Opinion of the Advocate General — ECLI:EU:C:2015:729
Date: 2015-10-28
Language of the case: English
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

Summary 104. In conclusion, it can be stated that only the Parliament’s second plea in law has prospect of success. However, because the Council infringed an essential procedural requirement under Article 218(10) TFEU, the second plea in law alone justifies the annulment of the contested decision (53) (Article 263(1) and (2) TFEU in conjunction with Article 264(1) TFEU). E – Maintenance of the effects of the contested decision 105. If the Court annuls the contested decision, as I suggest, solely on the basis of the second plea in law, it should maintain its effects in accordance with the second paragraph of Article 264 TFEU, as all the parties unanimously agree. 106. The effects of the contested decision must be maintained for reasons of legal certainty so as not to impair the full effectiveness of the prosecution and trial of suspected pirates. In this way, with reference to Article 10(6) and Article 12(3) of the Joint Action, (54) the basis for any attempt to question EU NAVFOR’s mandate in relation to the transfer to Tanzania of persons arrested off the Somali coast and suspected of piracy is removed from the outset. Similarly, the legal effects of actions already undertaken pursuant to the disputed agreement cannot be called into question. Furthermore, in general terms, maintaining the effects of the contested decision at international level will avoid any uncertainty over the continued application of the obligations in international law entered into by the Union when it approved and signed the disputed agreement. 107. Because the contested decision is annulled in connection with the second plea in law not by reason of an incorrect substantive or formal legal basis, but only for a failure to fulfil the duty to inform the Parliament, the effects of that decision should be maintained not just temporarily, but indefinitely, (55) as, in accordance with the first part of the second subparagraph of Article 218(6) TFEU, the Council’s failure to provide information, even if it were properly remedied, would not be linked with any rights for the Parliament to have a say, not even a right of consultation. Under those circumstances, it would seem excessively formalistic still to require the Council to repeat its decision-making process within a reasonable time. 108. It would be a different matter only if the Court (also) upheld the Parliament’s first plea in law and found an error in law in the choice of the legal basis for the contested decision. Such action would have implications for the Parliament’s rights to have a say. In that case, according to the Court’s recent case-law, (56) the maintenance of the effects of the contested decision would not be granted indefinitely, but only for the period within which the Council can reasonably expect to remedy the unlawfulness established in respect of the choice of the legal basis, and properly involve the Parliament in so doing. A time-limit of 10 months would seem reasonable in this case to allow the Council to obtain the consent of the Parliament pursuant to point (a)(v) of the second subparagraph of Article 218(6) TFEU and to adopt a new decision on the correct legal bases. VII – Costs 109. Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since, according to my proposed solution, the Council has been unsuccessful and the Parliament has applied for costs, the Council must be ordered to pay the costs. On the other hand, the Czech Republic, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Commission, as interveners, must each bear their own costs in accordance with Article 140(1) of the Rules of Procedure. VIII – Conclusion 110. In the light of the foregoing considerations, I propose that the Court should: (1) annul Council Decision 2014/198/CFSP of 10 March 2014; (2) order that the effects of the annulled decision be maintained; (3) order the Council of the European Union to bear its own costs and to pay the costs incurred by the European Parliament; (4) order the Czech Republic, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Commission each to bear their own costs. 1 – Original language: German. 2 – Judgment in Parliament v Council (C‑658/11, EU:C:2014:2025). 3 – Council Decision 2014/198/CFSP of 10 March 2014 on the signing and conclusion of the Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the United Republic of Tanzania (OJ 2014 L 108, p. 1), also ‘the contested decision’. 4 – OJ 2014 L 108, p. 3; also ‘the disputed agreement’. 5 – I am thinking in particular of the stories about the character of Long John Silver in ‘Treasure Island’ (Robert Louis Stevenson) and of ‘El Trato de Argel’ (Miguel de Cervantes), but also of children’s stories like ‘Pippi Langstrumpf in Taka-Tuka-Land’ (Astrid Lindgren) and ‘Jim Button and the Wild 13’ (Michael Ende). 6 – See also Opinion of Advocate General Bot in Parliament v Council (C‑658/11, EU:C:2014:41, points 4 and 5). 