Documents considered by the Committee on 9 February 2011 - European Scrutiny Committee Contents

6   EU-Philippines relations




COM(10) 460



Council Decision on the signing of the Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States and the Republic of the Philippines

Amended draft Council Decision on the signing of the Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States and the Republic of the Philippines

Legal baseArticles 79(3), 91, 100, 191(4), 192, 207 and 209 in conjunction with Article 218(5)TFEU; QMV
Document originated(a)  6 September 2010

(b)  —

Deposited in Parliament(a)  17 September 2010

(b)  —

DepartmentForeign and Commonwealth Office
Basis of considerationEM of 31 January 2011
Previous Committee ReportNone
To be discussed in Council21 February General Affairs/Foreign Affairs Council
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


6.1  In November 2004, the Council authorised the negotiation with Thailand, Indonesia, Singapore, the Philippines, Malaysia and Brunei of individual Framework Agreements on Partnership and Cooperation (PCA). Negotiations with the Philippines were launched in February 2009 and concluded with the initialling of the PCA by both sides on 25 June 2010.

The Council Decision

6.2  The Council Decision authorises the High Representative of the Union for Foreign Affairs and Security Policy (HR) to sign the PCA on behalf of the European Union. The text of the Agreement is attached to the Decision

6.3  The Commission notes that the PCA with the Philippines is the second of its kind in South East Asia, following the PCA with Indonesia, which was signed in November 2009, and the first-ever bilateral agreement with the Philippines (thus superseding the current legal framework of the 1980 Cooperation Agreement between the European Economic Community and member countries of the Association of South-East Asian Nations (ASEAN)). The Commission further notes that the PCA contains legally binding commitments which are "central to the EU's foreign policy", including provisions on human rights, non-proliferation, counter-terrorism, the International Criminal Court, migration and taxation, as well as "areas of current interest such as the peace process and disaster risk management."

6.4  The Commission goes on to say that the PCA:

  • broadens considerably the scope for mutual engagement in the economic and trade domain as well as justice and home affairs, and provides opportunities for cooperation in areas such as the environment and climate change, energy, and science and technology, as well as maritime and air transport;
  • addresses money laundering and terrorist financing, illicit drugs, organised crime and corruption;
  • has an important development component, including, for the first time, strict provisions for the protection of the EU's financial interests; and
  • also has an important trade cooperation section, which should facilitate free trade agreement (FTA) negotiations in accordance with EU policy to conclude FTAs with ASEAN countries.

6.5  Politically, the Commission notes, the PCA "marks an important step towards strengthening the EU's role in South-East Asia, based on shared universal values such as democracy and human rights [and] paves the way for enhancing political, regional and global cooperation between two like-minded partners." It sees implementation of the PCA as entailing practical benefits for both sides and as "a basis for the promotion of the EU's broader political and economic interests", which it regards as "particularly important in a region that is traditionally oriented towards China and the United States."

The Government's view

6.6  In his Explanatory Memorandum of 31 January 2011, the Minister for Europe (Mr David Lidington) describes the PCA as key to strengthening the EU's relationship with the Philippines and more widely the EU's role in South-East Asia. On trade and investment issues, he notes that the PCA establishes cooperation on market access, in particular through the timely removal of non-tariff barriers and restrictions to trade and through measures to improve transparency, and says that it is a necessary precursor to an eventual EU Free Trade Agreement with the Philippines.

6.7  The Minister also notes that the agreement also establishes cooperation in the areas of:

  • migration and maritime labour;
  • promoting public sector reform, particularly in the area of public finance management to improve the delivery of social services; and
  • reducing the impact and managing the consequences of climate change;

and contains a legally binding commitment by the Philippines to respect human rights as well as obligations in the areas of Counter Terrorism and Weapons of Mass Destruction (WMD), and on combating terrorism and transnational crimes.

