10 EU-Kosovo co-operation
| (a)
(34868)
8775/13
COM(13) 218
(b)
(34869)
8776/13
COM(13) 219
|
Draft Council Decision on the signing of a Framework Agreement between the European Union and Kosovo on the general principles for the participation of Kosovo in Union programmes
Draft Council Decision on the conclusion of a Framework Agreement between the European Union and Kosovo on the general principles for the participation of Kosovo in Union programmes
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| Legal base | (a) Articles 212 and 218(5)TFEU; QMV
(b) Articles 212 and 218 (6)(a)TFEU; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 30 October 2013
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| Previous Committee Reports | HC 83-xvii (2013-14) chapter 4 (16 October 2013); HC 83-iv (2013-14) chapter 13 (5 June 2013)
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| Discussion in Council | Not known
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested.
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Background and previous scrutiny
10.1 These Council Decisions will enable Kosovo to participate
in 22 EU programmes (annexed to the Agreement), by authorising
the signing (document (a)) and conclusion (document (b)) of the
Framework Agreement.
10.2 Our Fourth Report[49]
of the session sets out the content and background to the documents
and the Government's view. In particular, it explains how the
Government contests the proposed sole legal base for the Decisions,
Article 212 TFEU and instead thinks that there should be multiple
substantive legal bases reflecting the legal bases of the 22 programmes.
In that Report we addressed the question of how one of those proposed
new legal bases would be Article 352 TFEU and involve approval
by Act of Parliament under section 8 of the European Union Act
2011 (EU Act) unless a section 8(6) exemption applies. In its
response to the Report, the Government assures us that it is able
to rely on one such section 8(6) exemption for the reasons outlined
in our Seventeenth Report.[50]
10.3 Our Seventeenth Report also addresses an
additional issue which the Government brought to our attention
in a letter of 8 October, namely that because two of the programmes
listed in the Framework Agreement have Title V legal bases, the
Government believes that it should have asserted its opt-in rights
under the JHA Protocol (even in the absence of a Title V legal
base) but that by the time it had realised, the three month opt-in
period (and the eight week period for enhanced parliamentary scrutiny)
had expired.
10.4 We were not satisfied with the explanation
of the Minister for Europe (Mr David Lidington) for the oversight.
So in the conclusions to our Seventeenth Report we asked the Minister:
- what precisely went wrong with
the Government's initial review of the legal bases and when did
this come to light;
- should in the current situation, the Government
be successful in achieving the citation of the Title V legal bases,
would it hold to its view that the pre-adoption opt-in period
has already been triggered; and
- should no satisfactory resolution be achieved
on legal base, in particular as regards the Article 352 TFEU and
Title V legal bases, would the Government be prepared to take
the issue before the Court of Justice.
The Minister's letter of 30 October 2013
10.5 The Minister first addresses the oversight
in relation to the applicability of the Title V legal bases, saying:
"As set out in my previous letter, part of the
reason for the delay was the unusual situation that the Decisions
were based on programmes that are currently being renegotiated
as part of the overall MFF negotiations. This required an extensive
cross-Whitehall exercise which ultimately established that the
UK had asserted its opt-in in relation to some of the successor
programmes to those cited and on that basis we now consider that
the proposal is a measure pursuant to Title V which triggers our
opt-in."
10.6 He repeats his previous regret that the
time taken "internally" to reach this conclusion meant
that the Government missed the opt-in and says that he has given
instructions that processes be put in place at a cross-departmental
officials' level to prevent a recurrence.
10.7 Addressing the question of the application
of the JHA Protocol, he says:
"I am aware there is a long-standing difference
of opinion between the Government and your Committee on the issue
of how and when the opt-in is triggered. I can confirm that it
is our view that in this case the opt-in was triggered by the
initial publication of the proposal, which included JHA content
but did not cite the appropriate Title V legal bases. However,
given that we have on this occasion missed the initial three month
opt-in window, if the proposal is amended to include the appropriate
Title V legal bases (at which point we would hopefully have greater
clarity on which programmes Kosovo will in fact be accessing)
we would then give consideration to a post-adoption opt in."
10.8 Finally, he responds to our question about
the prospect of a challenge before the Court of Justice if the
issue of legal bases is not resolved satisfactorily:
"Consideration of the appropriateness or otherwise
of legal action before the Court of Justice in this or any other
case will require careful thought and consultation depending on
what circumstances might be at the time and so I am afraid I cannot
give a prior indication to the committee at this stage. As I
have said in previous correspondence, we are working to resolve
this issue through political negotiation in the hope that an acceptable
solution can be found."
Conclusion
10.9 Despite the use of the words "on
this occasion" by the Minister, the problems set out here
with the Government's oversight of the opt-in process have also
applied to other recent opt-in proposals. We have in mind, in
particular, our consideration of the proposed Directive on the
fight against fraud to the Union's financial interests by means
of criminal law[51]
and the proposed Council Decisions relating to the signing and
conclusion of the EU-Ukraine[52]
Association Agreement in our Twenty-second Report.[53]
10.10 An unwelcome policy on opt-ins appears
to be emerging in which the Government:
- prevaricates about or omits
to assert the application of the JHA Protocol when a proposal,
which does not cite a Title V legal base, is first published;
- but then does not accept that the opt-in process
is triggered by the later inclusion of a Title V legal base; and
- instead offers us the possible "opportunity"
of scrutinising a post-adoption opt-in, should the Government
consider this later.
10.11 We maintain our view that the JHA opt-in
process is only triggered by the citation of a Title V legal base
and consider that developments on these documents vindicate that
position. On our analysis, Parliament would not be deprived of
the opportunity to exert influence on the opt-in decision where
a Title V legal base is added in the course of negotiations.
We contend that the three months for the Government's to decide
whether to opt-in runs from the date the Council agreed to add
the Title V legal base. We are therefore disappointed with the
Government's analysis, which, at best, leaves Parliament with
the much weaker option of scrutinising a "done-deal"
— a proposal whose provisions are fixed and can no longer
be shaped — in respect of a possible post-adoption opt-in.
10.12 We ask the Government to say why our
analysis is not to be preferred to its own. Pending its reply,
the documents will remain under scrutiny.
- We will also write to the Council Secretariat
and the Commission to seek their views on the application of the
opt-in Protocol when a Title V legal base is added in the course
of negotiations.
49 See headnote: HC 83-iv (2013-14) chapter 13 (5
June 2013). Back
50
See headnote: HC 83-xvii (2013-14) chapter 4 (16 October 2013). Back
51
See (34091)12683/12. Back
52
See(35362-5) -:http://eeas.europa.eu/ukraine/docs/index_en.htm. Back
53
See (35362) (35363) (35364) (35365): HC 83-xx (2013-14) chapter
6 (6 November 2013). Back
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