VIEW OF ADVOCATE GENERAL

MAZÁK

delivered on 7 June 2010 ( 1 )

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

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

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.

VI – The first question referred

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

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 )

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 )

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 .

JUDGMENT OF THE COURT (Grand Chamber)

22 June 2010 ( *1 )

In Joined Cases C-188/10 and C-189/10,

REFERENCES for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), made by decisions of 16 April 2010, received at the Court on the same day, in proceedings against

Aziz Melki (C-188/10),

Sélim Abdeli (C-189/10),

THE COURT (Grand Chamber),

composed of V. Skouris, President, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot, R. Silva de Lapuerta and C. Toader, Presidents of Chambers, K. Schiemann, E. Juhász, T. von Danwitz (Rapporteur), J.-J. Kasel and M. Safjan, Judges,

Advocate General: J. Mazák,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the order of the President of the Court of 12 May 2010 deciding to apply an accelerated procedure to the references for a preliminary ruling in accordance with Article 23a of the Statute of the Court of Justice of the European Union and the first paragraph of Article 104a of the Rules of Procedure,

having regard to the written procedure and further to the hearing on 2 June 2010,

after considering the observations submitted on behalf of:

—

Mr Melki and Mr Abdeli, by R. Boucq, avocat,

—

the French Government, by E. Belliard, G. de Bergues and B. Beaupère-Manokha, acting as Agents,

—

the Belgian Government, by C. Pochet, M. Jacobs and T. Materne, acting as Agents, and by F. Tulkens, avocat,

—

the Czech Government, by M. Smolek, acting as Agent,

—

the German Government, by J. Möller, B. Klein and N. Graf Vitzthum, acting as Agents,

—

the Greek Government, by T. Papadopoulou and L. Kotroni, acting as Agents,

—

the Netherlands Government, by C. Wissels and M. de Ree, acting as Agents,

—

the Polish Government, by J. Faldyga, M. Jarosz and M. Szpunar, acting as Agents,

—

the Slovak Government, by B. Ricziová, acting as Agent,

—

the European Commission, by J.-P. Keppenne and M. Wilderspin, acting as Agents,

after hearing the Advocate General,

gives the following

Judgment

1These references for a preliminary ruling concern the interpretation of Articles 67 TFEU and 267 TFEU.

2The references have been made in the course of two sets of proceedings brought against Mr Melki and Mr Abdeli respectively – both of whom are of Algerian nationality – seeking the extension of their detention in premises not falling within the control of the prison service.

Legal context

European Union law

3Under the preamble to Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union, annexed to the Treaty of Lisbon ( OJ 2010 C 83, p. 290 ; ‘Protocol No 19’):

‘The High Contracting Parties,

noting that the Agreements on the gradual abolition of checks at common borders signed by some Member States of the European Union in Schengen on 14 June 1985 and on 19 June 1990, as well as related agreements and the rules adopted on the basis of these agreements, have been integrated into the framework of the European Union by the Treaty of Amsterdam of 2 October 1997,

desiring to preserve the Schengen acquis , as developed since the entry into force of the Treaty of Amsterdam, and to develop this acquis in order to contribute towards achieving the objective of offering citizens of the Union an area of freedom, security and justice without internal borders,

…

have agreed upon the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union’.

4Article 2 of that protocol states:

‘The Schengen acquis shall apply to the Member States referred to in Article 1, without prejudice to Article 3 of the Act of Accession of 16 April 2003 or to Article 4 of the Act of Accession of 25 April 2005. The Council will substitute itself for the Executive Committee established by the Schengen agreements.’

5The Schengen acquis comprises, inter alia, 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 CISA’), Article 2 of which concerned the crossing of internal borders.

6Under Article 2(1) to (3) of the CISA:

‘1. Internal borders may be crossed at any point without any checks on persons being carried out.

2. However, where public policy or national security so require a Contracting Party may, after consulting the other Contracting Parties, decide that for a limited period national border checks appropriate to the situation shall be carried out at internal borders. If public policy or national security require immediate action, the Contracting Party concerned shall take the necessary measures and at the earliest opportunity shall inform the other Contracting Parties thereof.

3. The abolition of checks on persons at internal borders shall not affect the provisions laid down in Article 22, or the exercise of police powers throughout a Contracting Party’s territory by the competent authorities under that Party’s law, or the requirement to hold, carry and produce permits and documents provided for in that Party’s law.’

7Article 2 of the CISA was repealed as from 13 October 2006, in accordance with Article 39(1) 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 ).

8Under Article 2, points 9 to 11, of that regulation:

‘For the purposes of this Regulation the following definitions shall apply:

…

9.“border control”, means 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;

10.“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;

11.“border surveillance”, means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks’.