6.8  From a UK perspective, the Minister draws attention to the endorsement of the Philippines by the Foreign Secretary and the National Security Council as "an emerging power for enhanced UK engagement", elaborating on this as follows:

"The US remains uniquely influential in the Philippines, and Japan and Australia have strong presences backed by big aid programmes, whilst China and Korea are increasingly influential as trade and investment partners. However the UK is the largest EU investor in the Philippines and our credentials are further reinforced as members of the International Contact Group (together with Japan, Turkey and Saudi Arabia) assisting peace talks to end the separatist conflict in the Muslim majority areas of Mindanao. As such we are well placed to benefit from improved commercial cooperation and market access.

"Our vision for the UK relationship with the Philippines is to secure maximum benefit for the UK and British business from the development of the Philippines as a stable democracy and high-growth economy in East Asia, and as a progressive partner for the UK in ASEAN and internationally. This PCA paves the way for an EU Free Trade Agreement with the Philippines which is desirable to create a more open environment and level playing field for foreign business.

"The PCA will provide an additional channel through which we can pursue UK objectives on human rights, which are protected in the Philippines' law but not always upheld."

6.9  Turning to the legal bases of the Agreement, the Minister says:

"Several provisions of the Agreement contain content which falls within the scope of Title V (Area of Freedom, Justice and Security) of the Treaty on the Functioning of the European Union (TFEU), notably Articles 10, 11, 23-27. While as a result Protocol 21 to the TFEU (the JHA opt-in protocol) applies to the Council Decision to sign this agreement, as the agreement is a mixed agreement (i.e. it is between the Philippines and the EU and its Member States) it is open to the UK to participate in these elements of the agreement in our own right rather than to opt-in and to participate in them as part of the EU.

"This position is made clear by paragraph 20 of the preamble to the Agreement noting the UK, Ireland and Denmark's participation and by a recital to the Council Decision. In light of these provisions we do not propose to opt-in to the Title V elements of the agreement and will instead sign up to those obligations in our own right."

6.10  The Minister then explains that:

  • the final PCA text and proposal for a Council Decision (document (a)) was deposited in Parliament on 17 September 2010 when it was received by the Cabinet Office;
  • it later went through jurist linguists and the final Council Decision, including additional language on Title V was agreed at working level under silence procedure on Friday 8 October 2010;
  • his EM covers the amended Council Decision which incorporates additional Title V text as a recital and includes additional legal bases (document (b)).

6.11  He then continues as follows:

"The additional Title V text inserted as point 3 in the amended Council Decision reads:

"The provisions of this Agreement that fall within the scope of Part Three, Title V of the Treaty on the Functioning of the European Union bind the United Kingdom and Ireland as separate Contracting Parties, and not as part of the European Union, unless the European Union together with the UK and/or Ireland have jointly notified the Republic of the Philippines that the United Kingdom or Ireland is bound as part of the European Union in accordance with Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union. If the United Kingdom and/or Ireland ceases to be bound as part of the European Union in accordance with Article 4a of the Protocol No. 21, the European Union together with the UK and/or Ireland shall immediately inform the Republic of the Philippines of any change in their position in which case they shall remain bound by the provisions of the agreement in their own right. The same applies to Denmark in accordance with the Protocol annexed to those Treaties on the position of Denmark.

"Once signed, any further consultations could possibly result in an amended text which will be subject to the usual scrutiny processes.

"The Title V additional text is now incorporated into the amended Council Decision text as a recital. We agreed that the recital included in the preamble, as initialled in June and explaining the UK's position will not be amended to mirror the new wording proposed for the Council Decision. We believe that reopening the text would lead to a delay in progress and we are satisfied that the text protects our position."

6.12  The Minister concludes by noting that:

  • this is one of seven PCAs at various stages of negotiation with South East Asian countries;
  • pending scrutiny, the UK has placed a parliamentary scrutiny reserve on the text of this Council Decision; and
  • he hopes to be able to lift this reserve in time for the GAC/FAC on 21 February 2011 so that final signature of the PCA can take place on 23 February 2011.

