Opinion of the Advocate General — ECLI:EU:C:2004:226
Date: 2004-04-27
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Border checks
Procedure: Action for annulment - unfounded

Summary of the Judgment 1. Acts of the institutions – Regulations – Basic regulations and implementing regulations – Implementing powers reserved to the Council – Conditions – Specific and substantiated cases – Procedures for the exercise of implementing powers in respect of the rules concerning the crossing of external borders and visas (Arts 202 EC and 253 EC; Council Regulations Nos 789/2001 and 790/2001; Council Decision 1999/468, Art. 1, first subpara.) 2. European Union – Police and judicial cooperation in criminal matters – Convention implementing the Schengen Agreement – Crossing of external borders and visas – Establishment by the Council of a procedure for the transmission of amendments made by the Member States to the implementation procedures – Whether permitted (Council Regulations No 789/2001, Art. 2, and No 790/2001, Art. 2) 1. In accordance with Article 202 EC and the first subparagraph of Article 1 of Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission (Second Comitology Decision), when measures implementing a basic instrument need to be taken at Community level, it is the Commission which, in the normal course of events, is responsible for exercising that power. The Council must properly explain, by reference to the nature and content of the basic instrument to be implemented or amended, any exception to the rule. In that regard, in the preamble to Regulations Nos 789/2001 and 790/2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for examining visa applications and the carrying-out of border checks and surveillance at the external borders respectively, the Council specifically referred to the enhanced role of the Member States in respect of visas and border surveillance and to the sensitivity of those areas, in particular as regards political relations with non-member States. It could reasonably consider itself to be concerned with a specific case and thus it duly stated the reasons, in accordance with Article 253 EC, for its decision to reserve to itself, on a transitional basis, power to implement a series of provisions exhaustively listed in the Common Consular Instructions and in the Common Manual, which set out the rules concerning the crossing of external borders and visas, contained in the Convention implementing the Schengen Agreement. Assessed in their proper context, such considerations, although general and laconic, are such as to show clearly the grounds justifying the reservation of powers to the Council and to allow the Court to exercise its power of review. (see paras 49-53, 59) 2. It is apparent from Article 2 of Regulations Nos 789/2001 and 790/2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for examining visa applications and the carrying-out of border checks and surveillance at the external borders respectively that each Member State may itself amend, sometimes in agreement with the other Member States, certain of those provisions or procedures. With regard to those texts, adopted at a time when the area concerned was a matter for intergovernmental cooperation, their integration into the framework of the European Union with effect from the entry into force of the Treaty of Amsterdam did not, of itself, result in the Member States being immediately stripped of the powers which they were entitled to exercise under those instruments in order to ensure their proper implementation. In that quite specific and transitional situation, prior to the evolution of the Schengen acquis within the legal and institutional framework of the European Union, no objection can be made to the Council having established a procedure for the transmission by the Member States of amendments which they are authorised to make, unilaterally or in collaboration with the other Member States, to certain of those provisions, the contents of which depend exclusively on information which they alone possess, since it has not been shown that it was appropriate to use a uniform updating procedure in order to ensure proper and effective implementation. (see paras 65, 69-71)