Opinion of the Advocate General — ECLI:EU:C:2014:41
Date: 2014-01-30
Language of the case: English
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

Summary — Judgment of the Court (Grand Chamber), 24 June 2014 1. International agreements — Conclusion — EU-Mauritius Agreement on the conditions of transfer of suspected pirates and associated seized property — Agreement legitimately founded exclusively on a legal basis falling within the common foreign and security policy — Determination of the type of procedure for concluding an international agreement depending on the substantive legal basis on which that agreement is concluded — Applicability of the procedure provided for in the first part of the second subparagraph of Article 218(6) TFEU (Art. 218(6) TFEU; Council Decision 2011/640/CFSP) 2. Actions for annulment — Jurisdiction of the Courts of the European Union — Action brought against a decision on the signing and conclusion of an international agreement, adopted on the basis of a single substantive legal basis falling within the common foreign and security policy and having as its procedural legal basis Article 218(5) and (6) TFEU — Included (Arts 19 TEU, 24(1), second subpara., TEU and 37 TEU; Arts 218(5) and (6) TFEU and 275, first para., TFEU; Council Decision 2011/640/CFSP) 3. Actions for annulment — Pleas in law — Infringement of essential procedural requirements — Decision on the signing and conclusion of the EU-Mauritius Agreement on the conditions of transfer of suspected pirates and associated seized property — Agreement relating exclusively to the common foreign and security policy — Obligation to inform the European Parliament immediately and fully at all stages of the procedure — Infringement of the information requirement — Annulment of the contested decision (Arts 218(10) TFEU and 263, second para., TFEU; Council Decision 2011/640/CFSP) 4. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Maintenance of the effects of the contested measure (Art. 264, second para., TFEU; Council Decision 2011/640/CFSP) 1. In the context of the procedure for concluding an international agreement in accordance with Article 218 TFEU, such as the EU-Mauritius Agreement on the conditions of transfer of suspected pirates and associated seized property, the substantive legal basis of the decision concluding that agreement 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 common foreign and security policy (CFSP), it is the type of procedure provided for in the first part of the second subparagraph of Article 218(6) TFEU that is applicable. That interpretation is justified particularly in the light of the requirements relating to legal certainty. By anchoring the procedural legal basis to the substantive legal basis of a measure, this interpretation enables the applicable procedure to be determined on the basis of objective criteria that are amenable to judicial review. As regards a decision concluding an agreement that pursues a main aim falling within the CFSP, the wording of Article 218(6) TFEU, in accordance with which the Council is to adopt a decision concluding an international agreement after obtaining the consent of or consulting the Parliament, ‘except where agreements relate exclusively to the CFSP’, does not establish that such a decision may be regarded as ‘relating exclusively to the CFSP’ solely because it is founded on a substantive legal basis falling within that policy and no other substantive legal basis, nor does it establish that that decision must be regarded as relating also to other areas of EU law on account of incidental aims other than its main aim falling within the CFSP. Furthermore, as regards the objectives of Article 218 TFEU, following the entry into force of the Treaty of Lisbon, in order to satisfy the requirements of clarity, consistency and rationalisation, 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. However, precisely because of its general nature, that procedure must take account of the specific features which the Treaties lay down in respect of each field of EU activity, particularly as regards the powers of the institutions. In order to take account of those specific features, Article 218(6) TFEU covers three types of procedure for concluding international agreements, each one prescribing a different role for the Parliament. That distinction is designed to reflect externally the division of powers between institutions that applies internally. Thus, 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. In those circumstances, it is precisely in order to ensure that that symmetry is actually observed that the rule identified by 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 — applies not only to the procedures laid down for adopting an internal act but also to those applicable to the conclusion of international agreements. (see paras 48, 50, 52-60) 2. It is apparent from the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU that the Court does not, in principle, have jurisdiction with respect to the provisions relating to the common foreign and security policy (CFSP) or with respect to acts adopted on the basis of those provisions. Nevertheless, those provisions introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly. Consequently, although Decision 2011/640 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 was adopted on the basis of a single substantive legal basis falling within the CFSP, that is Article 37 TEU, it is evident from the preamble to that decision that its procedural legal basis is Article 218(5) and (6) TFEU, which governs the procedure for the signing and conclusion of international agreements. However, the procedure covered by 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. In those circumstances, it cannot be argued that the scope of the limitation, by way of derogation, on the Court’s jurisdiction envisaged in the final sentence of the second subparagraph of Article 24(1) TEU and in Article 275 TFEU goes so far as to preclude the Court from having jurisdiction to interpret and apply a provision such as Article 218 TFEU which does not fall within the CFSP, even though it lays down the procedure on the basis of which an act falling within the CFSP has been adopted. (see paras 69-73) 3. The procedural rule laid down in Article 218(10) TFEU 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 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. 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. Admittedly, the role which the Treaty of Lisbon has conferred on the Parliament in relation to the common foreign and security policy (CFSP) remains limited. Nevertheless, it cannot be inferred from that fact that despite its exclusion from the procedure for negotiating and concluding an agreement relating exclusively to the CFSP, the Parliament has no right of scrutiny in respect of that EU policy. On the contrary, it is precisely for that purpose that the information requirement laid down in Article 218(10) TFEU applies to any procedure for concluding an international agreement, including agreements relating exclusively to the CFSP. 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. (see paras 80-86) 4. See the text of the decision. (see paras 89-91)