5 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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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 15 February 2011
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| Previous Committee Report | (31949) 13615/10 and (32472) —: HC 428-xvi (2010-11), chapter 6 (9 February 2011)
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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 | (a) Cleared
(b) Not cleared; Minister to be asked to give evidence
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Background
5.1 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
5.2 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
5.3 The agreement 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. As the Commission notes, the PCA contains legally
binding commitments which it describes as 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." The Commission
further notes that the Agreement:
— 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.
5.4 Politically, the Commission describes the
PCA as marking 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 as paving the way for enhancing
political, regional and global cooperation between two like-minded
partners; and as a basis for the promotion of the EU's broader
political and economic interests in a region that is traditionally
oriented towards China and the United States.
Previous consideration
5.5 In his Explanatory Memorandum of 31 January
2011, the Minister for Europe (Mr David Lidington) described the
PCA as key to strengthening the EU's relationship with the Philippines
and more widely the EU's role in South-East Asia. He highlighted
the prospect of cooperation on market access and the Agreement
being a necessary precursor to an eventual EU Free Trade Agreement
with the Philippines. He also noted that it 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 that it contains
a legally binding commitment by the Philippines to respect human
rights as well as obligations in the areas of Counter Terrorism
and WMD, and on combating terrorism and transnational crimes.
He also drew attention to the endorsement of the Philippines by
the Foreign Secretary and the National Security Council as "an
emerging power for enhanced UK engagement".
5.6 Turning to the legal bases of the Agreement,
the Minister said:
"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."
5.7 The Minister then explained 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 covered the amended Council Decision
which incorporates additional Title V text as a recital and includes
additional legal bases (document (b)).
5.8 He then continued 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."
The Committee's Assessment: Title V legal base
5.9 We had no questions to raise about agreement
per se, which we felt was plainly to be welcomed. However,
we were unclear about the appropriateness of the legal basis upon
which the Government said that it was proposing to exercise the
right not to opt into certain provisions.
5.10 The Minister's Explanatory Memorandum said
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 were told that this was because the obligation on the Philippines
to readmit its nationals in Article 26(3) was the exception to
the general terms of the agreement, in that it set out a "clear
commitment". But, we noted, 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 struck
us as an equally clear (and extremely sensitive) commitment and
we asked the Minister to explain why the relevant legal base,
Article 87 TFEU, had not been cited.
5.11 In the absence of the citation of other
Title V legal bases we also asked 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 said the opt-in did 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.
5.12 In the same correspondence we were 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 were 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 drew 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
were we in trying to scrutinise the legal effects of this agreement.
Additionally, as we noted, 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";[27]
— 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 Community law which prescribes the legal form to be taken by
that act and which must be expressly indicated therein as its
legal basis."[28]
5.13 Thus, without further explanation, we were
unable 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
concluded 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.
5.14 We also noted 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 asked
the Minister to say why the CFSP legal base, Article 37 TEU, has
not been cited.
5.15 In the meantime, the draft Council Decision
was retained under scrutiny.
The Minister's letter of 15 February 2011
5.16 The Minister says that he is writing to
address the questions raised by the Committee, which he does as
follows:
"The Committee asks why the Explanatory Memorandum
states that Articles 10, 11, and 23-27 of the agreement fall within
the scope of Title V. We have reviewed the EM and, in agreement
with the Committee, found this statement in the EM to be an error.
"The proposed agreement is a mixed agreement
containing elements which remain within Member State competence
as well as matters falling within the EU's competence. The proposed
Council Decision on signature only covers the elements of the
agreement for which the EU is assuming responsibility. The Member
States will also sign the agreement in their own right. The provisions
of Title 2 of the PCA (Articles 5-11) are political commitments
which are being entered into by the Member States in their own
right and so do not need to be covered by the Council Decision.
Hence no legal bases covering these particular provisions are
cited. In any event Article 10 makes it clear that any sharing
of information should be pursuant to existing international and
domestic law commitments and does not therefore amount to the
creation of any new information sharing channels.
"The Committee asks specifically why no Title
V legal base has been cited in order to cover the obligations
set out in Article 10 of the PCA. This is because these commitments
are being entered into by Member States rather than by the EU
acting on their behalf. As stated above there is only a need to
cite legal bases in the Council Decision in respect of the measures
in the agreement which the EU is proposing to sign up to in its
own right — there is no need for a Title V legal base to
be cited where it is the Member States who are assuming the commitments
or obligations under the agreement with a Third Country in their
own right.
