TRSTENJAK,

delivered on 10 July 2007 1

Case C‑77/05

(Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European agency for the management of operational cooperation at the external borders of the Member States of the European Union – European Agency for the management of operational cooperation at the external borders of the Member States of the European Union – Application for annulment – Validity of Regulation No 2007/2004 – Closer cooperation – Protocol integrating the Schengen acquis into the framework of the European Union – Schengen acquis – Cooperation by the United Kingdom – Consent for cooperation not granted – Infringement of essential procedural requirements)

I – Introduction

3. In both cases the Court is asked, first and foremost, to give a ruling on the Protocol integrating the Schengen acquis into the framework of the European Union, which is one of the protocols annexed to the EU Treaty and the EC Treaty. In addition to that issue, the wider problem is raised of the scope of the system of closer cooperation within the structure of the European Union.

II – Legislation

A – The Treaty establishing the European Community

…

(a) standards and procedures to be followed by Member States in carrying out checks on persons at such borders’.

6. Article 69 EC provides as follows: ‘The application of this title shall be subject to the provisions of the Protocol on the position of the United Kingdom and Ireland and to the Protocol on the position of Denmark and without prejudice to the Protocol on the application of certain aspects of Article 14 of the Treaty establishing the European Community to the United Kingdom and to Ireland.’

B – The Protocol integrating the Schengen acquis into the framework of the European Union

8. Protocol (No 2) integrating the Schengen acquis into the framework of the European Union (‘the Schengen Protocol’) is one of the protocols annexed to the EU and EC Treaties and was made part of primary law by the Treaty of Amsterdam.

9. By virtue of Article 1 of the Schengen Protocol, the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland and the Kingdom of Sweden, signatories to the Schengen agreements, are authorised to establish closer cooperation among themselves within the scope of those agreements and related provisions, as they are listed in the annex to that protocol (hereinafter referred to as ‘the Schengen acquis’). Such cooperation is to be conducted within the institutional and legal framework of the European Union and with respect for the relevant provisions of the Treaty on European Union and of the Treaty establishing the European Community.

11. Article 3 of the Schengen Protocol provides as follows: ‘Following the determination referred to in Article 2(1), second subparagraph, Denmark shall maintain the same rights and obligations in relation to the other signatories to the Schengen agreements as before the said determination with regard to those parts of the Schengen acquis that are determined to have a legal basis in Title IV of the Treaty establishing the European Community’.

12. Article 4 of the Schengen Protocol states:

‘Ireland and the United Kingdom of Great Britain and Northern Ireland, which are not bound by the Schengen acquis, may at any time request to take part in some or all of the provisions of this acquis. The Council shall decide on the request with the unanimity of its members referred to in Article 1 and of the representative of the Government of the State concerned’.

13. Article 5 of the Schengen Protocol provides:

‘1. Proposals and initiatives to build upon the Schengen acquis shall be subject to the relevant provisions of the Treaties.

In this context, where either Ireland or the United Kingdom or both have not notified the President of the Council in writing within a reasonable period that they wish to take part, the authorisation referred to in Article 11 of the Treaty establishing the European Community or Article 40 of the Treaty on European Union shall be deemed to have been granted to the Member States referred to in Article 1 and to Ireland or the United Kingdom where either of them wishes to take part in the areas of cooperation in question.

14. Article 6 of the Schengen Protocol states ‘The Republic of Iceland and the Kingdom of Norway shall be associated with the implementation of the Schengen acquis and its further development on the basis of the Agreement signed in Luxembourg on 19 December 1996.’

15. Article 8 of that protocol provides that, for the purposes of the negotiations for the admission of new Member States into the European Union, the Schengen acquis and further measures taken by the institutions within its scope are to be regarded as an acquis which must be accepted in full by all States candidates for admission.

16. The Schengen acquis is defined in the Annex to the Schengen Protocol. According to that annex, the acquis comprises the agreement signed in Schengen on 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders; the Convention signed in Schengen on 19 June 1990 between the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, implementing the Agreement on the gradual abolition of checks at their common borders, signed in Schengen on 14 June 1985, with related Final Act and common declarations; the Accession Protocols and Agreements to the 1985 agreement and the 1990 Implementation Convention with Italy, Spain and Portugal, Greece, Austria, and Denmark, Finland and Sweden, with related Final Acts and declarations; and, finally, the decisions and declarations adopted by the Executive Committee established by the 1990 Implementation Convention, as well as acts adopted for the implementation of the Convention by the organs upon which the Executive Committee has conferred decision-making powers.

C – The Protocol on the position of the United Kingdom and Ireland

17. The Protocol on the position of the United Kingdom and Ireland (‘the Title IV Protocol’), which is also annexed to the EU Treaty and the EU Treaty, governs cooperation by those two States in the event of proposals being submitted within the scope of Title IV of the EC Treaty.

18. According to Article 1 of that protocol: ‘Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title IV of the Treaty establishing the European Community …’

19. Article 2 of the Title IV Protocol states:

‘In consequence of Article 1 and subject to Articles 3, 4 and 6, none of the provisions of Title IV of the Treaty establishing the European Community, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Community pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the acquis communautaire nor form part of Community law as they apply to the United Kingdom or Ireland.’

‘1. The United Kingdom or Ireland may notify the President of the Council in writing, within three months after a proposal or initiative has been presented to the Council pursuant to Title IV of the Treaty establishing the European Community, that it wishes to take part in the adoption and application of any such proposed measure, whereupon that State shall be entitled to do so … .

21. Article 4 of the Title IV Protocol provides:

‘The United Kingdom or Ireland may at any time after the adoption of a measure by the Council pursuant to Title IV of the Treaty establishing the European Community notify its intention to the Council and to the Commission that it wishes to accept that measure. In that case, the procedure provided for in Article 11(3) of the Treaty establishing the European Community shall apply mutatis mutandis.’

22. Article 7 of the Title IV Protocol provides that Articles 3 and 4 are to be without prejudice to the Protocol integrating the Schengen acquis into the framework of the European Union.

D – The protocol on the position of Denmark

23. Article 5 of the Protocol on the position of Denmark, also annexed to the EC Treaty and the EU Treaty, provides as follows:

‘1. Denmark shall decide within a period of six months after the Council has decided on a proposal or initiative to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community, whether it will implement this decision in its national law. If it decides to do so, this decision will create an obligation under international law between Denmark and the other Member States referred to in Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union as well as Ireland or the United Kingdom if those Member States take part in the areas of cooperation in question.

E – Declarations annexed to the Treaty of Amsterdam

24. The Declaration on Article 4 of the Protocol integrating the Schengen acquis into the framework of the European Union (Declaration No 45) states as follows:

‘The High Contracting Parties invite the Council to seek the opinion of the Commission before it decides on a request under Article 4 of the Protocol integrating the Schengen acquis into the framework of the European Union by Ireland or the United Kingdom of Great Britain and Northern Ireland to take part in some or all of the provisions of the Schengen acquis.

They also undertake to make their best efforts with a view to allowing Ireland or the United Kingdom of Great Britain and Northern Ireland, if they so wish, to use the provisions of Article 4 of the said Protocol so that the Council may be in a position to take the decisions referred to in that article upon the date of entry into force of that Protocol or at any time thereafter.’

25. The Declaration on Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union (Declaration No 46) states as follows:

‘The High Contracting Parties undertake to make all efforts in order to make action among all Member States possible in the domains of the Schengen acquis, in particular whenever Ireland and the United Kingdom of Great Britain and Northern Ireland have accepted some or all of the provisions of that acquis in accordance with Article 4 of the protocol integrating the Schengen acquis into the framework of the European Union.’

F – Regulation No 2007/2004

26. According to recital 3 in the preamble to Regulation No 2007/2004, taking into account the experiences of the External Borders Practitioners’ Common Unit, acting within the Council, a specialised expert body entrusted with the task of improving the coordination of operational cooperation between Member States in the field of external border management must be established in the form of a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.

27. According to recitals 23 to 25 of Regulation No 2007/2004, the latter constitutes a development of the Schengen acquis.

28. According to recital 25 to Regulation No 2007/2004, that regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis. 4 The United Kingdom did not therefore take part in its adoption and is not bound by it or subject to its application.

29. Recital 26 to Regulation No 2007/2004 contains similar statements regarding Ireland.

30. Article 1 of Regulation No 2007/2004 provides as follows:

‘1. A European Agency for the Management of Operational Cooperation at the External Borders (the Agency) is hereby established with a view to improving the integrated management of the external borders of the Member States of the European Union.

3. The Agency shall also provide the Commission and the Member States with the necessary technical support and expertise in the management of the external borders and promote solidarity between Member States.’

