Steve Peers

The European Union has been establishing Partnership and Cooperation Agreements (PCAs) with several Asian nations. These agreements supersede earlier development policy agreements and incorporate more comprehensive cooperation, encompassing additional areas.

This broadened scope raises questions about the legal basis for these treaties. Should they be founded solely on trade and development, as with previous agreements, or are additional legal grounds required? The Commission favors the former stance, while the Council advocates for the latter. This same debate has surfaced concerning certain association agreements, though they are not the focus of this case and fall under a different legal framework.

Advocate-General Mengozzi, in his opinion on Case C-377/12 Commission v Council, sides with the Commission on this legal basis debate. This case revolves around the Council’s decision to sign the PCA with the Philippines on behalf of the EU, and the Commission’s challenge to the Council’s inclusion of legal bases related to the environment, transport, and immigration policy in addition to the Commission’s proposed trade and development bases.

The Advocate-General’s analysis is grounded in the Court of Justice of the European Union (CJEU)’s 1996 Portugal v Council judgment. In that case, the Court determined that the EU’s development policy legal basis could cover a treaty with India containing provisions on energy, culture, and a human rights-based suspension clause. The Court reasoned that a development policy treaty could include general provisions on such issues if they contributed to the development of the countries involved. However, specific commitments on these issues would necessitate additional legal bases. A clause permitting suspension based on human rights concerns was deemed acceptable.

Applying this precedent to the Philippines PCA, the Advocate-General acknowledges that while the treaty’s provisions on transport and the environment are more detailed than in previous development policy agreements, they still outline only general obligations and contribute to the Philippines’ development. The Council also raised concerns about the impact of the PCA’s suspension clause regarding human rights, democracy, and the rule of law. However, the Advocate-General doesn’t believe this should influence the legal basis for signing the agreement.

The PCA’s immigration provision presents more complex challenges. The Advocate-General distinguishes between the general paragraphs on immigration management and the more specific ones addressing readmission. The former lacks precise legal obligations, while the latter commits the parties to accepting back their nationals residing unauthorized in the other’s territory and to negotiating a readmission treaty. He believes these clauses do not contribute to the Philippines’ development but serve the EU’s interests.

Despite this, he concludes that the Council shouldn’t have incorporated a separate legal basis for readmission, as this issue is secondary to the agreement’s main objective, citing prior case law. This conclusion stems from the EU securing the Philippines’ consent to the readmission clauses in exchange for the Union’s development commitments outlined in the PCA.

Comments

The Commission’s motivation for bringing this action is unclear. It doesn’t challenge the PCA’s nature as a ‘mixed agreement’ involving both the EU and Member States. The inclusion of extra legal bases didn’t alter Council voting rules, as a qualified majority vote remains regardless. As long as Member States are party to the agreement, unanimous voting is essentially in effect due to their common accord.

The Commission might aim to limit the use of transport legal bases in agreements also related to trade. This is because the ’transport services’ exception within Treaty rules on common commercial policy (external trade) muddies the clarity of a key EU external competence that would otherwise be exclusively within its purview. This strategy makes sense, but the EU’s free trade agreements typically incorporate specific commitments on trade in transport services, rendering the exception applicable. A more effective approach for the Commission would be to propose EU legislation harmonizing the regulation of transport services to and from non-EU countries, potentially granting the EU exclusive external competence over this area through established procedures. However, achieving this is a complex task.

Beyond transport services, the Commission may seek to reduce relying on additional legal bases alongside the common commercial policy in its free trade agreements more broadly (though the Philippines PCA is not one). These additional bases often appear to trigger shared competence between the EU and Member States, granting Member States veto power. A prime example is the unusual cultural protocol attached to the EU/Korea free trade agreement. If the Court follows the Advocate-General’s opinion, the Council’s ability to pursue this strategy will be somewhat curtailed. Nonetheless, Member States can still assert their influence by insisting on a protocol with sufficiently detailed obligations in the unrelated area.

This leads to the critical issue of external migration, specifically readmission. Including legal bases on this matter grants the UK, Ireland, and Denmark opt-outs from relevant legal rules, though the UK often opts into EU readmission agreements as a matter of principle.

While the PCA doesn’t contain detailed rules on transport or the environment (unlike EU aviation treaties or international environmental agreements), cooperation in these areas will likely benefit the Philippines’ development. Advancing transport to and from the country and protecting its environment might seem at odds, but such contradictions are common within the EU’s external objectives outlined in Article 21 TEU.

Furthermore, the inclusion of environmental provisions aligns with the obligation to integrate environmental protection across all EU policies. The Advocate-General is also correct in stating that enhanced transport security and safety will aid the Philippines’ development, as safety concerns would deter travel and economic activity.

Regarding immigration clauses, the migration management rules lack precision and are closely tied to the Philippines’ development. However, the Advocate-General’s arguments regarding readmission clauses, while acknowledging their precise obligations and lack of direct benefit to the Philippines’ development, stop short of concluding that a specific legal basis for immigration is necessary. While the readmission clauses and development policy commitments are politically intertwined, this doesn’t necessitate altering the legal basis of the former.

Finally, the judgment in this case, regardless of the outcome, presents the Commission with an opportunity to propose a reevaluation of the EU’s approach to external migration management and readmission. This could involve enacting EU legislation to establish concrete rules for coordinating Member States’ external migration treaties, a practice seen in other EU policy areas. This move can be justified as essential to developing a unified EU immigration policy and ensuring such treaties align with the human rights obligations of both the EU and its Member States.

Update: the CJEU gave its ruling in this case in September 2014. See comments on the ruling here.

Barnard & Peers: chapter 24, chapter 26