Boat refugees, the democratic deficit and EU constitutional law

Not many EU lawyers get excited when it comes to comitology, but with Case C-355/10 Parliament v. Council we have every reason to. Not only is the case materially interesting – it concerns operations of EU Member States against illegal immigration and boat refugees – it is also of fundamental constitutional importance because the CJEU ruled that provisions which require ‘political’ choices cannot be delegated by the EU legislature and, what is more, this assessment is amenable for judicial review. In my opinion, this judgment can be seen as an attempt by the Court to address one of the ‘democratic deficit’ problems of the EU, namely excessive regulation at comitology level, by putting clear limits on delegation of legislative powers by the EU institutions. It is also a victory for the Parliament, an institution that has always felt uneasy about comitology.

The case concerns an action for annulment by the Parliament of Council Decision 2010/252/EU. That decision sought to adopt additional measures to the Schengen Borders Code 296/2008 (SBC). The SBC regulates border control of people at the borders of the EU, thus in essence it seeks to control illegal immigration into the EU. Additional measures may be taken to implement the SBC on the basis of comitology (through the regulatory procedure with scrutiny). Article 12 (5) does this as such for additional measures governing border surveillance.

So far so good. Additional measures may be taken for border surveillance purposes. Here it is important to note that with the regulatory procedure with scrutiny (for the details of this procedure see article 2 (2) of Decision 2006/512/EC) those additional measures may be taken, but only in order to amend non-essential elements of the SBC by supplementing it. The Commission proposes a measure and the established committee (consisting out of Member State government officials) either approves, rejects or does not take a decision. In case of the latter two, the proposal is submitted to the Council and Parliament who then have to act. Now – and this is important – if the Parliament does not act, but the Council approves the measure is adopted.

This is what happened with Decision 2010/252/EU. I recall that the parent regulation concerns border control. However the contested decision concerns measures that grant significant powers to combat illegal immigration at sea, or as it is called in the decision itself ‘surveillance of the sea external borders’. It mandates the use of force at sea and mandates taking measures against third country ships. These are far-reaching powers that are not addressed in the SBC and to consider such measures as non-essential elements from the original parent regulation was quite a stretch. The Parliament therefore brought an action for annulment, arguing that such measures could not be based on the SBC as these measures were not an amendment of non-essential elements of the SBC. The EU legislature alone should have adopted the measure.

The Court agreed. It recalled previous case law by stating that ‘the adoption of rules essential to the subject-matter envisaged is reserved to the legislature of the European Union. The essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated.’ It then concluded that

provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature cannot be delegated.

It follows from this that implementing measures cannot amend essential elements of basic legislation or supplement it by new essential elements.

Ascertaining which elements of a matter must be categorised as essential is not – contrary to what the Council and the Commission claim – for the assessment of the European Union legislature alone, but must be based on objective factors amenable to judicial review.

In that connection, it is necessary to take account of the characteristics and particularities of the domain concerned.

The Court then looked at the meaning of article 12 of the SBC which in the words of the Court state ‘that the purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally and to apprehend such persons.’  In addition those controls are intended to prevent illegal immigration and human trafficking and threats to internal security. Border surveillance operations concern the prevention of circumvention of border checks. The additional measures that may be taken therefore should concern non-essential elements (read: certain practical elements) of such border surveillance operations.

The Court then stated that

73      Although the SBC, which is the basic legislation in the matter, states in Article 12(4) thereof, that the aim of such surveillance is to apprehend individuals crossing the border illegally, it does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended and subsequently – such as the application of enforcement measures, the use of force or conducting the persons apprehended to a specific location – or even measures against persons implicated in human trafficking.

The Court then analyzed the constested decision and noted that it regulated all those things: seizing and searching of ships, enforcement measures against third country ships, assistance of other ships in distress at sea, and rescue operations. The Court thus concluded:

76      First, the adoption of rules on the conferral of enforcement powers on border guards, referred to in paragraphs 74 and 75 above, entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.

 77      Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.

78      Thus, the adoption of provisions such as those laid down in paragraph 2.4 of Part I, and paragraphs 1.1 and 2.1 of Part II, of the Annex to the contested decision, requires political choices to be made as referred to in paragraphs 76 and 77 above. Accordingly, the adoption of such provisions goes beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC and, in the context of the European Union’s institutional system, is a matter for the legislature.

I think this judgment is very welcome. Clearly, the measures at issue concern significant use of public powers in operations that do are not clearly mandated by the parent SBC regulation. It would have been odd if the Commission, the Council and the Member State committee members could have sidelined the Parliament in such a way.

 

6 comments

  1. Martin Holterman

    I was thinking about this case too, yesterday. I also liked how the clearly the Court explained what it was doing. This is language that future judges can use to evaluate future cases without any need for tea leaves.

    Incidentally, before reading the case I assumed that the key question would be one of simple interpretation: What did the Community legislator intend when enacting art. 12 SBC? They might dig through the recitals, for example, or they might observe that the original proposal from 2008 for this version of art. 12(5) talked of “additional supervisory methods”, which is more precise and more narrow than the “additional rules governing surveillance” that they ended up with. (It was the Parliament that proposed this “technical amendment”.)

  2. Mario Garcia

    When I first read this ruling yesterday morning, I found particularly interesting the mention of the «réserve de loi» for limitations of fundamental rights. Even though it is implicit in the text of para. 77, I feel the Court should have made an express reference to article 52(1) of the Charter and explained the meaning of «law» in that provision in relation to EU law. It may be clear what law means in the national context -especially for those of us who come from countries in which a legislative act is called «a law»-, but I may not be obvious in the context of EU law, given the distinction between «legal acts» and «legislative acts» in the TFEU.

    Anyway, great post!

    Regards.

    • Laurens Ankersmit

      Hi Mario, thanks for your comment and good point. I had not thought about that provision in the Charter. I agree with you and I wonder why there was no reference to it… I have not been able to think of any plausible reason so far. Maybe because the SBC used the old pre-Charter comitology decision?

      • Mario Garcia

        Well, I don’t know, but it may be plausible to guess that it is the consequence of the consenssual way in which the Court works internally. In that sense, it could be that the rapporteur simply did not want to open a new front, especially if the issue of the interpretation of article 52(1) of the Charter had not been raised by the legal representatives of Parliament. He may have tried to send the message implicitly, without openly making an “ex novo” interpretion of an article of the Charter that could be more controversial within the Court.

  3. Benjamin Tallis

    I am the regional editor of The Prague Post newspaper – who can I contact to discuss this ruling? The article was very interesting and I would like to be able to inform more people about the reasons for and consequences of this decision. bctallis@hotmail.com

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