9 The EU and Georgia: the EU and Moldova
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Draft Council Decision on the signing and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States and Georgia
Draft Council Decision on the conclusion of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States and Georgia
Draft Council Decision on the signing and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States and Moldova
Draft Council Decision on the conclusion of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States and Moldova
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| Legal base | Articles 217, 218(5), Article 218(7) and 218(8) TFEU; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 22 April 2014
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| Previous Committee Reports | (a) and (b): HC 83-xli (2013-14), chapter 7 (9 April
2014)
(c) and (d): HC 83-xli (2013-14), chapter 6 (9 April
2014)
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| Discussion in Council | To be determined
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
9.1 Relations between the EU and Georgia, and the EU and Moldova,
are currently based on Partnership and Cooperation Agreements
(PCA) of 1999 and 1998 respectively. In 2010, negotiations began
on new Association Agreements (AA) that would deepen and broaden
the political and economic relationship, with a Deep and Comprehensive
Free Trade Area (DCFTA) as a key part.
9.2 In Explanatory Memoranda of 28 March 2014, the Minister for
Europe (Mr David Lidington) noted that the Agreement process supports
and encourages reform in both countries to bring them closer to
EU norms, as well as giving gradual access to parts of the EU
Internal Market, and as such was similar to the agreement that
had been negotiated Ukraine. Negotiations were completed in July
2013 and the Agreements initialled at the Vilnius Summit in November
2013. In December 2013, the European Council adopted Conclusions
that confirmed the EU's readiness to sign the AA "as soon
as possible and no later than the end of August 2014" —
which was reinforced by the 6 March extraordinary European Council.
Then the 21 March European Council decided to advance this process,
including the DCFTA, to no later than June 2014. The Commission,
Council and European External Action Service are now working to
ensure that this deadline is met.
9.3 The three main components — Political Dialogue and Reform,
the Deep and Comprehensive Free Trade Area (DCFTA) and Economic
Cooperation and Other Cooperation Policies — were summarised
in each case by the Minister in his Explanatory Memoranda (see
our previous Reports for details).[41]
Georgia
9.4 So far as the political dimension was concerned, the Minister
said:
"Georgia has watched closely as events have unfolded
in Ukraine. Both the Georgian Government and public have drawn
parallels with the 2008 conflict with Russia. The Georgian government
is extremely concerned about the situation in Ukraine and its
implications for their country, and have lobbied EU Member States
actively over the last 2 to 3 months for early signature of Georgia's
AA with DCFTA. The UK Government strongly supports the proposed
timeframe for signing Georgia's AA with DCFTA."
9.5 While not without setbacks, Georgia's progress democratisation
and economic reform over the last ten years had been impressive.
"The European path" had widespread support across Georgian
society and the country's main political parties. The Agreement
would further help to encourage Georgia to drive forward with
genuine commitment and energy the political and economic reforms
necessary for the country's long term security and prosperity,
and consequently the security and prosperity of the EU. The Government's
strong support for Georgia's progression towards closer ties with
the EU was part of its long-standing support for EU enlargement
and strengthened ties in the Eastern Neighbourhood region.
[42]
LEGAL AND PROCEDURAL ISSUES
9.6 The Minister noted that the Government was currently considering
the appropriateness of the legal bases cited and whether Protocol
21 to the Treaties (the JHA Opt-in) would apply.
JUSTICE AND HOME AFFAIRS AND PROTOCOL NO.21 TO THE TREATIES
9.7 The Minister commented thus:
"The Agreement contains a number of JHA provisions that
could trigger the UK's JHA opt-in provided for in Protocol 21
of the Treaties. The preamble of the Agreement notes that the
provisions of the Agreement that fall within the scope of Part
III, Title V of the Treaty on the Functioning of the European
Union bind the United Kingdom and Ireland as separate Contracting
Parties, and not as part of the European Union, unless the United
Kingdom or Ireland have chosen (in accordance with Protocol No.21
of the Treaties) to opt in to those provisions.
"The Agreement is a mixed agreement, i.e. it is an agreement
between Georgia on one part and of the European Union, the European
Atomic Energy Community and their Member States on the other.
As such, the Agreement contains some provisions that relate to
the exercise of EU competence and some provisions that relate
to the exercise of Member State competence. The Government is
currently analysing the exercise of competence provided for by
the Agreement; this analysis will inform Government's analysis
of the applicability of Protocol No.21 and our JHA opt-in.
