L Bay Larsen, Vice-President,
Presidents of Chambers A Prechal, K Jürimäe, C Lycourgos, M Safjan, ML Arastey Sahún,
Judges M Ilešič, J‑C Bonichot, I Jarukaitis (Rapporteur), A Kumin, N Jääskinen, M Gavalec, Z Csehi, O Spineanu‑Matei
Advocate General J Richard de la Tour
Parliament and Council Regulation (EU) 2018/1806 established the list of third countries whose nationals were subject to a visa requirement if they crossed the external borders of the member states of the European Union, and the list, in Annex II, of those whose nationals were exempt from that requirement. The Regulation, an objective of which was total reciprocity between the European Union and third countries in visa matters, provided for a mechanism in order to enable the European Union to provide a joint response in the event that one of the third countries appearing on the list in Annex II decided to make nationals of one or more member states subject to its own visa requirement. By article 7(f), if the relevant third country had not lifted its visa requirement in relation to a member state within 24 months of the date of publication of notification, the Commission “shall adopt” a delegated act temporarily suspending the exemption from the visa requirement. When considering whether to adopt such an act, the Commission had to take account of three criteria under article 7(d): (i) the outcome of the measures taken by the member state concerned with a view to ensuring visa-free travel with the third country, (ii) the steps taken in that regard with the authorities of the third country, and (iii) the consequences of the suspension of the exemption from the visa requirement for the external relations of the Union and its member states with the third country in question. The United States of America appeared on the list, in Annex II to the Regulation, of countries whose nationals were exempt from the visa requirement. In April 2016 the Commission notified the European Parliament and the European Council that a situation of non-reciprocity persisted with regard to three third countries, including the United States, which were then requiring visas for nationals of five member states. By March 2020 the only remaining non-reciprocity case concerned the United States in relation to only four member states. Accordingly, the Parliament stated that the Commission was “legally obliged to adopt a delegated act” under article 7(f) in relation to the United States within a period of 24 months commencing on the date of publication of the notification. The Commission did not adopt any act and, in October 2020, the Parliament once again called upon the Commission, on the basis of article 265 TFEU, to adopt the delegated act. In December 2020 the Commission communicated to the Parliament and the Council its reasons why, at that stage, it still did not intend to temporarily suspend the exemption from the visa requirement in relation to the United States. Taking the view that article 7(f) of the Regulation did not confer on the Commission the power not to adopt a delegated act where the conditions for the adoption were satisfied, the Parliament brought an action against the Commission before the Court of Justice of the European Union seeking a declaration that the Commission had failed to fulfil its obligations under the FEU Treaty.
On the action—
Held, action dismissed. It was clear from article 7 of Regulation 2018/1806, read in the light of recital (17) thereof, that the Commission enjoyed a discretion as to whether or not to adopt a delegated act based on article 7(f) and that that discretion was governed by the three criteria set out in article 7(d). It followed that the Commission was not obliged to adopt a delegated act pursuant to article 7(f) after the expiry of the 24-month period commencing on the date of publication of the notification. By contrast, in order to determine whether it was appropriate to suspend the exemption from the visa requirement for nationals of the third country concerned or whether, on the contrary, it was appropriate to refrain from taking such a measure, the Commission had to take account of the three criteria laid down in article 7(d). When considering whether the Commission had exceeded the limits of its discretion in taking the view that it was justified in refusing to adopt a delegated act, the communication from the Commission to the Parliament and Council in December 2020 was pertinent. That communication contained a detailed overview of the situation of the four member states concerned at that time by the visa requirement, thereby satisfying the first criterion. Further, the second criterion was satisfied in that the Commission referred, in detail, to several work meetings held with its American counterparts and explained that, on account of the post-election transition period in the United States at that time, it had to settle for drawing up a proposal for a new plan recalling the importance of transatlantic ties. The Commission also referred to detailed explanations on the subject of the consequences of any act and concluded that the suspension of the exemption from the visa requirement for nationals of the United States would have significant negative impacts in a wide range of policy areas and sectors, thereby satisfying the third criterion. It followed that the Commission had taken into account the three criteria set out in article 7(d) of Regulation 2018/1806 before reaching the conclusion that it would not adopt the delegated act requested and, therefore, it did not exceed its discretion. Accordingly, the action for failure to act was dismissed as unfounded (judgment, paras 62, 64, 65–71, operative part, para 1).
S Alonso de León, P López-Carceller and J Rodrigues, agents, for the applicant, the European Parliament.
A Azéma and L Grønfeldt, acting as agents, for the respondent, the European Commission.