17 The EU and Serbia
(a) (29213) 15616/07 + ADDs 1-2 COM(07) 743
(b) (29214) 15690/07 + ADDs 1-2 COM(07) 744
(c) (29427) —
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| Draft Council Decisions on the signing and on the conclusion of the Stabilisation and Association Agreement between the European Communities and its Member States and the Republic of Serbia
Draft Council Decision concerning the signing and conclusion of the Interim Agreement on trade and trade-related matters between the European Community and the Republic of Serbia
Interim Political Agreement on Co-operation between the European Union and its Member States and the Republic of Serbia
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| Legal base | (a) and (b) Articles 300 and 310 EC; unanimity
(c) —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 4 December 2008
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| Previous Committee Reports | HC16-xxiv (2007-08), chapter 15 (18 June 2008), HC16-xxi (2007-08), chapter 17 (14 May 2008), HC16-xii (2007-08), chapter 1 (20 February 2008) HC16-x (2007-08), chapter 4 (30 January 2008) and HC16-viii (2007-08), chapter 5 (16 January 2008); also see (26575) 8884/05: HC 34-i (2005-06), chapter 48 (4 July 2005); and (29103): 14999/07; (29104):15001/07; (29100):14995/07; (29099): 14993/07; (29101):14996/07; (29102):14997/07: HC 16-v (2007-08), chapter 1 (5 December 2007)
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| Discussed in Council | 29 April 2008 General Affairs and External Relations Council
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| Committee's assessment | Politically important
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| Committee's decision | Cleared (debate on 29 April 2008); further information provided and requested.
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Background
17.1 The Stabilisation and Association Process is the process
devised by the EU to bring the countries of the Western Balkans
closer to the EU and to help prepare them for eventual membership.
The Stabilisation and Association Agreement (SAA) is a key step
on the path to EU membership. It establishes a far-reaching legal
relationship between the EU and the country concerned, entailing
mutual rights and obligations; the gradual implementation of a
free trade area; reforms designed to achieve the adoption of EU
standards in areas such as justice, freedom and security, accompanied
by formalised political dialogue; enhanced regional co-operation;
and a Stabilisation and Association Council to supervise implementation.
17.2 The Commission completed negotiations for an
SAA with Serbia on 10 September 2007. On 7 November 2007 Serbia
and the Commission initialled the text of the Agreement.
The Council Decisions
17.3 The purpose of the first Council Decision is
obtain Council approval to the text of the Stabilisation and Association
Agreement and "to engage the procedures for the signature
and final conclusion" of the Agreement.
17.4 The purpose of the second Council Decision is
to authorise signature of an Interim Agreement (IA), comprising
the Community competence elements (trade, agriculture, industrial
and competition provisions of the SAA) at the same time as the
SAA, to come into force as soon as possible after signature, to
take account of the fact that ratification of the SAA may take
up to a year following signature.
Previous consideration
17.5 Our previous consideration is detailed in our
previous Reports. As we have noted, we have had no concerns over
the nature of the SAA or of its conclusion with Serbia in itself:
on the contrary; however, what had bedevilled this process all
along was the behaviour of the Serbian authorities with respect
to the International Criminal Tribunal for (former) Yugoslavia
(ICTY). Although the ICTY had been prepared to indicate to the
Commission and Council that cooperation had improved sufficiently
to warrant continued negotiation and, latterly, initialling of
a text, it was plainly not yet able to certify that "full
cooperation" was obtained.
17.6 At the beginning of 2008 we received letters,
of 23 and 30 January, from the then Minister for Europe about,
firstly, "an ongoing debate" in the Council as to whether
or not to sign Serbia's SAA (the Presidency, supported by a number
of Member States, had made clear their preference for SAA signature;
other Member States opposed this, given their reservations about
the level of ICTY co-operation) and then, after the 28 January
GAERC, a new Political Agreement between the EU and Serbia.[60]
In a further letter and Explanatory Memorandum of 13 February
2008, the then Minister said that this interim Political Agreement,
which he fully endorsed, was "primarily political in nature,
seeking to highlight the areas in which the EU will work to deepen
its relations with Serbia", and was "an important signal
of the EU's commitment to Serbia and its desire to see Serbia
continue to make progress towards the EU". He described the
nature of the agreement and attached the latest draft, which we
reproduced as Annex 1 of chapter 1 of our Report of 20 February
2008. He also said that a Task Force would "formulate recommendations
on how to achieve rapid progress in the areas set out in the Agreement",
and noted the Committee's "wish for any Task Force report
to be deposited along with an Explanatory Memorandum". Although
originally scheduled for signature on 7 February, internal disagreements
within the Serbian Government meant that the Serbian side had
not yet taken up the invitation to sign.
