Tag Archives: Simon Busuttil

EU Court of Justice Advocate General Recommends Annulment of Frontex Sea Borders Rule

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.

Click here, here, and here for articles.

Click here for my last post on the case.

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.

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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

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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.

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3.      First complaint, alleging that the contested decision introduces new essential elements into the SBC

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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.

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5.      Third complaint, alleging that the contested decision amends the Frontex Regulation

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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.

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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.

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Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.

Click here, here, and here for articles.

Click here for previous post on topic.

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Frattini Criticises EU for Failure to Assist Italy; Frattini and MEPs Call for Implementation of Temporary Protection Directive and Mandatory Burden Sharing

Italian Foreign Minister Franco Frattini has again criticised what he describes as the EU’s and European Commission’s failure to assist Italy with the migrant situation in Lampedusa. Minister Frattini singled out Commissioner Malmström for his criticism.  A statement on the Italian Foreign Ministry web site says that “Italy continues to solicit Europe’s help in confronting the immigration emergency, not only in terms of economic aid but also in terms of a plan for the distribution of the refugees among Member States. ‘Europe has been totally inert in this period’, Minister Frattini asserted and, commenting on EU Home Affairs Commissioner Cecilia Malmström[‘s] observation that Italy had already received European funding for managing the influx, specified: ‘This is the typical expression of a European bureaucracy that thinks money alone solves everything’, but it is not enough, ‘there need to be policy interventions’. …[I]n addition to funds it is necessary to ‘invoke a European law clearly establishing the adoption of an extraordinary plan with any sudden influx of refugees toward one or more Member States, which includes the distribution of the refugees among Members within the temporary timeframe necessary to repatriate those who are not refugees, as in the case of the Tunisians, who are simply economic immigrants’.”

MEPs Simon Busuttil (Malta) and Salvatore Iacolino (IT) issued a press release calling on the Commission “to activate the Solidarity Mechanism envisaged in EU law in cases of mass influx of displaced persons. … ‘EU law already provides for a solidarity mechanism that can be triggered in the event of a mass influx of displaced persons (Council Directive 2001-55-EC)’ [and ‘we call upon the Commission to activate it’] Busuttil and Iacolino said.”

Click here for Italian Foreign Ministry statement.

Click here for MEPs Busuttil and Iacolino press release.

Click here for link to Temporary Protection Directive.

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Update from Today’s LIBE Committee’s Discussions re Central Mediterranean

The Hungarian Presidency and LIBE have released summaries regarding today’s LIBE Committee meeting.  Here are some points from the two summaries:

  • Commissioner Malmström emphasized that, so far, migrants had not started coming to Europe from Libya, but the EU had to prepare for this possibility;
  • Frontex Director Laitinen made it clear that the region should not be seen as a whole, but as separate countries with separate problems;
  • Laitinen underlined that from Tunisia only economic migration could be seen so far, but for the moment, as Tunisian authorities have regained control of the migration flow, this had stopped, as well. Since 26 February, no migrants had arrived to Lampedusa.
  • Laitinen also stressed that Italy was not the only entry point for migrants from North-Africa. Greece should not be forgotten in this context.  Low-cost flights from North-Africa to Istanbul were operating, bringing many migrants who then were trying to enter the Schengen area through the Greek-Turkish border;
  • Laitinen said that the possibility of extending Hermes to address Malta’s needs was being examined. More money and staff might be needed if the current emergency persists;
  • MEPs urged Member States to accelerate work on the “asylum package” and stressed the need for solidarity as regards relocating migrants;
  • Malmström said that most of the current migration from Tunisia to Lampedusa appears to be for economic reasons;
  • Malmström said that “Frontex and Member States may not push away people in need of international protection”;
  • MEP Simon Busuttil (EPP, MT) said the three main priorities in Libya are halting violence, sending humanitarian aid and planning for a possible immigration emergency. “What if a mass influx turns into Europe, is there a plan in the drawer to be pull out if this happens?” “Member States show no appetite for relocation.”

Click here and here for the two articles.

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Frontex Begins Consultations for Emergency Joint Operation –2010 Frontex Sea Border Rule Should Govern Joint Operation

The European Voice reports that Frontex began consultations yesterday with member states to identify what equipment and personnel they will commit to a planned joint operation with Italy to deter migrants seeking to leave North Africa. “Naval vessels, surveillance aircraft and enhanced radar tracking are likely to be deployed….”

