Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 13 May 2015 (1)

Case C‑44/14

Kingdom of Spain

v

European Parliament

Council of the European Union

(Regulation (EU) No 1052/2013 — Establishment of the European Border Surveillance System (Eurosur) — Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union — Development of provisions of the Schengen acquis — Cooperation with Ireland and the United Kingdom)

1.        May a measure constituting development of the provisions of the Schengen acquis in which some Member States do not take part establish a form of cooperation with those Member States and, if so, under what conditions?

2.        That is, in essence, the fundamental issue raised by the present proceedings in which the Kingdom of Spain asks the Court to annul Article 19 of Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur). (2)

I –  Legal framework

A –    The Schengen Protocol

3.        Under Article 4 of the Schengen Protocol: (3)

‘Ireland and the United Kingdom of Great Britain and Northern Ireland, may at any time request to take part in some or all of the provisions of the Schengen 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.’

4.        Article 5 of the Schengen Protocol, in the relevant part, 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 has not notified the Council in writing within a reasonable period that it wishes to take part, the authorisation referred to in Article 329 of the Treaty on the Functioning of the 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.

2. Where either Ireland or the United Kingdom is deemed to have given notification pursuant to a decision under Article 4, it may nevertheless notify the Council in writing, within three months, that it does not wish to take part in such a proposal or initiative. In that case, Ireland or the United Kingdom shall not take part in its adoption. …

… .’

B –    Regulation No 1052/2013

5.        According to the first recital in the preamble to Regulation No 1052/2013, the establishment of a European Border Surveillance System (‘Eurosur’) is ‘necessary in order to strengthen the exchange of information and the operational cooperation between national authorities of Member States as well as with the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’). Eurosur will provide those authorities and the Agency with the infrastructure and tools needed to improve their situational awareness and reaction capability at the external borders of the Member States of the Union … for the purpose of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants’.

6.        Recital 15 in the preamble explains that the regulation ‘includes provisions on cooperation with neighbouring third countries, because well-structured and permanent exchange of information and cooperation with those countries, in particular in the Mediterranean region, are key factors for achieving the objectives of Eurosur’.

7.        In turn, recital 16 in the preamble explains that the regulation ‘includes provisions on the possibility of close cooperation with Ireland and the United Kingdom which may assist in better achieving the objectives of Eurosur’.

8.        Recitals 20 and 21 in the preamble indicate that the regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom and Ireland do not take part, in accordance with, respectively, Council Decision 2000/365/EC (4) and Council Decision 2002/192/EC. (5) Accordingly, the United Kingdom and Ireland do not take part in the adoption of the regulation and are not bound by it or subject to its application.

9.        Article 19 (‘Cooperation with Ireland and the United Kingdom’) provides:

‘1. For the purposes of this Regulation, the exchange of information and the cooperation with Ireland and the United Kingdom may take place on the basis of bilateral or multilateral agreements between Ireland or the United Kingdom respectively and one or several neighbouring Member States or through regional networks based on those agreements. The national coordination centres of the Member States shall be the contact points for the exchange of information with the corresponding authorities of Ireland and the United Kingdom within Eurosur. Once those agreements are concluded, they shall be notified to the Commission.

2. The agreements referred to in paragraph 1 shall be limited to the following exchange of information between the national coordination centre of a Member State and the corresponding authority of Ireland or the United Kingdom:

(a)      information contained in the national situational picture of a Member State to the extent transmitted to the Agency for the purposes of the European situational picture and the common pre-frontier intelligence picture;

(b)      information collected by Ireland and the United Kingdom which is relevant for the purposes of the European situational picture and the common pre-frontier intelligence picture;

(c)      information as referred to in Article 9(9).

3. Information provided in the context of Eurosur by the Agency or by a Member State which is not party to an agreement as referred to in paragraph 1 shall not be shared with Ireland or the United Kingdom without the prior approval of the Agency or of that Member State. The Member States and the Agency shall be bound by the refusal to share that information with Ireland or the United Kingdom.

