CYIL 2012

DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… Moreover, the substance of any measure cannot be detached from the procedure for its adoption. The substance determines the choice of legal basis, and the procedure must then correspond to the legal basis, not the other way around. It is therefore barely conceivable to use, for example, a criterion of involvement of the Parliament (with reference to democratic legitimacy) and consequently choose the legal basis under the TFEU external competence where the ordinary legislative procedure applies, instead of a CFSP legal base. V. CFSP under attack ‘off the coast of Somalia’ It can hardly be surprising, given all the ambiguities regarding the delimitation of CFSP competence described above, that it came under attack. The legal challenge was actually brought by the European Parliament, but it is closely related to the Union’s activities in the framework of the military operation to fight acts of piracy and armed robbery off the Somali coast (operation ‘Atalanta’), 28 so the pirates are not entirely innocent in this respect. The action was brought by the Parliament on 21 December 2011. 29 It is aimed at Council Decision 2011/640/CFSP [ on the signing and conclusion of the Agreement between the EU and Mauritius on the conditions of transfer of suspected pirates and associated seized property ], 30 which authorised the approval of the above mentioned Agreement 31 on behalf of the European Union. The Parliament considers the Decision as invalid because it does not relate exclusively to the CFSP, as expressly provided for in Art. 218 (6), second paragraph, TFEU. The main legal argument of the Parliament is as follows: since the Agreement allegedly also relates to judicial cooperation in criminal matters, police cooperation, and development cooperation, covering fields to which the ordinary legislative procedure applies, it should have been concluded after obtaining the consent of the Parliament in accordance with Art. 218(6)(a)(v) TFEU. For this reason, submits the special procedure under the CFSP, without the involvement of the Parliament, or whether to make recourse to the ordinary legislative procedure. 28 Council Joint Action 2008/851/CFSP 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 L 301, 12. 11. 2008, p. 33, hereinafter as the “Joint Action”). 29 Case C-658/11 European Parliament v Council of the European Union , application published in OJ C 58, 25. 2. 2012, p. 6. 30 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 L 254, 30. 9. 2011, p. 1, hereinafter the “Decision”). 31 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 L 254, 30. 9. 2011, p. 3, hereinafter the “Agreement”).

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