C-392/95
ECLI:EU:C:1997:172
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OPINION OF MR FENNEIXY — CASE C-392/95
O P I N I O N O F ADVOCATE GENERAL FENNELLY delivered o n 20 M a r c h 1997 *
1. In this action the European Parliament consulting the European Parliament, shall claims that the text of Council Regulation determine the third countries whose nation- (EC) N o 2317/95 of 25 September 1995 als must be in possession of a visa when determining the third countries whose crossing the external borders of the Member nationals must be in possession of visas States. when crossing the external borders of the Member States ' (hereinafter 'the Regu- lation') departs in substance from the text of the Commission proposal upon which it was consulted and, consequently, that the Coun- cil breached its prerogatives. The Council submits, in effect, that no new consultation is required whenever the initial consultation sufficiently acquaints it with the views of the Parliament.
3. From 1 January 1996, the Council shall adopt the decisions referred to in para- graph 1 by a qualified majority. The Council I — Legal and factual background shall, before that date, acting by a qualified majority on a proposal from the Commis- sion and after consulting the European Par- liament, adopt measures relating to a uni- form format for visas.
2. The Regulation is based on Article 100c of the Treaty establishing the European Community (hereinafter 'the Treaty'), which is, so far as is relevant, worded as follows: 2
' 1 . The Council, acting unanimously on a proposal from the Commission and after 6. This Article shall apply to other areas if so decided pursuant to Article K.9 of the provisions of the Treaty on European Union * Original language: English. which relate to cooperation in the fields of 1 — OJ 1995 L 234. p. 1. 2 — As inserted by Article G(23) of the Treaty on European justice and home affairs, subject to the voting Union. conditions determined at the same time.
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7. The provisions of the conventions in force Article 1(3) proposed obliging Member between the Member States governing areas States 'to notify the other Member States and covered by this Article shall remain in force the Commission of their measures taken pur- until their content has been replaced by suant to paragraph 2'. Article 2 proposed to directives or measures adopted pursuant to give effect to the principle, enunciated in the this Article.' second recital in the preamble, that 'mutual recognition by Member States of visas issued by each other' is necessary 'to give full effect to Article 100c', and constitutes 'an essential accompanying measure for the achievement of the objective set out in Article 7a [of the Treaty] as regards the free movement of per- A — The proposed reguUtion and the Parlia- sons'. Accordingly, Article 2 of the proposal ment's opinion itself provided that: 'A Member State shall not be entitled to require a visa of a person who seeks to cross its external frontiers and who holds a visa issued by another Member State, where that visa is valid throughout the Community' (emphasis added).
3. On 10 December 1993, the Commission submitted a proposal to the Council with a view to establishing a list of third countries for the purpose of Article 100c(l). 3 This proposal was linked with a contemporaneous Commission proposal for a decision, based on Article K.3 of the Treaty on European Union, establishing a Convention on the crossing of the external frontiers of the Member States. 4 Article 1(1) of the first pro- posal provided that the nationals of the third 4. By letter of 11 January 1994 the Council countries listed in an annex (which the Com- consulted the Parliament on the Commission mission describes as 'the negative list') would proposal, in conformity with Article 100c(l) require a visa. Under Article 1(2), Member of the Treaty. The Parliament's Committee States were to be permitted, until 30 June on Civil Liberties and Internal Affairs 1996, to decide whether to require visas of reported to the Parliament on the proposal nationals of other third countries. However, on 29 March 1994. 5 The legislative it provided that, before that date, the Coun- resolution embodying the opinion of the cil should 'decide according to the procedure Parliament was adopted on 21 April 1994. 6 laid down in Article 100c either to add each In that opinion, the Parliament proposed 14 of those countries to that list or to exempt its amendments to the proposal, and, formally, nationals from visa requirements', thus creat- called for reconsultation if the Council ing a 'positive list'. In the interim period, intended to make substantial modifications to the Commission proposal. The principal
3 — The text of this proposal was published in January 1994; sec OJ 1994 C 11, p. 15. 5 — Document A3-0193/94. 4 — COM(93) 684 final, 10 December 1993, published in 6 — It was published on 9 May 1994 in OJ 1994 C 128, p. 346, at OJ1994 C 11, p. 6. p. 350.