4. Onward transmission or other communication of information exchanged under this Article to third countries or to third parties shall be prohibited.

5. The agreements referred to in paragraph 1 shall include provisions on the financial costs arising from the participation of Ireland and the United Kingdom in the implementation of those agreements.’

II –  Procedure and forms of order sought

10.      By its action, the Kingdom of Spain claims that the Court should:

–        annul Article 19 of Regulation No 1052/2013;

–        order the European Parliament and the Council to pay the costs.

11.      The European Parliament and the Council contend that the Court should:

–        dismiss the action;

–        order the Kingdom of Spain to pay the costs.

12.      By order of the President of the Court of 19 May 2014, Ireland, the United Kingdom and the Commission were granted leave to intervene in support of the European Parliament and the Council.

III –  Analysis

A –    The main arguments put forward by the parties

13.      At the outset, it may be useful to point out that Regulation No 1052/2013 was adopted on the basis of Article 77(2)(d) TFEU (measures necessary for the gradual establishment of an integrated management system for external borders). No party to this procedure contests the correctness of having recourse to that legal basis. It is likewise common ground between the parties that border control is an element of the Schengen acquis in which Ireland and the United Kingdom do not take part. Accordingly, Ireland and the United Kingdom did not participate in the adoption of Regulation No 1052/2013.

14.      In the present proceedings, the Kingdom of Spain puts forward only a single plea of invalidity in respect of Article 19 of that regulation. In essence, the Kingdom of Spain contends that that provision infringes Articles 4 and 5 of the Schengen Protocol. A number of arguments are made in support of that contention. I will summarise and deal with them in the order which seems to me the most logical.

15.      First, according to the Spanish Government, Article 19 of Regulation No 1052/2013 infringes Article 5(1) of the Schengen Protocol since it permits Ireland and the United Kingdom to take part in the development of an area of the Schengen acquis which they have not accepted. The Court has, in fact, made clear that Article 5(1) of the Schengen Protocol is applicable only to proposals and initiatives to build upon an area of the Schengen acquis in which a Member State has been allowed to take part pursuant to Article 4 of that protocol. (6)

16.      Second, the Spanish Government points out that Article 4 of the Schengen Protocol lays down a specific procedure for the participation of Ireland and the United Kingdom in the provisions of the Schengen acquis which is a pre-condition for their participation in the development of that acquis. In its view, however, Article 19 of Regulation No 1052/2013 deprives that provision of its effet utile in that it creates an ad hoc procedure for the participation of Ireland and the United Kingdom in the development of a Schengen acquis in which they do not take part. The Article 4 procedure would, in other words, be circumvented.

17.       Third, the Spanish Government contends that a different interpretation of Articles 4 and 5 of the Schengen Protocol would undermine the coherence of the system established by Regulation No 1052/2013. It argues that the potential conclusion of various agreements under Article 19 of that regulation increases the fragmentation of the Eurosur system and, as such, special adaptation measures would have to be established to guarantee its coherence. Yet, the Court has held that ‘the coherence of the Schengen acquis and of future developments thereof means that the States which take part in that acquis are not obliged, when they develop it …, to provide for special adaptation measures for the other Member States which have not taken part in the adoption of the measures relating to earlier stages of the acquis’ evolution’. (7)

18.      The European Parliament and the Council — supported by Ireland, the United Kingdom and the Commission — challenge those arguments. These parties emphasise that Article 19 of Regulation No 1052/2013 introduces the possibility of establishing a limited form of cooperation between, on the one side, one or more Member States who take part in the creation of Eurosur and, on the other side, Ireland or the United Kingdom. That cooperation cannot be equated, in their view, to a fully-fledged participation in the Eurosur system. They also point out that Regulation No 1052/2013 provides for the possibility of establishing forms of cooperation with neighbouring third countries. (8) It would be odd — they add — if Ireland and the United Kingdom were to be in a position which is worse than that of neighbouring third countries. More importantly, banning any form of cooperation with Ireland and the United Kingdom would, in the opinion of these parties, be against the interests of the Member States setting up the Eurosur system, since the exchanges of information permitted under Article 19 of Regulation No 1052/2013 might ultimately benefit the system as a whole.