31. Article 2 concerns the main tasks of the Agency and provides as follows:

‘1. The Agency shall perform the following tasks:

(a) coordinate operational cooperation between Member States in the field of management of external borders;

(b) assist Member States on training of national border guards, including the establishment of common training standards;

(c) carry out risk analyses;

(d) follow up on the development of research relevant for the control and surveillance of external borders;

(e) assist Member States in circumstances requiring increased technical and operational assistance at external borders;

(f) provide Member States with the necessary support in organising joint return operations.

Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives.

Member States shall report to the Agency on these operational matters at the external borders outside the framework of the Agency.’

32. Article 3 concerns joint operations and pilot projects at external borders, and provides as follows:

‘1. The Agency shall evaluate, approve and coordinate proposals for joint operations and pilot projects made by Member States.

The Agency may itself, and in agreement with the Member State(s) concerned, launch initiatives for joint operations and pilot projects in cooperation with Member States.

It may also decide to put its technical equipment at the disposal of Member States participating in the joint operations or pilot projects.

3. The Agency shall evaluate the results of the joint operations and pilot projects and make a comprehensive comparative analysis of those results with a view to enhancing the quality, coherence and efficiency of future operations and projects to be included in its general report provided for in Article 20(2)(b).

33. Article 4 concerns risk analysis and provides that the Agency is to develop and apply a common integrated risk analysis model. It is to prepare both general and tailored risk analyses to be submitted to the Council and the Commission.

34. According to Article 5, concerning training, the Agency is to establish and further develop a common core curriculum for border guards’ training and provide training at European level for instructors of the national border guards of Member States. The Agency is also to offer additional training courses and seminars on subjects relating to control and surveillance of the external borders and return of third country nationals for officers of the competent national services of the Member States.

35. Article 7 provides:

‘The Agency shall set up and keep centralised records of technical equipment for control and surveillance of external borders belonging to Member States, which they, on a voluntary basis and upon request from another Member State, are willing to put at the disposal of that Member State for a temporary period following a needs and risks analysis carried out by the Agency.’

36. Article 12 governs cooperation with Ireland and the United Kingdom and provides as follows:

‘1. The Agency shall facilitate operational cooperation of the Member States with Ireland and the United Kingdom in matters covered by its activities and to the extent required for the fulfilment of its tasks set out in Article 2(1).

3. The application of this Regulation to the borders of Gibraltar shall be suspended until the date on which an agreement is reached on the scope of the measures concerning the crossing by persons of the external borders of the Member States.’

37. Under Article 15 of Regulation No 2007/2004, the Agency is a body of the Community and has legal personality. In each of the Member States, the Agency enjoys the most extensive legal capacity accorded to legal persons under their laws. The Agency may in particular acquire or dispose of movable and immovable property and may be a party to legal proceedings.

38. Article 21 of Regulation No 2007/2004 governs the composition of the Management Board. Paragraph 3 provides as follows:

‘3. Countries associated with the implementation, application and development of the Schengen acquis shall participate in the Agency. They shall have one representative and an alternate each in the Management Board. Under the relevant provisions of their association agreements, arrangements will be developed which shall, inter alia, specify the nature and extent of, and the detailed rules for, the participation by these countries in the work of the Agency, including provisions on financial contributions and staff.’

39. Article 29 of the same regulation contains budgetary provisions and states that the revenue of the Agency is to consist, without prejudice to other types of income, of a subsidy from the Community entered in the general budget of the European Union (Commission section), a contribution from the third countries associated with the implementation, application and development of the Schengen acquis, fees for services provided and any voluntary contribution from Member States.

III – Facts and procedure

40. On 11 November 2003, the Commission submitted the proposal for Regulation No 2007/2004 to the Council.

41. On 14 February 2004, the United Kingdom notified the Council in writing of its wish to participate in the adoption of the regulation on the basis of Article 5(1) of the Schengen Protocol.

42. Notwithstanding the notification from the United Kingdom, the Council adopted Regulation No 2007/2004 on 26 October 2004, having taken the view that the proposal for Regulation No 2007/2004 fell within the proposals and initiatives based on that part of the Schengen acquis in which the United Kingdom does not participate by virtue of Council Decision No 2000/365/EC.5

43. The United Kingdom contends that the fact that it was not able to participate in the adoption of Regulation No 2007/2004 constitutes an infringement of Article 5 of the Schengen Protocol and therefore, on 17 February 2005, it brought the present action for annulment.

44. In the course of proceedings, Ireland, the Polish Republic and the Slovak Republic intervened in support of the United Kingdom.

45. The Commission and the Kingdom of Spain intervened in support of the Council.

46. The United Kingdom claims that the Court should:

–annul Regulation No 2007/2004;

–determine, pursuant to Article 231 EC, that, following the annulment of Regulation No 2007/2004 and pending the adoption of new legislation in this matter, the provisions of that regulation should remain effective except in so far as they have the effect of excluding the United Kingdom from participating in its application;

–order the Council to pay the costs.

47. The Council contends that the Court should:

–dismiss the application;

–order the United Kingdom to pay the costs.

48. Ireland, the Polish Republic and the Slovak Republic seek the form of order requested by the United Kingdom.

49. The Commission and the Kingdom of Spain seek the form of order requested by the Council.

50. At the hearing on 13 March 2007, which was also the hearing for Case C‑137/05, the United Kingdom, the Council, Ireland, the Slovak Republic, the Commission, the Kingdom of the Netherlands and the Kingdom of Spain presented their oral arguments and answered questions put to them by the Court.

IV – Arguments of the parties

A – United Kingdom

51. The ground of the United Kingdom’s argument is that there are two different kinds of measure based on the Schengen acquis. The first comprises Schengen-integral measures, and the second Schengen-related measures. In its view, integral measures are inextricably linked to the Schengen acquis, such as, for example, measures which amend the provisions of that acquis in which the United Kingdom does not cooperate. Measures of the second kind, on the other hand, are not inextricably linked to the Schengen acquis but may be adopted for the attainment of its objectives. The integrity of the Schengen acquis would not be jeopardised if the United Kingdom were to participate in the adoption of measures of the second type. Regulations Nos 2007/2004 and 2252/2004 are, in its view, measures of the second kind. As regards Regulation No 2007/2004, the United Kingdom contends that it is a Schengen-related measure, which does not supersede or amend any provision.

52. The United Kingdom’s main argument is that the Council acted unlawfully by preventing it from participating in the adoption of Regulation No 2007/2004. The United Kingdom notified the Council, under Article 5(1) of the Schengen agreement and Article 3(1) of the Title IV Protocol, that it wished to participate in the adoption of Regulation No 2007/2004. In its view, the Council’s conduct amounts to an infringement of essential procedural requirements within the meaning of the second paragraph of Article 230 EC.

53. The United Kingdom contends that, with regard to the first pillar and the principle of cooperation in relation to Title VI EU, 6 Article 10 EC provides sufficient protection of the integrity of the Schengen acquis.

from any abuse and claims that in the past it has already cooperated in informal measures in areas covered by Regulation No 2004/2007 such as, for example, cooperation in the External Borders Practitioners’ Common Unit. The Council’s approach is particularly formalistic if it is borne in mind that the earlier measures were adopted on the basis of inter-governmental cooperation and not at Community level. Moreover, in the areas relating to training, risk analysis and the carrying out of scientific analyses or technical and operational assistance regarding common action for the return of aliens, the cooperation of the United Kingdom was not necessary for the removal of internal borders. The United Kingdom has an interest in the common control of the external borders of the Schengen area.

54.The United Kingdom contests the Council’s assertion that the application of Article 5 of the Schengen Protocol depends on the prior application of Article 4 of that protocol. The Council has misinterpreted Article 5 of the Schengen Protocol to the effect that that article may be applied only to that part of the Schengen acquis which applies to the United Kingdom by virtue of the decision adopted on the basis of Article 4 of that protocol. The United Kingdom describes that interpretation as the ‘subordination thesis’. It conflicts with the literal wording of the Schengen Protocol, the nature of Article 5 and Declaration No 46 annexed to the Treaty of Amsterdam. Rather than the subordination thesis, the United Kingdom proposes application of the ‘independence thesis’, according to which the application of Article 5 is independent from that of Article 4 of the Schengen Protocol, given that those two articles do not display any reciprocal relationship of superiority or subordinacy.

55.The wording of Article 5(1) of the Schengen Protocol, according to which measures adopted on that legal basis are applicable to all the Member States, runs counter to the subordination thesis. Therefore, development of the Schengen acquis is governed by the relevant provisions of the Treaties. The second paragraph of Article 5(1) of the Schengen Protocol governs not the opting-out mechanism but rather that of enhanced cooperation. It is clear from that provision that the United Kingdom’s participation does not depend on the consent of the other Member States which cooperate in the Schengen acquis (hereinafter ‘the Schengen Member States’). The arguments relied on to show that Article 5(1) of the Schengen Protocol concerning Ireland and the United Kingdom’s right to participate is ambiguous and incomplete are unconvincing. The United Kingdom does not need the consent of the other Schengen Member States, given that written notification from the United Kingdom excludes (or deactivates) the mechanism of enhanced cooperation.

