Case C‑137/21

European Parliament

v

European Commission

Judgment of the Court (Grand Chamber), 5 September 2023

(Action for failure to act – Regulation (EU) 2018/1806 – Point (f) of the first paragraph of Article 7 – List of third countries whose nationals must be in possession of visas when crossing the external borders of the Member State – List of third countries whose nationals are exempt from that requirement – Principle of reciprocity – Request to adopt a delegated act temporarily suspending the visa exemption for a 12-month period for nationals of the United States of America)

1. Action for failure to act – Institution called upon to act – Invitation to act – Time limits – Conditions – Action for failure to act brought following a second call to act made three years after a first call to act which was not complied with – Action brought out of time – None – Admissibility

   (Art. 265, second para., TFEU)

   (see paragraphs 27-35)

2. Action for failure to act – Definition of position, within the meaning of Article 265, second para., TFEU, prior to bringing the action – Meaning – Refusal to act in accordance with the call to act – Included – Admissibility

   (Art. 265, second para., TFEU)

   (see paragraphs 39-43)

3. EU institutions – Exercise of powers – Power conferred on the Commission to adopt delegated acts – Power to supplement a legislative act – Scope – Basic regulation granting the Commission the power to suspend temporarily the exemption from the visa requirement for nationals of a third country – Obligation for the Commission to adopt the delegated act requested – None

   (European Parliament and Council Regulation 2018/1806, recital 17 and Art. 7, para. 1(a), (d), (e), (f) and (h), and Annex II)

   (see paragraphs 57-64)

4. EU institutions – Exercise of powers – Power conferred on the Commission to adopt delegated acts – Commission’s power of assessment to supplement legislation in the area concerned – Refusal by the Commission to adopt a delegated act seeking to suspend temporarily the exemption from the visa requirement for nationals of a third country – Whether permissible

   (European Parliament and Council Regulation 2018/1806, Art. 7, para. 1(d))

   (see paragraphs 65-70)

Résumé

Under Regulation 2018/1806, ( 1 ) which lists the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States and those whose nationals are exempt from that requirement, the European Union set the objective of the principle of full visa reciprocity in order to improve the credibility and consistency of its external policy in respect of third countries. ( 2 ) On that bass, that regulation provides that a mechanism enabling the principle of reciprocity to be implemented must enable the European Union to respond in solidarity if one of the third countries included in the list in Annex II of the regulation decides to make the nationals of one or more Member States subject to a visa requirement. ( 3 ) The regulation delegates to the Commission the power to adopt acts in accordance with Article 290 TFEU concerning in particular the temporary suspension of the exemption from the visa requirement for nationals of such a third country. ( 4 )

…’

In April 2016, the Commission presented to the European Parliament and the Council of the European Union a communication ( 5 ) which stated that a situation of non-reciprocity continued in relation to three third countries, including the United States of America, which at that time imposed a visa requirement on nationals of five Member States. After the Commission found ( 6 ) that visa non-reciprocity concerned only two third countries, including the United States of America, the Parliament adopted a resolution ( 7 ) in March 2017 in which it considered that the Commission was ‘legally obliged to adopt a delegated act – temporarily suspending the exemption from the visa requirement for nationals of third countries which have not lifted the visa requirement for citizens of certain Member States’ and called upon the Commission to adopt such an act. The Commission replied unfavourably to that request in May 2017. ( 8 ) Following the submission by the Commission of its sixth follow-up communication in March 2020, the Parliament reiterated its call to act ( 9 ) given that the United States of America continued to impose a visa requirement on nationals of four Member States. Again, the Commission did not respond favourably to that call. ( 10 )

The Parliament – taking the view that point (f) of the first paragraph of Article 7 of Regulation 2018/1806 requires the Commission to adopt a delegated act where the conditions for the adoption of such an act laid down by that provision are satisfied – brought an action for failure to act against the Commission under Article 265 TFEU.

In its judgment, the Court of Justice rules on the admissibility of the action for failure to act, that is to say, on the one hand, on the time limit for bringing proceedings laid down in that provision and, on the other, on the concept of position defined by an institution within the meaning of that provision in an interinstitutional context. The Court dismisses the action as to the substance on the ground that, by complying with the criteria of that regulation, the Commission did not exceed its discretion when it took the view that it was not required to adopt the delegated act requested.

Findings of the Court

In the first place, the Court rules on the admissibility of the action. ( 11 )

The first plea of inadmissibility alleges that the action was brought out of time, since the Parliament brought its action for failure to act after sending the Commission, by a resolution of October 2020, a second invitation to act, whereas it had not brought such an action following the resolution of March 2017. In this respect, the Court finds that the question whether the Parliament thus failed to comply with the time limit for bringing proceedings laid down in the second paragraph of Article 265 TFEU depends on whether that second call to act is, in the light of objective factors relating to its content or its context, distinct from the first. In that regard, in the communication which followed the resolution of March 2017, the Commission had considered, inter alia, that the adoption of a delegated act temporarily suspending the visa exemption would be counterproductive ‘at this moment’ and would not serve to contribute to achieving the objective of visa-free travel for all EU citizens. By its resolution of October 2020, the Parliament had asked the Commission to reconsider the approach it had chosen three years earlier, in the light of developments which had occurred in the meantime. The Court notes, in that regard, that various reasons – both of a legal and political nature – may have led the Parliament, in the first instance, not to bring legal proceedings following the adoption of that communication by the Commission. Moreover, it is apparent that the Parliament adopted the resolution of October 2020 after having assessed the evolution of the situation since the adoption of the first call to act. Since the calls to act contained in the two resolutions are distinct in the light of both their content and the context in which they were adopted, the Court concludes that the purpose of the resolution of October 2020 could not have been to circumvent the time limit for bringing proceedings laid down in the second paragraph of Article 265 TFEU, which had started to run with the call to act contained in the resolution of March 2017.

