Keywords

Summary



Keywords

1. Visas, asylum, immigration – Crossing of the external borders of the Member States – Common rules on control standards and procedures

(Protocol integrating the Schengen acquis into the framework of the European Union, Art. 5(1), first para.; Council Decision 2008/633, Recitals 2, 4, 6, 13 and 15 and Arts 1 and 5(1))

2. European Union – Acts of the European Union – Choice of legal basis – Criteria

(Art. 30(1)(b), and 34(2)(c), EU; Council Decision 2008/633)

Summary

1. When classifying a measure as falling within an area of the Schengen acquis or as a development of that acquis , account must be taken of the necessary coherence of that acquis and of the need to preserve that coherence in any changes. Thus, the coherence of the Schengen acquis and of its future development means that the States taking part in that acquis are not obliged, when they develop it and deepen the closer cooperation which they have been authorised to establish by Article 1 of the Schengen Protocol, to provide for special adaptation measures for the other Member States which have not taken part in the adoption of the measures relating to earlier stages of the acquis ’ evolution.

Decision 2008/633 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, must be classified as a measure falling within the area of the Schengen acquis concerning the common visa policy. The provisions of that decision contain conditions restricting access to the VIS, which make clear that they organise in essence the ancillary use of a database concerning visas, the principal purpose of which is linked to the control of borders and of entry to the territory and which is therefore available, merely by way of consultation, for police cooperation purposes on a secondary basis only, solely to the extent that use for those purposes does not call into question its principal use.

In addition, the direct access to the VIS authorised by Decision 2008/633 for the authorities responsible for internal security is physically possible only for such authorities of the Member States as have central access points to the VIS as referred to in Article 3(2) of Regulation No 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation), that is to say, the authorities only of those Member States which take part in the provisions of the Schengen acquis concerning the common visa policy. In the case of a Member State which does not participate in the provisions of the Schengen acquis concerning the abolition of checks at internal borders and movement of persons, including the common visa policy, its participation by means of direct access to the consultation mechanism permitted by the VIS Regulation and set up by Decision 2004/512 establishing the Visa Information System would have required, as is also evident from recital 15 in the preamble to Decision 2008/633, specific measures in respect of that Member State, because it has not participated in the VIS and does not have the national interface which allows every Member State participating in the VIS to communicate with that system. Even though it cannot be disputed that Decision 2008/633 pursues police cooperation objectives, that fact does not, in the light of all the other objective factors which characterise it, preclude it from being held to be a measure developing the provisions of the Schengen acquis concerning the common visa policy. The participation of a Member State in the adoption of a measure adopted pursuant to Article 5(1) of the Schengen Protocol is conceivable, in light of the system of closer cooperation applicable to the Schengen acquis , only to the extent that that State has accepted the area of the Schengen acquis which is the context of the measure or of which it is a development.

(see paras 48-49, 52, 55-57, 59-61)

2. The question whether a measure constitutes a development of the Schengen acquis is separate from that of the legal basis on which that development must be founded. The choice of legal basis for a European Union measure must rest on objective factors amenable to judicial review, including, in particular, the aim and the content of the measure.

With regard to Decision 2008/633 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, the aim of which is to permit access to the VIS by the Member State authorities responsible for internal security and by Europol, and the content of which relates both to the rules on designation, by the Member States, of the authorities responsible for internal security which are authorised to consult the VIS and to the conditions governing access, communication and keeping of data used for the abovementioned purposes, it falls within the scope of police cooperation and may be regarded as setting up a form of police cooperation. It follows that, since the Community legislature seeks to develop the Schengen acquis by permitting, in well-defined circumstances, the use of the VIS for police cooperation purposes, it is obliged, in order to do so, to act on the basis of the provisions of the Treaty which entitle it to legislate in that field of police cooperation.

(see paras 50-51, 64-65, 67)