The ‘centre of gravity’ test and the CFSP: Continuing the saga with Case C‑180/20 Commission v Council (CEPA) on EU/Armenia relations

 

Narine Ghazaryan, Assistant Professor in EU and International Law, Radboud University Nijmegen

Photo credit: Jesper Ahlin Marceta via Wikicommons

 

Introduction

The judgment in Case C-180/20 (the CEPA case) is the next development in the interinstitutional battle over the boundaries of the Common Foreign and Security Policy (CFSP) with no signs of abating in sight. In this case, the Commission challenged the Council’s departure from the latter’s proposal for a Council Decision taken within the Partnership Council under the EU-Armenian Comprehensive and Enhanced Partnership Agreement (CEPA). Keen to follow the CJEU’s judgment in Commission v Council (Agreement with Kazakhstan) (C‑244/17, EU:C:2018:662) (the Kazakhstan judgment), the Commission removed Art 37 TEU (the legal base for treaties with non-EU countries concerning the CFSP) as a substantive legal basis in its amended proposal for a Council decision – only for the latter to opt for a new approach of adopting two separate decisions, one of which was based on Article 37 TEU, in conjunction with the relevant procedural provisions.

The splitting of a decision authorising a signature of an international agreement has happened in the past. For instance, the Council adopted a separate decision authorising the signing of the CFSP-related provisions of the Association Agreement with Ukraine on a provisional basis. This might have been viewed as necessary for the provisional application of the agreement given the political context surrounding the signature of the Agreement. Unlike the latter case, however, in CEPA it is the decision on the institutional framework of the agreement adopted on behalf of the EU within the CEPA Partnership Council that has been split in an apparent attempt to circumvent the Kazakhstan judgment.

The case solidifies the practice of applying the centre of gravity test in competence delimitation cases involving the CFSP as part of the trend ‘towards a consolidation of EU external action’ (Cremona, p 33). Arguably, it also attempts to clarify the application of the test itself.

 

Facts and Legal Background

In November 2017, the Council authorised the signing of the CEPA and the provisional application of some parts of the agreement in a decision based on Article 37 TEU and on Article 91 and Article 100(2) as well as Articles 207 and 209 TFEU, in conjunction with Article 218(5) and (7) and the second subparagraph of Article 218(8) TFEU.

Following the CJEU judgment in the Kazakhstan case, in July 2019, the Commission considered it safe to remove Art 37 TEU from the legal basis for the Council Decision on the position to be taken on behalf of the EU within the CEPA Partnership Council as regards the adoption of the Rules of Procedure of the Partnership Council the Partnership Committee, subcommittees and other bodies set up by the Partnership Council, and the establishment of the list of subcommittees. The Decision was to be based on Article 218(9) TFEU, as a procedural legal basis, and on Article 91 and Article 100(2) as well as Articles 207 and 209 TFEU as substantive legal bases.

Subsequently, Coreper decided to split the decision into two with a separate decision based on Art 37 TFEU alongside the procedural provisions in Article 218(8) and Article 218(9) TFEU for CEPA’s Title II on political dialogue and reform, and cooperation in the field of foreign and security policy. The Commission, supported by the Czech Republic, brought an action for annulment under Article 263 TFEU in April 2020. It challenged the exclusion of Title II of the CEPA from the scope of Decision 2020/245 (the main decision), as well as the choice of Art 37 TEU as the substantive legal basis for Decision 2020/246 (Title II decision), objecting in addition to the addition of the second paragraph of Article 218(8) TFEU as a procedural legal basis for Decision 2020/246. By its second plea, the Commission specifically challenged the artificiality of the Council’s approach creating different centres of gravity in order to manipulate the relevant voting rules. 