56.The United Kingdom maintains that the independence thesis is compatible with Article 7 of the Title IV Protocol. The essential aim of that article is to make it clear that, on the basis of the Title IV Protocol, the United Kingdom and Ireland are not entitled to associate themselves with those parts of the Schengen acquis which, on the basis of Council Decision 99/436,(7) have their legal basis in Title IV. But if the United Kingdom gives written notice to the Council in accordance with Article 5(1), second subparagraph, of the Schengen Protocol, and the legal basis of the proposal in which it intends participating is Title IV EC, the Title IV Protocol will apply. Moreover, the independence thesis is also in conformity with the requirement that the integrity of the Schengen acquis must be preserved. The United Kingdom’s cooperation in that acquis without prior authorisation does not threaten the integrity of the Schengen acquis, given that the latter is sufficiently guaranteed by Article 10 EC and Article 3(2) of the Title IV Protocol, which, in certain circumstances, allows the adoption of certain measures without the participation of the United Kingdom.

57.According to the United Kingdom, the Schengen Protocol provides for two mechanisms for enhanced cooperation. The first is governed by Article 4 of that protocol and applies to the integration of the Schengen acquis into Union law and Community law. The second, governed by Article 5 of that protocol, is on the other hand concerned with the development of that acquis. Articles 4 and 5 of the Schengen Protocol provide for different procedures for accession to that acquis or mere development of it.

58.In the United Kingdom’s opinion, the only possible interpretation of Article 5 of the Schengen Protocol is that it applies solely to measures based on the Schengen acquis in which the United Kingdom does not participate. If that article did in fact refer to the measures in which the United Kingdom participates, it would, like Article 2 of the Protocol on the position of Denmark for example, have to contain provisions preventing the United Kingdom from participating in the adoption of such measures even if it wished to do so.

59.The United Kingdom also maintains that the interpretation of Article 5 proposed by the Council, in accordance with the subordination thesis, constitutes a breach of the principle of proportionality. The United Kingdom and Ireland have participated in many instances in the development of the Schengen acquis, but without resorting to the procedure under Article 4 of the Schengen Protocol. Many exceptions, in which participation was possible without recourse to the procedure provided for in Article 4 of the Protocol, show that the integrity of the Schengen acquis was not threatened.

60.The broad and loose conception of measures building on the Schengen acquis which the Council employs in its practice also conflicts with the principle of legal certainty. The two-step test used by the Council in order to ascertain whether the measures concerned are legally based on the Schengen acquis is therefore incompatible with Article 5 of the Schengen Protocol. The second part of the test, which seeks to ascertain whether the matter involved is essential to the free movement of persons in a context in which checks of persons at borders have been abolished, is too loose to be compatible with the requirements of legal certainty.

61.It is true that the United Kingdom does not wish to proceed with abolition of internal borders of the kind adopted by the Schengen Member States. But that objective does not theoretically imply any risk, for the Schengen Member States, that the integrity of the Schengen acquis might be imperilled.

62.In the alternative, the United Kingdom claims that, if the Court upheld the merits of the independence thesis, it would necessarily follow that Article 5 of the Schengen Protocol does not apply to Schengen-related measures. That article applies only to integral measures. Since, however, the contested regulation does not fall within the latter category, the United Kingdom should have participated in its adoption.

B – Interveners supporting the United Kingdom

63.Referring to the provisions on the interpretation of international Treaties contained in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, the Irish Government maintains that no interpretation may contradict the literal wording of Articles 4 and 5 of the Schengen Protocol. Ireland also supports the United Kingdom’s thesis that Articles 4 and 5 of that protocol are independent one of the other, referring to Article 8 of that protocol and to Article 6(2) of Council Decision 2002/192/EC.(8) The fact that that decision mentions only measures that form part of the Schengen acquis and were adopted in accordance with the Schengen Protocol does not mean that a dynamic interpretation of the Schengen Protocol is premissible. Rather, the Council may not, by its decision, amend primary law. The Irish Government also considers that the Council practice disproportionately obstructs cooperation by Ireland and the United Kingdom.

64.The Slovak Republic supports the United Kingdom. The fact that a Member State does not participate in the Schengen acquis cannot prevent it from participating on the basis of Article 5 of the Schengen Protocol or Article 3(1) of the Title IV Protocol. In its view, the analysis to be undertaken requires additional factors and it therefore proposes a different analysis, based on Articles 4 and 5 of the Schengen Protocol. According to that analysis, cooperation based on Article 5 of the Schengen Protocol may be denied only where there are reasonable grounds for thinking that the integrity and coherence of the Schengen acquis might be put at risk. For that to be the case, cooperation by non-Schengen States must clearly and directly conflict with the objectives of the Schengen acquis, which means, in practice, that it must actually give rise to restrictions on both the effectiveness and the functioning of measures forming part of the Schengen acquis.

65.The Slovak Government also maintains that the Council’s position, according to which Article 4 of the Schengen Protocol is binding in respect of cooperation on development measures, implies that Article 5 of that protocol is superfluous.

66.According to the Polish Republic, which has submitted written observations only in Case C-77/05, this case raises the problem of the lack of clarity surrounding the notion of the Schengen acquis and the participation of the United Kingdom in cooperation regarding that acquis. It contends that the notion of the Schengen acquis is not clearly defined and that therefore, in principle, it cannot be stated with certainty whether Regulation No 2007/2004 is part of that acquis or whether it constitutes only a development thereof or a measure based on the acquis. The Schengen acquis is not a part of the legal order but rather a group of individual measures. Consequently, Regulation No 2007/2004 does not fall within any particular area but rather constitutes an autonomous measure not linked to other aspects of the protection of external borders. In the Polish Government’s opinion, Regulation No 2004/2007 may be interpreted as a measure based on the Schengen acquis. The United Kingdom’s right to participate in measures based on the Schengen acquis derives directly from Article 5 of the Schengen Protocol, for which reason it is unnecessary to proceed in accordance with Article 4 of that protocol. The multiplicity and heterogeneity of the various forms of cooperation by States in the Schengen acquis show that the Schengen acquis is extremely flexible. Moreover, that diversity is a feature of the acquis as a whole. Consequently, the Polish Government does not subscribe to the argument that the United Kingdom’s participation in Regulation No 2004/2007 puts the integrity of the Schengen acquis at risk.

C – The Council

67.According to the Council, the United Kingdom’s independence thesis is inconsistent with the principle of the integrity of the Schengen acquis and is contradicted by the construction and logic of the Schengen Protocol and the Title IV Protocol. The independence thesis puts at risk the principle of the integrity of the Schengen acquis, above all if it is applied together with the limitation on integral measures. The Council rejects the view that the aim of Article 5 of the protocol is to confer rights on the United Kingdom and Ireland. It is intended, rather, to protect the activities of the Schengen Member States against obstacles to the development of enhanced cooperation on the part of one or more States. That aim of Article 5 of the Schengen Protocol is apparent from the difference from Article 4. Consequently, the argument that, once the Council has been notified, the United Kingdom and Ireland cooperate automatically cannot be accepted.

68.The Council maintains that protection of the integrity of the Schengen acquis is the ratio legis of Article 4 of the Schengen Protocol. There is a clear causal link between the abolition of internal border controls and accompanying measures.

69.In addition, the measures adopted in the area of enhanced Schengen cooperation are dependent on and linked to each other. It is therefore possible that integrity may be compromised even where the measure concerned is not one defined as integral by the United Kingdom but, rather, it is established, in the light of a two-step test, that the problem is one linked to the free movement of persons in a context in which checks at internal borders have been abolished.

70.Referring to the principle of safeguarding the integrity and coherence of the Schengen acquis, the Council also maintains that, following any declaration and procedure provided for in Article 4 of the Schengen Protocol, the United Kingdom can no longer unilaterally opt out of the development of that acquis. As an example of the possible lack of coherence of development of the Schengen acquis, the Council mentions the United Kingdom’s participation in repatriation measures and its non-participation in the denial of a new entry to the EU.

71.The relationship of subordination or primacy between Article 5 and Article 4 of the Schengen Protocol is also necessary to avoid the Article 4 mechanism in the Article 5 procedure. In that regard, Article 10 EC and the principle of cooperation do not sufficiently protect the integrity of the Schengen acquis. The reference to Article 3(2) of the Title IV Protocol is misconceived, in that Article 7 of that protocol limits the applicability of the protocol in such a way that, in the case of conflict, the Schengen Protocol assumes the nature of lex specialis in relation to the Title IV Protocol. The opt-in mechanism in Article 3(1) of the Title IV Protocol relates only to measures adopted on the basis of Title IV EC and not to measures developing the Schengen acquis. If the independence thesis advocated by the United Kingdom were upheld, Article 7 of the Title IV Protocol would be meaningless. The United Kingdom could simply apply Article 3(1) and give notice of its wish to participate in Title IV measures, that is to say measures to build on the Schengen acquis. However, the protection provided for by Article 4 of the Schengen Protocol would thereby be undermined.

