16 Restrictive measures against the leadership
of the Transnistrian region of the Republic of Moldova
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| Council Decision concerning restrictive measures against the leadership of the Transnistrian region of the Republic of Moldova
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| Legal base | Article 29 TFEU; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 16 September 2010 and Minister's letter of 15 September 2010
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| Previous Committee Report | None; but see (31320)—: HC 5-xi (2009-10), chapter 6 (24 February 2010)
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| To be discussed in Council | September 2010
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| Committee's assessment | Politically important
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| Committee's decision | Cleared, but further information requested
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Background
16.1 Following Moldova's independence, a separatist movement in
the Transnistrian region on the eastern bank of the Nistru River
declared itself a Republic. Attempts to find a settlement to this
situation have thus far failed.
16.2 EU concern about the threats to security and
stability in eastern Europe posed by the activities of the illegal
separatist regime go back over six years. The first Common Position
was in the form of an EU-wide ban on travel in the EU against
17 members of the Transnistrian leadership for obstruction of
the negotiating process to resolve the conflict. In August 2004,
the scope of the restrictive measures was expanded to include
ten persons responsible for the intimidation campaign and closure
of Latin-script Moldovan schools.
16.3 Each EU Member State enacts the necessary legislation
to implement the travel ban; but, to be effective at an EU level,
a Council Decision (previously, a Common Position) is necessary
due to the free movement of people across the Schengen area. Each
Common Position has been valid for 12 months.
16.4 In early 2009, the previous Committee considered
and cleared just such a Common Position. The
then Minister for Europe at the Foreign and Commonwealth Office
(Caroline Flint) welcomed the renewal, which
she said sent "a strong political signal that the behaviour
of the Transnistrian leadership remains unacceptable to the EU."
The then Minister said that the EU continued to encourage both
parties to return to the negotiating table, to pursue any negotiations
as transparently as possible and conclude a settlement acceptable
to all concerned. She also said that the sanctions regime was
regularly monitored to ensure that the most appropriate measures
are being taken, giving as an example the fact that 8 of the 10
individuals who had been designated for forcing the closure of
Latin script schools were delisted in December 2005 when the majority
of the schools were re-opened.
16.5 Then, on 24 February 2010, the previous Committee
considered the present Council Decision (which had been adopted
by the 22 February 2010 Foreign Affairs Council, which extended
Common Position 2004/179/CFSP for a further 12 months.
16.6 In his Explanatory Memorandum of 15 February
2010, the then Minister for Europe at the Foreign and Commonwealth
Office (Chris Bryant) said that the list of the names on the travel
ban list would be better targeted by the removal of three names
who no longer met the criteria for listing. He also said that
the measures were to be suspended until 30 September 2010 "in
the hope that this will encourage the Transnistrian leadership
to engage with the Moldovan Government and the EU."
16.7 The then Minister welcomed the renewal of the
travel ban in similar terms to his ante-predecessor and likewise
noted that the sanctions regime was regularly monitored to ensure
that the most appropriate measures were being taken; for this
reason he supported lifting the travel ban on 3 individuals whom
it was felt no longer meet the criteria for listing.
16.8 He also explained that, if at the end of the
suspension, consensus within the EU was not reached to renew the
suspension, or lift the sanctions, then the travel ban would be
re-imposed by default, which, he said, "ensures the sanctions
measures do not simply lapse."
16.9 The then Minister also wrote on 12 February
2010 to express his regret that he had not been able to provide
an Explanatory Memorandum in sufficient time for it to be considered
by the previous Committee "before the Decision must be adopted
in the EU."
16.10 He then continued as follows:
"It is necessary to adopt the measures in this
Council Decision at the FAC on 22 February so they are in effect
before the current measures expire on 27 February. There is a
Justice and Home Affairs Council on 25 February, but this would
not provide sufficient time for both Committees to scrutinise
the proposals. As a result, I will have to agree to the adoption
of this Decision before your Committee has cleared it from scrutiny.
"This failure to allow your Committee to fully
scrutinise the Decision has come about as negotiations on the
rollover of restrictive measures continued until 10 February,
after your last meeting before the FAC."[60]
16.11 The Minister then refers to the commitment
made in February 2009 by his ante- predecessor, "which I
too take seriously," to keep the Committee better informed
on issues concerning sanctions, and said that:
"Since then we have written to you on several
occasions to keep you updated. I wrote to you in January forewarning
you of the impending rollover and again in February when I updated
you on the progress of the negotiations."
