Luxembourg, 19/01/2005 (Agence Europe) - During its plenary assembly, the European Court of Justice confirmed the so-called execution competencies that the Council had reserved for itself (temporarily) when applying Schengen agreement related examination of visa requests and border controls. It rejected the Commission's appeal on this account, which opposed these competencies.
The two Council regulations of 24 April 2001 are therefore valid. The Council in this context maintains control of the way in which rules are applied on external border crossings and visas. These rules are contained in a “Common Manual” available to Member States and in the Common Consular Instruction (CCI) addressed to diplomatic representations and consul missus. The Commission initiated this court case to cancel out these to regulations in the belief that the Council had not fulfilled the required conditions for a competency for which it believed it should be responsible. The Court recognised that the considerations made prior to the adoption of these regulations had been both “general and succinct” but added that analysed in the context where they should be replaced, clearly reveal the political justifications defended by the Council for maintaining these competencies. The Court illustrated that the in the two regulations (No789 and 790/2001) the Council explicitly referred to the strengthened role of Member States' authority on visas and border surveillance, as well as this sensitive nature in the EU's political relations with third countries. The Court said that it was obliged to point out that before the entry into force of the Treaty of Amsterdam on 1 May 1999, visas policy and external border policy generally fell outside the remit of the European Community. For this and a number of other reasons, the Council could quite reasonably believe that it was a “specific case” and behind the decision to maintain competency in executing certain provisions of the MC and ICC.
The Commission considers that it should exercise these competencies and that the Council could not maintain this prerogative except in exceptional circumstances and on the condition that it indicated why a situation was a case in point and could be justified in assuming competency. The Commission also considered that the Council had not met these conditions and that its motives were too general. It also asserted that the political sensitivity of visas and external border policy was “in no case” as sufficient reason.
The Court rejected the Commission's appeal over execution of competencies by Member States via the two EC regulations of 2001. Article 2 in both of these regulations authorises Member States to communicate to the Secretariat General of the Council amendments it would like to introduce to parts of the CM and CCI. The Court affirmed that amendments resulted from a simple information exchange mechanism that Member States alone possessed. The Commission considered that the EC Treaty allowed the Council to maintain competencies but to confer them to the Commission and not to Member States.
Advocate General Philippe Léger, in charge, as the Court points out in its press releases, for proposing completely independent legal solutions to the court and had concluded in favour of the European Commission. According to the Advocate General, the Council had not taken into account the specific and exceptional nature of reserving execution competencies in the treaty. It concluded that the Council had not respect institutional balance set up after the adoption of the Single European Act.
The European Commission minimises the importance of this ruling and declared that the transition measures in question expired on 1 May 2004 and that the ruling only had archival value. The spokesperson for Commissioner Frattini (freedom, security and justice) declared that these powers of implementations are restricted to a transition period and the judgement is essentially of “historical relevance”.