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


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

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 letter of 19 March 2014
Previous Committee ReportsHC 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)
Discussion in CouncilNot known
Committee's assessmentLegally important
Committee's decisionCleared

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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