B –    Appraisal of the arguments

19.      In substance, the key issue raised by the present proceedings is whether a measure constituting development of the provisions of the Schengen acquis (a ‘Schengen-building measure’), in which some Member States do not take part, may validly establish a form of cooperation with those Member States and, if so, under what conditions.

20.      I will deal with this issue while explaining the reasons why the various arguments put forward by the Spanish Government in support of its plea should, in my view, be dismissed.

1.      Does Article 19 provide for a ‘participation’ of Ireland and the United Kingdom in the Eurosur system?

21.      The first argument put forward by the Spanish Government is, in substance, that Article 19 of Regulation No 1052/2013 provides for the ‘participation’ of Ireland and the United Kingdom in the Eurosur system, in violation of Article 5(1) of the Schengen Protocol.

22.      At the outset, it should be called to mind that the Schengen Protocol — and in particular Articles 3, 4 and 5 thereof — use the concept of ‘participation’ with a double meaning: as participation in the procedural aspects of a Schengen-building measure (the adoption of the measure) and as participation in the substantive aspects of a Schengen-building measure (the application of the measure).

23.      In United Kingdom v Council, the Court has already stated that a Member State cannot participate in the adoption of a Schengen-building measure unless that Member State has previously accepted the area of the Schengen acquis which is the context of the measure or of which it is a development. (9) In its judgment, the Court referred specifically to the adoption of the measure, since the applicant had argued that, by excluding it from the procedure for the adoption of Regulation No 2007/2004, the Council had infringed Article 5 of the Schengen Protocol. (10)

24.      However, it is clear to me that the Court’s findings are applicable also to a Member State’s participation in the substantive aspects of a Schengen-building measure. In other words, a Member State which has not accepted part of the Schengen acquis cannot take part, alongside and at par with the other Member States, in the application of a Schengen-building measure based on that acquis. That interpretation of the Schengen Protocol is also reflected in the preamble to Regulation No 1052/2013: recitals 20 and 21 state that Ireland and the United Kingdom are ‘not taking part in its adoption’ and are ‘not bound by it or subject to its application’. No party to this procedure seems to contest this reading of the Schengen Protocol.

25.      Therefore I agree in principle with the Spanish Government that the EU legislature cannot adopt a Schengen-building measure which gives Member States which do not participate to the underlying Schengen acquis a position essentially or largely similar to that enjoyed by Member States participating in that acquis. In other words, a Schengen-building measure cannot provide for what is essentially a disguised participation of Member States that have not accepted the related acquis. Such a measure would, to my mind, infringe both Articles 4 and 5 of the Schengen Protocol, to the extent that the procedures and conditions for participation laid down therein would be essentially circumvented. (11)

26.      That said, I must point out that I do not believe Article 19 of Regulation No 1052/2013 assures Ireland and the United Kingdom a position which is essentially or largely similar to that enjoyed by the Member States which adopted that regulation. Accordingly, I am not persuaded that that provision introduces a form of participation, by Ireland and the United Kingdom, in the application of Eurosur. A number of elements contradict such a conclusion.

27.      First, as the Irish and UK Governments have pointed out, Ireland and the United Kingdom do not take part in the central objective of Regulation No 1052/2013, which is to establish a ‘common framework’ for the exchange of information and for cooperation between Member States and the Agency in order to improve knowledge of the situation at the external borders of the Member States of the Union. (12) The Member States participating in Eurosur have, to that end, access to all the information contained in the ‘communication network’, (13) and in particular to the ‘European situational picture’ or the ‘common pre-frontier intelligence picture’. (14)

28.      This situation is in stark contrast with that provided for Ireland and the United Kingdom under Regulation No 1052/2013. Indeed, the provision at issue only permits, under certain conditions, a limited exchange of information between one or more Member States on the one side, and Ireland or the United Kingdom on the other side.

