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From ‘Don’t Mention the Titanium Dioxide Judgment’ to ‘I Mentioned it Once, But I Think I Got Away with it All Right’: Reflections on the Choice of Legal Basis in EU External Relations after the Legal Basis for Restrictive Measures Judgment
Published online by Cambridge University Press: 27 October 2017
Abstract
This chapter examines the choice of legal basis in EU external relations post-Lisbon in the light of the judgment of the Court of Justice in the Legal Basis for Restrictive Measures case. Before reaching the conclusion that the regulation at issue there was rightly based on Article 215(2) of the Treaty on the Functioning of the European Union (TFEU) and rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU, the Court made a number of important observations on the principles to be followed when choosing a legal basis and recalled some of its earlier case law, in particular Titanium Dioxide and its progeny. This chapter reflects upon the application of those principles in a post-Lisbon framework.
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References
1 Case C-130/10 Parliament v Council [2012] ECR I-0000 (hereinafter ‘Legal Basis for Restrictive Measures ‘ or ‘LBRM ‘).
2 [2009] OJ L346/42.
3 Regulation (EC) No 881/2002 of 27 May 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 [2002] OJ L139/9.
4 Recital 4 in the preamble to Regulation 1286/2009. See Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.
5 Note that on 17 June 2011, the UN Security Council decided to split the Taliban and Al-Qaida sanctions regimes by adopting UN Doc S/RES/1988 (2011) on threats to international peace and security caused by terrorist acts and UN Doc S/RES/1989 (2011) on threats to international peace and security caused by terrorist acts, setting up the Security Council Committee established pursuant to resolution 1988 (2011) and the Security Counil Committe pursuant to resolutions 1267 (1999) and 1989 (2011) concerning AI-Qaida and associated individuals and entities, respectively.
6 Art 294 TFEU.
7 Case C-300/89 Commission v Council [1991] ECR I-2867 (hereinafter ‘Titanium Dioxide ‘).
8 LBRM (n 1) [50]–[53].
9 Ibid [54].
10 In Case T-85/09 Kadi v Commission [2010] ECR II-5177, the General Court annulled Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 [2008] OJ L322/25 for not guaranteeing the respect of the rights of the defence insofar as it concerned Mr Kadi. The Court of Justice dismissed the appeals to this judgment in Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council and UK v Kadi [2013] ECR I-0000, contrary to what AG Bot had proposed in his Opinion of 19 March 2013. On 5 October 2012, the UN Security Council Al-Qaida Sanctions Committee removed the name of Mr Qadi (sic) from the Al-Qaida Sanctions List: UN Doc SC/10785. Subsequently, Commission Implementing Regulation (EU) No 933/2012 of 11 October 2012 amending for the 180th time Council Regulation (EC) No 881/2002 [2012] OJ L278/11 deleted his name under the heading ‘Natural persons’ from Annex I to Council Regulation (EC) No 881/2002.
11 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 [2002] OJ L139/4.
12 LBRM (n 1) [67]–[71].
13 Ibid [72]–[78].
14 Ibid [45]–[46].
15 Titanium Dioxide (n 7) [17]–[21]. The Court also referred to Case C-155/07 Parliament v Council [2008] ECR I-8103 (hereinafter ‘Community Guarantee to the EIB’) [37].
16 As recalled in LBRM (n 1) [42]–[44]. Cf also the recent exposition application of this case law in the Opinion of AG Kokott in Case C-137/12 Commission v Council [2013] ECR I-0000 [52]–[76].
17 In Case T-529/09 In ‘t Veld v Council [2012] ECR II-0000 [49]–[50], the General Court deduced from this case law that ‘the mere fear of disclosing a disagreement within the institutions regarding the legal basis of a decision authorising the opening of negotiations on behalf of the European Union’ was not a sufficient basis for concluding that the protected public interest in the field of international relations within the sense of the third indent of art 4(1)(a) of Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43 may be undermined. The appeal against that judgment is pending: Case C-350/12 P Council v In ‘t Veld [2012] OJ C303/16.
