11 The EU and Korea~
| (35238)
12843/13
COM(13) 551
| Council Decision on the conclusion of the Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States and the Republic of Korea
|
| Legal base | Articles 207, 212 and 218(6) (a) TFEU; QMV; consent
|
| Document originated | 25 July 2013
|
| Deposited in Parliament | 1 August 2013
|
| Department | Foreign and Commonwealth Office
|
| Basis of consideration | EM of 28 August 2013
|
| Previous Committee Report | None
|
| Discussion in Council | 21 October Foreign Affairs Council
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
11.1 Relations between the EU and the Republic of Korea are currently
based on the Framework Agreement for Trade and Cooperation between
the European Community and its Member States, on the one hand,
and the Republic of Korea (RoK), on the other hand, which entered
into force in 2001.
11.2 On 7 May 2008, the Council authorised the European
Commission to negotiate a new Framework Agreement with the RoK.
Negotiations were concluded and the text of the draft agreement
initialled on 14 October 2009. The Agreement was co-signed on
10 May 2010 in Seoul.
The draft Council Decision
11.3 In his Explanatory
Memorandum of 28 August 2013, the Minister for Europe (Mr David
Lidington) explains that:
— the
Agreement will provide a framework aiming to consolidate and strengthen
cooperation between the European Union and its Member States (MS)
and the RoK in a range of sectors of mutual interest;
— these include promoting democratic principles
and respect for human rights; countering the proliferation of
weapons of mass destruction; combating illicit trade of small
arms and light weapons; taking measures against the most serious
crimes of concern to the international community; and combating
terrorism;
— the Agreement will allow for further
engagement and cooperation between the Parties in regional and
international organisations; on trade and investment; economic
policy dialogue; business cooperation; and further engagement
and cooperation on fields including taxation, customs, competition
policy, the information society, science and technology, energy,
transport, maritime transport policy, consumer policy, health,
employment and social affairs, environment and natural resources,
climate change, agriculture, rural development and forestry, marine
and fisheries;
— the Framework Agreement on Comprehensive
Partnership was negotiated in parallel with the EU-RoK Free Trade
Agreement (FTA), which was signed on 6 October 2010, but it has
taken time for all Member States, including the UK, to complete
domestic ratification;
— the Framework Agreement forms the contractual
basis for the EU's relationship with Korea;
— this is the first time that this dual
approach has been followed and was designed to satisfy the long-standing
EU (and UK) agreed position that all FTAs must either contain
political clauses (commitments in the fields of human rights and
non-proliferation), or be linked to Partnership and Cooperation
Agreements (PCA) or updated Framework Agreements containing such
provisions; and
— this Framework Agreement will essentially
establish a fully coherent, modernised framework for bilateral
relations between the UK and RoK.
11.4 Following domestic ratification by all EU Member
States, the Decision is the final step towards entry into force
of the Agreement.
The Government's view
11.5 With regard to the political and economic importance
of the Framework Agreement, the Minister says:
"The Framework Agreement is key to strengthening
the EU's relationship with the RoK — an emerging regional
power with a highly developed economy and a high rate of sustainable
long-term growth. The RoK matters for our prosperity and security
interests. It is the fourth largest economy in Asia — highly
compatible with UK export strengths and with the potential for
further growth. Korea shares many of our values and is a natural
partner on foreign policy — especially as it is currently
a non-permanent member of the UN Security Council. We have
a substantial programme of work to deepen cooperation in 2013,
for which President Park's State Visit to the UK in November 2013
will be the centrepiece. This Framework Agreement will be an
opportunity to develop relationships across a range of mutually
beneficial sectors and will also be an opportunity to demonstrate
the UK's commitment to deepening our trade and foreign policy
links, and recognise the progress the RoK has made in many areas,
including on economic strength and democratisation. As Korea
is one of the EU's largest trading partners outside Europe, the
Framework Agreement will bring significant benefits to the UK
and EU economies and once concluded the Agreement will send a
politically important signal of the EU's commitment to working
with the RoK."
11.6 The Minister notes that the draft Council Decision
concluding the Framework Agreement is likely to be tabled for
adoption at the 21 October 2013 Foreign Affairs Council, ahead
of the EU-RoK Summit on 8 November, and says that the Committee
"should treat the document as one containing JHA obligations
and enhanced scrutiny timings apply" and that, as such, the
Government's opt-in decision will need to be taken by 28 October
2013."
11.7 The Minister further notes, with regard to Legal
And Procedural Issues, that:
- The proposed legal basis is
Articles 207 and 209, in conjunction with Article 218(6) (a) TEU;
- The Council Decision is subject to Qualified
Majority Voting "though as this agreement is mixed it would
not be adopted unless there is common accord of Member States";
- As this is a mixed agreement it has been specified
as an EU Treaty in accordance with Article 1(3) of the European
Communities Act, 1972. No additional implementation measures
are envisaged.
- The Framework Agreement contains an obligation
to conclude a readmission agreement:
- "We believe that this
JHA content engages our opt-in protocol, and will be pushing for
the insertion of relevant legal bases and a recital protecting
our opt-in. For the purposes of JHA enhanced scrutiny, the Committees
should treat the document as one containing JHA obligations.
We are also currently considering whether the inclusion of additional
(non-JHA) legal bases is required in regard to other binding commitments
in the Agreement."
11.8 With regard to the Timetable, the Minister says:
"The last language version of this draft Council
Decision was published on 29 July 2013; as such, the Government's
opt-in decision will need to be taken by 28 October 2013.
"As per the usual enhanced JHA scrutiny procedures,
the Government commits not to make an opt-in decision until the
Parliamentary Scrutiny Committees have had eight weeks from the
29 July to opine, i.e. 23 September 2013. We appreciate that
this will leave only a short window for the scrutiny committees
to consider the opt-in issue. Unfortunately, the timings of Parliamentary
recess have created that situation in this case.
"The Council Secretariat is likely to table
this draft Decision for adoption at the Foreign Affairs Council
on 21 October 2013. Before the Framework Agreement is concluded
through adoption of this proposed Council Decision, negotiations,
including on the legal base, will continue. The FCO will provide
further updates to the Parliamentary scrutiny committees, via
Ministerial letter, to reflect those negotiations, before 21 October
2013."
Conclusion
11.9 We acknowledge the political and economic
significance of this Agreement for both UK and EU interests.
But equally significant legal considerations have still to be
resolved.
11.10 It will be all the more important, therefore,
for the Minister to provide the fullest possible explanation of
the outcome of the negotiations on the legal base to which he
refers, and to include in it what he should have told us now,
viz., which additional (non-JHA) legal bases are being considered
in regard to which other binding commitments in the Agreement.
11.11 We note the Minister's comments on the applicability
of the opt-in Protocol. As we have stated previously and often,
we do not consider the Protocol to apply in the absence of Title
V legal base. Accordingly the enhanced scrutiny procedures do
not apply. We do expect, however, the Government to succeed in
adding Title V legal base, given the contents of the agreement,
after which the enhanced scrutiny procedures will apply. (We bear
in mind a similar situation with the EU Partnership and Cooperation
Agreement with Indonesia, where two Council Decisions were drafted
to cover, respectively, Title V and non-Title V competences, the
Title V competence relating to a readmission provision.)
11.12 In the meantime, we shall retain the document
under scrutiny.
| 