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changes sought were the following: 7 (i) that Commission proposal. Hence, the essential Member States should not be permitted to question which the Court must address is impose visa requirements on countries which whether those differences are substantial, have for fair and objective reasons been and, if so, whether that should result in the excluded from the negative list, and that n o annulment of the Regulation. third country whose nationals do not at present require a visa for entry to any Mem- ber State should be on the negative list (amendment 3); (ii) that the period allowed to Member States for determining whether to require visas of nationals of third coun- tries not listed in the annex — i. e. the estab- lishment of a positive list — should be short- ened (amendment 7); (iii) that the prohibition on Member States' requiring that a person applying to stay for a short time hold a visa issued by its authorities, where he holds a uniform visa or a residence permit or autho- rization issued by another Member State, — 6. Article 1(1), in conjunction with the that is, the principle of mutual recognition — Annex to the Regulation, establishes a 'com- should be strengthened (amendment 8); and; mon list' of third countries whose nationals (iv) that the negative list be amended to con- 'shall be required to be in possession of visas form to the principles laid down in the third when crossing the external frontiers of the paragraph of the first recital 8 (amend- Member States'. Article 1(2) provides that ment 14). 'nationals of countries formerly part of countries on the common list shall be subject to the requirements of paragraph 1 unless and until the Council decides otherwise under the procedure laid down in Article 100c of the Treaty'. Article 2(1) pro- vides that 'the Member States shall determine the visa requirements for nationals of third B — The ReguUtion countries not on the common list'. This power, thus, is no longer stated to expire on 30 June 1996. Under Article 2(4), the national measures adopted in this respect must be communicated to the Commission, •which shall cause them to be published in the Official Journal. The Regulation does not, however, provide for the mutual recog- 5. O n 25 September 1995 the Council nition of visas granted by other Member adopted the Regulation, in a form which States. The second recital in the preamble to differs in a number of respects from the the Regulation states that, 'the drawing up of the common list ... represents an important step towards the harmonization of visa 7 — This abbreviated list highlights those that, in my view, are policy ... whereas other aspects of the har- relevant to the amendments made by the Council. monization ... are matters to be determined 8 — The addition of which was recommended by the Parliament under Title VI of the Treaty on European in the third of its proposed amendments.
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Union' (emphasis added). This is highlighted 8. Under Article 4(1), Member States are by the fourth recital, which states that: permitted to 'exempt nationals of third countries subject to visa requirements under Article 1(1) and (2) from those require- ments'. The definition of a 'visa' is contained in Article 5. Article 6 expressly authorizes individual Member States to undertake addi- tional mutual harmonization 'going beyond the common list'. With the exception of the provisions obliging Member States to com- '... the principle that a Member State may not municate their national measures concerning require a visa from a person wishing to cross either third countries not on the common list its external borders if that person holds a or exemptions affecting nationals of coun- visa issued by another Member State which tries on that list, the Regulation entered into meets the harmonized conditions governing force, in accordance with Article 7, on the issue of visas and is valid throughout the 3 April 1996. Community or if that person holds an appropriate permit issued by a Member State is a matter that should be determined under Title VI of the Treaty on European Union' (emphasis added).
II — Procedure and observations
7. Furthermore, the Regulation no longer provides any deadline for the adoption of a positive list. Thus, Article 3 provides that:
9. The Parliament lodged its action for annulment with the Registry of the Court on 15 December 1995. The defendant, the 'Five years after the entry into force of this Council, seeks a declaration that the action is Regulation the Commission shall draw up a unfounded and an order for costs. If, how- progress report of the harmonization of ever, the Court is minded to annul the Regu- Member States' visa policies with regard to lation, the defendant requests it alternatively third countries not on the common list and, to preserve its effects until the adoption of a if necessary, submit to the Council proposals new visa regulation. By order of 23 May for further measures required to achieve the 1996, the French Republic was allowed to objective of harmonization laid down in intervene in support of the forms of order Article 100c.' sought by the Council.
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10. Written and oral observations were sub- cornerstone' of its proposal, 1 0 in favour of mitted by both parties. The intervener sub- permitting Member States to decide whether mitted written observations, in respect of they will recognize visas issued by other which the applicant, but not the defendant, Member States, represents a substantial submitted further written observations. change. In the second recital in the preamble to its proposal, the Commission clearly stated its view that mutual recognition of visas was necessary in the context of Article 100c, so as to give effect to Article 7a of the Treaty.
Ill — Summary of the observations
11. According to the Parliament, the Coun- cil incorporated at least three substantial amendments into the text of the Commission proposal so that the Council •was obliged to 12. In its defence, the Council contests the reconsult the Parliament. 9 Firstly, although substantive character of these amendments. Article 1 of the proposal provided for the A comparative reading of Articles 3(d) and establishment by 30 June 1996 of a definitive 100c of the Treaty, on the one hand, and list of the countries whose nationals would Article K.l of the Treaty on European be required to be in possession of visas when Union, on the other, shows that the compe- crossing the external frontiers of the Com- tence conferred on the Community by munity, Article 2 of the Regulation aban- Article 100c is limited, firstly, to the estab- doned that principle by permitting the Mem- lishment of a list of countries whose nation- ber States 'to determine the visa als must be in possession of visas when requirements for nationals of third countries crossing the external frontiers of Member not on the common list'. Secondly, the appli- States and, secondly, the adoption of a uni- cant claims that the Council substantially form format for visas. The Council submits reduced the scope of the proposed 'common that it is obliged to reconsult the Parliament list' from 126 to 98 third countries. Thirdly, only if the importance of the amendments the Parliament argues that the abandonment made to a Commission proposal is such that of the principle of mutual recognition of they affect the substance of the text consid- visas, described by the Commission as 'the ered in its entirety, which, in its view, is not the case here.
