Brussels, 05/09/2012 (Agence Europe) - On 5 September, the European Court of Justice annulled the entirety of Decision 2010/252/EU of the Council of Ministers making changes to the Schengen Code rules on external maritime border surveillance by Frontex (the European Agency for Managing Operational Cooperation at EU Member States' External Borders). The decision finds in favour of the European Parliament, which lodged an appeal to the Court of Justice to the effect that the Council of Ministers had exceeded its proper powers. The European Parliament argued that the decision went beyond the implementation powers conferred on the European Commission and Council of Ministers by the Schengen Border Code and instead, the decision should have been issued in the form of standard draft legislation, a process in which the EP is involved as co-legislator. .
The Court of Justice comments first of all that the decision in question was extremely important, with important consequences, and the passing of rules on the granting of coercitive powers to border guards, such as granted in the decision in question, involve political choices that come under the responsibility of the European Union legislator. Border guards' powers will vary enormously, depending on the particular choices made, explains the Court of Justice. Coercitive measures like the use of firearms or sending apprehended individuals to a particular location may, for example, be authorised, required or banned. Moreover, explains the Court, if the measures concern ships, the exercise of these coercitive powers may well clash with the sovereignty of non-EU countries whose flag a particular ship is flying. The passing of such rules therefore constitutes a major change to the Schengen Border Code..
The Court of Justice observed that the measures granting public order powers to border guards (such as the right of arrest, the right to impound ships and the right to send individuals to a specific location) interfere with the fundamental rights of the individuals concerned and therefore require the involvement of the legislator. The decision in question has been annulled, but will nevertheless remain in place in practice until a new regulation comes into force. (SP/transl.fl)