29.      The information which the Member States participating in the bilateral or multilateral agreements with Ireland and the United Kingdom are allowed to exchange is only that set out in Article 19(2)(a) and (c) of Regulation No 1052/2013. This information mainly concerns data relevant to assess the situation at the borders of those two States or their neighbouring States. (15) Member States participating in Eurosur are, furthermore, only permitted to give access to their own information. Conversely, information provided in the context of Eurosur by another Member State or by the Agency cannot be shared with Ireland or the United Kingdom without the prior approval of that Member State or Agency. (16)

30.      Second, as emphasised by the Council and the European Parliament, the other main components of the Eurosur system, set out in Articles 4 to 7 of Regulation No 1052/2013, also do not apply to Ireland and the United Kingdom. For example, those Member States are not obliged to set up national coordination centres which comply with Article 5 of that regulation. Nor are Ireland and the United Kingdom required to take the measures provided for in Articles 14 to 16 of that regulation, with a view to strengthening their reaction capability.

31.       Third, the provision at issue only allows forms of cooperation between one or more Member States on the one side, and Ireland or the United Kingdom on the other side. No cooperation or other forms of collaboration between the latter and the Agency is provided for in the context of the Eurosur system. (17) This is no small detail since the work of the Agency is crucial for the daily management and functioning of the Eurosur system. (18)

32.      On the basis of the above, I do not believe that the provision at issue may be considered to establish a form of participation by Ireland and the United Kingdom in the application of Eurosur. Accordingly, I consider that Article 19 of Regulation No 1052/2013 does not infringe Article 5(1) of the Schengen Protocol.

2.      Does Article 19 deprive Article 4 of the Schengen Protocol of its effet utile?

33.      The second argument put forward by the Spanish Government requires an analysis as to whether Article 19 of Regulation No 1052/2013 is, in essence, depriving Article 4 of the Schengen Protocol of its effet utile in that it introduces an ad hoc procedure of participation in the development of a Schengen acquis in which Ireland and the United Kingdom do not take part. As such, the aim of Article 4 — to maximise Member States’ participation in the Schengen acquis — would be frustrated.

34.      This argument deserves careful consideration.

35.      I am sensible of the need to avoid allowing Member States not participating in some of the Schengen acquis to cherry-pick such parts of the related Schengen-building measures as they see fit, and disregard the others. Not only would an unrestrained à la carte approach — even in this area of EU law in which some differentiation has been allowed — sit uneasily with the principles of solidarity between Member States, and of equality of Member States before the Treaties, which lie at the heart of the European project of integration, (19) but that approach would also be inconsistent with the objective pursued by Article 4 of the Schengen Protocol which is, as the Court has stated, to seek to ensure the maximum participation of all Member States in the Schengen acquis. (20)

36.      Nevertheless, in the present case, I do not believe that the EU legislature has followed an à la carte approach with regard to cooperation with Ireland and the United Kingdom within the Eurosur system which could undermine the aim of Article 4 of the Schengen Protocol.

37.      In the first place, as explained in points 26 to 31 above, the key aspects of the Eurosur system do not apply to Ireland and the United Kingdom. Article 19 of Regulation No 1052/2013 only permits the establishment of limited forms of cooperation within the field of application of Eurosur.

38.      In the second place, the risk of undermining the aim of Article 4 of the Schengen Protocol would mainly arise, to my mind, if a Schengen-building measure were to grant a special or particular position to the Member States not participating in the acquis, where that is not primarily in the interest of the Member States participating in that measure. In fact, any cooperation with Member States not participating in the Schengen-building measure should not be conceived only by reference to those Member States’ national interests. Whether any such cooperation is appropriate and, if so, in what form is, to my mind, mainly a political issue which is for the EU legislature to decide, subject to judicial review limited to a manifest error of assessment. (21)

39.      As concerns Regulation No 1052/2013, I have no difficulty in agreeing with those parties who have argued that it is also in the interests of the Member States participating in the Eurosur system (and, by extension, in the interest of the Union as a whole) that some form of exchange of information with Ireland and the United Kingdom regarding the situation at the borders be possible. Cooperation with those countries would, in fact, result in an increase of the geographic scope of the territory subject to surveillance and a greater amount of information exchanged, especially since both the borders of Ireland and of the United Kingdom form part of the external borders of the Union.

