Court of Justice 27-04-2004 ECLI:EU:C:2004:226

The Council's reservation of implementing powers

As Community law currently stands, two provisions of the EC Treaty concern the conferral of implementing powers in the Community context, namely Articles 202 EC and 211 EC.

Section 2 of the part of the Treaty governing the institutions, entitled ‘The Council’, provides at the third indent of Article 202 EC:

‘To ensure that the objectives set out in this Treaty are attained the Council shall, in accordance with the provisions of this Treaty:

...

• confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the Opinion of the European Parliament.’

Section 3 of the part of the Treaty governing the institutions, which is entitled ‘the Commission’, provides at Article 211 EC, fourth indent:

‘In order to ensure the proper functioning and development of the common market, the Commission shall:

...

• exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter.’

In addition, Council Decision 1999/468/EC lays down the procedures for the exercise of implementing powers conferred on the Commission^(*) (‘the second comitology decision’).

The first subparagraph of Article 1 of the decision provides that: ‘[o]ther than in specific and substantiated cases where the basic instrument reserves to the Council the right to exercise directly certain implementing powers itself, such powers shall be conferred on the Commission in accordance with the relevant provisions in the basic instrument. These provisions shall stipulate the essential elements of the powers thus conferred.’

The relevant area: Title IV of the Treaty

The contested regulations were adopted on the basis of certain provisions of Title IV of the Treaty, entitled ‘Visas, asylum, immigration and other policies related to free movement of persons’. This new title brings together various provisions already found in the EC Treaty^(*) and also brings within the framework of the Community areas which were previously subject to the intergovernmental method.

The Schengen Agreement and its implementing Convention,^(*) signed on 19 June 1990 (‘the CISA’), enabled five Member States to instigate the actual abolition of checks at the European Community's internal borders, as had been advocated by the Commission in its. White Paper on Completion of the Internal Market.^(*) So the Schengen Agreement and the CISA followed bilateral and multilateral initiatives between those Member States in that regard.

Chapters 2 and 3 of Title II of the CISA set out the main rules concerning the crossing of external borders and visas respectively. The practical procedures for the application of those rules are laid down, as regards border checks, in the Common Manual^(*) (‘the CM’) and, as regards visas, in the Common Consular Instructions on visas for the diplomatic missions and consular posts^(*) (‘the CCI’). Those documents must be regularly updated by the Executive Committee^(*) because they are in the nature of day-to-day operational instructions intended for officials.

Article 2(1) of the Protocol integrating the Schengen acquis^(*) into the framework of the European Union^(*) provides, first, that the CISA, including the decisions of the Executive Committee, are to apply to the 13 Member States referred to in Article 1 of the Protocol from the date of entry into force of the Treaty of Amsterdam^(*) and, second, that the Council will substitute itself for the Executive Committee in the exercise of its functions.

Following this incorporation of a part of the Schengen acquis into the Community framework, Decision 1999/436/EC^(*) incorporated the CM and the CCI as well as all the Executive Committee's decisions relating thereto into the Community framework.^(*) The legal basis for the Decision of the Executive Committee on the definitive versions of the CM and the CCI and the annexes thereto was determined to be Articles 62 EC and 63 EC.^(*) Amendment and updating of those documents were from then on to be carried out in conformity with the procedures provided for by Community law.

It was specifically in order to provide a framework for amendments to the CM and the CCI and the annexes thereto that the Council adopted the contested regulations. Article 62(2) and (3) EC,^(*) and Article 62(2) (a) and (b) EC and Article 67(1) EC,^(*) constitute the legal basis for those regulations.

Article 62 EC provides:

‘The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

1. measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;

2. measures on the crossing of the external borders of the Member States which shall establish:

   1. standards and procedures to be followed by Member States in carrying out checks on persons at such borders;

   2. rules on visas for intended stays of no more than three months, including:

      1. the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;

      2. the procedures and conditions for issuing visas by Member States;

      3. a uniform format for visas;

      4. rules on a uniform visa;

3. measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States during a period of no more than three months.’

Article 67 EC provides:

During a transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council shall act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament.