72.The Council contests the United Kingdom’s arguments concerning the broad and loose interpretation of the concept of a measure building on the Schengen acquis and contends that a straightforward two-step test makes it possible to establish whether or not such a measure is involved. That test seeks to determine how close the link between the proposed measure and the abolition of controls at internal borders must be for the measure to be considered a development of the Schengen acquis. The first stage of that test establishes whether the Schengen acquis is applicable to the measure. The scope of that acquis can be inferred from Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis.(9) The second stage of that test consists in asking a question contained in the note from the Presidency of 22 October 1999, examined and approved by COREPER, namely whether the measure concerns a matter that is essential to the free movement of persons within an area in which checks on persons at internal borders have been eliminated and in which a common system of border control has been set up, and by which Iceland and Norway should therefore be bound. The purpose of that test is, for the Council, to ensure greater coherence in the treatment of legal acts in the area of Schengen cooperation. That test makes an important contribution to the choice of the correct procedure. The objection that that test was developed for the Mixed Committee for Norway and Iceland is unfounded. There is no difference of content between the measures adopted by that Mixed Committee and those adopted on the basis of Article 5 of the Schengen Protocol.

73.As regards the distinction between Schengen-integral measures and Schengen-related measures contended for by the United Kingdom, that distinction has no basis in Community law. The Schengen Protocol deals with the Schengen acquis in its entirety. When Decision 1999/435 (10) was adopted, the Council could have taken the position of the United Kingdom into consideration, but did not do so.

74.As regards the United Kingdom’s argument regarding cooperation in Schengen acquis measures, the Council contends that the United Kingdom’s position can be determined on the basis of a specific examination. In the case of a proposal whose legal basis is Title IV and which does not imply further development of that acquis, the United Kingdom may participate (opt in) in accordance with Article 3(1) of the Title IV Protocol. If, on the other hand, the proposal implies further development of the Schengen acquis, the Council will consider the United Kingdom’s position on the basis of Article 4 of the Schengen Protocol. If the United Kingdom cooperates in those parts of the Schengen acquis that are mentioned by Decision No 2000/365, it may cooperate in the adoption of measures without first giving special notification. If, on the other hand, it is apparent from that decision that the United Kingdom does not cooperate in those parts of the acquis, it must, in order to cooperate, proceed in accordance with Article 4 of the Schengen Protocol.

75.The cooperation of the United Kingdom in the adoption of measures falling within the Schengen acquis reflects, according to the Council, the specific nature of the cooperation in each individual case. So, for example, Regulation No 334/2002 (11) was adopted on the legal basis of the old Article 100c of the EC Treaty, before integration of the Schengen acquis into the framework of Union law. As regards the other legal acts, they are of an executive rather than normative nature, or are measures clearly falling within the executive sphere, such as for example Decision 2004/573 (12). As regards Directive 2001/40 (13) and Decision 2004/191, (14) the Council maintains that those measures are based on the Schengen acquis, in which the United Kingdom does not participate. Cooperation in the adoption of those two measures is based on the fact that that directive governs only reciprocal recognition of decisions on the expulsion of aliens. It concerns the expulsion of nationals of non-Member States who might easily be able to avoid expulsion by entering the United Kingdom.

76.Measures connected with checks on persons at external borders fall within the Schengen acquis. They include, according to Article 2 thereof, Regulation No 2007/2004. The United Kingdom did not request to participate in that part of the Schengen acquis, for which reason Decision 2000/365 does not mention such measures. The Agency’s duties and powers concern areas that are clearly related to the free movement of persons. Until such time as the United Kingdom agrees to cooperate in the area of the Schengen acquis that concerns external borders, the Community will not be able to adopt legislation on controls at external borders of the United Kingdom or allow the United Kingdom to participate in Community policies regarding controls at internal borders.

D – The interveners supporting the Council

77.The Commission considers that the Council’s position regarding the relationship between Article 4 and Article 5 of the Schengen Protocol is correct. Although it does not accept the United Kingdom’s position regarding the distinction between integral measures and related measures, it maintains that Regulation No 2007/2004 is an integral measure, in that it is inextricably linked to those parts of the Schengen acquis in which the United Kingdom does not participate.

78.According to the Commission, the essential characteristic of enhanced cooperation and the Schengen acquis is represented by the principle of integrity. Consequently, the basic aim is to protect such integrity and the cohesion of the Schengen acquis. It is true that the Schengen Protocol provides for partial cooperation for individual Member States which do not form part of the Schengen system; it does not, however, leave it open to the will of the Member States to pick and choose in which part of the acquis to cooperate, which would give rise to a patchwork of cooperation and of obligations.

79.Article 5 of the Schengen Protocol cannot be considered separately, that is to say outside the context of the protocol as a whole. Consequently, the independence thesis regarding the relationship between Articles 4 and 5 of that protocol is misconceived.

80.Finally, the Commission contends that the phrase ‘building upon the Schengen acquis’ in Article 5 of the Schengen Protocol is not vague or broad. The procedure for the adoption of measures based on that article, in the case of development of the Schengen acquis, does not differ from determination of the legal basis for the adoption of Community law measures. The two-step test relied on by the Council regarding development is correct and sufficient.

81.The Spanish Government contends that the interpretation of the Schengen Protocol advocated by the United Kingdom constitutes a threat to measures already adopted in the area of enhanced cooperation and would therefore undermine the principle of the integrity of the Schengen acquis. According to the Spanish Government, the United Kingdom’s right to cooperate is not based on a systematic, teleological and historical interpretation of Article 5(1) of the Schengen Protocol. As regards the arguments put forward in the alternative by the United Kingdom, the Spanish Government maintains that it is for the Council to determine which measures are based on the Schengen acquis.

V – The views of the Advocate General

82.The Treaty of Amsterdam opened a new dimension in European integration.(15) That Treaty created an area of freedom, security and justice.(16) Legal writers emphasise that the concept of closer cooperation applies also to the development and completion of that area,(17) which, in the light of Article 1 of the Schengen Protocol, includes the Schengen acquis.(18) That acquis was conceived at an early stage as part of public international law and was incorporated in the law of the Union and of the Community in accordance with Article 2(1) of the Schengen Protocol. (19)

83.In Cases C-77/05 and C-137/05, the Court is called on to interpret protocols which relate in particular to closer cooperation.(20) The traditional concept of European integration flows from the notion of unity of integration, that is to say the creation of uniform rules that are valid in all the Member States.(21) Following the amendments to the founding Treaties, which extended the competences of the European Community and the European Union, and following later enlargements of the Union, which involve greater heterogeneity of structures and interests, the concept of unitary integration can no longer be applied in the same way as in the period in which the European Economic Community comprised six or nine members.(22) Enhanced cooperation is a legal expression of the balancing exercise between making the Union wider and making it deeper.(23) According to legal writers, the Schengen acquis is a special and modified form of closer cooperation established by certain Member States by means of international Treaties,(24) by means of the Agreement on the gradual abolition of checks at common borders, signed in Schengen on 14 June 1985 by the Governments of the Benelux Economic Union, the Federal Republic of Germany and the French Republic (hereinafter ‘the Schengen Agreement’), and the Convention of 19 June 1990 implementing the agreement on the gradual abolition of checks at their common borders, signed in Schengen on 14 June 1985 (hereinafter ‘the CAA’), which go beyond the institutional scope of the then Community, now the Union.(25) As autonomous measures of international law, both those agreements ceased to exist when the Treaty of Amsterdam entered into force.(26)

84.First of all, it must be observed that primary Community law knows no distinction between Schengen-integral measures and Schengen-related measures. Even the United Kingdom refers to that fact, when in its reply it states that that distinction is an analytical device to help identify the small number of cases in which it would be justified to exclude Ireland or the United Kingdom from cooperation in the adoption of measures based on the Schengen acquis. (27)

85.Article 5 of the Schengen Protocol mentions proposals and initiatives to build upon the Schengen acquis. (28) However, at the hearing all the parties spoke of ‘development’ of the Schengen acquis. It is therefore necessary to establish whether the concepts of measures which ‘build upon the Schengen acquis’ and measures which ‘develop the Schengen acquis’ are synonymous.

