Thursday 30 January 2014

Pirates of the Indian Ocean: Legal Base and Democratic Debate

Steve Peers

Despite their central role in the world of EU law, legal base disputes often confound those outside the fairy-tale duchy of Luxembourg and the Brussels beltway, in particular when everyone agrees as to the substance of the issue concerned. And indeed, everyone agrees that the pirates in the Indian Ocean are a bad thing (except, presumably, the pirates themselves), and that the EU should establish (as it has done) a military action to combat them.

But what happens if the EU force catches the pirates? No-one wants the pirates coming to Europe to be tried, and it wouldn’t do to send them to Guantanamo. It would certainly be ironic if they could be forced to walk the plank, but that would violate their right to life. So they must be handed over to nearby countries in East Africa, for prosecution in those states, and everyone agrees that the EU must negotiate agreements to this end with the countries concerned.

One such treaty is between the EU and Mauritius, and the European Parliament (EP) has challenged the Council’s decision to conclude it on two separate grounds: the wrong legal base, and a failure to inform the EP sufficiently (Case C-658/11). The Advocate-General’s opinion, delivered today, is worthy of detailed analysis.

The legal base issue: foreign policy, or development and judicial cooperation? 

The Council believes that the treaty with Mauritius concerns the EU’s Common Foreign and Security Policy (CFSP) alone, while the EP believes that the treaty concerns also judicial cooperation and development. In this case, the choice of legal base has far greater consequences than usual. Either way, the treaty had to be agreed unanimously by the Council, since both parties agree that it concerns foreign policy at least in part. But if the Council is right, and the treaty only concerns foreign policy, then: the EP did not even have to be consulted; the treaty had to be negotiated by the EU foreign policy High Representative; and the CJEU has no jurisdiction (except the jurisdiction to rule on whether the Council used the right Treaty base, as in this case: see Article 275 TFEU). If the EP is right, then: the EP had the power of consent over the treaty; the treaty had to be negotiated by the Commission; and the CJEU has its full usual jurisdiction.

The Advocate-General first of all examines the EP’s arguments based on the precise wording of Article 218 TFEU, which specifies that the EP must consent to or be consulted about all treaties to which the EU will become a party, unless those treaties ‘relate exclusively’ to the CFSP. In his view, this rule simply echoes the legal distinction between the ‘legal bases’ of the CFSP and other EU policies, and so does not create a separate rule relating to the conclusion of external treaties.

Then the Advocate-General turns to the heart of the issue: which legal base applies? In his view, taking account of the overall legal context, including Security Council Resolutions addressing the threat to international security posed by the pirates and the EU’s military action to combat them, the treaty is a CFSP measure. In particular, the CFSP measure providing for the military action contains rules on the possible transfer of the pirates to third States, including human rights protection. That EU measure would not be effective without treaties with third States regulating the transfer of those pirates.

Also, the treaty falls within the scope of the CFSP due to its objectives, which include (from the EU’s general external relations objectives) the requirements that the EU act in order to: ‘safeguard its values, fundamental interests, security, independence and integrity’; ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’; ‘preserve peace, prevent conflicts and strengthen international security’; and ‘promote an international system based on stronger multilateral cooperation and good global governance’ (Article 21(2) TEU). In the Advocate-General’s view, these ‘are among those [objectives] that are traditionally assigned to the CFSP’ and ‘essentially correspond’ to the CFSP objectives as they were set out in the Treaties before the Treaty of Lisbon. The activity of transferring pirates also falls within the scope of the defence policy provisions of Articles 42 and 43 TEU, which refer to the use of ‘civilian and military’ assets.

The Advocate-General also rejected the use of the EU’s powers concerning criminal judicial cooperation. In his view, the external use of the EU’s justice and home affairs powers must ‘have a close link with freedom, security and justice within the Union’, namely ‘a direct link between the aim of the internal security of the Union and the judicial and/or police cooperation which is developed outside the Union’. This was distinct from a CFSP measure which had the objective of, ‘first and foremost, peace, stability and democratic development in a region outside the Union’. In this case, transferring pirates to East African states was too far removed from the development of the EU’s justice and home affairs policies. Finally, the Advocate-General rejected the use of the EU’s development policy powers, since the assistance which the EU gives to Mauritius is linked only to the application of the rules on the transfer of pirates, which constitute (in his view) a CFSP measure.

