seminar of 8th February 2010 and the follow-up to the “Mazeaud report” with regard to litigation concerning foreigners10. In the field of detention, pursuant to the directive, the law lays down the principle that detention may only be used when other measures are ineffective11. For this reason it amends and increases the scope of the Code for Entry and Residence of Foreigners and Right of Asylum (code de l’entrée et du séjour des étrangers et du droit d’asile) with regard to compulsory residence orders. However, at the same time, it lengthens the maximum detention period from thirty-two days before the act, to forty-five days: an administrative period of five days maximum, followed by two periods of twenty days authorised by the ordinary courts (the second period being, in theory, less liberally granted than the first). These new regulations include an exception applicable to persons implicated in cases of terrorism (according to the meaning of title II of book IV of the penal code (code pénal)), who are deported or banned from French territory: the second twentyday period is increased to one month and may be renewed, with a maximum limit of six consecutive months (that is to say a total of six months and twenty-five days) 12. The Government of the time justified this lengthening of the detention period in two ways. On the one hand, within a group of countries applying different detention times, France’s detention time is the shortest. The directive fixes a six-month period as the “harmonised” detention time within the EU; countries are therefore expected to move closer towards this duration. On the other hand, in the negotiation of readmission agreements with non-EU States 13, the Commission requests deadlines for responses from the authorities of these States of no less than forty-five days; on the basis of such agreements France cannot therefore continue to demand responses from partner States within the shorter deadline of only thirty-two days. These reasons are not really convincing. Article 15 § 5 of the Directive does not attempt to harmonise maximum detention times within the EU. Were this the case, France’s initiative of increasing its maximum detention time by thirteen days in order to move closer to a six-month period might be considered derisory. On the contrary, the objective of the European text is exclusively to fix a maximum detention period, which many Member States currently exceed 14: “Each Member State shall set a limited period of detention, which may not exceed six months”; the intention could not be clearer. Moreover, article 4 of the same directive (§ 3) mentions “the right of Member States to adopt or maintain provisions that are more favourable” to foreigners, provided that they are compatible with the Directive, which is clearly the point at issue. This provision is moreover necessary for France, where it is doubtful that a period of detention of as long as six months for an “ordinary” foreigner would be considered to be in compliance with the Constitution. For its part, the justification based on “harmonisation” with the periods provided for in readmission agreements negotiated by the European Commission, is hardly more convincing. 10 Pierre Mazeaud, Pour une politique des migrations transparente, simple, solidaire [“For an open and simple migration policy based on social solidarity”], Paris, la Documentation française, 248 p., July 2008. 11 The “theoretical” question as to whether this principle is really new in French law is open to debate, as are its practical consequences. 12 In its ruling concerning the Act of 16th June 2011 (no. 2011-631 of 9th June 2011), the Constitutional Council judged the provision permitting the renewal of the second detention period for a maximum period of twelve months to be unconstitutional. 13 Readmission agreements: agreements by which the State of origin of a foreigner, taken in for questioning in an EU State and lacking valid residence papers, undertakes to readmit the latter to its territory, on the condition that the said foreigner is identified as one of its nationals (within a deadline of forty-five days). 14 Six States have detention periods of longer than six months (Belgium, Poland, Hungary, Greece, Germany and Latvia) and six have no specified maximum period (United Kingdom, Denmark, Estonia, Finland, the Netherlands and Sweden). 19