Opinion of the Advocate General — ECLI:EU:C:2023:271
Date: 2023-03-30
Language of the case: French
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-143/22 – 1 
Case C-143/22 
Request for a preliminary ruling 
Date lodged: 
1 March 2022 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
24 February 2022 
Applicants: 
Association Avocats pour la défense des droits des étrangers 
(ADDE) 
Association nationale d’assistance aux frontières pour les étrangers 
(ANAFE) 
Association de recherche, de communication et d’action pour 
l’accès aux traitements (ARCAT) 
Comité inter-mouvements auprès des évacués (CIMADE) 
Fédération des associations de solidarité avec tou-te-s les immigré-
e-s(FASTI) 
Groupe d’information et de soutien des immigré.e.s (GISTI) 
Ligue des droits de l’homme (LDH) 
Le Paria 
Syndicat des avocats de France (SAF) 
SOS – Hépatites Fédération 
Defendant: 
Ministre de l’Intérieur 
  
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2022 – CASE C-143/22 
 
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CONSEIL D’ETAT 
acting in a 
judicial 
capacity 
 
[OMISSIS] 
Having regard to the following proceedings: 
1. In Case No 450285, [OMISSIS] [proceedings], [OMISSIS] [the applicants] 
request that the Conseil d’État (Council of State, France): 
(1) annul Order No 2020-1733 of 16 December 2020 on the legislative part of 
the Code on the entry and residence of foreigners and the right to asylum 
[‘CESEDA’ or ‘the Code’] as having been adopted ultra vires; 
(2) [OMISSIS] [proceedings] 
They claim that: 
[OMISSIS] [with no relevance to the question referred] 
– in so far as they make the regime for the refusal of entry applicable in the event 
of the reintroduction of border control at internal borders under Article 25 of the 
Schengen Borders Code, while carrying out border checks at internal borders, the 
new provisions of Article L. 33203 of the Code infringe the provisions [of 
Article 2(2)(a)] of Directive 2008/115/EU as interpreted by the Court of Justice of 
the European Union in the judgment [of 19 March 2019, Arib and Others, 
C-444/17, EU:C:2019:220] and breach the principle of res judicata by the Conseil 
d’État, acting in a judicial capacity in Decision No 428178 of 27 November 2020; 
if the Conseil d’État did not follow that reasoning, it would be for the Conseil 
d’État to refer a question on interpretation to the Court of Justice of the European 
Union for a preliminary ruling; 
[OMISSIS] [with no relevance to the question referred] 
By its defence, registered on 18 October 2021, the ministre de l’intérieur (Minister 
for the Interior) [OMISSIS] [with no relevance to the question referred] contends 
that the other forms of order sought in the application should be rejected. The 
ministre de l’intérieur submits that the pleas put forward in support of the forms of 
order sought are unfounded. 
2. In Case No 450288, [OMISSIS] [proceedings], [OMISSIS] [the applicants] 
request that the Conseil d’État: 
ADDE AND OTHERS 
 
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(1) annul Decree No 2020-1734 of 16 December 2020 on the regulatory part of 
the Code on the entry and residence of foreigners and the right to asylum as 
having been adopted ultra vires; 
(2) [OMISSIS] [proceedings] 
They claim that: 
[OMISSIS] [with no relevance to the question referred] 
– in so far as they make the regime for the refusal of entry applicable in the event 
of the reintroduction of border control at internal borders, while carrying out 
border checks at internal borders, the provisions of Article R. 332-1 of the 
CESEDA infringe the provisions [of Article 2(2)(a)] of Directive 2008/115/EU as 
interpreted by the Court of Justice of the European Union in the judgment [of 
19 March 2019, Arib and Others, C-444/17, EU:C:2019:220] and Decision 
No 428178 of the Conseil d’État, acting in a judicial capacity; mentioned above; if 
the Conseil d’État did not follow that reasoning, it would be for the Conseil d’État 
to refer a question on interpretation to the Court of Justice of the European Union 
for a preliminary ruling; 
[OMISSIS] [with no relevance to the question referred] 
By its defence, registered on 18 October 2021, the ministre de l’intérieur contends 
that the application should be rejected. The ministre de l’intérieur submits that the 
pleas in law are unfounded. 
[OMISSIS] [proceedings] 
Having regard to: 
[OMISSIS] [with no relevance to the question referred] 
– the Treaty on the Functioning of the European Union; 
[OMISSIS] [with no relevance to the question referred] 
– Regulation (EU) 2016/399 of the European Parliament and of the Council of 
9 March 2016; 
[OMISSIS] [with no relevance to the question referred] 
– Directive No 2008/115/EC of the European Parliament and of the Council of 
16 December 2008; 
[OMISSIS] [with no relevance to the question referred] 
– the judgment [of 19 March 2019, Arib and Others, C-444/17, EU:C:2019:220]; 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2022 – CASE C-143/22 
 
