1 The EU and Georgia: the EU and Moldova~
| (a)
(35897)
7941/14
+ ADDs 1-13
COM(14) 148
(b)
(35898)
7942/14
+ ADDs 1-13
COM(14) 149
(c)
(35894)
7943/14
+ ADDs 1-14
COM(14) 157
(d)
(35895)
7944/14
+ ADDs 1-14
COM(14) 146
|
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
|
| Department
| Foreign and Commonwealth Office
|
| Basis of consideration
| Minister's letter of 2 May 2014
|
| Previous Committee Reports
| (a) and (b): HC 83-xli (2013-14), chapter 7 (9 April 2014) and HC 83-xlii (2013-14), chapter 9 (30 April 2014)
(c) and (d): HC 83-xli (2013-14), chapter 6 (9 April 2014) and HC 83-xlii (2013-14), chapter 9 (30 April 2014)
|
| Discussion in Council
| 23 June Foreign Affairs Council
|
| Committee's assessment
| Legally and politically important
|
| Committee's decision
| Not cleared; for debate in European Committee B
|
Background
1.1 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. These
new Association Agreements (AA) would deepen and broaden the political
and economic relationship, with a Deep and Comprehensive Free
Trade Area (DCFTA) as a key part.
1.2 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 of 28 March 2014. Likewise the reasons
why: the respective governments were anxious for signature and
provisional application as soon as possible, the EU had brought
this forward to June 2014, and the Government strongly supported
these developments (see our previous Reports for details).[1]
GEORGIA: LEGAL AND PROCEDURAL ISSUES
1.3 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
1.4 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."
1.5 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: Legal issues and provisional application
1.6 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
LEGAL ISSUES
1.7 We looked forward to seeing the
results of the Government's analysis of which obligations under
the Association Agreements are assumed by which party.
1.8 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 — thus making it clear that the
UK opt-in under Protocol 21 applies to such provisions.
1.9 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.
1.10 We agreed with the Minister that,
should the Government be successful in securing Title V legal
bases for these proposals, they should be split, so that proposals
to which the UK has opted in were treated separately to those
to which it had not.
1.11 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 noted that we
had previously made clear our view that the opt-in only applies
to measures which cite a Title V legal basis, and 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.[2]
1.12 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.
POLITICAL ISSUES
1.13 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.
1.14 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.
1.15 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."
1.16 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.
1.17 In the meantime, we retained the
documents under scrutiny.[3]
The Minister's letter of 22 April 2014
THE POLITICAL CONTEXT
1.18 The Minister said:
"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
1.19 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."
Our further assessment
1.20 We appreciated 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. However, once the Government had completed its analysis,
we expected a further analysis of how the general considerations
affecting the exercise of the UK opt-in would apply to the specific
provisions for which the Government asserted that the opt-in was
engaged.
1.21 We looked forward to the outcome
of the Government's review of its position on the application
of the UK opt-in in the light of the recent Court of Justice case
law (c.f. paragraph 1.12 above).
1.22 We also still awaited:
— the results of the Government's
analysis of which obligations under the Association Agreements
are assumed by which party;
— a more detailed analysis
of the factors affecting the exercise of the UK opt-in;
— clarification concerning
what activities would 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, including
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;
— an explanation of 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 in the European External
Action Service's (EEAS) proposals the Government was "considering
… very carefully", and why.
1.23 We noted that these Agreements
would in due course warrant being debated in European Committee
before they were submitted to the Council for adoption.
1.24 In the meantime, pending this further
information, we continued to retain the documents under scrutiny.[4]
The Minister's letter of 2 May 2014
1.25 The Minister seeks to provide further
information on the Government's position on the signature, provisional
application and conclusion of the Georgia and Moldova Association
Agreements (AAs), based on the attached draft Council Decisions
of 8 April, and to provide further clarification on the UK's opt-in
decision and provisions relating to Common Foreign and Security
Policy (CFSP).
1.26 The Minister also attaches the
final version of the texts which, following the full legal-linguistic
check, were published on 23 April, asking that the Committee:
"[p]lease note that both Agreements
have been split into a number of Addenda, however the page numbering,
content and order remain the same. The documents are now titled
17901/13 + ADD 1 - 8 for Georgia and 17903/13 + ADD 1 - 12 for
the Republic of Moldova."
1.27 The Minister then continues as
follows:
PROVISIONAL APPLICATION
"The proposed Council Decision
on signature attached to my EM of 28 March included a wide-ranging
scope of provisional application. Since then, the Government has
analysed the proposed scope and agreed a position. This is consistent
with the attached revised draft Council Decisions, which can only
cover those parts of the Agreement in respect of which the EU
is exercising competence, and are subject to further Council negotiations.