17.7 Also, responding to questions put to him by
the Committee in our 30 January Report, the then Minister then
said that this Political Agreement did not in his view circumvent
or replace the SAA:
"Signature and ratification of the SAA will
still be required by Serbia to proceed further down the EU accession
process. The invitation annexed to the GAERC conclusions reiterates
that 'The Stabilisation and Association process remains the
right vehicle to take forward [the EU/Serbia] relationship.'
"
17.8 He also said that he shared our concern that
the key issue of ICTY conditionality should not be jettisoned
or overlooked and noted that, "as the discussion on 28 January
demonstrates, there is currently no consensus within the EU that
the necessary conditions have been met for SAA signature".
He then continued as follows:
"The Government's position is that the political
process must move forward in a way that upholds ICTY conditionality
and ensures this remains embedded in the accession process.
"Although the issue did not arise at the most
recent GAERC, the Government would be ready — in the interest
of sending a clear signal of EU commitment to Serbia's European
future — to contemplate signature of an SAA if there were
clear agreement that ICTY conditionality were to remain clearly
embedded in the accession process and to apply at the next relevant
stage."
17.9 The then Minister also illustrated ways in
which he judged that the Serbian Government had recently improved
its co-operation with the ICTY: "the establishment of a National
Security Council; better access to documents requested by the
Prosecutor's office; 1 million Euro reward announced for information
leading to the capture of Ratko Mladic; and arrests of General
Tolimir and Vlastimir Doroevic in 2007." But he believed
that further improvements in co-operation were still needed: "Key
indictees — notably Mladic and Karadzic — remain in
hiding, whilst increased political commitment and improved co-ordination
by the Serbian security services are still required in order to
locate them."
17.10 In our response, we noted that:
—
we still awaited an answer to our request to the then Minister
to explain what "the necessary steps" were that would
have to be "finalised" before the SAA could be signed,
and whether they still included the ICTY certifying that full
cooperation had been established with the Serbian authorities;
— instead he had cited limited steps taken
by the Serbian authorities which he regarded as improved cooperation,
but failed to say whether the ICTY itself regarded them in the
same light;
— rather than saying whether signature
of the SAA would continue to depend upon "full cooperation"
with the ICTY, he had now muddied the waters by saying that he
"would be ready — in the interest of sending a clear
signal of EU commitment to Serbia's European future — to
contemplate signature of an SAA if there were clear agreement
that ICTY conditionality were to remain clearly embedded in the
accession process and to apply at the next relevant stage";
— we were not at all clear what "clear
agreement that ICTY conditionality" remaining "clearly
embedded in the accession process", and this being applied
"at the next relevant stage", meant;
— we were under the impression that "the
next relevant stage" was signature of the SAA, and that this
was in turn dependent upon "full cooperation" by Serbia
with the ICTY; and
— instead, what was now on offer was an
agreement that offered the benefits of an SAA without what had
hitherto been a crucial pre-condition being met, and which seemed
to make a mockery of the Council's own conclusion that "the
Stabilisation and Association process remains the right vehicle
to take forward [the EU-Serbia] relationship" .
