The Cjeu Ensures Basic Democratic In Addition To Judicial Accountability Of The Eu’S Unusual Policy

 

Steve Peers

In today’s judgment inwards European Parliament v Council, the Court of Justice of the European Union (CJEU) has ensured that a minimum marker of democratic as well as judicial scrutiny applies to the EU’s Common Foreign as well as Security Policy (CFSP).

The European Parliament (EP) was challenging the Council’s determination to sign as well as conclude (ie, ratify) a treaty betwixt the European Union as well as Mauritius, relating to the EU’s armed forces functioning equally regards pirates inwards the Indian Ocean. As discussed farther inwards the previous weblog post concerning the Advocate-General’s opinion, 1 of import aspect of this treaty (and similar treaties alongside other nearby States) was the inclusion of rules governing the transfer, trial as well as handling of alleged pirates to Mauritius, 1 time the European Union caught them.

The dispute had 2 elements – noun as well as procedural – which volition last considered inwards turn.

Substantive issues

In the Council’s view, this treaty ‘exclusively’ concerned the CFSP. In that case, Article 218 TFEU (the clause which sets out the procedures for negotiating as well as finally international treaties past times the EU) states that the EP does non fifty-fifty guide maintain to last consulted. But inwards the EP’s view, it had the correct of consent over this treaty, since it equally good touched upon issues of evolution policy as well as criminal as well as constabulary cooperation. Article 218 provides that where a treaty concerns issues where the EU’s ordinary legislative physical care for applies (such equally those policy areas), the EP has a correct of consent earlier a treaty tin last concluded.

The Court assumed that the EP was non genuinely arguing that the EU/Mauritius treaty should equally good guide maintain been adopted past times way of the evolution policy, constabulary as well as judicial cooperation legal bases. So thence it confined itself to ruling on a narrow legal point. Article 218 states that when a proposal to negotiate a unusual policy treaty is showtime made to the Council, the Commission as well as the High Representative for the CFSP shall brand recommendations where that treaty relates ‘exclusively or principally’ to the CFSP.

But the CJEU ruled that the dissimilar wording (‘exclusively or principally’ when recommending a negotiation, as well as ‘exclusively’ when finally a treaty) was immaterial. In its view, the basic dominion inwards Article 218 is an underlying parallelism betwixt the internal powers of the EP as well as its external powers. So where it has an internal ability of consent as well as command (for instance, pursuant to the ordinary legislative procedure), the EP should guide maintain a corresponding external command over the conclusion of treaties.

This approach inevitably meant that the EP lost its noun argument, since Article 36 TEU only gives the EP the ability to last informed as well as consulted of the principal elements of the CFSP.

The Court’s analysis contrasts alongside that of the Advocate-General, who assumed that the EP was arguing that the treaty should guide maintain had equally good the legal bases regarding evolution policy as well as constabulary as well as judicial cooperation. (His interesting arguments were fully discussed inwards the previous weblog post).

Procedural issues

The EP’s procedural declaration was based on a novel clause added past times the Treaty of Lisbon (Article 218(10)), which states that the EP ‘shall last forthwith as well as fully informed at all stages of the procedure’. In this case, the Council had informed the EP of its determination to sign as well as conclude the understanding over 3 months subsequently it had taken it.

But earlier the Court could dominion on the merits of this argument, it had to dominion on whether it had jurisdiction to consider it. Article 275 TFEU rules out the Court’s jurisdiction equally regards the CFSP, except equally regards sanctions on individuals or ‘legal base’ arguments.

Nevertheless, the Court asserted its jurisdiction, arguing that the dominion inwards the Treaty was its ‘general jurisdiction’, as well as so Article 275 was a ‘derogation’ which had to last ‘interpreted narrowly’. So the Court did guide maintain jurisdiction to consider issues of physical care for equally distinct from substance, since the procedural legal footing for CFSP treaties is Article 218, ie a provision exterior the range of the CFSP rules equally such.

