Brussels, 13/05/2015 (Agence Europe) - Advocate General Nils Wahl, in his opinion in case C-44-14, delivered on Wednesday 13 May, proposes that the Court of Justice of the EU find that Ireland and the United Kingdom may cooperate in the Eurosur system, under the provisions set out by the European Union legislature.
The European border surveillance system (Eurosur) became operational on 2 December 2013. It possesses the means to tackle cross-border crime, such as people trafficking and drug smuggling, and part of its remit is to detect small vessels in difficulty and to provide them with assistance (fully complying with European and international obligations, including the principle of non-refoulement).
Although they have not signed the Schengen Convention, Ireland and the United Kingdom have been authorised to take part in some of the provisions of the Schengen acquis. They do not, however, take part in those provisions that relate to crossing the external borders.
Regulation 1502/2013 puts in place a common framework for detecting, preventing and combating illegal immigration and cross-border crime by means of information exchange and cooperation among the member states. This common framework, known as Eurosur, falls within the scope of the provisions of the Schengen acquis that relate to crossing external borders, in which Ireland and the UK do not usually take part. The regulation makes provision, however, for information exchange and cooperation with Ireland and the UK to be conducted on the basis of bilateral or multilateral agreements between these two countries and one or more than one neighbouring member states.
Spain questioned the cooperation of Ireland and the UK with the Eurosur system and asked the Court to annul the article of the regulation that allows this cooperation. It argues that the regulation creates an ad hoc procedure for the participation of Ireland and the United Kingdom in the development of a Schengen acquis in which they do not take part (the area relating to crossing external borders). Spain points out that Ireland and the UK can only take part in proposals and initiatives where their participation has been approved by unanimous Council decision. Accepting the lawfulness of a limited form of specific cooperation for Ireland and the UK would, Spain argues, be tantamount to creating a situation not provided for by the original law.
In his opinion, Advocate General Wahl says that cooperation put in place must not constitute disguised participation in the application of the Schengen acquis. He says that, in this instance, the information exchange and cooperation provided for with Ireland and the UK do not introduce a form of participation by these two countries in the application of Eurosur insofar as the arrangements for the cooperation are limited and do not assure Ireland or the United Kingdom a position which is essentially or largely similar to that enjoyed by the member states taking part in the Eurosur system (thus the main elements of the system do not apply to these two countries).
In addition, the Advocate General says that the cooperation must not be the result of an “à la carte” approach that would be inconsistent with the objective pursued of seeking to ensure the maximum participation of all member states in the Schengen acquis. Wahl says that it must always be possible to put in place a form of cooperation with the member states not taking part in the Schengen acquis where this is in the interests of the member states taking part in the acquis (the cooperation with Ireland and the UK would extend the geographical extent of the territory subject to surveillance and increase the amount of information exchanged, especially since both the borders of Ireland and of the United Kingdom form part of the external borders of the Union).
Lastly, the Advocate General is of the view that conclusion of agreements with Ireland and the UK would not threaten the proper operation of the Eurosur system, given that the position of the member states taking part in Eurosur but which have not concluded any agreements with Ireland or the UK would by no means be negatively affected. (Lionel Changeur)