Is this first part of the opinion convincing? Some parts are more convincing than others. Certainly, the treaty should not have a legal base relating to development policy, since the assistance being provided is purely ancillary to the transfer of pirates. But this begs the question of the legal base which should apply to the transfer of pirates.

It makes sense to apply the same legal base rules to the conclusion of international treaties as apply to the adoption of internal legislation, since the Treaty drafters have forged a strong link between those two facets of EU decision-making. On the other hand, while it is true to say that a treaty containing rules on the transfer of pirates is necessary to ensure the effectiveness of the military operation which catches them, it does not necessarily follow that it has the same legal base. For example, for the EU’s patent legislation to be effective, there need to be rules on patent translation and the creation of a patent court. But the patent translation rules were adopted pursuant to a different decision-making rule, and the patent court will be established pursuant to a treaty between Member States. The legal base of the treaty with Mauritius should depend only on the content of the specific rules in the treaty with Mauritius. 

Here, the arguments are finely balanced. The Advocate-General makes a persuasive case that EU military operations can use civilian assets, and that the EU’s justice and home affairs powers can be used externally only where there is a sufficient link to the EU’s internal rules in this area. Incidentally, this line of argument strangles at birth the idea (floated, as it were, by Italy) that an EU foreign policy measure could establish a military action in the Mediterranean to control immigration towards the EU. The link between such an action and the EU’s immigration, asylum and border control powers is blindingly obvious.

On the other hand, with great respect, the Advocate-General’s analysis of the EU’s general external relations objectives is not fully convincing. True, the first and third of the four objectives he refers to (safeguarding values, et al, and preserving peace, et al) previously appeared in Article 11 TEU, which set out the CFSP’s objectives prior to the Lisbon Treaty. But the reference to the promotion of an international system based on cooperation and good governance is new, as is the general reference to the principles of international law; and these objectives are obviously applicable to any form of external action by the EU, whether it concerns the CFSP, judicial cooperation, development or anything else. As for human rights, democracy and the rule of law, they were indeed previously referred to in Article 11 TEU. But they were (and are) also a foundational value of the entire EU legal order (see now Article 2 TEU, and previously Article 6(1)), and are in part specifically referred to in the Treaty rules governing justice and home affairs and development cooperation. So this line of argument is ultimately not very persuasive.

Nor is the Advocate-General’s reference to the urgency of measures on this issue. The complications which the EU institutions face in their external action which result from the external relations rules in the Treaties simply can’t change the analysis regarding the legal base of those treaties (see Opinion 1/94, as regards the WTO). Anyway, the Council has the power, according to Article 218 TFEU, to decide to apply a treaty provisionally as soon as it signs it on behalf of the EU. Therefore the involvement of the EP in concluding the treaty would not compromise the urgency of achieving the treaty’s ends in any event.

So which legal base should apply? In my view, this should be determined on the basis of a teleological argument which the opinion does not consider. In the SEGI case, decided in 2007 (Case C-354/04), the Court of Justice ruled that an EU measure which imposed sanctions upon individuals could not be adopted in the form of a Common Position, a third pillar legal act which resembled a CFSP measure with a similar name. This approach ensured a minimum degree of democratic participation and judicial review at EU level of acts which directly imposed sanctions upon individuals. The same logic should apply by analogy here.

In fact, the Court should go further still. The elevation of the EU’s Charter of Rights to the ‘same legal value’ as the Treaties suggests that there should be a new approach to the resolution of legal basis and other institutional conflicts. Where relevant, if there is any ambiguity about the choice between possible legal bases or decision-making processes, the Court should ensure that EU measures concerning human rights should be decided by means of whichever process ensures the maximum possible parliamentary input and judicial control. It has already followed this approach in a case involving the powers of Frontex and national authorities to intercept vessels (C-355/10 EP v Council), and should confirm it as a fully-fledged new norm of interpretation. It is hardly necessary to point out how that rule should be applied in this case, as regards a treaty designed to ensure that criminal suspects who are in the hands of the EU receive a fair trial and basic human rights protection against torture and the death penalty when handed over to a third country.