86.In secondary law, for example, recital 6 in the preamble to Council Directive 2001/51/EC of 28 June 2001, which supplements the provisions of Article 26 of the Convention implementing the Schengen agreement of 14 June 1985 (hereinafter ‘Directive 2001/51), (29) uses the same expression as Article 5 of the Schengen Protocol in the English and Spanish versions but not in the Slovene, French, German or Italian versions. (30) Recital 13 to Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network (hereinafter ‘Regulation No 377/2004’) (31) uses the same words as the Schengen Protocol in the English, French, Italian and Spanish versions, but not in the Slovene and German versions. (32) Recital 12 to Council Decision 2005/267/EC of 16 March 2005 establishing a secure web-based information and coordination network for Member States’ migration management services (hereinafter ‘Decision 2005/267’) (33) mentions measures that develop provisions of the Schengen acquis against the organisation of illegal immigration. (34) In the English, French, Italian and Spanish versions, the same terms are used as in Article 5 of the Protocol, but that is not the case in the Slovene or German versions.

87.I would also observe that the content of the language versions in which Schengen acquis secondary-law measures do not use the same words, for example the Italian and German texts of the Schengen Protocol and of the secondary-law measures mentioned in point 86, is exactly identical to the content of the language versions in which the same words are used, for example the English version of those measures. (35) If the content of the various language versions is found to differ, it is necessary, in order to interpret a provision of Community law, to compare the various language versions thereof. (36) If the content of the various language versions is found to differ, it is necessary to interpret the provision in question having regard to the purpose and general scheme of the rules of which it forms part. (37) However, the aim of Article 5 of the Schengen Protocol is to provide for a special procedure for cooperation by the United Kingdom and Ireland in new measures that build upon, that is to say, develop the Schengen acquis.

88.It should be noted, first of all, that the present case concerns interpretation of the protocols and declarations annexed to the EU and EC Treaties. The legal literature concerning protocols and declarations identifies two traditional categories of annexures to the founding Treaties. (38) Under Article 311 EC, protocols, (39) which, by common accord of the Member States, are annexed to the EC Treaty form an integral part thereof. (40) In fact, in the Miraglia case, (41) the Court applied Article 2 of the Schengen Protocol as part of primary law. The declarations annexed to the EC and EU Treaties, on the other hand, must not be seen as being of the same level as protocols, (42) for as they are not binding .(43) Declarations adopted by an inter-governmental conference do not form part of the founding Treaties, but may be relevant in interpreting such Treaties in accordance with Article 31(2)(b) of the Vienna Convention on the Law of Treaties. (44) The difference between protocols and declarations is particularly important, in that the institutions must take account of the protocols when legislating.

A – Admissibility of the application

89. The application for annulment was brought, within the time-limits laid down by Article 230 EC, by the United Kingdom in its capacity as a Member State, against Regulation No 2007/2004, a measure adopted by the Council. In the light of the literal wording of Article 230 EC, the application is admissible.(45)

B – The legal position of certain other Member States in relation to the Schengen acquis

90. Before I analyse the position of the United Kingdom and Ireland in relation to the Schengen acquis, I must first consider the position of certain other States. The Schengen acquis recognises various forms of cooperation, which operate only vis-à-vis certain States.

91. Denmark accepts the principle of the abolition of internal border controls, but not the principle that the so-called Community method applies to the Schengen acquis in the area of justice and home affairs.(46) Pursuant to Article 1 of the Schengen Protocol, the Kingdom of Denmark forms part of the Schengen system, but Article 3 of that protocol, by way of lex specialis, governs its particular position.

92. A special Protocol on the position of Denmark is also annexed to the Treaty of Amsterdam. Under Article 5 of that protocol, the Schengen acquis represents, for Denmark, a part of public international law.(47) On the basis of the principle of integrity, Article 5(2) of that protocol allows the other Schengen States in particular to invoke the principle of reciprocity (tu quoque) in the event that Denmark decides not to adopt a Council decision on a proposal or initiative to build upon the Schengen acquis.

93. Because the application was lodged before the entry into force of the Treaty on the accession of the Republic of Bulgaria and of Romania to the European Union, in conformity with the principle tempus regit actum my analysis will be limited to the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union. In any event, the position of Bulgaria and Romania corresponds essentially to the position of the Member States that acceded in 2004.(48)

94. The position of the new Member States is governed in general by Article 8 of the Schengen Protocol, according to which ‘[f]or the purposes of the negotiations for the admission of new Member States into the European Union, the Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all States candidates for admission’.(49)

95. The provisions of the Schengen acquis not contemplated by Article 3(1) of the Act on the conditions of accession are binding on the new Member States as from the date of accession, even though they apply only by virtue of a decision adopted by the Council for that purpose, after verification, in accordance with the applicable Schengen evaluation procedures, that the necessary conditions for the application of all the parts of the acquis concerned have been met, and after consultation of the European Parliament. (50) Primary law thus establishes that the new Member States are to become Schengen States upon meeting the conditions laid down in the Schengen evaluation procedures.(51) Therefore, the position of the new Member States may more correctly be defined as a kind of transitional period. In that regard, the view expressed by Poland, which sees that position as involving diversity and heterogeneity of cooperation, cannot be accepted.

3. Iceland and Norway

96. Iceland and Norway, together with Sweden, Finland and Denmark, form the Nordic Passport Union, in which internal border controls were abolished as early as 1957.(52) Sweden, Finland and Denmark thus also became Schengen States following their accession to the European Union.

97. Since the entry into force of the Treaty of Amsterdam, the position of those two States has been governed by Article 6 of the Schengen Protocol, which allows Iceland and Norway, although they are not Member States of the European Union, to cooperate in the Schengen acquis. For that reason, Article 6 of that protocol must be regarded not so much as a provision of European Community or Union law as a provision of international law, which governs relations between the Union and two non-member countries.

C – Position of the United Kingdom and Ireland regarding the Schengen acquis

98. The United Kingdom and Ireland do not cooperate in the policy of abolishing personal checks at internal borders and do not wish to be bound by the Community legal rules concerning nationals of non-member countries.(53) Consequently, the Schengen Protocol provides that the United Kingdom and Ireland are not to be bound by the Schengen acquis.(54) However, on the basis of Article 4 of the Schengen Protocol, the United Kingdom and Ireland may, at any time, request to take part in some or all of the provisions of that acquis.

99. The Title IV Protocol allows the United Kingdom and Ireland not to participate in (to opt out of) the legislative provisions adopted on the basis of Title IV EC. (55) Measures adopted on the basis of Title IV EC are not binding on those States. (56)

100. The United Kingdom and Ireland cooperate in relation to what are known as the so-called compensatory measures of the Schengen acquis and in relation to the future development thereof. (57) Legal writers describe the United Kingdom’s position as appearing to involve a total rejection of the free movement of persons without checks at internal borders, accompanied nevertheless by a wish to cooperate in the repressive part of the legal regime governing free movement. (58)

101. The Council took account of the wishes of the United Kingdom and, by Decision 2000/365, determined those parts of the Schengen acquis in which it is to participate. Article 8(2) of that decision clearly establishes that the United Kingdom is to be deemed to have notified the President of the Council under Article 5 of the Schengen Protocol that it wishes to take part in all proposals and initiatives which build upon the Schengen acquis referred to in Article 1 of Decision 2000/365. (59)

D – The relationship between Articles 4 and 5 of the Schengen Protocol

102. The present case raises the question of the relationship between Article 4 and Article 5 of the Schengen Protocol, which both refer to the position of the United Kingdom and Ireland. Article 5(1) contains a kind of ius variandi – a right of choice granted to the United Kingdom and Ireland regarding new legal measures of the Schengen acquis. (60) In contrast to the position regarding the adoption of measures already in existence in that area, the consent of the other participating Member States or of the Commission is not necessary for the purposes of cooperation by the United Kingdom and Ireland on the basis of Article 5 of the Schengen Protocol. Article 5(1) of the protocol merely requires a written notification from the United Kingdom or Ireland of its wish to take part in proposals and initiatives based on the Schengen acquis. Following official notification, the United Kingdom and Ireland have the same rights and the same obligations as the remaining Schengen States and may participate in the adoption of those measures. This means, ultimately, that those two States may conduct themselves in such a way as to slow down or even completely block the adoption of any Schengen measure. (61)

103. In legal literature and case-law no opinion has yet emerged regarding the question whether Article 5 of the Schengen Protocol, with its mechanism for unilateral declarations of intent, also applies to those legal measures which develop the existing Schengen acquis but to which the United Kingdom and Ireland have not adhered under Article 4 of that protocol. Certain legal writers rely on the premiss that, by virtue of a logical and systematic limitation, the United Kingdom and Ireland must be denied the right to cooperate in development based on Article 5 of the Schengen Protocol where development of the Schengen Protocol cannot exist autonomously. That point of view also applies where the measure developing the acquis cannot be implemented without the contemporaneous application of measures and acts which do not apply to Ireland and the United Kingdom. (62)

104. On the one hand, certain writers contend that the United Kingdom or Ireland may cooperate in such legal acts only if, as a preliminary measure, they observe the procedure under Article 4 of the Schengen Protocol. (63) On the other hand, the view is also expressed that it is not clear whether, for the purpose of the adoption of acts developing the Schengen acquis, Article 4 may be applicable, since, from a systematic point of view, it precedes Article 5, which deals with the possibility of development. (64) In particular, English legal writers assert that United Kingdom cooperation in relation to measures developing the Schengen acquis does not require the consent of the Schengen States, (65) consent which is, in contrast, needed under Article 4 of the Schengen Protocol.

