13 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 19 March 2014
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| Previous Committee Reports | HC 83-xxxiv (2013-14) chapter 9, (26 February 2014); HC 83-xxi (2013-14), chapter 10 (20 November 2013); HC 83-xvii (2013-14), chapter 4 (16 October 2013) and 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 | Cleared
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Background and previous scrutiny
13.1 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.
13.2 Our Fourth Report[44]
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 Eighteenth Report.[45]
13.3 Our Eighteenth 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.
13.4 In our subsequent Reports we have pursued the
Government over various issues relating to the opt-in aspects
of these documents, including:
· why the relevance of the Title V legal
bases had not been realised earlier in the process; and
· whether the Government recognised that
the opt-in process would be triggered should the Title V legal
bases be cited subsequently during the negotiation of the documents
or did it disagree with the Council Legal Services and the Secretary-General
of the Council that the opt-in process would run from the time
of the publication of the revised text and when the European Parliament
had been "informed" of the new legal base.
13.5 We pursued these questions with the Government,
in particularly the latter question, until we finally obtained
the precise answers we sought in the letter of the Minister for
Europe (Mr David Lidington) of 19 February (set out in our Report
of 26 February). In summary, the Government did not agree with
the views of the Council Secretariat on the latter question.
13.6 However, as we pointed out in the conclusions
of the Report, whilst we are prepared to agree to disagree with
the Government on that precise point and indeed, more widely,
on its approach to the triggering of the opt-in process in the
absence of a Title V legal base, there had been new developments
which might call for a change in Government policy: adverse rulings
from the Court of Justice on Conditional Access Services and the
EEA Agreement. As these questions had been raised in our Report,
published the same week, on Conditional Access Services, we said
we would wait to see the Government's response in respect of that
document before advancing scrutiny further on these documents.
Minister's letter of 19 March 2014
13.7 The Minister writes:
"To update you on their progress, I can
confirm that our position remains as in my letter of 30 October
2013. While we oppose the proposed legal base of Article 212
TFEU, this issue is the subject of a political negotiation and
we will need to consider how best to protect our overall balance
of interests under the regrettable circumstances of having missed
the usual opt-in window. If we do not secure the citation of
Title V legal bases, which appears the most likely outcome given
the position of other Member States, we will not seek to frustrate
the progress of the measures. Instead we will register our objections
and also take the position that we regard these as being 'partial
JHA measures' where we do not consider ourselves bound as part
of the EU by the JHA element of the measures. This is not an
ideal outcome, but is one that I believe best protects our overall
interests both in seeing Kosovo proceed on its EU path and in
protecting the UK's JHA position.
"I appreciate that we have a continuing
difference of views on the general question of the applicability
of the JHA opt-in in circumstances such as these. But on the
specific Kosovo proposal, it is my understanding that there is
now no disagreement between us on its content other than in relation
to this broader question of the scope of the JHA opt-in. I would
therefore like to ask that you consider either clearing the item
or granting us a waiver so that we can lift our scrutiny reserve
on the Kosovo dossier, while we continue to discuss the wider
JHA issues.
"I ask for this separation of the two issues
because the block on the Kosovo dossier due to our disagreements
on JHA policy is starting to weaken the UK's ability to deliver
our shared objectives in Brussels. As you noted in your reply
of 5 March to my letter on the EULEX Kosovo strategic review,
we have been pressing the EEAS and Commission to confront issues
in a timely fashion, which has sadly not always been the case.
However, they are increasingly using our continued scrutiny reserve
on the Kosovo union programmes to suggest that the UK itself is
slow to engage. While this is a specious argument, it is nonetheless
politically damaging. It particularly weakens our standing when
seeking to amend dossiers following concerns raised by your Committee,
because in this instance the driver of the reserve is an internal
disagreement between us in the UK (and one which it would be counter-productive
to expose) rather than any specific disagreement with the Commission's
proposal beyond those spelled out in my letter of 30 October.
"I know this request to separate out our
disagreements over an EU dossier into parallel tracks is unusual,
but I hope it is one that you can consider. I reassure you that
we will continue to engage with you on the matters at hand. I
have already raised your concerns regarding the wider JHA opt-in
policy with the relevant Home Office and Ministry of Justice Ministers
and confirmed that they will write to you separately on your questions
about HMG's JHA opt-in policy."
Conclusion
13.8 We note what the Minister says about the
wider implications of us maintaining our scrutiny reserve on these
documents. We would have felt able to clear these documents sooner:
· had the precise questions we had asked
in relation to the Government's opt-in policy on the citation
of Title V legal bases during the negotiation of the proposals
been answered sooner; and
· had new circumstances relevant to
that policy not emerged (the Court of Justice judgments in the
Conditional Access Agreement, EEA Agreement, EU-Switzerland Free
Movement of Persons cases and now the imminent judgment in relation
to the Philippines Partnership Cooperation Agreement with the
EU).
13.9 We also note in particular that the Minister
says that:
· it is now unlikely that the Title
V legal bases will be added to current documents; and
· he has taken up our concerns about
JHA opt-in policy which we have expressed during the course of
the scrutiny of these documents.
13.10 On the basis of these statements from the
Minister, we now clear these documents from scrutiny. We do this
in the expectation that:
· in the course of our ongoing scrutiny
of other documents, we will hear from the Government on whether
it is reviewing its JHA opt-in policy in the light of the recent
Court of Justice judgments referred to in paragraph 13.8 above;
and
· the Minister will update us should
there be further developments on the opt-in aspects of these documents.
44 HC 83-iv (2013-14) chapter 13 (5 June 2013). Back
45
HC 83-xvii (2013-14) chapter 4 (16 October 2013). Back
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