C-170/96

COMMISSION v COUNCIL

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 5 February 1998

1. In the present annulment action under proposals concerning the entry and move­ Article 173 of the Treaty establishing the ment of third-country nationals in the terri­ 1 European Community (hereinafter 'the tory of the Member States. The first was a Treaty' or 'the EC Treaty'), the Court is proposal for a decision, based on Article K.3 invited, for the first time, to review the legal­ of the Treaty on European Union, establish­ ity of a Council act which, on its face, was ing the Convention on the crossing of the adopted under Title VI of the Treaty on external frontiers of the Member States; the European Union (hereinafter 'Title VI'). The second was the proposal which, subject to a proceedings, which relate to a Council Joint number of modifications, became Council Action regarding airport transit visas, inevi­ Regulation (EC) No 2317/95 of 25 Septem­ tably also raise the question of whether the ber 1995 determining the third countries Court has jurisdiction to decide such a dis­ whose nationals must be in possession of pute. visas when crossing the external borders of the Member States (hereinafter 'Regulation 2 No 2317/95' ). The proposed decision on the Convention has not been adopted.

I — The contested act

3 ... crew members of aircraft and ships, hold­ (hereinafter 'the Joint Action'), which is based on an initiative by the French Presi­ ers of diplomatic, official or service pass­ dency of the Council in February 1995. ports, holders of residence permits or equivalent documents issued by a Member State, [and] holders of visas issued by a Member State, or by a State which is a party to the Agreement on the European Econ­ omic Area'. The Member States are free to decide whether to require an ATV of nation­ 4. Article 1 defines 'airport transit visa' als of third countries not included on the list, (hereinafter 'ATV') as 'the authorisation to and to determine the ATV arrangements which nationals of certain third countries are applicable to statutory stateless persons and subject, as an exception to the principle of refugees (Articles 5 and 6). Articles 7, 8 and free transit laid down in Annex 9 to the Chi­ 10 concern the notification of national mea­ cago Convention on International Civil sures to the other Member States and the Aviation, for transit through the interna­ Council and their publication in the Official tional areas of the airports of Member Journal, reporting requirements and the States'. In accordance with Article 2(1) and entry into force of the Joint Action (1 Octo­ (2), ATVs are to be issued by the consular ber 1996 for 12 Member States and 1 Octo­ services of the Member States under condi­ ber 1997 for Denmark, Finland and Sweden), tions determined by each Member State while Article 9 provides that the Joint Action 'subject to adoption by the Council of crite­ 'shall not prevent closer airport-transit har­ ria to the preliminaries for and issue of monisation between some Member States, 4 visas'. Article 2(3) provides that, with effect extending in scope beyond the joint list from the entry into force of Council Regu­ annexed' thereto. The Annex to the Joint 6 lation (EC) No 1683/95 of 29 May 1995 lay­ Action lists the ten third countries whose ing down a uniform format for visas (herein­ nationals require an ATV. 5 after 'the Uniform Format Regulation'), Member States are to comply with that Regulation in issuing ATVs.

Kingdom of Denmark, the French Republic 8. Article L(c) provides, in effect, that '[the] and the United Kingdom of Great Britain provisions of the Treaty establishing the and Northern Ireland have intervened in European Community ... concerning the support of the Council. powers of the Court of Justice ... and the exercise of those powers shall apply ... to ... Articles L to S' of the Treaty on European Union. Article M states that, apart from the provisions of the Treaty on European Union which expressly amend the Community Treaties, 'nothing in [the Treaty on European Union] shall affect the Treaties establishing the European Communities or the subse­ quent Treaties and Acts modifying or II — Analysis supplementing them'. The power of judicial review which the Court enjoys under the jurisdictional clauses of each of the Commu­ nity Treaties is extended by Article L in con­ junction with Article M, so as to ensure respect for the provisions of those Treaties. The Court must therefore be able to deter­ (a) The jurisdiction of the Court mine whether anything in 'this Treaty', being the Treaty on European Union, and includ­ ing acts adopted thereunder, does 'affect' the Community Treaties. Indeed, in my view, Article M was inserted in the Treaty on European Union with the very purpose of ensuring that, in exercising their powers under Titles V and VI of that Treaty, the 7. The United Kingdom submits that the Council and the Member States do not action is 'plainly inadmissible' since it seeks encroach on the powers attributed to the the annulment of a measure purportedly Communities under the respective founding adopted under Article K.3 of the Treaty on and amending Treaties. European Union, whereas the jurisdiction of the Court is limited to reviewing 'measures whose legal base is an article of the EC Treaty'. The Council and the other Member States have, on the other hand, accepted the jurisdiction of the Court, but the issue merits attention since it raises for the first time the relationship between the exercise of the Court's powers under the EC Treaty and the 9. It follows, in my view, from Article M adoption of an act under provisions of the that, however clear and unambiguous they Treaty on European Union which are care­ may be, the provisions of Title VI may not fully removed from its scrutiny. In the event, be applied so as to restrict in any way the I believe the matter can be resolved on the scope of the provisions of the EC Treaty, basis of the existing case-law and in the light interpreted in accordance with the normal of the provisions of Articles L and M of the canons of construction of Community law. Treaty on European Union. In particular, I do not agree with Denmark's

