United Kingdom of Great Britain and Northern Ireland v Council of the European Union.
Date: 2007-12-18
55. Account should be taken not only of the wording of the provisions in question but also of their scheme, context, purpose and effectiveness.
57. In so far as the United Kingdom and Ireland were the only Member States which were not parties to the Schengen Agreements that constitute the foundation of that closer cooperation, those two States were in a special situation, which the Schengen Protocol took into account in two respects.
58. First, as Article 4 of the Schengen Protocol provides, that protocol reserves to those two Member States the right to apply at any time to take part in only certain provisions of the acquis in force on the date of the application to take part. Second, that protocol reserves to those Member States, under the second subparagraph of Article 5(1), the option of not taking part in proposals and initiatives to build upon that acquis.
61. Logically, such measures must be consistent with the provisions they implement or develop, so that they presuppose the acceptance both of those provisions and of the principles on which those provisions are based.
62. It follows that the participation of a Member State in the adoption of a measure pursuant to Article 5(1) of the Schengen Protocol is conceivable 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.
65. That interpretation does not in any way interfere with the possibility, reserved to the United Kingdom and Ireland by the second subparagraph of Article 5(1) of the Schengen Protocol, of choosing, even when those Member States have been authorised to accept part or all of the Schengen acquis, not to take part in the adoption of measures implementing or developing the parts of the acquis which they have been authorised to accept.
66. Moreover, such an interpretation makes it possible to take into account both the wording and the objective of Article 4 of the Schengen Protocol, since the flexibility thus given by Article 5 of that protocol to the two Member States concerned as regards their free choice whether or not to join in measures implementing and developing the Schengen acquis is capable of overcoming their possible reluctance, in the absence of such a choice, to accept provisions of the Schengen acquis, and of thereby encouraging them to make as much use as possible of the possibility reserved to them by Article 4.
77. Consequently, and by analogy with what applies in relation to the choice of the legal basis of a Community act, it must be concluded that in a situation such as that at issue in the present case the classification of a Community act as a proposal or initiative to build upon the Schengen acquis within the meaning of the first subparagraph of Article 5(1) of the Schengen Protocol must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the act (see 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‑0000, paragraph 61).