 

Opinion of Advocate General Pitruzzella

AG Pitruzzella first of all attempted to clarify the centre of gravity test by rejecting the arguments about a hierarchy existing between the elements of ‘purpose’ and ‘content’ of the measure. Instead, the application of the centre of gravity test depends on the circumstances of each case and is ‘highly pragmatic’ (para 28). While addressing the line of case law where the purpose of the measure appeared to impact the outcome of the test at first sight (Portugal v Council, as well as the Philippines judgment), the AG notes the importance of other factors which affected the findings in the relevant cases, including the context of the measure, the variety of purposes or several components (paras 29-33). He then refers to the Kazakhstan judgment as one which brought significant clarifications to the case law through applying the ‘classic’ centre of gravity test to delimiting the CFSP from TFEU competences for the purpose of the application of Art 218 TFEU (para 35-36). In addition to the ‘classic’ test, the AG notes also the centre of gravity test applied by the Court using the ‘quantitative’ and ‘qualitative’ criteria to analyse the content of the relevant international agreement (para 37).

According to the AG, irrespective of whichever test is applied, within the scheme of the CEPA the CFSP-related component is not ‘distinct from the other components’ which would require the reliance on Art 37 TEU (para 55). He then applied the Philippines judgment to the facts of the case. First of all, he considered whether the CEPA provisions related to policies, other than those identified as predominant (transport, trade and development cooperation), may also fall within that policy or whether they go beyond the framework of that policy. Based on a broad conception of development cooperation in line with CJEU case law, in his view, the agreement is first of all aimed at strengthening economic and trade cooperation aimed at promoting sustainable development (paras 57-62). The development cooperation being multidimensional in nature may be linked to Title II of the CEPA removing the need for a separate decision (para 63).

The AG then considers the second part of the two-step test applied in the Philippines judgment to identify whether the CFSP-related provisions of CEPA contain such extensive obligations that they constitute objectives distinct from those of development cooperation. Given the declaratory nature of Title II provisions, he concluded that they do not set obligations requiring a separate legal basis in Art 37 TEU (para 65-68). Based on the approach in the Philippines judgment, he concludes that Art 37 TEU is superfluous as a legal basis.

For the completeness of his analysis, the AG also addresses the possibility of applying the approach taken in the Kazakhstan judgment – the qualitative and quantitative evaluation of the provisions of the agreement – concluding in one paragraph that the answer would be the same as above (para 70). Given the answer to the first plea, the AG considered it unnecessary to answer the second plea.

 

Judgment

At the outset, the Court clarifies the issue concerning the procedural legal basis, in particular the inclusion of the second subparagraph of Art 218(8) and the relationship between Art 218 and 219 TFEU. As noted in the Kazakhstan judgment, the voting in the Council in relation to a position to be adopted on behalf of the EU in a body set up an international agreement will depend on whether the situation is covered by the first or the second paragraph of Art 218(8) (para 30). This in turn will require an inquiry into the substantive legal basis (para 31). The Court then turns to the centre of gravity test, confirming the AG’s position that there is no hierarchy between the aim and the content of the measure (32-33). Rather, all objective factors related either to the aim or the content of the measure must be considered in each specific case to determine the field covered in the relevant decision, including the identification of predominant purpose or component if the measure pursues a twofold purpose or has more than one component. The CJEU repeats the established position according to which only if the measure ‘simultaneously pursues a number of objectives or has several components that are inextricably linked, without one being incidental in relation to the other’ can such a measure be based on different legal bases, which is not possible if the relevant procedures are incompatible (para 34). The question is therefore whether the areas covered in the agreement which require qualified majority voting can be considered as predominant in terms of the content or the purpose of the agreement taken as a whole. The three main areas covered by the agreement include transport, common commercial policy and the development cooperation based on Articles 91, 207 and 209 TFEU.

As far as the content of the Agreement is concerned, the Court first of all takes a closer look at the provisions contained in Title II, including on the aims of political dialogue, domestic reform, foreign and security policy. It sides with the AG in confirming that these provisions are few in number compared with 386 articles contained in the agreement which mostly relate to trade and development cooperation. As far as the nature of obligations in Title II is concerned, the Court observes that they are programmatic without setting specific programme of actions for the parties (para 46).

