Brussels, 31/01/2012 (Agence Europe) - Regulation 1286/2009 putting in place specific restrictive measures against persons and entities associated with Al-Qaida and the Taliban is valid. The Council correctly considered it to fall within the common foreign and security policy (CFSP) and not, as the European Parliament (EP) would prefer, the area of freedom, security and justice, suggests Advocate General Yves Bot in his opinion delivered on Tuesday 31 January in case C-130/11.
This Council regulation of December 2009 updates Regulation 881/2002, adopted in 2002 with a Council common position, including in Community law the restrictive measures (in particular, the freezing of assets) agreed by the United Nations Security Council (Resolution 1390 of 2002) with regard to persons or entities associated with Al-Qaida and the Taliban. The EP challenged the legal basis selected by the Council for the adoption of Regulation 1286/2009 (Article 215 para2 of the TFEU, common foreign and security policy), which only requires the Council to inform the Parliament. Since the Lisbon Treaty was already in force when the regulation was adopted, the EP argues that the legal basis for the regulation should have been the provisions on prevention of terrorism and related activities which fall within the ambit of the area of freedom, security and justice (AFSJ) (Article 75 of the TFEU). This procedure gives the EP more extensive powers than the one chosen by the Council in that, for a regulation to be adopted, the EP would have enjoyed equal status with the Council.
In his conclusions, the advocate general says that the 2009 regulation follows on from UN Security Council Resolution 1390 (2002), the Council common position and Regulation 881/2002. All those legal acts pursue a single aim, that of combating international terrorism. Since the Lisbon Treaty has not affected the distinction between the CFSP and the AFSJ since its adoption, EU action in combating international terrorism must come under the CFSP. Indeed, the EU's competence in CFSP matters “shall cover all areas of foreign policy and all questions relating to the Union's security”. Action in this area must, therefore, be conducted in accordance with the relevant rules and procedures: it is implemented by the European Council and the Council acting unanimously, unless the treaties state otherwise. The advocate general adds that “contrary to what is suggested by certain arguments put forward by the Parliament, the fight against terrorism may perfectly legitimately be conducted by the European Union as part of its actions under the CFSP”. With regard to the 2009 directive, it is, indeed, within the framework of the CFSP that “the system was established permitting interaction between the decisions taken within the United Nations and those taken by the European Union to deprive the persons and entities linked to terrorist movements of their resources”. Though these persons and entities are designated by the Sanctions Committee appointed by the UN, the EU simply reproduces the list drawn up by that committee.
Furthermore, the advocate general finds that the CFSP is much better suited than the AFJS to the variety of action that may be taken by the EU to combat international terrorism, since, unlike Article 75 of the TFEU, Article 215 allows general measures to be taken (such as restricting the movement of specified persons or banning arms sales) which are not restricted to measures relating to capital movements and payment. Thus, Articles 75 and 215 relate to different European Union policies that pursue objectives which, although complementary, “do not necessarily have the same scope and are governed by different rules and procedures”. While the EP's powers under the CFSP are not as extensive as under the ASFJ, that cannot be a decisive factor when it comes to the choice of legal basis for the contested regulation: “It is not the procedures which determine the legal basis but the other way round”. Moreover, the “CFSP dimension” of Article 215 TFEU certainly explains the choice made by the authors of the treaty with respect to the role of the Parliament.
The advocate general, therefore, proposes that the Court should reject the EP's action and rule that adoption of the 2009 regulation was on an appropriate legal basis. (FG/transl.rt)