17.11 All in all, we said that we were concerned
that the Council was allowing political considerations —
in this case, a desire to compensate Serbia for its policy on
Kosovo — to undermine one of the key considerations that
the Union had said it would base further enlargement — namely
Conditionality[61]—
while seeking unconvincingly to maintain that it was upholding
it, and therefore recommended that these Council Decisions and
the Interim Political Agreement should be debated in European
Committee B along with the Commission's annual progress reports
on all the Balkan prospective Member States' accession processes
(which we had already recommended for debate at our meeting on
5 December 2007).[62][63]
That debate took place in European Committee B on 29 April 2008.[64]
17.12 In a further letter of 28 April 2008 the then
Minister said that at the time of writing, the Presidency, supported
by a number of Member States, had made clear their preference
for SAA signature at the 29 April GAERC. He continued as follows:
"Our strategic goal for the Western Balkans
region is for the countries of the region to move towards EU and
NATO membership. We see this as the long-term answer to the instability
that dogged the Balkans in the 1990s, and the best way to embed
democracy and development in the region. Serbia is central to
the economic and political progress of the Western Balkans. Serbia
is currently faced with a strategic choice regarding its political
future with Parliamentary elections to be held on 11 May. For
all these reasons, it is strongly in our interests that Serbia
sustains its commitment to its European perspective."
17.13 The then Minister again said that "the
Government would be ready — in the interest of sending a
clear signal of EU commitment to Serbia's European future —
to sign Serbia's SAA if there were clear agreement that ICTY conditionality
were to remain firmly embedded in the accession process".
He also said that although there had been some progress in Serbia's
co-operation with the ICTY over the last year, he believed that
further improvements in co-operation were still needed: "Key
indictees — notably Mladic and Karadzic — remain in
hiding, whilst increased political commitment and improved co-ordination
by the Serbian security services are still required in order to
locate them. It is for that reason that we will be insisting on
a clear message from the GAERC that full cooperation with ICTY
is a requirement for EU accession and must remain a key part of
the accession process."
17.14 Nonetheless, the Minister said, should the
EU be in a position to reach consensus on SAA signature or on
a political agreement to sign an SAA at a later stage, the UK
would join that consensus, even though (with the documents due
to be debated "on the very day of the GAERC") scrutiny
had not been completed — for which the then Minister apologised,
expressing the hope that the Committee would "take note that
the chain of correspondence over this issue demonstrates our concern
to keep the Committee fully informed of developments and of the
Government's approach."
17.15 We likewise noted that we had never doubted
the then Minister's desire to keep us informed; rather, our concern
had always been over his position on what he terms "ICTY
conditionality". In the first instance, it was clear to us
that his position had shifted, in that, hitherto, full cooperation
with ICTY was a pre-condition to signature of the SAA; now, the
SAA had been signed without such full cooperation being in place.
17.16 Our second enduring concern was about what
"ICTY conditionality" meant in practice. We noted that
the 29 April GAERC Conclusions[65]
on Serbia were as follows:
"The Council welcomes the signature of the Stabilisation
and Association Agreement (SAA) and of the Interim Agreement with
Serbia as an important step on the country's path towards the
EU. It looked forward to intensifying co-operation with Serbia
through the comprehensive framework offered by these agreements
and the other mechanisms of the Stabilisation and Association
Process. The Council recalled articles 2, 4 and 133 of the SAA
and articles 1 and 54 of the Interim Agreement and stated that
full co-operation with the ICTY, including all possible efforts
to arrest and transfer indictees, is an essential element of these
Agreements. Accordingly, Ministers agreed to submit the SAA to
their parliaments for ratification and the Community decided to
implement the Interim Agreement as soon as the Council decides
that Serbia fully co-operates with the ICTY. The Council and the
Commission will regularly monitor that Serbia continues to fully
co-operate with the ICTY. The EU and its Member States will assist
Serbia in this respect."
17.17 We asked the then Minister for Europe to inform
us:
— of
the extent to which full cooperation would include the handing-over
of Mladic and Karadzic;
— whether it would be for the ICTY to determine
what full cooperation consisted of and to certify when it had
been achieved. Or whether it would be for the Council to determine
on the basis of its own assessment;
— whether our understanding was correct
that no aspect of the SAA would be implemented ahead of parliamentary
ratification (the political dimension) and a determination by
the Council that full cooperation with the ICTY had been forthcoming
(the interim agreement covering the trade-related aspects);
— if this was so, whether this formulation
was under consideration in connection with the prospective SAA
with Bosnia and Herzegovina, which we considered elsewhere in
the same Report;[66]
and
— what the position now was regarding the
proposed "Interim Political Agreement on Co-operation between
the European Union and its Member States and the Republic of Serbia".
