OPINION OF ADVOCATE GENERAL

BOT

delivered on 31 January 2012 ( 1 )

Case C-130/10

European Parliament

v

Council of the European Union

‛Common foreign and security policy — Regulation (EC) No 881/2002 — Regulation (EU) No 1286/2009 — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban — Freezing of funds and economic resources — Choice of legal basis — Articles 75 TFEU and 215 TFEU — Entry into force of the Treaty of Lisbon — Transitional provisions — Common Positions and CFSP decisions — Joint proposal by the High Representative of the Union for Foreign Affairs and Security Policy and the Commission’

I – Introduction

1. By its action, the European Parliament asks the Court to annul Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, ( 2 ) on the principal ground that it was not adopted on an appropriate legal basis.

2. The contested regulation was adopted on the basis of Article 215(2) TFEU. The Parliament submits that it should have been adopted on the basis of Article 75 TFEU.

3. Article 215 TFEU appears in Title IV (‘Restrictive measures’) of Part Five of the FEU Treaty, relating to the European Union’s external action.

4. That article is worded as follows: ‘1. Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy [ ( 3 )] and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof. 2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities. 3. The acts referred to in this Article shall include necessary provisions on legal safeguards.’

5. The Chapter 2 of Title V of the EU Treaty, to which Article 215 TFEU refers, contains ‘specific provisions on the common foreign and security policy’.

6. Article 75 TFEU forms part of Chapter 1 (‘General provisions’) of Title V (‘Area of freedom, security and justice’) of Part Three (‘Union Policies and internal actions’) of the FEU Treaty. That article provides as follows: ‘Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payment, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities. The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph. The acts referred to in this Article shall include necessary provisions on legal safeguards.’

7. In the event that the Court confirms that Article 215(2) TFEU was the appropriate legal basis for the contested regulation, the Parliament submits, in the alternative, that the conditions governing recourse to that provision were not fulfilled.

8. The principal plea raised by the Parliament provides the Court with the opportunity to specify the method and the criteria for distinguishing, in matters relating to restrictive measures, those which fall within the area of freedom, security and justice ( 4 ) and those which must be adopted under the Common Foreign and Security Policy (CFSP).

9. It should be pointed out that, although the Treaty of Lisbon dispensed with the pillar structure which had existed previously, there is none the less still a need to define the respective limits of the European Union’s policies. This is confirmed by Article 40 TEU, which provides as follows: ‘The implementation of the [CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter (relating to specific provisions on the [CFSP]).’ ( 5 )

10. Before examining the present action, I shall give a brief account of the events that led up to the adoption of the contested regulation.

11. On 16 January 2002, the United Nations Security Council ( 6 ) adopted Resolution 1390 (2002), setting out measures to be imposed against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them. Paragraphs 1 and 2 of that resolution provide in particular for, essentially, the continuation of measures for the freezing of funds imposed by Paragraph 4(b) of Resolution 1267 (1999) and Paragraph 8(c) of Resolution 1333 (2000). In accordance with paragraph 3 of Resolution 1390 (2002), those measures were to be reviewed by the Security Council 12 months after their adoption, at the end of which period the Council was to either allow those measures to continue or decide to improve them.

12. Taking the view that action by the European Community was necessary in order to implement that resolution, on 27 May 2002, the Council adopted, on the basis of Article 15 EU, Common Position 2002/402/CFSP concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP. ( 7 ) Article 3 of Common Position 2002/402 provides, inter alia, that the freezing of the funds and other financial assets or economic resources of the individuals, groups, undertakings and entities referred to in the list drawn up in accordance with Resolutions 1267 (1999) and 1333 (2000) is to be continued.

13. On the same date, the Council, on the basis of Articles 60 EC, 301 EC and 308 EC, adopted Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan. ( 8 ) Annex I to Regulation No 881/2002 contains the list of persons, entities and groups affected by the freezing of funds imposed by Article 2 of that regulation (‘the list’).

14. The contested regulation was adopted by the Council on 22 December 2009. It is based on Article 215(2) TFEU and refers to a joint proposal from the High Representative and the Commission. It amends Regulation No 881/2002, following the judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission ( 9 ) by introducing a listing procedure which ensures that the fundamental rights of the defence and in particular the right to be heard are respected. The revised procedure provides that the listed person, entity, body or group is to be informed of the reasons for listing, as instructed by the Committee of the Security Council established pursuant to UN Security Council Resolution 1267 (1999) concerning Al Qaida and the Taliban, ( 10 ) so that he, she or it is given an opportunity to express his, her or its views on those reasons.

II – Forms of order sought by the parties

15. The Parliament claims that the Court should: — annul the contested regulation; — order that the effects of the contested regulation be maintained until it is replaced; and — order the Council to bear the costs of the proceedings.

16. The Council contends that the Court should: — dismiss the application as unfounded; and — order the Parliament to pay the costs.

17. By order of the President of the Court of 10 August 2010, the Commission, the Czech Republic, the Kingdom of Sweden, the French Republic and the Kingdom of Denmark were granted leave to intervene in support of the forms of order sought by the Council.

18. By order of the President of the Court of 2 December 2010, the Kingdom of Denmark was removed from the register as an intervener after having applied to withdraw its intervention.

19. The parties presented oral argument to the Court at the hearing which took place on 7 December 2011.

20. My examination will consider first of all the principal plea raised by the Parliament, based on the allegedly erroneous choice of legal basis for the contested regulation, and secondly, if appropriate, the alternative plea, alleging non-fulfilment of the conditions governing recourse to Article 215 TFEU

III – The principal plea, based on the allegedly erroneous choice of legal basis

A – The arguments of the parties

21. By its first plea, the Parliament seeks a declaration from the Court that the contested regulation could not validly be based on Article 215 TFEU. That plea is subdivided into two limbs, the first of which relates to the aim and the content of that regulation and the second to the general scheme of the Treaties.

