European Scrutiny Committee Contents


5   EU-Philippines relations

(a)  

(31949)

13615/10

COM(10) 460

(b)

(32472)


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
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 15 February 2011
Previous Committee Report(31949) 13615/10 and (32472) —: HC 428-xvi (2010-11), chapter 6 (9 February 2011)
To be discussed in Council21 February General Affairs/Foreign Affairs Council
Committee's assessmentLegally and politically important
Committee's decision(a)  Cleared

(b)  Not cleared; Minister to be asked to give evidence

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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