9Article 20 of Regulation No 562/2006, entitled ‘Crossing internal borders’, provides:

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

10Article 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;

…

(c)

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

…’

National law

Constitution of 4 October 1958

11Article 61-1 of the Constitution of 4 October 1958, as amended by Constitutional Law No 2008-724 of 23 July 2008 on the modernisation of the institutions of the Fifth Republic (JORF of 24 July 2008, p. 11890) (‘the Constitution’), 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 [Constitutional Council] further to a reference from the Conseil d’État [Council of State] or the Cour de Cassation [Court of Cassation], which shall rule within a fixed period.

An Organic Law shall determine the conditions for implementing the present article.’

12The second and third paragraphs of Article 62 of the Constitution provide:

‘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.’

13Under Article 88-1 of the Constitution:

‘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.’

Order No 58-1067

14Organic Law No 2009-1523 of 10 December 2009 on the application of Article 61-1 of the Constitution (JORF of 11 December 2009, p. 21379) inserted a new Chapter IIa, entitled ‘Priority Questions on Constitutionality’, into Title II of Order No 58-1067 of 7 November 1958 on the organic law governing the Conseil constitutionnel. That Chapter IIa provides:

‘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.

Article 23-3

Where the question is submitted, the court or tribunal shall stay proceedings until receipt of the decision of the Conseil d’État or the Cour de cassation or, if the matter has been referred to it, of the Conseil constitutionnel. The preparatory inquiries shall not be suspended and the court or tribunal may take the necessary interim or protective measures.

However, proceedings shall not be stayed either where a person is deprived of his liberty by reason of the proceedings, or where the purpose of the proceedings is to bring to an end a measure depriving someone of his liberty.

The court or tribunal may also rule without awaiting the decision on the priority question on constitutionality if law or regulation provides that it is to rule within a fixed period or as a matter of urgency. If the court at first instance rules without waiting and an appeal is brought against its decision, the appeal court shall stay proceedings. It may, however, not stay the proceedings if it is itself required to rule within a fixed period or as a matter of urgency.

In addition, where a stay of proceedings would risk leading to irreparable or manifestly excessive consequences for the rights of a party, the court or tribunal which decides to submit the question may rule on those points which must be decided immediately.

If an appeal on a point of law has been brought where the courts adjudicating on the substance have ruled without awaiting the decision of the Conseil d’État or the Cour de cassation or, if the matter has been referred to it, the decision of the Conseil constitutionnel, any decision on that appeal shall be stayed until a ruling has been given on the priority question on constitutionality. That shall not apply where the party concerned is deprived of his liberty by reason of the proceedings and legislation provides that the Cour de cassation is to rule within a fixed period.

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. That shall not apply where the party concerned is deprived of his liberty by reason of the proceedings and legislation provides that the Cour de Cassation is to rule within a fixed period. If the Conseil d’État or the Cour de cassation is required to rule as a matter of urgency, it is possible for the proceedings not to be stayed.

…

Article 23-7

The reasoned decision of the Conseil d’État or the Cour de cassation to refer the matter to the Conseil constitutionnel shall be sent to it together with the pleadings or submissions of the parties. The Conseil constitutionnel shall receive a copy of any reasoned decision of the Conseil d’État or the Cour de cassation not to refer a priority question on constitutionality to it. If the Conseil d’État or the Cour de cassation has not ruled within the periods prescribed in Articles 23-4 and 23-5, the question is submitted to the Conseil constitutionnel.

…

Section 3

Provisions applicable before the Conseil constitutionnel

[…]

Article 23-10

The Conseil constitutionnel shall issue a ruling within three months of the date on which the matter was referred to it. The parties shall be permitted to submit their observations in adversarial proceedings. The hearing shall be public, save in exceptional cases defined in the Rules of Procedure of the Conseil constitutionnel.

…’

The Code of Criminal Procedure

15Article 78-2 of the Code of Criminal Procedure (code de procédure pénale), in the version in force at the material time, 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 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.

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.

…’

The actions in the main proceedings and the questions referred for a preliminary ruling

16Mr Melki and Mr Abdeli, Algerian nationals unlawfully present in France, were subject to a police control, pursuant to Article 78-2, fourth paragraph, of the 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, they were each made the subject of a deportation order from the Prefect and a decision for continued detention.

17Before the juge des libertés et de la détention (Judge deciding on provisional detention), to which the Prefect had made an application for extension of that detention, Mr Melki and Mr Abdeli disputed the lawfulness of the check made on them and raised the issue of the constitutionality of Article 78-2, fourth paragraph, of the Code of Criminal Procedure, on the ground that that provision prejudices the rights and freedoms guaranteed by the Constitution.

