A European Parliament committee is considering challenging the new Frontex guidelines in the European Court of Justice. The Civil Liberties Committee (LIBE) of the European Parliament will decide whether to take legal action in a fortnight's time, The Times has learned.
Sources close to the EP said the Parliament's legal experts had returned a positive legal opinion over the matter to a request made by Maltese MEP Simon Busuttil.
The EP's legal unit advised there were enough grounds to take the EU Council and European Commission to court on the basis that the rules exceed the two institutions' powers under the EU Treaties.
The guidelines for the anti-immigration patrols had been approved by the Council despite opposition from Malta and Italy. They lay down that member states hosting Frontex-led missions will have to start taking responsibility for all illegal immigrants saved on the high seas.
Dr Busuttil, who is the EPP's coordinator on the LIBE committee, had moved a proposal to invalidate the rules and the committee had supported him.
Speaking to The Times, he said: "I have already gone on record saying that I will not let this one go and this legal advice opens the way to court proceedings to invalidate these rules. I am reasonably confident that the European Parliament has a good case and the European Commission would do well to take this possibility into account and start thinking about Plan B."
The guidelines were approved by the EU Council last January and then passed by the EP. A majority of MEPs voted against them but a qualified, not simple, majority was needed to reject them. The majority of the Socialist group in the Parliament voted in favour while the other large groups, the Christian Democrats and Liberals, voted against.
For the first time in five years, Malta has decided not to participate in a Frontex mission. However, the government said its decision was not a consequence of the new guidelines but due to the small numbers of illegal immigrants arriving following the start of joint patrols between Italy and Libya.
The patrols for this year off Malta have now been cancelled.