Association nationale d’assistance aux frontières pour les étrangers (ANAFE) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’immigration.
Date: 2012-06-14
23. Article 1 of Regulation No 562/2006 states that its ‘subject-matter and principles’ are to develop the European Union as a common area of free movement without internal borders and to establish rules governing border control of persons crossing the external borders of the Member States of the European Union.
24. Recital 6 of the preamble to Regulation No 562/2006 reads: ‘[b]order control [at Member States’ external borders] is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control.’
25. That regulation is part of the more general context of an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime (Article 3(2) TEU). The first sentence of Article 67(2) TFEU states that the Union is to ‘ensure the absence of internal border controls for persons and ... frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals’.
72. The direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law (see, inter alia, Case 34/73 Variola  [1973] ECR 981, paragraph 10, and Joined Cases C-4/10 and C-27/10 Bureau national interprofessionnel du Cognac [2011] ECR I-6131, paragraph 66), unless the regulation in question leaves it to the Member States themselves to adopt the necessary legislative, regulatory, administrative and financial measures to ensure the effective application of the provisions of that regulation (see, to that effect, Case 31/78 Bussone [1978] ECR 2429, paragraph 32).
73. Further, in accordance with the principle of the precedence of European Union law, provisions of the FEU Treaty and directly applicable measures of the institutions have the effect, in their relations with the internal law of the Member States, merely by entering into force, of rendering automatically inapplicable any conflicting provision of national law (Case 106/77 Simmenthal  [1978] ECR 629, paragraph 17; Case C-213/89 Factortame and Others  [1990] ECR I-2433, paragraph 18, and Case C-409/06 Winner Wetten [2010] ECR I-8015, paragraph 53).
74. In accordance with settled case-law, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation (see, inter alia, Simmenthal , paragraphs 21 to 24, and Case C-119/05 Lucchini [2007] ECR I-6199, paragraph 61).
75. The Court has also stated that, first, all administrative bodies, including decentralised authorities, are subject to that obligation as to primacy, and individuals may therefore rely on such provisions of European Union law against them and, secondly, provisions of national law which conflict with such provisions of European Union law may be legislative or administrative (see Case C-224/97 Ciola [1999] ECR I-2517, paragraphs 30 and 31 and case-law cited).
76. It must next be recalled that the principle of legal certainty, which constitutes a general principle of European Union law, requires that European Union legislation be clear and precise, and that its application be foreseeable for all interested parties (order of 8 November 2007 in Case C-421/06 Fratelli Martini and Cargill , paragraph 56; to the same effect, see Case C-194/09 P Alcoa Trasformazioni  v Commission [2011] ECR I-6311, paragraph 71 and case-law cited).
78. As regards the principle of the protection of legitimate expectations, it should be observed that that principle may be invoked as against European Union legislation only to the extent that the Union itself, that is an institution of the Union, has previously created a situation which can give rise to a legitimate expectation (see, to that effect, Case C-63/93 Duff and Others  [1996] ECR I-569, paragraph 20, and Case C-14/01 Niemann [2003] ECR I-2279, paragraph 56).
81. In accordance with the Court’s settled case-law, a practice of a Member State which is contrary to European Union rules cannot give rise to a legitimate expectation on the part of an individual who benefits from that situation (see, to that effect Case 5/82 Maizena  [1982] ECR 4601, paragraph 22, and Joined Cases C-31/91 to C-44/91 Lageder and Others  [1993] ECR I-1761, paragraph 34). It follows that the conduct of a national authority responsible for applying European Union law, which acts in breach of that law, cannot give rise to a legitimate expectation on the part of an individual of beneficial treatment contrary to European Union law (see Case C-153/10 Sony Supply Chain Solutions (Europe) [2011] ECR I-2775, paragraph 47 and case-law cited).