18 Community Guarantee to the EIB (n 15) [34]–[36].
19 Case C-178/03 Commission v Parliament and Council [2006] ECR I-107 (hereinafter ‘Rotterdam Convention II ‘). See also C-94/03 Commission v Council [2006] ECR I-1 (hereinafter ‘Rotterdam Convention I’ ); Koutrakos, P, ‘Annotation on Case C-94/03 Commission v Council and Case C-178/03 Commission v Parliament and Council ’ (2007) 44 CML Rev 171–94Google Scholar.
20 Regulation (EC) No 304/2003 of 28 January 2003 concerning the export and import of dangerous chemicals [2003] OJ L63/1.
21 Signed by the European Community on 11 September 1998 and approved on the latter’s behalf by Council Decision 2003/106/EC of 19 December 2002 [2003] OJ L63/27.
22 Ex art 133(2) and (4) TEC.
23 Ex art 251 TEC.
24 Opinion of AG Kokott in Rotterdam Convention II (n 19) point 60.
25 Ibid.
26 See the Opinion of AG Poiares Maduro in Case C-411/06 Commission v Parliament and Council [2009] ECR I-7585 (hereinafter ‘Basel Convention’) point 6.
27 Case C-166/07 Parliament v Council [2009] ECR I-7135 (hereinafter ‘International Fund for Ireland’ or ‘IFI’).
28 Council Regulation (EC) No 1968/2006 of 21 December 2006 concerning Community financial contributions to the International Fund for Ireland (2007–2010) [2006] OJ L409/86.
29 Opinion in IFI (n 27) point 94.
30 IFI (n 27) [69].
31 See, to that effect, the Opinion of AG Tesauro in Titanium Dioxide (n 7) point 11. Compare, however, the Opinion of AG Lenz in Case 165/87 Commission v Council [1988] ECR 5545, point 26.
32 Community Guarantee to the EIB (n 15) [34], [37], [76] and [78]–[79].
33 See, eg, Corthaut, T, ‘Case C-166/07, European Parliament v Council of the European Union, Judgment of the Court of Justice ([Fourth] Chamber) of 3 September 2009, [2009] ECR I-7135’ (2011) 48 CML Rev 1271, 1279–80Google Scholar.
34 Opinion in IFI (n 27) point 67.
35 Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund [2002] OJ L311/3.
36 Council Decision 87/327/EEC of 15 June 1987 adopting the European Community Action Scheme for the Mobility of University Students (Erasmus) [1987] OJ L166/20.
37 Compare with ex art 150 TEC and current art 166 TFEU.
38 Case 242/87 Commission v Council [1989] ECR 1425 [37].
39 Regulation (EU) No 1232/2010 of 15 December 2010 concerning European Union financial contributions to the International Fund for Ireland (2007–2010) [2010] OJ L346/1.
40 The Court referred in particular to Rotterdam Convention II (n 19) [58] and [59], and Community Guarantee to the EIB (n 15) [76]–[79].
41 LBRM (n 1) [46].
42 Ibid [81].
43 Case 138/79 Roquette Frères v Council [1980] ECR 3333 [33].
44 Titanium Dioxide (n 7) [20].
45 LBRM (n 1) [82].
46 Kadi and Al Barakaat (n 4) [234]–[235].
47 Corthaut (n 33) 1290.
48 Opinion of AG Poiares Maduro in Basel Convention (n 26) point 6, note 5.
49 The original French reads ‘un vice purement formel, donc inopérant’. The English translation is somewhat unfortunate, in that ‘without practical effect’ would probably be a better translation of ‘inopérant’ than ‘of no import’ in this context.