After this period of five years:

• the Council shall act on proposals from the Commission; the Commission shall examine any request made by a Member State that it submit a proposal to the Council,

• the Council, acting unanimously after consulting the European Parliament, shall take a decision with a view to providing for all or parts of the areas covered by this Title to be governed by the procedure referred to in Article 251 and adapting the provisions relating to the powers of the Court of Justice.

By derogation from paragraphs 1 and 2, measures referred to in Article 62(2)(b)(i) and (iii) shall, from the entry into force of the Treaty of Amsterdam, be adopted by the Council acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament.

By derogation from paragraph 2, measures referred to in Article 62(2)(b)(ii) and (iv) shall, after a period of five years following the entry into force of the Treaty of Amsterdam, be adopted by the Council acting in accordance with the procedure referred to in Article 251.’

The contested regulations

The purpose of Regulation No 789/2001 is to reserve implementing powers to the Council for the purpose of amending and updating certain provisions of the CCI and the annexes thereto. Recital 6 in the preamble to the regulation refers to Article 17 of the CISA^(*) under which certain amendments to the CCI require the Executive Committee to adopt implementing decisions. It also states that, since the Council has substituted itself for the Executive Committee and since the institutional rules are henceforth to apply to the CCI and the CM, it is appropriate to determine the Community procedure for adopting those decisions.

Recital 8 in the preamble to Regulation No 789/2001 explains the reasons why implementing powers should be reserved to the Council in the area of visa applications:

‘Since the Member States have an enhanced role in respect of the development of visa policy, reflecting the sensitivity of this area, in particular involving political relations with third countries, the Council reserves the right, during the transitional period of five years referred to in Article 67(1) of the Treaty, to adopt, amend and update the detailed provisions and practical procedures referred to above by unanimity, pending a review by the Council of the conditions under which such implementing powers would be conferred on the Commission after the end of that transitional period.’

Article 1 of Regulation No 789/2001 lists the provisions of the CCI and the annexes thereto which the Council may accordingly amend, acting unanimously.

The regulation also establishes, in Article 2, a procedure by which the Member States are to communicate to the Secretary-General of the Council such amendments as they wish to make to certain parts of the annexes to the CCI.

Finally, those elements of the CCI and the annexes thereto which are not subject to amendment by one of the procedures provided for in Regulation No 789/2001 are to be amended in accordance with Title IV of the Treaty, in particular with Articles 62(2) and (3) EC and 67 EC.

The purpose of Regulation No 790/2001, which is identical in structure to Regulation No 789/2001, is to reserve implementing powers to the Council for the purpose of amending and updating certain provisions of the CM and the annexes thereto. Recital 3 in the preamble thereto refers to Article 8 of the CISA,^(*) which sets out, as regards border checks, the procedures for amending and updating the CM and the annexes thereto.

Recital 5 in the preamble to Regulation No 790/2001 explains why implementing powers should be reserved to the Council in respect of border checks:

‘Since the Member States have an enhanced role in respect of the development of border policy, reflecting the sensitivity of this area, in particular involving political relations with third countries, the Council reserves the right, during the transitional period of five years referred to in Article 67(1) of the Treaty establishing the European Community, to adopt, amend and update the detailed provisions and practical procedures referred to above by unanimity, pending a review by the Council of the conditions under which such implementing powers would be conferred on the Commission after the end of this transitional period.’

Articles 1 and 2 of Regulation No 790/2001 specify the two types of procedure set out in Regulation No 789/2001 and indicate that the procedure in Title IV of the Treaty is to be used for all other amendments and updating of the various elements of the CM and the annexes thereto. Thus, Article 1 lists the provisions of the CM and the annexes thereto which may be amended by the Council acting unanimously. Article 2 of Regulation No 790/2001 establishes a procedure by which the Member States are to communicate to the Secretary-General of the Council such amendments as they wish to make to certain parts of the annexes to the CM.

