Democratic scrutiny of EU foreign policy: From pirates to the power of the people (Case C-658/11 Parliament v. Council)

By Joris Larik

Opinions may differ on what is the “most dangerous branch” in the EU. However, at the moment the most ambitious institution regarding the expansion of its powers is doubtlessly the European Parliament (EP). The recent judgment in Case C-658/11 Parliament v. Council shows that even the Union’s traditionally “sovereignty-sensitive” Common Foreign and Security Policy (CFSP) is not immune to the Parliament’s advances.

Wielding the all-powerful mantra of “democratic legitimacy” (on the concept in transnational context, see this recently published Special Report), the EP has a decades-long history of increasing its influence in European politics. In recent months, it could celebrate important victories by interpreting the new rules laid down in the post-Lisbon reform EU Treaties in its favour. The most prominent triumph concerned the first ever election, and no longer mere approval, of the new Commission President by the Parliament. By proposing Jean-Claude Juncker as the prevailing Spitzenkandidat, the European Council acquiesced to the Parliament and set an important precedent for the future direction of the European polity.

The EP’s push into foreign policy – the Member States’ stronghold

This parliamentary pushing of the boundaries of its powers, bolstered by references to its democratic clout, is by no means confined to the internal affairs of the EU. Also regarding the EU’s external policies, the EP is on the rise. The Lisbon Treaty already granted it important new powers. For instance, all trade agreements (such as the TTIP with the US and similar agreements with external partners) now require the Parliament’s consent. In the past, this was a matter exclusively in the purview of the Commission and the Council.

Where the rules are not entirely clear – which they rarely are following an EU treaty reform – the Union institutions are not averse to fighting it out in court in Luxembourg. Such disputes often concern the proper “legal basis” of Union acts, which in turn determine which procedures are to be followed, and thus which institutional prerogatives apply. But even seemingly mundane and technical procedural aspects can be used, such as the obligation of one institution to keep the other “duly informed”. It is this latter aspect which helped the Parliament bring home its latest victory.

Case C-658/11: Background and context

In Case C-658/11 Parliament v. Council, the Parliament succeeded in having annulled a Council decision relating to the EU’s anti-piracy operation off the coast of Somalia for lack of information provided to it by the Council, i.e. a matter of the Union’s CFSP. As the CJEU underlined in its decision, by failing to do so the Council had impeded the EP in exercising its “democratic scrutiny” (para. 79 of the judgment). This is significant as it shows that the Court is willing and able to exercise its jurisdiction over this provision, even when CFSP matters are concerned, and in outspoken defence of democratic accountability at EU level.

At first sight, the subject matter of Case C-658/11 may seem an unlikely setting for a judicial showdown on democratic oversight in a polity such as the EU. It concerned a decision adopted by the Council of the EU on the signing and conclusion of a treaty between the EU and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to Mauritius, and on the conditions of suspected pirates after transfer.

Similar agreements, which have also been concluded with the Seychelles and Kenya, exist for two main reasons. Firstly, by means of such agreements, the EU wants to make sure that the suspects are treated in accordance with international human rights standards, in particular, the right to a fair trial. Moreover, such agreements prohibit the imposition of the death penalty as well as torture or cruel, inhumane and degrading treatment, also during detention. Secondly, they allow the EU to defer to regional states as far as the trials and possible prison sentences of captured piracy suspects are concerned, rather than trying them in European courts and detaining them in European prisons. The agreements thus reflect both the promotion of global norms (“normative power”) and the self-interest of the EU and its Member States.

The EU’s agreement with Mauritius is a measure taken in the broader framework of the EU’s anti-piracy operation in the Gulf of Aden and the Indian Ocean (EU NAVFOR, also known as Operation “Atalanta”). This is the Union’s first-ever naval mission, which raises, in addition to manifold security policy and geopolitical questions, also a number of legal-institutional issues for the EU. In this particular case, the EP lodged a request to annul the Council decision to sign the agreement arguing that it had been insufficiently involved in the whole process. For the Court, this meant applying to practice the new institutional rules on EU external action agreed upon in the Lisbon Treaty, especially those concerning the conclusion of international agreements enshrined in Article 218 TFEU.


Parliamentary prerogatives: No consent, no consultation, but information

The Parliament’s complaint consisted of two parts. Firstly, it claimed that it should have given its consent, or should at least have been consulted, before the decision was taken by the Council. Secondly, it should have been duly informed throughout the process and following the adoption of the contested decision.

Both claims refer to the new legal provision on the conclusion of international agreements by the European Union: Article 218 TFEU. In comparison to the pre-Lisbon version, as the Court noted,

“that article now lays down a single procedure of general application concerning the negotiation and conclusion of international agreements which the European Union is competent to conclude in the fields of its activity, including the CFSP, except where the Treaties lay down special procedures.” (para. 52, emphasis added)

Under this provision, the EP – in a nutshell – needs to either lend its consent or must be at least consulted “[e]xcept where agreements relate exclusively to the common foreign and security policy” (Article 218(6), second subpara. TFEU). In the latter case, neither consent or consultation is required for the Council to adopt the decision to conclude the agreement on behalf of the EU. Moreover, Article 218(10) TFEU requires that the EP in any event “be immediately and fully informed at all stages of the procedure” of concluding international agreements.