17.18 The then Minister responded on 30 May 2008
as follows:
- "In our view evidence
of 'full co-operation' would be a committed and sustained activity
from the Serbian Government, demonstrating 100 per cent effort
and political will. Co-operation with the Tribunal covers efforts
in a range of areas including: in tackling support networks; in
meeting requests for documents; in allowing access to archives;
in ensuring protection of witnesses; as well as in locating and
transferring the remaining indictees.
- "In the context of the SAA, and as was reiterated
in the GAERC conclusions of 29 April, it is the Council of Ministers
of the European Union that will decide on whether Serbia is fully
co-operating. In practice, of course, the views of the ICTY Chief
Prosecutor, Mr Serge Brammertz, will be very important in reaching
that decision. The Chief Prosecutor issues 6-monthly reports to
the UN Security Council which cover inter alia the level
of co-operation from the countries in the Western Balkans, including
Serbia. I also met Mr Brammertz, in London on 30 April and we
discussed these issues in detail.
- "the GAERC conclusions of 29 April make
clear that implementation of the IA and ratification of the SAA
will take place only once the Council has decided unanimously
that Serbia is fully co-operating with ICTY.
- "You ask for clarification on the status
of the Interim Political Agreement with Serbia. The Agreement
remains unsigned."
17.19 The two Council Decisions were, of course,
cleared following the European Committee debate; we also cleared
a similar Council Decision on the SAA and IA with Bosnia and Herzegovina
at our meeting on 4 June.[67]
Our concern in both instances was over the Council's willingness
to place the immediate political dynamics ahead of upholding Conditionality
— in this case, "full cooperation" with the ICTY,
in the other, "full implementation of police reform"
— to the possible detriment of the enlargement process.
17.20 In reporting the then Minister's letter to
the House, we also noted that
— Serbia
needed to be "fully cooperating with ICTY" before implementation
of the IA and ratification of the SAA could take place;
— even though the then Minister was silent
on the role of the ICTY Chief Prosecutor in determining the level
of cooperation at this juncture, the views of Mr Serge Brammertz
were to be very important in the Council reaching that decision;
and
— though the then Minister did not answer
directly our question relating to the extent to which the Council's
determination would include the location and transfer to The Hague
of Ratko Mladic and Radovan Karadzic, he did say that the factors
to be taken into account would include "locating and transferring
the remaining indictees".
17.21 The then Minister having noted that implementation
of the IA and ratification of the SAA would take place only once
the Council had decided unanimously that Serbia was fully cooperating
with ICTY, we said that that decision would, presumably, be based
on a document from the Commission assessing that, on the basis
of evidence set out therein, Serbia was then "fully cooperating
with ICTY", and asked that, as and when the time came, the
then Minister deposited this document, along with an Explanatory
Memorandum.[68]
The Minister's letter of 4 December 2008
17.22 In her letter of 4 December 2008, the Minister
for Europe at the Foreign and Commonwealth Office (Caroline Flint)
writes to update the Committee further on the progress on the
Interim Agreement (IA) for Serbia. Recalling her predecessor's
earlier letters and our interest in this issue, the Minister says
that she wanted to alert the Committee to "possible developments
ahead of the forthcoming General Affairs External Relations Council
(GAERC) on 8 December." She continues as follows:
"Following the arrest of Karadzic in July, Serge
Brammertz, the Chief Prosecutor for the International Tribunal
for the former Yugoslavia (ICTY), visited Belgrade on 9/10 September.
He subsequently told EU Foreign Ministers at the GAERC on 15
September, that there had been a "significant" improvement
in Serbia's co-operation with his office, but it was too soon
to conclude full co-operation had been achieved.
"Serge Brammertz visited Belgrade on 17/18 November,
and will report on Serbia's level of ICTY co-operation to the
United Nations Security Council on 12 December. We do not expect
a detailed discussion of Brammertz's report to occur at the GAERC,
as the latter will precede his 12 December presentation to the
UNSC. But it is possible that there will be discussion amongst
EU Member States of Serbia's co-operation with ICTY, including
the potential implications of Brammertz's upcoming report.