The Minister's letter of 7 February 2011

6.13  In a letter submitted after his EM, the Minister writes to inform the Committee that the Council Decision on the signing of the Framework Agreement has been further revised:

"The Council Legal Service has decided to amend the environmental legal base cited in the version of the Council Decision sent to the Committee on 31 January. I attach a revised Council Decision, which reflects the change. Article 192(1) now replaces the earlier reference to article 191(4) of the Treaty on the Functioning of the European Union. We are of the view that this is the better approach. Article 192 is the substantive legal base in question which is required, not 191(4), which is more of a procedural legal base."



6.14  The agreement is plainly to be welcomed. However, we are unclear about the appropriateness of the legal basis upon which the Government says that it is proposing to exercise the right not to opt into certain provisions. The Minster's Explanatory Memorandum says that Articles 10, 11, and 23-27 of the agreement fall within the scope of Title V, yet the Title V legal base in the draft Council Decision is limited to Article 79(3), which concerns readmission agreements. In informal correspondence with the Minister's officials we are told that this is because the obligation on the Philippines to readmit its nationals in Article 26(3) is the exception to the general terms of the agreement, in that it sets out a "clear commitment". But we note that Article 10(2) d) requires the EU Member States and the Philippines to cooperate "by exchanging information on terrorist groups and their support networks in accordance with international and national law". This strikes us as an equally clear (and extremely sensitive) commitment and we ask the Minister to explain why the relevant legal base, Article 87 TFEU, has not been cited.

6.15  In the absence of the citation of other Title V legal bases we also ask the Minister to explain:

i)  where in Title V the legal bases for Articles 11—cooperation in public administration, 24 —protection of personal data and 27—maritime labour, education and training are to be found; and

ii)  why he says the opt-in does not apply to Articles 21—cooperation in combating illicit drugs and 22—cooperation in combating money laundering and terrorism financing, the legal bases for which, conversely, are to be found in Title V.

6.16  In the same correspondence we are also told that the Government's position on the opt-in Protocol (No. 21) is that it is engaged whenever a measure covers a matter which falls within the JHA field, but that this is not dependent on the citation of a Title V legal base. We are surprised by this. By virtue of Article 2 of the opt-in Protocol "no provision of any international agreement concluded by the Union pursuant to that Title [V]" can be binding on the UK unless it opts into it. From this we draw the logical inference that the Decision to conclude the agreement has to state on its face that some of its provisions are concluded pursuant to Title V, otherwise those concerned by it are left unsure as to its precise legal effect in the UK (and Ireland and Denmark)—as indeed we are in trying to scrutinise the legal effects of this agreement. Additionally, the Court of Justice has been clear on the requirement to state a legal base: "explicit reference [to the legal base] is indispensable where, in its absence, the parties concerned and the Court are left uncertain as to the precise legal basis".[46] The Court has also held that the requirement of legal certainty means that the binding nature of any act intended to have legal effects must be derived from a provision of EU law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis.[47]

6.17  Without further explanation we cannot agree with the Government's assertion that a Title V legal base is unnecessary for it to assert that the opt-in Protocol applies to provisions of an international agreement. Rather, we think that the source of the power in EU law not to be bound by a provision of an EU international agreement has to be clearly stated.

6.18  We also note that the agreement contains obligations that fall within the remit of the CFSP as opposed to development cooperation—for example Article 7 on the International Criminal Court, for which the EU's mandate to act is contained in a CFSP common position, or Article 8 on countering the proliferation of Weapons of Mass Destruction. Again, we ask the Minister to say why the CFSP legal base, Article 37 TEU, has not been cited.

6.19  Until we have received satisfactory responses to the questions above, the draft Council Decision remains under scrutiny.

46   C-45/86, paragraph 9. Back

47   C-325/91, paragraph 26. Back

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