There’s life beyond the Intel judgment.

The Court of Justice handed down an interesting one about the competence to conclude international agreements in the area of the common foreign and security policy in Case C-658/11 European Parliament v Council EU:C:2014:2025.

The Council adopted a decision  – decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the European Union 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 the Republic of Mauritius and on the conditions of suspected pirates after transfer (OJ 2011 L 254, p. 1).  It was adopted on the basis of Article 37 TEU and Article 218(5) and (6) TFEU.

The Parliament, supported by the Commission, claimed that the decision should be annulled for two reasons:

1. First, the legal basis was wrong: it should have been based on Article 218(6) (a) (v) TFEU which provides for the consent of the Parliament to be given before it is adopted. Instead it had been adopted by the Council on Article 218 (6) second subparagraph which does not provide for the Parliament’s involvement.
2. Second, the Council had breached Article 218 (10) TFEU which provides that, in any event, that the Parliament is to be informed “immediately and fully” at all stages of the negotiations and conclusion of the international  agreement whereas in reality the Parliament had not been so informed.

The Lisbon Treaty brought about an important reform of the procedure for the negotiation and conclusion of international agreements. In order to satisfy the requirements of clarity, consistency and rationalisation, Article 218 TFEU now lays down a single procedure of general application concerning the negotiation and conclusion of international agreements which the EU is competent to conclude in the fields of its activity, including the CFSP, except where the Treaties lay down special procedures. To take account of specific features of each field of EU activity, Article 218(6) TFEU covers three types of procedure for concluding international agreements, each one prescribing a different role for the Parliament:

• The Parliament may be called upon to consent to the conclusion of an agreement,
•  or it may only be consulted in that regard,
• or it may even be excluded from the process of concluding the agreement, without prejudice, however, to its right to be immediately and fully informed at all stages of the procedure, in accordance with Article 218(10) TFEU.

The distinction between the differing roles of the Parliament reflects externally the division of powers between the institutions that applies internally. The Treaty of Lisbon required the Parliament’s consent for the conclusion of international agreements specifically in the case of agreements covering areas to which, in the internal field, the ordinary legislative procedure laid down in Article 294 TFEU applies, or the special legislative procedure, but only where that procedure requires the consent of the Parliament. Moreover, the Parliament is precluded from participating in the conclusion of such an agreement only where the agreement relates exclusively to the CFSP, in relation to which the Treaty of Lisbon conferred a limited role on the Parliament (Case C‑130/10 Parliament v Council EU:C:2012:472, paragraph 82).

As regards the first plea dealing with the correct legal basis, the Court held Article 218(6) TFEU establishes 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. To ensure that that symmetry is actually observed the rule laid down in the case-law of the Court — that it is the substantive legal basis of a measure that determines the procedures to be followed in adopting that measure (Case C‑130/10 Parliament v Council EU:C:2012:472, paragraph 80) — applies not only to the procedures laid down for adopting an internal act but also to those applicable to the conclusion of international agreements.

Therefore, in the context of the procedure for concluding an international agreement in accordance with Article 218 TFEU, it must be held that it is the substantive legal basis of the decision concluding that agreement which determines the type of procedure applicable under paragraph 6 of that provision.

In particular, where the decision concluding the agreement in question is legitimately founded exclusively on a substantive legal basis falling within the CFSP – which all the parties agreed was the position in this case –  it is the type of procedure provided for in the first part of the second subparagraph of Article 218(6) TFEU that is applicable.

Consequently, the Court held that Article 218(6) TFEU was indeed the correct legal base and dismissed the Parliament’s first plea.

As to the second plea concerning the failure to inform the Parliament in breach of Article 218 (10) TFEU, the Court upheld it and annulled the decision on that ground.

The Court found as a matter of fact that, after having announced the opening of negotiations to the Parliament, the Council did not inform it of the adoption of the contested decision and the signing of that agreement until three months later and 17 days after their publication in the Official Journal. That was thus a breach of Article 218(10) TFEU.

The Court found that the information requirement arising under Article 218(10) TFEU is prescribed in order to ensure that the Parliament is in a position 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. The procedural rule laid down in that provision constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU and its infringement leads to the nullity of the measure thereby vitiated.

That rule is an expression of the democratic principles on which the European Union is founded. In particular, the Court has already stated that the Parliament’s involvement in the decision-making process is the reflection, at EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly (Case 138/79 Roquette Frères v Council EU:C:1980:249, paragraph 33, and Case C‑130/10 Parliament v Council EU:C:2012:472, paragraph 81).

From that point of view, the Treaty of Lisbon has even enhanced the importance of that rule in the treaty system by inserting it in a separate provision that is applicable to all types of procedures envisaged in Article 218 TFEU.

The Court emphasises  that if the Parliament is not immediately and fully informed at all stages of the procedure in accordance with Article 218(10) TFEU, including that preceding the conclusion of the agreement, it is not in a position to exercise the right of scrutiny which the Treaties have conferred on it in relation to the CFSP or, where appropriate, to make known its views as regards, in particular, the correct legal basis for the act concerned. The infringement of that information requirement impinges, in those circumstances, on the Parliament’s performance of its duties in relation to the CFSP, and therefore constitutes an infringement of an essential procedural requirement.

Finally, the Court decided to maintain the effects of the decision, notwithstanding its annulment, 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.