'Melki' judgment

"Article 67 (2) TFEU, and Articles 20 and 21 of Regulation No 562/2006 [of the European Parliament and of the Council], 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 […], the identity of any person, irrespective of his behaviour and of specific circumstances giving rise to a risk of breach of public order[...] ", quotation from the  "Melki" judgment (in Joined Cases C-188/10 and C-189/10).

In the so-called "Melki" judgment of 22 June 2010, the European Court of Justice ruled on the compatibility of a national rule with EU law at the request of the Court of Cassation.

Two Algerian nationals who were irregularly residing in France were checked by the police near the Belgian border in accordance with a national law and subsequently placed in detention pending deportation.

In its judgment the ECJ found that Article 67 (2) of the Treaty on the Functioning of the European Union (TFEU) and Articles 20 and 21 of the Schengen Borders Code preclude national legislation authorizing the police authorities of a Member State to carry out identity checks in a given area along the (internal) border regardless of the behaviour of the affected persons or other special circumstances giving rise to the risk of disturbance of the public order. With the decision, the ECJ has specified a principle codified in Article 67 (2) TFEU and Article 20 and 21 of the Schengen Borders Code and which is to be implemented by the Member States in the Schengen area. Accordingly, in the light of the requirement of legal certainty, EU law requires Member States not to provide powers to police authorities when it is not ensured that the actual exercise of power has the same effect as border checks. The Court also complained that the relevant (French) power "with regard to the intensity and frequency" of the controls "contained neither detailed rules nor restrictions" which prevented this.

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