18By two orders of 25 March 2010, the juge des libertés et de la détention ordered, first, that the question whether Article 78-2, fourth paragraph, of the Code of Criminal Procedure prejudices the rights and freedoms guaranteed by the Constitution be submitted to the Cour de Cassation and, second, that the detention of Mr Melki and Mr Abdeli be extended by 15 days.

19According to the referring court, Mr Melki and Mr Abdeli claim that Article 78-2, fourth paragraph, of the Code of Criminal Procedure is contrary to the Constitution, given that the French Republic’s commitments resulting from the Treaty of Lisbon have constitutional value in the light of Article 88-1 of the Constitution, and that that provision of the Code of Criminal Procedure, in so far as it authorises border controls at the borders with other Member States, is contrary to the principle of freedom of movement for persons set out in Article 67(2) TFEU, which provides that the European Union is to ensure the absence of internal border controls for persons.

20The referring court considers, first, that the issue arises whether Article 78-2, fourth paragraph, of the Code of Criminal Procedure is consistent both with European Union Law (‘EU law’) and with the Constitution.

21Second, the Cour de cassation infers from Articles 23-2 and 23-5 of Order No 58-1067, and from Article 62 of the Constitution, that courts adjudicating on the substance, like itself, are denied, by the effect of Organic Law No 2009-1523 which introduced those articles into Order No 58-1067, the opportunity to refer a question to the Court of Justice of the European Union for a preliminary ruling, where a priority question on constitutionality has been referred to the Conseil constitutionnel.

22As it takes the view that its decision on whether to refer the priority question on constitutionality to the Conseil constitutionnel depends on the interpretation of EU law, the Cour de cassation decided, in both cases which are pending, to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.

Does Article 267 [TFEU] preclude legislation such as that resulting from Article 23-2, paragraph 2, and Article 23-5, paragraph 2, of Order No 58-1067 of 7 November 1958, created by 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 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, paragraph 4, of the Code of Criminal Procedure, which provides that “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 observed. 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”.’

23By 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.

The questions referred for a preliminary ruling

Admissibility

24The French Government contends that the references for a preliminary ruling are inadmissible.

25As regards the first question, the French Government submits that it is purely hypothetical. That question is based on the premiss that the Conseil constitutionnel, when examining whether a law is consistent with the Constitution, may find it necessary to examine whether that law is consistent with EU law. However, according to the case-law of the Conseil constitutionnel, it is not for the Conseil, in the context of review of the constitutionality of laws, but rather for the ordinary and administrative courts to examine whether a law is consistent with EU law. It follows that, under national law, the Conseil d’État and the Cour de cassation are not obliged to refer to the Conseil constitutionnel questions on the compatibility of provisions of national law with EU law, since such questions are not related to the review of constitutionality.

26As regards the second question, the French Government contends that a reply to that question would serve no purpose. Since 9 April 2010, Mr Melki and Mr Abdeli have no longer been the subject of any measure depriving them of their liberty and, as from that date, the two orders of the juge des libertés et de la détention have ceased to have any effect. The issue of the compatibility of Article 78-2, fourth paragraph, of the Code of Criminal Procedure with Article 67 TFEU is also irrelevant for the only set of proceedings still pending before the Cour de cassation, given that, as the Conseil constitutionnel recalled in its decision No 2010-605 DC of 12 May 2010, the Conseil maintains that it does not have jurisdiction to examine the compatibility of legislation with EU law, where it is required to review the constitutionality of that legislation.

27In that regard, suffice it to point out that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, 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 (see, inter alia, Case C-333/07 Regie Networks [2008] ECR I-10807 , paragraph 46; Case C-478/07 Budejovicky Budvar [2009] ECR I-7721 , paragraph 63; and Case C-56/09 Zanotti [2010] ECR I-4517 , paragraph 15).

28In this instance, the questions referred concern the interpretation of Articles 67 TFEU and 267 TFEU. It is not apparent from the grounds of the orders for reference that the orders issued by the juge des libertés et de la détention in respect of Mr Melki and Mr Abdeli have ceased to have any effect. Furthermore, it is not obvious that the Cour de cassation’s interpretation of how the priority question on constitutionality functions is clearly precluded in the light of the wording of the provisions of national law.

29Therefore, the presumption of relevance enjoyed by the reference for a preliminary ruling in each of the cases is not rebutted by the objections submitted by the French Government.

30In those circumstances, the references for a preliminary ruling made in these cases must be declared admissible.

