9 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
|
| Legal base | (a) Articles 212 and 218(5)TFEU; QMV
(b) Articles 212 and 218 (6)(a)TFEU; QMV
|
| Department | Foreign and Commonwealth Office
|
| Basis of consideration | Minister's letters of 2 December 2013 and 19 February 2014
|
| Previous Committee Reports | HC 83-xxi (2013-14), chapter 10 (20 November 2013); HC 83-xvii (2013-14), chapter 4 (16 October 2013); HC 83-iv (2013-14), chapter 13 (5 June 2013)
|
| Discussion in Council | Not known
|
| Committee's assessment | Legally important
|
| Committee's decision | Not cleared; further information requested
|
Background and previous scrutiny
9.1 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.
9.2 Our Fourth Report[57]
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 therefore 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 assured the Committee
that it is able to rely on one such section 8(6) exemption for
the reasons outlined in our Seventeenth Report.[58]
9.3 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. We were not satisfied with the explanation of the
Minister for Europe (Mr David Lidington) for the oversight and
asked the Government:
· why the relevance of the Title V legal
bases had not been realised earlier in the process and;
· whether it accepted that any subsequent
citation of the programme legal bases, including the Title V bases,
would trigger the JHA opt-in process.
9.4 The Minister's response in his letter of 30 October
2013 was summarised in our Twenty-first Report.[59]
As that response was particularly unsatisfactory on the second
question, we sought further clarification from the Government
of its view on the application of the opt-in Protocol when a Title
V legal base is added in the course of negotiations. We also said
that we would be writing to the Council Secretariat and the Commission
to seek their views. A response has now been received from the
Council Legal Services which confirms that their view remains
the same as that expressed by the Secretary-General of the Council,
referred to in paragraphs 9.5 and 9.7 of this Report.
The Minister's letter of 2 December 2013
9.5 The Minister addresses the question of when the
opt-in is triggered when a proposal is first published. He cites
the view of the Secretary-General of the Council on that point
from a letter which was sent from the Secretary-General to the
then Head of UK Rep, Sir John Cunliffe, on 27 September 2012.
The Government's view is that the opt-in process is triggered
by the publication of the final language version of a proposal
that contains JHA obligations.
9.6 The Minister also acknowledges that we do not
share the Government's view that the UK's opt-in rights can be
asserted in the absence of a Title V legal base. He also notes
the loss of the opportunity for enhanced parliamentary scrutiny
prior to the adoption of the proposal and says that should the
opportunity for post-adoption opt-in arise, he would offer Parliament
the full eight-week period for enhanced scrutiny.
Our letter of 11 December 2013
9.7 In his letter of 2 December, the Minister did
not consider the pertinent section of the letter from the Secretary-General
of the Council that expresses the view that later citation of
a Title V legal base during negotiations triggers the opt-in process
at the point of consultation or reconsultation of the European
Parliament on the revised proposal.
9.8 To address this omission, we wrote to the Minister,
asking him in this letter to reconsider his response in light
of the view of the Secretary-General.
The Minister's letter of 19 February 2014
9.9 The Minister now responds and reiterates his
previous view, set out in his letter of 2 December, that the opt-in
Protocol is triggered at first publication of a proposal and that
"any opt-in decision must be taken within three months of
a proposal being presented to the Council".
9.10 However, he does address the question we raised
in our letter of 11 December by confirming that the Government
does not agree with the Secretary-General's view of the effect
of the citation of a Title V legal base after the publication
and during the negotiation of a proposal.
Conclusion
9.11 We question in chapter 4 of this Report[60]
whether the Government's policy on the application of the opt-in
protocol is tenable in the light of recent, adverse ECJ rulings
on Conditional Access Services and the EEA Agreement.
9.12 We consider that the Government's policy
on when the opt-in process is triggered is creating legal and
procedural uncertainty and reducing the scope for effective enhanced
parliamentary scrutiny. Given that the Government's policy is
at odds with the view of both the Council Secretariat and the
ECJ on the application of the opt-in Protocol, we would urge the
Government to reconsider that policy. We note however that in
giving evidence before us in January the Secretary of State for
Justice was unable to shed further light on how such differences
between the Government and the Council might be resolved in the
context of the negotiation of the PIF Directive.
- In retaining these documents under scrutiny,
we register, yet again, our disagreement with the Government policy
on the application of the opt-in Protocol. We also wait to see
the Government's response to the questions on its opt-in policy
which we pose in chapter 4 of this report. We ask the Minister
to continue to keep us informed of all further developments, including
the possibility of a post-adoption opt-in.
57 HC 83-iv (2013-14) chapter 13 (5 June 2013). Back
58
HC 83-xvii (2013-14) chapter 4 (16 October 2013). Back
59
HC 83-xxi (2013-14), chapter 10 (20 November 2013). Back
60
(32375) 18124/10 and (32376) 18126/10: Draft Council Decisions
on the signing and conclusion of the European Convention on the
legal protection of services based on or consisting of conditional
access. Back
| 