"Article 16 of the Agreement on Movement of Persons includes
a JHA obligation in the form of a commitment to ensure full implementation
of an existing re-admission agreement (Article 16(1) (a)). The
UK opted into the re-admission agreement between the EU and Georgia
which came in to force on 1 March 2011. We will push for the citation
of the relevant Title V legal base (Article 79(3) TFEU) in respect
of this article concerning re-admission. In considering our opt-in
decision regarding Article 16(1) (a) we will take into account
that the UK is already participating in the underlying re-admission
agreement. We will consider whether to opt in to this provision
of the Agreement. Article 16(1) (b) contains a JHA obligation
related to the issuance of visas; we consider this to be a provision
related to the Schengen acquis that the UK does not participate
in.
"In parallel, we will also push for the splitting of
the Council Decisions into decisions that separate out the JHA
obligations from the other obligations (as has now become the
standard practice for EU-Third Country agreements).
"The Title III of the Agreement contains a number of
other JHA provisions: Article 14 on Protection of Personal Data;
Article 15 on Cooperation on Migration, Asylum and Border Management;
Article 17 on Preventing and Combating Organised Crime, Corruption
and other Illegal Activities; Article 18 on Tackling Illicit Drugs;
Article 19 on Money Laundering and Terrorism Financing; Article
20 on Combating Terrorism; Article 22 on Legal Cooperation. The
Government is considering whether it is the EU or it's Member
States that are entering into these provisions. I will update
the Scrutiny Committees regarding that analysis in due course.
That analysis will also determine whether there is a need for
the citation of other Title V legal bases.
"Articles 88 to 92 in Title III of the Agreement (read
in conjunction with the market access schedules at Annexes XIV)
contain trade provisions that fall within exclusive EU competence.
The Government's position is that these Mode 4 provisions on the
temporary movement of skilled personnel (which concern the admission
of third country nationals onto the territory of the United Kingdom)
in the agreement fall within the scope of the United Kingdom's
JHA opt-in.
"In considering whether to opt-into those provisions
for which Protocol No.21 applies, the Government will take into
account factors including the impact on our domestic judicial
system, the impact on the control of immigration, and the impact
on our wider work to ensure the security of the UK."
9.8 The Minister then continued thus:
"The preamble of the Association Agreement confirms that
provisions of the Agreement that fall within the scope of Part
III, Title V of the Treaty on the Functioning of the European
Union bind the UK and Ireland as separate Contracting Parties.
The proposed Council Decision on signature and provisional application
provides for the provisional application, as between the EU and
Georgia, of parts of the Agreement including matters relating
to CFSP, JHA, trade matters, and a wider range of economic and
other sector cooperation. The Government is now considering its
position in relation to the division of competences, however the
proposed scope of provisional application certainly goes further
than in other similar agreements, such as the EU-Ukraine Association
Agreement. The UK is negotiating within working groups in Brussels
to ensure that the final scope of provisional application is consistent
with HMG policy to avoid competence creep, and in line with the
agreement reached on Ukraine in 2013."
PROVISIONAL APPLICATION
"As with the similar Ukraine AA, the Government will
seek to reduce the scope of provisional application significantly
through negotiations in the Council Working Group. We will also
consider entering Minute Statements as necessary to further clarify
the UK position. I will write to the Committees again once the
position on provisional application has become clearer."
Moldova
9.9 The Minister noted that Moldova remains the poorest country
in Europe, with many of its three million population facing daily
hardship. Corruption is still endemic in many areas. It is home
to one of Europe's protracted conflicts in Transnistria, with
little progress towards a political settlement in the past twenty
years, and Russian troops remaining in the breakaway region as
part of a tri-partite peacekeeping force. But Moldova's linguistic
and ethnic diversity was one of the country's strengths, with
increasing numbers of European companies, for example in the IT
sector, basing themselves in Moldova to take advantage of the
multi-lingual and well educated populace. The reforms supported
by the Association Agreement would, if implemented, help Moldova
tackle corruption and become an increasingly prosperous free-market
economy, underpinned by democracy and rule of law. Moldova's three
party coalition government had consistently demonstrated their
readiness to press forward with the reforms required under the
Association Agreement, notwithstanding Moldova's still weak institutional
capacity:
"Moldova's Government has been clear. It wishes to go
ahead with signature of the Association Agreement as soon as possible,
particularly in light of events in Ukraine. The Government believes
the EU should take very seriously this call from the Moldovan
Government, and therefore supports signature as soon as possible,
while remaining alert to the possible regional consequences."