The first question

31By its first question, the referring court asks, in essence, whether Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, requiring the courts of that Member State to rule as a matter of priority on whether to refer, to the national court responsible for reviewing the constitutionality of laws, a question on whether a provision of national law is consistent with the Constitution, when at the same time the conflict of that provision with EU law is at issue.

Observations submitted to the Court

32Mr Melki and Mr Abdeli consider that the national legislation at issue in the main proceedings is consistent with EU law, provided that the Conseil constitutionnel examines EU law and, where there is a doubt on the interpretation of that law, makes a reference to the Court of Justice for a preliminary ruling, requesting that the accelerated procedure be applied to that reference pursuant to Article 104a of the Rules of Procedure of the Court of Justice.

33The French Government is of the opinion that EU law does not preclude the national legislation at issue, since that legislation does not alter or affect the role and the jurisdiction of the national courts in applying EU law. In support of that line of argument, the French Government relies, in essence, on the same interpretation of that legislation as that given – subsequent to the submission of the orders for reference by the Cour de cassation to the Court of Justice – both by the Conseil constitutionnel in its decision No 2010-605 DC of 12 May 2010, and by the Conseil d’État in its decision No 312305 of 14 May 2010.

34Under that interpretation, the purpose of a priority question on constitutionality cannot be to refer to the Conseil constitutionnel a question on the compatibility of legislation with EU law. It is not for the Conseil, but for the ordinary and administrative courts to examine whether legislation is consistent with EU law, to apply EU law themselves on the basis of their own assessment, and to refer questions to the Court of Justice for a preliminary ruling at the same time as, or subsequent to, the submission of a priority question on constitutionality.

35In that regard, the French Government contends in particular that, according to the national legislation at issue in the main proceedings, the national court can either rule, under certain conditions, on the substance of the case without awaiting the decision of the Cour de cassation, the Conseil d’État or the Conseil constitutionnel on the priority question on constitutionality, or take the interim or protective measures necessary to ensure the immediate protection of the rights granted to individuals under EU law.

36Both the French and Belgian Governments claim that the procedural mechanism of the priority question on constitutionality is designed to guarantee to individuals that their request for an examination of the constitutionality of a national provision will actually be dealt with, without its being possible for referral to the Conseil constitutionnel to be precluded on the basis that the provision in question is incompatible with EU law. In addition, referral to the Conseil constitutionnel has the advantage that the Conseil can repeal a law which is incompatible with the Constitution, and that repeal then has an effect erga omnes . By contrast, the effects of a judgment of an ordinary or administrative court, which finds that a national provision is incompatible with EU law, are limited to the specific case decided by that court.

37The Czech Government suggests that the Court reply that it follows from the principle of primacy of EU law that the national court is required to ensure that EU law is given full effect, by examining whether national law is compatible with EU law and by not applying those provisions of national law which are contrary to EU law, without having first to refer the matter to the national constitutional court or another national court. According to the German Government, the exercise of the right to make a reference to the Court of Justice for a preliminary ruling, which is conferred on every national court or tribunal by Article 267 TFEU, must not be obstructed by a provision of national law which makes a reference to the Court of Justice, for an interpretation of EU law, subject to the decision of another national court. The Polish Government is of the opinion that Article 267 TFEU does not preclude legislation such as that covered by the first question referred, given that the procedure laid down in that legislation does not adversely affect the substance of the rights and obligations of national courts resulting from Article 267 TFEU.

38The Commission considers that EU law, and in particular the principle of primacy of that law and Article 267 TFEU, precludes national legislation such as that described in the orders for reference, where every challenge to the compatibility of a legislative provision with EU law enables the individual to rely on a breach of the Constitution by that legislative provision. In that case, the burden of ensuring that EU law is observed is implicitly but necessarily transferred from the court ruling on the substance of a case to the Conseil constitutionnel. Consequently, the mechanism of the priority question on constitutionality leads to a situation such as that held to be contrary to EU law by the Court in Case 106/77 Simmenthal [1978] ECR 629 . The fact that the constitutional court may, itself, refer questions to the Court of Justice for a preliminary ruling does not remedy that situation.

39If, on the other hand, a challenge to the compatibility of a legislative provision with EU law does not enable the individual ipso facto to challenge the compatibility of the same legislative provision with the Constitution, such that the court ruling on the substance of a case retains jurisdiction to apply EU law, then EU law does not preclude national legislation such as that covered by the first question referred, in so far as a number of criteria are met. According to the Commission, the national court must remain free, simultaneously, to refer to the Court of Justice for a preliminary ruling any question which it considers necessary, and to adopt any measure necessary to ensure provisional judicial protection of the rights guaranteed under EU law. It is also necessary, first, that the interlocutory procedure for the review of constitutionality does not lead to a stay of the substantive proceedings for an excessively long period and, second, that, at the end of that interlocutory procedure and irrespective of its outcome, the national court remains entirely free to assess whether the national legislative provision is consistent with EU law, to disapply that provision if that court holds that it is contrary to EU law, and to refer questions to the Court of Justice for a preliminary ruling if it considers that to be necessary.