As for the aims of the Agreement, Article 1 on the objectives read alongside with the preamble and the majority of the provisions demonstrate that the CEPA is a framework agreement established to advance bilateral cooperation in the fields of transport, trade and development cooperation (para 47-48). The Court adopts a broad reading of development cooperation in line with its pre and post-Lisbon case law (the ECOWAS and the Philippines judgment) which in the case of CEPA is not negated by the CFSP-related specific objectives in Article 1 on the aims of the agreement. Crucial for the Court is the fact that the enumeration of the CFSP-specific objectives in Article 1 is not ‘accompanied by any programme of action or concrete terms governing cooperation’ in the field of CFSP (para 52).

The CJEU also dismissed France’s argument that the presence of the Nagorno-Karabakh conflict should necessarily be seen as part of the context of the agreement placing its security component at the forefront. According to the Court, the CEPA includes no provisions with specific obligations concerning the Nagorno-Karabakh agreement, and the contested decisions concerning the functioning of the CEPA institutional framework do not entail any concrete measures between the parties taken based on the CEPA that might be relevant for the conflict (para 54-55).

Ultimately, the Court finds that the CFSP-related components of the CEPA are not such as to constitute an ‘autonomous’ component of the agreement, and orders the annulment of both decisions which also results in the dismissal of the Commission’s second plea (para 56-59). In line with the established position, the CJEU maintained the effect of the relevant decisions for the sake of legal certainty until the Council rectifies the position by adopting a new decision in compliance with the judgment.

 

Commentary

The main question to ask is whether the judgment merely trails the previous jurisprudence or adds any clarifications to the case law.

Council’s attempt to prevent the ‘absorption’ of the CFSP?

Despite suggestions that splitting the legal basis ‘will ensure the non-affectation between CFSP and non-CFSP procedures and preserve the special status of the CFSP in the EU legal order’ (MIadzvetskaya 2020), with the CEPA judgment the Court has rejected such an approach. Similar to the Kazakhstan judgment, there is no recourse to Article 40 TEU which further indicates that the CFSP does not have an inherently distinct character requiring strict guarding in each and every case where the division of competences alongside TEU and TFEU legal bases is contested. Rather, the CEPA judgment confirms once again that the centre of gravity test applies similar to all other cases of competence delimitation.

The insertion of Article 37 TEU by the Council in this respect comes across as an attempt to bypass the Kazakhstan judgment by artificially splitting the relevant decision. This led to the odd outcome of a joint substantive legal basis for the entire agreement and a split legal basis for a decision within the Partnership Council on the institutional framework of CEPA meant to apply to the entire agreement. The Council’s argument that the lack of objection by the Commission toward the inclusion of Art 37 TEU as a substantive legal basis when authorising the signing of the CEPA justifies its approach was rightly rejected by the AG: on its own, this fact does not justify such an outcome.

The same argument can be said to give away the underlying concern of the Council after the Kazakhstan judgment: if the decision on the adoption of the CEPA institutional framework can exclude Art 37 TFEU as its substantive legal basis alongside the relevant procedural provision requiring unanimity, can that in principle entail that Art 37 TEU can also be omitted as far as the decision on approving the agreement itself is concerned? This concern is not ungrounded since the CJEU’s proclamation in the Kazakhstan judgment that the links between EU-Kazakhstan Partnership Agreement and the CFSP ‘are not sufficient for it to be held that the legal basis of the decision on the signing of that agreement, on behalf of the EU, and its provisional application had to include Article 37 TEU’ (emphasis added, para 43).  