10. The next question which arises is the extent to which the Court, when entertaining 11. These limitations on the Court's juris­ an annulment action such as the present, and, diction, however, do not deprive it of power more particularly, when considering the issue to consider the content of the contested act of admissibility, may consider the content for the purpose of the present action. The and scope of the contested act, in spite of the situation is to some extent analogous to that restrictions imposed on its power of inter­ which arose in Hurd v Jones, where the pretation. The Commission has relied upon Court had to decide, inter alia, whether, in the proviso in Article K.1 that the exercise of interpreting the provisions of Article 3 of the the Union's powers under that provision is Act concerning the conditions of accession 'without prejudice to the powers of the and the adjustments to the Treaties of European Community'; the Council has 22 January 1972 (hereinafter the '1972 Act of expressly invited the Court, as it did in Par- Accession'), it had jurisdiction, pursuant to 7 Article 177 of the EEC Treaty and liament v Council, to adopt a 'comparative reading' of the provisions of the respective Article 150 of the EAEC Treaty, to interpret Treaties, while the United Kingdom has sub­ the Statute of the European School, the Pro­ mitted that 'the control on [ATV holders] is tocol on the setting-up of the European clearly for a purpose which falls within the schools and certain implementing decisions. wording of Article K.1 TEU'. In my opin­ Article 3 of the 1972 Act of Accession pro­ ion, the Court cannot rule authoritatively on vides that the new Member States 'undertake any of these matters. A finding that the con­ to accede ... to all other agreements con­ tested act is illegal can only be based on a cluded by the original Member States relat­ breach of Article M (interpreted along with ing to the functioning of the Communities the relevant provision of a Community Treaty or principle of Community law). The adoption of a comparative reading would 8 — Order in Case C-167/94 [1995] ECR I-1023, paragraph 6. See, however, Opinion 2/94 where the Court cited, inter alia, Article F(2), the fifth indent of Article J.1(2) and Arti­ cle K.2(1) of the Treaty on European Union to show the importance attached to respect for human rights in the Com­ 7 — Case C-392/95, cited in footnote 2 above, paragraph 12 of munity context: [1996] ECR I-1759, paragraph 32 of the my Opinion. Opinion.