9.10 A stable, prosperous and more democratic Moldova would be
in the UK's interests:
"We might expect lower migration from Moldova to the
European Union, as well as a stable reliable partner on the edge
of the Union, with improved ability to tackle organised crime
and smuggling.
9.11 Moldova also "matters a great deal to some major European
partners, particularly Romania."
Legal issues and provisional application
9.12 The Minister also analysed and commented upon the same legal
issues in this Agreement, and upon the question of provisional
application, in the same way as he did with its Georgia counterpart.
Our assessments
9.13 We looked forward to seeing the results of the Government's
analysis of which obligations under the Association Agreements
are assumed by which party.
9.14 We supported the Government's intention to seek legal bases
from Title V of Part III TFEU (concerning Justice and Home Affairs
"JHA") in respect of the JHA provisions of the Agreements
for those matters for which the EU is exercising competence.
This would make it clear that the UK opt-in under Protocol 21
applies to such provisions.
9.15 In respect of such provisions, we asked the Minister to provide
a more detailed analysis of the factors affecting the exercise
of the UK opt-in.
9.16 Should the Government be successful in securing Title V legal
bases for these proposals, we agreed with the Minister that they
should be split, so that proposals to which the UK has opted in
were treated separately to those to which it had not.
9.17 We noted that the Government considered that the UK opt-in
also applies to the provisions of the Agreements on Mode 4 services
i.e. the provision of services which entail the admission of third
country nationals onto the territory of the United Kingdom. The
Government appeared to accept that these provisions fall within
the exclusive competence of the EU for trade and therefore cannot
be covered by a Title V legal basis. We asked the Minister to
confirm that this is the case.
9.18 Should the Government not be successful in securing appropriate
Title V legal bases, the question would arise whether the UK opt-in
applies in relation to the those parts of the Agreements falling
within this Title. We have previously made clear our view that
the opt-in only applies to measures which cite a Title V legal
basis. We have also made it clear that the Government should
review its policy in the light of three recent judgments of the
Court of Justice which cast serious doubt on its current assertion
that the opt-in does apply.[43]
9.19 We noted the Government's aim of reducing the scope of provisional
application of the Agreements and looked forward to the promised
further clarification. Among other things, we asked that this
should address whether it would be consistent with Article 431
(3) of the Agreement with Georgia and Article 464(3) of the Agreement
with Moldova for the EU to specify provisional application of
those parts of these Agreements in respect of which Member States
are exercising competence.
9.20 We asked the Minister to provide immediate clarification
concerning those elements of the sections on Political Dialogue
and Reform regarding domestic reform, conflict prevention and
crisis management, the fight against terrorism, and foreign and
security policy. As the Minister was aware, one of the criticisms
levelled by Russia against similar EU "reforming" activity
in Ukraine was that it fomented political activity that threatened
Russian interests. He would also be aware that, while not necessarily
accepting that particular analysis, not all Members or informed
external commentators shared the Government's view on the wisdom
of having pursued, and continuing to pursue, a "reform"
agenda and a new-style Association Agreement in Ukraine: the same
basic question thus arose with Georgia and Moldova.
9.21 Noting that the Minister underlined the Parties' commitments
to a sustainable and peaceful solution to the protracted conflicts
in each country, we asked how he envisaged these commitments being
pursued; and whether he was convinced that it would not provide
Russia with a further pretext for arguing that the Agreements
were in essence anti-Russian; and if so, why.
9.22 With regard to the AA with Ukraine, the Minister had assured
us that:
"provisions in the relevant Title II of the AA are not
some kind of defence or military cooperation treaty. The provisions
on military training and exercises referred to in the treaty relate
to EU CSDP missions: this is about allowing Ukraine to participate
in CSDP missions/training and in doing so helping to improve Ukraine's
defence and security capacity, doctrine (based on NATO standards)
and inter-operability. There are no specific provisions or obligation
for military exercises in Ukraine. 'Live' military exercises
are a matter for EU Member States. These provisions are
in line with other third state CSDP partnerships."
9.23 We accordingly asked what form cooperation on conflict prevention
and crisis management and on foreign and security policy would
take; and if he could provide the House with similar assurances.