105. However, on closer examination, the scope of the ius variandi available to the United Kingdom under Article 5 of the Schengen Protocol turns out to be narrower than appears at first sight.

106. It is clear that the United Kingdom and Ireland may cooperate in developing a Schengen acquis measure in which they cooperate on the basis of Article 4 of the Schengen Protocol.

107. If, however, the United Kingdom and Ireland do not cooperate on the basis of Article 4 in the area being developed, the position is different. Application of the procedure under Article 5 of the Schengen Protocol without the application of Article 4 thereof is possible only in the case of a measure building on that acquis which can be applied autonomously. The ius variandi is limited only to proposals and initiatives based on the Schengen acquis which are capable of autonomous application. (66) If the United Kingdom or Ireland were able to take part in Schengen cooperation in an area for which, for the purposes of cooperation, the prior application of Article 4 of the protocol is required, and to do so only on the basis of the mechanism provided for in Article 5 of the Schengen Protocol, the effet utile of Article 4 would be undermined. (67) This problem has been dealt with by the Commission in its submissions. In its view, that would involve application to the United Kingdom of part of the Schengen acquis, even though that State had not on its own initiative adhered to that acquis. Therefore, the cooperation of the United Kingdom and of Ireland in the development of part of the Schengen acquis is as a rule subject to prior observance of the procedure under Article 4 of the Schengen Protocol. (68) A similar view of the relationship between Articles 4 and 5 of the protocol in question underlies Decision 2000/365. That decision was adopted on the legal basis of Article 4 of the Schengen Protocol. (69) The rules governing the use of the procedure under Article 5 of the Schengen Protocol are referred to only in Article 8(2) of Decision 2000/365. That means, therefore, that the only legal basis of the rules on the application of the mechanism in Article 5 of the Schengen Protocol is Article 4 of that protocol. Moreover, that is clearly confirmed by the practice of having recourse to the Article 4 procedure before the Article 5 procedure under the Schengen Protocol.

108. It is therefore necessary to establish whether Regulation No 2007/2004 is a measure based on the Schengen acquis which is capable of autonomous application. As I have pointed out, the abolition on checks on persons at internal borders is an essential feature of the Schengen acquis. The abolition of internal borders is, however, necessarily linked to the standardisation of checks at external borders. (70) Therefore, checks at external borders also form part of the Schengen acquis.(71) Consequently, Article 1(2) of Regulation No 2007/2004 emphasises, first and foremost, that only the Member States, on the basis of the principle of indirect management, are to have responsibility for the control and surveillance of external borders. However, immediately thereafter, it provides that the Agency is to ‘facilitate and render more effective the application of existing and future Community measures relating to the management of external borders. It shall do so by ensuring the coordination of Member States’ actions in the implementation of those measures’. (72) It is clear from that provision that Regulation No 2007/2004 is not capable of autonomous application, in that it is linked to a simpler and more effective implementation of present and future measures. As indicated in point 103 above, that means that Regulation No 2004/2007 cannot apply without the simultaneous implementation of other legal measures of the Schengen acquis. This demonstrates, in this specific case, that the thesis that Article 5 is subordinate to Article 4 of the Schengen Protocol, contended for in particular by the Council and the Commission, represents the correct interpretation of that protocol.

109. This conclusion is not undermined by the reference to Declarations Nos 45 and 46 annexed to the Treaty of Amsterdam. Declaration No 45 refers expressly to the procedure under Article 4 of the Schengen Protocol and not to the Article 5 procedure.

110. I consider that Declaration No 46 annexed to the Treaty of Amsterdam shows that the action of the Schengen States in relation to development of the Schengen acquis is subject to the procedure under Article 4 of the Schengen Protocol. It is not possible to interpret that declaration as representing any threat to the principle of the integrity of the Schengen acquis.

E – The principle of integrity

111. The second recital in the preamble to Decision 2000/365, concerning the position of the United Kingdom, emphasises the meaning of the principle of the integrity of the Schengen acquis: ‘the Schengen acquis was conceived and functions as a coherent ensemble which has to be fully accepted and applied by all States supporting the principle of the abolition of checks on persons at their common borders’. (73)

112. That principle is also upheld in Article 8 of the Schengen Protocol, which provides that States candidates for admission to the Union must accept the Schengen acquis in full.

113. The principle of the integrity of the Schengen acquis is an embodiment of the general legal principle qui habet commoda ferre debet onera et contra (he who takes the benefits must bear the burdens and vice versa), which is recognised also in public international law. With regard to that legal principle legal writers (74) refer, in relation to the first pillar, to, among others, the judgment of the Court of Justice in Case 39/72, (75) in which it is stated that ‘it cannot be accepted that a Member State should apply in an incomplete or selective manner provisions of a Community regulation so as to render abortive certain aspects of Community legislation which it has opposed or which it considers contrary to its national interests. For a State unilaterally to break, according to its own conception of national interest, the equilibrium between advantages and obligations flowing from its adherence to the Community brings into question the equality of Member States before Community law and creates discrimination at the expense of their nationals …’. That reasoning can easily be applied to the Schengen acquis.

114. The principle of the integrity of the Schengen acquis protects not only the equilibrium between the Schengen States regarding the development and application of the Schengen acquis but also the Schengen acquis as a whole. (76) By reason of the protection of the entire Schengen acquis, that principle represents the expression of the general interest of the Schengen countries.

115. Cooperation in a part of the Schengen acquis requires, by virtue of the principle of integrity, that any Member State that cooperates to any extent in the Schengen acquis should accept both the advantages and the burdens inherent in cooperation in that part of the acquis. It is for that reason that the principle of integrity does not allow a free choice to be made regarding cooperation, on the basis of Article 5 of the Schengen Protocol, in a measure developing the Schengen acquis where it is not possible to apply that measure autonomously. The reasoning set out in points 103 to 108 above shows that Regulation No 2004/2007 cannot be applied autonomously. It is permissible to enjoy the advantages associated, in this specific case, with cooperation by the United Kingdom in Regulation No 2004/2007 only if the corresponding burdens are accepted. Indeed, by virtue of Article 2(1) of that regulation, the burden to be borne is that of cooperating in the application of current and future Community measures concerning the management of external borders.

F – Allegedly contradictory conduct of the Council in determining whether the measure is one building on the Schengen acquis

116. In its pleadings and at the hearing, the United Kingdom drew particular attention to the fact that it had been authorised by the Council, in certain cases, to cooperate in relation to measures building on the Schengen acquis. Thus, the United Kingdom refers inter alia to Directive 2001/51, to Council Decision 2002/463 of 13 June 2002 adopting an action programme for administrative cooperation in the fields of external borders, visas, asylum and immigration (ARGO programme) (hereinafter ‘Decision 2002/463’),(77) to Regulation No 377/2004 and to Decision 2005/267, and asserts that the concept of a ‘measure that builds upon the Schengen acquis’ is imprecise and obscure.

117. In order to determine whether a measure is based on the Schengen acquis, the Council uses a two-step test. In the first stage it determines whether the measure is an ordinary measure within the scope of Title IV EC or a measure forming part of the Schengen acquis. (78) In the second stage, on the other hand, it determines whether the matter is essential to the free movement of persons in an area in which checks on persons at internal borders have been abolished. This two-step process is comparable to the examination carried out in relation to the first pillar for the purpose of choosing the correct legal basis for measures to be adopted by the institutions. The Court has held that, ‘[a]ccording to settled case-law, in the context of the organisation of the powers of the Community the choice of the legal basis for a measure must rest on objective factors which are amenable to judicial review. Those factors include in particular the aim and the content of the measure’. (79)

118. The Council’s two-step test enables the Court of Justice to ascertain, on the basis of objective factors, whether the measure in question builds upon the Schengen acquis. The objective factors on which the test is based include a determination whether, by virtue of its subject-matter, a measure can be generally associated with the Schengen acquis, and a determination whether the matter is essential to the free movement of persons in an area in which internal borders have been abolished.

119. According to settled case-law, ‘the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it’. (80) ‘With regard to judicial review of the conditions referred to … it should be noted that the Community legislature must be allowed a broad discretion in an area such as that in issue in the present case, which involves political, economic and social choices on its part and in which it is called on to undertake complex assessments. Consequently, the legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue’. (81)

120. The Council’s two-step test is not manifestly inappropriate, in that it is suitable for attaining the aim pursued, namely that of determining whether a particular proposed measure builds on the Schengen acquis. Therefore, the claims that the concept of the Schengen acquis is excessively vague are unfounded.

