Documents considered by the Committee on 19 June 2013 - European Scrutiny Committee Contents


11 EU-Iraq relations

(a)

(34616)

10209/12



(b)

(32177)

16179/10

COM(10)638


Draft Council Decision on the conclusion of a Partnership and Cooperation Agreement between the European Union and its Member States, and the Republic of Iraq


Draft Council Decision on the conclusion of a Partnership and Cooperation Agreement between the European Union and its Member States, and the Republic of Iraq

Legal baseArticles 79(3), 91, 100, 192(1), 194(4), 207, 209 and Article 218(5) TFEU; QMV
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 28 January 2013
Previous Committee ReportHC 86-xxii (2012-13), chapter 7 (5 December 2012)
Discussion in CouncilDecember 2012
Committee's assessmentLegally important
Committee's decisionCleared

Previous scrutiny

11.1 In March 2006 the Council authorised the Commission to negotiate a Trade and Cooperation Agreement with Iraq. Negotiations were launched in November 2006 and the final agreed text concluded in November 2009 in Brussels. The text was then amended in light of the Lisbon Treaty. In February 2009 in Baghdad, both Iraq and the EU agreed to amend the status of the draft Agreement, from a "Trade and Cooperation Agreement" to a "Partnership and Cooperation Agreement" (PCA). A more detailed background to the PCA is set out in our earlier Report.[58]

11.2 The PCA was signed in Brussels in May 2011. Member States have to ratify it before the Council Decision on conclusion is adopted. There is not a fixed timetable for the ratification process; it takes on average between 18 months and two years.

11.3 When we last reported we noted that the legal base for the draft Council Decision on conclusion of the PCA was to be updated to include one Title V legal base — Article 79(3) TFEU on readmission agreements. We kept the draft Decision under scrutiny and asked the Minister to deposit a revised draft, and to ensure that his accompanying Explanatory Memorandum:

—  identified the provisions of the PCA which, in his view, created specific obligations for the EU and justified the citation of a Title V legal base;

—  set out the relevant legal bases in Part 3, Title V TFEU which the Government believed should be cited; and

—  if they were not cited, explained what further action the UK intends to take to protect its Title V opt-in.

The Government's view

11.4 In his Explanatory Memorandum of 28 January 2013, the Minister for Europe (Mr David Lidington), says that the opt-in Protocol (No. 21 to the EU Treaties) provides that in cases where justice and home affairs (JHA) obligations are being entered into by the EU, the UK and Ireland can choose whether or not to opt in and therefore to participate in those measures as part of the EU. If the UK chooses not to opt into such provisions and an agreement is mixed, so if it is between a third country (in this case Iraq) and the EU and its Member States, it is open to the UK to sign up to these elements of the PCA in its own right. This position is made clear in the preamble to the PCA noting the UK, Ireland and Denmark's participation and by a recital to the Council Decision.

11.5 The Minister confirms that the revised Council Decision on conclusion contains a Title V legal base —Article 79(3) TFEU— which engages the opt-in Protocol, and that the UK has signed up to this Article in its own right rather than as part of an EU obligation.

11.6 He says it is the UK's position that Articles 25 (Mode IV arrangements), 103 (judicial cooperation), and 105(5) (cooperation on migration and asylum, including reference to a future readmissions agreement) also fall under Part 3, Title V TFEU. However, no Title V legal bases other than 79(3) TFEU need be cited in the Council Decision on conclusion. It is the UK's practice not to press for a legal base on Mode IV. On judicial co-operation, Article 103 is aspirational rather than imposing concrete obligations. Furthermore, the judicial cooperation provisions concern cooperation between EU Member States and Iraq rather than intra-EU judicial cooperation, so this would fall under Member States' competence.

Conclusion

11.7 As the Minister is aware, for reasons of legal certainty and transparency we have consistently taken the view that the citation of a Title V legal base in an EU international agreement is essential to engage the UK's Title V opt-in. We think that a unilateral assessment of whether a provision of an EU international agreement falls within Title V, and as a consequence the absence of a Title V legal base, will inevitably lead to legal uncertainty.

11.8 We note the Minister's opinion that Articles 25 (Mode IV arrangements), 103 (judicial cooperation), and 105(5) (cooperation on migration and asylum, including reference to a future readmissions agreement) also fall under Part 3 of Title V, despite the absence of relevant legal bases. We have made our views plain on the application of Title V to this and other PCAs and, noting the issue is currently subject to litigation before the ECJ in relation to an EEA agreement, we are content to draw a line under our opposing views on this document.

11.9 We have no further questions to ask and clear both documents from scrutiny.


58   See headnote. Back


 
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Prepared 27 June 2013