ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April in which he recommended that the European Court of Justice annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex (Sea Borders Rule). The Advocate General’s recommendation, issued in the case of the European Parliament v Council of the EU, Case C-355/10, will be considered by the ECJ in the coming weeks. The case was filed by the European Parliament on 12 July 2010. A hearing was conducted on 25 January 2012.
The Advocate General’s recommendation is based primarily on the conclusion that the Council adopted the Frontex Sea Borders Rule by invoking a procedure which may only be used to amend “non-essential elements” of the Schengen Borders Code. The Advocate General concluded that rather than amending “non-essential elements” of the SBC, the Council Decision introduces “new essential elements” into the SBC and amends the Frontex Regulation. The recommendation calls for the effects of the Sea Borders Rule to be maintained until a new act can be adopted in accordance with ordinary legislative procedures.
[UPDATE:] Paragraph 64 of the Recommendation explains why the Commission likely sought to implement the Sea Borders Rule through the committee mechanism rather than by pursuing ordinary legislative procedures:
“64. Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (Ftnt 53)
Ftnt 53 – Moreover, it would seem that it is precisely a difference of opinion and the impasse created by it which led to the Commission’s choosing to act through the committee mechanism under Article 12(5) of the SBC rather than the ordinary legislative procedure, as is clear also from the letter from Commissioner Malmström annexed to the reply. These differences persist. The provisions of the contested decision concerning search and rescue, for example, have not been applied in Frontex operations launched after the entry into force of the contested decision on account of opposition from Malta.”
While this case presents a procedural question and does not involve a review of any of the substantive provisions of the Sea Borders Rule, the Advocate General’s statement in Paragraph 64 that “the applicability of the principle of non-refoulement in international waters” is a “controversial” position is wrong. Perhaps the position is still controversial in some circles, but legally, with the important exception expressed by the US Supreme Court, it is clear that non-refoulement obligations apply to actions taken in international waters.
Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.
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Extensive Excerpts from the Advocate General’s Recommendation:
“1. In the present proceedings, the European Parliament requests the Court to annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code (2) 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 (‘the contested decision’). (3) If the action should be upheld, Parliament requests that the effects of the contested decision be maintained until it shall have been replaced.
9. The contested decision was adopted on the basis of Article 12(5) of the SBC, in accordance with the procedure provided for in Article 5a(4) of the comitology decision … [***]
10. According to recitals (2) and (11) of the contested decision, its principal objective is the adoption of additional rules for the surveillance of the sea borders by border guards operating under the coordination of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’ or ‘Frontex’), established by Regulation 2007/2004 (‘the Frontex Regulation’). (9) It consists of two articles and an annex divided into two parts entitled ‘Rules for sea border operations coordinated by the Agency’ and ‘Guidelines for search and rescue situations and for disembarkation in the context of sea border operations coordinated by the Agency’. Under Article 1, ‘[t]he surveillance of the sea external borders in the context of the operational cooperation between Member States coordinated by the … Agency … shall be governed by the rules laid down in Part I to the Annex. Those rules and the non-binding guidelines laid down in Part II to the Annex shall form part of the operational plan drawn up for each operation coordinated by the Agency.’
11. Point 1 of Part I to the Annex lays down certain general principles intended, inter alia, to guarantee that maritime surveillance operations are conducted in accordance with fundamental rights and the principle of non-refoulement. Point 2 contains detailed provisions on interception and lists the measures that may be taken in the course of the surveillance operation ‘against ships or other sea craft with regard to which there are reasonable grounds for suspecting that they carry persons intending to circumvent the checks at border crossing points’ (point 2.4). The conditions for taking such measures vary depending on whether the interception takes place in the territorial waters and contiguous zone of a Member State (point 2.5.1) or on the high seas (point 2.5.2). Point 1 of Part II to the Annex lays down provisions on units participating in the surveillance operation in search and rescue situations, including with regard to communicating and forwarding information to the rescue coordination centre responsible for the area in question and the coordination centre of the operation, and defines certain conditions for the existence of an emergency (point 1.4). Point 2 lays down guidelines on the modalities for the disembarkation of the persons intercepted or rescued.
II – Procedure before the Court and forms of order sought
12. By act lodged at the Registry of the Court of Justice on 12 July 2010, the Parliament brought the action which forms the subject-matter of the present proceedings. The Commission intervened in support of the Council. At the hearing of 25 January 2012, the agents of the three institutions presented oral argument.
13. The Parliament claims that the Court should annul the contested decision, rule that the effects thereof be maintained until it is replaced, and order the Council to pay the costs.
14. The Council contends that the Court should dismiss the application as inadmissible or, in the alternative, as unfounded and order the Parliament to pay the costs.
15. The Commission requests the Court to dismiss the application and order the Parliament to pay the costs.
III – Application
A – Admissibility
23. For all the reasons set out above, the application must, in my view, be declared admissible.
B – Substance
24. The Parliament considers that the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC and therefore falls outside the ambit of its legal basis. In that context it raises three complaints. Firstly, the contested decision introduces new essential elements into the SBC. Secondly, it alters essential elements of the SBC. Thirdly, it interferes with the system created by the Frontex Regulation. These complaints are examined separately below.