121. The purpose of Regulation No 377/2004 is to set up an immigration liaison officers network. According to recital 10 in the preamble to that regulation, the United Kingdom takes part in that regulation in accordance with Article 5 of the Schengen Protocol and Article 8(2) of Decision 2000/365. Article 8(2) of Decision 2000/365 confirms that the United Kingdom cooperates in that area of the Schengen acquis and introduces the presumption (82) that the notification referred to in Article 5(1) of the Schengen Protocol is deemed to have been made. Also, recital 12 in the preamble to Decision 2005/267, which establishes a secure web-based information and coordination network for the exchange of information regarding irregular migratory flows, illegal entry and immigration and the return of illegal residents, emphasises that the procedure under Article 5(1) of the Schengen Protocol was applied. It states that Article 8(2) of Decision 2000/365 was applied, in so far as the measures of Decision 2000/267 develop provisions of the Schengen acquis against the organisation of illegal immigration in which the United Kingdom participates. (83) Consequently, so far as that legal measure was concerned, Article 5 of the Schengen Protocol was correctly applied by virtue of the authorisation for which the legal basis is to be found in Article 4 of that protocol.

122. Directive 2001/51 supplements the provisions of Article 26 CAA regarding the obligations of carriers transporting foreign nationals into the territory of the Member States. That directive is an example of a measure adopted on the basis of Title IV EC, in which the United Kingdom cooperates by virtue of Article 1 of Decision 2000/365. Recital 7 in the preamble to that directive explains that ‘[i]n accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community, the United Kingdom gave notice … of its wish to take part in the adoption and application of this directive’. However, recital 10 to the same directive indicates, with regard to Iceland and Norway, that ‘this directive constitutes a development of the Schengen acquis …’. (84) The directive in question thus represents a development of the Schengen acquis, but does not however constitute an ordinary Title IV measure. Any application of the Title IV Protocol would therefore have been incorrect.

123. Directive 2001/40 is concerned with the mutual recognition of decisions on the expulsion of nationals of non-member countries and therefore recognition of an expulsion decision adopted by a competent authority of a Member State against a national of a non-member country who is within the territory of another Member State. Recital 6 to that directive states that, in accordance with Article 3 of the Title IV Protocol, the United Kingdom gave notice of its wish to take part in the adoption and application of that directive. It is stated in legal literature that, in the case of that directive, the application of Article 3 of the Title IV Protocol was incorrect since it is undoubtedly a measure based on the Schengen acquis. However, at the same time, legal writers observe that the directive in question is a measure based on the Schengen acquis which is capable of autonomous application, and that it is therefore a typical example of the application of Article 5 of the Schengen Protocol. (85)

124. Decision 2004/573 coordinates removals by joint flights from the territory of two or more Member States of third-country nationals who are subjects of individual removal orders. It is clear from recitals 11 and 12 to that decision that it is a measure to build upon the Schengen acquis. Recital to 4 to the same decision clearly establishes that the Community must avoid a vacuum in the field of the organisation of joint flights. The use of the term vacuum makes it clear that the decision in question can be applied autonomously. Therefore, Decision 2004/573 is also a measure building on the Schengen acquis which can be applied autonomously. This means that the United Kingdom can adhere to it by virtue of Article 5 of the Schengen Protocol.

125. Council Decision 2002/463 (the ARGO programme) is designed to promote cooperation between national administrative and judicial authorities of the Member States, to promote uniform application of Community law in an area of freedom, security and justice, to improve overall efficiency of the national administrative and judicial authorities of the Member States in carrying out their tasks when implementing Community rules and to encourage transparency of actions taken by national administrative and judicial authorities of the Member States by strengthening their relations with the relevant national and international governmental and non-governmental organisations. In recital 12 to Decision 2002/463, it is also stated that, in accordance with Article 3 of the Title IV Protocol, the United Kingdom gave notice of its wish to take part in the adoption and application of the decision in question. The Council, in determining the relationship between Decision 2002/463 and the abolition of checks at internal borders, took the view that the decision was not a measure based on the Schengen acquis. If we analyse the objectives referred to in Article 3 and the actions referred to in Chapter II, and also in particular the types of action described in Article 8 of Decision 2002/463, (86) it is clear that they are not essential to the free movement of persons. In reality, that decision is an ordinary legal measure within the meaning of Title IV EC. Therefore, the Council was correct to conclude that it was not a measure based on the Schengen acquis.

126. Regulation No 334/2002 (87) lays down a uniform format for visas. It is a Title IV EC measure and, on the basis of Decision 2000/365, a part of the Schengen acquis in which the United Kingdom does not participate. The Council made it clear that the regulation in question amends Regulation No 1683/95, (88) which was adopted as a first-pillar measure even before the entry into force of the Treaty of Amsterdam on the basis of Article 100c(3) of the Treaty establishing the European Community, as then in force. For the Council, those are special circumstances which enabled the United Kingdom to cooperate in the adoption of Regulation No 334/2002. In fact, it is difficult to understand, at first sight, how the Council, in adopting that regulation, accepted that special circumstances existed, by reason of the United Kingdom’s having cooperated in the adoption of Regulation No 1683/95, yet did not on the other hand recognise the existence of similar circumstances surrounding the adoption of Regulation 2007/2004, even though the United Kingdom cooperated in the regulation preceding the one establishing the Agency. The uniform format for visas is a matter essentially linked to checks at external borders and, in part, internal borders. It must however be emphasised that the uniform format for visas is only one aspect of the Schengen acquis, whereas the Agency with which Regulation No 2004/2007 is concerned seeks to improve integrated management of the external borders of the Member States (Article 1(1)), which involves a considerable number of areas associated with the Schengen acquis. It is precisely that difference regarding the breadth of the provisions, ratione materiae,

that justifies the conclusion that the Council, when examining all the issues relating to the cooperation of the United Kingdom in the adoption of Regulation No 2004/2007, did not act in a manifestly inappropriate way.

127.It must be emphasised that the Council’s practice of allowing the United Kingdom to cooperate in the adoption of certain Title IV EC measures or Schengen <i>acquis</i> measures, even if it were correct, does not constitute a legal precedent and cannot create for the United Kingdom a right to the application of Article 5 of the Schengen Protocol. According to settled case-law, ‘what is merely Council practice cannot derogate from the rules laid down in the EC Treaty, and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal basis’. (89)

In view of the foregoing considerations, it follows that the United Kingdom’s application is unfounded.

G – Costs

129.Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has asked for costs, the United Kingdom, having failed in its submissions, must be ordered to pay the costs.

130.Under the first paragraph of Article 69(4) of the Rules of Procedure, the Member States and institutions that have intervened in these proceedings are to bear their own costs.

VI – Conclusion

131.In the light of the foregoing considerations, I propose that the Court:

1.Dismiss the application;

2.Order the United Kingdom to pay the costs;

3.Order the interveners to bear their own costs.

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Original language: Slovene.

OJ 2004 L 349, p. 1.

OJ 2004 L 385, p. 1.

OJ 2000 L 131, p. 43.

Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen <i>acquis</i> (OJ 2000 L 131, p. 43).

Case C-105/03 <i>Pupino</i> [2005] ECR I-5285, paragraph 42.

Council Decision 1999/436/EC determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen <i>acquis</i> (OJ 1999 L 176, p. 17).

Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen <i>acquis</i> (OJ 2002 L 64, p. 20).

OJ 1999 L 176, p. 31.

Council Decision 1999/435/EC of 20 May 1999 concerning the definition of the Schengen <i>acquis</i> for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the <i>acquis</i> (OJ 1999 L 176, p.1).

Council Regulation (EC) No 334/2002 of 18 February 2002 amending Regulation (EC) No 1683/95 laying down a uniform format for visas (OJ 2002 L 53, p. 7).

Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third country nationals who are subjects of individual removal orders (OJ 2004 L 261, p. 5).

Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (OJ 2001 L 149, p. 34).

Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals (OJ 2004 L 60, p. 55).

Thym, Daniel, <i>Ungleichzeitigkeit und europäisches Verfassungsrecht</i>, Baden-Baden, 2004, p. 79. According to the author, this is a new phase of integration following attainment of the single market and monetary union.

It should be noted that, as a result of the area of freedom, security and justice, the Treaty of Amsterdam amended Title VI EU and inserted the new Title IV EC.

Bribosia, Hérvé, Différenciation et avant-gardes au sein de l'Union européenne, Bilan et perspectives du Traité d'Amsterdam, <i>Cahiers de droit européen</i>, No 1-2/2000, p. 57(88). As regards the significance of closer cooperation, reference is made to the address given by the ex-President of the European Commission, Jacques Delors, to the Senate of the Kingdom of Belgium in March 2007, a summary of which was published in <i>Agence Europe</i> No 9407 of 17 April 2007.

Thym, <i>Ungleichzeitigkeit und europäisches Verfassungsrecht</i>, p. 83. The author also refers to Article 43(1) EU, which provides that the proposed closer cooperation is not to affect the provisions of the Protocol integrating the Schengen <i>acquis</i> into the framework of the European Union.

