On 15 July 2021, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d’État (Decision no. 450480 of 9 July 2021). This application was made on behalf of Air France by SCP Rocheteau et Uzan-Sarano, Attorney for the Conseil d’État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2021-940 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees of Article L. 213-4 and 1° of Article L. 625-7 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA).
Having regard to the following texts:
- the Constitution;
- Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
- the Convention implementing the Schengen Agreement of 14 June 1985, signed on 19 June 1990, specifically its Article 26;
- Directive 2001/51/EC of the Council of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985;
- the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA);
- the Transportation Code;
– Ordinance No. 2004-1248 of 24 November 2004 relating to the legislative portion of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), ratified by Article 120 of Act No. 2006-911 of 24 July 2006 relating to immigration and integration;
– Act No. 2016-274 of 7 March 2016 relating to the rights of foreigners in France;
– the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
Having regard to the following documents:
- the observations of the Prime Minister, registered on 4 August 2021;
- the observations of intervenors on behalf of the Association Nationale d’Assistance aux Frontières pour les Etrangers (a national association of aid for foreigners at the border), by SCP Zribi et Texier, Attorney for the Conseil d’État and for the Cour de Cassation, registered on the same date;
- the second observations on behalf of the applicants by SCP Rocheteau et Uzan-Serano, registered on 16 August 2021;
- the additional documents produced and appended to the case files;
After having heard Cédric Uzan-Serano, Attorney for the Conseil d’État and for the Cour de Cassation, on behalf of the applicant company, Isabelle Zribi, Attorney for the Conseil d’État and for the Cour de Cassation, for the intervenor association, and Antoine Pavegeau, appointed by the Prime Minister, at the public hearing of 5 October 2021;
Having regard to the following documents:
- the post-hearing submission (note en délibéré) on behalf of the applicant company by SCP Rocheteau et Uzan-Serano, registered on 8 October 2021;
- the post-hearing submission (note en délibéré) of the Prime Minister, registered on 11 October 2021;
- the post-hearing submission (note en délibéré) on behalf of the intervenor association by SCP Zribi et Texier, registered on 13 October 2021;
And after having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED THAT:
1. The application for a priority preliminary ruling on constitutionality must be considered as relating to the provisions applicable to the legal dispute at the moment in which the application was made. Consequently, a referral to the Constitutional Council is made for Article 213-4 of the Code for Entry and Residence of Foreigners and Right of Asylum in its formulation resulting from the aforementioned Ordinance of 24 November 2004, and of 1° of Article L. 625-7 of the same code, in its formulation resulting from the aforementioned Act of 7 March 2016.
2. Article L. 213-4 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in this formulation, stipulates:
“When a foreign national that is not from a Member State of the European Union is refused entry into France, the air or maritime transportation company which transported the foreign national is required to return the said foreign national without delay when such return is requested by the authorities that are in charge of controlling entry at the border, to the point where the foreign national began using the transportation provided by the company, or if such return is impossible, to the country that issued the travel document with which the foreign national travelled, or to any other permitted location.”
3. 1° of Article L. 625-7 of the same code, in this formulation, provides for a penalty consisting of a fine of a maximum of 30,000 euros issued to: “The air or maritime transportation company that does not comply with the obligations provided for in Articles L. 213-4 to L. 213-6.”
4. The applicant company accuses these provisions of requiring air transport companies to return foreign nationals that were refused access to the French national territory, in such case requiring them to transport foreign nationals whose behaviour presents a risk aboard the aircraft. These provisions would therefore have the effect of delegating powers of general administrative police, which are inherent to the exercise of public force, to a private entity that does not have such powers, in violation of Article 12 of the Declaration of Human and Civic Rights of 1789. The applicant company also accuses these provisions of requiring the companies, during this return transportation, to hold persons against their will who refuse to comply with this measure, violating Article 66 of the Constitution. Moreover, these provisions would allow for engaging the responsibility of transportation companies, while the very non-compliance with this obligation would only be attributable to the passenger’s behaviour. As such, they violate Article 9 of the Declaration of Human and Civic Rights of 1789.
5. Furthermore, the applicant company contends that these provisions require the transportation companies to bear all of the costs related to the obligation of return transportation, making them subject to excessive constraints. In so doing, they violate Article 13 of the Declaration of Human and Civic Rights of 1789.
6. Lastly, these provisions, by not providing for any exception to this obligation of return transportation, would be judged as not acting fully within the competence of jurisdiction.