9 — The Parliament refers to Case C-65/90 Parliament v Council [1992] E C R 1-4593 (hereinafter the 'goods-cabotage' case), Case C-388/92 Parliament v Council [1994] ECR 1-2067 10 — Sec the Commission's Explanatory Memorandum to the (hereinafter the 'passenger-transport cabotage' case) and Regulation, and especially its comments on the proposed Case C-21/94 Parliament v Council [1995] ECR 1-1827 Article 2, p. 4 of the memorandum, contained in COM(93) (hereinafter the 'road-taxes' case). 684 final.
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13. The Council maintains that the only legal certainty, 12 and to avoid creating con- legal difference between the Regulation and fusion. Consequently, it argues that there is the proposal is that the former provides a no substantial legal difference between the longer transitional period during which the effect of the proposal and the effect of the Member States will remain free to regulate Regulation. visa requirements concerning third-country nationals whose countries are not included on the common list. Since the Council was 'well aware' of the Parliament's view (to wit, support for the Commission's proposal, save for suggesting a shorter transitional period to expire on 31 December 1995 instead of on 30 June 1996), it submits that it was unneces- sary to reconsult it. n Regarding the amend- ments made by the Council to the content of 15. France emphasizes the politically sensi- the negative list proposed by the Commis- tive nature of the process of determining the sion, the defendant submits that they were third countries whose nationals should be wholly minor. They comprised merely the obliged to obtain visas. It submits that har- addition of three States or territorial entities monization of visa policy can, therefore, to the proposed list, and the removal of a only be progressive, and that the Council is number of countries, which either are former entitled under Article 100c of the Treaty to colonies of certain Member States, or, in the establish a minimum common list.
In respect Council's view, do not pose a significant risk of the supposed substantive amendments, of immigration for the Community. France alleges that the proposed date for the achievement of complete harmonization was merely postponed by the Regulation. O n the mutual recognition of visas, France submits that Article 2 of the proposal was drafted in the perspective of the concomitant adoption of the proposed Convention on controls on persons crossing external frontiers. 13 According to France, the political situation was such at the time of adopting the Regu-
14. As for the principle of mutual recogni- lation that an expeditious adoption of the tion, the Council alleges that it could only Convention was not foreseeable. Hence, the apply when visas issued by one Member Council was compelled to amend the pro- State are regarded as being valid throughout posal, since, France alleges, it had no compe- the Community. However, the Commis- tence to provide for the mutual recognition sion's proposal contained no provisions to of visas on the basis of Article 100c of the this effect, since the Commission has no Treaty. In these special circumstances, France competence to propose such measures on the considers that the removal of Article 2 of the basis of Article 100c of the Treaty. Thus, the proposal did not necessitate reconsultation. Council claims that the proposed Article 2 could only have had declaratory effect, and its deletion was necessary in the interests of 12 — In this respect, the Council refers to point 7 of the Council Resolution of 8 June 1993 on the quality of drafting of Community legislation (OJ 1993 C 166, p. 1), which pro- vides that 'provisions without legislative character should 11 — The Council cites notably the 'passenger-transport cabo- be avoided .
. .'. tage' case, paragraph 10 of the judgment. 13 — COM(93) 684, cited above in footnote 4.
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IV — Analysis my comments to the principles which are of relevance in the present action.