"The Government's existing policy is that the
UK is content to implement the IA on the basis of significantly
improved co-operation (which in our judgement Serbia has been
demonstrating since September), and to keep ratification of the
SAA conditional on Serbia's full co-operation with the
ICTY. In our view, 'full co-operation' would mean committed
and sustained activity from the Serbian Government, demonstrating
100 percent effort and political will. Co-operation with the Tribunal
covers efforts in a range of areas including: tackling support
networks; meeting requests for documents; allowing access to archives;
ensuring protection of witnesses; as well as locating and transferring
remaining indictees.
"While there has not been EU consensus on this
issue so far, we cannot rule out the possibility that GAERC discussion
on 8 December might lead to EU consensus on implementation of
the IA. Implementation of the IA requires a Council Decision,
and is therefore subject to Parliamentary scrutiny. In the event
of agreement at the GAERC on the issue, the UK may need to override
scrutiny. I will endeavour to keep the Committee up to speed as
the debate unfolds."
Conclusion
17.23 At present, we do not know what the GAERC
decided. But we find this latest development disturbing.
17.24 First, as noted above, the Minister's predecessor
confirmed to us that the 29 April GAERC had determined that "implementation
of the IA and ratification of the SAA will take place only once
the Council has decided unanimously that Serbia is fully co-operating
with ICTY". The Minister now says that the "Government's
existing policy is that the UK is content to implement the IA
on the basis of significantly improved co-operation", and
that full cooperation will only be required to secure ratification
of the SAA agreement as a whole (which is, effectively, to implement
the political component, for which the currently-in-limbo Interim
Political Agreement was intended to substitute in the meantime).
The Government's position therefore appears to have shifted once
again — first abandoning the requirement for full cooperation
prior to signature of the SAA, and now abandoning it prior to
implementation of the IA. We should be grateful if the Minister
would explain when and why this has happened.
17.25 Secondly, the previous Minister made it
clear that, while the Council would come to its own determination
on the extent of Serbia's cooperation with the ICTY, the views
of the ICTY Chief Prosecutor would be very important in reaching
that decision. Yet the 8-9 December GAERC might, it seems, be
willing to make up its mind without benefit of those views, even
though they would be made available only 4 days later. The Minister
refers to the potential implications of the Chief Prosecutor's
report. We should be grateful if she would explain how the Council
could know what they were, ahead of the Report itself; and, regardless
of what the Council did in the end decide, why it was ever thought
that it might be appropriate to press ahead without the Chief
Prosecutor's report.
17.26 Thirdly, in the context of co-operation
with the Tribunal, the Minister reiterates her predecessor's desiderata:
"tackling support networks; meeting requests for documents;
allowing access to archives; ensuring protection of witnesses;
as well as locating and transferring remaining indictees."
We should be grateful if she would illustrate under each of these
headings the "significantly improved co-operation" which
in her judgement Serbia has been demonstrating since September.
17.27 Finally, we should be grateful if the Minister
would let us know how she sees the Interim Political Agreement
now being handled.
60 See http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/gena/98460.pdf,
pages 17-19. Back
61
Consolidation, Conditionality and Communication. See Enlargement
Commissioner Rehn's interview at http://ec.europa.eu/commission_barroso/rehn/pdf/interviews/bridge_3rd_2006_en.pdf
for further discussion thereof. Back
62
Ditto: (29103): 14999/07; (29104):15001/07; (29100):14995/07;
(29099): 14993/07; (29101):14996/07, (29102):14997/07: HC 16-v
(2007-08), chapter 1 (5 December 2007). Back
63
See headnote: HC16-xii (2007-08), chapter 1 (20 February 2008). Back
64
See http://www.publications.parliament.uk/pa/cm200708/cmgeneral/euro/080429/80429s01.htm. Back
65
See http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/gena/100227.pdf
for the full Council Conclusions. Back
66 See (29604)
8222/08 and (29605) 8228/08 in chapter 4 of the Report of our
14 May meeting. Back
67
See (29604) 8222/08 and (29605) 8228/08: HC 16-xxiii (2007-08),
chapter 21 (4 June 2008). Back
68
See headnote: HC16-xxiv (2007-08), chapter 15 (18 June 2008). Back
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