I am content that we can accept this scope of provisional application,
with some important caveats detailed below. The Government will
pursue this scope of provisional application in subsequent Council
negotiations.
GEORGIA AA
"The Government is content for
the following Titles/Articles to be applied provisionally: Title
I (General Principles), Title II (Political Dialogue and Reform,
Cooperation in the field of Foreign and Security Policy) Article
3, 4,7,8,9, Title III (Justice, Freedom and Security) Article
13,16, Title IV (Trade and Trade related matters) except Article
151, to the extent that it concerns criminal enforcement of intellectual
property rights, Articles 223 and 224, Title V (Economic Cooperation)
Article 285, 291, Title VI (Other Co-operation Policies), Chapter
1 on Transport, except Article 293(a), 293(e) and 294(2)(a) and
294(2)(b), Chapter 2 on energy cooperation, except Article 298
(k), Chapter 3 on environment except Article 302, Chapter 7 on
financial services, Chapter 10 on agriculture and rural development,
except Article 333(i), Chapter 11 on fisheries and maritime, except
Article 338 (b) and 339, Chapter 13 on consumer protection, Chapter
20 on civil society cooperation and Chapter 23 on participation
in EU Agencies and Programmes.
"The Government is content for
the provisional application of a number of standalone articles
under Title VI, which enable a specific Annex of the AA. These
Articles simply say that Georgia "shall carry out approximation
of its legislation to the EU acts and international instruments
referred to [in the relevant Annex]". These articles
are: 312, 319, 327, 354 and 357.
"The Government agrees to the provisional
application of the following sections: Title VII (Financial Cooperation,
with anti-fraud provisions), Title VIII (Institutional, General
and Final Provisions) except Article 423 (1).
"Finally, the Government agrees
to the provisional application of Annexes II to XXI, Annexes XXII-XXIII,
Annex XXIV-XXXI and XXXIV, as well as Protocols I to IV. These
Annexes either relate to those specific issues on Title VI set
out in detail above, or the DCFTA in Title V.
MOLDOVA AA
"The Government is content for
the following Titles/Articles to be applied provisionally: Title
I (General Principles), Title II (Political Dialogue and Reform,
Cooperation in the field of Foreign and Security Policy) Article
3, 4,7 and 8 Title III (Justice, Freedom and Security) Article
12,15, Title IV (Economic and Other Sector Cooperation) Chapter
5 on consumer protection, Chapter 9, Chapter 12 on agriculture
and rural development, except Article 68(h), Chapter 13 on fisheries
and maritime, except Article 71, 73 (b), 73 (e) and 74, Chapter
14 on energy cooperation, except Article 77(i), Chapter 15, except
Article 81(a), 81(e) and 82(2), Chapter 16 on environment, except
Article 87 (with the exception of 87(i)), 88(c), 89(a) and 89(b)
to the extent that it concerns soil protection, Chapter 26 on
civil society cooperation and Chapter 28 on participation in EU
Agencies and Programmes.
"The Government is content for
the provisional application of a number of standalone articles
under Title IV, which enable a specific Annex of the AA. These
Articles simply say that Moldova "shall carry out approximation
of its legislation to the EU acts and international instruments
referred to [in the relevant Annex]". These articles
are: Article 30, 37, 46, 57, 97, 102, and 116.
"The Government also agrees to
the provisional application of: Title V (Trade and Trade related
matters) except Article 278, 359 and 360, Title VII (Financial
Cooperation, with anti-fraud provisions), Title VII (Institutional,
General and Final Provisions).
"Finally, the Government agrees
to the provisional application of Annexes II to XIII, Annexes
XV to XXXIV, Annex XXXV, Protocols I to IV. These Annexes either
relate to those specific issues on Title IV set out in detail
above, or the DCFTA in Title V.
POLICY IMPLICATIONS
"The Government strongly supports
the Georgian and Moldovan requests for early signature of the
AAs and has been working towards the European Council's expedited
timeline of June 2014. As set out in my EM of 28 March, the Government
has argued that the scope of provisional application of these
AAs should extend no further than was the case in the Ukraine
AA agreed last autumn.
"As I said in my letter of 17 April,
there are compelling arguments for provisional application. The
process will bring both countries closer to EU norms and enable
the implementation of certain provisions in the Agreements early,
rather than after ratification which could take several years.
