CJEU - Case C‑44/14, Spain v. European Parliament and Council of the European Union

Facts:

The Kingdom of Spain sought annulment of Art. 19 of Eurosur Regulation (No  1052/2013) alleging that said article was contrary to Arts. 4 of the Schengen Protocol.

Notably, the Kingdom of Spain claimed that the possible association of Ireland and the UK with the Eurosur system by means of international agreements, as set out by art. 19 of the Regulation, was a form of participation in a Regulation that constitutes a development of the Schengen acquis.  Consequently, in Spain’s view, such association would amount to a circumvention of Art. 4 of the Schengen Protocol, since this latter renders participation in the acquis by the aforementioned Member States subject to precise procedural requirements, i.e. a unanimity Council decision.

Decision & reasoning:

Firstly, the Court recalled that Ireland and the UK are in a special situation in respect to the Schengen acquis, as pursuant to Art. 4 of the Schengen Protocol and to Council Decisions 2000/365 and 2002/192, these States only take part in certain provisions of the Schengen acquis, of which do not relate to .  the crossing of external borders. Therefore, in accordance with its previous case-law (United Kingdom v Council, C‑77/05), the Court concluded that Ireland and the UK may take part in measures that constitute a development of that area, such as the Eurosur Regulation, only by resorting to the procedures set forth in Art. 4 of the Schengen Protocol. Thus, any possible procedure that differed from that provided for  in  Article  4  of  the  Schengen  Protocol,  whether  in  the  direction  of  strengthening  or  easing  that procedure, would be invalid as in contrast with primary legislation (see also Parliament  v Council, C‑133/06, par. 56).

On the other hand, contrary to what is claimed by the Kingdom of Spain, the Court affirmed that Art. 19 of the Eurosur Regulation does not in fact allow those Member States to “take part” in provisions of the Schengen acquis.

In this respect, the Court firstly remarked that Art. 19 of the Eurosur Regulation does not allow international agreements which concern the full Regulation to extend to the out Member States. On the contrary, those agreements can only be stipulated for the purpose of exchanging some of the information gathered by the national coordination centres, excluding any direct relation between the out Member States and Frontex, and the application of provisions on operational coordination.

That said, the Court rejected the Spain’s allegation that even such a limited form of cooperation must be regarded as “taking part” within the meaning of art. 4 of the Schengen Protocol. In this respect, the Court asserted several arguments which take into account the wording, the context and the purpose of the said norm, respectively.

By interpreting Art. 4 literally, the Court inferred that this norm is applicable to cases where Ireland and the UK  ask to take part in some or all of the provisions of the Schengen acquis, but it is not applicable to hypothesis where those States ask  to restrict or adjust the application of the provisions they wish to take part in.

Taking the context into account and the preamble to the Protocol, which states that it is intended to allow Ireland  and  the  United  Kingdom  to ‘accept’ provisions of the Schengen acquis,  both suggest that  the procedure set out in Art. 4 only refers to the full acceptance of provisions of the acquis, and not to a limited cooperation mechanism. Indeed, the Court highlighted that Art. 7 of the Protocol explicitly uses the verb “accept” to indicate full acceptance (in relation to new Member States of the Union). Furthermore, the Court remarked that, according to Art. 331 of the TFEU, the moving from the status of a non-participating State to the status of a  participating State in a measure of enhanced cooperation (in  the framework  of  the  common  foreign  and  security  policy) requires the application of acts already adopted within the relevant framework. Applying this scheme to the Schengen Protocol, the Court concluded that Art. 4  is not applicable to the situation under analysis, where the Eurosur regulation remains inapplicable to Ireland and the UK (as clarified by recitals 20 and 21 of the Regulation).

Finally, from a teleological standpoint, the Court affirmed that the effectiveness of Art. 4 of the Protocol is not undermined by Art. 19 of the Eurosur Regulation, since the out States would not obtain rights comparable to those Member States fully participating in the acquis. On the contrary, a restrictive interpretation of Art. 4, preventing coordination with non participating Member State, could hinder the full implementation of the objectives of the Schengen acquis, for example by limiting the effectiveness of the surveillance of the external borders.

In light of the foregoing, the Court concluded that Art. 19 of the Eurosur Regulation cannot be regarded as allowing Ireland and the UK to take part in provisions of the Schengen acquis. Therefore, the said article cannot constitute a circumvention of Art. 4 of the Protocol.

Outcome:

The action was dismissed.

Observations/comments:

Ireland, the United Kingdom and the Commission were granted leave to intervene in support of the form of order sought by the Parliament and the Council.

The Court largely followed the Opinion delivered by Advocate General Wahl, who had made the distinction between actual participation in the acquis and more limited forms of cooperation.

For an analysis of the jurisprudential context of the decision, and for an assessment of its possible impact on the development of the Schengen acquis and its relationship with the out Member States, see ALBERTO MIGLIO, Schengen, Differentiated Integration and Copperation with the “Outs”, European Papers, 2016, Vol. 1, pp. 139-148. 

This case summary was written by Pietro Derossi, graduate in law at the University of Turin and former member of the Human Rights and Migration Law Clinic.

Other sources:

- European Union , Council Decision concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis ( Adopted on a 29 May 2000),  OJ L 131/43, Art. 1.

- European Union, Council Decision concerning Ireland's request to take part in some of the provisions of the Schengen acquis (Adopted on 28 February 2002), OJ L 64/20, Art. 1.

- European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the council establishing the European Border Surveillance System (Eurosur) (Adopted on 22 October 2013), OJ L 295/11, Recitals 16, 20, 21, Arts. 1, 4, 9, 14, 16, 19.

- European Union, Protocol on the Schengen acquis integrated into the framework of the European Union, ( Adopted on 16 December 2004), OJ C 310/348, Arts. 1, 4, 5, 7

-  Court’s Rules of Procedure, Arts. 138(1), 140(1)

- Articles Articles  327, 331 of the Treaty on the Functioning of the European Union