1. The aim and the content of the contested regulation

22. According to the Parliament, it is settled case-law that the choice of legal basis for a European Union measure must rest on objective factors amenable to judicial review, including in particular the aim and the content of the measure. In the light of its content and purpose, the legal basis for the contested regulation should be the same as that for Regulation No 881/2002, which was adopted on the basis of Articles 60 EC, 301 EC and 308 EC. However, since those articles have been repealed or become inapplicable following the entry into force of the Treaty of Lisbon on 1 December 2009, the appropriate legal basis is Article 75 TFEU, concerning the prevention of terrorism and related activities.

23. As regards its content, for the most part, the contested regulation merely reformulates or clarifies provisions of Regulation No 881/2002 or facilitates its application, but does not in any way change the nature of the content of the latter regulation. The only genuinely new substantive provisions are those on the listing procedure. The contested regulation is in the nature of a ‘framework for administrative measures’ within the meaning of Article 75 TFEU in so far as it amends or adds to the legislative framework for the adoption and implementation of administrative measures to freeze the funds of the parties concerned.

24. With respect to the objective pursued by the contested regulation, it seeks, like Regulation No 881/2002, to combat terrorism and the financing of terrorism, which is consistent with the objectives of Article 75 TFEU. That is corroborated by paragraph 169 of the judgment in Kadi and Al Barakaat International Foundation v Council and Commission, which states that the essential purpose and object of the latter regulation is to combat international terrorism, in particular to cut it off from its financial resources by freezing the economic funds and resources of persons or entities suspected of involvement in activities linked to terrorism. Furthermore, the Court held in paragraph 199 of that judgment that the position of the Court of First Instance of the European Communities to the effect that Regulation No 881/2002 pursued one of the objectives under the EU Treaty in the sphere of external relations, including the CFSP, runs counter to the very wording of Article 308 EC.

25. Given that that regulation does not seek to achieve CFSP objectives, it is difficult to see how the contested regulation, adopted to ensure the application of the former regulation, could do so. The Parliament points out that the Council may have recourse to Article 215 TFEU only for measures which pursue CFSP objectives, in particular where a decision intended to achieve the objectives of that policy makes provision for such recourse.

26. According to the Parliament, the Council’s position is not consistent with the facts or with reality, in so far as it is based on a distinction between international or ‘external’ terrorism, on the one hand, and ‘internal’ terrorism, on the other. The fight against terrorism must be international if it is to succeed. The only distinction that can be made in this context is between national measures to combat terrorism, and international anti-terrorism measures. It is not always possible to say with any certainty whether terrorist and related activities carried out within the European Union will create a threat within or outside the European Union.

27. The Council submits that, in the light of its objectives and its content, the contested regulation falls within the scope of the provisions of the Treaties relating to the European Union’s external action, more specifically within the sphere of the CFSP. Article 215 TFEU constitutes the appropriate legal basis for that measure.

28. The purpose of that regulation, like that of Regulation No 881/2002, is to combat international terrorism and its financing in order to maintain international peace and security. In this regard, the Council refers to the wording of Security Council Resolution 1390 (2002) and of Regulation No 881/2002 implementing it, and cites the judgment in Kadi and Al Barakaat International Foundation v Council and Commission.

29. The content of the contested regulation is consistent with that objective. Articles 7a and 7c, which that regulation inserts into Regulation No 881/2002, confirm that those regulations directly implement the listing decisions adopted by the Sanctions Committee and establish a system of interaction between the Sanctions Committee, the European Union and the individuals and entities listed.

30. Regulation No 881/2002 and the contested regulation do not in any way fall within the scope of the provisions intended to create an AFSJ within the European Union. They do not govern matters relating to border controls, internal security or the recognition of judicial and extra-judicial decisions.

31. The Council, like the French Republic, submits that the Treaties, in the version prior to the entry into force of the Treaty of Lisbon, did not provide for any specific legal basis for the adoption of measures to freeze the funds of terrorists that pose a threat to public security in the Member States, that is to say ‘internal’ terrorists. The only legal bases for adopting such restrictive measures were Articles 60 EC, 301 EC and 308 EC, which applied only to ‘external’ terrorists in the context of the European Union’s external action.

32. It is clear from the structure and the wording of the Treaties, as amended by the Treaty of Lisbon, that the location of a purported threat and the political objectives of a listed person or group must be taken into consideration when deciding on the legal basis for a restrictive measure. Article 75 TFEU already provides a legal basis for adopting measures to freeze the funds of ‘internal’ terrorists, such as the individuals and groups whose names, marked with an asterisk, are included on the list annexed to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism. ( 11 ) Conversely, if the threat relates primarily to one or more third States or to the international community in general, Article 215 TFEU is the appropriate legal basis. It would be unlawful for the European Union, on the basis of Title V of Part Three of the FEU Treaty, which governs the AFSJ, to adopt a measure freezing assets which contributed to the security of a third State but was not aimed at safeguarding internal security.

33. Furthermore, the Council, essentially supported by the Kingdom of Sweden, submits that the Parliament’s proposition fails to take account of those cases where, in the context of the fight against terrorism, the European Union seeks to adopt or impose restrictive measures other than asset freezing, such as a travel ban, in respect of persons or entities associated with ‘external’ terrorism.

34. The Kingdom of Sweden points out that the effect of the Parliament’s position would be that United Nations sanctions against terrorists would be implemented on different legal bases for different sanctions within a single system of sanctions. This cannot have been the intention of the European Union legislature, not least because such a system involves the application of different decision-making procedures under the CFSP and the Union’s internal policy, respectively.

