CYIL 2012

EMIL RUFFER CYIL 3 ȍ2012Ȏ Parliament, the Council has violated the Treaties by failing to choose the appropriate legal basis for the conclusion of the Agreement. Furthermore, the Parliament raises an alleged violation of Art. 218 (10) TFEU by the Council, since it did not inform the Parliament fully and immediately at the stages of negotiation and conclusion of the Agreement. As far as the effects of the contested decision are concerned, should the CJEU annul the contested Decision, the Parliament nonetheless proposes that the Court exercise its discretion to maintain its effects in accordance with Art. 264, second paragraph, TFEU, until such time as it is replaced. 32 The application of the Parliament in case C-658/11 aptly illustrates all the difficulties pertaining to the delimitation of the CFSP and the choice of the corresponding procedure. The Decision provides for conclusion of the Agreement, which constitutes an implementing measure within the meaning of Art. 12 of the Joint Action [ on the EU military operation Atalanta ]. It only seems logical that a CFSP measure is also implemented by a CFSP measure. In this context, the Parliament’s assertion that the Agreement relates to police and judicial cooperation in criminal matters seems strangely ill-conceived: the Agreement provides for the conditions of transfer of suspected pirates and associated seized property by the European Union-led naval force (‘EUNAVFOR’) to the competent authorities of Mauritius for the purpose of investigation and prosecution. 33 How this aim and content of the Agreement relates to police and judicial cooperation in criminal matters among the Member States’ authorities in the Area of Freedom, Security and Justice 34 remains a true mystery. As for the development cooperation, the Parliament might be trying to use the argument already discussed in the ‘ECOWAS’ case, i.e. that strengthening of security in a particular region also necessarily contributes to its development. If that was the case, I would argue that this connection is rather arbitrary and in any event, any effects of the Agreement on the development cooperation policy would be merely 32 Maintaining the effects of the Decision is important due to its direct link with the valid Agreement, which is binding on the Union as a matter of public international law. If the Decision were to be declared null and void without any transitional arrangements (which the CJEU is entitled to do under Art. 264 TFEU), the Union would still be bound by the Agreement under public international law, but would lack the necessary internal legal act which authorised the conclusion of the Agreement and performance of relevant obligations in the first place. 33 Art. 3(1) of the Agreement. 34 Art. 67(1) TFEU stipulates: “ The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States .” On judicial cooperation in criminal matters, Art. 82(1) TFEU states: “ Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83 .” Finally, the police cooperation is outlined as follows in Art. 87(1) TFEU: “ The Union shall establish police cooperation involving all the Member States’ competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences. ”

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