View of the Advocate General — ECLI:EU:C:2010:319
Date: 2010-06-07
Language of the case: French
Subject matter: General provisions;Immigration and asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. Preliminary rulings – Reference to the Court – Jurisdiction of the Court – Review of the validity of an act of the European Union – National court faced with the alleged unconstitutionality of national legislation transposing a directive – Obligation to refer to the Court of Justice before the review of the constitutionality of that legislation – Scope (Art. 267 TFEU) 2. Preliminary rulings – Reference to the Court – Jurisdiction of national courts – Examination of whether a national law is consistent both with European Union law and with the national constitution – National legislation granting priority to an interlocutory procedure for the review of constitutionality – Lawfulness – Conditions (Art. 267 TFEU) 3. Border controls, asylum and immigration – Community Code on movement across borders – Abolition of border controls at internal borders – Checks within the national territory (Art.67 TFEU; European Parliament and Council Regulation No 562/2006, Arts 20 and 21) 1. The priority nature of an interlocutory procedure for the review of the constitutionality of a national law, the content of which merely transposes the mandatory provisions of a European Union directive, cannot limit the jurisdiction of the Court of Justice alone to declare an act of the European Union invalid, and in particular a directive, the purpose of that jurisdiction being to guarantee legal certainty by ensuring that EU law is applied uniformly. To the extent that the priority nature of such a procedure leads to the repeal of a national law doing no more than transpose the mandatory provisions of a European Union directive by reason of that law’s being contrary to the national constitution, the Court could, in practice, be denied the opportunity, at the request of the courts ruling on the substance of cases in the Member State concerned, of reviewing the validity of that directive in relation to the same grounds relating to the requirements of primary law, and in particular the rights recognised by the Charter of Fundamental Rights of the European Union, to which Article 6 TEU accords the same legal value as that accorded to the Treaties. Before the interlocutory review of the constitutionality of a law, the content of which does no more than transpose the mandatory provisions of a European Union directive, can be carried out in relation to the same grounds which cast doubt on the validity of the directive, national courts against whose decisions there is no judicial remedy under national law are, as a rule, required, under the third paragraph of Article 267 TFEU, to refer to the Court of Justice a question on the validity of that directive and, thereafter, to draw the appropriate conclusions resulting from the preliminary ruling given by the Court, unless the court initiating the interlocutory review of constitutionality has itself referred that question to the Court pursuant to the second paragraph of Article 267 TFEU. In the case of a national implementing law with such content, the question whether the directive is valid takes priority, in the light of the obligation to transpose that directive. In addition, imposing a strict time-limit on the examination by the national courts cannot frustrate the reference for a preliminary ruling on the validity of the directive in question. (see paras 54-56) 2. Article 267 TFEU precludes legislation of a Member State that establishes an interlocutory procedure for the review of the constitutionality of national laws, in so far as it is the effect of the priority nature of that procedure to prevent, both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question, all other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, Article 267 TFEU does not preclude such national legislation, in so far as the other national courts or tribunals remain free: – to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question they may consider necessary, – to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the European Union legal order, – to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to European Union law. It is for the referring court to ascertain whether national legislation establishing an interlocutory procedure for the review of the constitutionality can be interpreted in accordance with those requirements of EU law. (see para. 57, operative part 1) 3. Article 67(2) TFEU, and Articles 20 and 21 of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), preclude national legislation granting to the police authorities of the Member State in question the power to check, solely within an area of 20 kilometres from the land border of that State with States party to the Convention implementing the Schengen Agreement, the identity of any person, irrespective of his behaviour and of specific circumstances giving rise to a risk of breach of public order, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled, where that legislation does not provide the necessary framework for that power to guarantee that its practical exercise cannot have an effect equivalent to border checks. (see para. 75, operative part 2)