35. The Commission explains that, when proposing an amending act, it uses the provision or provisions that formed the basis for the adoption of the original act. Thus, the proposal for a Council Regulation presented by the Commission on 22 April 2009 ( 12 ) referred to Articles 60 EC, 301 EC and 308 EC as its legal bases. Since that proposal was pending before the Council on 1 December 2009, the Commission states that it was required to carry out a purely legal and technical examination of the consequences of the entry into force of the Treaty of Lisbon on that act. It came to the conclusion, endorsed by the High Representative, that Article 215(2) TFEU covers all relevant aspects of Articles 60 EC, 301 EC and 308 EC. That approach is consistent with the Court’s findings in Kadi and Al-Barakaat International Foundation v Commission.

36. With regard to the impact of that judgment on the question of the legal basis, the Commission challenges the Parliament’s claim that, in the light of the aforementioned judgment, an act based on Article 308 EC cannot pursue a CFSP objective. According to the Commission, the Court did not dispute that Articles 60 EC and 301 EC were the appropriate legal bases for the adoption of Community measures pursuing a CFSP objective. As regards Regulation No 881/2002, the Court identified a second, underlying Community objective linked to the functioning of the common market to justify the inclusion of Article 308 EC as a third legal basis. Moreover, it confirmed that the EC Treaty required recourse to that provision for the imposition of restrictive measures in respect of natural or legal persons in cases where there is no link with the governing regime of a third State.

37. The Commission considers that Articles 215 TFEU and 75 TFEU cannot be used jointly as legal bases for the contested regulation. It is not possible to base an act on those two articles at the same time since they lay down different procedural and decision-making conditions, including the condition relating to the application of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the EU Treaty and the FEU Treaty, and the application of the Protocol (No 22) on the position of Denmark, annexed to those treaties. It states that one of the crucial differences between Articles 215 TFEU and 75 TFEU lies in the need for a link with decisions adopted in accordance with Chapter 2 of Title V of the EU Treaty ( 13 ) which are adopted in the interests of international peace and security, regardless of the precise geographical location or scope of the terrorist threat at issue. Where restrictive measures relating to terrorism need to be adopted under the FEU Treaty following a CFSP decision further to a Security Council Resolution, Article 215 TFEU is the only possible legal basis.

2. The general scheme of the Treaties

38. According to the Parliament, the general scheme and the spirit of the Treaties may be taken into account for the purposes of interpreting their provisions. In this instance, they justify the choice of Article 75 TFEU as the legal basis for the contested regulation.

39. First, the contested regulation is linked to the protection of individuals and groups. Since the entry into force of the Treaty of Lisbon, the European Union can adopt measures concerning fundamental rights only under the ordinary legislative procedure or with the consent of the Parliament. Article 215(2) TFEU is applicable only in respect of measures which do not raise fundamental rights issues to the same extent.

40. Secondly, Article 75 TFEU empowers the European Union to adopt measures concerning capital movements and payments, thus recognising that such measures may affect the proper functioning of the internal capital market and the provision of financial services. The Court acknowledged in paragraph 229 of Kadi and Al Barakaat International Foundation v Council and Commission, that ‘[restrictive measures of an economic nature] by their very nature offer a link to the operation of the common market’. Furthermore, Regulation No 881/2002 itself refers, in recital 4 of its preamble, to the need to avoid in particular distortion of competition.

41. Thirdly, the contested regulation is linked to the establishment of an AFSJ. It assists in combating crime, in particular terrorism and the financing of terrorism, which is one of the objectives of the AFSJ, as defined inter alia in Article 3(2) TEU.

42. Finally, the Parliament claims that there is no link between the contested regulation and the CFSP. Article 24(1) TEU provides that the CFSP is subject to specific rules and procedures. The extension of those rules and procedures outside their scope of application would run counter to the objectives set out in Article 1, second paragraph, TEU and have the effect of depriving national parliaments of the application of the protocols on their role and on the application of the principles of subsidiarity and proportionality and of denying the Parliament the application of the ordinary legislative procedure.

43. In support of its position, the Parliament also refers to paragraph 235 of Kadi and Al Barakaat International Foundation v Council and Commission, in which the Court held that the inclusion of Article 308 EC in the legal basis of Regulation No 881/2002 was justified because it ‘enabled the … Parliament to take part in the decision-making process relating to the measures at issue which are specifically aimed at individuals whereas, under Articles 60 EC and 301 EC, no role is provided for that institution’.

44. The Parliament concludes that it would be contrary to European Union law for it to be possible to adopt measures which have a direct impact on the fundamental rights of individuals and groups, on the internal market and on the fight against crime by means of a procedure which excludes the participation of the European Parliament, when the ordinary legislative procedure applies for the adoption of measures in those areas. The Treaty of Lisbon reflects the intention of the Member States to enhance the democratic nature of the European Union. It responds to an urgent need to provide for parliamentary scrutiny of listing practices. Recognising Article 215(2) TFEU as the correct legal basis for measures such as the contested regulation would in practice deprive Article 75 TFEU of much of its effectiveness. The Parliament also points out that Article 75 TFEU constitutes a more specific legal basis than Article 215 TFEU.

45. The Council submits that the arguments put forward by the European Parliament with respect to the general scheme of the Treaties do not constitute relevant criteria for determining the correct legal basis of the contested regulation.

46. The powers of the institutions are determined by the Treaties and vary according to the different fields of action of the European Union. The Parliament’s proposition amounts to a claim that procedures determine the choice of legal basis rather than the other way round. The fact that the role of the Parliament in the procedure varies is relevant only in exceptional circumstances. It is thus relevant in the case of an act which simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary to the other. In such circumstances, the corresponding different legal bases may be used, provided they are not incompatible. In order to determine whether they are compatible, it is necessary to consider whether the combination of those legal bases would be such as to undermine the Parliament’s rights. In this regard, the Council refers in particular to the judgment of 6 November 2008 in Parliament v Council. ( 14 )

47. The Council states that the choice of legal basis must rest on objective factors, in particular the aim and the content of the measure. That principle was confirmed by Kadi and Al Barakaat International Foundation v Council and Commission. Although the Court observed in paragraph 235 of that judgment that recourse to Article 308 EC permitted the Parliament to take part in the decision-making process, the fact remains that that observation was made only in order to supplement the Court’s principal arguments, based on the objectives of the EC Treaty.