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[OMISSIS] [with no relevance to the question referred] 
[OMISSIS] [proceedings] 
Having regard to: 
Legal framework: 
1 Under Article 52 of the Law on controlled immigration, effective right of asylum 
and successful integration of 10 September 2018: ‘Under the conditions set out in 
Article 38 of the Constitution, and within a period of 24 months from the 
promulgation of this law, the Government shall be authorised, by way of order: 1. 
To redraft the legislative part of the Code on the entry and residence of foreigners 
and the right to asylum in order to adjust the structure, to clarify the wording and 
to include provisions from other codes or uncodified legislation and directly 
concerning the entry and residence of foreigners in France. The new codification 
carried out in application of paragraph 1 shall be carried out without any change 
to the law and subject to any modifications necessary to ensure compliance with 
the hierarchy of standards and editorial consistency of the drafts, to harmonise 
the rule of law, remedy errors and shortcomings in codification and repeal 
provisions, codified or not, obsolete, or no longer applicable; … [OMISSIS]’ 
2 On the basis of that legislative authorisation, [OMISSIS] [irrelevant] the 
Government adopted the Order of 16 December 2020 on the legislative part of the 
Code on the entry and residence of foreigners and the right to asylum (CESEDA). 
On the same day, a Decree on the regulatory part of the Code on the entry and 
residence of foreigners and the right to asylum was adopted. The Association 
Avocats pour la défense des droits des étrangers (ADDE) and the other applicants 
request that the Order and Decree of 16 December 2020 be annulled as having 
been adopted ultra vires by means of applications that are very similar and which 
should therefore be joined in order to give judgment by a single decision. 
3 [OMISSIS] [admissibility] 
With regard to the formal legality of the order and decree at issue: 
4 [OMISSIS] [with no relevance to the question referred] 
With regard to the substantive legality of the order: 
[OMISSIS] 
5 [OMISSIS] 
6 [OMISSIS] 
7 [OMISSIS] 
8 [OMISSIS] [with no relevance to the question referred] 
ADDE AND OTHERS 
 
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With regard to Book III containing the provisions relating to the entry of 
foreigners into France: 
As for the provisions of Article L. 332-3 of the CESEDA relating to the 
possibility of refusing entry to third-country nationals at internal borders: 
9 On the one hand, Article 32 of Regulation (EU) 2016/399 of the European 
Parliament and of the Council of 9 March 2016 on a Union Code on the rules 
governing the movement of persons across borders (Schengen Borders Code) 
provides that, where border control at internal borders is reintroduced under the 
conditions laid down in Chapter II of Title III, the relevant provisions of Title II of 
that regulation, relating to external borders, ‘shall apply mutatis mutandis’. 
Article 14 of the Schengen Borders Code, which falls under Title II of that 
regulation, provides for the possibility of refusing entry to third-country nationals 
who do not fulfil the entry conditions laid down in Article 6(1) and do not belong 
to the categories of persons referred to in Article 6(5) of that regulation. On the 
other, it follows from Article 2(2)(a) of Directive 2008/115/EC of 16 December 
2008 on common standards and procedures in Member States for returning 
illegally staying third-country nationals that Member States may decide not to 
apply this Directive to third-country nationals who are subject to ‘a refusal of 
entry in accordance with Article [14] of the Schengen Borders Code, or who are 
apprehended or intercepted by the competent authorities in connection with the 
irregular crossing by land, sea or air of the external border of a Member State 
and who have not subsequently obtained an authorisation or a right to stay in that 
Member State’. 
10 In its judgment of 19 March 2019, Arib and Others (C-444/17), the Court of 
Justice of the European Union held that: ‘Article 2(2)(a) of Directive 2008/115/EC 
of the European Parliament and of the Council of 16 December 2008 […] read in 
conjunction with Article 32 of [the Schengen Borders Code], must be interpreted 
as not applying to the situation of an illegally staying third-country national who 
was apprehended in the immediate vicinity of an internal border of a Member 
State, even where that Member State has reintroduced border control at that 
border, pursuant to Article 25 of the regulation, on account of a serious threat to 
public policy or internal security in that Member State.’ 
11 In Decision No 428175 of 27 November 2020, the Conseil d’État, acting in a 
judicial capacity, held that the provisions of Article L. 213-3-1 of the CESEDA, as 
resulting from the Law of 10 September 2018 cited above, which provided that in 
the event of the temporary reintroduction of border control at internal borders, a 
foreign national arriving directly from the territory of a State party to the 
Schengen Convention signed on 19 June 1990 may be refused entry under the 
conditions laid down in Article L. 213-2 of the same code if he has entered the 
territory of Metropolitan France crossing an internal land border without being 
authorised to do so and was checked in an area between the border and a line 
drawn 10 kilometres inside that border, are contrary to the provisions of Directive 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2022 – CASE C-143/22 
 