As a result, Art 37 TEU as such is unnecessary as a legal basis for decisions authorising the signature of framework agreements focused predominantly on trade and development cooperation. Indeed, there are already such examples, including the Framework Agreement on Comprehensive Partnership and Cooperation with Vietnam. The CEPA’s CFSP provisions could have similarly have been viewed as insufficient to necessitate a separate legal basis in Art 37 TEU for the decision approving the agreement. One can even claim that the Kazakhstan judgment casts a retrospective shadow on the inclusion of Article 37 TEU as a substantive legal basis for decisions signing trade and cooperation agreements. It is not a surprise therefore that in justifying its position in CEPA the Council raised the fact that the Commission did not challenge the inclusion of Art 37 TEU among the legal basis for the decision authorising the relevant agreement. One can therefore argue that the splitting of the decisions on the part of the Council was a reaction to the Kazakhstan judgment: the Council is keen on preventing the ‘absorption’ of the CFSP. It perhaps anticipates a further challenge to the very practice of including Art 37 TEU as a substantive legal basis for framework agreements focusing predominantly on trade and development cooperation.

What next for the ‘centre of gravity’ test?

The CEPA judgment is worthy of attention in terms of the role of the quantitative and qualitative criteria as far as the centre of gravity test is concerned.

The Court’s approach in this regard can be contrasted with that of the AG Pitruzzella. The latter considered the use of the ‘quantitative’ and ‘qualitative’ tests as second to the ‘classic’ centre of gravity test. He clearly has a preference for the two-step test used in the Philippines judgment, dedicating most of his attention to its application. Only after reaching his conclusion based on the application of the Philippines judgment, does he note that the same conclusion would have been reached if the quantitative/qualitative criterion is applied as seen in the Kazakhstan judgment.

The CJEU, on the other hand, does not make a similar distinction between the ‘classic test’ and the quantitative and qualitative criteria used in Kazakhstan. Unlike in the latter case, however, the CJEU bases its findings on a much more substantive and systematic analysis of the aim and the content of the agreement. The CEPA judgment makes an effort to interlace the quantitative and qualitative criteria with the approach used in the Philippines judgment (para 45). For instance, with reference to the content of the agreement, the Court carries out a quantitative and qualitative analysis of the relevant provisions concluding that they should be viewed with regards to the essential object of the agreement rather than in terms of individual clauses ‘provided that those clauses do not impose such extensive obligations … that those obligations in fact constate objectives distinct from those of development cooperation’(para 45).

Similarly, in relation to the aim of the agreement, the quantitative and qualitative overview of the provisions is linked to the tried and tested approach of Portugal v Council and Philippines judgments (paras 47-53). In looking at the objectives, the Court does not attempt to identify traditional CFSP legal objectives (as was suggested by Advocate General Bot in the Mauritius judgment), and merely refers to objectives which ‘may be linked to CFSP’ (para 52). It finally reaches a conclusion that the CFSP-linked elements ‘cannot be regarded as constituting a distinct component of that agreement but it is, on the contrary, incidental to the principal components’ concerning the development cooperation. As mentioned above, the Court takes a broad view of development cooperation in line with its previous case law, including ECOWAS. In fact, the broad interpretation of the development cooperation should be seen as the ‘lasting effect’ ECOWAS had made on EU external relations law (Hillion and Wessel, 582-583).  

Furthermore, in addition to the content and the aim of the agreement, its context also featured in the judgment. While the CJEU’s approach has been criticized in the past for giving significant weight to the context of the agreement (Sánchez-Tabernero, p 910), CEPA demonstrates that the context does remain one of the objective factors reviewed by the court, particularly if relevant arguments have been raised by the parties. At the same time, the CJEU is wary of artificial context constructs, such as the attempt by France to use the Nagorno-Karabakh conflict to create a security-related context for the agreement, which was rightly rejected by the Court.

 

Conclusion

The CEPA judgment should be seen as another stop in the long saga of the inter-institutional battle for competence delimitation in EU external relations. The Council, ever sensitive to guarding the CFSP, attempted to bypass the outcome of the Kazakhstan judgment only for the Court to cast more shadow on the practice of including Article 37 TEU as a legal basis for decision on signing of trade and cooperation agreements. The CEPA judgment also offers a more substantive and thoughtful application of the centre of gravity test in comparison with the Kazakhstan judgment. Judging by the past experience, CEPA will not be the last call on this matter.

 

References:

M Cremona, ‘The Principle of Conferral and Express and Implied External Competences’ in E Neframi and M Gatti (eds), Constitutional Issues of EU External Relations Law (Nomos 2018)

C Hillion and RA Wessel, ‘Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness?’ (2009) 46 CMLR 551

SR Sánchez-Tabernero, ‘The Choice of Legal Basis and the principle of consistency in the procedure for conclusion of international agreements in CFSP contexts: Parliament v. Council (Pirate-Transfer Agreement with Tanzania)’ (2017) 54 CMLRev 899

 

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.

Comments

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

The CJEU enhances the EU’s role as an external actor

Steve Peers

In today’s judgment in Commission v Council, the CJEU ruled that the EU’s partnership treaties with third States must be adopted using EU powers relating to development and trade (common commercial policy) even if those treaties include provisions relating to transport, the environment and readmission. Due to its broad concept of development policy, the Court’s judgment will entail an increase in the EU’s ability to obtain its external policy objectives.

Background

The EU has been signing development policy treaties (and adopting development policy legislation) for a long time, but its formal powers in this field date back to the original TEU (Maastricht Treaty), in force in 1993. When adopting development policy measures, the Council votes by a qualified majority, meaning that a Member State might be outvoted.

There have been several ‘generations’ of EU development policy treaties, each of them wider in scope than the last. The key previous ruling on the scope of the EU’s development policy is a 1996 CJEU ruling concerning an agreement with India. In the Court’s view, the concept of development policy was a broad one, extending beyond the traditional sphere of poverty relief to such areas as energy and culture, as long as the relevant provisions of the treaty did not set out ‘concrete obligations’. If they did, then other EU legal bases, possibly entailing unanimous voting, or the participation of the Member States in the treaty might be required.

Since then, there is another new generation of EU development treaties (now called partnership agreements), extending even further in scope. Member States have insisted that these treaties need their involvement alongside the EU, and also that the treaties concerned need other legal bases to  be adopted.

While today’s judgment concerned a treaty with the Phillippines, the EU has also agreed or is negotiating similar treaties with many other Asian countries, most notably China.

The judgment

According to the Court of Justice, the provisions in the partnership treaty concerning transport and the environment are essentially ‘declarations’, and so do not entail concrete obligations. So the development policy legal base is enough to cover them.

Furthermore, the Court ruled that the treaty provisions on readmission fell within the scope of development policy. This was because while although the commitment in the partnership agreement to accept each party’s own nationals who were present without authorisation, and to negotiate a treaty to this effect, was binding, it was not sufficiently detailed to constitute a ‘concrete obligation’.

Comments  

The consequence of the judgment is that partnership agreements with similar clauses cannot any longer be subject to separate decisions approving them as regards immigration issues, due to the opt-outs of the UK, Ireland and Denmark on such issues. Therefore this judgment continues a general trend in which the Court narrowly interprets the terms of these opt-outs (see the previous posts regarding recent judgments on social security and transport safety). This limitation of the opt-out is the most obvious consequence of the judgment, since the voting rule in Council and the involvement of Member States in signing the treaty were not contested.

However, this is a distinct question from whether EU association agreements need to be subject to the same procedure for separate decisions (which is currently the case) if they contain such clauses on immigration issues. But the case for separate decisions as regards the immigration provisions of association agreements has obviously been weakened by analogy by this judgment. It should be noted that the Court found that all of the ‘migration management’ provisions of the partnership treaty, not just the specific provision on readmission, fell within the scope of the development policy powers.

The Court’s ruling as regards the transport and environment provisions is unsurprising, in light of the previous judgment on the scope of development policy (which the Court reaffirmed). Furthermore, it would be possible, in light of the Court’s ruling on the immigration issues, to include in partnership agreements some specific commitments as regards (for instance) signing further treaties on climate change or aviation liberalisation, since they would not constitute a concrete obligation.

The judgment is more questionable as regards readmission. The Court rightly did not accept the Advocate-General’s opinion that a merely political link between readmission and development was sufficient to bring the former issue within the scope of the latter. Rather, it narrowed the scope of the notion of a ‘concrete obligation’, thereby widening the scope of the notion of development policy. So a legal commitment is not necessarily a concrete obligation: it depends on how specific that commitment is.

More broadly, arguably this judgment opens up scope for the EU to insist on more specific human rights obligations as part of its partnership agreements. An obligation to sign key human rights treaties, and/or to pass certain legislation improving human rights domestically, is arguably not concrete enough within the meaning of this judgment.

Overall, the consequence of this judgment is that the EU’s development policy is broader than had previously been understood to be the case, with the result that the EU can insist upon more obligations on behalf of its partners without this entailing institutional complications on the EU end. The Court’s judgment therefore makes it easier for the EU to insist that more countries adhere to its external policy objectives, and so makes the countries‘ development more conditional upon compliance with the EU’s goals.

Barnard & Peers: chapter 24, chapter 26

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

Is readmission linked to development?

Steve Peers

In recent years, the EU has been negotiating Partnership and Cooperation Agreements (PCAs) with a number of Asian countries. These agreements replace the previous development policy agreements which the EU had with the countries concerned. Compared to the previous agreements, the PCAs include go into greater detail about the EU's cooperation with the countries concerned, including the addition of further topics for cooperation.

Given the addition of these new topics, and the expansion of detail on other topics, the issue arises whether (like the previous generation of treaties) the legal base for the treaties concerned should be trade and development alone, or whether other legal bases must be included. Unsurprisingly, the Commission takes the former view, and the Council takes the latter. In fact, the same issue has arisen in respect of some recent association agreements, although they are not at issue in this case and are subject to a different legal base.

Who is correct about the legal base argument, the Commission or the Council? In today's opinion by Advocate-General in Case C-377/12 Commission v Council, Advocate-General Mengozzi argues that the Commission is correct. This particular case concerns the Council's decision to sign the PCA with the Philippines on behalf of the EU, and the Commission is challenging the Council's decision to add legal bases relating to the environment, transport and immigration policy to the trade and development legal bases which the Commission had proposed.

The starting point of the A-G's analysis is the CJEU's prior judgment of 1996 in Portugal v Council, in which the Court ruled that the EU's development policy legal base could apply to the conclusion of a treaty with India which included provisions on issues like energy and culture, along with a clause on suspension of the agreement on human rights grounds. The core of the Court's reasoning was that a development policy treaty could include general provisions on issues like energy and culture, as long as cooperation on these issues contributed to the development of the countries concerned, but if there were any detailed commitments on such issues in the treaty, other legal bases would have to be added. Furthermore, it was acceptable for such treaties to include a clause allowing for their suspension on human rights grounds.

Applying that prior case law to the PCA with the Philippines, while the provisions in that treaty on transport and the environment are more detailed than those in prior development policy agreements, the A-G argues that such clauses still set out only general obligations, and still contribute to the development of that country. The Council also raised arguments about the impact of the clause allowing the PCA to be suspended in the event of concerns about human rights, democracy and the rule of law, but the A-G does not believe that should affect the legal base for signing the agreement.

The provision in the PCA on immigration raises more difficult issues. The A-G draws a distinction between the more general paragraphs on immigration management, and the more specific paragraphs dealing with readmission. The former clauses do not set out precise legal obligations, while the latter do: the parties have agreed to take back their own nationals who stay on the territory of the other parties without authorisation, and have agreed to negotiate a readmission treaty. In the A-G's view, these clauses don't contribute to the development of the Philippines either. In fact, they only serve the EU's interest.

But having said that, he still concludes that the Council should not have added a separate legal base for the readmission clauses, since (following other prior case-law) this issue is ancillary to the main thrust of the agreement. In particular, he reaches this conclusion because the EU only obtained the Philippines' consent to the readmission clauses in return for the Union's commitments as regards development in the rest of the PCA.

Comments

Why did the Commission bring this action? It is not contesting the nature of the PCA as a 'mixed agreement', ie concluded by the Member States as well as the EU. Also, the inclusion of the extra legal bases did not change the voting rules in the Council, as it will still vote by a qualified majority regardless. Anyway, as long as the Member States are party to the agreement, there is de facto unanimous voting, since they act by common accord.

The Commission may have an agenda to reduce the use of the transport legal bases in agreements which also relate to trade, given the 'transport services' exception in the Treaty rules relating to the common commercial (external trade) policy, which sullies the purity of a key EU external competence which would otherwise be purely exclusive. This makes sense, but the EU's free trade agreements usually include detailed commitments on trade in transport services, so the transport services exception is surely applicable. On this point, the better strategy for the Commission would be to propose internal EU legislation which more fully harmonises the regulation of transport services to and from third countries. If and when such legislation is adopted, the EU would gain exclusive external competence over this issue via the normal (ERTA) route. Of course, this is easier said than done.

Leaving aside the specific issue of transport services, perhaps the Commission wants to reduce the use of additional legal bases besides the common commercial policy in the EU's free trade agreements more generally (although the PCA with the Philippines is not itself a free trade agreement), given that such clauses are seemingly usually added in order to trigger mixed competence between the EU and the Member States (and therefore give Member States a veto). The most egregious example of this is the bizarre cultural protocol attached to the EU/Korea free trade agreement. If the Court follows the A-G's opinion in this case, the Council's ability to do this will be restrained a little, although the Member States can still get their way on this issue if they insist on attaching a protocol with sufficiently detailed obligations in the extraneous field.

This brings us to the key issue of external migration, in particular readmission. The effect of including legal bases on this issue is that the UK, Ireland and Denmark have an opt-out from legal rules concerned. In practice, the UK tends to opt in to EU readmission agreements anyway, so this is more a point of principle for that Member State.

Is the Opinion convincing? Certainly the PCA does not contain detailed rules on transport or the environment (compare it to the EU's aviation liberalisation treaties with third States, or international environmental treaties), and cooperation on such issues will surely aid the Philippines' development. Of course, increasing transport to and from the country and protecting the environment there may well be contradictory objectives, but the list of EU external objectives in Article 21 TEU is rife with such contradictions.

It could be added that including environmental provisions in the PCA is consistent with the obligation to integrate environmental protection into all EU polices. The A-G is also surely right to say that improving transport security and safety will aid the Philippines' development: no-one will want to fly there if their plane is liable to crash or be blown up.

As for the immigration clauses, the migration management rules are not only not very precise; it could be added that they are closely related to the development of the Philippines. However, the A-G's arguments relating to the readmission clauses are, with great respect, not convincing. It is true to say that they set out precise obligations and do not aid the Philippines' development, but then the A-G does not draw the obvious conclusion that a specific legal base concerning immigration is therefore necessary. While is certainly true that the readmission clauses and the development policy commitments are linked politically, it does not therefore follow that the legal base of the former clauses should change.

One final thought: the judgment in this case, whichever party is successful, could be an opportunity for the Commission to suggest a relaunch or review of the EU's policy on external migration management and/or readmission. For instance, why not adopt EU legislation setting out specific rules on coordination of Member States' external migration treaties? (Such legislation exists in a number of other EU policy fields). This can be justified as a necessary feature of the development of a common EU immigration policy, and would be an opportunity in particular to ensure that such treaties are consistent with the human rights obligations of the EU and its Member States.

Update: the CJEU gave its ruling in this case in September 2014. See comments on the ruling here.

Barnard & Peers: chapter 24, chapter 26