Tuesday 24 June 2014

The CJEU ensures basic democratic and judicial accountability of the EU’s foreign policy


Steve Peers

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

The European Parliament (EP) was challenging the Council’s decision to sign and conclude (ie, ratify) a treaty between the EU and Mauritius, relating to the EU’s military operation as regards pirates in the Indian Ocean. As discussed further in the previous blog post concerning the Advocate-General’s opinion, one important aspect of this treaty (and similar treaties with other nearby States) was the inclusion of rules governing the transfer, trial and treatment of alleged pirates to Mauritius, once the EU caught them.

The dispute had two elements – substantive and procedural – which will be considered in 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 and concluding international treaties by the EU) states that the EP does not even have to be consulted. But in the EP’s view, it had the right of consent over this treaty, since it also touched upon issues of development policy and criminal and police cooperation. Article 218 provides that where a treaty concerns issues where the EU’s ordinary legislative procedure applies (such as those policy areas), the EP has a right of consent before a treaty can be concluded.

The Court assumed that the EP was not actually arguing that the EU/Mauritius treaty should also have been adopted by means of the development policy, police and judicial cooperation legal bases. So therefore it confined itself to ruling on a narrow legal point. Article 218 states that when a proposal to negotiate a foreign policy treaty is first made to the Council, the Commission and the High Representative for the CFSP shall make recommendations where that treaty relates ‘exclusively or principally’ to the CFSP.

But the CJEU ruled that the different wording (‘exclusively or principally’ when recommending a negotiation, and ‘exclusively’ when concluding a treaty) was immaterial. In its view, the basic rule in Article 218 is an underlying parallelism between the internal powers of the EP and its external powers. So where it has an internal power of consent and control (for instance, pursuant to the ordinary legislative procedure), the EP should have a corresponding external control over the conclusion of treaties.

This approach inevitably meant that the EP lost its substantive argument, since Article 36 TEU only gives the EP the power to be informed and consulted of the main elements of the CFSP.

The Court’s analysis contrasts with that of the Advocate-General, who assumed that the EP was arguing that the treaty should have had also the legal bases regarding development policy and police and judicial cooperation. (His interesting arguments were fully discussed in the previous blog post).

Procedural issues

The EP’s procedural argument was based on a new clause added by the Treaty of Lisbon (Article 218(10)), which states that the EP ‘shall be immediately and fully informed at all stages of the procedure’. In this case, the Council had informed the EP of its decision to sign and conclude the agreement over three months after it had taken it.

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

Nevertheless, the Court asserted its jurisdiction, arguing that the rule in the Treaty was its ‘general jurisdiction’, and so Article 275 was a ‘derogation’ which had to be ‘interpreted narrowly’. So the Court did have jurisdiction to consider issues of procedure as distinct from substance, since the procedural legal basis for CFSP treaties is Article 218, ie a provision outside the scope of the CFSP rules as such.

The Court then ruled in favour of the EP’s main argument.  Unlike the Advocate-General, it reached the common-sense conclusion that a three-month delay in informing the EP did not constitute ‘immediately’ informing it. Publishing the treaty in the Official Journal was not enough, since the purpose of the information requirement was to ensure ‘democratic scrutiny’ by the EP, including as regards legal base issues. The failure to inform the EP was an ‘essential procedural requirement’, ie a ground to annul the act concerned under Article 263 TFEU, since it was ‘an expression of the democratic principles on which the [EU] is founded’.  

This information requirement applied even though the treaty in question concerned the CFSP, where the EP had no power of consent or even consultation. The Court emphasised that the information requirement applied to any sort of treaty, and to any stage of the procedure.


If the EP had won its argument on the substantive issues, it would have gained the power of consent over most foreign policy treaties, given their links (which the Treaties in fact require) with other aspects of EU external policies. It does appear that the EP was trying to argue a more general legal base point, and so the Court’s decision to confine itself to a more technical analysis is disappointing. If the Court had ruled on the substantive legal base arguments, it would have been its first clarification of the external scope of the EU’s policing and criminal law powers, and its first clarification of the scope of CFSP powers since the Treaty of Lisbon came into force. So the missed opportunity is unfortunate. Perhaps next time, the EP will challenge a foreign policy treaty more unambiguously, so that its legal base arguments are decided on the merits.

It could have been argued that the exception (as regards CFSP) to the normal rule that the EP has consent or consultation powers over international treaties is also a ‘derogation’ from the normal rule which had to be ‘interpreted narrowly’, just like the rule limiting the Court’s CFSP jurisdiction. However, the Court adopted different rules of interpretation as regards these two issues. One could deduce that the Court is more concerned about asserting its jurisdiction than enhancing the EP’s rights.

But having said that, the Court’s ruling on the procedural point is quite significant. First of all, as regards its own jurisdiction, the Court’s ruling means that any CFSP measure can be litigated before it, as long as the legal arguments relate to a procedural rule falling outside the scope of the CFSP provisions of the Treaty (Title V of the TEU). For instance, it arguably means that the Court would have the power to rule on the compatibility of proposed CFSP treaties with EU law, since that jurisdiction is conferred by Article 218 TFEU and not expressly ruled out by Article 275. But such disputes might often include arguments about the substance of the measure concerned (for instance, whether it would breach the EU’s human rights obligations), and it could be awkward to distinguish between procedural and substantive issues in practice.

Secondly, as for the EP’s information rights, the Court’s reference to ‘all types of procedures envisaged in Article 218’ surely means that the EP must be given information at least about the recommendations to start negotiations, the decisions to open negotiations, the negotiating directives, the suspension of agreements and the adoption of EU positions in bodies set up by agreements, since all of those measures are referred to in Article 218. This allows the EP to indicate its point of view on draft or planned treaties or measures implementing them at an early stage of the process, allowing for further democratic input into the treaty-making process.

More broadly, the CJEU quite rightly rejected the absurd view that a three month wait could constitute an ‘immediate’ notification.  It applied the literal interpretation of the Treaty rule (applying to all treaties, and to every stage of the procedure) as well as the purposive rule (advocated in the previous blog post), agreeing that the purpose of the rule was to ensure democratic scrutiny and to allow the EP to ‘make known its views’. As I previously pointed out in that blog post, such public scrutiny would be an opportunity to discuss, for instance, whether the country in question had a problematic human rights record, and therefore to influence public debate over whether the treaty in question ought to be concluded.


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

1 comment:

  1. This is a clear (nearly as clear as can be given the technical subject matter) and informative blog post, with useful analysis. Helpful on differentiating the substantive and procedural points.The final point is particularly significant, the relevance of a county's "problematic human rights record". Looking at the case of Egypt, & the pathetic report published by EEAS after the election for President al-Sisi, it seems that fundamental rights that are a principled basis of the European Union don't very much feature in EU Common Foreign and Security Policy. The Court of Justice should consider how that hypocrisy undermines the legitimacy of the EU as an actor with a degree of CFSP.