European Parliament v Council of the European Union.
Date: 2016-06-14
42


As regards acts adopted on the basis of a provision relating to the CFSP, it is the task of the Court to ensure, in particular, under the first clause of the second subparagraph of Article 275 TFEU and under Article 40 TEU, that the implementation of that policy does not impinge upon 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’s competences under the FEU Treaty. The choice of the appropriate legal basis of a European Union act has constitutional significance, since to proceed on an incorrect legal basis is liable to invalidate such an act, particularly where the appropriate legal basis lays down a procedure for adopting acts that is different from that which has in fact been followed (see, to that effect, Opinion 2/00, of 6 December 2001, EU:C:2001:664, paragraph 5).
43


In accordance with settled case-law, the choice of the legal basis of a European Union act, including one adopted in order to conclude an international agreement such as that at issue in this case, must rest on objective factors amenable to judicial review, which include the aim and content of that measure (see, to that effect, judgments of 26 March 1987, Commission v Council, 45/86, EU:C:1987:163, paragraph 11, and of 11 June 1991, Commission v Council, ‘Titanium dioxide’,C‑300/89, EU:C:1991:244, paragraph 10; Opinion 2/00 of 6 December 2001, EU:C:2001:664, paragraph 22, and judgment of 19 July 2012, Parliament v Council, C‑130/10, EU:C:2012:472, paragraph 42).
44


If an examination of a European Union measure reveals that it pursues a twofold purpose or that it comprises two components and if one of these is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. Exceptionally, if it is established, however, that the act simultaneously pursues a number of objectives, or has several components, which are inextricably linked without one being incidental to the other, such that various provisions of the Treaty are applicable, such a measure will have to be founded on the various legal bases corresponding to those components (see, to that effect, judgments of 10 January 2006, Commission v Parliament and Council, C‑178/03, EU:C:2006:4, paragraphs 42 and 43, and of 24 June 2014, Parliament v Council , C‑658/11, EU:C:2014:2025, paragraph 43).
55


Since the Agreement falls predominantly within the scope of the CFSP, and not within the scope of judicial cooperation in criminal matters or police cooperation, the contested decision could legitimately be based on Article 37 TEU alone. Consequently, its adoption in accordance with the procedure laid down in the first clause of the second subparagraph of Article 218(6) TFEU was correct.
68


In accordance with the Court’s case-law, the obligation imposed by Article 218(10) TFEU, under which the Parliament is to be ‘immediately and fully informed at all stages of the procedure’ for negotiating and concluding international agreements, applies to any procedure for concluding an international agreement, including agreements relating exclusively to the CFSP (judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 85). Article 218 TFEU, in order to satisfy the requirements of clarity, consistency and rationalisation, lays down a single procedure of general application concerning the negotiation and conclusion of international agreements by the European Union in all the fields of its activity, including the CFSP which, unlike other fields, is not subject to any special procedure (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraphs 52 and 72).
69


While, admittedly, the role conferred on the Parliament in relation to the CFSP remains limited, since the Parliament is excluded from the procedure for negotiating and concluding agreements relating exclusively to the CFSP, the fact remains that the Parliament is not deprived of any right of scrutiny in respect of that European Union policy (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraphs 83 and 84).
70


In that regard, it must be borne in mind that participation by the Parliament in the legislative process is the reflection, at Union level, of a fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly (see, to that effect, judgments of 29 October 1980, Roquette Frères v Council, 138/79, EU:C:1980:249, paragraph 33; of 11 June 1991, Titanium dioxide, C‑300/89, EU:C:1991:244, paragraph 20, and 19 July 2012, Parliament v Council, C‑130/10, EU:C:2012:472, paragraph 81). As regards the procedure for negotiating and concluding international agreements, the information requirement laid down in Article 218(10) TFEU is the expression of that democratic principle, on which the European Union is founded (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 81).
71


The aim of that information requirement is, inter alia, to ensure that the Parliament is in a position to exercise democratic control over the European Union’s external action and, more specifically, to verify that the choice made of the legal basis for a decision on the conclusion of an agreement was made with due regard to the powers of the Parliament (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 79). In that regard, while the purpose of the requirement to inform the Parliament fully and immediately is not to enable the Parliament to participate in the negotiation and conclusion of agreements concerning the CFSP, that requirement allows it, in addition to undertaking a check of the appropriate legal basis for measures adopted as part of the CFSP, to exercise its own powers with full knowledge of the European Union’s external action as a whole.
72


Indeed, the European Union must ensure, in accordance with Article 21(3) TEU, consistency between the different areas of its external action, and the duty to inform which the other institutions owe to the Parliament under Article 218(10) TFEU contributes to ensuring the coherence and consistency of that action (see, by analogy, as regards the cooperation between the EU institutions and the Member States, judgment of 2 June 2005, Commission v Luxembourg, C‑266/03, EU:C:2005:341, paragraph 60; Opinion 1/08, of 30 November 2009, EU:C:2009:739, paragraph 136, and judgment of 20 April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraph 75).
78


Further, in this case the Council provided no information to the Parliament on the progress of the negotiations that preceded the conclusion of the EU-Tanzania Agreement, except by sending the letter of 22 March 2010 advising the Parliament of the opening of those negotiations. Since the Parliament’s exercise of its right of scrutiny is conceivable only by reference to the content of the contemplated agreement itself, and not in relation to that of other agreements which might, in certain cases, display similar characteristics (see, by analogy, judgment of 6 November 2008, Parliament v Council, C‑155/07, EU:C:2008:605, paragraph 74), the existence of agreements concluded with other States of which the Parliament might have knowledge is, for that purpose, of no relevance. That being the case, the Council’s argument that the Parliament was, by reason of the existence of such similar earlier agreements, sufficiently informed of the conduct of the negotiations that led to the EU-Tanzania Agreement must be rejected.
80


As the Court has previously stated, the publication of the decision concerning the signature and conclusion of an agreement in the Official Journal of the European Union is not capable of remedying an infringement of Article 218(10) TFEU. Such publication is prescribed in Article 297 TFEU and satisfies the publicity requirements to which a European Union 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 particularly, to verify that its powers are respected specifically as a result of the choice of legal basis for a decision on the conclusion of an agreement (judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 79).
84


Since the Parliament was not immediately and fully informed at all stages of the procedure in accordance with Article 218(10) TFEU, it was not in a position to exercise the right of scrutiny conferred on it by the Treaties with regard to the CFSP and, where appropriate, to state its position with respect to, in particular, the correct legal basis on which the act at issue should be based. Disregard for that information requirement, in those circumstances, is detrimental to the ability of the Parliament to perform its duties in the area of the CFSP and therefore constitutes an infringement of an essential procedural requirement (judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 86).