Pirates of the Gulf of Aden: the Sequel, or how the CJEU further embeds the CFSP into the EU legal order

By Thomas Verellen

The Court of Justice of the EU (CJEU) recently added a new chapter to the long-running chain-novel on the relationship between the Common Foreign and Security Policy (CFSP) and other areas of EU external action. In its judgment of 14 June 2016, the Court’s Grand Chamber answered questions on the choice of legal basis (CFSP versus AFSJ) of a Council decision concluding a transfer agreement between the EU and Tanzania, and on the meaning of Article 218(10) TFEU on the sharing of information by the Council with the Parliament as it pertains to treaty-making in the CFSP.

The ruling is interesting, as it is perhaps indicative of a relaxed, rather pragmatic, approach to the politically thorny question of the CFSP’s scope, as well as revealing of a principled effort by the Court to further embed the CFSP into the EU legal order. In this sense, the Court’s approach in Somali Pirates II is structurally similar to the one undertaken in the recent case of H v Council on the scope of the CJEU’s jurisdiction in CFSP-disputes.

In the following post, I briefly develop both aspects of this equation – pragmatism with regard to the scope of the CFSP versus principle with regard to the reach of EU constitutional principles into the CFSP – and I conclude with a brief reflection on the normative issue of whether the Court stays within its role as a judicial body, where I suggest the CJEU’s approach fits squarely within its duty to say what the law is. Before proceeding any further, however, a few words of background are in order.

Background: Pirates of the Gulf of Aden

The dispute between the European Parliament and the Council in Somali Pirates II arose in the context of Operation ATALANTA, the EU’s CFSP mission in the Gulf of Aden. Operation ATALANTA aims to secure sea lanes by combating piracy in that region (see the 2008 Joint Action launching the operation here and its renewal, decided upon in 2014, here). As a corollary of the mission’s main activity – capturing pirates – the question arose of where alleged pirates should face trial. Somali courts were not considered up to the task, and Member States were hesitant to bring alleged pirates systematically before their own, national courts. Following an earlier precedent set by the UK, which had concluded transfer agreements with Kenya and the Seychelles, the EU has concluded a number of agreements through which alleged pirates could be tried in countries in the region, subject to certain human rights conditions.

The Council adopted the decisions concluding these transfer agreements on the basis of Article 37 TEU, a CFSP provision. It followed, the Council considered, taking into account Article 218(6) second phrase TFEU, according to which parliamentary consent is not required for agreements ‘relat[ing] exclusively to the common foreign and security policy’, that the European Parliament’s consent was not required for the adoption of the involved Council decisions.

The European Parliament wished to contest this approach. The conclusion of a transfer agreement with Mauritius provided it with a first occasion to do so. In Somali Pirates I, the Parliament had mounted a procedural argument, holding that the transfer agreement with Mauritius did not relate ‘exclusively’ to the CFSP in the meaning of Article 218(6) second phrase TFEU, and that, therefore, the CFSP exception to the Parliament’s involvement in treaty-making procedures did not apply. In addition, it argued the Council had violated Article 218(10) TFEU, which requires the Parliament be informed  ‘fully’, ‘immediately’ and ‘at all stages of the procedure.’ The Parliament’s first argument fell flat. The Court considered that, since, in its understanding, all parties agreed that Article 37 TEU constituted the appropriate substantive legal basis, the agreement should be considered to relate ‘exclusively’ to the CFSP in the meaning of the Article 218(6) second phrase TFEU. The Court did, however, accept the Parliament’s argument based on Article 218(10) TFEU, and considered that the principle of democracy calls for a broad interpretation of that provision.

While presumably the Parliament was pleased with the Court’s endorsement of its reading of Article 218(10) TFEU, it did not attain its main objective, i.e. to see recognised a power of consent to the conclusion of transfer agreements. Unrelenting, the Parliament launched an annulment action against a similar Council decision on the signing and conclusion of a transfer agreement, this time with Tanzania. In Somali Pirates II, the Parliament took a slightly different argumentative approach, questioning the choice of substantive legal basis, and considering that the contested decision ought to have been adopted not only on the basis of Article 37 TEU, but also on the basis of Articles 82 and 87 TFEU, on police and judicial cooperation in criminal matters in the framework of the Area of Freedom, Security and Justice. In second order, the Parliament again relied on Article 218(10) to challenge the, in its view, deficient sharing of information with the Parliament.

This, then, was the context in which the Grand Chamber handed down its ruling on 14 June 2016, and which provided the Court with an opportunity to revisit, first, the thorny issue of the relationship between the CFSP and other areas of EU external action and, second, the role of the Parliament in CFSP matters.

A pragmatic approach to the scope of the CFSP

The issue of the boundaries between the CFSP and other areas of EU external action harks back to what Piet Eeckhout once referred to as the ‘original sin’ of the CFSP, i.e. the fact that the Treaty drafters on the one hand envisaged the CFSP as an area of external action ‘supplementing’ the TFUE, while, on the other, they granted it a potentially all-encompassing scope. This contradiction continues to shape debates on the role of the CFSP within the ‘EU foreign affairs constitution’, and arguably explains why this debate is framed to such an important extent as a debate on competence and choice of legal basis.