The Court rejected the first plea as unfounded. Here, the Parliament seems to have pushed its luck. It argued that the agreement with Mauritius did not exclusively deal with matters of foreign and security policy, but also related “to judicial cooperation in criminal matters, police cooperation and development cooperation.” (para. 25). It underpinned its reasoning by referring to a distinction between agreements which relate “principally” and those relating “exclusively” to the CFSP, which is maintained elsewhere in Article 218 TFEU (regarding the appointment of the proper Union negotiator), the latter arguably being narrower than the former. While this argument is not without merit from a textual point of view, the Court did not buy into it. Instead, it evoked the idea of a

“symmetry between the procedure for adopting EU measures internally and the procedure for adopting international agreements in order to guarantee that the Parliament and the Council enjoy the same powers in relation to a given field,  in compliance with the institutional balance provided for by the Treaties.” (para. 56)

This can be regarded as a fine-tuned version of the in foro interno, in foro externo principle honed in on institutions and procedures rather than the powers of the EU as a whole. From this follows, according to the Court, that if a measure can have as its sole legal basis the CFSP, with other aspects being merely “incidental” , it can be regarded as being “exclusively” relating to the CFSP in the sense of Article 218(6), second subpara. TFEU, and thus does not require parliamentary consent or consultation.

In doing so, the Court thwarted a bold attempt – albeit not entirely unreasonable given the language of Article 218 TFEU as a whole – by the Parliament to foray into the EU’s CFSP. This policy, which also includes cooperation in defence matters, is traditionally structured in a “sovereignty friendly” and non-supranational way. In other words, the Member States, assembled in the Council, call the shots, with as little inference from the other EU institutions as possible.

While in terms of doctrine this may amount to more than a Pyrrhic victory for the Council, it still lost the case on the second plea. As much as the “special” status of the CFSP permeated the Court’s findings in responding to the first plea, “democratic legitimacy” governed the second.

The Parliament had a much easier time to drive home its argument. Firstly, in terms of law, the requirement to keep the Parliament “immediately and fully informed” under Article 218(10)TFEU unambiguously applies across the board, including the CFSP. Put differently, with respect to the duty to inform the Parliament, there is no “high” or “low politics” anymore in EU law. Just because there are matters of classic diplomacy and security at hand does not mean that the EP should be somehow less well informed than if it was “only” a treaty in the realm of trade or development policy. Secondly, in terms of facts, it was uncontested that the Parliament was only informed three months after the adoption of the Council decision and the signing of the agreement, and even 17 days after these acts had been published in the Official Journal of the EU.

Both the Council’s counterarguments were rebuffed by the Court. The first was a claim to inadmissibility. Given the sovereignty-sensitive nature of this policy area, the jurisdiction of the CJEU is indeed excluded as regards CFSP matters (Article 24(1) TEU and Article 275 TFEU). However, the Court responded by re-emphasising that the new Article 218 TFEU is

“of general application and is therefore intended to apply, in principle, to all international agreements negotiated and concluded by the European Union in all fields of its activity, including the CFSP which, unlike other fields, is not subject to any special procedure.” (para. 72)

Hence, the Court declared to have jurisdiction over the matter after all.

The finding that provisions of general application are a priori not precluded from the jurisdiction of the Court despite the “special status” of the CFSP may have more wide-ranging consequences in the future, and should therefore be closely watched. It does not only concern Article 218 TFEU on treaty-making, but also such provisions as Article 3(5) and 21 TEU on external objectives of the EU at large, or Article 4(3) TEU on sincere cooperation between the Union institutions and the Member States.

The second, alternative argument brought forward by the Council was that the delays should be excused due to the “summer break” (para. 67), which was summarily rejected by the Court. For the subject matter which concerns important matters of EU policy and its international relations, the Council’s excuse here is indeed hardly more convincing than “my dog ate my homework”.

Making the point: Foreign policy, democratic scrutiny and “the people”

As an “essential procedural requirement” (para. 80), the failure to respect the information requirement leads to the nullity of the contested act. The Court could have left it at that conclusion. However, in arguably the most remarkable part of the judgment, the Court proceeded to chastise the already defeated Council with several paragraphs expounding the democratic credentials of the EP.

In particular, it stressed that the information requirement was necessary

“to exercise democratic scrutiny of the European Union’s external action and, more specifically, to verify that its powers are respected precisely in consequence of the choice of legal basis for a decision concluding an agreement.” (para. 79)

Moreover, the Court noted that

“[t]hat rule is an expression of the democratic principles on which the European Union is founded” as well as “the reflection, at EU level, of the fundamental democratic principle that the people [sic] should participate in the exercise of power through the intermediary of a representative assembly” (para. 81).

These principles were, the CJEU continued, were enhanced further by the Lisbon Treaty (para. 82), and apply by all means also to the CFSP, especially since its consent and consultation are not required in this case and thus information remains its only means of scrutiny (para. 85).

Based on these findings, the Court concluded that the decision adopting the agreement with Mauritius was to be annulled. As requested by both the Council and the Parliament, the Court maintained its effects so as not

“to hamper the conduct of operations carried out on the basis of the EU-Mauritius Agreement and, in particular, the full effectiveness of the prosecutions and trials of suspected pirates arrested by EUNAVFOR.” (para. 90)

Hence, piracy suspects transferred to Mauritius can continue to benefit from the guarantees of due process and humane treatment. But the big winner of this dispute is certainly the EP, having asserted itself through this case yet again as representing “the people” and thus a force to be reckoned with – also and increasingly in one of the strongholds of Member States and traditionally intergovernmental governance.