Twelfth Report of Session 2013-14 - European Scrutiny Committee Contents

20   EU enlargement: Serbia and Kosovo





Joint Report on Serbia's progress in achieving the necessary degree of compliance with the membership criteria and notably the key priority of taking steps towards a visible and sustainable improvement of relations with Kosovo

Joint Report on Kosovo's progress in addressing issues set out in the Council Conclusions of December 2012 in view of a possible decision on the opening of negotiations on the Stabilisation and Association Agreement

Legal base
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letters of 6 and 25 June 2013
Previous Committee ReportsHC 83-iii (2013-14), chapter 24 (21 May 2013): also see (34319) 14853/12, (34324) 14860/12, (34325) 14861/12 and (34328) 14864/12: HC 86-xvi (2012-13), chapter 6 (24 October 2012)
Discussion in Council25 June 2013 General Affairs Council (GAC) and 28 June European Council
Committee's assessmentPolitically important
Committee's decisionCleared; further information requested (reported to the House on 21 May 2013); further information now provided


20.1  The Council is responsible for decisions on the admission of new Member States: the Commission's annual report has traditionally provided the basis for the Council to take stock and give direction to the accession negotiations and pre-accession reform priorities. Commission Communication 14853/12, Enlargement Strategy and Main Challenges 2012-13, accordingly provided a statement of the EU's evolving enlargement strategy, an assessment of progress, and a look forward to the challenges and priorities for 2012.

20.2  The December 2012 GAC agreed conclusions on the reports on individual enlargement countries. Inter alia, these noted that the Council would return to the questions of Serbia opening accession negotiations, and of Kosovo opening negotiations on a Stabilisation and Association Agreement (SAA), under the next Presidency, with reports to be presented on these issues by the Commission and High Representative/Commission Vice President in Spring 2013. The reports would provide a basis for the Council to take stock and give direction ahead of enlargement discussions and possible decisions at the 25 June 2013 GAC.

20.3  The report on Serbia analyses the further progress towards meeting the Copenhagen criteria for membership: particularly the areas in which the December GAC conclusions called for further action. The Kosovo report analyses specific issues set out in the December GAC conclusions concerning Kosovo's readiness to negotiate an SAA. The details are set out in our previous Report.[66]

20.4  The Minister for Europe (Mr David Lidington) supported the negotiation of an SAA with Kosovo as the first step towards future EU membership (Kosovo's leaders having worked hard to ensure that the four short-term criteria were met in the period following the December GAC conclusions): but to ensure lasting change, it would be important to see concrete implementation of the necessary reforms required by such an agreement. He undertook to ensure that the Commission's proposed Council Decision on opening the SAA negotiations would be examined carefully, as with all third-country agreements; and, in line with the usual practice, would write to the Committee once the Decision had been adopted in Council.

20.5  As for Serbia, he and other Member States, especially Germany, were looking for implementation now of the "First agreement of principles governing the normalisation of relations", initialled in Brussels on 19 April by the Prime Ministers of Serbia and Kosovo — particularly the dismantling of the "parallel structures" of Serbian governance in northern Kosovo. He was "hopeful that Serbia will seize the opportunity by rapidly implementing the actions necessary"; would therefore only take a final decision on support for opening accession negotiations shortly before the June European Council; and would update the Committee on further progress before a final decision was taken.

Our assessment

20.6   The "First agreement of principles governing the normalisation of relations", brokered (over no fewer than ten rounds of talks) by the High Representative, had been described by "The Economist" as "nothing short of historic". However, as the President of the European Council said on 19 April:

"Concrete results in the implementation are critical; there are no shortcuts. The necessary criteria, that will allow the European Union to launch accession negotiations with Serbia and negotiations on a Stabilisation and Association Agreement with Kosovo, must be fulfilled."[67]

20.7  Plainly, there was more to be done by Serbia in particular. The Government's refusal to commit itself on the key question, of whether or not to open accession negotiations, until shortly before the June European Council was understandable from a negotiating perspective. But an undertaking to update the Committee at a point by which any further questions might arise was, we felt, not conducive to proper prior Parliamentary scrutiny: the decision to open accession negotiations being a major step, after which there was effectively no going back. We therefore asked the Minister to explain the mechanism by which the Council would arrive at a conclusion; and, if by a Council Decision, when it was likely to be submitted for scrutiny.

20.8  We also noted that the Minister proposed not to deposit the Council Decision regarding opening negotiations on an SAA with Kosovo because it was "restreint", but said that he would ensure that the Commission's proposed Council decision would be "examined carefully, as with all third-country agreements", and write once the Decision had been adopted in Council. When he did so, we asked him to explain what elements of this Council Decision genuinely needed to be kept out of the public domain.

