Opinion of the Advocate General — ECLI:EU:C:2010:366
Date: 2010-06-24
Language of the case: English
Subject matter: Area of freedom, security and justice;Border checks;Closer cooperation
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of the parties’ arguments, the United Kingdom insists that the use of a legal basis in Title VI EU means that the contested decision does not constitute a development of the Schengen acquis in the sphere of visas but rather a police cooperation measure in which the United Kingdom ought, in consequence, to have been allowed to take part. 82. In substance, the argument set out in the previous paragraph starts from the idea that there is an incompatibility between basing a decision on Title VI EU and classifying it as a development of the Schengen acquis in the sphere of visas. 83. It must, however, be borne in mind that the Schengen acquis also includes measures concerning police cooperation. (23) It is true that the United Kingdom participates, at least in part, in that sector of Schengen cooperation, unlike the situation with regard to visas: (24) that shows, however, that a police cooperation measure may in itself fall within the ambit of Schengen cooperation, and that there is no impediment in principle to classifying a measure based on Title VI EU as falling within the Schengen acquis. 84. The fact that the legal basis of the contested decision is formed by Articles 30 EU and 34 EU does not, therefore, mean that the decision itself cannot be a development of the Schengen acquis. 85. However, what the United Kingdom denies is that the contested decision can be regarded as a development of the Schengen acquis in the sphere of visas, rather than of the Schengen acquis in general. In this connection, however, I would note that, having regard to my observations above, the fact that the aim of the measure is a ‘police’ aim does not alter the fact that, from the point of view of its content, this is in essence a decision relating to the procedure for operating the VIS. 86. In addition, it is to be recalled that the United Kingdom does not automatically play a part even in the Schengen measures concerning police cooperation. Its participation is confined to those situations in which it is expressly provided for. 87. As a result, I take the view that the choice made by the Council in considering the contested decision to be at one and the same time a measure developing the Schengen acquis in the sphere of visas and an act based on Title VI of the EU Treaty was correct, if unusual. The contested decision is a measure falling within the ambit of Schengen cooperation, and whose legal basis is formed by the rules of the European Union governing police cooperation. Nevertheless, because the contested decision is an act that concerns the operation of the VIS, it was adopted by the ‘VIS countries’. The United Kingdom’s action must therefore, in my opinion, be dismissed. 88. To conclude, I should wish to stress an important factor, which is the quite special nature of this case. Dismissal of the United Kingdom’s action by the Court would by no means entail calling in question the importance of the part played by the legal basis in the field of European Union law. It is clear that, as a matter of principle, it is the indication of the legal basis of an act that determines the procedure by which it is to be adopted. It has, however, to be considered that enhanced Schengen cooperation constitutes a sort of parallel body of rules in European Union law. The rules of law of the European Union are still applicable within the ambit of Schengen cooperation, the only limit (which operated in the present case) stemming from the fact that, in certain situations, the number of States taking part in decisions is not typical of the ‘ordinary’ acts of the European Union. VI – Conclusion 89. Having regard to the foregoing considerations, I therefore propose that the Court should: – dismiss the application; – order the United Kingdom to pay the costs; – order the Commission and the Kingdom of Spain to bear their own costs. 1 – Original language: Italian. 2 – OJ 2008 L 218, p. 129. 3 – Protocol (No 2) integrating the Schengen acquis into the framework of the European Union. With the entry into force of the Treaty of Lisbon, the Schengen Protocol, now No 19, was slightly amended. Nevertheless, the version to be referred to in this case is the earlier version. 4 – Council Decision 2000/365/EC of 29 May 2000 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 (OJ 2000 L 131, p. 43). 5 – The United Kingdom, as that Member State notes in its written observations, takes part in much of the Schengen acquis in fields relating to police or security, but does not take part in anything concerning the abolition of internal frontiers or freedom of movement for persons. 6 – Council Decision 2004/512/EC of 8 June 2004 establishing the Visa Information System (VIS) (OJ 2004 L 213, p. 5). 7 – The corresponding provision is now Article 74 TFEU. 8 – Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ 2008 L 218, p. 60). 9 – With the entry into force of the Treaty of Lisbon, those provisions were repealed, and the sphere of police cooperation was transferred to the TFEU, where it forms part of the same Title (Title V of Part Three) as the rules on which closer cooperation with regard to visas is based. This new position opens interesting perspectives, which were also referred to at the hearing: if the decision were to be adopted today, the Council maintained, it could be based on a different legal basis. Such observations are, however, irrelevant to the resolution of this dispute. 10 – Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ 2006 L 386, p. 89). 11 – Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363, paragraphs 105‑106 and case-law cited. 12 – Case C‑77/05 United Kingdom v Council [2007] ECR I‑11459, paragraph 62, and Case C‑137/05 United Kingdom v Council [2007] ECR I‑11593, paragraph 50. 13 – Case C‑77/05 United Kingdom v Council, cited at footnote 12, above (paragraph 77). Here the Court cited several ‘classic’ cases concerning the choice of legal basis: Case C‑300/89 Commission v Council [1991] ECR I‑2867 (‘Titanium dioxide’), paragraph 10; Case C‑176/03 Commission v Council [2005] ECR I‑7879, paragraph 45; and Case C‑440/05 Commission v Council [2007] ECR I‑9097, paragraph 61. 14 – As we have seen, such a system already existed, introduced by Decision 2006/960 (footnote 10 above): on that basis, as noted, the nature of the access to information was indirect and not direct as under the contested decision. 15 – Compare, for example, Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11; Titanium dioxide, cited at footnote 13, paragraph 10; and Case C‑84/94 United Kingdom v Council [1996] ECR I‑5755, paragraph 25. See also Opinion 2/00 [2001] ECR I‑9713, paragraph 22. 16 – Case C‑77/05 United Kingdom v Council, cited at footnote 12, paragraph 55. 17 – On this principle compare, in general, the Opinion of Advocate General Trstenjak in Case C‑137/05 United Kingdom v Council, cited at footnote 12, points 108-112. 18 – That recital states, in particular: ‘Whereas the Schengen acquis was conceived and functions as a coherent ensemble which has to be fully accepted and applied by all States supporting the principle of the abolition of checks on persons at their common borders’. 19 – Case C‑77/05 United Kingdom v Council, cited at footnote 12, paragraph 61. 20 – On the nature of the concept of coherence in legal debate, see my Opinion in Case C‑429/07 X [2009] ECR I‑0000, point 28 and footnote 6. 21 – Case C‑91/05 Commission v Council [2008] ECR I‑3651, paragraph 73 and case-law cited. 22 – For example, Case C‑211/01 Commission v Council [2003] ECR I‑8913, paragraph 40, and Case C‑94/03 Commission v Council [2006] ECR I‑1, paragraph 36. 23 – See, for example, Article 39 et seq. of the Schengen Convention (OJ 2000 L 239, p. 1). 24 – Cf. Article 1 of Decision 2000/365.