48. Furthermore, the Parliament’s argument to the effect that the European Union can adopt measures concerning respect for human rights only with Parliament’s involvement is contradicted by Article 215(3) TFEU, which provides that ‘[t][he acts referred to in this Article shall include necessary provisions on legal safeguards’. That provision makes it clear that an act adopted under that article has the potential to interfere with fundamental rights.

49. The Council also submits that the purpose of Article 215 TFEU is to enable the Council to adopt measures which are directly applicable to economic operators. That provision helps to ensure the proper functioning of the common market.

50. As regards the relationship between the contested regulation and the CFSP, the Council refers to the specific threat posed by Al Qaida. That regulation constitutes the framework within which the European Union implements its obligations under the United Nations Charter. It is not unreasonable to take account of the objective of the resolutions adopted by the Security Council in determining the appropriate legal basis.

51. Finally, the Council points out that the Treaty of Lisbon has not affected the distinction between the CFSP and AFSJ. On the contrary, the importance of a clear dividing line between those two fields was highlighted in Article 40, second paragraph, TEU. Consequently, if the Court were to take the view that the contested regulation pursues a CFSP objective, Article 215(2) TFEU would be the only possible legal basis for its adoption.

B – My assessment

52. One of the contributions made by the Treaty of Lisbon has been to supplement the legal arsenal enabling the European Union to adopt restrictive measures against natural or legal persons, groups or non-State entities. Article 75, first paragraph, TFEU and Article 215(2) TFEU are now expressly directed at those addressees, so that recourse to what constitutes the equivalent of Article 308 EC, that is to say Article 352 TFEU, is unnecessary. ( 15 )

53. The issue to be determined here is the respective spheres of application of Article 75 TFEU and Article 215 TFEU. The views expressed by the Parliament, on the one hand, and the other parties, on the other, are radically opposed in this regard.

54. Summed up in a single sentence, the Parliament’s main argument is that only Article 75 TFEU may be used as the basis for adopting restrictive measures aimed at combating terrorism.

55. I should say at the outset that I am not convinced by that argument.

56. I would point out that, according to settled case-law, the choice of the legal basis for a European Union measure must rest on objective factors amenable to judicial review, which include in particular the aim and the content of the measure. ( 16 )

57. An examination of the aim pursued by the contested regulation cannot be conducted in isolation but must take account of the acts to which that regulation refers and with which it establishes a link, ( 17 ) that is to say, in chronological order, Security Council Resolution 1390 (2002), Common Position 2002/402 and Regulation No 881/2002, which the contested regulation amends on a number of counts.

58. In reality, all those legal acts pursue a single aim, that is to say combating international terrorism. One of the essential means of attaining that objective is to cut terrorist organisations off from their financial resources by freezing the funds and economic resources of the persons or entities suspected of involvement in activities linked to terrorism.

59. As the Court observed in Kadi and Al Barakaat International Foundation v Council and Commission, the essential purpose and object of Regulation No 881/2002 is to combat international terrorism. ( 18 ) In recital 11 of the preamble thereto, the contested regulation states that ‘[t]he purpose of Regulation … No 881/2002 is to prevent terrorist crimes, including terrorist financing, in order to maintain international peace and security’. This, in my view, is the ultimate aim pursued by both international legislation and the European Union legislation mentioned above.

60. With regard specifically to the contested regulation, I consider that, in terms of its objective and content, it is fully in line with that approach and, in the light in particular of the lessons that can be learned from Kadi and Al Barakaat International Foundation v Council and Commission, develops it in such a way as to reconcile the fight against international terrorism and respect for fundamental rights. In compliance with that judgment, the contested regulation therefore establishes a listing procedure the purpose of which is to guarantee that the fundamental rights of the defence, in particular the right to be heard, are respected.

61. It is at this point necessary to determine which European Union policy the objective of combating international terrorism in order to maintain international peace and security may be linked to since the entry into force of the Treaty of Lisbon.

62. In my view, that objective is consistent with the aims of the European Union’s external action, as listed specifically in Article 21(2)(a) to (c) TEU. That provision states as follows: ‘The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders.’

63. Although the objectives listed in Article 21(2) TEU are common to the European Union’s external action, none of them being expressly reserved for the CFSP, I consider that the objectives set out in subparagraphs (a) to (c) are among those traditionally assigned to that policy. I would point out in this regard that the objectives defined in Article 21(2)(a) to (c) TEU are in essence the same as those assigned to the CFSP under Article 11(1) EU. ( 19 ) Furthermore, those objectives are consistent with the provisions of Article 24(1), first subparagraph, TEU, which states that ‘[t]he Union’s competence in matters of [CFSP] shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence’.

64. In view of those factors, I am of the opinion that action by the European Union on the international stage which pursues one or more of the objectives referred to in Article 21(2)(a) to (c) TEU, in particular the objective of preserving peace and strengthening international security, must be regarded as falling within the sphere of the CFSP, and accordingly such action should be conducted in accordance with the specific rules and procedures set out in Chapter 2 of Title V of the EU Treaty.