A — Introduction 18. In the 'road-taxes' case, the Court stated that: 1 4
16. Although the observations submitted in this case expressly refer to the nature of the relationship between Article K.l of Title VI of the Treaty on European Union and the '17. It must first of all be borne in mind that competence of the Community legislator due consultation of the Parliament in the under Article 100c of the Treaty, it is impor- cases provided for by the Treaty constitutes tant to bear in mind that the essential legal an essential formal requirement breach of issue raised is whether the changes inserted which renders the measure concerned by the Council upon adopting the Regu- void. , 5 [...] The effective participation of the lation were such as to require the reconsulta- Parliament in the legislative process of the tion of the Parliament. If the Parliament's Community, in accordance with the proce- contentions are correct, the Regulation must dures laid down by the Treaty, represents an be annulled, subject to any decision the essential factor in the institutional balance Court may take to maintain in force its intended by the Treaty. Such power reflects effects pending the adoption of a new regu- the fundamental democratic principle that lation. In these circumstances, I do not think the people should take part in the exercise of that it is necessary for me to express any power through the intermediary of a repre- conclusive view either on the scope of sentative assembly .... 1 6 Article 100c of the Treaty, or on the extent of the Court's power, in the light of Arti- cle L of the Treaty on European Union, to respond to the Council's suggested compara- tive reading of Title VI of that Treaty when assessing the scope of Article 100c of the 18. The duty to consult the European Parlia- Treaty. ment in the course of the legislative pro- cedure, in the cases provided for by the Treaty, implies the requirement that the Par- liament should be reconsulted whenever the text finally adopted, viewed as a whole, B — The right of reconsultation departs substantially from the text on which
14 — Paragraphs 17 to 19 of the judgment 15 — The Court cites, by way of example, Case C-417/93 Parlia- ment v Council (TACIS) [1995] ECR 1-1185, paragraph 9 of 17. The Court's case-law concerning the the judgment. reconsultation of the European Parliament 16 — The Court cites, by way of example, Case C-65/93 Parlia- ment v Council [1995] ECR 1-643, paragraph 21 of the is now well established. I shall confine judgment.
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the Parliament has already been consulted, 20. The Council's most important argument except where the amendments essentially is that, when it is clearly aware of the views correspond to the wish of the Parliament of the Parliament on an aspect of a proposal, itself . . . . u whether or not they accord with the final decision of the Council, it would be futile to reconsult the Parliament. Such reconsultation would only serve to delay the adoption by the Council of the final text. The agent rep- resenting the Council stressed at the hearing that 'the Treaty does not require that every
19. The Court must therefore consider time the Council disagrees with an opinion whether or not the amendments referred to that has been expressed by the Parliament by the Parliament affect the actual substance (. . .) there should be an obligation to recon- of the text, viewed as a whole.' sult'. If such were to be the case, he submit- ted, the consultation 'would become a purely formal obligation'. In contrast with other Community legislative procedures, the con- sultation procedure does not, in effect, give the Parliament 'the opportunity of having a second reading'.
The same principle would, in the Council's view, apply where it amends 19. In applying these principles, the Court a provision in respect of 'which the Parlia- compares the text of the initial Commission ment has expressed no opinion. In this case, proposal and that adopted by the Council. l s the Council maintains that the Parliament's In other words, 'the Court uses an objective views on all the aspects of the proposal test, namely a collation of the two texts'. 19 •which it amended were unambiguously set The Court has also stressed that, if the out in its opinion and, hence, fresh consulta- amendment adopted by the Council, albeit tion was unnecessary. substantial in nature, 'corresponds] broadly to the wishes expressed by the Parliament', 20 no obligation to reconsult arises.
Such wishes may, as the agent for the Council has cor- rectly argued, only be those expressed in the opinion annexed to the legislative resolution of the Parliament. Other parliamentary expressions of opinion are irrelevant to the consultation procedure. In this case, the 21. I do not subscribe to the proposition of Council has not disputed that the majority the Council that reconsultation is rendered of its amendments are to the contrary of the unnecessary where the Council is aware of Parliament's opinion. the Parliament's views on the amendments it proposes to make. The agent for the Council states that the purpose of consultation is to have a parliamentary opinion on all the ele- 17 — By way of example, the Court cites the 'passenger-transport ments of the text. I fail to see how such an cabotage' case cited in footnote 9 above, paragraph 10 of the judgment, and Case C-280/93 Germany v Council opinion can exist when the text is no longer [1994] ECR 1-4973, paragraph 38 of the judgment. 18 — Sec the 'passenger-transport cabotage' case, paragraph 13 of that upon which the Parliament was asked to the judgment. express its opinion. While there is in essence 19 — Sec paragraph 34 of the Opinion of Advocate General only one way to modify a text to correspond Léger in the 'road-taxes' case. 20 — Case 817/79 Buyl v Commission [1982] ECR 245. to the wishes of the Parliament, there are an
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infinite number of ways of modifying a text irrelevant. Where the Treaty provides for contrary to its wishes. Only where a Council consultation, the Parliament is entitled to modification corresponds essentially to the express its views both on the original pro- Parliament's wishes can the Council claim to posal and again in the event of substantial be genuinely aware of the Parliament's views amendment. Since, in the context of recon- on that precise modification; otherwise, the sultation, no definite or binding decision can, Council could not be said to be acting 'after by definition, be adopted by the Council consulting the European Parliament' in until the Parliament has expressed its opin- regard to the modified parts of the text. ion on the revised text, 21 it follows, in my Indeed, taken to its logical conclusion, the opinion, that the legal value of the second Council's view would mean that the recon- opinion of the Parliament cannot be ignored. sultation requirement would only ever arise As the Court has put it, 'consultation ... [of where it added completely new elements to a the Parliament] is likely to affect the legislative text, rather than simply modifying substance of the measure adopted'. 22 To dis- the Commission proposal. pense with consultation because of an a priori view that the attitude of the Parlia- ment was known and was unacceptable to the Council presupposes closed minds and rigid postures on the part of both institu- tions and denies the usefulness of the process of consultation.