The Court’s reply

40Article 267 TFEU confers jurisdiction on the Court to give preliminary rulings concerning both the interpretation of the Treaties and acts of the institutions, bodies, offices or agencies of the Union and the validity of those acts. The second paragraph of that article provides that a national court or tribunal may refer such questions to the Court, if it considers that a decision on the question is necessary to enable it to give judgment, and the third paragraph of that article provides that the national court or tribunal is bound to make a reference if there is no judicial remedy under national law against its decisions.

41It follows that, first, while it might be convenient, in certain circumstances, for questions of purely national law to be settled at the time the reference is made to the Court (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others [1981] ECR 735 , paragraph 6), national courts have the widest discretion in referring matters to the Court 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 (see, inter alia, Case 166/73 Rheinmühlen-Düsseldorf [1974] ECR 33 , paragraph 3; Case C-348/89 Mecanarte [1991] ECR I-3277 , paragraph 44; and Case C-210/06 Cartesio [2008] ECR I-9641 , paragraph 88).

42The Court has concluded therefrom that the existence of a rule of national law whereby courts or tribunals against whose decisions there is a judicial remedy are bound on points of law by the rulings of a court superior to them cannot, on the basis of that fact alone, deprive the lower courts of the right provided for in Article 267 TFEU to refer questions on the interpretation of EU law to the Court of Justice (see, to that effect, Rheinmühlen-Düsseldorf , paragraphs 4 and 5, and Cartesio , paragraph 94). The lower court 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 questions which concern it (Case C-378/08 ERG and Others [2010] ECR I-1919 , paragraph 32).

43Second, the Court has already held that 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 legislation, 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 (see, inter alia, Simmenthal , paragraphs 21 and 24; Case C-187/00 Kutz-Bauer [2003] ECR I-2741 , paragraph 73; Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565 , paragraph 72; and Case C-314/08 Filipiak [2009] ECR I-11049 , paragraph 81).

44Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent European Union rules from having full force and effect are incompatible with those requirements which are the very essence of EU law (see Simmenthal , paragraph 22, and Case C-213/89 Factortame and Others [1990] ECR I-2433 , paragraph 20). This would be the case in the event of a conflict between a provision of EU law and a national law, if the solution of the conflict were to be reserved for an authority with a discretion of its own, other than the court called upon to apply EU law, even if such an impediment to the full effectiveness of EU law were only temporary (see, to that effect, Simmenthal , paragraph 23).

45Lastly, the Court has held that a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also 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 the declaration, that a rule of national law is unconstitutional, is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law from exercising the right conferred on it by Article 267 TFEU to refer to the Court of Justice questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law (see Mecanarte , paragraphs 39, 45 and 46).

46As regards the conclusions to be drawn from the case-law referred to above in relation to national provisions such as those covered by the first question referred, it should be observed that the referring court starts from the premiss that, under those provisions, when considering a question on constitutionality which is based on the fact that the legislation in question is not consistent with EU law, the Conseil constitutionnel also assesses whether that legislation is compatible with EU law. If that is so, where the court ruling on the substance submits the question on constitutionality, it could, before that submission, neither rule on whether the legislation concerned is compatible with EU law, nor refer a question in relation to that legislation to the Court of Justice for a preliminary ruling. Moreover, if the Conseil constitutionnel were to hold that the legislation in question is consistent with EU law, the court ruling on the substance also could not, after the Conseil constitutionnel’s decision – which is binding on all judicial authorities – has been delivered, refer a question to the Court of Justice for a preliminary ruling. The same would be true where the plea alleging that a legislative provision is unconstitutional is raised during proceedings before the Conseil d’État or the Cour de cassation.

47Under that interpretation, the national legislation at issue in the main proceedings would result in the ordinary and administrative national courts being prevented, both before submitting a question on constitutionality and, as the case may be, after the decision of the Conseil constitutionnel on that question, from exercising their right or fulfilling their obligation, provided for in Article 267 TFEU, to refer questions to the Court of Justice for a preliminary ruling. It must be stated that it follows from the principles set out in the case-law cited in paragraphs 41 to 45 above that Article 267 TFEU precludes national legislation such as that described in the orders for reference.