Early signature will also bolster political support for reforms
and help withstand external pressures that Georgia and Moldova
may face as a result of their intention to pursue a path of European
integration. On Moldova specifically, these external pressures
may be related to or the security of energy supply. The UK strongly
supports the right of these democratically elected and sovereign
governments to choose their own course.
"The Government is only willing
to accept provisional application of Article 2, on General Principles,
in both AAs alongside a joint declaration by the Council, Commission
and High Representative. This declaration would make clear that
provisional application of Article 2 is necessary to enable the
EU to take appropriate measures in the event partner states fail
to fulfil their commitments, and is without prejudice to the division
of competences between the Union and the Member States.
COMMON FOREIGN AND SECURITY POLICY CONTENT
"In my letter of 17 April I detailed
the European External Action Service's (EEAS) proposed scope of
provisional application for Common Foreign and Security Policy
(CFSP) articles under Title II of both Agreements. I can now confirm
that the Government is able to accept these provisions with the
caveat that the exercise of these competences by the EU arises
from the specific circumstances applicable in both countries and
does not set a precedent for the EU (as opposed to the Member
States) to act where matters may fall within the CFSP. This is
with specific reference to Article 7 (conflict prevention and
crisis management) and Article 8 (regional stability), and on
Georgia, Article 9 (peaceful conflict resolution). Moreover, EU
action or dialogue in these areas would not preclude UK action
or dialogue. We would seek to set out this position in a joint
declaration by the Council, the Commission, and the High Representative.
"Your Committee requested further
clarification on activities relating to domestic reform and the
fight against terrorism. The EU already undertakes extensive political
dialogue in the areas covered by the articles under Title II of
both Agreements, under the auspices of the existing Partnership
Cooperation Agreements with both countries. Such dialogue covers
issues such as domestic reform and the EU reports and makes recommendations
annually to both Moldova and Georgia. Provisional application
has not been proposed for articles on the fight against terrorism.
JUSTICE AND HOME AFFAIRS CONTENT AND ENHANCED SCRUTINY
"I promised to write again with
more detail on the UK's opt-in decision. The Government has assessed
the relevant provisions in both Agreements and will seek citation
of the relevant Title V legal bases for the articles concerning
readmission: Article 15 in respect of Moldova and Article 16 in
respect of Georgia. As is standard practice for EU-Third Country
agreements, the Government is seeking agreement with Member States
to split the Council Decisions in order to separate JHA obligations
from non-JHA obligations. However, we judge that securing a Title
V legal base and splitting of the Decision will be difficult.
The Government may therefore need to assert the application of
the opt-in in the absence of a Title V legal base. However, as
set out in the Code of Practice on Scrutiny of Opt-In and Schengen
Opt-Out Decisions in Justice and Home Affairs Matters, I would
not wish to pre-empt the Government's JHA opt-in decision until
the 8-week enhanced scrutiny period has concluded.
"Article 12 in the Georgia AA and
Article 13 in the Moldova AA concern the rule of law. The Government
judges the content of the articles does not constitute JHA obligations.
We are therefore seeking to ensure that the joint declaration
between the Council, Commission and High Representative makes
clear that the EU is not exercising competence pursuant to Title
V TFEU by the provisional application of these Articles.
"Finally, as set out in my letter
of 17 April, the 8 week period for the Committees to opine on
the JHA opt-in in relation to these AAs concludes on 29 May. In
the context of the grave situation in Ukraine and the potential
ramifications for other countries in the region, the signature,
provisional application and conclusion of the AAs as soon as possible
is a high priority for the UK Government, as well as the governments
of Moldova and Georgia. Given the importance attached to these
agreements, I would be grateful if the Committee could consider
expediting their consideration of these AAs."
Conclusion
1.28 The Minister has not specified
in his letter those areas of the Agreements where the Member States
are exercising their competence and those where the EU is exercising
its competence (c.f. the first tiret of paragraph 1.22 above).
Given the bearing such an analysis has on the legal issues surrounding
provisional application of the Agreements and the exercise of
the UK opt-in, we continue to ask the Minister to provide us with
this information.
1.29 With regard to provisional application,
each Agreement provides for the EU to decide which parts of the
Agreement are to be provisionally applied. We were concerned
that the EU should not be taking the decision to apply provisionally
any element of the Agreements in respect of which the Member States
are exercising competence. We note that steps have been taken
to address this concern. First, recital (5) to each Decision
now states that "The provisional application of parts of
the Agreement does not prejudge the allocation of competences
between the Union and its Member States in accordance with the
Treaties"; second, Article 3 of each Decision now includes
an overarching limitation on the EU to provisionally apply parts
of the Agreement to matters falling within its competence; and
third, the parts of the Agreement to be provisionally applied
have been more restrictively described.