65. I would add that, contrary to what is suggested by certain arguments put forward by the Parliament, the fight against terrorism may perfectly legitimately be conducted by the European Union as part of its actions under the CFSP. While the role of the CFSP had already been affirmed in a number of political documents adopted at European Union level, ( 20 ) it is now established in the Treaties. In addition to Article 215 TFEU, which, in my view, demonstrates that the CFSP has an affirmed role in the fight against international terrorism, I would cite Article 43(1) TEU, which makes it clear that all the tasks falling within the common security and defence policy ( 21 )‘may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories’. Furthermore, it is clear from the wording of the solidarity clause contained in Article 222 TFEU, which can be triggered where a Member State is the object of a terrorist attack, that that clause relates to the CFSP, particularly in so far as concerns the CSDP.

66. In the case at issue, the fact that the contested regulation constitutes one of the instruments by which the European Union took action at international level decided upon within the Security Council and indisputably intended to preserve international peace and security ( 22 ) is an important factor in the formation of the view that that regulation can be linked to the sphere of the CFSP. Indeed, it is within the framework of that policy that the system was established permitting interaction between the decisions taken within the United Nations and those taken by the European Union to deprive the persons and entities linked to terrorist movements of their resources. In that context, account must be taken in the present action of the fact that the persons and entities targeted by the measures freezing funds and economic resources are designated by the Sanctions Committee and that the European Union simply reproduces the list drawn up within that committee.

67. That being established, it is clear to me that Article 215(2) TFEU is the only provision which empowers the European Union to adopt restrictive measures such as those to which the contested regulation relates. Unlike Article 75 TFEU, Article 215(2) TFEU can be used only where a decision falling within the scope of the CFSP provides for such action. Where the European Union adopts a decision to take action on the international stage, such as that which is at the heart of this case, under the CFSP, the legal basis which must be used is of course that which forms a bridge with that policy. To choose another legal basis would run counter to Article 40, second paragraph, TEU, which, it should be recalled, affirms the principle that the implementation of the policies referred to in Articles 3 TFEU to 6 TFEU must not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under the CFSP.

68. I would also point out that, unlike Article 75 TFEU, Article 15(2) TFEU provides for the adoption of ‘restrictive measures’ generally, without confining these exclusively to measures concerning capital movements and payments. Article 215(2) TFEU therefore constitutes the legal basis that enables the European Union to adopt measures such as those restricting the movement of the persons at whom they are directed or prohibiting the sale of arms to such persons. ( 23 ) It is therefore apparent that that provision is better suited to the variety of actions that may be taken by the European Union under the CFSP in order to combat international terrorism.

69. I would further state that, in so far as Articles 75 TFEU and 215 TFEU relate to different European Union policies that pursue objectives which, although complementary, do not necessarily have the same scope and are governed by different rules and procedures, ( 24 ) I do not consider it appropriate to view the relationship between those two legal bases as being that of lex generalis and lex specialis. The relationship between Articles 75 TFEU and 215 TFEU must be viewed, rather, as one of complementarity. Furthermore, the differences in the procedures by which Articles 75 TFEU and 215 TFEU may be implemented, which reflect the divergent nature of the policies to which they relate, make it impossible, in my opinion, for both those legal bases to be used at the same time.

70. It is true that the Parliament’s powers under Article 215 TFEU are not as extensive as under Article 75 TFEU, which provides for recourse to the ordinary legislative procedure. That cannot, however, be a decisive factor when it comes to the choice of legal basis for the contested regulation. As the Council rightly points out, it is not the procedures which determine the legal basis but the other way round. Moreover, the ‘CFSP’ dimension of Article 215 TFEU certainly explains the choice made by the authors of the FEU Treaty with respect to the role of the Parliament.

71. That being the case, the Parliament’s role in the sphere of the CFSP is by no means negligible. In particular, the obligations incumbent on the High Representative in this regard in his relationship with the Parliament make up, to some extent, for the lack of an ordinary legislative procedure. Thus, Article 36, first paragraph, TEU provides that the High Representative ’shall regularly consult the … Parliament on the main aspects and the basic choices of the [CFSP] and the [CSDP] and inform it of how those policies evolve. He shall ensure that the views of the … Parliament are duly taken into consideration. Special representatives may be involved in briefing the … Parliament’. It therefore falls to the High Representative to involve the Parliament as closely as possible in decisions taken in relation to the CFSP, in so far as the requirements of confidentiality and expediency which characterise that policy of the European Union so permit. Article 36, second paragraph, TEU goes on to say that the Parliament ‘may address questions or make recommendations to the Council or the High Representative. Twice a year it shall hold a debate on progress in implementing the [CFSP], including the [CSDP]’.

72. In the light of the foregoing considerations, my comments can be summarised as follows. I take the view that the contested regulation was correctly adopted on the basis of Article 215(2) TFEU on account of its ‘CFSP’ dimension. That dimension lies, first, in the fact that, by supplementing the legislative framework for the restrictive measures adopted in respect of persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, that regulation has as its principal objective combating international terrorism in order to maintain international peace and security. Second, the contested regulation forms part of the system set up by the European Union to take forward international action decided upon within the Security Council and, more specifically, to implement measures to freeze funds and economic resources directed against persons and entities designated by the Sanctions Committee.

73. The analysis which has led me to endorse the choice made by the European Union legislature in using Article 215(2) TFEU as the legal basis for the contested regulation calls for a number additional observations.

74. I should like, first of all, to point out that the situation presented to the Court in these proceedings is not the only one in which Article 215(2) TFEU may constitute an appropriate legal basis. It would be permissible under that provision for the European Union to adopt restrictive measures in respect of persons and entities associated with terrorist organisations to supplement action decided upon by the European Union under the CFSP that was directed at third States as a means of helping the latter to combat terrorism. In the spirit of the provisions of Article 43(1) TEU, such restrictive measures would allow the European Union, in addition to the various civil and military tasks which it may carry out under the CFSP, to support action taken by third States to combat terrorism in their territory. Since those measures would form part of action by the European Union under the CFSP, they would have to be based on Article 215(2) TFEU.

