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EU: Council Decision 2010/252 supplementing the Schengen Borders Code on sea surveillance at the external borders during Frontex operations should be annulled

10 September 2012

Council Decision 2010/252 supplementing the Schengen Borders Code on sea surveillance at the external borders during Frontex operations should be annulled, as decided by the European Court of Justice on 5 September 2012 after examining the request for annulment lodged by the European Parliament in July 2010.

The Court followed the opinion of the ECJ’s General Advocate Paulo Mengozzi from 17 April 2012 (see: Statewatch analysis)

The court found that the Decision modified essential elements of the Schengen Borders Code and as such should not have been decided by regulatory procedure, rather the legislative procedure should have been followed (i.e. with the European Parliament acting as a co-legislator). Council Decision 2010/252 gives border guards operating during a Frontex sea operation considerable powers in the interception, search, rescue of migrants at sea and in their diversion to non-EU waters. It will remain in force until a new text is adopted following the appropriate legislative procedure. This new decision, especially in light of the ECHR ruling in Hirsi v Italy in February 2012, may have an important impact on the clarification of Frontex’s search and rescue obligations and its liability regarding the respect of fundamental rights, whether in EU waters or during operations in high seas and in the territorial waters of third states.