3. First complaint, alleging that the contested decision introduces new essential elements into the SBC
61. Given both the sphere of which the legislation in question forms part and the objectives and general scheme of the SBC, in which surveillance is a fundamental component of border control policy, and notwithstanding the latitude left to the Commission by Article 12(5), I consider that strong measures such as those listed in point 2.4 of the annex to the contested decision, in particular those in subparagraphs (b), (d), (f) and g), and the provisions on disembarkation contained in Part II to that annex, govern essential elements of external maritime border surveillance. These measures entail options likely to affect individuals’ personal freedoms and fundamental rights (for example, searches, apprehension, seizure of the vessel, etc.), the opportunity those individuals have of relying on and obtaining in the Union the protection they may be entitled to enjoy under international law (this is true of the rules on disembarkation in the absence of precise indications on how the authorities are to take account of the individual situation of those on board the intercepted vessel), (47) and also the relations between the Union or the Member States participating in the surveillance operation and the third countries involved in that operation.
62. In my view, a similar approach is necessary with regard to the provisions of the contested decision governing interception of vessels on the high seas. On the one hand, those provisions expressly authorise the adoption of the measures mentioned in the preceding paragraph in international waters, an option which, in the context described above, is essential in nature, irrespective of whether or not the Parliament’s argument is well founded, that the geographical scope of the SBC, with regard to maritime borders, is restricted to the external limit of the Member State’s territorial waters or the contiguous zone, and does not extend to the high seas. (48) On the other hand, those provisions, intended to ensure the uniform application of relevant international law in the context of maritime border surveillance operations, (49) even if they do not create obligations for the Member States participating in those operations or confer powers on them, other than those that may be deduced from that legislation, do bind them to a particular interpretation of those obligations and powers, thereby potentially bringing their international responsibility into play. (50)
63. Two further observations militate in favour of the conclusions reached above.
64. Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (53)
65. Secondly, a comparison with the rules on border checks contained in the SBC shows that the definition of the practical arrangements for carrying out those checks, in so far as they concern aspects comparable, mutatis mutandis, to those governed by the contested decision, was reserved to the legislature, and this is so notwithstanding the fact that the Commission expressed a different opinion in the proposal for a regulation. (54)
66. In the light of all the preceding provisions, I consider that the contested decision governs essential elements of the basic legislation within the meaning of the case-law set out in points 26 to 29 of this Opinion.
67. Therefore, the Parliament’s first complaint must, in my opinion, be upheld.
4. Second complaint, alleging that the contested decision alters essential elements of the SBC
68. In its second complaint, the Parliament claims that, by providing that border guards may order the intercepted vessel to change its course towards a destination outside territorial waters and conduct it or the persons on board to a third country [point 2.4(e) and (f) of Part I to the annex], the contested decision alters an essential element of the SBC, that is to say, the principle set out in Article 13, under which ‘[e]ntry may only be refused by a substantiated decision stating the precise reasons for the refusal.’
69. The Parliament’s argument is based on the premise that Article 13 is applicable to border surveillance too. This interpretation is opposed by both the Council and the Commission, which consider that the obligation to adopt a measure for which reasons are stated pursuant to that provision exists only when a person who has duly presented himself at a border crossing point and been subject to the checks provided for in the SBC has been refused entry into the territory of Union.
70. The Parliament’s complaint must, in my view, be rejected, with no need to give a ruling, as to the substance, on the delicate question of the scope of Article 13 SBC on which the Court will, in all likelihood, be called to rule in the future.
5. Third complaint, alleging that the contested decision amends the Frontex Regulation
82. However, the fact remains that Article 1 of the contested decision substantially reduces the latitude of the requesting Member State and, consequently, that of the Agency, potentially interfering significantly with its functioning. An example of this is provided by the events connected with the Frontex intervention requested by Malta in March 2011 in the context of the Libyan crisis. The request by Malta, inter alia, not to integrate into the operational plan the guidelines contained in Part II to the annex to the contested decision met with opposition from various Member States and involved long negotiations between the Agency and the Maltese Government which prevented the operation from being launched. (62)
83. In actual fact, the annex to the contested decision as a whole, including the non-binding guidelines – whose mandatory force, given the wording of Article 1, it is difficult to contest – (63) is perceived as forming part of the Community measures relating to management of external borders whose application the Agency is required to facilitate and render more effective under Article 1(2) of the Frontex Regulation. (64)
84. Furthermore, the non-binding guidelines contained in Part II to the annex to the contested decision relating to search and rescue situations govern aspects of the operation that do not fall within Frontex’s duties. As the Commission itself points out in the proposal on the basis of which the contested decision was adopted, Frontex is not an SAR agency (65) and ‘the fact that most of the maritime operations coordinated by it turn into search and rescue operations removes them from the scope of Frontex’. (66) The same is true with regard to the rules on disembarkation. None the less, the contested decision provides for those guidelines to be incorporated into the operational plan.
85. On the basis of the foregoing considerations, I consider that, by regulating aspects relating to operational cooperation between Member States in the field of management of the Union’s external borders that fall within the scope of the Frontex Regulation and, in any event, by laying down rules that interfere with the functioning of the Agency established by that regulation, the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC.
C – Conclusions reached on the application
89. In the light of the foregoing, the action must, in my view, be allowed and the contested decision annulled.
IV – Parliament’s request that the effects of the contested decision be maintained
90. The Parliament requests the Court, should it order the annulment of the contested decision, to maintain the effects thereof until a new act be adopted, pursuant to the power conferred on it by the second paragraph of Article 264 TFEU. That provision, under which ‘the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive’ has also been used to maintain temporarily all the effects of such an act pending its replacement. (68)
91. In the present case, annulment pure and simple of the contested decision would deprive the Union of an important legal instrument for coordinating joint action by the Member States in the field of managing surveillance of the Union’s maritime borders, and for making that surveillance more in keeping with human rights and the rules for the protection of refugees.
92. For the reasons set out, I consider that the Parliament’s application should be granted and the effects of the contested decision maintained until an act adopted in accordance with the ordinary legislative procedure shall have been adopted.
Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.
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