22. I do not see the relevance of the Coun- cil's argument concerning modifications to a provision in respect of which the Parliament has expressed no opinion. This situation does not arise in the present case; it is clear that, in approving the proposal as a whole, the Parliament may be deemed to approve any provision which it has not sought to amend, and the duty to reconsult can arise in respect of any such provisions under the same con- 24. In any event, the Court has already ditions as for provisions which are the sub- unequivocally rejected the Council's conten- ject of Parliamentary amendments. tion in this respect. In the 'road-taxes' case, a very similar argument was advanced by the Council in its rejoinder, to the effect that 'even if the text finally adopted, viewed as a whole, did depart substantially from the text on which the Parliament had been consulted, it was not required to reconsult that institu- tion provided that ... the Council was sufficiently well informed as to the opinion 23. Even if there may be cases where the nature of the Parliament's opinion on the initial proposal is so clear that, at least politi- 21 — See, in respect of the consultation procedure, Parliament v cally speaking, it is well understood that the Council (TACIS), cited in footnote 15 above, paragraph 10 of the judgment. Parliament and the Council hold conflicting 22 — Sec Case 165/87 Commission v Council [1988] ECR 5545, views, that fact would, on a legal level, be paragraph 20 of the judgment.
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of the Parliament on the essential points at considered as a whole, it clearly does not issue'. 23 Having stated that the Council's arise on every occasion that the Council dis- argument 'must be rejected', the Court held agrees with the Parliament. It does however that: 24 mean that the Council's margin for manoeu- vre in considering legislative proposals is limited by the obligation to respect the Par- liament's Treaty prerogatives, and that it may not set itself up as sole arbiter of the futility or otherwise of reconsulting the Parliament. '... to accept the Council's argument would result in seriously undermining that essential participation in the maintenance of the insti- tutional balance intended by the Treaty and would amount to disregarding the influence that due consultation of the Parliament can have on adoption of the measure in ques- tion.' 26. It follows that the qualification of the duty of reconsultation proposed by the Council must be rejected.
This reasoning seems to me to be equally applicable in the present case.
C — The validity of the ReguUtion
25. N o r do I see any force in the Council's general remarks comparing reconsultation with a legislative second reading. It is obvi- ous that the Parliament's opinion on recon- sultation is not attended with the same legal consequences as a second reading in the 27. I agree with the applicant that the list cooperation or codecision procedures. Fur- referred to in Article 1(1) of the Commission thermore, the reconsultation requirement as proposal was intended to be a uniform and defined in the case-law of the Court only exclusive list, binding on all the Member applies when certain objective criteria have States, and setting out exhaustively the third been fulfilled; as it is restricted to amend- countries whose nationals 'shall be required ments which substantially modify the text to be in possession of visas when crossing the external borders of the Member States'. Article 1(2) is equally clear in according lim- ited power to the Member States and the 23 — Paragraph 24 of the judgment; sec also paragraph 61, and Council in the establishment of lists prior to the accompanying footnote 72, of the Opinion of Advocate General Léger. Sec also the 'passenger-transport cabotage' 30 June 1996. I am satisfied that these provi- case, cited tn footnote 9 above, paragraph 17 of the judg- ment. sions, read in conjunction particularly with 24 — Paragraphs 25 and 26 of the judgment. the fourth recital in the preamble to the
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proposal, which speaks of authorizing 'diver- similar in scope to that condemned by the gences between the regulations and practices Court in the 'goods-cabotage' case. of Member States' to continue 'for a limited period as a transitional measure' (emphasis added), demonstrate that the Commission merely proposed permitting the Member States to maintain, for a limited time, national lists imposing visa requirements affecting third countries not on the common list. This was, in my view, an essential feature of the proposal. Thus, it is necessary to 29. I am therefore of the opinion that the examine how the function of the list was abandonment by the Council of the Com- affected by the Council's amendments. mission proposal for the establishment by 30 June 1996, at the latest, of a comprehen- sive Community-visa policy is, taken alone, such a substantial change, having regard to the text of the proposal viewed as a whole, that it would justify annulment of the Regu- lation for lack of consultation.