Boer den, Monica, Not Merely a Matter of Moving House: Police Co-operation from Schengen to the TEU, <i>Maastricht Journal of European and Comparative Law</i>, 7(2000), p. 336(337); <i>Bender, Tobias</i>, Die verstärkte Zusammenarbeit nach Nizza, <i>ZaöRV</i> 2001, p. 730(743); Gautier, Marie, Accords de Schengen, entry 2630, <i>JurisClasseur Europe Traité</i>, paragraph 38; Thym<i>, Ungleichzeitigkeit und europäisches Verfassungsrecht</i>, p. 82. The last-mentioned author maintains that the Schengen Protocol applies to the first and third pillars, and for that reason was adopted as an annex to the EU Treaty and the EC Treaty.

In its judgment in Case C-503/03 <i>Commission </i>v <i>Spain </i>[2006] ECR I-1097, paragraph 34, the Court stated that ‘The provisions of the Schengen <i>acquis</i> are applicable only if and as far as they are compatible with European Union and Community law’. Article 1 of the Schengen Protocol provides that the closer cooperation is to be conducted within the institutional and legal framework of the European Union and with respect for the Treaties. That provision is an important expression of the principle, upheld in Article 43(1) EU, that closer cooperation is to respect the Treaties and the institutional framework of the Union, as well as Community law.

Bender, Die verstärkte Zusammenarbeit nach Nizza, pp. 730, 731 and 767.

Jacqué, Jean-Paul, <i>Droit institutionnel de l’Union européenne</i>, 3rd edition, Paris 2004, p. 161, maintains that closer cooperation derives from the idea that it is impossible for all the Member States to progress towards integration at the same speed.

Blanke, Titel VII, Bestimmungen über eine Verstärkte Zusammenarbeit, in Grabitz/Hilf, paragraph 1.

Referring to Article 134 CAA, legal commentators have pointed out that, even at its earliest stage, the Schengen <i>acquis</i> did not conflict with Community law (Van Simaeys, Benoit, Carlier, Jean-Yves, Le nouvel espace de liberté, de sécurité et de justice, in Lejeune, Yves (ed.): <i>Le traité d’Amsterdam, Espoirs et déceptions</i>, Brussels, 1999, p. 250).

Union Competences, in Arnull Anthony, Dashwood Alan, Dougan Michael, Ross Malcolm, Spaventa Eleanor, Wyatt Derrick, <i>Wyatt and Dashwood's European Union Law</i>, 5th edition, London, 2006, p. 115. The author deals with the United Kingdom’s approach to the Schengen <i>acquis</i> as part of the new organisational principle of flexibility of the Union. In the Schengen Protocol, he perceives a phenomenon of ‘primary flexibility’, being flexibility governed by the founding Treaties.

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66Thym, <i>Ungleichzeitigkeit und europäisches Verfassungsrecht</i>, p. 98.

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67As regards the principle of <i>effet utile</i> in the interpretation of international treaties, legal writers maintain that that principle is closely linked with the teleological interpretation of international treaties (Stein Torsten, von Buttlar Christian, <i>Völkerrecht</i>, 11th edition, (completely recast), Cologne, 2005, p. 28).

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68Thym, <i>Ungleichzeitigkeit und europäisches Verfassungsrecht</i>, p. 98. The author emphasises that a unilateral declaration of intent, based on the discretionary decision to cooperate, as referred to in Article 5 of the Schengen Protocol, will thus not be of great significance regarding the development of measures or areas which are not capable of autonomous application.

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69The text regarding the legal basis of Decision 2000/365 is as follows: ‘[h]aving regard to Article 4 of the Protocol integrating the Schengen <i>acquis</i> into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community (hereinafter referred to as ‘the Schengen Protocol’), …’.

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70Oppermann, Thomas, <i>Europarecht</i>, München, 2005, p. 504.

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71In 2006 there was adopted Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen borders code) (OJ 2006 L 105, p. 1). Recital 27 in the preamble to that regulation states clearly that ‘[t]his regulation constitutes a development of provisions of the Schengen <i>acquis</i> in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen <i>acquis</i>. The United Kingdom is therefore not taking part in its option and is not bound by it or subject to its application.’ Under Article 1 thereof, that regulation deals with two aspects on an equal basis, namely, first, the principle of the absence of border control of persons crossing internal borders between the Member States of the European Union and, second, rules governing border control of persons crossing the external borders of the Member States of the European Union.

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72Oppermann<i>, Europarecht</i>, p. 505, who considers that the Agency forms part of the common technical and administrative organs of the Schengen States.

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73Similarly, the second recital in the preamble to Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen <i>acquis</i> (OJ 2002 L 64, p. 20) states that ‘[t]he Schengen <i>acquis</i> was conceived and functions as a coherent ensemble to be fully accepted and applied by all States supporting the principle of the abolition of checks on persons at their common borders’.

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74Kolb Robert, La maxime, <i>qui habet commoda, ferre debet onera et contra</i> (celui qui jouit des avantages doit supporter aussi les charges et vice versa) en droit international public, <i>Revue Belge de Droit International</i>, 2004, p. 12(23).

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75Case 39/72 <i>Commission </i>v <i>Italy </i>[1973] ECR 101, paragraphs 21 and 24.

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76De Kerchove d'Ousselghem, Gilles, Un espace de liberté, de sécurité et de justice aux dimensions incertaines. Quelques réflexions sur le recours aux coopérations renforcées en matière de justice et d'affaires intérieures, in Lejeune, Yves (ed.): <i>Le traité d’Amsterdam, Espoirs et déceptions</i>, Brussels, 1999, p. 290. The author emphasises that the desire for greater consistency (<i>cohérence)</i> in Schengen cooperation was the primary reason for integration of the Schengen <i>acquis</i> into the framework of the European Union.

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77OJ 2002 L 161, p. 11.

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78Certain legal writers contend that acts modifying the existing Schengen <i>acquis</i> without doubt represent a part of the development of that <i>acquis</i>. On the other hand, in the case of measures not modifying the existing Schengen <i>acquis</i>, the situation may be different (<i>Bracke, Niels</i>, Flexibility, Justice Cooperation and the Treaty of Amsterdam, in Marinho, Clotilde, <i>Asylum, Immigration and Schengen Post-Amsterdam</i>, Maastricht, 2001, p. 65).

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79Case C-269/97 <i>Commission </i>v <i>Council </i>[2000] ECR I-2257, p. 43; Case C-36/98 <i>Spain </i>v <i>Council </i>[2001] ECR I-779, paragraph 58, and Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 <i>ABNA </i>[2005] ECR I-10423, paragraph 54.

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80<i>ABNA, </i>cited in footnote 79, paragraph 68.

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81<i>ABNA, </i>cited in footnote 79, paragraph 69.

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82That presumption is based on the sentence ‘The United Kingdom of Great Britain and Northern Ireland shall be deemed irrevocably to have notified the President of the Council under Article 5 of the Schengen Protocol that it wishes to take part in all proposals and initiatives which build upon the Schengen <i>acquis</i> referred to in Article 1’.

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83It should be noted that the recital referred to also indicates that Article 3 of the Title IV Protocol was applied, being a measure based on Title IV EC.

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84Thym, <i>Ungleichzeitigkeit und europäisches Verfassungsrecht</i>, p. 98, states that, for similar legal acts, in the light of the wording of the recitals relating to Norway and Iceland, it is clear that what is involved is a development of the Schengen <i>acquis</i>. Therefore, the reason for which they refer to the protocol on Title IV is not clear.

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85Thym, <i>Ungleichzeitigkeit und europäisches Verfassungsrecht</i>, p. 98.

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86Article 8 of Decision 2002/463 lists the following types of action: training actions, staff exchange, action promoting the use of computerised handling of files and procedures, including use of the most up-to-date techniques for electronic data exchange, evaluation of the impact of common rules and procedures based on Articles 62 and 63 of the Treaty, actions intended to promote the development of best practices with a view to improving working methods and equipment, simplifying procedures and shortening deadlines, operational activities which might include the setting up of common operative centres and of teams composed of joint staff, studies, research, conferences and seminars, mechanisms for consulting and associating the relevant national and international governmental and non-governmental organisations, Member States’ activities in third countries, in particular fact-finding missions in countries of origin and transit, and the fight against document fraud.

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87Council Regulation (EC) No 334/2002 of 18 February 2002 amending Regulation (EC) No 1683/95 laying down a uniform format for visas (OJ 2002 L 53, p. 7).

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88Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas (OJ 1005 L 164, p. 1).

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89Case C-414/04 <i>Parliament </i>v <i>Council </i>[2006] ECR I-0000, paragraph 37. That judgment declared void Regulation (EC) No 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity (OJ 2003 L 176, p. 1).