European Court of Justice annuls ‘unfair’ Frontex hosting rules

The EU Court of Justice has supported the European Parliament in endorsing the advocate-general's opinion by annulling an entire anti-immigration decision adopted by the Council of Ministers on 26 April 2010.

The decision aimed to give enforcement powers to national border guards, coordinated by Frontex, in respect of ships reaching EU shores.

The Frontex rules were against Maltese interests, when they obliged host member states of Frontex missions to be responsible for all saved migrants and asylum seekers rescued at sea - instead of landing them at the closest port of call.

Malta subsequently declined participation in such missions. The island had previously hosted two missions, financed by the EU.

The Court said the annulment was based on the fact that the decision should have been adopted by the EU's two co-legislators, the Council and the European Parliament, because it goes beyond the provisions established by the 2006 Schengen Code.

"Where these powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries," the court argued.

"Essential" elements related to monitoring the EU's external borders at sea may only be established by the EP and the Council acting together, it concludes.

Backed by the Commission, the Council had argued that the decision added only "non-essential elements" to the Schengen Code.

MEPs maintained the opposite, namely that the decision allowed ships to be "seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to a third country or handed over to the authorities of a third country". It also contained a rule whereby the ship on which the persons concerned were found should have to land as a matter of priority in the third country from which it departed.