Opinion of the Advocate General — ECLI:EU:C:2015:304
Date: 2015-05-07
Language of the case: English
Subject matter: Area of freedom, security and justice
Procedure: Action for annulment - unfounded

Summary — Judgment of the Court (Grand Chamber), 16 July 2015 1. Judicial proceedings — Introduction of new pleas during the proceedings — Amplification of a plea made earlier — Admissibility (Rules of Procedure of the Court of Justice, Art. 127(1)) 2. EU institutions — Exercise of powers — Conferral on the Commission of the power to adopt delegated acts or implementing acts — Discretion of the EU legislature — Limits — Conditions laid down in Articles 290 TFEU and 291 TFEU (Arts 290 TFEU and 291 TFEU) 3. EU institutions — Exercise of powers — Conferral on the Commission of the power to adopt delegated acts — Amendment of a legislative act — Scope – Regulation No 539/2001 — Reintroduction of a visa requirement for nationals of a previously exempted third country — Insertion of a footnote in the annex to the regulation stating that the exemption from the visa requirement is suspended — Included (Arts 290(1) TFEU and 291(2) TFEU; Council Regulation No 539/2001, Arts 1(2) and 4(f), and Annexes I and II) 1. See the text of the decision. (see para. 13) 2. The EU legislature has discretion when it decides to confer on the Commission a delegated power pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU. However, that discretion must be exercised in compliance with the conditions laid down in Articles 290 TFEU and 291 TFEU. With respect to the conferral of a delegated power, Article 290(1) TFEU states that a legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. However, in the exercise of the implementing power conferred on it, the institution concerned must provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all the Member States. In exercising an implementing power, the Commission may neither amend nor supplement the legislative act, even as to its non-essential elements. Neither the existence nor the extent of the discretion conferred on it by the legislative act is relevant for determining whether the act to be adopted by the Commission comes under Article 290 TFEU or Article 291 TFEU. It follows from the wording of Article 290(1) TFEU that the lawfulness of the EU legislature’s choice to confer a delegated power on the Commission depends solely on whether the acts the Commission is to adopt on the basis of the conferral are of general application and whether they supplement or amend non-essential elements of the legislative act. (see paras 28-32) 3. The EU legislature conferred on the Commission the power to amend, within the meaning of Article 290(1) TFEU, Annex II to Regulation No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. That amendment may be made only in the exercise of a delegated power within the meaning of Article 290(1) TFEU and not an implementing power within the meaning of Article 291(2) TFEU. An act adopted on the basis of Article 1(4)(f) of Regulation No 539/2001, as amended by Regulation No 1289/2013, has the effect of reintroducing for a period of 12 or 18 months a visa obligation for all nationals of a third country listed in Annex II to that regulation for stays which, in accordance with Article 1(2) of that regulation, are exempt from that obligation. For all those nationals, the act adopted on the basis of Article 1(4)(f) of that regulation thus has the effect of amending, if only temporarily, the normative content of the legislative act in question. Apart from their temporary nature, the effects of the act adopted on the basis of that provision are identical in all respects with those of a formal transfer of the reference to the third country concerned from Annex II of the regulation to Annex I thereof. The insertion in Annex II to that regulation of a footnote next to the name of the third country concerned, provided for by that provision, demonstrates the intention of the EU legislature to insert the act adopted on the basis of that provision in the actual body of Regulation No 539/2001. (see paras 31, 37, 42-44, 46)