Steve Peers

The Court of Justice of the European Union (CJEU) determined that the European Union’s (EU) partnership agreements with non-EU countries must utilize EU powers related to development and trade, even when those agreements include provisions related to other areas like transportation, the environment, and readmission. This judgment, delivered in the Commission v Council case, broadens the EU’s development policy concept, potentially increasing the EU’s influence in achieving its foreign policy goals.

Background

While the EU has a long history of enacting development policy legislation and agreements, its formal authority in this realm originated from the Maastricht Treaty (the original Treaty on European Union) in 1993. Decisions on development policy measures within the Council are made by a qualified majority vote, leaving individual member states vulnerable to being overruled.

The EU’s development policy treaties have evolved over time, with each iteration expanding in scope. A 1996 CJEU ruling concerning an agreement with India provided a crucial interpretation of the EU’s development policy. The Court determined that development policy extended beyond conventional poverty reduction and encompassed areas like energy and culture, as long as the treaty’s provisions didn’t establish ‘concrete obligations’. If they did, alternative EU legal bases might be necessary, potentially requiring unanimous voting or direct Member State involvement in the treaty.

More recently, a new generation of EU development treaties, now called partnership agreements, has emerged with an even broader scope. In response, Member States have asserted the need for their involvement in these agreements, alongside the EU, and have also called for additional legal bases for their adoption.

While this particular judgment pertained to a treaty with the Philippines, it’s important to note that the EU has either established or is currently negotiating similar agreements with numerous other Asian nations, including China.

The judgment

The Court of Justice stated that provisions within the partnership agreement pertaining to transport and the environment primarily function as ‘declarations’, lacking concrete obligations. Consequently, the existing legal basis for development policy adequately covers these provisions.

The Court further ruled that the treaty’s readmission provisions fell within the scope of development policy. Despite the binding commitment within the partnership agreement requiring each party to accept their own citizens present without authorization in the other’s territory, and to negotiate a treaty to this effect, the Court determined that it lacked sufficient detail to be classified as a ‘concrete obligation’.

Comments

A significant consequence of this judgment is that partnership agreements containing similar clauses are no longer subject to separate approval processes for immigration-related aspects. This is particularly relevant because of the UK, Ireland, and Denmark’s opt-outs from such matters. This ruling aligns with a pattern of narrow interpretations by the Court regarding these opt-outs, as observed in recent judgments related to social security and transport safety. Since the Council’s voting rules and the Member States’ involvement in the treaty signing were not disputed, this limitation on the opt-out emerges as the most significant outcome of the judgment.

However, this raises a separate question: should EU association agreements with similar immigration clauses also be subject to separate decisions, as is currently the practice? While not directly addressed, this judgment indirectly weakens the argument for separate decisions concerning immigration provisions within association agreements. It’s noteworthy that the Court determined that all ‘migration management’ provisions in the partnership agreement, not just the readmission provision, fell under the development policy powers.

Considering the earlier judgment on the scope of development policy, the Court’s ruling on transport and environmental provisions is not unexpected. Moreover, following the Court’s decision on immigration, it would be possible to include specific commitments in partnership agreements, such as signing further treaties on climate change or aviation liberalization, given that these would not constitute concrete obligations.

The judgment’s stance on readmission is debatable. The Court dismissed the Advocate General’s opinion that a solely political link between readmission and development sufficed to bring the former under the latter’s scope. Instead, the Court narrowed the definition of a ‘concrete obligation,’ consequently broadening the concept of development policy. Therefore, a legal commitment is not inherently a concrete obligation; its specificity determines its classification.

More broadly, this judgment potentially allows the EU to press for more specific human rights obligations within its partnership agreements. An obligation to endorse significant human rights treaties and/or implement domestic legislation enhancing human rights could be argued to lack sufficient concreteness as defined by this judgment.

In summary, this judgment broadens the understanding of the EU’s development policy. This allows the EU to require more from its partners without facing increased institutional hurdles. Consequently, the Court’s decision makes it simpler for the EU to encourage more countries to align with its foreign policy objectives, making development aid more conditional on compliance with EU goals.

Barnard & Peers: chapter 24, chapter 26