or connected with their activities'. Noting an exercise by the Council of a Community that the provisions concerning the European competence within Article 100c of the EC Schools were neither Treaty provisions nor Treaty. Two general propositions emerge acts of the institutions, the Court held that it from the case-law. Firstly, neither the Mem­ had no jurisdiction to interpret those provi­ ber States nor the institutions of the Com­ sions by way of a preliminary ruling. None munity may take action in respect of a mat­ the less, by virtue of its jurisdiction to inter­ ter within exclusive Community competence pret Article 3 it was empowered to 'interpret outside the Community framework. Sec­ the measures covered by that provision only ondly, in its judicial review of such claimed in order to determine its scope, and not for action, the Court adopts what Advocate the purpose of defining Member States' obli­ General Jacobs has called a 'functional 9 10 gations under such measures'. By the same approach', preferring to look at content token, I consider that the Court may inter­ and effect rather than form. pret acts purporting to be adopted under Title VI of the Treaty on European Union, in order to determine whether or not they deal with matters which more properly fall within the Community sphere of compe­ tence as determined by Article M. In so act­ ing, the Court is neither interpreting provi­ sions of the Treaty on European Union which are outside its jurisdiction nor decid­ 13. This line of cases begins with Commis- ing whether acts are validly adopted thereun­ 1 sion v Council (the 'ERTA' case), 1which der. It is considering such acts only in their concerned proceedings within the frame­ relation to the Community Treaties, where work of the Council coordinating Member the Court's powers are incontestable. State negotiations under the auspices of the United Nations Economic Commission for Europe of the European Road Transport Agreement. The Court, having reviewed the Community powers at their current stage of development, observed that they excluded 'the possibility of concurrent powers on the part of the Member States, since any steps taken outside the framework of the Commu­ nity institutions would be incompatible with the unity of the Common Market and the 12. The jurisdiction of the Court to enter­ 12 uniform application of Community law'. tain the present annulment action is, in my It rejected the argument of the Council that view, not in doubt, nor is it affected by the the coordination of policies 'imposed no fact that the contested act was, on its face, obligations and did not modify any legal adopted pursuant to Title VI of the Treaty position', since 'Article 173 treats as acts on European Union. The Commission open to review by the Court all measures claims, in effect, that, though ostensibly adopted within the framework of the Treaty on European Union, that act was, in reality, 10 — Joined Cases C-181/91 and C-248/91 Parliament v Council and Commission [1993] ECR I-3685, Opinion at para­ graph 21. 11 — Case 22/70 [1971] ECR 263. 9 — Case 44/84 [1986] ECR 29, paragraphs 21 and 22. 12 — Loc. cit., paragraph 31.

'[it] is not enough that an act should be described as a "decision of the Member States" for it to be excluded from review under Article 173 of the Treaty. In order for such an act to be excluded from review, it 14. Similar reasoning was applied by the must still be determined whether, having Court in dealing with the admissibility of the regard to its content and all the circum­ Parliament's annulment action against the stances in which it was adopted, the act in Council in 'Bangladesh I', where, by con­ question is not in reality a decision of the trast, Member State action was in issue. 14 Council. There the contested act was a decision taken at a Council meeting to grant special aid to Bangladesh following a violent cyclone which had struck the country in April 1991; the decision subsequently published in a It follows that the assessment of the admis­ Council press statement was described as sibility of the application is bound up with having been taken by '[the] Member States the assessment to be made of the complaints meeting in the Council'. The Parliament had 15 levelled against the contested act.' argued that the decision was legally a decision of the Council. The Court first noted that 'acts adopted by representatives of the Member States acting, not in their capacity as members of the Council, but as representatives of their governments, and 15. The Court adopted a similar position in thus collectively exercising the powers of the the 'European Development Fund' case, Member States, are not subject to judicial where the contested act had, like the Joint review by the Court'. It continued that 'it Action challenged in the present proceed­ makes no difference in this respect whether ings, indubitably been adopted by the Coun­ such an act is called an "act of the Member cil; 16 as in the present case, the Council States meeting in the Council" or an "act of maintained it was acting outside the frame­ the representatives of the Governments of work of the Treaty. The Court held that an the Member States meeting in the Council"'. action under Article 173 'against an act of an institution intended to have legal effects is

(b) Merits

17. It is common ground between the parties that the Joint Action is a binding instrument which is intended to have legal effects. In my view, the Council's citation of Article J.3(4) of Title V to illustrate this proposition is far from conclusive, as this provision is limited on its face to 'joint actions in matters cov­ 19. Before considering the merits of the dis­ ered by the foreign and security policy'. On pute, it might be useful to attempt to identify the other hand, if the contested act had been the reasons the Community was granted the adopted on the basis of Article 100c(1), as limited competence it enjoys by virtue of Article 100c of the Treaty, when policy mat­ ters concerning nationals of third countries 17 — Ibid., paragraph 9. generally fall outside the ambit of its regula-

