10 The EU and Korea
| (a)
(35238)
12843/13
COM(13) 551
(b)
(35367)
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Draft 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
Draft Council Decision on the conclusion of the Framework Agreement between the European Union and its Member States and the Republic of Korea, with the exception of matters related to readmission
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| Legal base | (a) Articles 207, 212 and 218(6) (a) TFEU; QMV; consent;
(b) Articles 91, 100, 191(4), 207, 212 and 218(6)(a) TFEU; QMV; consent
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM and Minister's letter of 23 October 2013
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| Previous Committee Report | (a) (35328) 12843/13: HC 83-xiv (2013-14), chapter 11 (11 September 2013)
(b) None
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| Discussion in Council | 18 November Foreign Affairs Council
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
10.1 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 and the Republic
of Korea (RoK), which entered into force in 2001.
10.2 A new Framework Agreement was co-signed on 10
May 2010 in Seoul.
10.3 In his Explanatory Memorandum of 28 August 2013,
the Minister for Europe (Mr David Lidington) explained 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
Agreement 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;
· 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.
10.4 Following domestic ratification by all EU Member
States, the Council Decision submitted with his Explanatory Memorandum
(document (a)) was the final step towards entry into force of
the Agreement.
10.5 With regard to its political and economic importance,
the Minister said that, as one of the EU's largest trading partners
outside Europe, the Framework Agreement would bring significant
benefits to the UK and EU economies and, once concluded, would
send a politically important signal of the EU's commitment to
working with the RoK.
10.6 The Minister noted that the draft Council Decision
was likely to be tabled for adoption at the 21 October 2013 Foreign
Affairs Council, ahead of the EU-RoK Summit on 8 November, and
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."
10.7 The Minister further noted, with regard to Legal
And Procedural Issues, that:
· the
proposed legal bases were Articles 207 and 209, in conjunction
with Article 218(6) (a) TEU;
· the Council
Decision was subject to Qualified Majority Voting "though
as this agreement is mixed it would not be adopted unless there
is common accord of Member States"; and
· as a mixed
agreement, it had 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 contained 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."
10.8 With regard to the Timetable, the Minister said:
"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."
Our assessment
10.9 We acknowledged the political and economic
significance of this Agreement for both UK and EU interests.
But equally significant legal considerations had still to be resolved.
10.10 It was 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 referred,
and to include in it what he should have told us now, viz., which
additional (non-JHA) legal bases were being considered in regard
to which other binding commitments in the Agreement.
10.11 We noted the Minister's comments on the applicability
of the opt-in Protocol. As we had stated previously and often,
we do not consider the Protocol to apply in the absence of Title
V legal base; and that, accordingly, the enhanced scrutiny procedures
do not apply. We expected, however, the Government to succeed
in adding a Title V legal base, given the contents of the agreement,
after which the enhanced scrutiny procedures would apply. (We
noted that we bore 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.)
10.12 In the meantime, we retained the document under
scrutiny.[20]
The further draft Council Decision
10.13 In his Explanatory Memorandum of 23 October
2013, the Minister for Europe (Mr David Lidington) says that the
revised Council proposal:
· splits
the Decision on conclusion into two, with one covering the Justice
and Home Affairs (JHA) content on the readmission of nationals
illegally present in another State, and the other covering the
remaining content; and
· the
legal base for the Council Decision on readmission is Article
79(3) of the Treaty on the Functioning of the European Union (TFEU)
(border checks, asylum and immigration).
10.14 The Minister then continues as follows:
"This is consistent with the approach taken
in the EU-Indonesia PCA where two Council Decisions were drafted
to cover, respectively, Title V and non-Title V competences. The
Title V competence is Art 79(3) TFEU, relating to a readmission
provision.
"In line with the approach we took with
the Indonesia PCA, we are minded to support the inclusion of a
separate JHA legal base. However, we would not opt-into these
elements of the agreement and are minded to assume the obligations
in our own right. This would mean the UK is bound by the readmission
commitment, but not as part of the EU. This is our preferred
approach because the readmission provision falls in an area of
unexercised shared competence, where either the EU or Member States
could act. We take the view that the EU should not bind the
UK by its exercise of such a shared competence. We are able to
take this approach due to the mixed competence nature of the agreement
and because it is unclear from the text whether the EU or the
Member States (or both) would be entering into the commitments
on readmission.
"The proposed non-JHA Council Decision has
the following legal bases: Articles 91 and 100 TFEU (transport),
Article 191(4) TFEU (environment), Article 207 TFEU (common commercial
policy) and Article 212 TFEU (economic, financial and technical
cooperation). The UK is currently arguing that the transport provisions
should be solely undertaken by Member States and is seeking their
removal from the Council Decision. However, if this is not possible
we will make a UK statement asserting the limits to the exercise
of EU competence in this area.
"This Council Decision is likely to be tabled
for adoption at the Foreign Affairs Council on 18 November 2013.
As stated in the Explanatory Memorandum of 28 August, the Decision
covers JHA obligations and enhanced scrutiny timings apply. The
last language version of this draft Council Decision was published
on 29 July; as such, the Government's opt-in decision will need
to be taken by 28 October 2013."
The Minister's letter of 23 October 2013
10.15 The Minister says:
"Two revised Council Decisions (MD 124/13
COASI) were issued on 10 October 2013 splitting the original Decision
into two, with one Decision covering readmission of nationals
illegally present in another State, and the other Decision covering
the other provisions of the Framework Agreement. This approach
is consistent with the approach taken in the EU-Indonesia Partnership
and Cooperation Agreement.
"In my Explanatory Memorandum of 28 August,
I indicated that the Agreement contained JHA content and that
the process and timings of enhanced JHA scrutiny should apply.
Given the last language version of this draft Council Decision
was published on 29 July the Explanatory Memorandum specified
that the Government's opt-in decision will need to be taken by
28 October 2013. I have submitted the Explanatory Memorandum on
the revised Council Decision within the required 10 working days
of the decision being published. However, given the UK's JHA opt-in
window expires on 28 October, this does not give the Committee
time to further consider the JHA elements before the expiration
of this opt in window.
"The Explanatory Memorandum provides full
details of the position we are minded to take, which is consistent
with the approach taken with the Indonesia PCA. Subject to progress
on negotiations, the EU is likely to seek agreement to the Council
Decisions in the Foreign Affairs Council on 18 November 2013."
Conclusion
10.16 We welcome the decision to split the Council
Decision to conclude the Agreement into two: one concerning JHA
measures — a readmission provision — to which the
UK's opt-in applies; the other concerning non-JHA measures. The
approach follows that taken to the EU-Indonesia Partnership and
Cooperation Agreement, and 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. We trust
this approach becomes standard practice for future EU international
agreements which include Title V provisions.
10.17 We are grateful to the Minister for the
explanation of the reasons for which the UK does not propose to
opt into the readmission provision as part of an EU commitment,
but proposes to ratify it as a bilateral commitment. We support
the Government's approach.
10.18 We have no further questions to ask and
clear both documents from scrutiny.
20 See headnote: (35238) 12843/13: HC 83-xiv (2013-14),
chapter 11 (11 September 2013). Back
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