30 days, six months… forever? Border control and the French Council of State

von Sébastien Platon

For Christmas 2017, the French Council of State – the Supreme Court for administrative matters in France – gave a nasty present to those attached to the free movement of persons in the Schengen area. In a ruling issued on 28 December (see here, in French), it upheld the decision of the French Government to reintroduce, for the ninth time in a row, identity control at its “internal” borders, i.e. borders with other Schengen countries – even though checks at internal borders are not, in fact, systematically performed. This decision, issued without even bringing the matter to the Court of Justice of the European Union for a preliminary ruling, sets aside, probably unlawfully, the time limit set by the Schengen Borders Code.

Facts and background

On 13 November 2015, France reintroduced identity checks at its borders, by way of derogation to the so-called “Schengen Legislation” (after the Schengen agreements 1985 and 1990, which have been made part of EU Law with the Amsterdam Treaty 1997). The French Government had decided this measure before the November Paris attacks (13 November 2015), in order to ensure the security of the Paris Conference on Climate (30 November – 11 December 2015). This measure has been extended or renewed nine times consecutively since then, justified by the continuous existence of a terrorist threat and on the fact that important events, whether political (like the presidential and legislative elections) or in sports (EURO 2016, Tour de France), took place in France and could be targets for terrorists.

At the same time, several other Schengen countries took similar measures in order to deal with the so-called “migrant crisis”, mostly fueled by the arrival of Syrian asylum seekers. Since then, some of these measures have come to an end, while others are still in force ...

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