Melki and Abdeli Joined Cases C-188/10 and C-189/10, judgment of 22 June 2010
Facts
Melki and Abdeli challenged French proceedings following identity checks near the Belgian border. They argued that the legislation authorising the checks was inconsistent with both the French Constitution and EU law. France had introduced a procedure giving priority to questions of constitutionality, and the Cour de cassation was concerned that it might obstruct preliminary references to the Court of Justice. The EU court was asked about that procedure and about police powers exercised within a twenty-kilometre border area. The case therefore combined the relationship between constitutional and EU review with the rules against equivalent internal-border checks.
Legal Issue
Could constitutional review take procedural priority without obstructing Article 267, and did the border-area identity-check power contain sufficient safeguards against checks equivalent to border controls?
Held
The Court held that a priority constitutional-review procedure was permissible only if national courts remained free to refer EU questions when appropriate, grant necessary interim protection and ultimately disapply incompatible national legislation. A procedure preventing those functions would conflict with Article 267. The national court had to determine whether French law could be interpreted consistently with those requirements. Separately, the identity-check power was incompatible with the relevant Schengen rules because it lacked a sufficient framework preventing its exercise from having effects equivalent to border checks. The judgment therefore did not outlaw constitutional review or all police checks near borders; it imposed conditions protecting EU judicial cooperation and free movement.
⭐ Legal Principle
National constitutional procedures must preserve courts' Article 267 powers, interim protection of EU rights and the ability to disapply incompatible legislation. Domestic procedural priority cannot deprive EU law of practical effect or make a constitutional court an exclusive gateway to the Court of Justice.
Significance
Melki and Abdeli is important for the relationship between national constitutional justice and EU supremacy. It adopts a conditional approach rather than demanding the removal of every priority procedure. The border-check ruling also demonstrates that an apparently domestic police power may require limits on its practical exercise. For current policing questions, the applicable Schengen legislation and amendments must be checked separately; the institutional lesson concerning preliminary references should not be confused with the details of the 2010 code.
Common exam questions about this case
Did every national court have to refer every constitutional dispute?
No. Article 267 distinguishes a court's power to refer from the circumstances in which referral is obligatory. Melki protects both as applicable. The judgment prevents constitutional-priority procedures from obstructing EU references, but it does not make the mere presence of a constitutional issue an automatic obligation to send a question to Luxembourg.
Which powers had to survive the priority procedure?
Courts had to remain able to refer relevant EU questions at an appropriate stage, grant necessary interim protection and disapply incompatible national legislation after the constitutional procedure. These safeguards prevent delay or constitutional review from neutralising an EU right. The national court had to assess whether domestic law preserved them in practice.
Were identity checks near internal borders prohibited altogether?
No. The problem was the absence of a framework ensuring that the broadly expressed police power would not operate like border checks. The Court examined its geographical scope and lack of limits on exercise. A properly limited police power raises a different assessment from the particular unrestricted arrangement challenged in these proceedings.