7 – Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (OJ 2008 L 301, p. 33), as amended by Joint Action 2010/766/CFSP (OJ 2010 L 327, p. 49) and Joint Action 2012/174/CFSP (OJ 2012 L 89, p. 69); ‘the Joint Action’. 8 – Treaty on European Union as amended by the Treaty of Nice. 9 – The United Nations Convention on the Law of the Sea was signed in Montego Bay on 10 December 1982. The European Union and all its Member States are Contracting Parties to the Convention. Under Article 100 of the Convention on the Law of the Sea, all States are to cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. Article 105 of the Convention on the Law of the Sea permits the seizure of pirate ships or aircraft and the arrest of persons and seizure of property on board; that provision also allows penalties to be imposed by the courts of the State which seized a pirate ship or aircraft. Lastly, Article 107 of the Convention on the Law of the Sea regulates which State ships and aircraft are entitled to seize ships and aircraft on account of piracy. 10 – Alongside the negotiations with Tanzania negotiations were also opened with Mauritius, Mozambique, South Africa and Uganda. 11 – See the first citation in the preamble to the contested decision. 12 – The Kingdom of Sweden does not expressly request that the effects of the contested decision be maintained but it can be inferred from its statements that it supports the Council’s claim to that effect. 13 – Whilst most of the parties make observations in their written pleadings on both pleas in law, the Czech Republic confines its observations to the second plea, whereas the Kingdom of Sweden and the Commission concentrate on the first plea. 14 – Judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, paragraphs 72 and 73); see also the Opinion of Advocate General Bot in that case (EU:C:2014:41, points 137 and 138). 15 – Only in respect of reviewing the legality of decisions providing for restrictive measures is the Court’s jurisdiction expressly limited under the second alternative in the second paragraph of Article 275 TFEU to proceedings brought in accordance with the fourth paragraph of Article 263 TFEU. 16 – See also the judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, in particular paragraph 87). 17 – Further still, the Commission takes the view that the contested decision falls exclusively in the field of judicial cooperation in criminal matters, with the result that Article 82 TFEU alone is a possible enabling provision. 18 – See in particular the judgments in Commission v Council (C‑94/03, EU:C:2006:2, paragraphs 55 and 56) and United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 35). 19 – Judgments in Parliament v Council (C‑130/10, EU:C:2012:472, paragraphs 43 and 44); Commission v Council (C‑377/12, EU:C:2014:1903, paragraph 34), and Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 43). 20 – See the Court’s statements on the submissions of the parties in the judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, paragraphs 44 and 45). 21 – The Council and its interveners rely in this regard in particular on paragraphs 58, 59 and 62 of the judgment in Parliament v Council (C‑658/11, EU:C:2014:2025). 22 – Judgments in Commission v Council (C‑94/03, EU:C:2006:2, paragraph 50); Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 48); and United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 36); see also the judgment in United Kingdom v Council (C‑431/11, EU:C:2013:589, paragraph 66). 23 – One exception, which is not relevant here, is Article 79(3) TFEU, which contains an express legal basis for the conclusion of agreements for the readmission of illegally resident third-country nationals to their countries of origin or provenance. 24 – The ERTA principle stems from the judgment in Commission v Council (‘ERTA’, 22/70, EU:C:1971:32, paragraphs 15 to 19); a recent overview can be found, for example, in Opinion 1/03 (EU:C:2006:81, paragraphs 114 to 133). 25 – See my Opinion in United Kingdom v Council (C‑81/13, EU:C:2014:2114, point 104); earlier, to the same effect, my Opinion in United Kingdom v Council (C‑431/11, EU:C:2013:187, points 64 to 70). 26 – Judgments in Commission v Council (C‑300/89, EU:C:1991:244, paragraph 10); Parliament v Council (C‑130/10, EU:C:2012:472, paragraph 42); and United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 35). 27 – Judgments in United Kingdom v Council (C‑431/11, EU:C:2013:589, paragraph 48); United Kingdom v Council (C‑656/11, EU:C:2014:97, paragraph 50); and United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 38). 28 – Article 3(1) and (2) of the disputed agreement. 29 – Articles 3(3), 4 and 5 of the disputed agreement. 30 – Article 6 of the disputed agreement. 31 – Article 7 of the disputed agreement. 32 – See the judgment in Commission v Parliament and Council (C‑43/12, EU:C:2014:298, paragraphs 45 to 50); to the same effect — in relation to the definition of the rights of third-country nationals within the Union — judgments in United Kingdom v Council (C‑431/11, EU:C:2013:589, paragraphs 62 to 67) and United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraphs 40 to 46). 