1.30 With regard to the UK opt-in,
we note that the Minister assesses that it will be difficult to
secure a Title V legal basis for any element of the Agreements.
Our consistent position is that in the absence of a formal Title
V legal basis to an EU instrument, the UK opt-in is not engaged.
1.31 With regard to the political
components, the Minister has now clarified what activities would
be included in the section on Political Dialogue and Reform regarding
domestic reform. He also notes that provisional application
has not been proposed regarding the articles on the fight against
terrorism. His 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"
appears to relate the same sort of pressures that have been applied
to Ukraine by Russia, particularly regarding energy supply.
1.32 With regard to CFSP content
more broadly, however, his explanation of how provisional application
of Articles 7 (conflict prevention and crisis management); 8 (regional
stability) and (on Georgia) 9 (peaceful conflict resolution) does
not "go beyond the arrangements on Ukraine" is less
clear. Likewise what it was in the EEAS's proposals that the
Government was "considering … very carefully",
and why. It is not clear what the "specific circumstances
applicable to both countries" are that the Minister refers
to with respect to the exercise of EU competence, or what precedent
might otherwise be set. Moreover, whether the Government's caveats
will be accepted and accordingly reinforced by a Joint Declaration
by the Council, Commission and High Representative remains an
open question.
1.33 The Minister also refers to
the need for a further Declaration as his sine qua non
for accepting provisional application of Article 2, on General
Principles, in both AAs, making clear that it "is necessary
to enable the EU to take appropriate measures in the event partner
states fail to fulfil their commitments, and is without prejudice
to the division of competences between the Union and the Member
States". Article 2 says:
"1. Respect for the democratic
principles, human rights and fundamental freedoms, as proclaimed
in the United Nations Universal Declaration of Human Rights of
1948 and as defined in the European Convention for the Protection
of Human Rights and Fundamental Freedoms of 1950, the Helsinki
Final Act of 1975 of the Conference on Security and Cooperation
in Europe and the Charter of Paris for a New Europe of 1990 shall
form the basis of the domestic and external policies of the Parties
and constitutes an essential element of this Agreement. Countering
the proliferation of weapons of mass destruction, related materials
and their means of delivery also constitute essential elements
of this Agreement.
2. The Parties reiterate their commitment
to the principles of a free market economy, sustainable development
and effective multilateralism.
3. The Parties reaffirm their respect
for the principles of the rule of law and good governance, as
well as their international obligations, in particular under the
UN, the Council of Europe and the OSCE. In particular, they agree
to promoting respect for the principles of sovereignty and territorial
integrity, inviolability of borders and independence.
4. The Parties commit themselves
to the rule of law, good governance, the fight against corruption,
the fight against the various forms of transnational organised
crime and terrorism, the promotion of sustainable development,
effective multilateralism and the fight against the proliferation
of weapons of mass destruction and their delivery systems. This
commitment constitutes a key factor in the development of the
relations and cooperation between the Parties and contributes
to regional peace and stability."
1.34 Again, it is not clear to us
what the Minister's thought process is, and why a yet-to-be-agreed
Joint Declaration is required.
1.35 In other circumstances, we would
continue to hold the draft Council Decisions under scrutiny, pending
clarification of the areas outlined immediately above. But these
Council Decisions are due to be adopted by the 23 June Foreign
Affairs Council. Given the imminent recess and the ten working
days that the Government says it requires to organise such debates,
we now therefore have no choice but to recommend that these Council
Decisions be debated in European Committee B.
1.36 Our hope is that, then, the
Minister will be able to supply these further clarifications,
and thus a full understanding of what provisional application
of the CSDP content is to consist of: how it is to be circumscribed
so as to ensure that EU competence is properly applied, Member
States' competences are not infringed or otherwise compromised,
and no unwelcome precedents are set. In order to be sure, we would
like the Minister to provide us, and the Library of the House,
with a copy of the final versions of the draft Council Decisions,
and of the Declarations by which he lays considerable store, before
that debate.
1 See HC 83-xli (2013-14), chapters 6 and 7 (9 April
2014). Back
2
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 January 2014); 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 HC 83-xl, (2013-14),
chapter 4 (2 April 2014). Back
3
See headnote: HC 83-xli (2013-14), chapter 6 (9 April 2014). Back
4
See headnote: HC 83-xlii (2013-14), chapter 9 (30 April 2014). Back
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