Steve Peers

The Court of Justice of the European Union (CJEU) confirmed in its recent decision in European Parliament v Council that the EU’s Common Foreign and Security Policy (CFSP) is subject to a minimum standard of democratic and judicial oversight.

The case involved a challenge by the European Parliament (EP) to the Council’s decision to sign and ratify a treaty between the EU and Mauritius. This treaty pertained to the EU’s military operations against pirates operating in the Indian Ocean. The treaty, along with similar agreements with neighboring countries, included provisions for the transfer, prosecution, and handling of suspected pirates apprehended by the EU to Mauritius. The disagreement revolved around two key points: substantive and procedural matters.

Substantive issues

The Council contended that the treaty related solely to the CFSP, and as such, Article 218 TFEU (which outlines procedures for the EU’s international treaty negotiation and conclusion) would not require consultation with the EP. The EP, however, asserted its right of consent, arguing that the treaty also touched upon development policy, criminal justice, and police cooperation. According to Article 218, the EP holds the right of consent before concluding treaties covering areas subject to the EU’s ordinary legislative procedure, which includes the policy areas mentioned.

The Court proceeded on the basis that the EP was not arguing for the EU/Mauritius treaty to be adopted using legal bases related to development, police, or judicial cooperation. Consequently, it limited its decision to a specific legal point. While Article 218 stipulates that the Commission and the High Representative for the CFSP should provide recommendations when a proposed foreign policy treaty “exclusively or principally” concerns the CFSP, the CJEU determined that this wording difference (“exclusively or principally” for recommending negotiations versus “exclusively” for concluding a treaty) was insignificant. The Court interpreted Article 218’s fundamental principle as establishing a parallel between the EP’s internal and external powers, implying that when the EP possesses internal powers of consent and control (e.g., under the ordinary legislative procedure), it should also have corresponding external control over treaty conclusion.

As a result of this interpretation, the EP’s substantive argument was unsuccessful, as Article 36 TEU only grants the EP the right to be informed about and consulted on the primary aspects of the CFSP.

The Court’s analysis differed from that of the Advocate-General, who operated under the assumption that the EP was arguing that the treaty should have incorporated legal bases concerning development policy, police, and judicial cooperation.

Procedural issues

The EP’s procedural argument stemmed from Article 218(10) of the Treaty of Lisbon, which mandates that the EP “shall be immediately and fully informed at all stages of the procedure.” In this instance, the Council only informed the EP of its decision to sign and conclude the agreement over three months after the fact.

However, before addressing the argument’s substance, the Court needed to ascertain its jurisdiction over the matter. Article 275 TFEU typically excludes the Court’s jurisdiction regarding the CFSP, with exceptions for sanctions against individuals or “legal base” disputes.

Nevertheless, the Court asserted its jurisdiction by contending that the Treaty bestowed “general jurisdiction” upon it, thereby classifying Article 275 as a “derogation” subject to “narrow interpretation.” As a result, the Court claimed jurisdiction over procedural aspects distinct from substantive ones, as the procedural legal basis for CFSP treaties (Article 218 TFEU) falls outside the purview of CFSP regulations.

Subsequently, the Court ruled in favor of the EP’s primary argument. Unlike the Advocate-General, the Court arrived at the logical conclusion that a three-month delay in notification did not constitute informing the EP “immediately.” Publication of the treaty in the Official Journal was deemed insufficient since the information requirement aimed to ensure “democratic scrutiny” by the EP, encompassing legal base concerns. The failure to inform the EP constituted an “essential procedural requirement,” grounds for annulment under Article 263 TFEU, as it represented “an expression of the democratic principles on which the [EU] is founded.”

This information requirement remained applicable even though the treaty pertained to the CFSP, where the EP lacked powers of consent or even consultation. The Court emphasized that this requirement applied to all treaty types and stages.

Comments

Had the EP’s argument on the substantive issues prevailed, it would have gained consent power over a majority of foreign policy treaties, given their inherent connections (as mandated by the Treaties) to other facets of EU external policies. While it appears the EP sought to raise a broader legal base point, the Court’s decision to focus on a more technical analysis is regrettable. A ruling on the substantive legal base arguments would have marked the Court’s first clarification of the EU’s external policing and criminal law powers’ reach, as well as the scope of CFSP powers post-Lisbon Treaty. This missed opportunity is unfortunate. The EP might, in the future, challenge a foreign policy treaty with greater clarity, prompting a decision on the merits of its legal base arguments.

One could argue that the exception to the EP’s usual consent or consultation powers over international treaties (concerning the CFSP) also represents a “derogation” from the norm, demanding a “narrow interpretation,” similar to the rule limiting the Court’s CFSP jurisdiction. The Court, however, employed different interpretation rules for these two matters. This suggests the Court might prioritize asserting its jurisdiction over bolstering the EP’s rights.

Despite this, the Court’s ruling on the procedural aspect carries significant weight. Regarding its jurisdiction, the ruling implies that any CFSP measure can be contested before the Court, provided the legal arguments pertain to a procedural rule outside the CFSP Treaty provisions (Title V of the TEU). This arguably grants the Court the authority to assess the compatibility of proposed CFSP treaties with EU law, as Article 218 TFEU confers this jurisdiction without explicit exclusion by Article 275. However, such cases might involve arguments about the measure’s substance (e.g., potential breaches of EU human rights obligations), potentially making it difficult to differentiate between procedural and substantive matters in practice.

Concerning the EP’s information rights, the Court’s mention of “all types of procedures envisaged in Article 218” implies that the EP must receive information, at minimum, regarding recommendations to initiate negotiations, decisions to open negotiations, negotiating directives, suspension of agreements, and adoption of EU positions within bodies established by agreements. This follows because Article 218 references all these measures. Consequently, the EP can express its views on draft treaties or implementing measures early in the process, thereby enhancing democratic input in treaty-making.

More broadly, the CJEU rightly dismissed the illogical notion that a three-month delay constituted “immediate” notification. It adhered to the literal interpretation of the Treaty rule (applicable to all treaties and stages) alongside the purposive rule, acknowledging that the rule’s aim was to ensure democratic scrutiny and enable the EP to “make known its views.” As previously mentioned, such public scrutiny would create opportunities to discuss matters such as a country’s human rights record, thereby influencing public discourse on whether concluding a specific treaty is appropriate.

Barnard & Peers: chapter 5, chapter 24, chapter 25