As regards the second plea of inadmissibility, alleging that the Commission had defined its position in its communication of December 2020, the Court recalls that, under the first paragraph of Article 265 TFEU, the matter may be brought before it for a declaration that the institution concerned has failed to act, in infringement of the Treaties. In that regard, the Court points out that the fact that the response of an institution to a call to act does not satisfy the person who addressed that call to the institution does not mean that that answer does not amount to a position defined by an institution, the adoption of which puts an end to the failure to act. However, that solution cannot apply in an interinstitutional context, in cases where the inadmissibility of an action for failure to act would allow the institution concerned to persist in a state of inaction. That would be the case if the communication of the Commission at issue were to be classified as a position defined by an institution, for the purposes of the second paragraph of Article 265 TFEU. A refusal to act following a call to act can thus be brought before the Court on the basis of the second paragraph of Article 265 TFEU since that refusal, however explicit it may be, does not put an end to the failure to act. In those circumstances, in an interinstitutional context, the response of an institution consisting – as in the present case – in a statement of the reasons why, according to that institution, it is appropriate not to adopt the requested measure, must necessarily be regarded as a refusal to act on the part of that institution and must therefore be capable of being referred to the Court in the context of an action brought under Article 265 TFEU.

In the second place, as regards the single plea in law raised, on the substance, by the Parliament, according to which the Commission infringed the Treaties by failing to adopt, pursuant to point (f) of the first paragraph of Article 7 of Regulation 2018/1806, a delegated act temporarily suspending the exemption from the visa requirement for nationals of the United States of America, the Court observes that, admittedly, it appears from the wording of that provision that the Commission is required to adopt such an act where the conditions required for its adoption are satisfied. However, that interpretation must be ruled out in the light of the general scheme of the first paragraph of Article 7 of Regulation 2018/1806, characterised in particular by the multi-stage structure of the reciprocity mechanism which it establishes. It is thus apparent, in particular, from a combined reading of the provisions set out in that article, read in the light of recital 17 of that regulation, that the Commission enjoys discretion as to whether or not to adopt a delegated act based on that article. The Commission is therefore not obliged to adopt the delegated act in question after the expiry of the 24-month period commencing on the date of publication of the notification referred to in point (a) of the first paragraph of Article 7 of that regulation.

By contrast, the Commission must take into account the three criteria set out in point (d) of the first paragraph of Article 7 of Regulation 2018/1806 for the purpose of determining whether it is appropriate, in the light of the objective of full reciprocity, to suspend the exemption from the visa requirement for nationals of the third country concerned or whether, on the contrary, it is appropriate to refrain from taking such a measure, in the light of interests relating, in particular, to the external relations of the Member States, the countries associated with the Schengen area and the European Union. ( 12 ) After having examined those three criteria, the Court finds that the Commission did not exceed the discretion it enjoyed in this case in taking the view, following the call to act which the Parliament had addressed to it in October 2020, that it was not required to adopt the delegated act in question. Consequently, it dismisses the action as unfounded.

( 1 ) Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (codification) (OJ 2018 L 303, p. 39).

( 2 ) See recital 14 of Regulation 2018/1806.

( 3 ) See recital 15 of Regulation 2018/1806.

( 4 ) See recital 17 and Article 7(e), (f) and (h) of Regulation 2018/1806. In particular, under Article 7:

‘Where a third country listed in Annex II applies a visa requirement for nationals of at least one Member State, the following provisions shall apply:

…

(f) if within 24 months of the date of the publication referred to in the third subparagraph of point (a), the third country concerned has not lifted the visa requirement, the Commission shall adopt a delegated act in accordance with Article 10 temporarily suspending the exemption from the visa requirement for a period of 12 months for the nationals of that third country. …

…

Without prejudice to the application of Article 6, during the periods of that suspension the nationals of the third country concerned by the delegated act shall be required to be in possession of a visa when crossing the external borders of the Member States;

( 5 ) Communication from the Commission to the European Parliament and the Council of 12 April 2016 – State of play and the possible ways forward as regards the situation of non-reciprocity with certain third countries in the area of visa policy (COM(2016) 221 final).

( 6 ) By its second follow-up communication of 21 December 2016.

( 7 ) European Parliament resolution of 2 March 2017 on obligations of the Commission in the field of visa reciprocity in accordance with Article 1(4) of Regulation (EC) No 539/2001 (2016/2986(RSP)) (OJ 2018 C 263, p. 2; ‘the resolution of March 2017’).

( 8 ) By its follow-up communication of 2 May 2017 (COM(2017) 227 final).

( 9 ) European Parliament resolution of 22 October 2020 on obligations of the Commission in the field of visa reciprocity in accordance with Article 7 of Regulation (EU) 2018/1806 (2020/2605(RSP)) (OJ 2021 C 404, p. 157; ‘the resolution of October 2020’).

( 10 ) Communication from the Commission to the European Parliament and the Council defining the position of the Commission following the European Parliament resolution of 22 October 2020 on obligations of the Commission in the field of visa reciprocity and reporting on the state of play (COM(2020) 851 final) (‘the communication of December 2020’),

( 11 ) Under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, that institution, body, office or agency has not defined its position, that action may be brought within a further period of two months.

( 12 ) According to Article 7(d) Regulation 2018/1806:

‘Where a third country listed in Annex II applies a visa requirement for nationals of at least one Member State, the following provisions shall apply:

…

(d) the Commission shall, when considering further steps in accordance with point (e), (f) or (h), take into account the outcome of the measures taken by the Member State concerned with a view to ensuring visa-free travel with the third country in question, the steps taken in accordance with point (b), and 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;’