Documents considered by the Committee on 26 February 2014 - European Scrutiny Committee Contents


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

DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letters of 2 December 2013 and 19 February 2014
Previous Committee ReportsHC 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 CouncilNot known
Committee's assessmentLegally important
Committee's decisionNot 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.

  1. 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


 
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Prepared 11 March 2014