International Law

In this case, the United Kingdom claimed that the Court should annul Council Regulation 2007/2004 of 26 October 2004, which established the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (the Border Agency Regulation).

The United Kingdom principally held that it was denied the right to take part in the adoption of the Regulation, despite having given notice of its wish to do so pursuant to Article 5(1) of the Schengen Protocol and to Article 3(1) of the Protocol on the position of the United Kingdom and Ireland.

It therefore claimed that the Border Agency Regulation should be annulled on the grounds that the exclusion of the United Kingdom from its adoption entailed the infringement of an essential procedural requirement and/or the infringement of the Treaty, within the meaning of Article 230(2) EC.

The UK government also argued that the Council was wrong to classify Regulation 2007/2004 as a measure developing provisions of the Schengen acquis.

The Court examined whether the second subparagraph of Article 5(1) of the Schengen Protocol must be interpreted as applicable only to proposals and initiatives to build upon an area of the Schengen acquis in which the United Kingdom and/or Ireland had been allowed to take part pursuant to Article 4 of that protocol, or whether those two provisions must, on the contrary, as the United Kingdom submitted, be regarded as independent of each other.

The Court found that the second subparagraph of Article 5(1) of the Schengen Proposal must be understood as applicable only to proposals and initiatives to build upon an area of the Schengen acquis which the United Kingdom and/or Ireland have been authorised to take part in pursuant to Article 4 of that protocol.

The Court held that by refusing to allow the United Kingdom the right to take part in the adoption of Regulation 2007/2004, on the ground that that Member State had not first been authorised to take part in the area of cooperation which formed the context of that regulation, the Council did not misinterpret and misapply this provision of the Schengen Protocol.

The Court furthermore held 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, by analogy, Case C?300/89 Commission v Council (?Titanium dioxide?), paragraph 10; Case C?176/03, Commission v Council, paragraph 45; and Case C?440/05, Commission v Council, paragraph 61).

As to the purpose of Regulation 2007/2004, the Court held that it was intended to improve the integrated management of external borders and to facilitate and render more effective the application of the common rules on standards and procedures for the control of those borders.

Furthermore, as to the content of Regulation 2007/2004, the Agency set up by that regulation has the task in particular of coordinating operational cooperation between Member States in the field of management of external borders, assisting Member States in the training of national border guards, and providing Member States, where circumstances required, with increased technical and operational assistance at external borders

The Court therefore concluded that checks on persons at the external borders of the Member States and consequently the effective implementation of the common rules on standards and procedures for those checks must be regarded as constituting elements of the Schengen acquis.

Therefore, the Council was right to classify Regulation 2007/2004 as a measure developing the provisions of the Schengen acquis.

Text of Judgment
See also the judgment in the related case C-137/05, United Kingdom v Council

Full post as published by ECJBlog.com on December 18, 2007 (boomark / email).