Official Journal of the European Union

C 221/14

Judgment of the Court (Grand Chamber) of 22 June 2010 (references for a preliminary ruling from the Cour de cassation (France)) — Proceedings against Aziz Melki (C-188/10) and Sélim Abdeli (C-189/10)

(Joined Cases C-188/10 and C-189/10) (1)

(Reference for a preliminary ruling - Article 267 TFEU - 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 - Article 67 TFEU - Freedom of movement for persons - Abolition of border control at internal borders - Regulation (EC) No 562/2006 - Articles 20 and 21 - National legislation authorising identity checks in the area between the land border of France with States party to the Convention Implementing the Schengen Agreement and a line drawn 20 kilometres inside that border)

2010/C 221/23

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Aziz Melki (C-188/10), Sélim Abdeli (C-189/10)


Reference for a preliminary ruling — Cour de cassation — Interpretation of the general principles of European Union law and Articles 67 and 267 TFEU — Mandatory requirement to first refer the matter to the Conseil constitutionnel when a provision of domestic legislation, because it is contrary to European Union law, is presumed to be in breach of the Constitution — Primacy of European Union law over national law — Freedom of movement for persons — Absence of internal border controls for persons

Operative part of the judgment


Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, in so far as the priority nature of that procedure prevents — 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 the 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 which they consider necessary,

to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the European Union legal order, and

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 the national legislation at issue in the main proceedings can be interpreted in accordance with those requirements of European Union law.


Article 67(2) TFEU, and Articles 20 and 21 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), preclude national legislation which grants 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 of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen (Luxembourg) on 19 June 1990, 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.

(1)  OJ C 161, 19.6.2010.