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Implementing Powers

I was unexpectedly fascinated by what the European Court of Justice had to say in today’s Schengen Border Code case. As others have also argued, the whole field of delegated acts/implementing powers is an oft-overlooked but vitally important area, with great potential for mischief. In January, I posted an introduction to the post-Lisbon state of affairs here. At the time, however, I was mostly concerned with the political wrangling between the European Parliament and the Council about where to draw the line between delegated lawmaking under art. 290 TFEU (which involves more power for the European Parliament) and implementing legislation under art. 291 TFEU (which favours the Commission and the Council). Today’s case, however, is about an implementing decision that was taken under the old, pre-Lisbon comitology procedures, specifically the Regulatory Procedure with Scrutiny. (Cf. art. 5a of the Comitology Decision.) The question for the Court to answer was whether this was a valid exercise of the power delegated in art. 12 of the Schengen Border Code, or whether it was ultra vires.

Article 12
Border surveillance
1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally.
2. The border guards shall use stationary or mobile units to carry out border surveillance.
That surveillance shall be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points.
3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected.
4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means.
5. Additional rules governing surveillance may be adopted in accordance with the procedure referred to in Article 33(2).

Based on this last paragraph, the Commission proposed, and the Council ultimately adopted, Decision 2010/252. (Technically, what happened is that the Commission couldn’t get the relevant Regulatory Committee to go along with its proposal, so it ended up on the plate of the Council. Parliament didn’t object, and the Council ended up adopting it.)

According to its title, the purpose of the Decision is to “[supplement] the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union”. Specifically, the Decision “supplemented” the SBC with a number of rules and guidelines for sea border operations, such as what to do with people discovered at sea trying to make it to shore in vessels of varying levels of seaworthiness. (Think Libyan sea refugees.) Question: Is the Council entitled to do this in the exercise of its implementing powers under art. 12(5) SBC, or is this something that should have been done by the EU legislator, i.e. by Council and Parliament in collaboration?

When the Advocate-General’s opinion came out, I was mostly amused by the argument that the Parliament’s action was inadmissible because they didn’t vote to block the adoption of this measure even though they could have. On the substance, I didn’t look too closely, because I assumed it was a simple matter of tracking down the correct interpretation of art. 12(5) SBC. If the legislature, in enacting that provision, intended for this kind of implementing act to be enacted under comitology, it should generally be allowed. However, even at the time I already should have read more carefully. The AG, in recommending that the Decision should be annulled, relied heavily on the idea that the “essential elements” of a given subject-matter can only be enacted by the legislator, i.e. that implementing legislation cannot touch on such elements. This is an interesting idea, and one that apparently goes back to the 1970 case of Köster, but in the AG’s opinion it came off a bit ill-defined. Apart from the question of whether the provision affects fundamental rights, no real definition was offered of what makes an element “essential”.

Speaking with the mouth of the German judge Von Danwitz today, the Court gives much clearer guidance. To begin with, he reiterates the importance of fundamental rights as a factor in deciding whether something is an essential element of the subject-matter at hand:

77 [I]t 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.

More interestingly, he crafts something of a political question doctrine, except an entirely different one than the one most courts are used to. He tries to draw a line between decisions that are “political” and decisions that are “technocratic”, leaving the former to the EU legislator.

76 [T]he 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.

I think this is very interesting. Assuming it isn’t taken too far, this is potentially a clear rule that can guide the political branches of the EU government in their quarrels over art. 290 and 291, at least when it comes to be boundary between those two articles and the general lawmaking power. Moreover, I think it is an excellent piece of judging. This paragraph does not attempt to craft constitutional principles wholesale. (Given that the EU legal order has always had, in practice, a very common law style, its judges sometimes forget the rule of art. 5 CC: “Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises.“) Instead, it sticks strictly to the case at bar, developing the existing case law (which is cited in par. 64 and discussed in the AG’s opinion in par. 26-29, in particular) only as much as is necessary in order to resolve the dispute.

Yet, at the same time, this paragraph gives clear guidance to future judges. A matter is political to the extent that a) it requires a significant – and complex – weighing of interests, and b) there is a significant range of possible ways in which this can be done, i.e. a great number of policy options to choose from. As an additional factor, he offers the involvement of 3rd countries, which is sensible in this case but will probably not come up in most future cases.

Whenever I complain about the paucity of explanation given by judges (like here, in Dutch), this is roughly how I would like to see it. It is still not an academic treatise. Nor is it an attempt to use too much verbiage to hide the fact that the judge is not in the business of applying rules mechanically, but rather making a judgement call as he is paid to do. Instead, it cites case law and explains in  brief and clear language which considerations led the Court to decide as it did. Hopefully this case will help make the post-Lisbon Comitology 2.0 a little less scary.

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