50 Opinion of AG Poiares Maduro in Basel Convention (n 26) point 6, note 5.
51 Not to mention the importance of the choice of legal basis for informing the contracting partners of the EU about the horizontal and vertical division of competences within the Union. See Rotterdam Convention I (n 19) [55]. For the UK and Ireland, an additional important consideration is the choice between a legal basis falling within or outside their AFSJ derogation (Protocol No 21 on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice [2012] OJ C326/295): see, eg, Case C-431/11 UK v Council [2013] ECR I-0000, in which the UK challenged the use of art 48 TFEU as the substantive legal basis of Council Decision 2011/407/EU of 6 June 2011 on the position to be taken by the European Union within the EEA Joint Committee concerning an amendment to Annex VI (Social Security) and Protocol 37 to the EEA Agreement [2011] OJ L182/12. Instead, the UK proposed art 79(2) TFEU, which falls within the AFSJ and entails an opt-out clause for the UK and Ireland. The Court, however, held art 48 TFEU to be the correct legal basis, and dismissed the action.
52 Art 5(3) TEU. See Lenaerts, K, ‘EU Federalism in 3-D’ in Cloots, E, De Baere, G and Sottiaux, S (eds), Federalism in the European Union (Oxford, Hart Publishing, 2012) 25 Google Scholar.
53 Klamert, M, ‘Conflicts of Legal Basis: No Legality and No Basis But a Bright Future under the Lisbon Treaty?’ (2010) 35 European Law Review 497, 514–15Google Scholar.
54 Art 5(2) TEU. See further De Baere, G, Constitutional Principles of EU External Relations (Oxford, Oxford University Press, 2008) 9–11CrossRefGoogle Scholar.
55 See, eg, Case C-370/12 Pringle [2012] ECR I-0000 [120]–[121].
56 See in this regard Protocol No 1 on the Role of National Parliaments in the European Union [2012] OJ C326/203 and Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality [2012] OJ C326/206.
57 See Lenaerts, K and Van Nuffel, P, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 743–44Google Scholar, para 20-013.
58 Ex arts 42, 47(2) and 151(5) TEC.
59 See, as regards the possible combination of arts 114 and 352 TFEU, Gutman, K, The Constitutionality of European Contract Law: A Comparative Analysis (Oxford, Oxford University Press, forthcoming 2014)CrossRefGoogle Scholar.
60 Lenaerts (n 52) 30.
61 The preamble to Regulation 881/2002 (n 3) indicates that it was adopted ‘Having regard to the opinion of the European Parliament’, but does not indicate the procedure followed in the Council.
62 cfDashwood, A, ‘Dual-Use Goods: (Mis)Understanding Werner and Leifer ’ in Arnull, A, Eeckhout, P and Tridimas, T (eds), Continuity and Change in EU Law. Essays in Honour of Sir Francis Jacobs (Oxford, Oxford University Press, 2008) 359 Google Scholar, who points out that the choice of then art 113 TEC (which became ex art 133 TEC after Amsterdam and art 207 TFEU after Lisbon) as the legal basis for sanctions before the introduction of ex arts 60 and 301 TEC was partly dictated by the simplicity of the procedure (QMV on a proposal by the Commission) because there would normally be a need for urgency.
63 That is also why, as an exception to the unanimity rule in the Council for CFSP measures, art 31(2) TEU provides for the Council to act by QMV when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union’s strategic interests and objectives, as referred to in art 22(1) TEU and when adopting any decision implementing a decision defining a Union action or position. In both cases, the basic decision will have been adopted by unanimity.
64 De Baere (n 54) 275.
65 See in this regard the Opinion of AG Cruz Villalón in Joined Cases C-478/11 P, C-479/11 P, C-480/11 P, C-481/11 P and C-482/11 P Gbagbo and others v Council [2013] ECR I-0000, points 48–52. See further De Baere, G, ‘European Integration and the Rule of Law in Foreign Policy’ in Dickson, J and Eleftheriadis, P (eds), Philosophical Foundations of European Union Law (Oxford, Oxford University Press, 2012) 354–83CrossRefGoogle Scholar.
