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Andrés Delgado Casteleiro – Four cases for 2015 (II). Article 40 TEU and Pirates Transfer Agreements

  1. Introduction

Almost one month before the Court handed down its judgment on Case 658/12, Parliament v Council (Pirates case), the European Parliament brought a new action (C-263/14 Parliament v Council) on the conclusion of another transfer agreement, this time with Tanzania (the previous one was with Mauritius). The main plea for both cases is identical: the agreement is invalid because it does not relate exclusively to the Common Foreign and Security Policy (CFSP), as expressly provided for in Article 218(6), second paragraph, TFEU.

Before we enter into the legal analysis of both cases, it might be useful to succinctly recall the facts. In 2008 the EU launched its first naval military operations (EUNavfor – Atalanta) to fight piracy in the coast of Somalia. Logically, fighting piracy entails arresting and bringing the suspected pirates to trial. However, where to judge those pirates is not an easy issue, and EU Member States were wary of the consequences of transferring those pirates to the EU to be tried there (see for instance the recent ECtHR case against France on this issue). Consequently, the EU concluded a series of almost identical agreements with countries relatively close to Somalia such as Tanzania or Mauritius, to transfer and subject to trial the suspected pirates in those states. Those transfer agreements were concluded by virtue of a CFSP legal basis, namely article 37 TEU and following the procedure envisaged in article 218 TFEU for CFSP agreements by which the Parliament pays no role besides being “immediately and fully informed.

  1. Parliament v Council (Mauritius Agreement)

In the first Pirates case, the European Parliament put forward the argument that article 218 TFEU distinguished between international agreements which relate exclusively to the CFSP for which the Parliament has no role to play and international agreements which relate “principally” to CFSP for which the Parliament should be consulted. The Parliament based its reasoning on a systemic reading of article 218 TFEU. According to the paragraph (3), the High Representative is the competent organ to submit recommendations to open negotiations on an international agreement where the agreement envisaged relates exclusively or principally to the CFSP. Therefore, when paragraph (6) establishes that the Parliament must either consent or be consulted before the conclusion of an international agreement except when they relate exclusively to the CFSP, the Parliament should still be consulted when those agreements refer “principally” to the CFSP.

In practice, this distinction entailed breaking the link between the choice of substantive legal bases and procedural legal bases in relation to the conclusion of international agreements. In other words, according to the Parliament, as regards the conclusion of international agreements, the “centre of gravity” case law only concerns the choice of a substantive legal basis. By contrast, the procedural legal basis would follow a different test. If the agreement relates exclusively to the CFSP the Parliament would not have to be consulted; if the agreement relates principally to the CFSP the Parliament should nonetheless be consulted. Otherwise put, the Parliament did not challenge the choice Article 37 TEU as the only legal basis for the conclusion of the transfer agreement with Mauritius: it argued that insofar as there are other objectives of subsidiary or ancillary nature (which by virtue of the CJEU’s case-law would not deserve to be reflected in the legal bases of the agreement) the Parliament should be consulted before the conclusion of the agreement. Logically, the Court rejected the main plea of the Parliament and understood that the substantive and procedural legal basis cannot be decoupled, even if this results in a less democratically accountable CFSP.

  1. Parliament v Council (Tanzania Agreement)

In the new Pirates case, the Parliament is now challenging choice of legal basis for the conclusion of the agreement. It considers that the Council Concluding Decision 2014/198/CFSP of 10 March 2014 on the transfer Agreement between the EU and Tanzania is invalid because it does not relate exclusively to the CFSP, as expressly provided for in Article 218(6), second paragraph, TFEU. According to the Parliament the transfer agreement with Tanzania also relates to judicial cooperation in criminal matters and police cooperation, thus covering fields to which the Parliament consent is required. Therefore, this Agreement should have been concluded under the substantive legal bases of Articles 37 TEU and 82 and 87 TFEU, after obtaining the consent of the European Parliament under Article 218(6) TFEU. In other words, the Parliament is essentially asking the Court to determine whether the choice of Article 37 TEU as the sole legal basis is correct when taking into account the different objectives that the transfer agreement pursues.

It appears that the Court will have to analyse some of the same issues that it already analysed in Case 130/10, Parliament v Council (Restrictive Measures) concerning the dividing lines between the CFSP and the ASFJ. However, while in the Restrictive Measures judgement those discussions were circumscribed to very specific provisions (i.e. the bridge provisions of Article 215 and Article 75 TFEU), in this new case the Court will have the opportunity to clarify how the CFSP and AFSJ relate to each other in a more general sense. Especially after the abolition of the pillar structure, the introduction of a common set of objectives to the whole EU External Action in Article 21 TEU, and the mutual non-affectation clause of Article 40 TEU, this judgement could shed some light on the debates on the place of the CFSP in the constitutional architecture of the EU post-Lisbon.

Given that the objectives of the CFSP and the rest of the EU’s external policies are now merged, the choice of legal basis, which is done by examining the aim and content of the international agreement, will be an even more complicated task than it was before. If the objectives are the same to all EU external policies, how will the choice between a CFSP and non-CFSP legal basis be made? Moreover, what role will Article 40 TEU play in making sure that the CFSP and the rest of EU external policies remain separated but equal?

So far, the answers to these questions can be divided in two groups. There are those (myself included) who argue that given that the non-CFSP external policies have their own objectives besides the common ones envisaged in Article 21 TEU, a relation of lex specialis derogat lex generalis should apply when choosing the legal basis of an external instrument. Therefore, if the Court understands that besides the general objectives of the CFSP, there are other objectives that are specific to a non-CFSP policy, the choice of legal basis should follow those specific objectives in detriment of the CFSP ones.

By contrast, there are those, like AG Bot, that understand that among the set of objectives laid down in Article 21 TEU, there are some objectives that relate only to the CFSP. This interpretation of Article 21 TEU entails that inasmuch as an international instrument pursues an objective listed in Article 21 which was traditionally linked to the CFSP and that objective is the principal one over any other objective being pursued by the external instrument, a CFSP legal basis will be necessary. Therefore, if the Court understands that certain objectives of Article 21 TEU are exclusive to the CFSP, and that the transfer agreement pursues those objectives, the Court, following AG Bot’s view, will have to establish the centre of gravity of the agreement in terms of objectives in order to identify which legal basis should be chosen.

  1. Conclusion

It appears that the choice of external legal basis is likely to become a major issue in the Court’s case law in the coming years. With the abolition of the pillar structure, the nature and the relationship between the CFSP and the rest of EU Law seems more uncertain than ever. Consequently, more cases in which the choice of legal basis on these issues concerning the scope of application of the CFSP are likely to arise in the Luxembourg Court.

Andrés Delgado Casteleiro

Lecturer, Durham Law School

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