Opinion of the Advocate General — ECLI:EU:C:2012:207
Date: 2012-04-17
Language of the case: English
Subject matter: Provisions governing the Institutions;Area of freedom, security and justice;Acts of the institutions;Border checks
Procedure: Action for annulment - successful

Summary — Judgment of the Court (Grand Chamber), 5 September 2012 1. Actions for annulment — Actions of the Member States, Parliament, the Council and the Commission — Admissibility not conditional upon establishing a legal interest in bringing proceedings (Art. 263, second para., TFEU) 2. Actions for annulment — European Parliament’s right of action — Position taken by the Parliament when the contested measure is adopted — No effect (Art. 263 TFEU; Council Decision 1999/468, as amended by Decision 2006/512, Art. 5a(4)(e)) 3. Acts of the institutions — Basic legislation and implementing legislation — Implementing legislation unable to amend or supplement the essential elements of basic legislation — Categorisation of the essential elements — Taking account of the characteristics and particularities of the domain concerned (Art. 290 TFEU) 4. Border controls, asylum and immigration — Community Code on movement across borders — Decision 2010/252 — Implementing measure — Measure containing provisions falling within the responsibility of the legislature — Annulment of that decision (European Parliament and Council Regulation No 562/2006, as amended by Regulation No 296/2008, Art. 12(5); Council Decision 2010/252) 5. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Maintenance of the effects of the decision until it is replaced within a reasonable time — Justification on grounds of legal certainty (Art. 264, second para., TFEU) 1. See the text of the decision. (see para. 37) 2. See the text of the decision. (see paras 38-40) 3. Since the adoption of rules essential to a matter of EU law is reserved to the legislature of the European Union, those rules must be laid down in the basic legislation and may not be delegated. Thus, provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature cannot be delegated. It follows from this that implementing measures cannot amend essential elements of basic legislation or supplement it by new essential elements. Ascertaining which elements of a matter must be categorised as essential is not for the assessment of the European Union legislature alone, but must be based on objective factors amenable to judicial review. In that connection, it is necessary to take account of the characteristics and particularities of the domain concerned. (see paras 64-68) 4. Decision 2010/252 — which supplements 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 — must be annulled, given that paragraph 2.4 of Part I to the annex to that decision, which lays down the measures which border guards may take against ships detected and persons on board, allows, inter alia, ships to be stopped, boarded, searched and seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to another Member State, and thus enforcement measures to be taken against persons and ships which could be subject to the sovereignty of the State whose flag they are flying. Since Decision 2010/252 is an implementing measure adopted on the basis of Article 12(5) of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as amended by Regulation No 296/2008, it cannot contain rules on the conferral of enforcement powers on border guards, as the adoption of such rules entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. In addition, those provisions on conferring powers of public authority on border guards mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required. (see paras 74, 76, 77, operative part 1) 5. See the text of the decision. (see paras 88-90)