75. Moreover, I refuse to subscribe to the Council’s view that the delimitation of the respective spheres of application of Articles 75 TFEU and 215(2) TFEU should be based on a distinction between ‘internal’ terrorists, ‘external’ terrorists and ‘international’ terrorists. Such a categorisation is contrary to the very nature of terrorism, which, by attacking common values and the very foundations of the rule of law, affects the entire international community, irrespective of the geographical scale of the threat. Furthermore, in so far as it generates legal uncertainty, the distinction advocated by the Council runs counter to the need for an effective fight against terrorism.

76. Terrorism does not recognise borders. Even though a terrorist organisation’s prime target may at first sight appear to be confined to a particular geographical area, that organisation will often have international off-shoots, in particular for the purpose of financing its activities. Furthermore, if a terrorist group which usually operates within the European Union decides at a given point in time to collaborate with other terrorist groups pursuing similar objectives located outside the European Union, do the persons and entities associated with the first group then lose their status as ‘internal’ terrorists and become ‘external’ terrorists or even ‘international’ terrorists? These considerations alone are sufficient, in my view, to demonstrate that it is impossible in practice to implement such a distinction.

77. Furthermore, the importance of combating terrorism is such that every legal instrument available to the European Union under the Treaties must be mobilised. With that in mind, I would emphasise that the analysis which has led me in this case to link the contested regulation to the sphere of the CFSP does not in any way mean that any external action by the European Union to combat terrorism should automatically be taken under the CFSP.

78. In particular, the external dimension that may attach to the European Union’s actions under its policy of creating an AFSJ should not be disregarded. By way of illustration, I would point out that the proposal for a Council decision on the conclusion of the Agreement between the United States of America and the European Union on the use and transfer of Passenger Name Records (PNRs) to the United States Department of Homeland Security, lodged by the Commission on 23 November 2011, ( 25 ) is based on Articles 82(1)(d) TFEU and 87(2)(a) TFEU, concerning judicial cooperation in criminal matters and police cooperation respectively, in conjunction with Article 218(6)(a) TFEU, concerning the conclusion of international agreements by the European Union.

79. Finally, I would mention that, in my opinion, Articles 75 TFEU and 215(2) TFEU must be regarded not as being in opposition to each other but as complementing each other. On that premiss, I consider that the view that the contested regulation should indeed have been based on Article 215(2) TFEU does not have the effect of depriving Article 75 TFEU of all substance. Indeed, in my opinion, the latter article constitutes the appropriate legal basis for the European Union, autonomously and independently of any initiative falling within the sphere of the CFSP, to adopt measures freezing the funds and economic resources of persons and non-State entities engaged in terrorist or related activities, there being no need to endeavour to classify the addressees of such measures as ‘internal’, ‘external’ or ‘international’ terrorists.

80. The nature of Articles 215(2) TFEU and 75 TFEU as mutually complementary provisions should serve to allay the concern, fundamental in the context of combating terrorism, that the system must not contain any flaw such as to jeopardise the aim pursed, which is to protect democracies against actions which in fact seek to bring an end to their existence.

81. Accordingly, Article 215(2) TFEU should constitute the appropriate legal basis for the adoption of the following restrictive measures directed against persons and non-State entities: — measures intended to support action by third States to combat terrorism in their territory ( 26 ) or, more broadly, to put an end to human rights violations in those States, since such measures, like those referred to in Article 215(1) TFEU, fall by their very nature within the scope of the CFSP; — measures directed against persons and entities expressly designated by the Security Council or a Sanctions Committee created by it, such as the measures at issue in this case; and — the implementation by the European Union of measures decided upon by the Security Council for which the designation of the persons and entities concerned is left to the discretion of the Member States. In such circumstances, the choice of Article 215(2) TFEU should, in my view, take precedence in so far as action by the European Union is required following a Security Council resolution, which serves to bring such action within the sphere of the CFSP.

82. On the other hand, in spheres outside the CFSP in which the European Union enjoys complete freedom, be it building the AFSJ, developing police or judicial cooperation with third States or taking the initiative to add to the lists drawn up by the Sanctions Committee which it considers to be incomplete, the European Union should act on the basis of Article 75 TFEU.

83. To conclude my arguments in this regard, I propose that the Court should find that the first plea raised by the Parliament must be rejected as unfounded.

IV – The alternative plea, alleging non-fulfilment of the conditions for recourse to Article 215 TFEU

A – Arguments of the parties

84. The alternative plea, raised by the Parliament in the event that the Court should consider, as I am proposing, that Article 215(2) TFEU constitutes the appropriate legal basis for the contested regulation, is subdivided into two limbs. The first limb relates to the alleged failure to fulfil the condition requiring a joint proposal by the High Representative and the Commission, and the second to the claim that no CFSP decision was taken prior to the contested regulation.

1. The claim that there was no proposal that complied with the Treaties

85. According to the Parliament, when the contested regulation was adopted on 22 December 2009, there was no Commission that could have legitimately submitted a joint proposal with the High Representative, since the term of office of the Commission appointed on 22 November 2004 expired on 31 October 2009 and the new Commission did not take office until 10 February 2010. Even if it had been acceptable, in the interests of the continuity of the work of that institution, for the Commission appointed in November 2004 to continue to perform certain tasks, its authority would have been confined to dealing with current business, that is to say routine decisions. It would not have been empowered to take a major political initiative amending the legal basis of a measure in such a way as to divest it of its legislative nature and to divest the Parliament and the national parliaments of any influence in this regard.

