Steve Peers

While crucial in EU law, legal base arguments are often confusing for those outside the realm of EU legal experts, especially when there’s agreement on the issue itself. Take the example of piracy in the Indian Ocean. Everyone agrees it’s a problem, except perhaps the pirates, and that the EU’s decision to combat it with military force is necessary.

Disagreement arises regarding what to do with captured pirates. Bringing them to Europe or sending them to Guantanamo is undesirable, and while throwing them overboard is tempting, it violates their right to life. The agreed solution is to hand them over to East African countries for prosecution, requiring the EU to negotiate agreements with these countries.

The European Parliament (EP) challenged the Council’s decision to conclude one such treaty with Mauritius on two grounds: an incorrect legal basis and insufficient information provided to the EP (Case C-658/11). The Advocate-General’s opinion on the matter warrants a thorough examination.

Legal Basis: Foreign Policy or Development and Judicial Cooperation?

The Council argues that the treaty falls under the EU’s Common Foreign and Security Policy (CFSP), while the EP believes it also concerns judicial cooperation and development. This choice of legal basis has significant implications. Both sides agree that the treaty partially concerns foreign policy, necessitating unanimous Council agreement. However, if the Council is correct, the EP wouldn’t need to be consulted, the treaty negotiation would be handled by the EU foreign policy High Representative, and the Court of Justice of the European Union (CJEU) would have limited jurisdiction. The EP’s view, if correct, would grant it consent power, mandate Commission-led negotiations, and grant the CJEU full jurisdiction.

The Advocate-General first analyzes the EP’s arguments based on Article 218 TFEU, which mandates EP consent or consultation for all treaties unless they “relate exclusively” to the CFSP. He believes this rule reflects the legal separation between the CFSP and other EU policies rather than establishing a separate rule for treaty conclusion.

Examining the heart of the issue, the Advocate-General considers the treaty a CFSP measure based on the overall legal context, including Security Council Resolutions and the EU’s military response to piracy. The CFSP measure authorizing military action includes provisions for transferring pirates to third countries, including human rights protections, and these provisions necessitate treaties like the one with Mauritius.

He further argues that the treaty aligns with CFSP objectives, such as safeguarding the EU’s interests, promoting international security, and supporting the rule of law and human rights. He links these objectives to traditional CFSP goals and Article 21(2) TEU. He also argues that transferring pirates falls under the defense policy provisions of Articles 42 and 43 TEU, which mention “civilian and military” resources.

The Advocate-General rejects the use of EU powers related to criminal judicial cooperation, asserting that the external application of such powers requires a “close link” to the EU’s internal security. He distinguishes this from the CFSP measure, whose primary aim is regional peace and stability. He finds the transfer of pirates too distant from EU justice and home affairs policies. Lastly, he dismisses the use of development policy powers because EU assistance to Mauritius is solely tied to the transfer of pirates, a CFSP measure in his view.

While the opinion is partly persuasive, particularly in excluding development policy as a legal basis, it avoids the crucial question of the appropriate legal basis for transferring pirates. Applying the same legal basis rules to international treaties and internal legislation is logical, given the link established by Treaty drafters. However, while a treaty regulating pirate transfer is essential for the effectiveness of the military operation, it doesn’t necessarily follow that they share the same legal basis.

The legal basis should depend solely on the content of the Mauritius treaty. Arguments here are balanced. The Advocate-General’s points on EU military operations using civilian assets and the limited external use of EU justice and home affairs powers are valid. This argument also undermines the idea of an EU foreign policy measure establishing a military operation to control Mediterranean immigration, as the link to EU immigration and border control powers is clear.

However, the analysis of the EU’s general external relations objectives is not entirely convincing. While safeguarding values and preserving peace were previously mentioned as CFSP objectives, the reference to an international system based on cooperation and good governance is new and applicable to any EU external action. Similarly, while human rights, democracy, and the rule of law were previously mentioned under CFSP objectives, they are also foundational values of the EU legal order and relevant to justice and home affairs and development cooperation.