Arguments of the parties

The Commission observes that in the normal course of events it exercises implementing powers and the Council may reserve to itself such powers only exceptionally and provided that it puts forward reasons demonstrating that there is a specific situation which justifies such reservation. The Council has not established such specificity and has provided a ‘generic’ statement of reasons, which is too general and could just as well cover any part or all of Title IV of the Treaty.^(*) Furthermore, the Council has provided no explanation either of the nature and content of the implementing powers with which the two contested regulations are concerned or of the consequent necessity for the Council to exercise those powers itself.

Considering more closely the various reasons put forward as justification by the Council, which it regards in this instance as unfounded, the Commission submits that it is difficult to know what is meant by the ‘enhanced role of the Member States’ in the preambles to the contested regulations. The only possible meaning, in its submission, is that in the context of the temporary exceptions to the Community method Title IV of the Treaty confers on Member States a right of initiative alongside that of the Commission. Such a meaning would not, however, encompass reservation of implementing powers by the Council.^(*)

Similarly, the Commission submits that the sensitivity of visa policy and border policy does not in any way amount to an adequate reason for the Council to reserve implementing powers to itself.^(*)

Finally, the Commission maintains that the Councils argument emphasising that the sensitivity involved is that of political relations with third countries is also unfounded. The Treaty confers an institutional role on the Commission in respect of such relations, particularly in commercial matters.^(*) Thus, certain aspects of visa policy had, with Article 100c of the Treaty, fallen within the Community framework since the Treaty on European Union, and the Council had already conferred implementing powers on the Commission, in particular in areas in which secrecy is an absolute rule.^(*)

The Netherlands Government supports the Commission s arguments and adds that it is not apparent why the decisions with which the contested regulations are concerned are so politically sensitive that they cannot be left to the Commission.^(*)

The Council, supported by the Kingdom of Spain, contends in essence that the reservation of implementing powers to itself was entirely proper and was adequately reasoned, in accordance with the requirements of Article 202 EC. The reservation of implementing powers concerns specifically amendments to certain ‘detailed provisions and practical procedures’ set out in the CCI and the CM and not to amendments of other aspects of visa policy or border policy.^(*) Thus, it is not correct to claim that the statement of reasons is generic.

The reasons which prompted the Council to reserve implementing powers to itself were explained in Recital 8 in the preamble to Regulation No 789/2001 and recital 5 in the preamble to Regulation No 790/2001. Those recitals state that the Member States have an enhanced role in respect of the development of visa policy and of border policy, which reflects the sensitivity of those areas, in particular where political relations with third countries are involved.

In the Council's submission, the sensitivity of the matters concerned by the amendments can easily be seen from the contents of the CCI and the CM and, by way of example, it cites the amendments in question in certain parts of the two documents. Thus, Part II of the CCI sets out criteria for determining the Member State responsible for deciding on visa applications. The Council contends that changes to such criteria could obviously have an impact on the burden shouldered by the various Member States in that regard.^(*) It continues with the example of the sensitivity of Part V of the CCI and, in particular, point 2.3, which sets out the procedure to be followed where an application for a visa cannot be dealt with only by the authorities of the Member State which has received the application, but must be subject to prior consultation with the central authorities of the other Member States.

Throughout the written procedure, the Council has stated repeatedly that the argument that visa policy and border policy involve ‘political relations with third countries’ does not require further justification. This reservation of implementing powers is thus, in its view, consistent with Article 202 EC and Article 1 of the second comitology decision, just as it is adequately reasoned. It is also limited in time to the transitional period of five years referred to in Title IV of the Treaty.

Assessment

It is common ground that as a general rule implementing powers are the preserve of the Commission and that those powers can also be applied in the context of the new Title IV of the Treaty. It is also common ground that the Council may exercise those powers in specific and substantiated cases.

In the present case, it is appropriate to examine the Council's decision to reserve implementing powers to itself under the contested regulations. To that end, I shall first identify the conditions on which the Council may exercise implementing powers. I shall then establish the extent of the Court's review of those conditions. Finally, I shall apply that to the reservation of implementing powers in this instance.

Costs

The Council must be ordered to pay the costs in accordance with Article 69(2) of the Rules of Procedure. Under Article 69(4) of the Rules of Procedure, the Kingdom of Spain and the Kingdom of the Netherlands, as interveners, must be ordered to bear their own costs.