20.9  In the meantime, we cleared these documents.[68]

The Minister's letter of 6 June 2013

20.10  The Minister says: the decision to open accession negotiations, if this is taken at the June European Council, will be adopted in the form of Council Conclusions rather than by a Council Decision; in line with normal scrutiny practice, the Council Conclusions will not be deposited for formal scrutiny by Parliament; but his officials would be pleased to provide the Committee with a copy.

20.11  The Minister recalls that he has "consulted and updated scrutiny committees regularly on the Government's position on EU enlargement and on Serbia's progress in the process", and says that, as promised, will provide a further update before any agreement is reached at the June European Council.

20.12  The Minister then continues thus:

"In the interim, I am pleased to say that there has already been some further progress. On 27 May, Baroness Ashton announced the adoption of an implementation plan between Serbia and Kosovo to translate the provision of the agreement reached on 19 April into practice. The plan sets out what each side will do and to what deadlines.  Notably it includes: putting in place legislative changes needed to make progress irreversible; delivering structures which meet the security and justice needs of the local population; and the establishment of an interim Association of Serbian Municipalities until elections can be held in the Autumn. The Foreign Secretary welcomed this implementation plan, but on his visit to Belgrade on 30 May he delivered a strong message to Serbia's leaders that, for the UK to advocate a positive decision on opening accession negotiations at the European Council, we needed to see evidence of sustainable implementation. He made clear that concrete steps to dismantle security structures, and agreement on energy and telecoms, would give more confidence to the UK (and Germany) to be able to say that implementation really had started. We remain hopeful that Serbia will deliver more on this in the limited time left."

20.13  On Kosovo, with respect to our request that the Minister "explain what elements of this Council Decision genuinely needed to be kept out of the public domain", the Minister says:

"I can confirm that these classifications are not ascribed to documents lightly by the EU institutions, and that there is genuine sensitivity in the contents from the perspective of Member States. In this instance, the Directives attached to the Council Decision set out in detail the EU's negotiating position on a future SAA with Kosovo and cannot therefore be made public. I propose to write to both Parliamentary Scrutiny Committees once the draft Council Decision on opening SAA negotiations has been adopted in Council: this is in line with long-established scrutiny practice on handling Council Decisions on negotiating mandates for third-party agreements, whereby the restreint proposed Council Decisions are not deposited for formal scrutiny, but Ministers do write to update the Committees. I will continue to keep both Committees informed as negotiations progress.

"At this stage, I can inform you that, because of concerns over status, the five non-recognising member states have opposed the negotiating of any SAA which would require Member State signature and ratification. I very much regret that the five have chosen to adopt this position. My officials have been clear that we view an EU-only agreement as being very much a second best option and that our strong preference remains Kosovo being granted the same model SAA as was given to all other Western Balkans countries. We have also been clear that any EU-only SAA with Kosovo must respect the positions of member states with respect to matters of competence.

"Finally, I am mindful that your Committee has raised the question of the deposit of restreint-classified documents, such as Council Declarations, in other recent Reports. I remain mindful that classified documents should rightly not be placed in the public domain, but look forward to your Committee's forthcoming report on European Scrutiny and to considering whether there are areas where the process could be managed differently in order to facilitate more effective parliamentary scrutiny of EU business."

The Minister's letter of 25 June 2013

20.14   The Minister said that, though welcoming the 19 April agreement reached between Serbia and Kosovo through the EU-facilitated dialogue "it was not an end in itself", and he expected to see concrete action to implement the deal and make progress towards meeting the remaining December 2012 GAC conditions. The Minister then outlined a number of positive steps that Serbia had now begun to take, including "the sort of tough and public actions necessary to provide the solid evidence of irreversible progress which we have been clear is required, and to give us confidence of a firm Serbian commitment to the process of normalisation" — both of these being key factors in the Government's consideration of whether it could agree to open negotiations. But not all the conditions set out in the December GAC conclusions had been met, and some implementation plan deadlines had been missed. In order to lock Serbia into its EU path and further progress in the Dialogue, the European Council would need to find the right balance between rewarding positive action taken and ensuring that momentum in the process of concrete implementation was maintained through the rest of the year: one way forward might be to take a decision to open negotiations provided that remaining commitments in the implementation plan were met — i.e., the decision would be accompanied by a conditional date for starting accession negotiations, subject to a further review of implementation by the Council. Germany was taking "a similarly tough line on meeting conditionality." Such a positive decision must not mean that the pressure for continued progress on normalisation of relations with Kosovo was lifted:

"On the contrary, it is important that conditionality in this area is hard-wired into Serbia's negotiating framework. This will mean that Serbia will have to continue to implement all Dialogue agreements in order to move through the accession process, and that full normalisation of relations will be required before Serbia joins the EU."