48However, as is apparent from paragraphs 33 to 36 above, the French and Belgian Governments have advanced a different interpretation of the French legislation covered by the first question referred, relying on, inter alia, the decision of the Conseil constitutionnel No 2010-605 DC of 12 May 2010, and the decision of the Conseil d’État No 312305 of 14 May 2010, which were delivered after the Cour de cassation submitted its orders for reference to the Court of Justice.

49In that regard, it should be borne in mind that it is for the referring court to determine, in the cases before it, what the correct interpretation of national law is.

50Under settled case-law, it is for the national court to interpret the national law which it has to apply, as far as is at all possible, in a manner which accords with the requirements of EU law (Case C-262/97 Engelbrecht [2000] ECR I-7321 , paragraph 39; Case C-115/08 ČEZ [2009] ECR I-10265 , paragraph 138; and Case C-91/08 Wall [2010] ECR I-2815 , paragraph 70). In the light of the aforementioned decisions of the Conseil constitutionnel and the Conseil d’État, such an interpretation of the national provisions which introduced the mechanism for review of constitutionality at issue in the main proceedings cannot be ruled out.

51An examination of the question whether it is possible to interpret the mechanism of the priority question on constitutionality in accordance with the requirements of EU law cannot undermine the essential characteristics of the system of cooperation between the Court of Justice and the national courts, established by Article 267 TFEU, as they result from the case-law cited in paragraphs 41 to 45 above.

52According to the settled case-law of the Court, in order to ensure the primacy of EU law, the functioning of that system of cooperation requires the national court to be free to refer to the Court of Justice for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality.

53In so far as national law lays down an obligation to initiate an interlocutory procedure for the review of constitutionality, which would prevent the national court from immediately disapplying a national legislative provision which it considers to be contrary to EU law, the functioning of the system established by Article 267 TFEU nevertheless requires that that court be free, first, to adopt any measure necessary to ensure the provisional judicial protection of the rights conferred under the European Union’s legal order and, second, to disapply, at the end of such an interlocutory procedure, that national legislative provision if that court holds it to be contrary to EU law.

54It should also be observed that the priority nature of an interlocutory procedure for the review of the constitutionality of a national law, the content of which merely transposes the mandatory provisions of a European Union directive, cannot undermine the jurisdiction of the Court of Justice alone to declare an act of the European Union invalid, and in particular a directive, the purpose of that jurisdiction being to guarantee legal certainty by ensuring that EU law is applied uniformly (see, to that effect, Case 314/85 Foto-Frost [1987] ECR 4199 , paragraphs 15 to 20; Case C-344/04 IATA and ELFAA [2006] ECR I-403 , paragraph 27; and Case C-119/05 Lucchini [2007] ECR I-6199 , paragraph 53).

55To the extent that the priority nature of an interlocutory procedure for the review of constitutionality leads to the repeal of a national law – which merely transposes the mandatory provisions of a European Union directive – on the basis that that law is contrary to the national constitution, the Court could, in practice, be denied the possibility, at the request of the courts ruling on the substance of cases in the Member State concerned, of reviewing the validity of that directive in relation to the same grounds relating to the requirements of primary law, and in particular the rights recognised by the Charter of Fundamental Rights of the European Union, to which Article 6 TEU accords the same legal value as that accorded to the Treaties.

56Before the interlocutory review of the constitutionality of a law – the content of which merely transposes the mandatory provisions of a European Union directive – can be carried out in relation to the same grounds which cast doubt on the validity of the directive, national courts against whose decisions there is no judicial remedy under national law are, as a rule, required – under the third paragraph of Article 267 TFEU – to refer to the Court of Justice a question on the validity of that directive and, thereafter, to draw the appropriate conclusions resulting from the preliminary ruling given by the Court, unless the court which initiates the interlocutory review of constitutionality has itself referred that question to the Court pursuant to the second paragraph of Article 267 TFEU. In the case of a national implementing law with such content, the question of whether the directive is valid takes priority, in the light of the obligation to transpose that directive. In addition, imposing a strict time-limit on the examination by the national courts cannot prevent the reference for a preliminary ruling on the validity of the directive in question.

57Accordingly, the reply to the first question referred is that Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, in so far as the priority nature of that procedure prevents – both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question – all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, Article 267 TFEU does not preclude such national legislation, in so far as the other national courts or tribunals remain free:

—

to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary,

—

to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the European Union legal order, and

—

to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law.

It is for the referring court to ascertain whether the national legislation at issue in the main proceedings can be interpreted in accordance with those requirements of EU law.

The second question

58By its second question, the referring court seeks to know, in essence, whether Article 67 TFEU precludes national legislation which permits police authorities, within an area of 20 kilometres from the land border of a Member State with States party to the CISA, to check the identity of any person in order to ascertain whether he fulfils the obligations laid down by law to hold, carry and produce papers and documents.