86. The Parliament considers that it cannot be argued that the proposal submitted by the Commission and the High Representative was merely the continuation of the proposal submitted by the Commission acting alone on 22 April 2009. Furthermore, the way in which the proposal was submitted was not in conformity with the role or the responsibilities of the High Representative, as laid down in the Treaty of Lisbon. It is inconceivable that a joint proposal as required under Article 215(2) TFEU could be substituted by a mere endorsement by the High Representative of an existing Commission proposal, adopted by that institution prior to the entry into force of the Treaty of Lisbon. Furthermore, the High Representative, as the person responsible for the CFSP, is required to provide an adequate statement of reasons for the joint proposal submitted.

87. The Council submits that, when the term of office of the Commission which was appointed in November 2004 expired on 31 October 2009, it remained in office pending the appointment of a new Commission, in order to ensure the necessary continuity in the institution’s work, as is provided for in recital 1 in the preamble to Decision 2010/80/EU of the European Council of 9 February 2010 appointing the European Commission. ( 27 ) The Parliament continued to deal with the Commission during the interim period from 1 November 2009 to 10 February 2010 as if it remained legitimately in existence.

88. The Council states that the contested regulation was adopted on the basis of the proposal for a regulation of 22 April 2009 endorsed by the High Representative on 14 December 2009. That proposal remained valid after the expiry of the Commission’s term of office on 31 October 2009. The only effect of the entry into force of the Treaty of Lisbon was to alter the procedure governing the adoption of the contested regulation.

89. The Council points out that, on 2 December 2009, the Commission presented to the Parliament and the Council a communication on the consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decision-making procedures, ( 28 ) which included an indicative list of the pending proposals which the Commission had presented before the entry into force of the Treaty of Lisbon and indicated the consequences of the entry into force of that treaty for each of the proposals. The proposal for a regulation of 22 April 2009 was mentioned in that list, together with an indication that its legal basis was to change from the former Articles 60 EC, 301 EC and 308 EC to Article 215 TFEU.

90. Even if it is accepted that the situation in which the Commission found itself is analogous to that provided for in Article 246, final paragraph, TFEU (voluntary resignation of all the Members of the Commission), the case-law does not support the conclusion that the Commission went beyond its current business. In paragraph 96 of its judgment in Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, ( 29 ) the General Court held that a decision on State aid adopted by the Commission after its members had collectively resigned, ‘did not constitute a new political initiative which thus exceeded the powers of a Commission that was restricted to dealing with current business’. If that was the conclusion in respect of a new decision adopted by the Commission during the period in question, the same conclusion must apply a fortiori in circumstances in which a pre-existing proposal remained pending. Furthermore, the question arises whether the limitation to dealing with current business laid down in Article 201, second paragraph, EC was applicable at all, given that the Parliament had not adopted a motion of censure on the Commission’s administration.

91. According to the Council, the joint proposal by the High Representative and the Commission was duly submitted. On 14 December 2009, the High Representative endorsed the proposal for a regulation of 22 April 2009. It was neither necessary nor possible for the High Representative to present a separate statement of reasons. Nor was it possible for him to make unilateral additions to the statement of reasons set out in the preamble to the proposal.

92. The arguments put forward by the Commission are broadly the same as those advanced by the Council. It states that its communication of 2 December 2009 was a purely legal and technical exercise involving no political discretion on its part. Furthermore, that exercise was indispensable for the purpose of enabling the European Union legislature to continue the pending legislative procedures after the entry into force of the Treaty of Lisbon. The Commission points out that no changes were made to the text of the proposal for a regulation of 22 April 2009 and that the High Representative endorsed that proposal on 14 December 2009, as required by Article 215 TFEU.

2. The claim that no CFSP decision was taken

93. According to the Parliament, the contested regulation does not contain any reference to a CFSP decision, even though such a decision is required under Article 215 TFEU. The preamble to that regulation refers to Common Position 2002/402, but this does not constitute a decision within the meaning of that provision. A common position adopted before the entry into force of the Treaty of Lisbon cannot be treated in the same way as such a decision.

94. The Council’s arguments that the legal effects of that common position should be maintained, in accordance with the Protocol (No 36) on transitional provisions, annexed to the EU Treaty and FEU Treaty, ( 30 ) and with what that institution calls the ‘principle of continuity of acts’, are irrelevant. There is nothing in that protocol or any principle of European Union law which provides that a common position may take the place of a CFSP decision. The Council also disregards the fact that such a decision is itself amenable to judicial review by a party having the requisite legal standing and that the Court could even prohibit the Council from adopting measures under Article 215 TFEU.

95. In any event, the contested regulation is vitiated by an irregularity in so far as it does not state the reasons on which it is based, as required under Article 296, second paragraph, TFEU.

96. The Council submits that Regulation No 881/2002, preceded by the adoption of Common Position 2002/402, defines the specific provisions and procedures necessary to give effect to the freezing of funds. Even though it was decided to amend that regulation following Kadi and Al Barakaat International Foundation v Council and Commission, by including in it provisions on due process, it was not necessary to amend Common Position 2002/402 or to adopt a new CFSP decision to that effect. Where a CFSP act requiring the adoption of restrictive measures already exists (and that act has not been repealed, annulled or amended), it cannot be required that a new CFSP decision be adopted under Chapter 2 of Title V of the EU Treaty. Such an approach would disregard the principle of continuity of acts enshrined in Article 9 of the Protocol (No 36).

97. The Council also submits that it does not follow from the fact that listed persons and entities may now bring an action for the annulment of CFSP decisions imposing restrictive measures on them that any amendment to an existing regulation must necessarily be preceded by the adoption of a new CFSP decision.

B – My assessment

98. I consider that the conditions under which the contested regulation was adopted are not contrary to the procedure laid down in Article 215(2) TFEU. The various points which the Parliament raises in support of its argument that that regulation is unlawful do not seem to me to be sufficient, in the light of the specific context of the entry into force of a new treaty, to establish infringement of Article 215(2) TFEU.