The urgency of the issue doesn’t justify disregarding legal basis analysis. The complexity of EU external relations rules can’t alter the treaty’s legal basis, as established in Opinion 1/94. Moreover, Article 218 TFEU empowers the Council to provisionally apply a treaty upon signing, ensuring that EP involvement wouldn’t hinder urgency.

The appropriate legal basis should be determined based on a teleological argument, absent in the opinion. In the 2007 SEGI case (Case C-354/04), the CJEU ruled that an EU measure imposing sanctions on individuals couldn’t be adopted as a Common Position due to its similarity to a CFSP measure, ensuring democratic participation and judicial review. This logic should apply here.

Furthermore, the EU Charter of Rights’ equal legal value to the Treaties suggests a new approach to resolving legal basis conflicts. Where ambiguity exists, the CJEU should ensure that EU human rights measures are decided through processes maximizing parliamentary input and judicial control. This approach, previously applied in a case concerning Frontex powers (C-355/10 EP v Council), should become a standard interpretation rule, especially relevant to this case involving a treaty ensuring fair trials and human rights protection for criminal suspects transferred to a third country.

Failure to Inform the European Parliament

The Advocate-General’s opinion on the second issue is highly debatable. Article 218 TFEU states that the EP “shall be immediately and fully informed at all stages” regarding EU international treaties. Unfortunately, the Advocate-General disregards these emphasized words.

He refutes the Council’s argument that the CJEU lacks jurisdiction to examine the application of this rule to CFSP treaties, stating that the CJEU can examine the procedural validity even if it lacks jurisdiction over the treaty’s substance. While a fine line, this argument holds merit. Without CJEU jurisdiction, the EP’s procedural rights concerning CFSP treaties would be unenforceable. The CJEU can rule on these rights without interpreting the treaty’s substance, respecting jurisdictional limits. Consequently, the CJEU should have jurisdiction under Article 218 to preemptively rule on the compatibility of planned CFSP treaties with EU law.

The Advocate-General argues that while the information obligation applies to CFSP treaties, the EP should receive more information, more promptly, for non-CFSP treaties due to its greater role in their conclusion. Conversely, less information can be provided for CFSP treaties.

Regarding this treaty, the Council informed the EP on the same day it decided to open negotiations, demonstrating immediacy. However, the EP only heard from the Council three months after the treaty was signed, a month after the decision to sign was published in the Official Journal.

Shockingly, the Advocate-General deems this “immediate.” This interpretation of “immediate” defies all logic and interpretation canons. A three-month delay cannot be considered “immediate” by any standard.

On the “full information” requirement, the Opinion argues that the EP didn’t need to be informed about negotiation progress because it was a CFSP treaty.

A textual interpretation of the rule reveals no distinction between CFSP and other treaties, implying equal treatment regarding EP information. Contextually, the Advocate-General views this rule as supplementing the EP’s role in concluding treaties, but the Treaty makes no such explicit connection. The difference in wording suggests a different purpose: facilitating democratic debate on planned treaties.

While confidentiality concerns might limit information disclosure during negotiations, these are addressed through inter-institutional agreements. Informing the EP allows it to voice its opinion, privately or publicly, on a planned treaty’s merit. For instance, public debate on the human rights record of a country receiving transferred pirates seems essential. While the EP’s influence on CFSP treaties is limited due to its lack of voting power, preventing informed debate and opinion until after the treaty signing is counterproductive.

Arguably, the EP should receive even more information for CFSP treaties than others. The EP has a formal role, usually consent power, in concluding other treaties, allowing it to veto objectionable elements. Its only opportunity to influence CFSP treaty content is before signing and conclusion, making timely information crucial.

Finally, “full information at all stages” encompasses decisions to open negotiations, initial and signed treaties, provisional applications, conclusions, and arguably, proposals to negotiate, negotiation progress, treaty denunciation, and EU actions within treaty-established bodies.

[Update: the CJEU gave its ruling in June 2014. See discussion here.]

Barnard & Peers: chapter 24