The Minister's letter of 10 July 2012

20.15  The Minister declares himself pleased that — "as set out in the post European Council statements to the House" — the European Council agreed to open accession negotiations with Serbia and that a negotiating mandate for a Stabilisation and Association Agreement (SAA) with Kosovo was adopted. The Minister attaches copies of the relevant conclusions,[69] and says that these decisions "represent significant steps forward for Serbia and Kosovo on their respective EU paths".

20.16  The Minister confirms that the decision on whether to agree to open accession negotiations with Serbia "was a finely balanced one." Following his previous letter, Serbia made some further progress ahead of the European Council (a third police office in northern Kosovo was closed and agreement reached on a provisional date for municipal elections throughout Kosovo):

"The Government therefore took the decision shortly before the European Council that Serbia had made sufficient progress against the conditionality of a 'visible and sustainable improvement in relations with Kosovo' to warrant a positive decision on opening accession negotiations. As the Foreign Secretary said on 28 June, this decision reflects the determination with which Serbia has worked towards a visible and sustainable improvement in relations with Kosovo.

"Nonetheless, the Government is firmly of the view that the process of normalisation of relations with Kosovo must continue throughout the accession process, with full normalisation of relations complete before Serbia can accede to the EU. The UK therefore secured GAC conclusions which agreed that steps leading to the normalisation of relations between Belgrade and Pristina will also be addressed in the negotiating framework for the accession negotiations. In line with this, Commissioner Fule outlined at the GAC three proposals: the concept of normalisation would become part of the accession conditionality; the Commission planned to open chapter 35 of the acquis ("other issues") at the start of the negotiations and use it to allow for continual monitoring of normalisation horizontally throughout the accession process; and the negotiating framework would require "full normalisation", possibly including a legally binding agreement between Serbia and Kosovo ensuring that neither could block the other's accession process, before Serbia joined the EU.

"Moreover, the European Council has agreed that the first Inter Governmental Conference, which will see the formal opening of accession negotiations, will be held in January 2014 at the latest. Prior to this, the negotiating framework will be adopted by the Council and confirmed by the European Council at its usual session on enlargement in December. The Commission and the High Representative will continue to report to Council on Serbia and Kosovo's progress in implementation of the 19 April agreement; this will inform final decisions on the adoption of the negotiating framework and on the start of accession negotiations. I therefore expect the December GAC to review the further progress Serbia has made on normalisation of relations with Kosovo, including on energy and telecoms.

"On wider issues, the Commission will now begin pre-screening of chapters 23 and 24 of the acquis, which relate to Justice and Home Affairs issues. In line with the 'new approach' to enlargement, this will allow an early and continued focus on rule of law and on JHA related reforms as the pre-screening process will consider Serbia's progress in these areas in considerable detail.

20.17  Turning to Kosovo, the Minister continues thus:

"A good outcome was secured also for Kosovo, with the adoption of the negotiation mandate for the Stabilisation and Association Agreement (these documents, as set out in previous correspondence, are classified). As the first milestone on the road to EU membership, this sends an important signal that Kosovo's future is European. As set out previously, the five EU countries which have yet to recognise Kosovo opposed the negotiating of an SAA which would require Member State signature and ratification. I very much regret that they chose to adopt this position. Whilst we respect the non-recognisers' positions, it is evident that non-recognition complicates Kosovo's EU track.

"As the negotiating directives for the SAA are on an EU-only basis, the UK has taken a rigorous approach in ensuring that the directives are confined to areas of EU competence only and that they do not represent any shift in competence. The amendments the UK secured to the original Commission text, taken as a package and individually, are visible and strong safeguards of UK positions on matters of competence. They fortify an overarching principle of this negotiation: that an EU-only SAA is without prejudice to any future negotiations on similar agreements, or to the positions of EU institutions and Member States on competences.

