The Council of State buries the Schengen Area and opposes the Court of Justice of the European Union

Press release

July 28, 2022

In a decision of July 27, 2022, the Council of State once again legalized the extension of the restoration of internal border controls by the French government, thus taking a position exactly opposite to that of the Court of Justice of the European Union (ECJ). . The latter recalled in a judgment of 26 April 2022 that, under the principle of free movement in the Schengen area, a Member State cannot re-establish control at its internal borders for more than 6 months, without a new threat, which is different from that. The previous one.

Although, since 2015, the French authorities systematically expanded internal border controls every 6 months on the basis of a “continuous threat” linked to terrorism, the Council of State, in its decision of July 27, engaged in a short reading of the CJEU judgment. In order to fly to the government’s aid, he allowed himself to rewrite European law, deliberately ignoring some of the court’s necessary advances.

Thus, avoiding the definition adopted by the CJEU of a “new threat”, a threat “different from the one initially identified”, the Council of State sticks to the position adopted in 2017 and 2019 that it is an “identical but renewed” one. threat” may be sufficient to justify prolonged regulation.

Worse, the Council of States gave further comfort to the government by giving advance permission for endless expansion of internal border controls, which the CJEU ruling has prohibited.

However, these checks and the police practices associated with them result in daily violations of people’s rights at the border, which can lead to deaths, as our organizations have been tirelessly condemning for nearly 7 years.

Although it could and should have put an end to the illegality of these practices and applied the principle of primacy of European law, the State Council has dealt a final blow to freedom of movement in the Schengen area.

Signatory Association:

National Association for Border Assistance for Foreigners (Anafé)

Associazione per gli Studi Giuridici sull’Immigrazione (ASGI)

Information and Support Group for Migrants (Gisti)

La Simed

League for Human Rights (LDH)

Citizen Roa

Union of Magistrates (SM)

Syndicate of Lawyers of France (SAF)

All immigrants

Press Contact:

Anafe came Emilie Pesselier – 06 50 10 51 47


Additional information

Chapter 1er The main principle of the Schengen Borders Code (CFS) is given to operate within the Schengen Area, i.e. an area which provides for: “Absence of border controls on persons crossing the internal borders between the Member States of the Union during its establishment” “Borders of persons crossing the external borders of the Member States of the Union” Rules applicable to regulation”.

Since November 13, 2015, the French government has notified the European Commission of the re-establishment of internal border controls – first due to the holding of COP 21 – following the application of Article 23 and the CFS. After the Paris attacks in November 2015, the state of emergency and terrorist threats were used by French authorities to justify the re-establishment of internal border controls. The state of emergency ended in November 2017.

In parallel, the French authorities have informed the EU that they intend to extend internal border controls for another 6 months, this time based on Articles 25 and 27 of the CFS. Despite lawsuits brought by associations to denounce this persistent and outmoded logic, the Council of State, in a decision of December 28, 2017 and in a decision of October 16, 2019, validated the decisions of the French authorities, allowing the latter to possibly be renewed. Reinstatement of internal border controls for an indefinite period, while refusing to submit to the Court of Justice of the European Union, is the primary question that the associations proposed to ask to obtain a European interpretation of the CFS. If a complaint was also filed by Anafe and Gisti before the European Commission in this regard, it is still pending and unanswered.

In this context, the Border Police Service (PAF) has re-established checks on the conditions of entry into the territory, including identity checks at the internal borders of France, and is providing foreigners who do not have the conditions to enter the territory, refusal Article L. 330-1 to L. 333- of the Code of the Code for the Entry and Stay of Foreigners 5 and access pursuant to the Right of Asylum (CESEDA). However, these checks, which are often discriminatory, lead to procedures or methods of denying entry without respecting the rights of individuals, including the right to asylum and protection of unaccompanied minors.

In a judgment of April 26, 2022, concerning an Austrian dispute, the CJEU ruled that under the principle of freedom of movement within the Schengen area, a Member State cannot re-establish control at its internal borders for a period exceeding 6 months, without appearance. A new threat, distinct from the previous one. The CJEU also ruled that identity checks implemented as part of the re-establishment of internal border controls beyond this period are invalid. In doing so, the Court enshrined the fundamental principle of freedom of movement within the Schengen area – and, consequently, the prohibition of internal border controls – as “one of the main achievements of the Union”, while demonstrating the illegality of its practice. French authorities since 2017.

Author: Department of Communications

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