Observations submitted to the Court

59Mr Melki and Mr Abdeli are of the opinion that Articles 67 TFEU and 77 TFEU provide, purely and simply, that there should be no internal border controls and that the Treaty of Lisbon, on that basis, made freedom of movement for persons absolute, irrespective of the nationality of the persons concerned. Accordingly, that freedom of movement precludes a restriction such as that provided for in Article 78-2, fourth paragraph, of the Code of Criminal Procedure, which authorises the national authorities to carry out systematic identity checks in border areas. Furthermore, they seek an order that Article 21 of Regulation No 562/2006 is invalid, on the ground that it infringes in itself the absolute nature of the right to come and go as enshrined in Articles 67 TFEU and 77 TFEU.

60The French Government contends that the national provisions at issue in the main proceedings are justified by the need to combat a specific type of criminality at border crossings and along borders which present specific risks. The identity checks carried out on the basis of Article 78-2, fourth paragraph, of the Code of Criminal Procedure fully comply with Article 21(a) of Regulation No 562/2006. Their purpose 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. Those controls are also based on general information and police experience which have shown the particular benefit of checks in those areas. They are carried out on the basis of police information – coming from earlier police inquiries or from information obtained in the context of cooperation between the police forces of different Member States – which guide the placement and timing of the control. Those controls are not fixed, permanent or systematic. On the contrary, they are carried out as spot checks.

61The German, Greek, Netherlands and Slovak Governments also propose a negative reply to the second question, pointing out that, even after the entry into force of the Treaty of Lisbon, 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. Those governments claim, inter alia, that identity checks in those areas, pursuant to the national legislation at issue in the main proceedings, are distinguishable by their purpose, their content, the way they are carried out and their effect from border control for the purpose of Article 20 of Regulation No 562/2006. Those checks can be authorised pursuant to the provisions of Article 21(a) or (c) of that regulation.

62By contrast, the Czech Government and the Commission consider that Articles 20 and 21 of Regulation No 562/2006 preclude national legislation such as that at issue in the main proceedings. The checks under that legislation constitute disguised border controls which cannot be authorised under Article 21 of Regulation No 562/2006, given that they are only permitted in border areas and are subject to no condition other than that the person checked be in one of those areas.

The Court’s reply

63As a preliminary point, it should be noted that the referring court has not referred for a preliminary ruling a question on the validity of a provision of Regulation No 562/2006. As Article 267 TFEU does not constitute a means of redress available to the parties to a case pending before a national court, the Court cannot be compelled to evaluate the validity of EU law on the sole ground that that question has been put before it by one of the parties (Joined Cases C-376/05 and C-377/05 Brünsteiner and Autohaus Hilgert [2006] ECR I-11383 , paragraph 28).

64In relation to the interpretation sought by the referring court of Article 67 TFEU, paragraph 2 of which provides that the Union is to ensure the absence of internal border controls for persons, it should be pointed out that that article is part of Chapter 1, entitled ‘General Provisions’, of Title V of the Treaty on the Functioning of the European Union, and that it is apparent from the very wording of that article that it is the Union itself which is the addressee of the obligation which it lays down. Chapter 1 also contains Article 72, which reproduces the reservation contained in Article 64(1) EC, relating to the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

65Chapter 2 of Title V contains specific provisions on the policy on border checks, and in particular Article 77 TFEU, which is the successor to Article 62 EC. Under Article 77(2)(e), the European Parliament and the Council are to adopt measures concerning the absence of any controls on persons when crossing internal borders. It follows that the provisions adopted on that basis must be taken into account, in particular Articles 20 and 21 of Regulation No 562/2006, in order to determine whether EU law precludes national legislation such as that in Article 78-2, fourth paragraph, of the Code of Criminal Procedure.

66The Community legislature implemented the principle of the absence of internal border controls by adopting, pursuant to Article 62 EC, Regulation No 562/2006 which seeks, according to Recital 22 in the preamble to that regulation, to build on the Schengen acquis . That regulation establishes, in Title III, a Community scheme on the crossing of internal borders, replacing Article 2 of the CISA as from 13 October 2006. The applicability of that regulation has not been affected by the entry into force of the Treaty of Lisbon. Protocol No 19 annexed thereto expressly provides that the Schengen acquis remains applicable.

67Article 20 of Regulation No 562/2006 provides that internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out. Under Article 2, point 10, of that regulation ‘border checks’ means the checks carried out at border crossing points, to ensure that persons may be authorised to enter the territory of the Member States or authorised to leave it.