"The Articles of the agreement which do fall
within the scope of Title V are Articles 15, 20, 21, 22, 23, 25
and 26. Nevertheless, the nature and particular commitments contained
in these provisions need to be carefully examined when the choice
of legal basis is made. The position of the EU Institutions is
that it will only be necessary to add a corresponding legal basis
where a specific obligation or substantial commitment is made.
Accordingly, commitments which provide for specific obligations
or which involve provision or funding by the Union or the participation
of third countries in EU programmes may serve as criteria in such
an examination. Conversely commitments providing simply for consultation
do not in themselves require the use of a specific legal basis.
With the exception of Article 26(3) of the agreement most of the
provisions in Titles IV and V of the Agreement are formulated
in general terms that are not particularly binding. This is why
the EU Institutions have proposed that Article 79(3) TFEU is the
only Title V legal base that needs to be cited in the agreement.
"As stated above, we agree with the Committee
that Articles 11, 24 and 27 do not fall within the scope
of Title V.
"As stated above, we agree with the Committee
that Articles 21 and 22 do fall within the scope of Title
V but for the reasons stated they do not require a legal basis
to be cited.
"The Committee has commented that it is surprised
by the Government's view that whenever a measure covers a matter
which falls within the JHA field the Title V opt-in is applicable
and that this is not dependent on the citation of a Title V legal
base. Our view is that in light of the purpose of the Protocol
— namely to ensure that the UK and Ireland can decide whether
they wish to participate in EU action on justice and home affairs
— the words 'no provision of any international agreement
concluded by the EU pursuant to that Title [V]' must be interpreted
as meaning that the Protocol applies to any measure including
Title V content. In support of this point I would echo the following
comments made by my colleague, Minister for Employment Relations,
Consumer & Postal Affairs, Edward Davey, in a letter to the
European Scrutiny Committee on this same issue on 11 October 2010:
'As regards consistency with the terms of the Title
V Protocol, my view is that the wording of Article 2 of the Title
V Protocol supports the interpretation that the UK opt-in applies
to the provisions of international agreements which fall within
the scope of Title V even where the relevant Council Decision
to sign and conclude does not cite a Title V legal base. Importantly
Article 2 refers to a separable "provision" of an international
agreement not being binding on the UK in the absence of an opt-in,
rather to a "measure" not binding the UK in its entirety.
In my view this indicates that the crucial question in assessing
whether the protocol applies is whether a specific provision
of an international agreement falls within the scope of Title
V rather than whether the agreement taken as a whole justifies
the inclusion of Title V legal base in the Council Decision to
sign and conclude.
'I would also argue that this interpretation of the
terms of Article 2 is the one which is most consistent with the
intention behind the Title V Protocol. In contrast, interpreting
the Protocol so as to make the application of the UK's opt-in
conditional on the citation of a Title V legal base would shift
the focus from whether the content of a provision of an international
agreement falls within the scope of Title V to a formalistic consideration
of whether a decision has been taken to include a particular legal
base.'
"We agree with the Committee that for clarity
the EU should cite Title V legal bases where possible, but it
is clear from the ECJ's case-law that legal bases will not be
cited in respect of every different provision in an Agreement.
"Regarding the question raised by the Committee,
Articles 7 and 8 of the Agreement fall within Member State competence
for the purposes of the Agreement. As they do not fall within
the EU part of the Agreement the Council Decision does not refer
to an EU legal base for these Articles."
Conclusion
5.17 The Minister's letter of 15 February
does not answer our concerns; rather, it contains assertions that
do not appear to be borne out by a reading of either the draft
Council Decision or the agreement, or an understanding of the
role of EU institutions in the operation of Partnership and Cooperation
Agreements (of which, as the Minister noted in his EM, this is
one of seven at various stages of negotiation with South East
Asian countries).
5.18 Whilst we have no wish to hold up the
adoption of the agreement, there is sufficient legal uncertainty
surrounding it that we are unable to clear it from scrutiny.
5.19 In light of our concerns with the letter,
we do not think that further correspondence with the Minister
would assist us. The better course is to ask the Minister to come
in to explain in oral evidence the Government's approach to this
agreement — that evidence to concentrate on the points raised
in our previous Report on this agreement and his replies in the
letter of 15 February. As well as the other PCAs being negotiated,
there are other international agreements on which the Government's
assertion of its right to opt-out is, we think, legally uncertain;
so the Minister's explanation and justification of the Government's
policy in this regard would be useful for wider scrutiny purposes.
5.20 We do, however, clear document (a), as
this has been overtaken by the revised text now under discussion
(document (b)), which remains under scrutiny.
27 C-45/86, paragraph 9. Back
28
C-325/91, paragraph 26. Back
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