It is our pleasure to welcome a post by Marta Bo, Visiting Researcher at the University of Amsterdam Center for International Law. Marta’s post discusses a recent challenge to the validity of the EU-Mauritius transfer agreement, brought by the European Parliament to the European Court of Justice. Welcome, Marta!
In Case no. C-658-11 the European Parliament (EP) is requesting the Court of Justice of the European Union to annul Council Decision 2011/640/CFSP of 12 July 2011 on the agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates seized from the European Union Naval Force (EU NAVFOR) to the Republic of Mauritius.
In its first plea, the EP contests the legal basis of the EU-Mauritius transfer agreement which was adopted within the framework of the common foreign and security policy (CFSP). The adoption of Article 37 TEU as a legal basis entailed, from a procedural point of view, the application of Article 218 (5) and (6) TFEU which dispense the Council from seeking the consent of or consulting the EP when concluding agreements which relate solely to the CFSP. According to the EP the contested decision is invalid because it does not exclusively relate to CFSP, but is also linked to other fields, such as judicial cooperation in criminal matters and police cooperation, to which the ordinary legislative procedure applies. In its second plea, the EP claims that the Council has fallen short of complying with the obligation to immediately and fully inform it at all stages of the procedure (Article 218 (10) TFEU).
The EU-Mauritius transfer agreement is only one among several agreements (see here and here) on the transfer of suspected pirates that the EU has concluded with third States on the basis of EU Council Joint Action 2008/851/CFSP of 10 November 2008
EU Council Joint Action 2008/851/CFSP was explicitly adopted to put into effect UNSC Resolutions 1814 (2008), 1816 (2008) e 1838 (2008) calling, inter alia, for international cooperation to combat the threat to international peace and security constituted by the situation in Somalia. To this end, the Joint Action established EU NAVFOR – operation Atalanta, the first European Security and Defence Policy (ESDP) naval military operation. Its mandate (extended until December 2014) embraces: a) the protection of both World Food Programme vessels delivering food aid to the Somali population and, more generally, of vulnerable vessels cruising the so-called Area of Operation; b) the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast through the use of necessary measures, including the use of force; c) the arrest, detention and transfer of pirates in view of prosecution being brought under Article 12 .
Article 12 of the ‘Atalanta’ Joint Action specifically deals with adjudicative jurisdiction and is the legal basis for agreements between the EU and third States on the transfer of suspected pirates captured by EU NAVFOR, such as the one concluded with Mauritius. It indeed provides that in case of inability or unwillingness of the flag Member State or the third State participating in the operation, of the vessel which took them captive, suspected pirates shall be transferred to a Member State or any third State which wishes to exercise its jurisdiction; on the other hand, transfers to any third State are prohibited when the conditions agreed for the transfer are inconsistent with international human rights law.
It is against this background that Advocate General Bot in his Opinion delivered on 30 January 2014 assessed the content and objectives of the EU-Mauritius transfer agreement.
In proposing the dismissal of the first EP’s plea AG Bot asserted that transfer agreements are not only closely linked to the ‘Atalanta’ Joint Action, which comes under the CFSP, but they are essential to its implementation and effectiveness (para 71 of the Opinion). The Joint Action is a measure that should be situated in the context of the fight against Somali piracy in order to preserve international peace and security having due regards to human rights (paras. 83 and 114 of the Opinion). The close link between transfer agreements and the ‘Atalanta’ Joint Action results in the formers squarely falling within the aims of the EU’s external action and, in particular, within Article 21(2)(a)-(c) and (h) TEU, which set out objectives traditionally assigned to the CFSP. In addition, although transfer agreements contain measures similar to judicial cooperation in criminal matters and police cooperation, such traditional instruments of the Area of Freedom, Security and Justice could be mobilized in favor of objectives of the CFSP and be absorbed therein (para. 118 of the Opinion). In AG Bot’s view the transfer agreement relates exclusively to the CFSP within the meaning of Article 218(6) TFEU and therefore the contested decision was rightly based solely within the framework of the CFSD.
Although the Court of Justice does not have jurisdiction in matters related to the CFSP (Article 24(1) TEU), the AG claimed that the CFSP cannot completely escape the scrutiny of the EU judicature, because it must be able to assess the validity of the procedure adopted to conclude a treaty. AG Bot suggested that the second plea should also be dismissed in light of the fact that the obligation of the Council to inform the Parliament at all stages of the procedure is less stringent in CFSP procedures (where consent from or consultation of the Parliament is not required). Surprisingly, he argued that the Council complied with its obligation by informing the Parliament three months after the agreement was concluded.
It now remains to be seen whether the Court of Justice will follow AG Bot’s arguments. In case it won’t, what consequences will a ruling of annulment have for the EU transfer agreement with Mauritius? Will the annulment have any impact on the piracy trials ongoing before Mauritian courts?
Under Article 264 TFEU the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the Court. In brief, the Council will have to remedy the grounds on which the annulment was pronounced, which means that it will have to adopt the proper legal basis and procedure.
Since there are important reasons of legal certainty, especially with regards to ongoing piracy trials before Mauritian Courts, the Court of Justice may also want to exercise its discretion either to decide which of the effects of the annulled decision shall be considered as definitive or to maintain its effects until a new decision is founded on an appropriate legal basis (Article 264 TFEU). This would ensure that previous transfers of pirates to Mauritian courts are unaffected by the Court’s ruling.
Moreover, the adoption of the proper legal basis and procedure by the Council will also ensure that the EU avoids being in breach of its commitments under the agreement. Although the annulment of the EU internal act concluding the agreement cannot per se have any consequences with respect to Mauritius, it could impair EU capacity to comply with the obligations arising from the agreement, as a result of which the EU could incur international responsibility.
Indeed, the EU remains responsible under international law for the performance of the treaty and could not invoke its internal law as justification for its failure to perform the agreement (Article 27 VCLTIOs ). In addition, it could not invoke the fact that its consent to be bound by the agreement was invalid since it was expressed in violation of its internal rules regarding competence to conclude treaties, in order to avoid international responsibility (Article 46 VCLTIOs).
Although the VCLTIOs has not yet entered into force, the corresponding rules regarding Internal law and observance of treaties and Provisions of internal law regarding competence to conclude treaties contained in its sister Convention (Articles 27 and 46 VCLT) may be accepted as representing customary law, which is binding for the EU.
Therefore, in light of the importance of the security of legal relations and the irrelevance of internal questions regarding the procedure used for the conclusion of a treaty, the responsibility of the EU for the performance of the transfer agreement cannot be affected by the annulment of the Council decision.