Opinion of the Advocate General — ECLI:EU:C:1998:43
Date: 1998-02-05
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957);Treaty on European Union (1992)
Subject matter: Justice and home affairs;Approximation of laws
Procedure: Action for annulment - unfounded

Summary of the Judgment
1. Actions for annulment — Jurisdiction of the Court — Acts adopted on the basis of Article
K.3(2) of the Treaty on European Union — Limits
(EC Treaty, Arts 100c and 173; Treaty on European Union, Arts K.3(2), L and M)
2. Approximation of laws — Article 100c of the EC Treaty — Scope — Airport transit arrange­
ments — Excluded — Matter falling within the scope of joint action under Article K.3(2) of
the Treaty on European Union
(EC Treaty, Arts 3(d) and 100c(l); Treaty on European Union, Art. K.3(2))
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SUMMARY— CASE C-170/96
1. Article M of the Treaty on European
Union makes it clear that a provision
such as Article K.3(2), which provides for
the adoption of joint action by the Coun­
cil in the areas referred to in Article K.l
does not affect the provisions of the EC
Treaty. In accordance with Article L of
the Treaty on European Union, the pro­
visions of the EC Treaty concerning the
powers of the Court of Justice and the
exercise of those powers apply to Article
M. It is therefore the task of the Court to
ensure that acts which, according to the
Council, fall within the scope of Article
K.3(2) do not encroach upon the powers
conferred by the EC Treaty on the Com­
munity.
It follows that where an action is brought
before the Court seeking a declaration
that, in light of its objective, an act
adopted by the Council on the basis of
Article K.3(2)(b) of the Treaty on Euro­
pean Union falls within the scope of
Article 100c of the EC Treaty, so that it
should have been based on that provision,
the Court has jurisdiction to review the
content of the act in the light of Article
100c of the EC Treaty in order to ascer­
tain whether the Act affects the powers of
the Community under that provision.
2. Construed in the light of Article 3(d) of
the EC Treaty, which includes among the
activities of the Community for the pur­
poses set out in Article 2, 'measures con­
cerning the entry and movement of per­
sons in the internal market as provided
for in Article 100c', the phrase 'crossing
the external borders of the Member
States' in Article 100c(1) refers, in the
case of an airport, to the crossing of those
borders at a border control point, permit­
ting the holder of the visa to enter and to
move within the internal market.
The airport transit visa, introduced by the
joint action adopted by the Council on
the basis of Article K.3(2) of the Treaty
on European Union on airport transit
visas, does not authorise its holder to
cross the external borders of Member
States in the sense contemplated by
Article 100c of the EC Treaty. Conse­
quently, the act does not fall within the
ambit of that provision.
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