68As regards the controls provided for in Article 78-2, fourth paragraph, of the Code of Criminal Procedure, it must be observed that they are carried out not ‘at borders’ but within the national territory and they do not depend on movement across the border by the person checked. In particular, they are not carried out at the time when the border is crossed. Thus, those controls constitute not border checks prohibited under Article 20 of Regulation No 562/2006, but checks within the territory of a Member State, covered by Article 21 of that regulation.

69Article 21(a) of Regulation No 562/2006 provides that the abolition of border control at internal borders is not to affect 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 is also to apply in border areas. It follows that controls within the territory of a Member State are, pursuant to Article 21(a), prohibited only where they have an effect equivalent to border checks.

70The exercise of police powers may not, under the second sentence of that provision, in particular, be considered equivalent to the exercise of border checks when the police measures do not have border control as an objective; are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime; are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders; and, lastly, are carried out on the basis of spot-checks.

71In relation to the question whether the exercise of the control powers granted by Article 78-2, fourth paragraph, of the Code of Criminal Procedure has an effect equivalent to border checks, it must be held, first, that the objective of the control under that provision is not the same as that of border control within the meaning of Regulation No 562/2006. The objective of that border control, according to Article 2, points 9 to 11, of that regulation, is, first, to ensure that persons may be authorised to enter the territory of the Member State or authorised to leave it and, second, to prevent persons from circumventing border checks. By contrast, the national provision in question relates to checking whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled. The possibility for a Member State to provide for such obligations in its national law is not, pursuant to Article 21(c) of Regulation No 562/2006, affected by the abolition of border control at internal borders.

72Second, the fact that the territorial scope of the power granted by the national provision at issue in the main proceedings is limited to a border area does not suffice, in itself, to find that the exercise of that power has an equivalent effect within the meaning of Article 21(a) of Regulation No 562/2006, in view of the wording and objective of Article 21. However, as regards controls on board an international train or on a toll motorway, the national provision at issue in the main proceedings lays down specific rules regarding its territorial scope, a factor which might constitute evidence of the existence of such an equivalent effect.

73Furthermore, Article 78-2, fourth paragraph, of the Code of Criminal Procedure, which authorises controls irrespective of the behaviour of the person concerned and of specific circumstances giving rise to a risk of breach of public order, contains neither further details nor limitations on the power thus conferred – in particular in relation to the intensity and frequency of the controls which may be carried out on that legal basis – for the purposes of preventing the practical application of that power, by the competent authorities, from leading to controls with an effect equivalent to border checks within the meaning of Article 21(a) of Regulation No 562/2006.

74In order to comply with Articles 20 and 21(a) of Regulation No 562/2006, interpreted in the light of the requirement of legal certainty, national legislation granting a power to police authorities to carry out identity checks – a power which, first, is restricted to the border area of the Member State with other Member States and, second, does not depend upon the behaviour of the person checked or on specific circumstances giving rise to a risk of breach of public order – must provide the necessary framework for the power granted to those authorities in order, inter alia, to guide the discretion which those authorities enjoy in the practical application of that power. That framework must guarantee that the practical exercise of that power, consisting in carrying out identity controls, cannot have an effect equivalent to border checks, as evidenced by, in particular, the circumstances listed in the second sentence of Article 21(a) of Regulation No 562/2006.

75In those circumstances, the answer to the second question referred is that Article 67(2) TFEU, and Articles 20 and 21 of Regulation No 562/2006, preclude national legislation which grants to the police authorities of the Member State in question the power to check, solely within an area of 20 kilometres from the land border of that State with States party to the CISA, the identity of any person, irrespective of his behaviour and of specific circumstances giving rise to a risk of breach of public order, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled, where that legislation does not provide the necessary framework for that power to guarantee that its practical exercise cannot have an effect equivalent to border checks.

Costs

76Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

1.Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, in so far as the priority nature of that procedure prevents – both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question – all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, Article 267 TFEU does not preclude such national legislation, in so far as the other national courts or tribunals remain free:

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to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary,

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to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the European Union legal order, and

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to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to European Union law.

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It is for the referring court to ascertain whether the national legislation at issue in the main proceedings can be interpreted in accordance with those requirements of European Union law.

2.Article 67(2) 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 national legislation which grants to the police authorities of the Member State in question the power to check, solely within an area of 20 kilometres from the land border of that State 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, signed at Schengen (Luxembourg) on 19 June 1990, the identity of any person, irrespective of his behaviour and of specific circumstances giving rise to a risk of breach of public order, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled, where that legislation does not provide the necessary framework for that power to guarantee that its practical exercise cannot have an effect equivalent to border checks.

[Signatures]

( *1 ) Language of the case: French.