![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
Politico-institutional factors influence the choice of legal basis provisions and legal basis litigation. This is particularly true in the area of security policies where, due to their cross-pillar or inter-pillar nature, the ‘choice of legal basis' often entails a ‘choice of pillar’. This chapter analyses the legal rules governing the relationships between pillars in the context of security policies, and assesses the impact of politico-institutional factors in this respect. The analysis shows that the pillar structure is liable to widen the margin of discretion that political institutions enjoy as to the choice of legal basis and instruments. The rules on inter-pillar relationships are, in their interpretation and application, subject to a certain degree of flexibility. In some cases, the Council and the member states try to preserve national prerogatives and, therefore, to limit the scope of EC competences and the role of supranational institutions. In others, they resort to flexible interpretations of legal rules for bringing security issues within the first pillar. However, the article points out that the discretion enjoyed by political institutions (especially the Council) is not unlimited. While issues concerning the ‘choice of pillar’ have not emerged so far in the context of Common Foreign Security Policy–Police and Judicial Cooperation in Criminal Matters relationships, the situation is likely to change due to some elements stemming from the SEGI case law. The main limitation, in any case, flows from Article 47 EU. This provision seems to enshrine a prevalence of the first pillar over the others. However, the effectiveness of such constraints depends in the end on the European Court of Justice (ECJ), which, representing a judicial body aware of political concerns, tends to play a well-balanced role.
Notes
1 See, for instance, Case 45/86, Commission v. Council[1987] ECR 1493, para 9.
2 For references to the case law, see Case C-440/05, Commission v. Council[2007] ECR I-9097, para 61 and the case law there cited.
3 See the Editors' introduction.
4 Article 24 EU.
5 The Hague Programme, Official Journal (2005) C53, para 1; see also the European Pact on Immigration and Asylum of 24 September 2008, doc. 133440/08.
6 Directive 2004/83, Official Journal (2004) L304. See articles 12 and 13, and preamble, points 22 and 28.
7 Directive 2003/86, Official Journal (2003) L251, article 6 and preamble, point 14.
8 Joined Cases C-317/04 and C-318/04, European Parliament v. Council and Commission (PNR)[2006] ECR I-4721.
9 Directive 95/46/EC of the European Parliament and of the Council, Official Journal (1995) L281, p. 31.
10 Art. 3 (2) of Directive 95/46/EC.
11 Joined Cases C-317/04 and C-318/04, supra note 8, para 63.
12 Joined Cases C-317/04 and C-318/04, supra note 8, para 67 ‘article 95 EC, read in conjunction with Article 25 of the Directive, cannot justify Community competence to conclude the Agreement’ (emphasis added). The ECJ seems to have applied the ERTA doctrine. See Case 22/70, Commission v. Council (ERTA)[1971] ECR 263, paras 16–19.
13 See infra para 3. Further arguments supporting such a conclusion may flow from a pending case, see Case C-301/06, Ireland v. Council and European Parliament, pending, Opinion of Advocate General Bot, 14 October 2008.
14 Joined Cases C-317/04 and C-318/04, supra note 8, para 62.
15 There is, however, a significant exception: the conclusion of cross-pillar international agreements seems to be possible, as practice shows. See the agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis, which has been concluded through two Council decisions adopted, respectively, under the first and third pillars. Decision 2008/146/EC, Official Journal (2008) L53, p. 1; Decision 2008/149/JHA, Official Journal (2008), L53, p. 50.
16 Decision 2003/48/JHA, Official Journal (2003) L16, p. 68; Regulation 2580/2001, Official Journal (2003) L106 p. 22; Common Position 2001/931/CFSP, Official Journal (2001) L344, p. 93. For another example, see Council decision 2005/671/JHA, Official Journal (2005) L253 and Regulation 380/2008, Official Journal (2008) L115.
17 See Case C-170/96, Commission v. Council[1998] ECR I-2763, para 16; Case C-176/03 Commission v. Council[2005] ECR I-7879, para 38; Case C-440/05 Commission v. Council[2007] ECR I-0000, para 52.
18 The Parliament, in different resolutions, proposed recourse to Article 308 EC that, contrary to Article 133, requires its mandatory consultation.
19 When restrictive measures on the movement of capital and on payments need to be established, recourse should also be made to Article 60 EC.
20 On the practice, see Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council[2005] ECR II-03533, para 114.
21 Case T-306/01, supra note 20, para 115.
22 Case T-306/01, supra note 20, para 93.
23 Case T-306/01, supra note 20, para 164; Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council, judgment of 3 September 2008, nyr, para 236.
24 Joined Cases C-402/05 P and C-415/05 P, supra note 23, paras 196–199.
25 Joined Cases C-402/05 P and C-415/05 P, supra note 23, para 225.
26 Joined Cases C-402/05 P and C-415/05 P, supra note 23, paras 229 and 230.
27 Case C-414/97, Commission v. Spain[1999] ECR I-5585.
28 Case C-414/97, supra note 27, para 17.
29 Case C-414/97, supra note 27, para 20.
30 Case C-414/97, supra note 27, para 22.
31 Since the evidence provided by Spain was not convincing, the ECJ upheld the Commission's action.
32 Articles 3 (2) (f) and 4 (1) (a) of Regulation 1717/2006, Official Journal (2006) L327, p. 1.
33 Articles 3 (2) (f) and 3 (2) (i) of Regulation 1717/2006.
34 Case C-403/05, European Parliament v. Commission (Philippines Border Security)[2007] ECR I-9045.
35 Regulation 443/92, Official Journal (1992) L2, p. 1.
36 Case C-403/05, supra note 34, paras 39, 44 and 46.
37 Case C-403/05, supra note 34, para 68.
38 Case C-403/05, supra note 34, paras 56–58.
39 Case C-91/05, Commission v. Council (Small Arms and Light Weapons), judgment of 20 May 2008, nyr.
40 Case C-91/05, supra note 39, para 60.
41 Case C-91/05, supra note 39, para 77 (emphasis added).
42 Interview with a member of the Council's Legal Service, Brussels, May 2008.
43 See also: Commission document COM(2005) 4231 of 25 October 2005; Memorandum of Understanding between the European Commission, the Government of the Republic of Moldova and the Government of Ukraine on the European Commission Border Assistance Mission to the Republic of Moldova and to Ukraine of 7 October 2005.
44 Case C-91/05, supra note 48, para 46.
45 See, respectively, Official Journal (2004) L26, p. 3, and Official Journal (2006) L292, p. 2.
46 These agreements were concluded with Norway (Official Journal (2004) L362, p. 29); the Former Yugoslav Republic of Macedonia (Official Journal (2005) L94, p. 39); Romania (Official Journal (2005) L118, p. 48); Bulgaria (Official Journal (2005) L118, p. 53); Croatia (Official Journal (2006) L116, p. 74).
47 Common Position 2001/931/CFSP, L 2001 344/93, preamble, points 1 and 7.
48 Case T-338/02, Segi and others v. Council[2004] ECR II-1647, para 33; Case C-355/04, Segi and others v. Council[2007] ECR I-1657, Opinion of the Advocate General, para 56.
49 Case 22/70, supra note 12, paras 38–42; Case C-57/95 France v. Commission[1997] ECR I-1627, para 7.
50 Case C-355/04 P, supra note 48, para 52. See also Case C-105/03, Pupino[2005] ECR I-5285.