6 EU-Philippines relations
| (a)
(31949)
13615/10
COM(10) 460
(b)
(32472)
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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
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| Legal base | Articles 79(3), 91, 100, 191(4), 192, 207 and 209 in conjunction with Article 218(5)TFEU; QMV
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| Document originated | (a) 6 September 2010
(b) —
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| Deposited in Parliament | (a) 17 September 2010
(b) —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 31 January 2011
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| Previous Committee Report | None
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| To be discussed in Council | 21 February General Affairs/Foreign Affairs Council
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
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."
Conclusion
TITLE V 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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