33 – They refer to ‘judicial cooperation in criminal matters in the Union’ (Article 82(1) TFEU) and ‘police cooperation involving all the Member States’ competent authorities’ (Article 87(1) TFEU); my emphasis. 34 – See the second indent of Article 12(1) of the Joint Action. 35 – See to this effect the case-law of the European Court of Human Rights, in particular the judgments of 4 December 2014, Samatar and Others v France (Applications No 17110/10 and 17301/10, ECLI:CE:ECHR:2014:1204JUD001711010, paragraphs 41 to 59) and Hassan and Others v France (Applications No 46695/10 and 54588/10, ECLI:CE:ECHR:2014:1204JUD004669510, paragraphs 60 to 72 and 86 to 104), which each concern Article 5 ECHR. 36 – See in particular Articles 10(6) and 12(3) of the Joint Action. 37 – To this effect, Opinion of Advocate General Bot in Parliament v Council (C‑130/10, EU:C:2012:50, point 64), in relation to the objectives of preserving international peace and security. 38 – See also the detailed analysis of the EU/Mauritius Agreement by Advocate General Bot in his Opinion in Parliament v Council (C‑658/11, EU:C:2014:41, points 68 to 121), in which he reaches the same conclusion based on essentially similar arguments (see in particular points 83 and 109 to 115). 39 – Judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, in particular paragraph 85). 40 – Judgments in Roquette Frères v Council (138/79, EU:C:1980:249, paragraph 33); Parliament v Council (C‑130/10, EU:C:2012:472, paragraph 81); and Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 81). 41 – Opinion of Advocate General Bot in Parliament v Council (C‑658/11, EU:C:2014:41, in particular points 142 to 144). 42 – For example, the Parliament could, in a case like the present one, be interested in whether sufficient consideration has been given to the prohibition of the death penalty which applies in the Union (Article 2(2) of the Charter of Fundamental Rights). What if the Council had failed to take appropriate steps in the disputed agreement? Is it sufficient to lay down in the disputed agreement, not an express prohibition of the death penalty, but merely a hedged one? I would point out that, in Article 12(3), the Joint Action expressly makes the risk of being subjected to the death penalty an obstacle to the transfer of suspected pirates to third States, whereas Article 5 of the disputed agreement addresses this point only indirectly and with less symbolic force, stating that no transferred person is to be ‘tried for an offence which has a maximum punishment that is more severe than imprisonment for life’. 43 – I am thinking in particular of the planned ‘TTIP’ free-trade agreement with the United States of America, the SWIFT agreement and the Passenger Name Records agreement, but also the Union’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, provided for in Article 6(2) TEU and in Article 218(6) and (8) TFEU. 44 – Declaration No 14 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 (OJ 2008 C 115, p. 343), states in its second paragraph that the provisions covering the common foreign and security policy in the Treaty of Lisbon do not ‘increase the role of the European Parliament’. 45 – See in particular the second paragraph of Article 1 EU and Article 21 EU. 46 – Judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 86). 47 – As is expressly stated in the letter of 22 March 2010. 48 – See also Opinion of Advocate General Bot in Parliament v Council (C‑658/11, EU:C:2014:41, point 155). 49 – Judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 79). 50 – In German law it is assumed that the word ‘unverzüglich’ requires action ‘without culpable delay’ (see the first sentence of Paragraph 121(1) of the Bürgerliches Gesetzbuch (German Civil Code)). 51 – See the judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 77 and paragraphs 15 to 17). 52 – In particular, the Council has not claimed translation problems. If an international agreement or the Council decision approving it are not immediately available in all the EU official languages, the Council must first communicate the available language versions to the Parliament and subsequently send outstanding translations without delay. 53 – See the judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, in particular paragraphs 80, 86 and 87). 54 – As we know, under those two provisions the transfer of persons to a third State requires the prior conclusion of an agreement with that third State in which the conditions for the transfer are established. 55 – See the judgment in Parliament v Council (C‑658/11, EU:C:2014:2025, in particular paragraph 91). 56 – Judgments in Parliament v Council (C‑355/10, EU:C:2012:516, paragraph 90); Commission v Council (C‑137/12, EU:C:2013:675, in particular paragraph 81); and Commission v Parliament and Council (C‑43/12, EU:C:2014:298, paragraph 56).