21 The EU and Indonesia
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8949/13
COM(13) 230
| Draft Council Decisions on the conclusion of the Framework Agreement on Comprehensive Partnership and Cooperation between the European Community and its Member States and the Republic of Indonesia
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| Legal base | Articles 207, 209, and Article 218(6)(a) TFEU; QMV; consent
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| Document originated | 24 April 2013
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| Deposited in Parliament | 30 April 2013
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EMs of 13 May and 9 July 2013
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| Previous Committee Report | None; but see (30948) 13689/09: HC 19-xxviii (2008-09), chapter 10 (21 October 2009)
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| Discussion in Council | 22 July 2013
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared; further information requested
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Background
21.1 Since the end of the 1990s, the EU had by 2010 concluded
ten similar partnership and cooperation agreements (PCAs) with:
Russia and the New Independent States of Eastern Europe, the Southern
Caucasus and Central Asia: Armenia, Azerbaijan, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Ukraine, Uzbekistan and Tajikistan. Their
aim was to
- provide a suitable framework for political dialogue;
- to support the efforts made by the countries
to strengthen their democracies and develop their economies;
- accompany their transition to a market economy;
and
- encourage trade and investment.
21.2 The partnerships also aim to provide a basis
for cooperation in the legislative, economic, social, financial,
scientific, civil, technological and cultural fields.[71]
21.3 This basic concept has been applied increasingly
around the globe with key EU partners.
The Partnership and Cooperation Agreement between
the European Union and its Member States and the Republic of Indonesia
21.4 On 21 October 2009, we considered a draft
Council Decision authorising the signing of the Framework Agreement
on comprehensive Partnership and Cooperation between the European
Community and its Member States and the Republic of Indonesia.
The text of the agreement was attached to the Council Decision.
21.5 In her Explanatory Memorandum of 8 October
2009, the then Minister for Europe at the Foreign and Commonwealth
Office (Baroness Kinnock of Holyhead) explained that: negotiations
began in 2005; the UK and other EU Member States agreed the PCA
text in June 2007; the Commission initialled the PCA in July 2007;
and Indonesia initialled the PCA in July 2009 following the partial
lifting of the EU flight ban on Indonesian airlines. She noted
that this would be the first PCA with a South East Asian country,
and that negotiations were at various stages with Thailand, Singapore,
the Philippines, Malaysia and Brunei.
21.6 The then Minister also noted that the PCA
would:
— allow
for further engagement between the EU and Indonesia in the areas
of climate change and energy, science and technology, maritime
and aviation transport;
— address illegal migration, money laundering,
illicit drugs, organised crime and corruption; and
— ensure Indonesia's commitment to respect
human rights.
21.7 The then Minister noted that the PCA was
key to strengthening the EU's relationship with Indonesia: its
conclusion would send a clear signal to Indonesia that the EU
was keen to continue to work with it and recognise the progress
Indonesia has made over the last decade in many areas including
human rights and democratisation. The PCA contained a legally
binding commitment by Indonesia on the respect of human rights
(as well as obligations in the areas of counter terrorism and
weapons of mass destruction). While challenges still remained,
it was important to acknowledge "the vast progress the country
has made in many areas, including its human rights record, over
the past 10 years". Human rights concerns would continue
to be raised with the Indonesian authorities: the best way to
help Indonesia deal with this issue was through engagement and
assistance, not isolation.
21.8 The Council Decision and PCA raised no questions.
We nonetheless considered that it warranted a Report to the House
because of its intrinsic importance.[72]
The further Council Decision
21.9 In his Explanatory Memoranda, the Minister
for Europe (Mr David Lidington) notes that, when negotiations
opened, this PCA was the first of its kind between the EU and
a member of the Association of South East Asian Nations (ASEAN).
Now, he notes, PCAs have subsequently been signed and concluded
with the Philippines and Vietnam; the Mongolia PCA is signed but
waiting to be concluded; and negotiations on similar agreements
are currently at various stages of development with Thailand,
Singapore, Malaysia and Brunei.
21.10 With regard to this PCA, the Minister says
that: after adoption of the Council Decision on signature, the
agreement was co-signed on 9 November 2009; in August 2011 the
UK ratified the Agreement; most other Member States have also
now ratified the PCA: and the Commission has therefore now proposed
its conclusion.
21.11 The Minister also notes that an Explanatory
Memorandum regarding the Council Decision on the conclusion of
the PCA was first submitted for Parliamentary scrutiny on 13 May
2013, which the Committee has not yet cleared, and says of his
second Explanatory Memorandum:
"This Explanatory Memorandum updates the Committee
following negotiations, and specifically covers the fact that
there are two new Council Decisions resulting from the decision
to 'split' the Council Decision to conclude this PCA, to reflect
the JHA content in the PCA."
21.12 The Minister then covers the following
elements thus:
SUBSIDIARITY
"The PCA is a mixed agreement which will be
concluded by both the EU and its Member States. The elements of
the Agreement which fall within the exclusive competence of the
EU can only be concluded by the EU.