Failure to inform the European Parliament

The Advocate-General’s conclusion on the first issue is reasonably argued, but his opinion on the second issue, with great respect, is deeply objectionable. The starting point as regards this issue is Article 218 of the TFEU, which specifies that the EP ‘shall be immediately and fully informed at all stages of the procedure’ relating to the EU’s international treaties. Remember those words in italics! The Advocate-General, sadly, did not.

First of all, the Advocate-General rejects the Council’s argument that the CJEU has no jurisdiction to examine the application of this rule as regards CFSP treaties. In his view, even where the substance of a treaty concerns the CFSP, the CJEU can examine the validity of the procedure used to adopt it, despite the Court’s lack of jurisdiction over the treaty as such (besides legal base arguments).

This is a fine line, but his argument has merit. If the CJEU had no jurisdiction, the EP’s procedural rights would be unenforceable as regards CFSP treaties – and those are the only rights it has as regards such treaties. And the CJEU can rule on those procedural rights without entering into any interpretation of the substance of those treaties, thus respecting the jurisdictional limit set by the Treaty drafters. It should follow by analogy that the CJEU would have jurisdiction under another provision of Article 218 to rule in advance on the compatibility of planned CFSP treaties with EU law.

Next, the Advocate-General argues that while the obligation to inform the EP applies to CFSP treaties, the EP should get more information, more quickly, where a treaty does not concern the CFSP, in light of the EP’s greater role regarding the conclusion of such treaties. Conversely it can receive less information, more slowly, as regards CFSP treaties.

How much was the EP informed as regards this treaty? When the Council decided to open negotiations, it informed the EP on the same day. That was certainly immediate. But the next time the EP heard from the Council was three months after the treaty was signed. This was one month after the publication of the decision to sign it in the Official Journal!

Shockingly, for the Advocate-General, this is sufficiently ‘immediate’. One is tempted to ask how many months he would be willing to wait to get served in a restaurant, or to use a toilet. With great respect, this is not, using any conceivable canon of interpretation, a plausible interpretation of that word. Put simply, no-one would consider a person who kept us waiting three months to be acting ‘immediately’.

As for the full information of the EP, the Opinion argues that because this was a CFSP treaty, the EP did not have to be informed of the progress of negotiations.

Let’s go back to the wording of the rule. First, a textual interpretation. Unlike the rules regarding the negotiation and conclusion of treaties by the EP, it makes no distinction between CFSP and other treaties. So prima facie, the two types of treaties must be placed on the same footing as regards information for the EP. 

Secondly, a contextual interpretation. The Advocate-General’s view of this rule is that it is designed to supplement the EP’s subsequent role as regards concluding the treaty concerned. But the Treaty makes no such link expressly. So the difference in wording between this rule and the rules on the EP’s role in concluding treaties suggests that it has a different purpose: to facilitate democratic debate as regards any planned treaty.

Of course, the amount of information which can be disclosed in public concerning a planned treaty in the midst of negotiations might be limited by confidentiality concerns, but these are addressed by agreements between the institutions concerned. Disclosing information to the EP as regards a planned treaty allows the EP to express its opinion, either privately to the Council or following a public debate, about whether a particular planned treaty is a good idea in principle. For instance, it should surely be a matter for public debate whether a particular country which the EU plans to transfer pirates to has a good record as regards fair trials, treatment of prisoners and the use of the death penalty. Of course, the EP’s influence may be limited as regards draft CFSP treaties because it will not get to vote on them. But why add insult to injury, and prevent it from holding an informed debate and expressing an informed opinion until (three months) after the treaty has been signed?

If anything, the context of CFSP treaties suggests that the EP should have more information, not less, than as regards other treaties. After all, the EP has a formal role as regards the conclusion of other treaties, usually the power of consent. So if the EP only finds out at a late stage that a draft treaty contains something which it finds objectionable, it can veto that treaty. Whereas, as regards a CFSP treaty, the EP’s only chance to influence its content will be before its signature and conclusion.

Finally, what does it mean to require ‘full’ information ‘at all stages’ of negotiations? This obviously applies to decisions (including agreements in principle) to open negotiations, initial treaties, sign treaties, provisionally apply them, and conclude them. Given the wording and purpose of the Treaty rule, it also should apply to proposals to negotiate treaties, the progress of treaty negotiations, the denunciation of treaties and to EU actions within bodies established by treaties.

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

Barnard & Peers: chapter 24

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