The State Council is burying the Schengen area and is against the Court of Justice of the European Union

PRESS RELEASE

28 JULY 2022

In a decision of 27 July 2022, the Council of State once again validates the extension of the French government’s restoration of control at the internal borders, thus taking the exact opposite position of the European Court of Justice. . The latter recalled in a judgment of 26 April 2022 that, according to the principle of free movement in the Schengen area, a Member State cannot reintroduce control at its internal borders for a period of more than 6 months, except in the case of a new threat, separated from previous.


While the French authorities have since 2015 systematically expanded internal border controls every 6 months due to a “persistent threat” linked to terrorism, the Council of State, in its decision of 27 July, is proceeding with an abbreviated reading of the EU Court’s judgment. To fly to the government’s aid, he allows himself to rewrite European law, deliberately ignoring certain significant developments made by the Court.

By bypassing the European Court of Justice’s definition of a “new threat”, namely a threat “separate from the one originally identified”, the Council of State maintains the position it had taken in 2017 and 2019 by holding that an “identical but renewed threat” could be enough to justify the extension of the control.

Worse, the Council of State further comforts the government by allowing it to carry out in advance endless extensions of internal border controls, which is precisely what the ECJ ruling prohibits.

However, these controls and the police practices associated with them result in daily violations of people’s rights at the borders, which can go so far as to cause deaths, which our organizations have tirelessly condemned for almost 7 years.

While it could and should have put an end to the illegality of this practice and enforced the principle of the primacy of European law, the Council of State dealt the final blow to free movement in the Schengen area.

Signatory associations:

The National Association for Border Assistance to Foreigners (Anafé)

Associazione per gli Studi Giuridici sull’Immigrazione (ASGI)

Information and support group for immigrants (Gisti)

La Cimade

League for Human Rights (LDH)

Citizen Roya

Magistrates’ Union (SM)

Syndicate of Lawyers of France (SAF)

All migrants

Press contacts:

Anafe I Emilie Pesselier – 06 50 10 51 47 emilie.pesselier@anafe.org

***

More info

Section 1eh of the Schengen Borders Code (CFS) establishes the basic principle applicable within the Schengen area, namely an area in which it is established: “the absence of border checks of persons crossing the internal borders between the Member States of the Union”, while establishing “the rules for border control of persons crossing the external borders of the EU Member States”.

Since 13 November 2015, the French Government has informed the European Commission of the reintroduction of internal border controls – first due to the holding of COP 21 – pursuant to Article 23 et seq. of the CFS. After the attacks in Paris in November 2015, the state of emergency and the threat of terrorism were used by the 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 a further period of 6 months, based on Articles 25 and 27 of the CFS this time. Despite lawsuits brought by associations to denounce this persistent and unconventional logic, the Council of State, in a decision of 28 December 2017 and in a decision of 16 October 2019, validated the decisions of the French authorities, allowing the latter to probably renew indefinitely the re-establishment of internal border control, while refusing to submit to the European Court of Justice the preliminary question that the associations proposed to ask in order to obtain a European interpretation of the CFS. If a complaint has also been filed by Anafé and Gisti to the European Commission on this subject, it is still pending and unanswered.

In this context, the Border Police (PAF) has re-introduced the control of the conditions for entry into the territory, including identity checks, at the internal borders of France and refuses entry to foreigners who do not have the conditions for entry into the territory, pursuant to Article L. 330-1 to L. 333-5 of the Code on the Entry and Residence of Foreigners and the Right to Asylum (CESEDA). However, these controls, which are most often discriminatory, give rise to procedures for refusal of entry without respecting the procedure or the rights of individuals, including the right to asylum and the right to protection for unaccompanied minors.

In a judgment of 26 April 2022, concerning an Austrian dispute, the European Court of Justice ruled that, according to the principle of free movement within the Schengen area, a Member State cannot restore control at its internal borders for a period of more than 6 months , except attendance. of a new threat, separate from the previous one. The Court of Justice of the European Union also ruled that the identity checks carried out as part of a re-establishment of internal border controls exceeding this duration are illegal. In doing so, the Court affirmed the fundamental principle of free movement within the Schengen area – and its corollary, the prohibition of checks at internal borders – as “one of the most important achievements of the Union”, while establishing the illegality of the practice of the French authorities since 2017.

Author: Communications Department

Leave a Comment