The previous Committee's assessment
16.12 Previous Committees judged that neither the
original imposition of these restrictions in 2004 nor the annual
renewals were of sufficient political importance to warrant a
substantive Report to the House. On this occasion, however, the
Council had decided on a change of tack. As the Minister made
clear, it was now up to those whom the measures affect to respond
appropriately.
16.13 With regard to the scrutiny over-ride, the
Committee found the then Minister's explanation disappointing
and unconvincing. He had indeed informed the Committee, in a general
letter of 14 January 2010 about EU targeted measures against Zimbabwe
and other countries, that there were differing views among Member
States about whether or not to maintain at least some measures,
explaining that his view was that it was too early to lift them
completely but that he agreed with the Moldovan authorities that
the list should be reviewed and become more targeted; he had also
noted that the present measures would expire on 27 February 2010.
But neither they nor their Lords' counterparts (nor his own office)
was able to locate the second letter — purportedly in February
updating them on the progress of the negotiations — to which
the then Minister referred.
16.14 In any case, since the then Minister knew that
it was due to meet on 24 February 2010, the previous Committee
saw no reason why he could not have arranged for the proposal
to be submitted to the Justice and Home Affairs Council on 25
February, since there would then have been at least the possibility
of there being no over-ride. The previous Committee therefore
asked him to explain how it came not to receive both the letters
that he prayed in aid and what he intended to do to ensure that
such a failure did not recur, and to assure it that on any such
future occasion he would take every opportunity to postpone adoption
by the Council until this Committee had had the chance that it
could have had on this occasion to scrutinise the document in
question before it was adopted.
16.15 The previous Committee then cleared the document.
In so doing, however, it asked the Minister to let the Committee
know, in good time ahead of the Council meeting concerned, what
the reaction had been to the suspension, what his views were on
that reaction, and what course of action he would be seeking to
pursue in the Council prior to the September review.
16.16 In a letter of 23 March 2010, the then Minister
for Europe (Chris Bryant) again apologised for being "forced
to override scrutiny to ensure the adoption of the new Decision
before the existing measures expire", which he attributed
to "an error by the FCO who were unclear when the Scrutiny
Committees were sitting after the recess in February", and
said that "the relevant teams within the FCO are discussing
how to prevent this error occurring again." He also apologised
that his letter, written at the end of January, "intended
to keep your Committee up to date in case there was a need to
rush scrutiny" was not sent to you until 25 February. This
was, he said, "due to an administrative error in my office
and, as I regard keeping your committee informed on sanctions
matters as an important task, I will endeavour to ensure this
does not happen again."
The draft Council Decision
16.17 In the preamble, the draft:
— recalls
that Council Decision 2010/105/CFSP[61]
renewed the restrictive measures until 27 February 2011 and their
application was suspended until 30 September 2010;
— proposes that:
- on the basis of a re-examination
of Common Position 2008/160/CFSP, the restrictive measures should
be extended until 30 September 2011;
- "in order to encourage progress in reaching
a political settlement to the Transnistrian conflict, addressing
the remaining problems of the Latin-script schools and restoring
free movement of persons," the restrictive measures should
be suspended until 31 March 2011;
— says
that, at the end of that period, the Council will review the restrictive
measures in the light of developments, notably in the areas mentioned
above;
— and notes that the Council may decide
to reapply or lift travel restrictions at any time.
16.18 In his Explanatory Memorandum of 16 September
2010, The Minister for Europe (David Lidington) says that renewing
the measures but suspending them until 31 March 2011 is "in
the hope that this will encourage the Transnistrian leadership
to engage with the Moldovan Government and the EU."
16.19 The Minister also states that the procedures
for designating individuals are fully compliant with fundamental
rights:
"Individuals may only be listed where evidence
exists that they are engaged in the activities listed under Article
1 of the Common Position. Individuals subject to a travel ban
would be entitled to challenge the implementation or application
of such a ban in the General Court of the European Union. In addition,
the draft Council Decision provides that Member States may grant
exemptions from the travel ban for specified reasons including,
inter alia, where travel is justified on the grounds of
humanitarian need."
The Government's view
16.20 The Minister goes on to welcome a further
renewal of the travel ban, and continues as follows:
"This renewal continues to send a strong political
signal that the behaviour of the Transnistrian leadership is unacceptable
to the EU whilst encouraging them to return to the negotiating
table, to pursue any negotiations as transparently as possible
and to conclude a settlement acceptable to all concerned. If at
the end of the suspension in March 2011, consensus within the
EU is not reached to renew the suspension, or lift the sanctions,
then the travel ban will be reimposed by default. This ensures
the sanctions measures do not simply lapse."
