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Trajan Shipley
18th October 2021
Institutional law Justice & Litigation

French Constitutional Court rejects to review legality of national provisions implementing EU law

In a decision rendered on 15 October 2021(n° 2021-940 QPC Air France), the French Constitutional Court (Conseil constitutionnel) rejected to conduct a review of the legality of provisions of French law transposing the Convention Implementing the Schengen Agreement and Directive 2001/51. It specifically held itself to be not competent to conduct such a review and found that the mere transposition of EU law does not violate France’s constitutional identity.

The French Council of State (Conseil d’État) had requested a preliminary ruling (question prioritaire de constitutionnalité) on the conformity with the French Constitution of a provision of French law implementing the above mentioned EU law acts as regards the obligation on air carriers of returning third-country nationals when their entry into France is refused. The applicant in the main proceedings, Air France, had alleged that those provisions had the effect of delegating to a private person the general administrative police powers inherent in the exercise of public force, in violation of Articles 9 and 12 of the Declaration of the Rights of Man and of the Citizen of 1789, in addition to Article 66 of the French Constitution.

In its decision, the Constitutional Court declined its jurisdiction to review the conformity with the French Constitution of legislative provisions that merely draw the necessary consequences from the unconditional and precise provisions of an EU directive or the provisions of a regulation. It further noted that the mere transposition of a directive or a regulation cannot run counter to a rule or principle inherent in the constitutional identity of France, unless the constituent has agreed to it. It thus held that it is competent to review the conformity of the contested provisions with the rights and freedoms guaranteed by the Constitution only insofar as they call into question a rule or principle which is inherent in the constitutional identity of France and when no equivalent protection of such principle is to be found in EU law.

In declaring the conformity of the contested provision with the French Constitution, the Constitutional Court specifically held that the right to security, the principle of personal liability (principe de responsabilité personnel) and of equality before the law (égalité devant les charges publiques) do not constitute rules or principles inherent in the constitutional identity of France insofar as they find protection in EU law. The Court did conduct a review of the constitutionality on the basis of Article 12 of the 1789 Declaration (public force), finding that the contested provisions did not confer police powers to air carriers, and thus were compatible with the Constitution. 

The decision is available here (in French).



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