LEGAL ISSUES
"Legal Basis: The Council Decision on non-JHA
matters now has the following legal bases in the Treaty on the
Functioning of the EU (TFEU): Articles 91 and 100 (transport),
Article 191(4) (environment), Article 207 (common commercial policy)
and Article 209 (development cooperation). The legal base for
the Council Decision with JHA content is Article 79(3) TFEU (border
checks, asylum and immigration). In line with the long-standing
HMG view that the JHA opt-in is triggered by content, we consider
that the 8 week period set aside for the Scrutiny Committees to
opine on the opt-in decision commenced on 13 May 2013.
"Voting Procedures: Most Member States, including
the UK, have now ratified the PCA, so, as this is a mixed agreement,
the Commission has proposed conclusion of those parts which are
EU competence by QMV.
"Impact on UK Law: As this is a mixed agreement,
it will require specification as an EU Treaty in accordance with
Article 1(3) of the European Communities Act, 1972. No additional
implementation measures are envisaged.
"The Council proposal for conclusion of the
Indonesia PCA is now, following negotiations in the EU Asia-Oceania
Working Party (COASI) and a revised Decision, to split the Decision
on conclusion into two. One Decision covers non-JHA content and
the other covering JHA content.
"The two new Council Decisions were presented
to Member States on 11 June, and they supersede the Council Decision
which Parliamentary Scrutiny Committees have previously seen,
under cover of my Explanatory Memorandum dated 13 May.
"The UK Government's policy is that we can support
the splitting of Council Decisions. Additional legal bases on
the environment and transport have been added to the non-JHA decision.
The Department for Transport (DfT) and Department for Environment,
Food and Rural Affairs (Defra) have indicated they are content
with this proposal. As regards the JHA aspect of the agreement,
the PCA contains a provision on readmission (at Article 34(3)
of the agreement) which falls within the scope of Title V (Area
of Freedom, Justice and Security) of Part Three of the TFEU (specifically
Article 79(3)), and as such, the UK's JHA opt-in protocol applies.
"
The Government's view
21.13 The Minister comments in much the same
terms as did his then predecessor four years ago, updated for
the passage of time, on the importance of Indonesia and the key
role of the PCA in strengthening the EU's relationship with Indonesia.
21.14 On the bilateral front, the Minister notes
(as did his then predecessor) that Indonesia is increasingly important
to UK interests in a range of areas and is well disposed towards
UK priorities on climate change and energy, counter terrorism
and the global economy. He also says:
"We will continue to raise human rights concerns
including freedom of religion and belief and the death penalty
with the Indonesian authorities, and will encourage the EEAS to
do the same. We believe that the best way to help Indonesia deal
with this issue is through engagement and assistance and not isolation.
The EU has a key role to play in that engagement.
"The UK has been stepping up its engagement
under the Emerging Powers initiative since 2011. The Prime Minister
visited Jakarta in April 2012 and agreed with the Indonesian President
to revitalise the UK-Indonesia Partnership Forum, which provides
a bilateral framework for greater co-operation on Foreign Policy/International
security, Trade and Investment Cooperation, Climate Change and
Sustainable Growth and Education. This was followed by a highly
successful State Visit to the UK by the Indonesian President in
October 2012.
"The UK and the EU work closely together in
Indonesia, particularly in the area of Human Rights where the
EU has an annual dialogue with Indonesia. We support the EU's
position on the death penalty."
Conclusion
21.15 As in 2009, no questions arise on the
substance of this Agreement with a partner of great global significance.
21.16 On process, we welcome the decision
to split the Decision to conclude the Agreement into two Council
Decisions, one concerning JHA measures —a readmission provision
— to which the UK's opt-in applies; the other concerning
non-JHA measures, which includes new legal bases in the field
of environment and transport. This approach provides for greater
legal certainty about the UK's participation in JHA measures,
something for which this Committee has called since early in this
Parliament.
21.17 We see that recital (2) of the draft
JHA decision clarifies that the UK will not be opting into the
readmission obligations of the PCA Agreement. However, the Minister's
Explanatory Memorandum of 9 July is, surprisingly, silent on the
Government's approach to the opt-in. This is a significant omission,
particularly in view of the enhanced scrutiny procedures which
apply to opt-in decisions. We ask the Minister to explain both
the reasons for this oversight and the policy considerations which
led the Government to decide to opt out of the readmission provision.
When the Minister writes, we ask him to attach a copy of the adopted
Council Decisions to his letter.
21.18 As no questions arise on the substance
of the Agreement, we are content to clear the original Council
Decision from scrutiny (COM(13) 230). (The two draft Council Decisions
have not been deposited and so do not require to be formally cleared.)
71 The PCA with Russia also provides for the creation
of the necessary conditions for the future establishment of a
free trade area. See http://europa.eu/legislation_summaries/external_relations/relations_with_third_
countries/eastern_europe_and_central_asia/r17002_en.htm
for full information. Back
72
See (30948) 13689/09: HC 19-xxviii (2008-09), chapter 10 (21 October
2009). Back
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