One approached the parliamentary sling or, then, among the princes, the policy of a sling, during the minority of the young Louis XIV, would be directed against the palace, even the flight of the future Sun King in 1649 and the arrival of rioters in the former palace cardinal in 1651.
From this results stability or, conversely, ruptures.
In terms of historical continuity, it should be noted that the Yellow Vests did not invent anything next to places of power. We just walked from the Palais Royal to the Elysees (much less beautiful).
In isolation, we would note that to say of the Palais Royal that it revolts is tantamount to conducting a historical reversal. However, on July 27 this happened discreetly.
By its judgment dated April 26, 2022 “ NW v. LandespolizeiDirection Steermark and Bezirkshauptmannschaft Leibnitz” (In joined cases C-368/20 and C-369/20, in fact, the Court of Justice of the European Union (CJEU) actually held that:
“1) Article 25(4) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on border crossing arrangements by persons (Schengen Borders Code) as amended and by the Council on 14 September 2016, based on Articles 25 and 27 of this Code should be interpreted as excluding the temporary reintroduction by Member States of internal border controls when the period between the latter exceeds the maximum total period of six months set out in this Article 25, paragraph 4 and When there is no new threat which would justify a fresh application for the period provided in said Article 25.
“2) Article 25(4) of Regulation 2016/399, as amended by Regulation 2016/1624, must be interpreted as excluding national law by which a Member State obliges, subject to a penalty, a person to present a passport or an identity card when entering the territory of that Member State through an internal border, where the reintroduction of internal border controls under which this obligation is imposed is contrary to this provision.
Source: See here.
In this decision, the CJEU therefore demands that such checks be extended beyond six months Serious new threats for public order and internal security (and not a simple continuation of previous threats that justified the first directive on the freedom of the Schengen area). Let us quote again this same decision of CJEU:
‘It also follows from these considerations that such a period can be applied again when the Member State concerned is able to demonstrate an existence. the news Serious threat affecting its public order or internal security. In this case, a new period of time provided for in Article 25 of the Schengen Borders Code may be considered as starting to run subject to the compliance of this Member State with all the criteria and procedural rules provided for in Articles 26 to 28. of this code.”
On this concept of novelty, the judge imposed that a potential new threat is distinctly different from the old one:
“Under these conditions, it must be noted that, as the Commission essentially maintains, the presence of a new threat, different from that initially identified, may justify a new application, subject to compliance with other applicable conditions. This is to reintroduce internal border controls. period provided in section 25 of the Code.”
It should be noted, moreover, that if a threat reaches another level of seriousness, another regime is provided, which further justifies that the 6-month suspension remains for the same threat during this period (because otherwise a transfer plan, which is two years possible for). To quote the CJEU again (same decision):
” On the other hand, Article 25 of the Schengen Borders Code means that, in the event of a threat within the meaning of Article 1 of this article, a Member State may exceed the total period of six months provided for in Article 4. That article for checks at internal borders would make meaningless the distinction made by the Union Legislature between checks at internal borders reintroduced under the same article and reintroduced in exceptional circumstances jeopardizing the overall functioning of the area without checks at internal borders referred to in para. 29 of the Code, clearly a longer period of two years for these subsequent checks. In fact, according to such interpretation, the reintroduced internal border controls under Article 25 of that Code may be extended for an unlimited period which may therefore exceed two years, although certain circumstances and criteria are provided for in Articles 29 and 30 of the same Code. , respectively, will not be characterized or saturated. Furthermore, the last sentence of Article 25(4) of the Schengen Borders Code precludes such an interpretation as it provides under Article 29 of this Code that the maximum period of reintroduction of internal border controls may be extended up to two years. , and not under section 25 of the said Code“
Faced with this legal framework, the Council of States, unabashedly stated that:
“A threat may thus be considered new, within the meaning and for the application of these provisions, either when it is of a different nature from previously identified threats, or when new circumstances and events evolve its characteristics. Conditions such as change its consistency, scope or compatibility. . Such situations and events may relate, in particular, to the object of the threat, its scale or intensity, its location and its origin. »
Source: Council of State, July 27, 2022, n° 463850
This formula is bold to say the least. It is not entirely impossible that the CJEU considers that the importance or parameters of completely renewing an old threat can be considered new in this case, but when one reads the judgment of the CJEU cited above, it seems very, very unlikely.
So the Council of State rebelled against the authority it established. legally established.
This is nothing new:
Apart from this, the rebellion of the parliamentarians was a rebellion of the court against the royal power. There is a sling within our jurisdiction. But in both cases, it is a question of altering the order established against the law, as it is governed by necessity. What comes from the jurisdiction does not lack salt.
NB: Another recent audacity, opposite legem, see: through a general decision on legisference, the Council of State succeeded in promoting the art of creative, poetic interpretation of texts.