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 [1996] 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 [1987]; Case C‑378/00 Commission v Parliament and Council [2003], paragraph 28; Case C-370/07 Commission v Council [2009] paragraph 16; and Joined Cases C-463/10 P and C‑475/10 P Deutsche Post and Germany v Commission [2011], 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 [1979], 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 [1999] ; and C-356/97 Molkereigenossenschaft Wiedergeltingen [2000] ). 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 [1995]; Case C-48/98 Söhl & Söhlke [1999] ; and Case C-133/06 Parliament v Council [2008] ).
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.