66 See art 275 TFEU and the interpretation of this provision in Case T-509/10 Manufacturing Support & Procurement Kala Naft v Council [2012] ECR II-0000 [32]–[39]. The appeal is currently pending: Case C-348/12 P Council v Manufacturing Support & Procurement Kala Naft [2012] OJ C287/27.
67 Opinion of AG Bot in LBRM (n 1) point 71.
68 LBRM (n 1) [83]–[84].
69 Lenaerts and Van Nuffel (n 57) 124, para 7–19.
70 IFI (n 27) [41] and the case law cited therein.
71 See Lenaerts (n 52) 30–31.
72 Case C-91/05 Commission v Council [2008] ECR I-3651 (hereinafter ‘Small Arms and Light Weapons’ or ‘SALW’).
73 [2004] OJ L359/65.
74 Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union’s contribution to combating the destabilizing accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP [2002] OJ L191/1.
75 Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 [2000] OJ L317/3.
76 SALW (n 72) [76]. See critically Van Vooren, B, ‘EU-EC External Competences after the Small Arms Judgment’ (2009) 14 European Foreign Affairs Review 22–24Google Scholar; Van Vooren, B, ‘The Small Arms Judgment in an Age of Constitutional Turmoil’ (2009) 14 European Foreign Affairs Review 231 and 248Google Scholar; Hillion, C and Wessel, R, ‘Competence Distribution in EU External Relations after Ecowas: Clarification or Continued Fuzziness?’ (2009) 46 CML Rev 551, 585Google Scholar; and Heliskoski, J, ‘Small Arms and Light Weapons within the Union’s Pillar Structure: An Analysis of Article 47 of the EU Treaty’ (2008) 33 European Law Review 898–912 Google Scholar.
77 Opinion in SALW (n 72) note 76.
78 As suggested by Eeckhout, P, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 184 CrossRefGoogle Scholar. cfWessel, R, ‘Cross-Pillar Mixity: Combining Competences in the Conclusion of EU International Agreements’ in Hillion, C and Koutrakos, P (eds), Mixed Agreements Revisited (Oxford, Hart Publishing, 2010) 30 Google Scholar.
79 See also Van Ooik, R, ‘Cross-Pillar Litigation before the ECJ: Demarcation of Community and Union Competences’ (2008) 4 European Constitutional Law Review 414–16CrossRefGoogle Scholar.
80 De Baere (n 54) 296–97.
81 The origins of this provision lie in art 32 of the Single European Act [1987] OJ L169/1, which provided that ‘nothing in this Act shall affect the Treaties establishing the European Communities or any subsequent Treaties and Acts modifying and supplementing them’.
82 Opinion in SALW (n 72) point 189.
83 LBRM (n 1) [55]–[58].
84 Ibid [59].
85 Ibid [60]–[61].
86 Opinion in LBRM (n 1) points 62–63.
87 Ibid point 64.
88 Van Vooren, ‘The Small Arms Judgment in an Age of Constitutional Turmoil’ (n 76) 245. Cf Hillion and Wessel (n 76) 582–84.
89 Opinion of AG Bot in LBRM (n 1) point 77.
90 LBRM (n 1) [62]–[63].
91 See, eg, the ninth recital in the preamble to UN Doc S/RES/1390 (2002) on Afghanistan.
92 LBRM (n 1) [64]–[66]. See also the Opinion of AG Bot, point 70, who had argued that it was not appropriate to view the relationship between arts 75 and 215 TFEU as being that of lex specialis and lex generalis.
93 Compare Eeckhout (n 78) 169, who advocates a nuanced approach.
94 Klamert (n 53) 505–06.
95 Case C-268/94 Portugal v Council [1996] ECR I-6177 [39] (in casu development cooperation); see Van Vooren, ‘The Small Arms Judgment in an Age of Constitutional Turmoil’ (n 76) 246.
