6 The EU and Ukraine
| (a)
(35362)
—
—
(b)
(35363)
—
—
(c)
(35364)
—
—
(d)
(35365)
—
—
|
Draft Council Decision on the signing and provisional application of the Association Agreement between the European Union and its Member States, and Ukraine, with the exception of the provisions relating to the treatment of third-country nationals legally employed as workers in the territory of the other party
Draft Council Decision on the signing of the Association Agreement between the European Union and its Member States, and Ukraine, as regards the provisions relating to the treatment of third-country nationals legally employed as workers in the territory of the other party
Draft Council Decision on the conclusion of the Association Agreement between the European Union and its Member States, and Ukraine, with the exception of the provisions relating to the treatment of third-country nationals legally employed as workers in the territory of the other party
Draft Council Decision on the conclusion of the Association Agreement between the European Union and its Member States, and Ukraine, as regards the provisions relating to the treatment of third-country nationals legally employed as workers in the territory of the other party
|
| Legal base | (a) Articles 31(1) and 37 TEU in conjunction with Articles 217 and 218(5), (7) and (8) TFEU; unanimity
(b) Articles 217 and 218(6)(a), (7) and (8) TFEU; QMV
(c) Article 79(2)(b) TFEU in conjunction with Article 218(5) TFEU; unanimity
(d) Article 79(2)(b) TFEU in conjunction with Article 218(6)(a) and (8) TFEU; QMV
|
| Department | Foreign and Commonwealth Office
|
| Basis of consideration
| Minister's letter of 30 October 2013
|
| Previous Committee Report
| HC 83-xviii (2012-13), chapter 5 (23 October 2013)
|
| Discussion in Council
| 19 November 2013 |
| Committee's assessment
| Politically important
|
| Committee's decision
| Not cleared; recommended for debate in European Committee B on 23 October 2013; further information provided (decision reported 23 October 2013)
|
Background
6.1 The first proposal (document (a)) is the legal
instrument for authorising the signature and provisional application
of the Agreement; the second (document (b)), the legal instrument
for authorising the conclusion of the Agreement. The Agreement
includes:
— a section on Political
Dialogue included dialogue and cooperation on domestic reform,
and dialogue on foreign and security policy including Common Security
and Defence Policy;
— a Justice, Freedom
and Security section that has a strong focus on rule of law and
the reinforcement of judicial institutions and practices, and
also covers migration, treatment and mobility of workers, and
cooperation on crime;
— a Free Trade Area
that covers a wide range of issues aimed at stimulating growth
in Ukraine and creating business opportunities for all parties;
and
— an Economic and Sector
Cooperation section of the Agreement that focuses on supporting
core reforms to aid economic recovery and growth in areas such
as governance, energy, transport, environmental protection, social
development, equal rights, consumer protection, education, training,
youth and cultural cooperation.
6.2 Further background on the contents of the Agreement
and our views on its political objectives is set out in our previous
Reports.[14]
Previous scrutiny
6.3 When we last reported, on 23 October, we welcomed
the decision to split the Decisions to sign and conclude the Agreement
into two Council Decisions, one concerning JHA measures to which
the UK's opt-in applies; the other concerning non-JHA measures.
We thought this approach provided for greater legal certainty
on the UK's participation in JHA measures, something for which
this Committee has called since early in this Parliament. It also
followed the approach taken by the Council in the conclusion of
the Framework Agreement on the Comprehensive Partnership and Cooperation
between the EU and Indonesia,[15]
save in that instance the Title V legal base was added in relation
to a readmission provision. We noted, however, that for the Ukraine
Agreement the Title V legal base had been added in relation to
the treatment of third-country nationals legally employed as workers
in the territory of the other party, but not, it seemed, to the
readmission provision. This appeared to be a striking inconsistency
of approach on the application of the opt-in Protocol to international
agreements, which concerned us. We asked the Minister to say why
the precedent of the EU-Indonesia Agreement was not followed in
this instance and whether he shared our concern.
