Member of the European Parliament Eugen Tomak says that on Monday he started a lawsuit at the Court of Justice of the European Union to annul the vote against the admission of Romania to the Schengen zone, believing that such a lawsuit has the best chance of success. The documents were filed and registered on Monday, February 6, at the Court of Justice of the EU, which is a specialized court, the CJEU, based in Luxembourg.

“In particular, we asked the Court to declare illegal the implicit decision after the vote on December 8, by which the Council decided against the full application of the provisions of the Schengen acquis in Romania. This decision was not published in the Official Journal of the EU, as was the case with Croatia’s admission decision, but it is still an actionable act under Art. 253 of the FSEU,” says Tomak.

Tomac explained that his action does not stop the negotiation process of Romania with Austria, nor Bulgaria with the Netherlands. “It will only emphasize the lack of loyalty of some European governments and institutions to the Treaty and European legislation” and, in his opinion, “will oblige the Council of the European Union to make the right decision regarding the access of Romania and Bulgaria to the Schengen zone, the process has been unnecessarily delayed for more than 12 years” .

Purpose: to vote for

If the decision according to which Romania refuses to join the Schengen zone is declared illegal due to its annulment by the Court, a new vote on the same decision will no longer be a political vote, but a technical vote that strictly takes into account the Schengen evaluation conditions that our country fulfills, that is, a positive vote.

“We cannot accept the fact that one state violates the Treaties of the European Union and Schengen legislation and blocks a nation with more than 20 million European citizens on the periphery of the European Union,” the MEP justified, qualifying this act as “profound”. unfair and discriminatory”.

Arguments of the claim. Provisions violated by the Council

Agreement on the accession of Romania to the European Union

The main argument that Tomak refers to can be found in the Treaty of Accession, which contains in the protocol of Article 1. 4 para. (2) that the provisions of the Schengen acquis … are applied in the territory of each of these Member States only on the basis of a European decision adopted by the Council on this subject, after verification, in accordance with the Schengen evaluation procedures. applicable in this matter, the fulfillment in the territory of that State of the necessary conditions for the application of all relevant parts of the acquis.

The evaluation took place and the outcome was favorable. Thus, based on the wording of this article, the Council is obliged to make a positive decision.

Another interpretation would make this article absurd, since the assessment would no longer have any role if, regardless of its outcome, the Council’s decision would remain arbitrary, political.

Another interpretation can lead to an absurd situation, when a negatively evaluated state can receive a positive vote for joining the Schengen zone.

• The principle of loyal cooperation between member states (Article 4, paragraph (3) TEU)
• The principle of loyal cooperation between Union institutions (Article 13, Clause (2) of the TFEU)
• Freedom of movement of people and goods (Article 21, paragraph (1) and Article 26, paragraph (2) of the Federal Treaty)
• The principle of equal treatment and the principle of non-discrimination (Article 20 and Article 21 of the Charter of Fundamental Rights of the European Union)
• The principle of legal certainty and the principle of legitimate expectations (jurisprudential principles of European law)
• Abuse of right