40.      Moreover, as the UK Government pointed out at the hearing, it is possible that information which Member States having concluded an agreement with Ireland or the United Kingdom receive from the latter may, through their national situational pictures, eventually be available also to the other participants in Eurosur. Therefore, even if only partially or indirectly, other Member States may also derive benefits from the conclusion of agreements under Article 19 of Regulation No 1052/2013.

41.      In the third place, the argument put forward by Spain, in substance, amounts to saying that Articles 4 and 5 of the Schengen Protocol bar, in the field of application of a Schengen-building measure, any kind of cooperation with Member States not participating in that measure.

42.      Such an argument seems to me to be clearly flawed. As the Commission said with a vivid metaphor, accepting that argument would mean that Ireland and the United Kingdom become some sort of ‘outcasts’ with which no relationship whatsoever could be established in certain areas. Such a consequence appears to be out of proportion in that it penalises Ireland and the United Kingdom to an extent that goes beyond what is necessary to encourage them to take part in the Schengen acquis and its developments. In fact, this could raise issues under Article 4(3) TEU. As the Commission has emphasised at the hearing, the principle of sincere cooperation applies reciprocally: Member States not taking part in the Schengen acquis should refrain from any measure which may jeopardise the developments of that acquis, but Member States taking part in that acquis should respect and assist Member States which have decided to remain outside.

43.      Furthermore, that interpretation of the Schengen Protocol would also penalise the other Member States and the EU as a whole for, as mentioned in points 39 and 40 above, cooperation with Member States not participating in some of the Schengen acquis may very well be useful and desirable to improve the effectiveness of the related Schengen measures. Lastly, I find it difficult to accept that a Schengen-building measure might legitimately ignite cooperation with neighbouring third countries (22) but not with the EU Member States which do not take part in it. I agree with those parties who argued that the position of those EU Member States cannot be worse than that enjoyed by non-EU States. (23) It is barely necessary to point out that — since Articles 19 and 20 of Regulation No 1052/2013 are largely similar — the argument put forward by Spain seems to imply that the latter provision has introduced an ad hoc procedure of participation to the benefit of neighbouring third countries. That would, indeed, be an odd conclusion.

44.      For these reasons, Article 19 of Regulation No 1052/2013 does not, in my opinion, deprive Article 4 of the Schengen Protocol of its effet utile.

3.      Does Article 19 undermine the coherence of the Eurosur system?

45.      Finally, it remains to examine the last argument put forward by the Spanish Government, relating to an alleged weakening of the coherence of the Eurosur system. The co-existence of different agreements with Ireland and the United Kingdom would — it is argued — increase the fragmentation of that system and oblige the Union to adopt special adaptation measures of a financial and administrative nature.

46.      I must say, at the outset, that I find this argument not entirely clear. I understand it as meaning that, according to the Spanish Government, the conclusion of different agreements with Ireland and the United Kingdom could potentially detract from an effective and smooth functioning of the Eurosur system.

47.      In that respect, I would have no hesitation to regard as incompatible with Articles 4 and 5 of the Schengen Protocol any provision contained in a Schengen-building measure which grants a Member State not taking part in it the possibility, through its conduct, of affecting the application or implementation of that measure.

48.      Yet, I do not see — nor has the Spanish Government explained — why that would be the case of Ireland and the United Kingdom under Regulation No 1052/2013. I am not convinced that the conclusion of different agreements pursuant to Article 19 of that regulation could put into jeopardy the correct and effective functioning of the Eurosur system.