6.4 We also referred the Minister to the conclusion
of our Report on the EU-Kosovo Framework Agreement,[16]
in which we commented that:
"we are aware that the
Legal Service of the Council Secretariat has advised in relation
to the draft Directive on the fight against fraud on the EU's
financial interests by means of criminal law,[17]
that the UK's JHA opt-in period will run from the date of the
general approach in Council agreeing to substitute the proposed
legal base with a Title V base. This approach we think conforms
to the language and logic of Protocol (No) 21. Should, in the
current situation, the Government be successful in achieving the
citation of the Title V legal bases, we ask the Minister to say
whether the Government will hold to its view that the pre-adoption
opt-in period has already been triggered. For the sake of consistency
on an important procedural clarification and the need for predictability
and certainty of scrutiny, we trust that it will not."
6.5 Accordingly, we thought the three-month period
for the opt-in decision on the two Title V Council Decisions should
run from the date on which it was agreed in Council to add the
Title V legal bases. We did not accept the deadline has passed,
and asked the Minister to provide an analysis of why the Government
intended to opt into Article 17 of the Agreement on the treatment
of third-country nationals in accordance with the enhanced scrutiny
procedures for opt-ins.
The Minister's letter of 30 October
6.6 The Minister for Europe explains that, for the
EU-Ukraine Association Agreement, the readmission provision that
the UK opted into related to an existing 2007 readmission agreement
which required the parties to commit to implementing that agreement.
The 2007 readmission agreement was between the EU and Ukraine;
the UK was not a party to it in its own right. As the readmission
provision in the Association Agreement related to the implementation
by the EU of an existing EU obligation, it was not a provision
that the UK could sign up to in its own right.
6.7 With regards to the timing and trigger of the
opt-in period, the Minister says the Committee is aware of the
Government's position. Article 3(1) of the opt-in Protocol provides
that the UK has a right to opt into any new proposal under Title
V within three months of the proposal being presented to the Council.
Therefore, the UK opt-in is triggered by any measure which includes
JHA (Title V) content and applies regardless of whether a JHA
legal title base has been cited. This provision safeguards
the right to opt into JHA measures pursuant to Title V, as envisaged
and provided for by the Treaties. Therefore, the opt-in is triggered
by the publication of the final language proposal for the relevant
Council Decision. The UK is therefore able to choose, on a case
by case basis, whether to participate in new JHA proposals by
expressly opting in.
6.8 As for the analysis of why the Government intends
to opt into Article 17 on the treatment of third-country nationals,
he explains that the Government took the view that this Article
contained binding JHA provisions, but that it was the Member States
and not the EU entering into these provisions. This approach
was not successful. The Government therefore supported the
inclusion of the appropriate Title V legal bases and did not opt
into Article 17.
Conclusion
6.9 We thank the Minister for his explanation
of how the readmission provision in this Agreement differed from
the EU-Indonesia Agreement, and of why the UK opted into Article
17.
6.10 Notwithstanding the Government's policy of
asserting the application of the opt-in Protocol in the absence
of a Title V legal base, we are concerned that the Minister chooses
not to assert the Protocol, and the timeframes within it, when
a Title V legal base is added in the course of negotiations. Disappointingly,
the Minister avoids commenting on the view of the Council Legal
Service which we quote above.
6.11 We assume the Minister's view is reflective
of the Government's view. It has obvious ramifications for the
two-month period in which we can consider the Government's opt-in
decision. We will be following this up with the Government in
due course.
14 See headnote. Back
15
See our Report: HC 83-xii (2013-14), chapter 20 (17 July 2013). Back
16
HC 83-xvii (2013-14), chapter 4 (16 October 2013). Back
17
See (34091) 12683/12: HC 86-xii (2012-13) chapter 10 (12 September
2013). Back
|
