Sunday, 18 April 2010

The legal status of procedures leading to international agreements

The rules governing legislative and other procedures have been changed under the Lisbon Treaty, and their final legal status largely defines how transparent they have to be.

The following answer has been given by the Council of the European Union on the request to publicise an EU document regarding the ACTA negotations (page 3, para 8; own highlight):
[T]he Council would like to point out that, since the entry into force of the Lisbon Treaty, the scope of the institutions' legislative activities is defined in primary law. Article 289(3) TFEU provides that "[l]egal acts adopted by legislative procedure shall constitute legislative acts". Yet, a procedure leading to the conclusion of an international agreement, as provided under Title V of the TFUE, does not constitute a legislative procedure within the meaning of Article 289 TFEU.
On the ground of this assessment, the Council is refusing the full disclosure of the document requested.

I suppose that this assessment will also infringe the European Parliament's right to control the member states when they enter into international negotiations - so will MEPs accept this legal interpretation by the Council?


martinned said...


This seems correct, not to mention sensible. (At least from their point of view.) I am intrigued, however, by your final sentence: On what basis would you argue that the European Parliament has the right to control the member states when they enter into international negotiations? Is there a provision to that effect in the Treaties that I have overlooked? (Which is, of course, very well possible. I've only been working with the thing for a few months.)

Julien Frisch said...

Well, the debate started around SWIFT and is still ongoing.

The relevant legal basis for this discussion is Article 218 TFEU, para 6, sentence 2:

"Except where agreements relate exclusively to the common foreign and security policy, the Council
shall adopt the decision concluding the agreement:

(a) after obtaining the consent of the European Parliament in the following cases:

(i) association agreements;

(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(iii) agreements establishing a specific institutional framework by organising cooperation procedures;

(iv) agreements with important budgetary implications for the Union;

(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. "

martinned said...

Oh, that's the provision you have in mind. The problem is that that provision concerns international agreements negotiated by the Council on behalf of the EU, which the EP certainly (and logically) has the right to supervise to a degree. It is certainly not the same as the EP controlling the MS when they act internationally on their own behalf.

Now that that question is cleared up: I'd say that the Council's answer concerns general access to documents law under Regulation 1049/2001 and art. 15 TFEU (ex. art. 255 EC). That's where the term "draft legislative act" appears, in art. 15(2) TFEU.

The right of the EP to be informed, however, does not rest on any of those provisions, but on the specific provision that describe and define its role, including art. 218(6) TFEU. That is why art. 218(10) TFEU says:

"The European Parliament shall be immediately and fully informed at all stages of the procedure."

Surely that is the end of it. If a majority of the EP wants information that the Council does not want to give, the EP can bring a case before the ECJ.

LJ said...

You've referred to the key paragraph: we can see that they aren't denying the de facto legislative effect of ACTA negotiations from EU perspective ("policy laundering") but are just referring to some TFEU articles instead. I get the perception that on this basis provided here policy laundering (de facto legislation) through international negotiations (in the dark) is permitted, whenever needed - if it's really a question of the definition of legislative acts under TFEU 289(3) as opposed to the real effect of the act. Yes, I'm repeating myself.

But would/will this approach they've chosen fly in the possible next complaint stages?