European Parliament v Council of the European Union.
Date: 2014-06-24
43. It should be noted at the outset that the choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure. If examination of a measure reveals that it pursues two aims or that it has two components, and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant aim or component. If, on the other hand, a measure simultaneously pursues a number of objectives, or has several components, which are inseparably linked without one being incidental to the other, so that various provisions of the Treaty are applicable, such a measure will have to be founded, exceptionally, on the various corresponding legal bases (see, to that effect, Case C‑130/10 Parliament  v Council EU:C:2012:472, paragraphs 42 to 44).
51. In those circumstances, it should be borne in mind that the Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its objectives and the context in which it occurs (see, to that effect, Case C‑466/07 Klarenberg EU:C:2009:85, paragraph 37, and Case C‑84/12 Koushkaki  EU:C:2013:862, paragraph 34).
52. As regards the objectives of Article 218 TFEU, it must be noted that, 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.
53. 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.
55. As may be inferred in particular from Article 218(6)(a)(v) TFEU, that distinction is designed to reflect externally the division of powers between 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 (see, to that effect, Parliament  v Council EU:C:2012:472, paragraph 82).
56. Thus, as the Advocate General noted in essence in points 30 to 32 of his Opinion, 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.
57. 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 (see 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.
69. As regards, first of all, the question of the Court’s jurisdiction to rule on the second plea, it must be noted, as the Council submits, that 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 CFSP or with respect to acts adopted on the basis of those provisions.
70. Nevertheless, the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU 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.
71. In this instance it must be noted that, although the contested decision 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.
72. However, as stated in paragraph 52 of the present judgment, 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.
73. 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.
74. The Court therefore has jurisdiction to rule on the second plea.
79. That finding is not called into question by the Council’s argument that the contested decision had in any event been published in the Official Journal of the European Union , and therefore the Parliament had been in a position to take note of it. In fact, such a publication is prescribed in Article 297 TFEU and satisfies the publicity requirements to which an EU act is subject if it is to enter into force, whereas 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.
80. Lastly, as regards the consequences of infringement of Article 218(10) TFEU in terms of the validity of the contested decision, it should be noted that 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.
81. 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 (see, to that effect, Case 138/79 Roquette Frères  v Council EU:C:1980:249, paragraph 33, and Parliament  v Council  EU:C:2012:472, paragraph 81).
83. Admittedly, as noted in paragraph 55 of the present judgment, the role which the Treaty of Lisbon has conferred on the Parliament in relation to the CFSP remains limited.
84. 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.
85. 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.
86. 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.
90. It must be acknowledged that annulment of the contested decision without maintenance of its effects would be liable 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.
91. Consequently, the Court must exercise the power conferred on it by the second paragraph of Article 264 TFEU and maintain the effects of the contested decision which is annulled by the present judgment.
Costs