9.24 In the meantime, we retained the documents under scrutiny.[44]
The Minister's letter of 22 April 2014
9.25 The Minister covers both Georgia and Moldova in his response,
which he says is aimed at providing "answers to your questions
raised about the political context and the factors that will inform
the opt-in decision." The Minister says that he will write
again as soon as possible to provide further clarification and
analysis on the scope of provisional application.
9.26 He continues as follows:
"In the context of the grave situation in Ukraine and
the potential ramifications for Eastern Europe, the signature
and provisional application of the Georgia and Moldova Association
Agreements (AA) as soon as possible is a high priority for both
governments. We have taken a leading role in supporting this.
"Georgia and Moldova have for many years pursued closer
integration with the EU (and in Georgia's case, NATO). This has
been a key foreign policy priority of both the previous and current
governments. We have fully supported this choice and believe that
closer political association and greater economic integration
into the EU represent the most effective way to promote reform
and modernisation in Georgia and Moldova, as well as contributing
to stability and conflict resolution. Continued stability in
Georgia, Moldova and the wider region is strongly in our interests.
"We judge that early signature of these AAs will bolster
and provide impetus for essential reform processes in both Georgia
and Moldova. More importantly, the Georgian and Moldovan governments
have indicated that early signature will provide a means of decreasing
pressure from the Russian Federation to abandon their foreign
policy choices (the regional consequences I alluded to in my Moldova
Explanatory Memorandum). To ignore their wishes could constitute
a signal that Russia has a veto in the affairs of third countries.
The United Kingdom strongly supports the right of these democratically
elected and sovereign governments to make such choices.
"The UK and EU are well aware of Russia's views on the
AAs. We have made plain to Russia our view that the AAs will
help to strengthen prosperity, security and democracy in both
countries. This can only be positive for other countries in the
region including Russia. I do not believe signature of AAs with
Georgia and Moldova, or the reform processes underpinning these
agreements, in any way threatens the interests of the Russian
Federation.
"Both AAs underline the EU's commitment to finding sustainable
political settlements to the protracted conflicts in Georgia and
Moldova. On Moldova, at least, Russia has been clear that it
remains committed to the same goal."
Provisional application
9.27 Though yet to provide a detailed response, the Minister says:
"I should make clear now that, at the time of writing,
the EEAS have proposed to apply provisionally Georgia Articles:
3 (aims of political dialogue); 4 (domestic reform); 7 (conflict
prevention and crisis management); 8 (regional stability) and
9 (peaceful conflict resolution). On Moldova, the EEAS propose
to apply provisionally Articles: 3 (aims of political dialogue);
4 (domestic reform); 7 (conflict prevention and crisis management)
and 8 (regional stability). The provisional application of Articles
7, 8 and (on Georgia) 9 would go beyond the arrangements on Ukraine.
The Government is considering these proposals very carefully."
The protracted conflicts
"In neither case, would we expect signature of the AA
to lead to a dramatic change to the EU's existing engagement on
the protracted conflicts. On Georgia, the EU works through the
EU Special Representative for the South Caucasus (EUSR), the Geneva
International Discussions, which the EUSR co-chairs with the UN
and OSCE, and the EU Monitoring Mission (EUMM). This cooperation
provides both political support and engagement with all parties
for the peaceful settlement of the conflicts. The EU also funds
a programme of confidence-building measures in the two conflicts.
"On Moldova, the Transnistria protracted conflict forms
a key strand of existing EU dialogue with Moldova and Russia,
and the EU has been an observer to the 5+2 mediation process since
2005. The EU also has a wide-ranging programme of confidence-building
measures that help to encourage cooperation between the two banks
of the Nistru. "
Crisis management and conflict prevention
"As was the case with the Ukraine Association Agreement,
the provisions in Title II of the AA for crisis management and
conflict prevention do not represent a defence or military
cooperation treaty. They relate to Moldovan and Georgian participation
in EU civilian and military crisis management operations.
"The EU has signed Framework Participation Agreements
(FPAs) with both Georgia (November 2013) and Moldova (December
2012) based on a model agreed by Member States in 2004 and amended
in April 2010 to take account of the passage of the Lisbon Treaty.
FPAs set out the conditions for third country participation in
EU civilian and military crisis management operations. The European
Council agrees by unanimity to open a civilian CSDP mission to
contributions from third states. The Council also decides which
third states should be invited to contribute. The Georgia and
Moldova FPAs cleared Parliamentary scrutiny in advance of signature."
