Case C-77/05: Action brought on 17 February 2005 by the United Kingdom of Great Britain and Northern Ireland against the Council of the European Union
Date: 2005-04-02
Institutions: Court of Justice
Subjects: Community acquis, Council of the European Union, EC Regulation, Schengen Agreement, United Kingdom, action for annulment (EU), cooperation policy, decision-making, external border of the EU

2.4.2005

EN

Official Journal of the European Union

C 82/25

Action brought on 17 February 2005 by the United
Kingdom of Great Britain and Northern Ireland against the
Council of the European Union

(Case C-77/05)

(2005/C 82/50)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 17 February 2005 by the United Kingdom of Great
Britain and Northern Ireland, represented by Elizabeth O'Neill,
acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. annul Council Regulation (EC) No 2007/2004 of 26
October 2004 establishing a European Agency for the
Management of Operational Cooperation at the External
Borders of the Member States of the European Union (1);

2. determine, pursuant to Article 233 EC, that, following the
annulment of the Border Agency Regulation, and pending
the adoption of new legislation in this matter, the provisions
of the Border Agency Regulation should remain effective,
except in so far as they have the effect of excluding the
United Kingdom from participating in the application of the
Border Agency Regulation;

pates pursuant to a Council decision adopted on the basis
of Article 4, is contradicted by the structure and language
of
the Article 5
mechanism, and by the Declaration on Article 5 that was
annexed to the Final Act of the Treaty of Amsterdam.

those Articles, by the very nature of

(b) The Council's interpretation of the Schengen Protocol

is
not required to enable the ‘without prejudice’ rule in Article
7 of the Protocol on the Position of the United Kingdom
and Ireland to have useful effect. Nor is such an intepreta-
tion required to preserve the integrity of the Schengen
acquis. Indeed, as a means of safeguarding the acquis, its
adverse impact on the United Kingdom would be grossly
disproportionate.

the mechanism of Article 5 of

(c) Given the broad and loose conception of measures building
on the Schengen acquis which the Council employs in its
practice,
the Schengen
Protocol, as interpreted by the Council, would be liable to
function in a way that violates the principle of
legal
governing
certainty
enhanced cooperation.

fundamental principles

and

the

the Schengen Protocol were correct,

In the alternative, the United Kingdom contends that,
if the
Council's interpretation of the relationship between Article 5
this
and Article 4 of
would necessarily entail taking a narrow view of the notion of
a measure that builds upon the Schengen acquis within the
meaning of Article 5, as a measure inextricably connected with
the acquis; and the Border Agency Regulation is not such a
measure.

3. order the Council to pay the costs of the proceedings.

(1) OJ L 349, p. 1.

Pleas in law and main arguments:

to Article 5(1) of

The United Kingdom was denied the right to take part in the
adoption of Council Regulation (EC) No 2007/2004 of 26
October 2004 establishing a European Agency for the Manage-
ment of Operational Cooperation at the External Borders of the
Member States of the European Union (the Border Agency
Regulation), despite having given notice of its wish to do so
pursuant
integrating the
Schengen acquis into the framework of the European Union
(the Schengen Protocol) and to Article 3(1) of the Protocol on
the position of the United Kingdom and Ireland. The annul-
ment of
the Border Agency Regulation is sought on the
grounds that the exclusion of the United Kingdom from its
adoption entails the infringement of an essential procedural
requirement and/or the infringement of the Treaty, within the
meaning of Article 230, second paragraph, EC.

the Protocol

Reference for a preliminary ruling from the Amtsgericht
Freiburg by order of that court of 14 January 2005 in the
case of Bernd Voigt v Regierungspräsidium Karlsruhe–
Bretten

(Case C-83/05)

(2005/C 82/51)

(Language of the case: German)

The main contention of the United Kingdom is that,
in so
excluding it from the adoption of the Border Agency Regu-
lation, the Council acted on the basis of an erroneous interpre-
tation of the relationship between Article 5 and Article 4 of the
Schengen Protocol. It is contended more particularly as follows:

(a) The Council's interpretation, according to which the right
of participation conferred by Article 5 of the Schengen
Protocol applies only to measures building on provisions of
the Schengen acquis in which the United Kingdom partic-

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Amtsgericht Freiburg (Frei-
burg Regional Court) (Germany) of 14 January 2005, received
at the Court Registry on 18 February 2005, for a preliminary
ruling in the proceedings between Bernd Voigt and Regierung-
spräsidium Karlsruhe–Bretten on the following questions: