Will The Hague Really Look North? The ICC and EU Crimes Against Migrants

 

 

Adrian Gjoshi*

Photo credit: Justflix, via Wikimedia Commons

 

Europe and the International Criminal Court (ICC) stand at a pivotal moment. For the first time, EU migration policies and senior European officials are subject to direct international criminal scrutiny regarding the treatment of migrants in the Mediterranean. Following a six-year investigation, Front-Lex and international lawyers Omer Shatz and Juan Branco submitted a 700-page communication (communication II) to the ICC, alleging that 122 officials from the EU institutions and several Member States committed crimes against humanity against migrants on the Central Mediterranean route between 2014 and 2020. The submission is based on testimony from 77 witnesses and potential suspects, including several Heads of State, and provides a detailed mapping of agencies and their involvement. The comprehensive collaboration between lawyers, scholars, and students from a Parisian public university highlights the gravity of the allegations.  As a doctoral researcher and lawyer focused on migration-related crimes as potential crimes against humanity, this case is particularly resonant.

The communication builds on an earlier filing from 2019, which contended that these crimes are not incidental but result from EU migration policies that intentionally cause deaths at sea and delegate refoulement to third countries. This recent communication is both explicit and specific: it identifies alleged perpetrators; maps agencies involved and supplies extensive evidence. The communication alleges that more than 25,000 migrants drowned during 2014-2019, and over 150,000 were intercepted and forcibly transferred to Libya, where they were systematically subjected to arbitrary detention, torture, sexual violence, enslavement, and other inhumane treatment.

In its 23^rd report to the UN Security Council on April 28, 2022, the ICC Prosecutor acknowledged the suffering of migrants in Libya and that crimes committed against them may amount to crimes against humanity and war crimes under ICC jurisdiction. Similarly, on October 8, 2021, a member of the Independent Fact-Finding Mission on Libya stated at a media conference: “[…] it’s quite clear that the pullback policies and pushback policies at sea have led to huge violations of human rights on the part of migrants […] and as our report indicates this is one of the areas where we think that  crimes against humanity have been committed”(here). Yet, despite these acknowledgments, no concrete steps toward accountability have been taken.

High-ranking Individuals Allegedly Involved

One striking element of the filing is the public exposure of those accused. The online database of suspects created by the Front-lex names and profiles high-ranking officials, including former German Chancellor Angela Merkel, French President Emmanuel Macron, former EU foreign policy chief Federica Mogherini, and former European Council President Donald Tusk. They are accused of either directly committing or indirectly enabling “mass killing by drowning” and “refoulement by proxy.” Interestingly, all 122 suspects are color-coded to indicate their alleged degree of liability: yellow-green for the highest, violet for high, light purple for medium, and gray for low. Merkel and Mogherini are yellow-green, signaling the highest alleged liability, while Macron and Tusk are violet, indicating high liability. While these remain allegations, the communication pressures the ICC to examine power in the north, rather than continuing its focus exclusively on southern conflicts. To date, regardless of its duties to initiate investigations and investigate all relevant facts, the ICC Prosecutor has never brought a European national to trial.

EU Institutions and Border Policies

Europe’s border regime prioritises securitisation over humanitarian protection (here, here, and here). According to the communication at hand, the European Commission and the Council of the European Union have shifted control to third countries such as Libya and deprioritised search and rescue. Operation Sophia, initiated by the Council, exemplifies this strategy. Front-Lex notes that the Council was a forum “in which the perpetration of crimes against humanity in the Mediterranean and Libya were planned and carried out.”

Frontex, the European Border and Coast Guard Agency, has become central to these policies. Once merely a coordinating body, it now operates with expanded mandates and unprecedented funding. According to the communication, its operations have affected over 175,000 migrants in the past decade and demonstrates the EU’s prioritisation of enforcement over protection. Similarly, EMSA, the European Maritime Safety Agency, was established to ensure maritime safety and prevent pollution. In practice, it also appears to contribute to deterrence-focused migration policies. The communication argues that EMSA aids in the capture, detention, and endangerment of migrants, describing it as part of a “criminal enterprise of deterrence-based policies of mass killing by drowning.”

This coordinated approach on deterrence is also reflected in EU naval operations. Operation EUNAVFOR MED was launched in 2015 with the mission to disrupt human smuggling networks, rescue migrants, enforce the UN arms embargo on Libya, and train the Libyan Coast Guard. The name of the operation was changed to Operation Sophia, after a baby girl, Sophia, born aboard the German frigate FGS Schleswig-Holstein on August 22, 2015, after her Somali mother was rescued in the Mediterranean. The name became a symbolic gesture, highlighting the mission’s humanitarian image, even as its primary focus in practice remained on migration control and border security. Operation Sophia ended in 2020 and was replaced by Operation Irini, which primarily enforces the arms embargo, but according to the communication, continues to influence migration control. The communication also notes that both operations have prioritised deterrence over rescue, contributing to the interception, detention, and endangerment of migrants.

Accountability and the Limits of the ICC

International law limits immunity. The ICC’s Al-Bashir decision (2019) reaffirmed that even sitting heads of state cannot escape accountability. The International Law Commission’s (ILC) work since 2007 also shows a shift away from absolute immunity. Its 2025 report and recent state comments reveal growing acceptance that immunity should not shield international crimes. This shift opens the door for accountability.

The legal action outlined in the communication is compelling, not just for its legal novelty, but for the hope it offers to victims who have long been denied justice. Though groundbreaking, the legal action faces formidable legal and political hurdles that test the ICC’s limits. Legally, it is difficult to attribute criminal intent to political decisions. Politically, the ICC faces intense pressure from congressional threats, executive sanctions, and expanded measures against ICC staff by the US, as well as moves from Europe, such as Hungary’s 2025 withdrawal from the Rome Statute.

This probably explains why the ICC has historically struggled to act against powerful states (here and here). For two decades, its investigations focused almost entirely on African states (here, here, and here), while powerful Western states faced no comparable scrutiny. More recently, though, there are signs of progress: the ICC, after issuing an arrest warrant, arrested former Philippine President Rodrigo Duterte in March 2025 on charges of crimes against humanity linked to his “war on drugs.” This case, while still in the pre-trial stage, shows that the Court can move against high-profile figures and look beyond Africa. Duterte was no longer in office at the time, reminding us that leaders often need to be out of power before the Court can act.

Nevertheless, high-profile officials from influential countries remain effectively immune from prosecution. The issuance of arrest warrants for Vladimir Putin and Benjamin Netanyahu, with no arrests or court appearances to date, demonstrates the persistent challenges of enforcement in such cases. Consequently, the Court has not succeeded yet in holding leaders of powerful states accountable.

Going for the Heads of State

International justice often concentrates on the actors who implement unlawful policies, while those who design, authorize, and legitimise them remain insulated from effective scrutiny. Accountability becomes harder to pursue the more political authority a person holds. Unless responsibility is traced to the architects of these policies, the system that enables widespread harm remains intact.

Research suggests that focusing solely on individual responsibility can be incomplete.  For example, vulnerability theory shows that violence against migrants stems from policies, institutions, and hierarchies that normalise exclusion. International criminal law, with its focus on personal responsibility, overlooks this complexity. Mark Drumbl argues that individual prosecution cannot address the collective, structural nature of mass atrocities, and that ordinary criminal law assumptions cannot simply be applied to extraordinary crimes. At the same time, Kathryn Sikkink’s influential work on the “justice cascade” shows how trials of state officials can shape state behavior and help build a broader, lasting culture of accountability. This supports the view that, because systems are created and maintained by people, this legal action can deter future violations. The ICC, therefore, has an opportunity to confront not only individual liability but also the structures of power that enable such crimes.

Regardless of the outcome, the significance of this legal action lies in how it emerged and the challenge it poses. The collaboration between lawyers and students demonstrates the power of coordinated research and advocacy. More than a procedural step, it constitutes a convergence of practice and academia, testing whether the promise of international justice effectively extends to actors in both the Global North and the Global South. At minimum, it stands as a call for justice showing that law alone may not dismantle oppression, but it can expose it. And at times, exposing the truth is the first step toward accountability.

 

*Adrian Gjoshi is a doctoral researcher at the Institute for Human Rights at Åbo Akademi University and a lawyer. His research focuses on international criminal law and migration law.

 

The author would like to thank the editorial team and reviewers at Talking Rights for their helpful feedback.

Expelling EU citizen war criminals: no sympathy from the ECJ

Professor Steve Peers, University of Essex

If an EU citizen (or his or her family member) has been excluded from being a refugee, in what circumstances can he or she be expelled from a Member State? The ECJ clarified this issue in its K and HF judgment last week: its first ruling that touches on the relationship between EU (and international) refugee law and EU free movement law.

There’s a good reason why these two areas of law haven’t interacted previously in the Court’s case law: EU law itself tries to keep them apart. A Protocol attached to the EU Treaties, aiming to facilitate the extradition of alleged terrorists between Member States, says that in principle EU citizens cannot apply for asylum in another Member State, due to the presumption in that Protocol that each Member State ensures sufficient human rights protection.

However, there are exceptions to that general rule, and there are people it doesn’t cover. The exceptions in the Protocol are: a) the asylum seeker’s Member State of nationality invokes the “emergency” derogation from parts of the European Convention of Human Rights (ECHR); b) if the EU Council is considering whether to sanction the asylum seeker’s Member State of nationality for breaches of EU values; c) if the EU has already sanctioned the asylum seeker’s Member State of nationality for breaches of EU values; or d) if a Member State decides to do so unilaterally for another Member State’s national, in which case it must inform the EU Council and presume that the application is manifestly unfounded, without prejudice to the final decision on the application.

The people not covered by the Protocol include: EU citizens who obtained refugee status before they became EU citizens (for instance, because their State of nationality joined the EU); non-EU family members of EU citizens; those who apply for or obtain subsidiary protection status, as distinct from refugee status; and the citizens of some non-EU countries associated with the EU (Norway, Iceland, Switzerland and Liechtenstein), who have free movement rights but are not EU citizens. The recent ECJ ruling concerned people from the first two of these categories.

Exclusion from being a refugee

Some asylum seekers fail to satisfy the authorities that they meet the definition of “refugee” set out in the UN (Geneva) Refugee Convention. Quite apart from that, some asylum seekers are excluded from being a refugee under that Convention (and under the corresponding provisions of the EU’s qualification Directive), because their behaviour is considered so reprehensible that they do not deserve fully-fledged international protection, even if they are facing persecution on one of the grounds set out in the Convention. More precisely, Article 1.F of the Convention excludes:

any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The ECJ has interpreted the exclusion clause in the EU qualification Directive in its judgments in B and D and Lounani (discussed here), ruling inter alia that the second and third exclusion clauses can apply to terrorist offences, although exclusion must be assessed in each individual case, meaning that membership of a group listed as “terrorist” in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause. Similarly, participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional “proportionality” or “present danger” test for exclusion, and the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria. Finally, assisting with recruitment, organisation or transport of “foreign fighters” can also lead to exclusion, as it constitutes a form of “participation” in the terrorist acts covered by the exclusion clause.

However, it should be noted that even if a person is excluded from being a refugee, they are still protected against being removed to a country where they would face a real risk of torture or other inhuman or degrading treatment, according to the case law on Article 3 ECHR and the corresponding Article 4 of the EU Charter of Fundamental Rights. The ECJ reaffirmed as much recently in its judgment in MP (discussed here). But this non-removal obligation falls short of refugee status (which usually follows from recognition as a refugee) because it does not entail a fully-fledged immigration status including rights like access to employment and benefits.

Expelling EU citizens and their family members

The grounds for restricting free movement rights for reasons of “public policy or public security” are set out in the EU citizens’ Directive. The basic rule is that restrictions “shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.” Furthermore, “[t]he personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

Before expelling a person covered by the Directive on such grounds, Member States are obliged to “take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.” For those with permanent residence, there is a higher threshold to justify expulsion: “serious grounds of public policy or public security”. And for those who have resided in that Member State for the previous ten years, or who are minors, the threshold for expulsion is higher still: “imperative grounds of public security”.

The judgment

The Court’s judgment brought together two separate cases. In the first case, K, a dual citizen of Croatia and Bosnia-Herzegovina, had arrived in the Netherlands and applied for asylum in 2001 and 2011. Both applications were rejected. Subsequently, after Croatia joined the EU in 2013, the applicant was declared (in light of his EU citizenship) to be an “undesirable immigrant”, in light of the prior finding that he knew about and participated in war crimes and crimes against humanity in the Bosnian army. Since over twenty years had passed since that time, the issue was whether such conduct was a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” within the meaning of the EU citizens’ Directive, taking account of the other factors referred to in the Directive.

In the second case, HF, an Afghan citizen excluded from being a refugee in the Netherlands, applied for a residence card in Belgium as the family member of an EU citizen (his Dutch daughter). His application was refused on the basis that the information about his exclusion, which the Dutch authorities had shared with their Belgian counterparts, showed that he could be denied free movement rights.

The Court first examined whether exclusion from being a refugee necessarily met the standard for restriction of free movement rights. It recalled its prior case law, holding that “public security” could include both internal security (including “a direct threat to the peace of mind and physical security of the population of the Member State concerned”) and external security (including “the risk of a serious disturbance to the foreign relations of that Member State or to the peaceful coexistence of nations”). Applying these principles to the facts, the Court accepted that Member States could consider that damage to international relations, the risk of contacting EU citizens who had been victims of war crimes could be considered threats to public policy and public security. Restricting those persons’ free movement rights could also contribute to ensuring “protection of the fundamental values of society in a Member State and of the international legal order and to maintaining social cohesion, public confidence in the justice and immigration systems of the Member States and the credibility of their commitment to protect the fundamental values enshrined in Articles 2 and 3 TEU”.  The Court added that the acts and crimes which led to exclusion from being a refugee “seriously undermine both fundamental values such as respect for human dignity and human rights, on which, as stated in Article 2 TEU, the European Union is founded, and the peace which it is the Union’s aim to promote, under Article 3 TEU”.

Nevertheless, the Court ruled that exclusion from being a refugee should not always lead to restriction on free movement rights. There must still be a “case-by-case assessment” which shows that “the personal conduct of the individual concerned currently constitutes a genuine and sufficiently serious threat to a fundamental interest of society”. This assessment must “take into account the findings of fact made in the decision of exclusion from refugee status taken with respect to the individual concerned and the factors on which that decision was based, in particular the nature and gravity of the crimes or acts that that individual is alleged to have committed, the degree of his individual involvement in them and the possible existence of grounds for excluding criminal liability such as duress or self-defence.” Furthermore, that examination “is all the more necessary” if, such as in these cases, “the person concerned has not been convicted of the crimes or acts that were relied on to justify the rejection, in the past, of his asylum application”.

The Court showed willingness to relax its usual insistence of looking closely at the EU citizen’s present threat, noting that in some cases “it is also possible that past conduct alone may constitute such a threat to the requirements of public policy”. In the case of war crimes, although “the time that has elapsed since the assumed commission of those acts is, indeed, a relevant factor….the possible exceptional gravity of the acts in question may be such as to require, even after a relatively long period of time, that the genuine, present and sufficiently serious threat affecting one of the fundamental interests of society be classified as persistent”. Equally, the Court de-emphasised the requirement that the person concerned was likely to reoffend, ruling that:

…however improbable it may appear that such crimes or acts may recur outside their specific historical and social context, conduct of the individual concerned that shows the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights, as revealed by those crimes or those acts, is, for its part, capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society...

Yet the person’s rights to private and family life and the principle of proportionality still had to be weighed against such threats.

Next, the Court reiterated that an expulsion decision has to consider “with due regard to the principle of proportionality…inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.”

Yet the lengthy period of time spent on the territory in the Dutch case was not enough to qualify for the especially high level of protection against expulsion for EU citizens resident for ten years (“imperative grounds of public security”). For as the Court had recently ruled in B and Vomero, such special status was only attainable if the person concerned had already qualified for permanent residence (based on five years’ legal residence); and residence on national law grounds other than those set out in the citizens’ Directive or its predecessor laws did not count to that end (see Ziolkowski). It appeared that K could not show residence on an EU law basis, but only a national law basis, and therefore was not going to qualify for any extra degree of protection against expulsion.

Comments

The Court’s judgment is focussed on those excluded from refugee status on the basis of Article 1.F of the Refugee Convention. The wording of the ruling does not confine itself to the “war criminal” ground of exclusion, and so it applies to persons excluded from being a refugee on any of the Article 1.F grounds. It should logically be relevant if any EU law issues are raised about handing over any person to the International Criminal Court, or any ad hoc UN criminal tribunal, for prosecution for war crimes et al. But does it have any broader application?

First of all, it definitely applies to those who might apply for refugee status on what might be called the “Palestinian track” set out in Article 1.D of the Convention, since the general rules on exclusion also apply to such cases: see the ECJ’s El Kott judgment (para 76).

Secondly, it is questionable whether it applies to all cases of exclusion from subsidiary protection status, given that such exclusion is also possible for less serious behaviour than as regards refugee recognition. In particular, the qualification Directive allows for exclusion from subsidiary protection status on grounds of a “serious crime”, or in fact any crime which would be punishable by imprisonment in the Member State concerned.

Thirdly, it may be arguable whether the judgment is relevant by analogy to revoking refugee status due to criminal behaviour or a security risk (relevant in pending ECJ cases, discussed here), or to refusing a residence permit or travel document on national security or public order grounds, where the ECJ has ruled that a lower threshold applies (see the ruling in HT, discussed here).

Next, the judgment might be relevant to cases where a Member State seeks to revoke its nationality (and therefore EU citizenship) from a person, for instance due to their activities as a “foreign fighter”. (On the reviewability of such decisions as a matter of EU law, see Rottmann and the pending case of Tjebbes).

Could the judgment even be relevant by analogy to “ordinary” EU citizens, where there is no link to refugee law issues? At first sight no, because the Court’s focus is on the Refugee Convention’s exclusion clause. However, its willingness to consider that especially vile prior behaviour can outweigh an assessment of present threat and likely future conduct could arguably be relevant where an EU citizen has been convicted of crimes such as child abuse, rape, murder, or terrorism.

The judgment continues the Court’s established trend of disdain for criminality by EU citizens or their family members. In this case, its concern for crime victims is particularly striking; but here it strikes a discordant note in referring only to the victims of war criminals who are EU criminals living in EU Member States. For this overlooks the likely existence also of non-EU victims, both those who sought protection in a Member State and those in the war criminal’s state of origin, if he or she is referred there. Or rather, the surviving victims: the returning war criminals will likely cast a long shadow over the graves of those whom they murdered.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Human Rights Watch

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