30. In addition, the content of the 'common list' differs from the scheme proposed by the 28. Article 1(1) remains virtually unchanged Commission, under which the 'negative list' in the Regulation, but its scope is radically was intended to govern the degree of initial restricted by Article 2(1), under which 'the harmonization of national visa policies, with Member States shall determine the visa complete harmonization being postponed requirements for nationals of third countries until 30 June 1996 at the latest. In adopting not on the common list' (emphasis added). the Regulation, the Council deleted a num- This is not subject to the time-limit (30 June ber of third countries from the list, and 1996) contained in Article 1(2) of the pro- added three others. The Parliament and the posal. The significance of this change is high- Council are fully in agreement that the lighted by Article 3 of the Regulation, which establishment of the common list is the very merely obliges the Commission to 'draw up object of Article 100c and of the Regulation. a progress report of the harmonization of The Council agrees that it would have been Member States' visa policies ...'. The Council bound to reconsult the Parliament if it either has replaced a proposal for a common and removed or added a significant number of exclusive Community visa policy with what third countries. None the less, the resulting the Parliament aptly described at the hearing 'classification' of the third countries con- as 'the lowest common denominator', cerned is a highly political matter on which namely, a common Community list with, in the institutions may have diverging views, addition, the possibility of up to 15 addi- and which may profoundly affect the rela- tional national lists; such a modification is tionship between the Community and those
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countries. The annex to the Regulation is its borders of the Member States'. In respect of most important provision, and I consider each individual country, the choice is that the Council is therefore not entitled to between inclusion in and exclusion from the amend this list unless the Parliament has list; while the 'substantial modification' test been given the opportunity to give its opin- may apply to the other provisions of the ion on such changes. In the present case, I do Regulation, I am not at all sure that it can be not consider the modifications to the list to applied to qualify the application of the spe- be so minor as to release the Council from cific Treaty requirements regarding the list its express duty to consult the Parliament on annexed thereto. This does not in any way the determination of the list of third coun- affect the Council's substantive discretion as tries concerned by the visa requirement. to the choice of countries which should fea- ture on the list of third countries, but merely seeks to ensure that the procedure defined in Article 100c(l) for establishing this list is properly respected.
31. In any event, it seems to me that the 'substantial modification' test was developed by the Court as a criterion for the sufficiency of the consultation of the Parliament in policy areas, principally transport, where the Council enjoys a wide margin of discretion. This test may not, in my view, be appropri- ate where the Treaty requires that the Parlia- ment be consulted on a discrete choice 32. The Council seeks to justify the deletion between two alternatives. Article 188b(3) of from the list of 28 countries on the basis that the Treaty, for example, requires the Council they did not, for the greater part, carry a risk to consult the Parliament on the appoint- of serious migration towards the Commu- ment of Members of the Court of Auditors; nity, both because of their distant situation if, having received the Parliament's approval and their small population. Its reaction to the for a list of eight candidates, the Council Parliament's drawing attention to the pres- wished to replace one candidate, it could not ence of the Republic of South Africa, of escape the duty to reconsult the Parliament Zimbabwe and Botswana in this category on the grounds that the new candidate, if and the fact that any evaluation of the danger appointed, would only comprise one- of migration is likely to be valid for a short fifteenth of the entire membership of the period of time was to accept the latter Court of Auditors and, hence, that the modi- proposition but to emphasize the recent fication was not substantial. Similarly in the positive political developments in South present case, Article 100c of the Treaty spe- Africa. It remarks that 'one could suppose cifically requires that the Parliament be con- that the Parliament was in agreement about' sulted on the determination of 'the third these political developments. Perhaps so, but countries whose nationals must be in posses- this is a political assessment which the sion of a visa when crossing the external Council could not make alone.
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33. The Council argued for the first time in political arguments of the Council and can- its rejoinder that, though it had removed not decide on a merely numerical basis these countries from the negative list in whether change in the list is substantial. Annex 1, this was in response to the view of Thus, the additions made must be regarded the Parliament that '... no third country as substantial. whose nationals do not require a visa for entry to a Member State' (amendment 3, emphasis added) should be on that list. The Council says that all of these countries fall within this description as former colonies of certain Member States, particularly the United Kingdom. I do not think it either necessary or possible to express an opinion on this, in view of the incompleteness of the information and the ambiguity in the pro- posed amendment as quoted above. In any event, the addition of three countries is, in my view, decisive. 35. The third principal complaint of the Par- liament concerns the removal from the pro- posal of the principle of mutual recognition, and in particular the deletion of the pro- posed provision in Article 2 that 'a Member State shall not be entitled to require a visa of a person who seeks to cross its external fron- tiers and who holds a visa issued by another Member State, where that visa is valid throughout the Community'. The Council claims that the removal of all references to the principle of mutual recognition was nec- essary in the interests of legal certainty, since 34. The defence of the Council regarding the the measures required to give effect to such a addition to the proposed Commission list of principle can only, in its view, be adopted Peru, the Former Yugoslav Republic of under Title VI of the Treaty on European Macedonia and the Federal Republic of Union, entitled 'Provisions on cooperation Yugoslavia (Serbia and Montenegro) is that, in the fields of justice and home affairs', in having regard to the number of countries effect Articles K to K.9. It says that the com- included on the proposed list (126), the petence of the Community is limited to inclusion of these three countries should be drawing up a list of countries for the pur- classified as a mere change of detail. I cannot poses of Article 100c(l) of the Treaty and the agree with the Council's approach. The addi- preparation of a uniform model for the visa, tion or removal of even one country without consultation of the Parliament seems to me, and that everything else, including mutual in principle, to constitute a substantial recognition, comes under Article K. In effect, change. In a political process, it is for the therefore, it says that the removal of mutual participants alone to decide which countries recognition arose from the Council's view should or should not be included. The Court that its inclusion in the Regulation would cannot make any assessment of the largely not have been lawful.