49.      It is true that the Member States having concluded agreements with Ireland or the United Kingdom may be unable to share all the information obtained on the basis of those agreements through the Eurosur communication network. However, that additional information, while it may be more or less useful for the Member States that receive it, does not seem to affect the capability or incentive of those Member States to fulfil their obligations within the Eurosur system. Therefore, the position of the Member States taking part in Eurosur and which have not concluded any agreement with Ireland or the United Kingdom would by no means be negatively affected. If anything, as already explained, they are likely to benefit from that. (24)

50.      Article 19 of Regulation No 1052/2013 itself contains, moreover, two safeguard clauses to that end. Paragraph 1 thereof specifies that any agreement concluded pursuant to that provision is to be notified to the Commission. This rule clearly aims at avoiding possible issues stemming from the conclusion of such agreements. Should any of those agreements raise issues of compatibility with the system established by Regulation No 1052/2013, the Commission would be within its rights to commence infringement proceedings against the Member States responsible.

51.      Another safeguard clause is contained in paragraph 4 of Article 19, according to which ‘[o]nward transmission or other communication of information exchanged under [Article 19] to third countries or to third parties shall be prohibited’. This provision seems apt at ensuring the confidentiality of the information shared with Ireland and the United Kingdom.

52.      Therefore, any fragmentation of the Eurosur system would, it seems to me, not be the result of the agreements concluded under Article 19 of Regulation No 1052/2013, but rather be the inevitable consequence of the Schengen-related provisions in EU primary law. If anything, Article 19 tries to limit and rationalise that fragmentation, by introducing a number of specific and transparent conditions for the conclusion of bilateral and multilateral agreements which fall outside the remit of Eurosur. Indeed, in the absence of a provision such as Article 19, Member States would enjoy even more leeway in entering into international agreements on the sharing of information pertaining to border surveillance.

53.      That said, I observe that the Spanish Government has also not explained what type of special adaptation measures the European Union would have to enact to ensure the coherence of the Eurosur system, were the agreements envisaged in Article 19 of Regulation No 1052/2013 to be concluded.

54.      Clearly, no special adaptation measures would have to be taken by the European Union as regards the costs deriving from the agreements envisaged in Article 19 of Regulation No 1052/2013. Paragraph 5 of that provision indeed states that those agreements ‘shall include provisions on the financial costs arising from the participation of Ireland and the United Kingdom in the implementation of those agreements’.

55.      In any event, I believe that the reference to the Court’s case-law made in this context by the Spanish Government is based on an erroneous reading of that case-law. In United Kingdom v Council, the Court did say that Member States that adopt a Schengen-building measure are not obliged to provide for special adaptation measures for the other Member States which do not take part in that measure or in the related acquis. (25) That does not mean, however, that they are prevented from doing so, where the adoption of some adaptation measures could prove appropriate or useful for the development of the Schengen acquis.

56.      In the light of the foregoing, I am of the view that the third argument put forward by the Kingdom of Spain in support of its plea is also doomed to fail.

C –    Final remarks

57.      As a more general conclusion, I would like to sum up my findings.

58.      I am not persuaded that a Schengen-building measure in which some Member States do not take part cannot establish some form of cooperation with those Member States. On the contrary, some cooperation with them may be desirable where that is likely to enhance the effectiveness of the system thus established.

59.      However, there are some conditions that have to be respected for that cooperation to be compatible with the rules laid down in the Schengen Protocol. Without claiming to be exhaustive, I am of the view that the following conditions are particularly important.

60.      First, the cooperation established cannot constitute a disguised participation in the application of the measure that would circumvent the conditions and procedures laid down in Articles 4 and 5 of the Schengen Protocol. A clear-cut criterion which enables a distinction to be drawn between ‘participation’ and ‘cooperation’ seems to me difficult to identify. Nevertheless, whether the position of the Member States which do not take part in the Schengen-building measure is essentially or largely similar to that enjoyed by Member States participating in that measure appears particularly relevant in that regard.