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2008/115/EC as interpreted by the judgment of the Court of Justice of the 
European Union cited above. 
12 The provisions of the order at issue do not repeat the provisions of Article L. 213-
3-1 of the CESEDA in its previous version and do not therefore breach the 
principle of res judicata by the Conseil d’État. However, the second paragraph of 
Article L. 332-3 of the CESEDA, in the version resulting from the order at issue, 
provides for the adoption of a refusal of entry ‘while carrying out border checks at 
internal borders’ in the event of the temporary reintroduction of border control at 
internal borders. 
13 Having regard to the provisions set out in paragraph 9 above and the grounds for 
the judgment of the Court of Justice of the European Union cited above, the 
question whether, in the event of the temporary reintroduction of border controls 
at internal borders, under the conditions laid down in Chapter II of Title III of 
Regulation (EU) 2016/399, foreign nationals arriving directly from the territory of 
a State party to the Schengen Convention signed on 19 June 1990 who present 
themselves at an authorised stationary or mobile border crossing point, without 
being in possession of documents justifying an authorisation to enter or right to 
stay in France, may be refused entry, when entry checks are carried out at that 
border, on the basis of Article 14 of that regulation, without Directive 
2008/115/EC being applicable, is decisive for the outcome of the dispute before 
the Conseil d’État and presents a serious difficulty in interpreting European Union 
law. It is therefore necessary to stay the proceedings concerning the form of order 
sought in Case No 450285 directed against Article L. 332-3 of the CESEDA, in 
the version resulting from the order at issue, and to make a reference to the Court 
of Justice of the European Union for a preliminary ruling under Article 267 of the 
Treaty on the Functioning of the European Union. 
[OMISSIS] 
14 [OMISSIS] 
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ADDE AND OTHERS 
 
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23 [OMISSIS] 
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25 [OMISSIS] 
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REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2022 – CASE C-143/22 
 
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49 [OMISSIS] 
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55 [OMISSIS] 
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57 [OMISSIS] 
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59 [OMISSIS] [with no relevance to the question referred] 
Consequences to be drawn from the foregoing: 
60 [OMISSIS] [with no relevance to the question referred] 
61 It is also necessary to stay the proceedings concerning the claim for the annulment 
in Case No 450285, in so far as they concern the second paragraph of Article L. 
332-3 CESEDA, in the version resulting from the order at issue, pending a 
preliminary ruling by the Court of Justice of the European Union on the question 
set out in paragraph 13 above. 
[OMISSIS] 
62 [OMISSIS] [with no relevance to the question referred] 
DECIDES: 
-------------- 
Article 1: The proceedings concerning the form of order sought in Case 
No 450285 directed against Article L. 332-3 of the CESEDA shall be stayed 
pending the preliminary ruling of the Court of Justice of the European Union on 
the following question: In the event of the temporary reintroduction of border 
controls at internal borders, under the conditions laid down in Chapter II of Title 
III of Regulation (EU) 2016/399, can foreign nationals arriving directly from the 
territory of a State party to the Schengen Convention signed on 19 June 1990 be 
refused entry, when entry checks are carried out at that border, on the basis of 
Article 14 of that regulation, without Directive 2008/115/EC being applicable? 
ADDE AND OTHERS 
 
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[OMISSIS] [with no relevance to the question referred] 
[OMISSIS] 
[OMISSIS] [proceedings]