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36. The Council's argument, if followed, it interprets Article 100c, must do so without would present very difficult problems for the regard to the contents of Title VI and on the Court. The first concerns the role of the basis that the contents of that Title cannot Court in interpreting the Treaty on Euro- affect Article 100c itself other than the third pean Union. Article L of that Treaty 25 pre- subparagraph of Article K.3(2)(c). cludes the Court from exercising its powers under the (EC) Treaty in relation to Title VI of the Treaty on European Union and, con- sequently, it is not permitted, in my view, to interpret that Tide. The Court, however, must interpret the provisions of Article 100c of the Treaty, if that is relevant to its decision. In doing so, it will follow its estab- lished practice of considering 'the spirit, gen- eral scheme and wording' of the provision at issue 'as well as the system and objectives of the Treaty'. 26 In reaching a conclusion about the scope of Community competence under Article 100c of the Treaty, the Court will look at that provision in its Treaty context and cannot, in my view, qualify or restrict that interpretation by reference to a provi- sion which it is expressly prohibited from 37. The second difficulty is more closely interpreting. However, assuming that the related to the nature of the present applica- Court were entitled to have regard in a gen- tion, namely that it is brought by the Parlia- eral way to the existence and content of Tide ment, in a legal context where the Court's VI of the Treaty on European Union, it is jurisdiction exists only for the purpose of apparent that Title VI concerns cooperation protecting the Parliament's prerogatives, to between Member States, which is an activity wit, its right to consultation. In most cir- which should not restrict Community com- cumstances, the Parliament may not avail of petence.
Furthermore, Article M of the the general right of Member States, the Treaty on European Union provides that Council and the Commission under nothing in it — which includes Title VI — Article 173 to challenge the validity of, inter 'shall affect the Treaties establishing the alia, an act of the Council on the ground of European Communities . . .'. Article M itself lack of competence. The Council relies, in falls within the purview of the Court's pow- effect, on its own lack of competence.
A ers. In short, I believe that the Court, when response to this would necessarily require the Parliament to enter indirectly into a debate on competence, in a context where the Parliament is concerned only to protect its prerogatives. The consultation procedure represents an essential part in the institu- 25 — Article L provides that the provisions of the various Trea- tional balance, reflecting the democratic ties establishing the European Communities '. . . concerning nature of the Parliament. The Court the powers of the Court of Justice .
. . and the exercise of those powers . . .' shall apply only to certain provisions of demands, at the legal level, that it be the Treaty on European Union, including Article L, but excluding all of Article K, save for Article K.3(2XQ, which respected, but is not concerned to decide, is not relevant to this case. retrospectively, which institution's views on 26 — Case 6/72 Europemballage and Continental Can [1973] ECR 215, paragraph 22 o f the judgment. legal competence were correct.
