Court holds that provisions which require political choices falling within the responsibilities of the European Union legislature cannot be delegated
>>In this case, the European Parliament sought the annulment of Council Decision 2010/252 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX, hq in Warsaw pictured)
The Council primarily argued that the Parliament’s action was inadmissible. It contended that the Parliament did not have an interest in bringing proceedings or the right to challenge the contested decision because it did not exercise its right to oppose the adoption of that decision for infringement of the grounds listed in Article 5a(4)(e) of the second ‘comitology’ decision. The Council argued that if the Parliament had doubts as to the legality of the contested decision, it ought to had opposed it, in accordance with the regulatory procedure with scrutiny, and the contested decision could not have been adopted.
The Parliament, referring to Case 45/86 Commission v Council (1987), contended that it was not necessary to prove an interest in bringing proceedings in accordance with the second paragraph of Article 263 TFEU and the case-law of the Court. Moreover, it argued, referring to Case C-303/94 Parliament v Council  ECR I-2943, that even if that proof were necessary, such an interest unquestionably exists in the present case since the legality of an act of the European Union having a binding effect is contested, and the prerogatives of the Parliament are called into question by the adoption of a legal act within the framework of an implementing mechanism instead of a legislative procedure.
According to the Parliament, the verification by the Parliament of a proposed implementing measure, as provided for in Article 5a(4)(e) of the second ‘comitology’ decision, did not have the result of limiting the right of the Parliament to request the judicial review of such a measure. Furthermore, the Parliament submitted that it was not obliged to exercise its right of veto when it had doubts as to the legality of a proposed implementing measure.
The Court held that the fact that, under Article 5a(4)(e) of the second ‘comitology’ decision, the Parliament had the possibility of opposing the adoption of the contested decision, by acting by a majority of its component members, was not capable of excluding that institution’s right to bring proceedings.
The Court reiterated that the right of action available to the Member States, Parliament, the Council and the Commission, provided for in the second paragraph of Article 263 TFEU, is not conditional on proof of an interest in bringing proceedings (see inter alia; Case 45/86 Commission v Council ; Case C‑378/00 Commission v Parliament and Council , paragraph 28; Case C-370/07 Commission v Council  paragraph 16; and Joined Cases C-463/10 P and C‑475/10 P Deutsche Post and Germany v Commission , paragraph 36).
The Court also held that the exercise of that right is not conditional on the position taken, at the time when the measure in question was adopted, by the institution or Member State bringing the action (see, to that effect Case 166/78 Italy v Council , paragraph 6, and Commission v Parliament and Council, paragraph 28).
The Court reiterated that he adoption of rules essential to the subject-matter envisaged is reserved to the legislature of the European Union (see, to that effect Case C-104/97 P Atlanta v European Community  ; and C-356/97 Molkereigenossenschaft Wiedergeltingen  ). The essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated (see, to that effect, Case C-156/93 Parliament v Commission ; Case C-48/98 Söhl & Söhlke  ; and Case C-133/06 Parliament v Council  ).
The Court found that although, in accordance with recital 7a of the second ‘comitology’ decision, the regulatory procedure with scrutiny enables the Parliament to scrutinise a measure before it was adopted, that procedure could not be a substitute for review by the Court. Thus, the fact that the Parliament did not oppose the adoption of a measure in the course of such a procedure could not render inadmissible an action for annulment calling in question the lawfulness of the measure thereby adopted.
It followed from that the action for annulment was declared to be admissible.
As regards the introduction of new essential elements into the SBC, the Parliament submits that Parts I and II to the Annex of the contested decision lay down measures which cannot be considered to be within the scope of border surveillance as defined by the SBC or to be a non‑essential element of that code.
The Council contends that the European Union legislature took the view that the border checks were the essential element of external border control that it extensively regulated.
The Court pointed out that that the enabling provision at issue in the present case – Article 12(5) of the SBC – provided that ‘Additional measures governing surveillance [may be adopted] … designed to amend non‑essential elements of [the SBC] by supplementing it’.
The Court essentially held that provisions which, in order to be adopted, required political choices falling within the responsibilities of the European Union legislature could not be delegated.It followed from this that implementing measures could not amend essential elements of basic legislation or supplement it by new essential elements.
The Court furthermore held that ascertaining which elements of a matter must be categorised as essential was not – contrary to what the Council and the Commission claimed – for the assessment of the European Union legislature alone, but must be based on objective factors amenable to judicial review.
The Court held that the contested decision must be annulled in its entirety because it contained essential elements of the surveillance of the sea external borders of the Member States which went beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.