CJEU, EU Law, Returns Directive, Schengen Border Code

AG Szpunar on the Returns Directive

In Case C-444/17 Préfet des Pyrénées-Orientales v Abdelaziz Arib, Procureur de la République, Procureur général près la cour d’appel de Montpellier, Advocate General Szpunar proposes that the Court should rule that the ‘Returns Directive’ must be applied to third-country national where internal border controls have been reinstated. Mr Abdelaziz Arib, of Moroccan nationality, was checked, in French territory near to the land border between France and Spain, aboard a coach coming from Morocco. He had previously been subject to an expulsion order removing him from French territory. Suspected of having entered French territory illegally, he was arrested and held in policy custody and the préfet des Pyrénées- Orientales (Prefect of the Département of Pyrénées-Orientales, France; ‘the préfet’) adopted an order requiring him to leave French territory and ordered his administrative detention. His detention in police custody was rescinded by the tribunal de grande instance de Montpellier (Regional Court, Montpellier, France) and, as a consequence, the subsequent proceedings, including the administrative detention, since it was not possible to place him in custody. The cour d’appel deMontpellier (Court of Appeal, Montpellier, France) confirmed the decision and the préfet appealed to the Cour de cassation (Court of Cassation, France).

The principle of freedom of movement within the Schengen Area entails an absence of border control of persons crossing the internal borders between the Member States. The check at issue was made in June 2016 during the period of temporary reinstatement in France of internal border controls. Since France had declared a state of emergency, checks at the internal borders, in accordance with the provisions of the Schengen Border Code or Regulation (EU) 2016/399 had been reinstated in the fact of a serious threat to public policy or internal security.

The Cour de cassation (Court of Cassation) asks the Court of Justice whether border controls reintroduced at an internal border of a Member State may be equated with border controls at an external border, when that border is crossed by a third-country national and whether, in consequence, France may decide not to apply the return procedure laid down in Directive 2008/1152 known as the ‘Returns Directive’. That directive in fact authorises the Member States not to apply to third-country nationals stopped or intercepted by the competent authorities when making an irregular crossing of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.

In today’s Opinion, Advocate General Maciej Szpunar states that the question which arises iswhether the provisions of the ‘Returns Directive’ apply mandatorily in a situation where a MemberState has temporarily reinstated internal border controls.

The Advocate General takes the view that there has indeed been a border crossing, within the meaning of the case-law of the Court of Justice (C-47/15 Affum) where there is a direct temporal and spatial link with that crossing of the Franco-Spanish border. He notes, next, that the Franco-Spanish border cannot be classified as an external border within the meaning of the ‘Returns Directive’, but rather is an internal border.

The Advocate General adds that the different legal interests are protected according to whether the borders are external or internal. While a Member State responsible for controlling the external borders acts in the interests of all Member States, a Member State which decides to reinstate border controls at the internal borders does so in its own interest.

The Advocate General therefore concludes therefrom that a Member State must apply the stages of the return procedure laid down in the ‘Returns Directive’ to the situation of a third- country national stopped or intercepted in connection with the irregular crossing of an internal border at which border controls have been reinstated by application of the Schengen Borders Code.


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