61.      Second, that cooperation should not be the fruit of an à la carte approach that would defeat the purpose of those provisions: to encourage maximum participation of all Member States in the Schengen acquis and its developments. Any cooperation with Member States not participating in the Schengen-building measure should be conceived primarily by reference to the interests of the Member States taking part in that measure.

62.      Third, that cooperation should not put the Member States not taking part in that measure in a position in which they would be able, through their conduct, to affect the correct and effective functioning of the system established by the measure.

63.      Yet, it does not seem to me that Article 19 of Regulation No 1052/2013 permits a cooperation with Member States that do not take part in the Eurosur system that raises any of those issues of compatibility with the Schengen Protocol.

IV –  Costs

64.      Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the pleadings of the successful party. Since the European Parliament and the Council have applied for costs and the Kingdom of Spain has been unsuccessful, the latter should be ordered to pay the costs.

65.      In accordance with Article 140(1) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. Accordingly, Ireland, the United Kingdom and the Commission should bear their own costs.

V –  Conclusion

66.      Having regard to all the above considerations, I propose that the Court:

–        dismiss the action;

–        order the Kingdom of Spain to pay the costs; and

–        order Ireland, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

1 – Original language: English.

2 – OJ 2013 L 295, p. 11.

3 – Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union, annexed to the Treaties (OJ 2012 C 326, p. 290).

4 – OJ 2000 L 131, p. 43.

5 – OJ 2002 L 64, p. 20.

6 – See judgments in United Kingdom v Council, C‑77/05, EU:C:2007:803, paragraphs 54 to 71, and United Kingdom v Council, C‑137/05, EU:C:2007:805, paragraphs 49 and 50.

7 – Judgment in United Kingdom v Council, C‑482/08, EU:C:2010:631, paragraph 49.

8 – Article 20 of that regulation.

9 – See, to that effect, judgment in United Kingdom v Council, C‑77/05, EU:C:2007:803, paragraph 62.

10 – Ibidem, paragraph 37.

11 – For example, Article 4 of the Schengen Protocol provides that the Council is to decide with the unanimity of its members referred to in Article 1 of the same protocol and of the representative of the Government of the State concerned on any request of Ireland and of the United Kingdom to take part in some or all of the provisions of the Schengen acquis. Conversely, Schengen-building measures based on several provisions of the FEU Treaty (including, for example, Article 77(2)(d) thereof) are adopted through the ordinary legislative procedure.

12 – See recital 1 in the preamble and Article 1 of Regulation No 1052/2013.

13 – Established pursuant to Article 7 of Regulation No 1052/2013.

14 – See, respectively, Articles 10 and 11 of Regulation No 1052/2013. See also Article 4(3) of that regulation.

15 – See Article 19(2) of Regulation No 1052/2013.

16 – Article 19(3) of Regulation No 1052/2013. See, among others, the information provided by the Agency pursuant to Article 12(2) of that regulation.

17 – See, to that effect, Article 18 of Regulation No 1052/2013.

18 – See, in particular, recitals 6, 8 and 9 of the preamble to the regulation.

19 – See, respectively, Articles 3(3) and 4(2) TEU.

20 – Judgment in United Kingdom v Council, C‑77/05, EU:C:2007:803, paragraphs 66 and 67.

21 – To that effect, see, generally, Opinion of Advocate General Jacobs in Joined Cases SAM Schiffahrt and Stapf, C‑248/95 and C‑249/95, EU:C:1997:92, points 23 and 24; referred to also in the Opinion of Advocate General Bot in Joined Cases Spain v Council, C‑274/11 and C‑295/11, EU:C:2012:782, point 27.

22 – See Article 20 of the Regulation No 1052/2013 and recital 15 in the preamble to that regulation.

23 – With the notable exception of those non-EU States which are part of the Schengen area: Iceland, Liechtenstein, Norway and Switzerland. See recitals 22 to 24 in the preamble to Regulation No 1052/2013.

24 – Supra, point 40 of this Opinion.

25 – Supra, footnote 7.

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