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O P I N I O N OF MR FENNELLY — CASE C-392/95
38. I think that the answer to both points 39. As to the substantial nature of the lies in following the text-based approach of removal of mutual recognition, there can be the Court in its case-law. If there is a sub- no doubt that the fact that the Parliament stantial change in the scope and meaning of proposed (see its amendment 8 summarized the text, including one necessitated by a view at paragraph 4 above) to supplement the as to lack of competence, which the Parlia- obligation of mutual recognition imposed by ment is known not to share, then the Parlia- Article 2 of the Commission proposal, with ment must be reconsulted. In any case, the provisions concerning the extent of the obli- fact that a particular modification is dictated gation and the conditions under which 'uni- by the Council's interpretation of the appli- form visas' were to be issued, demonstrates cable legal rules does not suffice to absolve it the importance attached to this principle. from the duty of reconsultation. After all, in The Council's claim is not that the removal proposing, examining and adopting any of mutual recognition does not, as such, Community legislation, each of the political amount to a substantial change. O n the con- institutions of the Community is at the same trary, the Council says that the achievement time adopting an interpretation of the appli- of mutual recognition was not possible on cable Treaty provisions, which may or may the basis of the Treaty, since, in its view, it not be shared by the other institutions. In could not be enacted on the basis of this regard, an analogy may be drawn with a Article 100c, but presupposed the contempo- modification by the Council of the legal raneous adoption by the Member States, basis of Community legislation proposed by under Article K.3 of the Treaty on European the Commission and approved by the Parlia- Union, of the Convention on the crossing of ment; where the modification has the effect external frontiers. The agent for the Council of amending the legislative procedure to one alluded at the hearing to an element of politi- which guarantees the Parliament a lesser cal naivety in the Commission's proposal, degree of participation than that originally upon which, naturally, I express no view. proposed, the Council has always, rightly in When that Convention was not, in the event, my opinion, taken the view that such a adopted, the Council says, the idea of a 'visa modification affects the substance of the valid throughout the Community', as in proposal and hence gives rise to a duty of Article 2 of the proposal, became devoid of reconsultation. 27 meaning and the retention of this reference in the Regulation as enacted would have given a misleading impression contrary to the principle of legal certainty. As is apparent from its mere recital, this argument contin- ues to depend on a particular view about the scope of Community competence under Article 100c of the Treaty rather than a denial that, ostensibly, an important change has been made between the proposal and the Regulation. Apart from the Council's restrictive interpretation, at first sight, Article 100c(l) of the Treaty would appear to
27 — See, for example, the facts in Case C-300/89 Commission v Council [1991] ECR 1-2867, paragraph 3 of the judgment, Case C-295/90 Parliament v Council [1992] ECR 1-4193, paragraph 19 of the Opinion of Advocate General Jacobs, page 1-4221, and Case C-271/94 Parliament v Council [1996] ECR 1-1689, paragraph 7 of the judgment.
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PARLIAMENT v C O U N C I L
be equally open to the interpretation that the to limit the effects of any ultimate annulment visa granted to a national of a third country of the Regulation. The Parliament has sub- listed in a Community act adopted thereun- mitted no observations on this request. The der either must be granted recognition in all defendant maintains that considerable legal Member States or may be so recognized, if uncertainty would ensue for nationals of the act so provides. It is not necessary, in this those third countries contained in the com- case, to choose between these interpreta- mon list annexed to the Regulation if its legal tions. In effect, however, different views may effects were not maintained until it has realistically have been entertained not only adopted new legislation. Since the adoption by the Parliament and the Council but also of that list represents a 'step' towards the by the Commission. 28 It is sufficient to say eventual complete harmonization of the that, if Article 100c(l) implies mutual recog- third countries whose nationals will require nition, the substantial nature of the change is visas to enter the Community, to annul with- beyond argument and the Parliament and the out limitation the effects of the Regulation Commission appear to have adopted this would, paradoxically, restore the status quo view of the Article. Since the correct ante where Member States were free to apply approach to the assessment of substantial whatever visa policies they wished. Thus, change is based on a comparison of texts though the current function of the common rather than a resolution of issues of compe- list may be no more than informative, it does tence, the Council should have reconsulted remove the need for those nationals whose the Parliament. In these circumstances, I am countries are covered to inquire of poten- satisfied that the application brought by the tially 15 separate national authorities Parliament should be upheld. whether a visa will be necessary if they travel to the Community. Hence, I am satisfied that, in the interests of legal certainty, the effects of the Regulation should be main- tained. However, in making this recommen- dation, I think that it is important to stress the obligation of the Council, in particular, to act with due expedition in adopting a new D — The preservation of the effects of the regulation, in accordance with the procedure Reguktion laid down in Article 100c of the Treaty. It may be recalled that, although the Court rejected the Parliament's request, in the 'road-taxes' case, to impose a time-limit on the Council, the Court stated that the Coun- cil was 'under a duty to put an end within a reasonable period to the infringement it has committed'. 29 40. In its defence, the Council asked the Court, pursuant to Article 174 of the Treaty,
28 — See also, for example, the views expressed in: O'Kccffe, T h e New Draft External Frontiers Convention and the Draft Visa Regulation' in J. Monar & R. Morgan eds., The Third PUUT of the European Union, (Brussels, 1994), p. 135 et seq.; Hailbronner, *Visa Regulations and Third-Country Nationals in EC Law', (1994) 31 CMLRev 969; Peers, T h e Visa Regulation: Free Movement Blocked Indefinitely' (1996) 21 ELRev 150. 29 — Paragraph 33 of the judgment.
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OPINION OF MR FENNEIXY — CASE C-392/95
V — Conclusion
41. For the reasons set out above, I recommend that the Court should:
(1) annul Council Regulation (EC) N o 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when cross- ing the external borders of the Member States;
(2) declare that the effects of the annulled regulation shall be preserved until the Council has adopted new legislation in the matter;
(3) order the Council to pay the costs of the action;
(4) order the French Republic to bear its own costs.
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