EP v. Council
(2016)
LEGAL BASIS
LEGAL ANALYSIS
The Council closed an International agreement (art. 37 TEU) with Tanzania for the pirates in Somalia (operation Atlanta) to determine where they should face trial. It is a Council decision based on art. 218(6) second phrase TFEU: decisions based EXCLUSIVELY on CFSP don’t need consent/consultation of the EP.
CJEU:
1. Is this exclusively CFSP?
→ Yes: There is also police and judicial cooperation legal base art. 82, 87 TFEU (OLP). But the main objective (legal base test §44,47) is the CFSP (§55). So it is the correct legal base.
→ LEGAL BASE TEST: Needs to be an objective test.
Look at the main objective,aim and content (§47).
If there are two that take the dominant one (§44), if they are equal then combine them: dual legal base (§44)
>< if not compatible because of procedure then need to split the proposal (Ex. Titanium Dioxide case).
2. But art. 218(10) TFEU: EP needs to be informed at all the stages because of the principle of Democracy (§70)
(>< deficient sharing of information)