7. These objections are therefore directed against the obligation of return transportation that the air transportation companies are required to bear. Consequently, the priority preliminary ruling on the issue of constitutionality concerns the words “is required to return” in Article L. 213-4 of the Code for Entry and Residence of Foreigners and Right of Asylum.
8. The Association Nationale d’Assistance aux Frontières pour les Etrangers (a national association of aid for foreigners at the border) has grounds to intervene in the proceedings for the present priority preliminary ruling on the issue of constitutionality only in that its intervention concerns these same words. It contends, for the same reasons as the applicant company, that these provisions violate Article 12 of the Declaration of Human and Civic Rights of 1789.
- On the control carried out by the Constitutional Council:
9. According to Article 88-1 of the Constitution: “The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on 13 December, 2007.” The transposition of a directive or the adaptation of national law to a regulation must not go against a rule or principle that is inherent in France’s constitutional identity, excluding when the constituent powers have so consented. Without such a rule or principle being called into question, the Constitutional Council is not competent to control the constitutionality of legislative provisions that are limited to determining the necessary consequences of the unconditional and precise provisions of a directive or of provisions of a regulation of the European Union. In this case, it falls solely on the European Union court, if necessary by a preliminary ruling, to control the compliance of the directive or regulation with the fundamental rights guaranteed by Article 6 of the Treaty on European Union.
10. Pursuant to the Convention implementing the Schengen Agreement signed on 19 June 1990, the Member Country Signatories are committed to implementing the obligation for transportation companies “immediately to assume responsibility” for foreign nationals whose entry onto the territory of these Member States was refused, and return them to a third State.
This obligation was cited and further elaborated by the aforementioned directive of 28 June 2001.
11. The disputed provisions of Article L. 213-4 of the Code for Entry and Residence of Foreigners and Right of Asylum seek to ensure the transposition of this directive by providing for the air or maritime transportation company to be required to return a foreign national that is not a national of a Member State of the European Union should said foreign national be refused entry on French national territory.
12. These provisions are therefore limited to provide the necessary consequences of the unconditional and precise provisions of the directive of 28 June 2001.
13. Consequently, the Constitutional Council is only competent to control the compliance of the disputed provisions with rights and freedoms that are guaranteed by the Constitution in that they call into question a rule or principle that, not having found an equivalent protection in European Union law, is inherent to France’s constitutional identity.
- In substance:
14. Firstly, the right to security, the principle of individual responsibility, and equality before public burdens, which are protected by European Union law, do not constitute rules or principles that are inherent to French constitutional identity. It is therefore not up to the Constitutional Council to rule on these objections.
15. Secondly, according to Article 12 of the Declaration of Human and Civic Rights of 1789: “To guarantee the Rights of Man and of the Citizen a public force is necessary; this force is therefore established for the benefit of all, and not for the particular use of those to whom it is entrusted.” It results that it is prohibited to delegate to private entities the general administrative police powers which are inherent to the use of “public force” necessary for guaranteeing rights. This requirement constitutes an inherent principle of France’s constitutional identity.
16. The decision to implement the return of a person who was not granted entry into French national territory is the exclusive competence of the authorities charged with controlling persons at the border. Pursuant to the disputed provisions, the air transportation companies are only required to be responsible for these persons and to ensure their transportation.
17. Therefore, the disputed provisions have neither the purpose nor the effect of making these companies responsible for the monitoring of these persons that must be returned or for carrying out any restriction on these persons, with such measures solely being within the competence of the police authorities. Nor do they deprive the captain of the right to disembark a person who presents a danger to the safety, health, hygiene or the orderly operation of the aircraft, pursuant to Article L. 6522-3 of the Transportation Code.
18. The objection to the violation of Article 12 of the Declaration of Human and Civic Rights of 1789 must therefore be dismissed. The same applies to the objection that the legislator failed to recognise the extent of their competence in conditions affecting these same requirements.
19. Consequently, the disputed provisions are therefore declared as conforming to the Constitution.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - The words “is required to return” in Article L. 213-4 of the Code for Entry and Residence of Foreigners and Right of Asylum, in its formulation resulting from Ordinance No. 2004-1248 of 24 November 2004 on the legislative part of the Code for Entry and Residence of Foreigners and Right of Asylum, are consistent with the Constitution.
Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.
Ruled by the Constitutional Council in its 14 October 2021 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.
Published on 15 October 2021.