Case C‑263/14

European Parliament

v

Council of the European Union

‛(Action for annulment — Common foreign and security policy (CFSP) — Decision 2014/198/CFSP — 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 — Choice of legal basis — Obligation to inform the European Parliament immediately and fully at all stages of the procedure of negotiation and conclusion of international agreements — Maintenance of the effects of the decision in the event of annulment’

Summary — Judgment of the Court (Grand Chamber), 14 June 2016

1. European Union — Judicial review of the legality of the acts of the institutions — Acts adopted as part of the Common Foreign and Security Policy — Ambit of the review — Review of choice of legal basis

   (Art. 40 TEU; Art. 275, second para., TFEU)

2. Acts of the institutions — Choice of legal basis — Criteria — EU measure pursuing a twofold aim or having a twofold component — Reference to the main or predominant aim or component — Decision 2014/198 on the conclusion of the Agreement between the European Union and the United Republic of Tanzania — Objective to permit the transfer to that third State of persons detained as part of the EU military operation in Somalia — Adoption based solely on Article 37 TEU

   (Art. 37 TEU; Art. 218(6), second para., TFEU; Council Joint Action 2008/851, Art. 12; Council Decision 2014/198/CFSP)

3. International agreements — European Union Agreements — Negotiation and conclusion — Parliament’s right to be informed — Scope — Agreements with respect to common foreign and security policy

   (Art. 21(3) TEU; Art. 218(10) TFEU)

4. Common foreign and security policy — International agreements — Agreement between the European Union and the United Republic of Tanzania, in the context of the EU military operation in Somalia on the conditions of transfer of suspected pirates and associated seized property — Adoption of the decision on the signature of the agreement on behalf of the European Union in breach of the Parliament’s right to be informed — Not permissible — Annulment

   (Art. 218(10) TFEU; Council Decision 2014/198/CFSP)

1.  As regards acts adopted on the basis of a provision relating to the Common Foreign and Security Policy, 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 para. 42)

2.  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. If an examination of that act 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, so 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.

   As regards the Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer, from the European Union-led naval force ((EUNAVFOR), of suspected pirates and associated seized property, that agreement was concluded pursuant to Article 12 of Joint Action 2008/851 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, which falls within the scope of the Common Foreign and Security Policy (CFSP), in order to permit the transfer, in the framework of the European Union military operation in Somalia (Operation Atalanta), of persons arrested and detained by EUNAVFOR, together with property seized, to a third State that is willing to exercise jurisdiction over those persons and that property. That agreement is intimately linked to Operation Atalanta, and consequently, were there to be no such operation, that agreement would be devoid of purpose. Since the existence of the Agreement between the European Union and the United Republic of Tanzania is merely ancillary to the EUNAVFOR action, that agreement will be rendered devoid of purpose as soon as that force ceases its activities. In that regard, the actions undertaken by that naval force cannot be treated as equivalent to actions of the judicial or police authorities of the Member States, since those actions take place exclusively within the framework of a specific operation that falls within the scope of the CFSP, to the performance of which those actions are inseparably linked. 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. Since that agreement falls predominantly within the scope of the CFSP, and not within the scope of judicial cooperation in criminal matters or police cooperation, the European Union decision on the signature and conclusion of that agreement 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.

   (see paras 43, 44, 48, 51, 53, 55)

3.  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 negotiating and concluding an international agreement, including agreements relating exclusively to the Common Foreign and Security Policy (CFSP). 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.

   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. In that regard, 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. 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.

   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. 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. 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 paras 68-72)

4.  Where a decision of the Council on the signature and conclusion of an agreement between the European Union and a third State within the scope of the Common Foreign and Security Policy (CFSP) was adopted without the Parliament having been immediately and fully informed at all stages of the procedure in accordance with Article 218(10) TFEU and without the Parliament having been in a position to exercise the right of scrutiny that the Treaties have conferred on it with respect to the CFSP and, when appropriate, to state its position with respect to, in particular, the correct legal basis on which the act at issue should be based, that decision must be annulled. 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.

   In that regard, while, under Article 218(10) TFEU, the Parliament must be informed at all stages of the procedure provided for in Article 281, the fact that its participation in the negotiation and conclusion of agreements falling exclusively within the scope of the CFSP is specifically excluded means that that information requirement does not extend to stages that are part of the internal preparatory process within the Council. That said, the requirement to inform the Parliament cannot be limited solely to stages in the procedure, but extends also to the intermediate results reached by the negotiations. Accordingly, that information requirement makes it necessary that the Council should communicate to it the text of the draft agreement and the text of the draft decision approved by the Council’s Foreign Relations Counsellors who are responsible for the negotiations, when the text of those drafts was communicated to the authorities of the Third State concerned with a view to the conclusion of the agreement. Further, 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, the existence of agreements concluded with other States of which the Parliament might have knowledge is, for that purpose, of no relevance.

   (see paras 77, 78, 84)