In that regard, it perhaps came as a surprise that the CJEU showed itself willing in Somali Pirates II to rule in favour of a CFSP-only legal basis. It did so, firstly, by applying a traditional centre of gravity test. In doing so, the Court did justice to Article 40 TEU, which places the CFSP and other areas of EU external action on an equal footing. It did so, secondly, not on the basis of a substantive analysis as the one suggested by Advocate-General Kokott, who, in her opinion of 28 October 2015, had focused on the distinction between the objectives of internal and international security, but, rather, by emphasizing the ancillary purpose of the Council decision concluding the transfer agreement as a decision the very rationale of which is dependent to a large extent on the broader, CFSP-dominated context. In doing so, the Court rejected the Parliament’s argument in favour of a dual legal basis, which would have brought in the Parliament as a veto-player in the adoption process of the contested decision.

The CJEU’s approach is to be commended, as the vigour and effectiveness of EU external action can only benefit if it can be assumed with relative certainty that measures taken within the context of a CFSP-mission will be considered ‘ancillary’ measures, to be adopted on the same legal basis. In this way, mid-operation turf wars between institutions can be avoided. Importantly, also, this approach would benefit not only CFSP-missions, but EU external measures pertaining to other areas of external action as well. On the basis of the Court’s reasoning in this case, development measures with a certain military component could also be considered to fall within the development chapter of the Treaties. Crucially, in such an event, it would not be possible all too easily for the Council or one or several Member States to isolate individual measures and consider them to fall within the scope of the CFSP, provided that there is a sufficiently narrow link between the measure at issue and the broader policy-and law-making context.

A principled effort to embed the CFSP into the EU legal order

The flexibility the Court shows with regard to the choice of legal basis stands in contrast to the principled position it defends with regard to the Council’s alleged violation of Article 218(10) TFEU. As the Court had done previously in Somali Pirates I, on the compatibility with the Treaties of a similar transfer agreement concluded with Mauritania, the Court interprets this provision as it pertains to the CFSP in light of the principle of democracy. As the Court held in paragraph 70 of its ruling of 14 June 2016: ‘Participation by the Parliament in the legislative process is the reflection, at Union level, of a fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly.’

Reading Article 218(10) TFEU thus in light of the democracy principle, the Court rejected the approach defended by Advocate-General Bot in Somali Pirates I, according to which, when applying Article 218(10) TFEU, regard should be had to the weaker powers the Treaties allocate to the Parliament in the context of the CFSP. To the contrary, it would seem that the Court considers the requirement of sharing information with the Parliament all the more important in areas in which the Parliament’s formal powers are more limited, such as the CFSP. The broad interpretation of Article 218(10) TFEU can thus be understood, as I would suggest, as a means to compensate for the relative weak institutional position of the Parliament in the CFSP-context.

A similar compensating approach can be observed in recent cases involving the Court’s jurisdiction in CFSP-related disputes. I would suggest that the emphasis on the democracy principle is reminiscent of the Court’s emphasis on the principle of the rule of law in the recent case of H v Council, where the Court interpreted the Treaty provisions on the Court’s jurisdiction with regard to CFSP-matters through the prism of the principle of the rule of law. In particular, the Court held in paragraph 41 of its judgment in that case that

it must be noted that, as is apparent from both Article 2 TEU, which is included in the common provisions of the EU Treaty, and Article 21 TEU, concerning the European Union’s external action, to which Article 23 TEU, relating to the CFSP, refers, the European Union is founded, in particular, on the values of equality and the rule of law … The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law …

From here, the Court went on to interpret narrowly the limitations to its jurisdiction provided for in the final sentence of the second subparagraph of Article 24(1) TEU and in the first paragraph of Article 275 TFEU, allowing it to declare admissible an annulment action launched by a Mr or Ms H against a decision signed by the Chief or Personnel of the European Union Police Mission (EUPM) in Bosnia-Herzegovina, by which he or she was transferred to a regional office in that country.

In structural terms, the approach taken in Somali Pirates I and II on the one hand, and H v Council on the other, is similar. In both cases, the CJEU interprets Treaty provisions affecting the CFSP broadly in light of transversal constitutional principles (democracy and rule of law). In doing so, the CJEU contributes to a gradual embedding of the CFSP into the EU legal order. It does so not by extending the scope of non-CFSP areas of external action to the detriment of that of the CFSP via the medium of its analysis of the choice of legal basis, but, rather, by gradually transforming the nature of the CFSP itself. In this process, the axiom that the CFSP is ‘subject to specific rules and procedures’ gradually loses weight, while the constitutional principles of EU law, in particular those of democracy and the rule of law, see their position within the CFSP strengthened.

An activist court?

This observation leads to the normative question of whether this development is desirable. Are the CJEU’s interventions in cases such as Somali Pirates II and H v Council legitimate exercises of judicial power or examples of judicial overreach and activism? Arguably, the task incumbent on the Court of Justice as the institution charged with the responsibility of ensuring that in the application and interpretation of the Treaties the law is observed, is to balance the requirement of preserving the distinctiveness of the CFSP against competing constitutional principles, which, by their very nature, apply to the EU legal order as a whole. In this context, the question is not one of whether the Court has done too much or too little, but, rather, one of whether the Court presents the ‘best’ possible interpretation of the Treaties read as a whole. In this respect, I believe it can only be commended that the Court attributes a meaningful role to the principles of democracy and the rule of law – principles which, after all, rank amongst the EU’s founding constitutional values as expressed in Article 2 TEU.