16.21 As with his predecessors, the Minister also
says that the sanctions regime continues to be regularly monitored
to ensure that the most appropriate measures are being taken.
The Minister's letter of 15 September 2010
16.22 The Minister begins by regretting that he has
not been able to provide an Explanatory Memorandum in sufficient
time for it to be considered by the Committee before the Decision
must be adopted in the EU. He says that the draft Decision was
only provided on 9 September; that it is necessary to adopt the
measures in this Council Decision by 30 September so they are
in effect before the current measures expire; that there was insufficient
time to provide an Explanatory Memorandum and the proposed draft
Council Decision prior to the last Committee meeting on 15 September;
and that, as a result, he will have to agree to the adoption of
this Decision before the Committee has cleared it from scrutiny.
16.23 The Minister goes on to say that extending
the restrictive measures for a further 12 months, whilst at the
same time extending the suspension of the travel ban until 31
March 2011, is in line with the UK's negotiating position; that
if this Decision were not to be updated by 30 September, sanctions
would automatically lapse; and that this would be "an outcome
that we do not wish to see".
16.24 The Minister then says the responsibility to
keep the Committee informed on issues concerning sanctions "is
something I take seriously". Firstly, he refers to an earlier
letter of 22 July of this year, prior to the summer recess, advising
of the measures likely to be adopted during that period, including
on Moldova; and then says that he followed this up with a letter
on 8 September, updating the Committee on upcoming sanctions negotiations,
including the measures to be adopted against Moldova, and the
Government's position.
16.25 The Minister concludes by saying that he "will
be writing to Cathy Ashton, the EU High Representative for Foreign
Affairs, to emphasise the EU's responsibility to provide draft
decisions in a timely fashion, to ensure that national parliaments
have a proper opportunity to scrutinise EU legislation."
16.26 In the first of the letters under reference,
the Minister said:
"To encourage progress in reaching a political
settlement to the Transnistrian conflict, addressing the remaining
problems of the Latin-script schools and restoring free movement
of persons between Moldova and the Transnistrian region, the restrictive
measures were suspended until 30 September 2010. At the end of
that period, the Council will review the restrictive measures
in the light of developments, notably in the areas mentioned above.
The Council may decide to reapply or lift travel restrictions
at any time. In September the EU will decide whether to
continue to suspend, lift or re-impose the travel ban on selected
individuals in the Transnistrian leadership"
16.27 In his second letter, the Minister said:
"The sanctions have been suspended since February
to encourage progress on settlement negotiations, on ending the
harassment of Latin Script schools and on improving the free movement
of people between Moldova and Transnistria. Although there has
been more regular contact between the relevant parties, there
has been no significant improvement in these areas. However, we
assess that pushing to re-impose their effect could be counter-productive,
especially in the run-up to the Transnistrian elections in December.
In light of the fact that the sanctions measures currently require
renewal in February 2011, we are pushing for sanctions measures
to be extended until June 2011, but for their suspension to remain
in effect until February 2011. This will allow us to review progress
in light of the Transnistrian elections, whilst eliminating the
risk of losing the sanctions measures altogether at the beginning
of the year."
Conclusion
16.28 There is a history of ministerial protestations
about commitment to prior scrutiny of decisions on sanctions regimes,
accompanied by expressions of regret at failures to do so. On
this occasion, we are not entirely clear why an Explanatory Memorandum
could not have been provided in time for our 15 September meeting.
That said, we are conscious of the Minister's endeavours to keep
the Committee informed about developments and the Government's
position prior to the emergence of the draft Decision. Against
this background, on this occasion and in these circumstances,
we do not object to his having over-ridden scrutiny.
16.29 We also note his determination to apply
pressure to the usual source of the problem, and ask the Minister
to let us know how the High Representative responds to his representations.
16.30 Looking further ahead, it is not clear what
is likely to happen at the end of the suspension in March 2011.
Much would seem to depend on the outcome of elections in Transnistria
in December. Whether or not consensus within the EU is reached
to renew the suspension, or lift the sanctions, or if the travel
ban is reimposed by default, a further Council Decision will presumably
be required. We would therefore like the Minister to let us know
in good time prior to then what the reaction has been to the further
suspension, what his views are on that reaction, and what course
of action he will be seeking to pursue in the Council ahead of
the end-March deadline.
16.31 We now clear the Council Decision.
60 A reference to the previous Committee's meeting
on Tuesday 9 February 2010, on the eve of the February 2010 recess. Back
61
OJ L 46, 23.2.2010, p. 3. Back
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