Friday 22 July 2016

H v Council: Another Court breakthrough in the Common Foreign and Security Policy

Graham Butler, PhD Fellow, Centre for Comparative and European Constitutional Studies, Faculty of Law, University of Copenhagen, Denmark

This summer alone, the Court of Justice (‘the Court’) has issued two important decisions that will further shape the legal dimension of the Common Foreign and Security Policy (CFSP). Despite this largely intergovernmental sphere of law (the former Second Pillar) being merged into the unified ‘EU’ at the Treaty of Lisbon, the pillar’s shadow still lives on. Lasting evidence of CFSP as a separate but integrated sphere of law allow for it to be titled ‘CFSP law’, with judgments of the Court arising from interinstitutional and direct action litigation, permitting its legal development. The two judgments, Tanzania (Case C-263/14) and H v. Council (Case C-455/14 P) address different questions, and with a third, Rosneft (Case C-72/15), being delivered later in the year. This sequence of judgments demonstrates the fluidity of CFSP dynamics. In this blog post, analysis will focus on the H v. Council judgment, and specifically, given its peculiarity, the jurisdiction of the Court of Justice in CFSP.

From a simple reading of the Treaties, it would be assumed that three individual articles pose problems for the Court of Justice’s jurisdiction is matters pertaining to CFSP.

Article 24(1) TEU states, ‘…The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.’

Article 40 TEU states, ‘The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’

Article 275 TFEU states, ‘The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions. However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’

Generally therefore, it can be assumed that the there is no basis for the Court to possess jurisdiction in matters relating to CFSP, set out between Articles 21-46 TEU (‘Title V’). All relatively straightforward it would seem? Not necessarily so. In fact, the complexity of the rules, and the derogations set out are subject to varying interpretations which inevitably end up before the Court such as this case in point.

H v. Council (Case C-455/14 P) was an appeal of an Order by the General Court, concerning jurisdiction to rule on a staff dispute raised by an official serving the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH). Initially, upon receipt of the case, the General Court made an Order on 10 July 2014 (Case T-271/10, H v. Council, ECLI:EU:T:2014:702) stating that the General Court had no jurisdiction on the matter given it was CFSP, thereby interpreting the Treaties provisions on lack of jurisdiction, Articles 24(1) TEU and Article 275 TFEU in a broad manner. H appealed the Order of the General Court to the Court, as H was of the view that the staffing issue within CFSP was an administrative act, and cannot be construed as to entail non-jurisdiction of the Court, notwithstanding the fact that the EUPM was formed on a CFSP legal basis. The case presented itself as another opportunity for the Court to refine what the extent of the jurisdiction of the Court is within the delicate field of CFSP.

In the General Court, both the Council and the Commission said the matter was CFSP, and therefore, pursuant to the second paragraph of Article 24(1) and the first paragraph of Article 275 TFEU, that the General Court did not possess any jurisdiction over it. On this point, the General Court agreed. H disagreed, and in this appeal, set out two pleadings. The Court of Justice only dealt with the second plea – the jurisdiction of the EU judiciary in matters pertaining to CFSP. Given its findings on the second ground of appeal on jurisdiction, it said there was no need to examine the first.

Following the Opinion of Advocate-General Wahl delivered in April 2016, the Court of Justice delivered its judgment in July 2016. Whilst the Advocate-General said the General Court was right by saying the Court had no jurisdiction, the Court took a contrasting outlook to them both. Meeting in Grand Chamber, the Court acknowledged that, principally, it can be assumed that the jurisdiction of the Court does not extend to the CFSP provisions of the Treaties, known as Title V, or Articles 21-46 TEU. Whilst this was the case, the Court also said the general exclusion of the Court cannot extend to all aspects of CFSP. Based on this assertion, it can be assumed that acts adopted on a CFSP legal basis may come within the Court’s jurisdiction. In this case, this was despite the EUPM being grounded on a CFSP legal basis through Article 28 TEU and Article 43(2) TEU. The issue was therefore, should administrative decisions falling within the ‘day-to-day’ sphere of operations on the ground in the EUPM constitute non-jurisdiction of the Court?

