the sling of the royal palace (in the Schengen area)

Whether one approaches the parliamentary sling or that, the principle of a sling during the minority of the young Louis XIV was aimed at the royal palace, with even in 1649 an escape for the future Sun King and in 1651 an arrival of rioters at the former Palais Cardinal.

Image credits: The Constitutional Council

From this result constancy or, on the contrary, breaks.

On the historical continuity side, it should be noted that the yellow vests who look to the side of the seats of power did not invent anything. We walked straight from the Palais Royal to the (much less beautiful) Elysée.

On the breaking side, we will remember that to say of the Palais Royal that it revolts is tantamount to driving a historical reversal. However, this is what happened on July 27, discreetly.

On April 26, 2022 at his sentencing ” NW v. Landespolizeidirektion Steiermark and Bezirkshauptmannschaft Leibnitz” (joined cases C-368/20 and C-369/20), indeed the Court of Justice of the European Union (CJEU) had actually stated that:

“1) Article 25(4) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on an EU Code on arrangements for the movement of persons across borders (Schengen Borders Code), as amended by Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 shall be interpreted as excluding the temporary reintroduction of internal border controls by a Member State based on Articles 25 and 27 of this Code when the duration of the latter exceeds the maximum total duration of six months provided for in this Article 25, paragraph 4, and when there is no new threat that can justify a new application of the periods provided for in said Article 25.
“2) Article 25(4) of Regulation 2016/399, as amended by Regulation 2016/1624, shall be interpreted as precluding national legislation whereby a Member State obliges a person to produce a passport or an identity card by means of a fine when entering the territory of the Member State concerned via an internal border, where the reintroduction of the internal border control imposed by this obligation is contrary to this provision.

Source: see here.

In this decision, the European Court of Justice therefore required that the extension of such controls beyond a period of six months was justified by a serious new threat for public order and internal security (and not the simple continuation of the previous threat which justified the first instruction on the freedom of the Schengen area). Let us quote again the same decision from the European Court of Justice:

“It also follows from these considerations that such a deadline can only be applied again if the Member State concerned is able to demonstrate the existence of a news serious threat affecting its public order or internal security. In this case, new periods of a specific duration according to Article 25 of the Schengen Borders Code may be considered to run, provided that this Member State complies with all the criteria and procedural rules of Articles 26-28. of this code.”

On this concept of novelty, the judge imposes that a possible new threat is clearly distinct from the old one:

“Under these conditions, it should be noted that, as the Commission essentially argues, the emergence of a new threat, which is distinct from the one originally identified, is likely to justify, subject to compliance with the other applicable conditions, a new application of the periods provided for in Article 25 of this Code for the reintroduction of internal border controls.”

It should also be noted that if a threat reaches a different level of severity, a different scheme has been established, which all the more justifies that the suspension of 6 months remains fixed at this duration for the same threat (because otherwise a transition to other plans, which is for two years is possible). To quote the ECJ again (same decision):

On the other hand, interpretation of Article 25 of the Schengen Borders Code such that a Member State in the event of a threat pursuant to para. 1 of this article may exceed the total duration of six months set out in subsection this article on internal border controls would make the distinction made by the EU legislator between internal border controls reintroduced under the same article and controls reintroduced in exceptional circumstances endangering the overall functioning of the area without control at the internal borders, cf. 29 of this code, as a longer period of a maximum of two years is expressly stipulated for these latter controls. According to such an interpretation, control at the internal borders reintroduced pursuant to Article 25 of this Code may be extended for an unlimited period, which may therefore exceed two years, even if the special circumstances and criteria provided for in Article 29 and 30 in the same codex. would not be respectively characterized or fulfilled. Furthermore, the last sentence of Article 25, subsection 4, of the Schengen Borders Code prevents such an interpretation, insofar as it provides that it is according to Article 29 of this Code that the maximum duration of the reintroduction of control at the internal borders can be extended to two years , and not according to Article 25 of the said Code.”

Faced with this legal framework, the Council of State boldly stated that:

“Thus, a threat may be considered new within the meaning and application of these provisions, either when it is of a different nature from the previously identified threats of threats, or when new circumstances and events cause its characteristics to evolve. such conditions that change its actuality , scope or consistency. Such circumstances and events may relate in particular to the object of the threat, its scope or intensity, its location and its origin. »

Source: The State Council, 27 July 2022, no. 463850

This wording is brave to say the least. It is not entirely impossible that the European Court of Justice considers that an old threat that has been totally renewed in its meaning or parameters can be considered new in this respect, but reading the judgment of the Court cited above, it seems very, very unlikely .

So the government revolts. It defies the established authority. Legally established.

This is nothing new:

Apart from the rebellion of the parliamentarians, the rebellion of the courts against the royal power was set in regency. There we have a loop between jurisdictions. But in both cases it is a question of changing the established order in relation to the law as it is governed, if necessary. What comes from a jurisdiction does not lack salt.

NB: on another recent audacity, contra legem, see: Via a simple decision, concerning Légifrance, the Council of State succeeds in raising its art of creating, poetic interpretation of texts

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