European Parliament v Council of the European Union.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 24 June 2014

JUDGMENT OF THE COURT (Grand Chamber)

24 June 2014 ( *1 )

‛Action for annulment — Decision 2011/640/CFSP — Legal basis — Common foreign and security policy (CFSP) — Article 37 TEU — International agreement relating exclusively to the CFSP — Second subparagraph of Article 218(6) TFEU — Obligation to inform the Parliament immediately and fully — Article 218(10) TFEU — Maintenance of effects’

In Case C‑658/11,

ACTION for annulment under Article 263 TFEU, brought on 21 December 2011,

European Parliament, represented by R. Passos, A. Caiola and M. Allik, acting as Agents, with an address for service in Luxembourg,

applicant,

supported by:

European Commission, represented by M. Konstantinidis, R. Troosters and L. Gussetti, acting as Agents, with an address for service in Luxembourg,

intervener,

v

Council of the European Union, represented by F. Naert, G. Étienne, M. Bishop and G. Marhic, acting as Agents,

defendant,

supported by:

Czech Republic, represented by M. Smolek, E. Ruffer and D. Hadroušek, acting as Agents,

French Republic, represented by G. de Bergues, N. Rouam and E. Belliard, acting as Agents,

Italian Republic, represented by G. Palmieri, acting as Agent, and by P. Gentili, avvocato dello Stato, with an address for service in Luxembourg,

Kingdom of Sweden, represented by A. Falk, acting as Agent,

United Kingdom of Great Britain and Northern Ireland, represented by L. Christie and A. Robinson, acting as Agents, and by D. Beard QC and G. Facenna, Barrister,

interveners,

THE COURT (Grand Chamber),

composed of V. Skouris, President, K. Lenaerts, Vice-President, A. Tizzano (Rapporteur), M. Ilešič, T. von Danwitz and M. Safjan, Presidents of Chambers, J. Malenovský, E. Levits, A. Ó Caoimh, J.-C. Bonichot, A. Arabadjiev, D. Šváby, M. Berger, A. Prechal and E. Jarašiūnas, Judges,

Advocate General: Y. Bot,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 17 September 2013,

after hearing the Opinion of the Advocate General at the sitting on 30 January 2014,

gives the following

Judgment

1 By its action, the European Parliament seeks (i) annulment of Council Decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer (OJ 2011 L 254, p. 1; ‘the contested decision’, and ‘the EU-Mauritius Agreement’, respectively), and (ii) the maintenance of the effects of that decision.

Legal context

2 Title V of the EU Treaty contains a Chapter 2, entitled ‘Specific provisions on the common foreign and security policy’, in which Article 36 TEU provides: ‘The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament. The European 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 common foreign and security policy, including the common security and defence policy.’

3 Article 37 TEU, in the same chapter, is worded as follows: ‘The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.’

4 Article 218 TFEU reads as follows: ‘1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure. 2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them. 3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy [“CFSP”], shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team. ... 5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force. 6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement. Except where agreements relate exclusively to the [CFSP], the Council shall adopt the decision concluding the agreement: (a) after obtaining the consent of the European Parliament in the following cases: ... (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. ... (b) after consulting the European Parliament in other cases. ... ... 10. The European Parliament shall be immediately and fully informed at all stages of the procedure. ...’

5 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 Council Decision 2010/766/CFSP of 7 December 2010 (OJ 2010 L 327, p. 49; ‘Joint Action 2008/851’), is based on Article 14 EU, the third paragraph of Article 25 EU, and Article 28(3) EU.

6 Article 1 of Joint Action 2008/851, entitled ‘Mission’, provides, in paragraph 1: ‘The European Union … shall conduct a military operation in support of Resolutions 1814 (2008), 1816 (2008) and 1838 (2008) of the United Nations Security Council (UNSC), in a manner consistent with action permitted with respect to piracy under Article 100 et seq. of the United Nations Convention on the Law of the Sea signed in Montego Bay on 10 December 1982 (hereinafter referred to as the “United Nations Convention on the Law of the Sea”) and by means, in particular, of commitments made with third States, hereinafter called “Atalanta” in order to contribute to: — the protection of vessels of the [World Food Programme] delivering food aid to displaced persons in Somalia, in accordance with the mandate laid down in UNSC Resolution 1814 (2008), — the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, in accordance with the mandate laid down in UNSC Resolution 1816 (2008)’.

7 Article 2 of Joint Action 2008/851, entitled ‘Mandate’, provides: ‘Under the conditions set by applicable international law, in particular the United Nations Convention on the Law of the Sea, and by UNSC Resolutions 1814 (2008), 1816 (2008) and 1838 (2008), Atalanta shall, as far as available capabilities allow: ... (e) in view of prosecutions potentially being brought by the relevant States under the conditions in Article 12, arrest, detain and transfer persons suspected of intending, as referred to in Articles 101 and 103 of the United Nations Convention on the Law of the Sea, to commit, committing or having committed acts of piracy or armed robbery in the areas where it is present and seize the vessels of the pirates or armed robbers or the vessels caught following an act of piracy or an armed robbery and which are in the hands of the pirates or armed robbers, as well as the property on board; ...’

8 Article 10 of Joint Action 2008/851, entitled ‘Participation by third States’, is worded as follows: ‘1. Without prejudice to the decision-making autonomy of the [Union] or to the single institutional framework, and in accordance with the relevant guidelines of the European Council, third States may be invited to participate in the operation. ... 3. Detailed modalities for the participation by third States shall be the subject of agreements concluded in accordance with the procedure laid down in Article [37 TEU]. Where the [Union] and a third State have concluded an agreement establishing a framework for the latter’s participation in [Union] crisis management operations, the provisions of such an agreement shall apply in the context of this operation. ... 6. The conditions for the transfer to a State participating in the operation of persons arrested and detained, with a view to the exercise of jurisdiction of that State, shall be established when the participation agreements referred to in paragraph 3 are concluded or implemented.’

9 Under Article 12 of Joint Action 2008/851, entitled ‘Transfer of persons arrested and detained with a view to their prosecution’: ‘1. On the basis of Somalia’s acceptance of the exercise of jurisdiction by Member States or by third States, on the one hand, and Article 105 of the United Nations Convention on the Law of the Sea, on the other hand, persons suspected of intending, as referred to in Articles 101 and 103 of the United Nations Convention on the Law of the Sea, to commit, committing or having committed acts of piracy or armed robbery in Somali territorial waters or on the high seas, who are...