Decision 2000/906/CFSP amongst other things, set outs the staffing arrangements for the EUPM. What is clear from the Decision is that staff on the ground in EUPM are all subject to the rules and the direction of the Civilian Operation Commander. This is sensical, given that the idea of senior officials not being in central control of all staff would be an operational and logistical nightmare. On closer inspection of the Decision however, the legal positions of positions are in fact distinct, in that some are seconded from national public bodies, and others are seconded from various EU institutions, agencies, and bodies. Despite this difference, the Decision allows for the coordination of day-to-day operations to cover ‘all’ staff. This is the tool that the Court uses to prise open jurisdiction for the matter at hand. Given that acts of staff management occurs in all EU public bodies, the Court noted that the CFSP Decision on staff arrangements within EUPM is similar to those exercised in EU institutions (paragraph 54). As a result, the Court believes that the derogations imposed on the Court’s jurisdiction in both Article 24(1) TEU and Article 275 TFEU cannot prevent the Court from exercising review over staff management in EUPM, notwithstanding the fact that EUPM is provided for by a CFSP legal basis.

This interpretation by the Court of Justice is not without further justification. Reliance is placed upon a Decision governing the statute, seat and operational rules of the European Defence Agency (EDA). The Council’s Decision on the EDA, 2015/1835/CFSP, confers jurisdiction upon the Court to adjudicate on matters relating to seconded national experts. Furthermore on judicial review, the Court said, ‘…the very existence of effective judicial review [is] designed to ensure compliance with provisions of EU Law…’ (paragraph 41). This not the first time that the Court has used ‘rule of law’ considerations in justifying allowances for judicial review. In addition, the Court stated that the issue in this case was redeployment, and not secondment itself, which it says the General Court mistook. Conclusively, the ‘no jurisdiction of the Court’ articles in the Treaties for CFSP does not mean everything in a CFSP mission is beyond the Court’s reach. The Court therefore concluded that the General Court erred in taking a broad view the Court’s principally excluded position.

The Court’s judgment in H v. Council appears to be sound. To interpret all matters relating to CFSP missions, including the administrative, procedural, and operational issues as being ‘CFSP acts’ to escape judicial oversight of the EU judicial body would have been over-interpretation of the restrictions on the Court which have been set down by the Treaties. What construes a ‘CFSP act’ has gotten smaller as a result, as the Court took a narrow construal of what a CFSP act is, and the derogations imposed on the restrictive judicial review arrangements. The Treaties distinguish between acts of foreign policy, and implementing acts. Article 40 TEU states, ‘The implementation of…[CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences…’. Even though implementing acts of foreign policy, it would be erroneous to construe all decisions of various importance within CFSP as ‘CFSP acts’, thereby excluding judicial review.

Notwithstanding the environment in which missions like EUPM operate, the Council’s argument that an operational issue in the context of security and defence should fall outside the EU judicature is not particularly strong. The Council has basically shot itself in the foot as a result of the EDA Decision last year. Perhaps without realising the full ramifications of Council Decision 2015/1835/CFSP in 2015, it is now having a spill-over effect. The Council itself trampled over its own arguments by granting the Court jurisdiction within one CFSP Decision on the EDA in 2015, but then trying to claim that it does not have the same adjudication powers within another early CFSP Decision on the EUPM. This argument wasn’t sustainable, which the Council would have realised when the Court likely queried the matter during oral hearing.

H v. Council is another case in a series of breakthroughs for the Court of Justice in CFSP. Just because a measure is concluded on a CFSP legal basis does not de-facto exclude the Court. The Court can use secondary Union law, a CFSP Decision, to prise open the jurisdictional bounds imposed on the former Second Pillar. The Mauritius (Case C-658/11) and Tanzania (Case C-263/14) cases have demonstrated that the Court has been strong on institutional procedure, and it is notable that the Court has opened up its jurisdiction in CFSP once again, without making use of Article 40 TEU – its ‘border policing’ provisions between CFSP and non-CFSP. The outcome of this case meant firstly, the General Court’s order finding of no jurisdiction has been set aside. The Statute of the Court (Article 61) permits it to send back cases to the General Court, for which it will be bound now on points of law that have been issued by the Court. Hence, the Court has bounced the issue back to the General Court to decide the case on matters of substance, now that its jurisdiction has been affirmed.

The forthcoming Rosneft judgment (Case C-72/15, Rosneft Oil Company OJSC v. Her Majesty’s Treasury and Others), a preliminary reference dealing with, amongst other things, the Court’s jurisdiction in CFSP, will be decided by the Court later this year, and will be keenly watched. (See discussion of the opinion in that case here). As time goes on, the two differing legal regimes of CFSP and non-CFSP on EU external action will continue, unless ‘splitting’ begins to become more commonplace, where EU measures are decided upon a dual legal basis. Until such a time when these issues of EU constitutional law are ironed out, the Court will continue to be asked detailed intricate questions about its jurisdiction in CFSP.

Barnard & Peers: chapter 10, chapter 24

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