From Act-on-ACTA

The Conference of Presidents of the European Parliament has decided to take the Resolution requesting an opinion from the Court of Justice on the compatibility of ACTA with the Treaties off the agenda for the May Plenary with the argument that ACTA has not yet formally been submitted to the Parliament. However, this withdrawal has no basis in the Rules of Procedure of the European Parliament (see below), therefore the vote will be held in June instead.

ACTA: The interpretation of Rule 90(6) as regards when Parliament can request the opinion of the Court of Justice on an envisaged international agreement.

The interpretation of Rule 90(6) of the Rules of Procedure regarding a request pursuant to Article 218(11) TFEU for the opinion of the Court of Justice on the compatibility of an international agreement with the treaties has recently been clarified by an explanatory note to Rule 128, which lays down the general procedures to be followed when Parliament decides on actions or interventions before the EU courts.

As the note states, Rule 90(6) constitutes a lex specialis in relation to Rule 128 as regards the procedure to be followed and the competence to initiate the procedure. Thus, if a committee responsible, a political group or at least one tenth of the Members propose seeking the opinion of the Court, such a proposal is to be put to a vote in plenary.

The only condition mentioned by the rules is that the proposal is made before the vote on consent, which is logical, as seeking the opinion of the Court would make no sense after parliament already having given its consent to an agreement. Consequently, if proposal is carried the vote on consent shall be postponed until the Court has delivered its opinion.

However, the argument has been raised that such a proposal could only be made once Parliament has been seized, that is, the agreement has been transmitted to Parliament for its consent, that is, after the Council has adopted a proposal for a decision by the Commission to authorise the signing of the agreement.

In this respects it is useful to examine the important clarifications of the conditions for seeking such opinions recently formulated by the Court of Justice recently in its opinion of 8 March 2011 on a request by the Council pursuant to Article 218(11).

The Court notes, firstly, that the provision in Article 218(11) has the aim of forestalling complications which would result from legal disputes concerning the compatibility with the Treaties of international agreements binding upon the European Union (para 47).

The Court added that a possible decision of the Court after the entry into force of the agreement declaring this incompatible with the treaties could not fail to provoke, not only in the internal European Union context, but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries (para 48).

Secondly, the Court explicitly considered at what stage an opinion could be sought. It recalled its previous opinions and restated that a request for an Opinion can be submitted to the Court before the commencement of international negotiations, where the subject-matter of the envisaged agreement is known, even though there are a number of alternatives still open and differences of opinion on the drafting of the texts concerned, if the documents submitted to the Court make it possible for the Court to form a sufficiently certain judgment on the question raised by the Council (para 53).

In addition, the Court noted that it is not a prerequisite condition of being able to submit a request for an Opinion pursuant to Article 218(11) TFEU that the institutions concerned have reached final agreement. The right accorded to the Council, the Parliament, the Commission and the Member States to ask the Court for its Opinion can be exercised individually, without any coordinated action (para 55).

In light of this it is clear that, from the point of view of the Court of Justice, a request by Parliament for an opinion on the compatibility with the treaties of the ACTA agreement would not have to wait for the official transmission of the draft agreement for its consent. Thus, a request based upon the draft agreement opened for signature on 1 May 2011 would most certainly be declared admissible by the Court.

There are also good reasons to seek the opinion without unnecessary delay, bearing in mind that the entry into force of an agreement is suspended while the Court is examining its compatibility with the treaties, already in view of not keeping the EUs international partners in uncertainty longer than needed.

Conclusion

It would, therefore, not appear reasonable if Parliament were to limit itself, so as to allow the seeking of the Court's opinion only after having been seized. This is not required by the Court of Justice, and nothing in the Rules of Procedure obliges Parliament to wait for the transmission of the agreement before seeking an opinion.

Texts referred to:

Rules of Procedure

Rule 90 (5). When the negotiations are completed, but before any agreement is signed, the draft agreement shall be submitted to Parliament for its opinion or consent. In the case of the consent procedure Rule 81 shall apply.

Rule 90 (6). Before the vote on the consent is taken, the committee responsible, a political group or at least one-tenth of the Members may propose that Parliament seek an opinion from the Court of Justice on the compatibility of an international agreement with the Treaties. If Parliament approves such a proposal, the vote on the consent shall be adjourned until the Court has delivered its opinion.

Explanatory note to Rule 128

Rule 90(6) of the Rules of Procedure lays down a specific procedure by means of which Parliament can take a decision on whether to exercise its prerogative, pursuant to Article 218(11) TFEU, to seek an opinion from the Court of Justice on the compatibility of an international agreement with the Treaties; that provision constitutes a “lex specialis” which takes precedence over the general provision laid down in Rule 128 of the Rules of Procedure.

TFEU

Article 218(11). A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.

OPINION 1/09 OF THE COURT (Full Court)

8 March 2011. (Opinion delivered pursuant to Article 218(11) TFEU – Draft agreement – Creation of a unified patent litigation system – European and Community Patents Court – Compatibility of the draft agreement with the Treaties)

47. Before addressing those three issues, it must be borne in mind that, under Article 218(11) TFEU, the Parliament, the Council, the Commission or a Member State may obtain the Opinion of the Court of Justice as to whether an envisaged agreement is compatible with the provisions of the Treaties. That provision has the aim of forestalling complications which would result from legal disputes concerning the compatibility with the Treaties of international agreements binding upon the European Union (see Opinion 2/94 [1996] ECR I‑1759, paragraph 3, and Opinion 1/08 [2009] ECR I‑11129, paragraph 107).

48. A possible decision of the Court, after the conclusion of an international agreement binding upon the European Union, to the effect that such an agreement is, by reason either of its content, or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaties could not fail to provoke, not only in the internal European Union context, but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries (see Opinion 3/94 [1995] ECR I‑4577, paragraph 17).

53. As regards, secondly, the question of whether the decision-making process in relation to the draft agreement has reached a sufficiently advanced stage to enable the Court to rule on the compatibility of that draft with the Treaties, it must be recalled that a request for an Opinion can be submitted to the Court before the commencement of international negotiations, where the subject-matter of the envisaged agreement is known, even though there are a number of alternatives still open and differences of opinion on the drafting of the texts concerned, if the documents submitted to the Court make it possible for the Court to form a sufficiently certain judgment on the question raised by the Council (see, to that effect, Opinion 1/78 [1979] ECR 2871, paragraph 34) and that the admissibility of a request for an Opinion cannot be challenged on the ground that the Council has not yet adopted the decision to open the international negotiations (see Opinion 2/94, paragraph 13).

55. As regards, thirdly, the question raised as to institutional balance, it must be observed that it is not a prerequisite condition of being able to submit a request for an Opinion pursuant to Article 218(11) TFEU that the institutions concerned have reached final agreement. The right accorded to the Council, the Parliament, the Commission and the Member States to ask the Court for its Opinion can be exercised individually, without any coordinated action and without waiting for the final outcome of any related legislative procedure. In any event, the Parliament retains the right itself to submit a request for an Opinion.

56. Accordingly, the fact that the adoption of the agreement concerned cannot occur until after consulting, and obtaining the approval of, the Parliament, and that the adoption of any related legislative measures within the European Union, such as the future regulation on the Community patent, will be subject to a legislative procedure involving that institution, has no effect on the power accorded to the Council, under Article 218(11) TFEU, to request an Opinion from the Court.