The factors that will inform the UK's opt-in decision
"In line with the Code of Practice on the scrutiny of
JHA opt-in and Schengen opt-out decisions I am committed to providing,
to the extent possible, the Government's views as to whether or
not the UK would opt in and the factors likely to influence the
Governments decisions. As set out in my Explanatory Memorandums
of 28 March those factors include consideration of whether opting
in would be in the national interest to participate as part of
the EU, the impact on our domestic judicial system, the impact
on the control of immigration, and the impact on our wider work
to ensure the security of the UK. In particular, the Committee
will want to take note that the UK has already opted into the
two underlying re-admission agreements between the UK and
Georgia and Moldova. In such circumstances, where the UK
participates in an underlying re-admission agreement, it would
be usual for the UK to opt-into the new provision. You will
recall that this approach was taken in similar circumstances with
the Ukraine Association Agreement last year. However, I
would not wish to pre-empt the Government's JHA opt-in decision
until the 8-week enhanced scrutiny period has concluded.
"I would also like to take this opportunity to confirm
that the Government accepts that Mode 4 provisions fall within
exclusive EU competence when they are included in an external
agreement. Article 207(6) TFEU provides that the exercise
of Common Commercial Policy competence shall not 'affect the delimitation
of competences between the Union and Member States'. The
opt-in is a limitation on the EU's ability to exercise competence
in relation to JHA matters as regards the UK and Ireland. Therefore,
the opt-in applies where Common Commercial Policy competence is
being exercised in respect of matters that would fall within the
scope of Title V if they were contained in an internal EU measure.
This is the position for Mode 4 measures."
Conclusion
9.28 We are grateful to the Minister for his response thus
far.
9.29 We appreciate that the UK opt-in is not relevant to those
elements of the Agreements in respect of which Member States are
exercising competence in their own right. Once the Government's
analysis of this has been completed we expect a further analysis
of how the general considerations affecting the exercise of the
UK opt-in, provided in the Minister's letter, apply to the specific
provisions for which the Government assert that the opt-in is
engaged.
9.30 We note that the Government is also reviewing its position
on the application of the UK opt-in in the light of the recent
Court of Justice case law, as mentioned in paragraph 9.18 above.
We look forward to the outcome.
9.31 We therefore await:
— the
results of the Government's analysis of which obligations under
the Association Agreement are assumed by which party;
— a
more detailed analysis of the factors affecting the exercise of
the UK opt-in;
— clarification
concerning what activities will be included in those elements
of the section on Political Dialogue and Reform regarding domestic
reform and the fight against terrorism;
— an
explanation of what "the possible regional consequences"
are of early signature and provisional application of the Moldova
AA to which he said he would need to remain "alert";
— full
information on the scope of provisional application of the Agreements.
9.32 We consider it imperative that these Agreements
be debated in European Committee before they are submitted to
the Council for adoption. Before then, however, as well as responding
in full to the Committee's requests (paragraphs 9.29-9.31 above),
we would like the Minister also to explain how provisional application
of Articles 7 (conflict prevention and crisis management); 8 (regional
stability) and (on Georgia) 9 (peaceful conflict resolution) would
"go beyond the arrangements on Ukraine", and what it
is in the EEAS's proposals that the Government "is considering
… very carefully", and why.
9.33 We also remind him that his promised letter
on provisional application should address whether it would be
consistent with Article 431 (3) of the Georgia Agreement and Article
464(3) of the Moldova Agreement for the EU to specify provisional
application of those parts of the Agreement in respect of which
Member States are exercising competence.
9.34 In the meantime, we shall continue to retain
the documents under scrutiny.
41 See HC 83-xli (2013-14), chapters 6 and 7 (9 April
2014). Back
42
Ditto. Back
43
Case C-431/11 concerning amendments to the social security provisions
of the EEA agreement , reported in HC 83-xxvi (2013-14), chapter
7 (8 January2014); Case C-137/12 concerning EU accession to the
Council of Europe Convention on the legal protection of conditional
access services, reported in HC 83 xxxiv (2013-14, chapter 4 (26
February 2014); and Case C-656/11 concerning amendments to the
social security provisions of the EU-Switzerland Agreement on
the free movement of persons, reported in [Report of 2 April meeting]. Back
44
See headnote: HC 83-xli (2013-14), chapter 6 (9 April 2014). Back
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