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20. The Treaty on European Union sought to confront this situation by, inter alia, 21. The central question to be considered in attributing to the Community legislative this case is the meaning of the phrase 'cross­ ing the external borders of the Member States' in Article 100c(l) of the Treaty. This, in effect, determines whether the ATV falls 18 — In the 'migration policy' cases, the Court recognised that, though only to the extent that it 'concerns the situation of within the scope of Article 100c(l). If, as the workers from non-member countries as regards their Council maintains, this phrase only refers to impact on the Community employment market and on working conditions', migration policy was capable of fall­ crossing a border control point, and an ATV ing within the scope of Article 118 of the Treaty (Joined Cases 281/85, 283/85 to 285/85 and 287/85 Germany and does not permit such a crossing, then the Others v Commission [1987] ECR 3203, paragraph 23). conditions for recourse to Article 100c(l) are 19 — The compatibility with Article 7a of the Treaty of such internal border controls and the competence of the Com­ not fulfilled, and the Commission must fail. munity to require their complete abolition are matters of As I have noted elsewhere, this provision some dispute (see, in particular, Case C-445/93 Parliament v Commission, Order of 11 July 1996, not published in the must be interpreted in the light of its word­ ECR), though these questions are not directly germane to ing, scheme and purpose, and having regard the present proceedings.

22. Neither the wording of Article 100c(1) itself nor the language used in other instru­ ments appears to me to be conclusive. According to the Commission 'crossing the 23. In Article 5 of the Uniform Format external borders' means physical entry onto Regulation the Council defined 'visa' to the territory of the Member State concerned, include 'an authorisation ... required for while the Council would restrict it to the entry into its territory with a view to ... tran­ crossing of a border control point. It seems sit through the territory or airport transit to me that the terminology employed in the zone of that Member State or several Mem­ various instruments cited is not always con­ ber States'. It was thus using the expression sistent. The Council in particular has relied 'entry into [the] territory' of a Member State heavily on the text of the Joint Consular to mean physical entry. Instruction adopted by the Contracting Par­ ties to the Schengen Convention, defining in particular the conditions for the issue of a uniform visa which is valid for the territory of all the Contracting Parties. Paragraph 2.1 of this text defines the term 'uniform visa' as being the authorisation or decision of a Con­ tracting Party affixed to a passport, travel ticket or other valid document which allows the holder to cross borders, yet it includes within the scope of this term the ATV, which, according to paragraph 2.1.1, does 24. Two aspects of border crossing must in not allow the holder to accede to the my view be distinguished. The first is that of national territory of the country concerned. entering the territory of a country in the It seems to me, however, that in the present physical sense, without necessarily crossing a proceedings the Council is defending a defi­ border control point; the second is that of nition of ATV which, as regards the termi­ entering the territory in the legal sense of nology used, is at variance with that which crossing a border control point. On first arises from the Consular Instruction, even if impression a visa requirement relates prima­ this document were recognised as having rily to the holder's legal rights of entry some interpretative value, in that the ATV rather than his geographical location. Visa policy as generally understood is a means of controlling the crossing of legal, rather than physical, borders. In the case of air travel, 20 — Sec my Opinion in Case C-392/95, cited in footnote 2 above, at paragraph 36. the country of destination may not even be

26. Similarly, Article 5 of Regulation 24 No 2317/95 provides that: '"visa" shall mean an authorisation given or a decision taken by a Member State which is required for entry into its territory with a view to ... an intended stay ... of no more than three 25. It is in this sense that 'visa' has been months in all [or] transit through the terri­ understood in Community law to date. tory of that Member State or several Mem­ Council Directive 68/360 of 15 October 1968 ber States, except for transit through the on the abolition of restrictions on movement international zones of airports and transfers and residence within the Community for between airports in a Member State'. Once workers of Member States and their fami­ 22 again, it is clear that the visa envisaged by lies at Article 3(2) provides that '[no] entry this Regulation is a legal document allowing visa or equivalent document' may be passage through a border control point. imposed on workers covered by Article 3(1) of the Directive when entering the territory of a Member State. The Court, in Regina v Pieck, and again in Commission v Belgium, interpreted this expression as covering 'any formality for the purpose of granting leave to enter the territory of a Member State which is coupled with a passport or identity 27. Furthermore, the meaning of the phrase card check at the frontier, whatever may be 'crossing the external borders of the Member the place or time at which that leave is States', which was generally accepted at the granted and in whatever form it may be 23 time of the drafting of the Treaty on Euro­ granted'. The coupling in this passage of pean Union, was precisely that on which the the formalities of entry with incidental Council now relies. Thus, in submitting its physical entry onto the territory of the proposal for a Council Decision establishing Member State is persuasive of the view I a Convention on controls on persons cross­ take, that a visa, for the purposes of 25 ing external frontiers, the Commission Article 100c(1), is an authorisation for the proposed that the 'external frontiers' of a holder to pass a border control and not Member State be defined as either its land or maritime frontiers or its airports or seaports. As airports can be hundreds of kilometres 21 — The Council explained at the oral hearing that in any case the ATV requirement was enforced by imposing fines on the airline responsible for the physical entry without an ATV, rather than against the individual concerned. 22 — OJ, English Special Edition, First Series 1968 (II), p. 485. 24 — While it is true, as was observed at the oral hearing, that this Regulation has been annulled, its terms can assist the 23 — Case 157/79 Regina v Pieck [1980] ECR 2171, para­ interpretation of Article 100c(1). graph 10; Case 321/87 Commission v Belgium [1989] ECR 997, paragraph 9. 25 — Cited in footnote 1 above.

