Democratic Scrutiny of EU Foreign Policy: From Juncker’s Election to the “Pirate Transfer Agreement” Judgment

Opinions may differ on what is the “most dangerous branch” in the European Union. However, at the moment the most ambitious institution regarding the expansion of its own powers is doubtlessly the European Parliament (EP). Following the first-time ever election of the European Commission President last month, a recent judgment of the European Court of Justice, also shows that even the Union’s “sovereignty-sensitive” Common Foreign and Security Policy (CFSP) is not immune to the Parliament’s advances.

Wielding the powerful mantra of “democratic legitimacy” (on the concept in the transnational context, see this recently published Special Report), the EP has a decades-long history of increasing its influence in European politics, starting from humble beginnings as a consultative assembly in the 1950s. In recent months, it could celebrate important victories by interpreting the new rules laid down in the post-Lisbon reform EU Treaties in its favor. The most prominent of these concerned the election, and no longer mere approval, of the new Commission President by the Parliament. In proposing Jean-Claude Juncker as the prevailing Spitzenkandidat of the EP elections in May, the European Council acquiesced to the Parliament, leaving the UK and Hungary outvoted, and setting an important precedent for the future.

This parliamentary pushing of the boundaries of its powers, bolstered by references to its democratic clout, is by no means confined to the internal affairs of the EU. The Parliament is also on the rise regarding the EU’s external policies. The Lisbon Treaty already granted it important new powers. For instance, all trade agreements (such as the TTIP with the US and similar agreements with external partners) now require the Parliament’s consent. Already in the past, as examples such as the SWIFT (regarding the transatlantic exchange of financial data) andACTA (“Anti-Counterfeiting Trade Agreement”) agreements show, the Parliament has not been averse to political showdowns in delaying or entirely blocking proposed international agreements.

Where the rules are not entirely clear – which is not uncommon following a round of EU treaty reform – the Union institutions are not averse to fighting it out at the European Court of Justice in Luxembourg. Here, even seemingly mundane and technical procedural aspects can be decisive, such as the requirement of one institution to keep the other “duly informed”. It is this latter aspect that helped Parliament bring home its latest victory.

In Case C-658/11 Parliament v. Council, the Parliament defeated the Council over a decision relating to the EU’s anti-piracy operation off the coast of Somalia. This is remarkable as it concerns a policy field from which the EP was traditionally largely excluded by the Member States. Instead, the latter, assembled in the Council, used to call all the shots here, with as little inference from the other EU institutions as possible.

Parliamentary prerogatives: No consent, no consultation, but information

The subject matter of Case C-658/11 concerned a decision adopted by the Council of the EU on the signing and conclusion of a treaty between the EU and the Republic of Mauritius on the conditions of transfer and detention of suspected pirates from the European Union-led naval force (EU NAVFOR, also known as Operation “Atalanta”) to Mauritius. The agreement, which has been provisionally applied since July 2011, is a measure taken in the broader framework of the EU’s anti-piracy operation in the Gulf of Aden and the Indian Ocean. This is the EU’sfirst-ever naval mission, which raises, apart from manifold security policy and geopolitical questions, also a number of legal-institutional issues for the EU. Agreements with regional states such as Mauritius include, for instance, guarantees for due process, humane treatment, and prohibit the use of the death penalty.

The EP had complained that it should either have consented to the decision to conclude the agreement, consulted about it or at least have been properly informed. It referred to this end to the new legal provisions on the conclusion of international agreements by the European Union (Article 218 of the Treaty on the Functioning of the European Union (TFEU)).

Regarding consent and consultation, the Parliament seems to have pushed its luck. According to the Court of Justice, neither is required if a measure is essentially about the CFSP, with other aspects, such as “judicial cooperation” or “development policy”, being merely “incidental”.

However, the Council still lost the case for failure to keep the Parliament duly informed. It was uncontested that the EP was only informed three months after the adoption of the decision and the signing of the agreement, and only 17 days after these acts had been published in the Official Journal of the EU. Moreover, according to the Court, the requirement to keep the Parliament “immediately and fully informed” applies across the board, including the otherwise shielded-off CFSP.

Making the point: Foreign policy, democratic scrutiny and “the people”

In arguably the most remarkable part of the judgment, the Court then proceeded to expound the democratic credentials of the Parliament. It stressed that the information requirement was necessary “to exercise democratic scrutiny of the European Union’s external action”. Moreover, the Court noted that “[t]hat rule is an expression of the democratic principles on which the European Union is founded” as well as “the reflection, at EU level, of the fundamental democratic principle that the people [sic] should participate in the exercise of power through the intermediary of a representative assembly”, which, as it turns out, now applies by all means also to the CFSP.

Taking these recent developments together, from the Lisbon Treaty to the election of the Commission President and its recent courtroom victory, the European Parliament has indeed grown into a force to be reckoned with not merely in the internal but also the external policies of the EU. Its wealth of new powers are now out of question. The new questions that arise now are: How will the EP use them? Does this mean special interests and short-sighted popularity stunts will hold sway of the Union’s external action and strategic direction? Or can it, as a “representative assembly” act as the democratic conscience of the EU in its international dealings and strive to uphold constitutional promises such as that of Article 21(2) of the Treaty on European Union – “to promote an international system based on stronger multilateral cooperation and good global governance”? Answers to that are bound to follow soon as the next crisis, institutional turf battle or court case is only a matter of time.

(For a more extensive legal assessment of the judgment in Case C-658/11, please visit EuropeanLawBlog.eu)

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