Fiscal Aduaneiro (Customs Court), Oporto (Portugal), inquired, first, whether, having found the national provisions at issue to be unconstitutional, it had jurisdiction to seek a preliminary ruling, since a finding of unconstitutionality of a rule of domestic law was subject, by virtue of Article 280(3) of the Constitution of the Portuguese Republic, to an appeal to the Portuguese Constitutional Court and consequently only that court could seek a preliminary ruling in such cases, and, second, whether a reference for a preliminary ruling might not have been superfluous since any defects of a national provision could have been remedied within the national legal system. See also Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraphs 16 to 21.


40 – Declaration 17 concerning primacy states:


      ‘The Conference recalls that, in accordance with well-settled case-law of the Court of Justice of the European Union, the Treaties and law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case-law.


      The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):


      “Opinion of the Council Legal Service of 22 June 2007


      It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case-law (Costa/ENEL, 15 July 1964, Case [6/64] (1)) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.


      (1) ‘It follows … that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.’ ” ’


41 – See, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 24; Joined Cases C‑13/91 and C‑113/91 Debus [1992] ECR I‑3617, paragraph 32; Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 61; and Case C‑115/08 ČEZ [2009] ECR I‑10265, paragraph 138. See also Case C‑314/08 Filipiak [2009] ECR I‑11049, paragraph 84, in which the Court ruled that the deferral by a constitutional court (in that case the Trybunał Konstytucyjny, the Polish Constitutional Court) of the date on which the provisions at issue would lose their binding force did not prevent the referring court, in accordance with the principle of the primacy of EU law, from declining to apply those provisions in the proceedings before it, if the court held those provisions to be contrary to EU law.


42 – See, to that effect, inter alia, Case 52/76 Benedetti [1977] ECR 163, paragraph 26; Case C‑446/98 Fazenda Pública [2000] ECR I‑11435, paragraph 49, and order in Case 69/85 Wünsche [1986] ECR 947, paragraph 13. See also point 64 of the Opinion of Advocate General Jacobs in Case C‑195/98 Österreichischer Gewerkschaftsbund [2000] ECR I‑10497. In his Opinion in Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, Advocate General Bot stated that uniform interpretation of EU law can be secured only if the Court’s judgments are binding on national courts and tribunals. The binding nature of the ruling is also the corollary of the national courts’ obligation to ensure the effective application of EU law (points 204 and 205).


43 – See, by analogy, Filipiak.