28. The Council refers to the legislation of the United Kingdom as illustrative of the practice of the Member States in this regard. Section 11(1) of the Immigration Act 1971 provides that '[a] person arriving in the 30. As regards the general scheme of the United Kingdom by ... aircraft shall for the Treaty, Article 100c is to be found in Chap­ purposes of this Act be deemed not to enter ter 3 ('Approximation of laws') of Title V the United Kingdom unless and until he dis­ ('Common rules on competition, taxation embarks, and on disembarkation at [an air­ and approximation of laws'). Unlike the port] shall further be deemed not to enter immediately preceding Articles 100a and the United Kingdom so long as he remains 100b, it is not mentioned expressly in in any such area (if any) at the [airport] as Article 7a as being one of the provisions in may be approved for this purpose by an accordance with which the internal market

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31. As I will explain shortly, I agree that Article 100c is designed to contribute to the establishment of the internal market, but this fact does not, in my opinion, support the position the Commission has taken in the 32. In my view, Article 100c(1) cannot be present case. Accepting that Article 100c interpreted without regard to Article 3(d) of should be interpreted in the light of the Treaty, which includes among the activi­ Article 7a of the Treaty, as the Commission ties of the Community: 'measures concern­ suggests, then measures adopted on the basis ing the entry and movement of persons in of Article 100c should in some way be the internal market as provided for in designed to contribute to the establishment Article 100c'. The Commission seeks to of the free movement of persons within the minimise the interpretative value of this pro­ internal market. The Commission has not vision by describing it as merely 'program­ shown how the adoption by the Community matic in character', while Article 100c is of a measure regulating the necessarily brief described as 'precise and detailed'. This ignores the fact that Article 3(d), alone among the provisions listing Community activities in Article 3, refers to a specific legal 26 — COM(93) 664 final, p. 40.

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basis. Since the pursuit of all the enumerated — on the same basis as the other preliminary activities is, furthermore, subject to the provisions but with a particular relevance — introductory proviso, 'as provided in this as an instrument of the interpretation of the Treaty', the reference to Article 100c appears 28 other provisions of the Treaty'. designed to preclude reliance on any other legal basis, and, in particular, Article 235, to achieve the objective of the entry and move­ ment of third-country nationals in the inter­ nal market. The expression 'entry and move­ ment' in Article 3(d) is a single term, where the two words are to be construed conjunc­ tively and not disjunctively. The measures envisaged by this provision, and, accord­ ingly, by Article 100c, are also related to the establishment of the single market.

28 — Commentary on Article 3 in Constantincsco et al., Traité 27 — Case 53/81 Levin v Staatssecretaris vati Justitie [1982] instituant la CEE Commentaire article par article. Eco­ ECR 1035, paragraph 15. nomica, Paris, 1992, p. 41 (free translation).

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35. It remains to be considered whether the or even enter the territory illegally by avoid­ ATV regime established by the contested ing immigration control at a border post. Joint Action falls within the scope of Article 100c(1) as I have interpreted it, with a view to assessing whether that action, having been adopted outside the Treaty, should be annulled.

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appear from its application in previous legis­ external borders of the Member States', and lative acts which, furthermore, are not being that the subject-matter of the contested Joint challenged in the present proceedings. Action is consequently outside the scope of Article 100c(1). In these circumstances, the Commission's action is inadmissible, as the Court has no jurisdiction under Article 173 46. I am therefore of the opinion that the of the Treaty to review the legality of a Council is correct in maintaining that the Council act which falls outside the sphere of ATV does not entitle the holder to 'cross the the Community's competence.

III — Conclusion

47. In the light of the foregoing, I recommend that the Court :

(1) Dismiss the application as inadmissible;