The Court as well as then ruled inwards favour of the EP’s principal argument.  Unlike the Advocate-General, it reached the common-sense conclusion that a three-month delay inwards informing the EP did non constitute ‘immediately’ informing it. Publishing the treaty inwards the Official Journal was non enough, since the role of the data requirement was to ensure ‘democratic scrutiny’ past times the EP, including equally regards legal base of operations issues. The failure to inform the EP was an ‘essential procedural requirement’, ie a solid soil to annul the human action concerned nether Article 263 TFEU, since it was ‘an facial expression of the democratic principles on which the [EU] is founded’.  

This data requirement applied fifty-fifty though the treaty inwards query concerned the CFSP, where the EP had no ability of consent or fifty-fifty consultation. The Court emphasised that the data requirement applied to whatever kind of treaty, as well as to whatever phase of the procedure.

Comments

If the EP had won its declaration on the noun issues, it would guide maintain gained the ability of consent over most unusual policy treaties, given their links (which the Treaties inwards fact require) alongside other aspects of European Union external policies. It does seem that the EP was trying to struggle a to a greater extent than full general legal base of operations point, as well as so the Court’s determination to confine itself to a to a greater extent than technical analysis is disappointing. If the Court had ruled on the noun legal base of operations arguments, it would guide maintain been its showtime clarification of the external range of the EU’s policing as well as criminal law powers, as well as its showtime clarification of the range of CFSP powers since the Treaty of Lisbon came into force. So the missed chance is unfortunate. Perhaps side past times side time, the EP volition challenge a unusual policy treaty to a greater extent than unambiguously, so that its legal base of operations arguments are decided on the merits.

It could guide maintain been argued that the exception (as regards CFSP) to the normal dominion that the EP has consent or consultation powers over international treaties is equally good a ‘derogation’ from the normal dominion which had to last ‘interpreted narrowly’, only similar the dominion limiting the Court’s CFSP jurisdiction. However, the Court adopted dissimilar rules of interpretation equally regards these 2 issues. One could deduce that the Court is to a greater extent than concerned nearly asserting its jurisdiction than enhancing the EP’s rights.

But having said that, the Court’s ruling on the procedural dot is quite significant. First of all, equally regards its ain jurisdiction, the Court’s ruling way that whatever CFSP mensurate tin last litigated earlier it, equally long equally the legal arguments relate to a procedural dominion falling exterior the range of the CFSP provisions of the Treaty (Title V of the TEU). For instance, it arguably way that the Court would guide maintain the ability to dominion on the compatibility of proposed CFSP treaties alongside European Union law, since that jurisdiction is conferred past times Article 218 TFEU as well as non expressly ruled out past times Article 275. But such disputes mightiness frequently include arguments nearly the substance of the mensurate concerned (for instance, whether it would breach the EU’s human rights obligations), as well as it could last awkward to distinguish betwixt procedural as well as noun issues inwards practice.

Secondly, equally for the EP’s data rights, the Court’s reference to ‘all types of procedures envisaged inwards Article 218’ certainly way that the EP must last given data at to the lowest degree nearly the recommendations to stimulate negotiations, the decisions to opened upward negotiations, the negotiating directives, the intermission of agreements as well as the adoption of European Union positions inwards bodies educate past times agreements, since all of those measures are referred to inwards Article 218. This allows the EP to betoken its dot of catch on draft or planned treaties or measures implementing them at an early on phase of the process, allowing for farther democratic input into the treaty-making process.

More broadly, the CJEU quite rightly rejected the absurd catch that a 3 calendar month await could constitute an ‘immediate’ notification.  It applied the literal interpretation of the Treaty dominion (applying to all treaties, as well as to every phase of the procedure) equally good equally the purposive dominion (advocated inwards the previous weblog post), agreeing that the role of the dominion was to ensure democratic scrutiny as well as to let the EP to ‘make known its views’. As I previously pointed out inwards that weblog post, such populace scrutiny would last an chance to discuss, for instance, whether the province inwards query had a problematic human rights record, as well as thence to influence populace debate over whether the treaty inwards query ought to last concluded.

 

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

Share this post