99. With regard, first, to the alleged absence of any proposal in compliance with the Treaties, I take the view that, even though the Commission’s work after the expiry of its term of office on 31 October 2009 was to be regarded as current business, this did not in any way prevent the Commission from, first, maintaining its proposal for a regulation of 22 April 2009 or, second, formally amending it by replacing the reference in it to the former legal basis with a reference to the new one. I would point out that where the former legal basis of a proposal could not simply be replaced with a new one, an account of the nature and scope of the measures concerned, the proposal was withdrawn. ( 31 )

100. As regards the need for a joint proposal by the High Representative and the Commission, it is clear the High Representative officially endorsed the proposal for a regulation of 22 April 2009 on 14 December 2009. Article 215 TFEU does not require the High Representative, who, it should be recalled, is a member of the College of Commissioners as Vice-President and member responsible for external relations, ( 32 ) to present a separate statement of reasons or to supplement that contained in the Commission’s proposal.

101. With regard, second, to the alleged absence of a CFSP decision, it is important to point out that, in accordance with Article 9 of the Protocol (No 36), the legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the EU Treaty prior to the entry into force of the Treaty of Lisbon are to be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.

102. The fact that the EU Treaty no longer provides for common positions but for decisions in matters relating to the CFSP does not have the effect of rendering common positions adopted under the EU Treaty, in the version in force prior to the Treaty of Lisbon, non-existent; if that were the case, Article 9 of the Protocol (No 36) would be divested of much of its effectiveness. For the same reason, the fact that the legal context in which CFSP decisions are now made is not exactly the same as that which previously governed common positions does not mean that those two categories of legal act cannot be treated in the same way for the purposes of the implementation of Article 215 TFEU. The reference in Article 215 TFEU to a decision adopted in accordance with Chapter 2 of Title V of the EU Treaty must therefore, if read in conjunction with Article 9 of the Protocol (No 36), necessarily extend to common positions adopted prior to the entry into force of the Treaty of Lisbon.

103. It follows that the second plea raised by the Parliament must also be rejected as unfounded.

V – Conclusion

104. In the light of all the foregoing considerations, I propose that the Court should: — dismiss the action; and — order the European Parliament to pay the costs.

( 1 ) Original language: French.

( 2 ) OJ 2009 L 342, p. 42 (‘the contested regulation’).

( 3 ) ‘The High Representative’.

( 4 ) ‘AFSJ’.

( 5 ) See Dashwood, A., ‘Article 47 TEU and the relationship between first and second pillar competences’, Law and Practice of EU External Relations, Cambridge University Press, 2008, p. 70, for whom ‘Article 40 TEU … makes clear that [Common Foreign and Security Policy] competences and the Union’s other competences are to be equally protected against each other’ (p. 100).

( 6 ) ‘The Security Council’.

( 7 ) OJ 2002 L 139, p. 4.

( 8 ) OJ 2002 L 139, p. 9.

( 9 ) Joined Cases C-402/05 P and C-415/05 P [2008] ECR I-6351.

( 10 ) ‘The Sanctions Committee’.

( 11 ) OJ 2001 L 344, p. 93.

( 12 ) Proposal for a Council Regulation amending Regulation No 881/2002 (COM(2009) 187 final, ‘the proposal for a regulation of 22 April 2009’).

( 13 ) ‘CFSP decisions’.

( 14 ) Case C-155/07 [2008] ECR I-8103.

( 15 ) Indeed the authors of the FEU Treaty took care to point out, in Article 352(4) TFEU, that that article ‘cannot serve as a basis for attaining objectives pertaining to the [CFSP] and any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union’.

( 16 ) See in particular Case C-548/09 P Bank Melli Iran v Council [2011] ECR I-11381, paragraph 66 and the case-law cited.

( 17 ) Similarly, in Case C-550/09 E and F [2010] ECR I-6213, the Court stated that ‘the interpretation of Council [Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70)] … implies that account must be taken of the wording and purpose of Resolution 1373 (2001), to which the third recital in the preamble to that regulation refers’ (paragraph 72 and the case-law cited).

( 18 ) Paragraphs 169 and 184.

( 19 ) See in this regard Dashwood, A., pp. 101 and 103; Van Elsuwege, P., ‘EU external action after the collapse of the pillar structure: in search of a new balance between delimitation and consistency’, Common Market Law Review, 2010, No 47, p. 987, in particular p. 1006, and Becker-Alon, S., ‘The Communitarian Dimension of the European Union’s Common Foreign and Security Policy’, Nomos, Baden-Baden, 2011, p. 250.

( 20 ) For a list of the most important documents in this category, see Auvret-Finck, J., ‘Politique étrangère et de sécurité commune – Lutte contre le terrorisme’, Jurisclasseur Europe, 2009, section 2612. See also Terpan, F., ‘La PESC et le terrorisme international’, La sécurité internationale entre rupture et continuité – Mélanges en l’honneur du professeur Jean-François Guilhaudis, Bruylant, Brussels, 2007, p. 581.

( 21 ) The ‘CSDP’.

( 22 ) See the penultimate sentence in the preamble to Resolution 1390 (2002).

( 23 ) See in this regard Articles 2(1) and 4 of Common Position 2002/402.

( 24 ) See in this regard Article 24(1), second subparagraph, TEU, which states that ‘the [CFSP] is subject to specific rules and procedures’.

( 25 ) COM(2011) 807 final.

( 26 ) See point 74 of this Opinion.

( 27 ) OJ 2010 L 38, p. 7.

( 28 ) COM(2009) 665 final.

( 29 ) Joined Cases T-228/99 and T-233/99 [2003] ECR II-435.

( 30 ) ‘The Protocol (No 36)’.

( 31 ) See Annex 2 to the Commission Communication of 2 December 2009.

( 32 ) See Article 18(4) TEU.