Assuming an emergency joint operation is deployed in the coming days, it may to some extent simply be a revival of Frontex’s Joint Operation Nautilus (slated to be renamed Operation Chronos).  Less than two weeks ago, on 4 February Malta for the second year running announced that it would not host or participate in Operation Nautilus this year due to the success of Italy’s push-back agreement with Libya which eliminated the movement of migrants in the Central Mediterranean.

Malta, however, also likely refused to host the Frontex mission due to the 2010 guidelines governing Frontex enforcement operations at sea which require that intercepted migrants be taken to the country hosting the Frontex mission under certain circumstances.  The validity of the Frontex sea border rule is currently under review by the European Court of Justice.  The legal challenge to the rule was brought by the European Parliament.  Maltese MEP Simon Busuttil initiated the challenge within the LIBE Committee.  It will be interesting to see what role Malta will be willing to play in any new emergency joint operation.  Even though the Frontex sea border rule is under review by the ECJ, the referral clearly requested the ECJ “to preserve the effects of the measure until a new legislative act has been adopted.”  The rule therefore remains in effect.

Click here for EV article.

Click here for the Council decision on the surveillance of  sea external borders (the Sea Border Rule).

Click here, here, here, here, and here for previous posts on the sea border rule and the ECJ challenge.

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EP Refers Frontex Sea Borders Rule to ECJ

On 23 June the JURI committee (Committee on Legal Affairs) voted in camera to refer the question of the validity of the Frontex rule regarding the surveillance of the sea external borders to the European Court of Justice (Council Decision 2010/252/EU (“Frontex / Sea borders”)).  The referral requests the Court “to preserve the effects of the measure until a new legislative act has been adopted.”

Maltese MEP Simon Busuttil, the EPP Coordinator in the Civil Liberties Committee, was quoted as saying: “we have given notice to the Commission that not all is fine with these Frontex guidelines and it is time for a rethink. We want to ensure that Parliament’s role is defended and that we can have our say. We want these rules to be fair. In their current version they are not.”

Both the LIBE and JURI committees believe that the European Commission exceeded its power when it presented the new Frontex rule under the comitology procedure as opposed to using the ordinary legislative procedure which would have given the Parliament the ability to amend the rule.  Malta has strongly objected to provisions within the rule.  Malta has said that its decision not to host Frontex’s Central Mediterranean enforcement operation this year, Operation Chronos, was due to the disembarkation provisions contained in the new Frontex rule.  Malta believes that the rule would require intercepted migrants to be taken to Malta.

Click here for article.

Click here for statement on MEP Simon Busuttil’s web site.

Click here for EPP Group press release.

Click here and here for earlier posts.

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Maltese MEP Appointed EP Rapporteur on Review of the Frontex Regulation

The Malta Independent reports that Maltese MEP Simon Busuttil has been appointed the European Parliament’s rapporteur on the review of the law establishing the Frontex agency.  “As a rapporteur, Dr Busuttil will draw up the position of the European Parliament, including amendments to the proposal of the European Commission to change the agency’s legal framework. The changes must be agreed by the European Parliament and the Council of Ministers.”

MEP Busuttil is quoted as saying: “If we want an internal EU area without borders then we should share the responsibility of protecting our external borders. Co-ordination of our air, land and sea borders must improve.”  “In Malta we know that Frontex has not performed up to our expectations and I am keen to use the Maltese experience in order to improve the agency where it did not work well.” “Nevertheless, I am mindful of the fact that this agency is not there just for the Mediterranean but for all of Europe and for all of Europe’s borders, including its air and land borders. I will therefore be taking a holistic approach.”

Click here for article.

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LIBE Considering Legal Challenge to Council and Commission Over New Frontex Guidelines

Times of Malta reported on Monday that Maltese MEP and LIBE Committee member, Simon Busuttil, who is the EPP coordinator on LIBE, has received a positive legal response to his question regarding whether sufficient grounds exist to bring a legal challenge against the Council and the Commission in regard to the recently approved Frontex sea operation Guidelines.  This report follows by a few days Commissioner  Malmström’s first visit to Malta and the reaffirmation by Malta that it will not host Frontex’s Operation Chronos.

The Times of Malta states that “The EP’s legal unit advised there were enough grounds to take the EU Council and European Commission to court on the basis that the rules exceed the two institutions’ powers under the EU Treaties.”  MEP Busuttil was quoted as saying “I have already gone on record saying that I will not let this one go and this legal advice opens the way to court proceedings to invalidate these rules. I am reasonably confident that the European Parliament has a good case and the European Commission would do well to take this possibility into account and start thinking about Plan B.”

Click here for article.

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