"On the CFSP elements of the negotiating directives, we have secured important safeguards. The scope of CSFP matters is reduced by excluding certain elements such as those relating to non-proliferation and counter-terrorism. The negotiating directives include specific CFSP legal bases (article 37 TEU and Article 31(1) TEU). Citing Article 37 makes clear that it is the High Representative (and no one else) who will be engaging on the aspects of CFSP specified in the EU-only agreement. The Council and the Commission also agreed in a statement that the adoption of the decision to authorise the EU to negotiate an SAA with Kosovo is without prejudice to the nature and scope of any similar agreements to be negotiated in the future in particular as regards matters falling within the Common Foreign and Security Policy. This is also reiterated in the recital of in the non JHA Council Decision, 'Whereas this authorisation to negotiate an SAA with Kosovo as an EU-only Agreement is without prejudice to to the nature and scope of any similar agreements to be negotiated in future, in particular as regards the Common Foreign and Security Policy.'

"In the area of Title V JHA measures, we have secured a strong package of safeguards which protects our position fully, including through recognition of our opt-in rights in respect both of this negotiating mandate and of the future signature and conclusion stages of the agreement. We have secured language which makes clear that the outcome of negotiations on any JHA matters is not binding on the UK unless we choose to opt in. The safeguards we have secured are mutually reinforcing, and render explicit the distinct nature of JHA in relation to the SAA as a whole.

"The Council Decision on the SAA mandate was split, allowing for a separate Council Decision on JHA areas. As stated in both Council Decisions, the UK is not bound by or subject to the application of the Council Decision insofar as it relates to the Area of Freedom, Security and Justice covered by Title V of the Treaty on the Functioning of the European Union. The SAA negotiating directives now cite a substantive legal basis on JHA, (Article 79(3) TFEU) making it clear that the opt-in applies. Moreover, to address the concern that other JHA legal bases might need to be cited consequent to the outcome of the negotiations, a recital was inserted in the non-JHA Council Decision, noting that the application of the opt-in will need to be assessed at signature and conclusion stage.

"No formal start date for the SAA negotiations has been announced, but we expect they will open in the autumn. It will be important for Kosovo to keep up momentum on reform and continue to play its part in implementing the 19 April agreement with Serbia."

20.18  Finally, on Macedonia, the Minister says:

"Whilst Macedonia was briefly mentioned at the GAC, no conclusions were agreed. We have continued to support the opening of EU accession negotiations with Macedonia and to oppose the name dispute with Greece forming a block to this. However the recent political crisis in Macedonia has changed the mood amongst Member States, and we judged therefore that a push for the opening of accession negotiations by the UK and other like-minded Member States was unlikely to bear fruit. Moreover it would have likely elicited strong criticism of Macedonia in reaction from other Member States, making it difficult to agree Council conclusions as positive as those of December 2012.

"We welcome the 1 March agreement that resolved the political crisis and the elements therein which reaffirm cross-party support for Euro-Atlantic integration and the determination of Macedonia's political parties to tackle the causes of the political crisis. To this end, we are pleased to see that the Commission of Inquiry mandated in the agreement has now been established, and encourage investigations and implementation of emerging recommendations from that Commission to proceed without delay. We are concerned that the Memorandum of Understanding between the ruling party and the opposition has yet to be signed, and urge the respective parties to do so without delay."


20.19   According to the EU High Representative there is it seems, to be "no summer break" for those concerned (see the Annex to this chapter of our Report). The next review point will be the December GAC. Although the Minister does not say so in terms, we presume that the further reports from the Commission/HR on Serbia and Kosovo's progress in implementation of the 19 April agreement will be in the same form as the reports that are under consideration here. If not, we would in any case like the Minister to write to us then, with his assessment of the progress made and his views on the implications for the next steps.

20.20  In the meantime, we are drawing the Minister's letters to the attention of the House because the process they outline will be important in ensuring the integrity of the enlargement process, and thus, we would hope, avoiding the continuing adverse consequences of the premature accession of Bulgaria and Romania and the doubts that remain about the full readiness of Croatia, which we have set out in many Reports over recent years.

66   At our meeting on 21 May, we also considered a Commission report on Macedonia. The Minister for Europe (Mr David Lidington) agreed that further attention should be focused on media freedom, as well as on public administration and electoral reform; welcomed the steps Macedonia had taken on improving Good Neighbourly Relations; and continued to agree with the Commission's standing recommendation to open accession negotiations with Macedonia (as put forward for the fourth time in October 2012). No questions arose, and we cleared the document with a Report to the House. See (34849) 8602/13: HC 83-iii (2013-14), chapter 24 (21 May 2013). Back

67   See for the full text. Back

68   See headnote: HC 83-iii (201-314), chapter 24 (21 May 2013). Back

69   Available at and Back

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Prepared 30 July 2013