96 Dashwood, A, ‘Article 47 TEU and the Relationship between First and Second Pillar Competences’ in Dashwood, A and Maresceau, M (eds), Law and Practice of EU External Relations. Salient Features of a Changing Landscape (Cambridge, Cambridge University Press, 2008) 101 CrossRefGoogle Scholar. Compare Corthaut, T, ‘An Effective Remedy for All? Paradoxes and Controversies in Respect of Judicial Protection in the Field of the CFSP under the European Constitution’ (2005) 12 Tilburg Foreign Law Review 110, 119–20CrossRefGoogle Scholar.
97 LBRM (n 1) [68] and [70].
98 See, eg, Emiliou, N, ‘Opening Pandora’s Box: The Legal Basis of Community Measures before the Court of Justice’ (1994) 19 European Law Review 488, 499Google Scholar. See also the suggestion in Dashwood, A, ‘The Law and Practice of CFSP Joint Actions’ in Cremona, M and de Witte, B (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 76 Google Scholar.
99 Klamert (n 53) 505.
100 Cremona, M, ‘Balancing Union and Member State Interests: Opinion 1/2008, Choice of Legal Base and the Common Commercial Policy under the Treaty of Lisbon’ (2010) 35 European Law Review 678, 688–91Google Scholar.
101 See, eg, M Cremona, ‘Defining Competence in EU External Relations: Lessons from the Treaty Reform Process’ in Dashwood and Maresceau (n 96) 45–46.
102 Klamert (n 53) 514–15; Van Elsuwege, P, ‘EU External Action after the Collapse of the Pillar Structure: In Search of a New Balance between Delimitation and Consistency’ (2010) 47 CML Rev 987, 1005Google Scholar.
103 LBRM (n 1) [47].
104 Ibid [48].
105 Cremona (n 101) 45.
106 See, for some suggestions, Eckes, C, ‘EU Counter-Terrorist Sanctions against Individuals: Problems and Perils’ (2012) 17 European Foreign Affairs Review 113, 120–23Google Scholar.
107 Opinion in LBRM (n 1) point 82.
108 UN Doc S/RES/1373 (2001) on threats to international peace and security caused by terrorist acts. See also Van Elsuwege, P, ‘The Interface between the Area of Freedom, Security and Justice and the Common Foreign and Security Policy of the European Union: Legal Constraints to Political Objectives’ in Holzhacker, R and Luif, P (eds), Freedom, Security, and Justice in the European Union: Internal and External Dimensions of Increased Cooperation after the Lisbon Treaty (New York, Springer, 2013) 119–35Google Scholar.
109 Common Position 2001/931/CFSP on the application of specific measures to combat terrorism [2001] OJ L344/93.
110 Lastly amended pre-Lisbon by Council Common Position 2009/468/CFSP of 15 June 2009 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2009/67/CFSP [2009] OJ L151/45. Eckes (n 106) 119 notes that the reason for this was the exchange of information taking place between the Member States under the then third pillar.
111 See, most recently, Council Decision 2013/395/CFSP of 25 July 2013 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2012/765/CFSP [2013] OJ L201/57.
112 See, eg, Council Decision 2012/308/CFSP on the accession of the European Union to the Treaty of Amity and Cooperation in Southeast Asia [2012] OJ L154/1, which is based on a joint legal basis of arts 31(1) and 37 TEU and arts 209, 212 and 218(6)(a) and (8), second subparagraph, TFEU.
113 See Van Elsuwege (n 102) 1008.
114 See Sharpston, E and De Baere, G, ‘The Court of Justice as a Constitutional Adjudicator’ in Arnull, A, Barnard, C, Dougan, M, and Spaventa, E (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 123–50Google Scholar, on which the present chapter builds.
115 Case C-658/11 Parliament v Council [2012] OJ C58/6, pending.
116 On the basis of Art 37 TEU (which provides that the Union may conclude agreements with one or more States or international organisations in areas covered by the CFSP), in combination with Art 218(5) and (6) TFEU.
117 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 [2011] OJ L254/1.
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