20 EU enlargement: Serbia and Kosovo
(a)
(34866)
(b)
(34867)
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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
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Legal base |
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Department | Foreign and Commonwealth Office
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Basis of consideration | Minister's letters of 6 and 25 June 2013
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Previous Committee Reports | HC 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)
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Discussion in Council | 25 June 2013 General Affairs Council (GAC) and 28 June European Council
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Committee's assessment | Politically important
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Committee's decision | Cleared; further information requested (reported to the House on 21 May 2013); further information now provided
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Background
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."
Conclusion
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 http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/136877.pdf
for the full text. Back
68
See headnote: HC 83-iii (201-314), chapter 24 (21 May 2013). Back
69
Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/genaff/137614.pdf
and http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/137634.pdf. Back
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