5 EU and Azerbaijan
| (a)
(35668)
17917/13
COM(13) 865
(b)
(35669)
17920/13
+ ADD 1 REV 1
COM(13) 868
|
Draft Council Decision on the signing and provisional application of a Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States, and the Republic of Azerbaijan, on a Framework Agreement between the European Union and the Republic of Azerbaijan, on the general principles for the participation of the Republic of Azerbaijan in Union programmes
Draft Council Decision on the conclusion of a Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States, and the Republic of Azerbaijan, on a Framework Agreement between the European Union and the Republic of Azerbaijan on the general principles for the participation of the Republic of Azerbaijan in Union programmes
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| Legal base | (a) Article 212, in conjunction with Article 218(5) TFEU; QMV
(b) Article 212, in conjunction with Article 218(6)(a) TFEU; EP consent; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 27 February 2014
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| Previous Committee Report | HC 83-xxxiii (2013-14) chapter 7, (12 February 2014)
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| Discussion in Council | To be determined
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
5.1 The background to these two Council Decisions on the signing
and conclusion of a Framework Agreement with Azerbaijan, a brief
account of their scope and the Government's initial view is set
out in our Thirty-sixth Report.[10]
5.2 In the conclusions to that Report, we thanked
the Minister for Europe (Mr David Lidington) for clarifying that
the same question of the Commission's choice of legal base applied
to the current documents as it had to the Framework Agreement
for Kosovo and Georgia. Specifically, that the Decisions cited
a single legal base (Article 212 TFEU) rather than all the substantive
legal bases of the EU programmes covered in the Framework Agreement
as had been the practice previously.
5.3 According to the Government, those legal
bases would not only include an Article 352 TFEU legal base (requiring
the requisite approval by primary legislation or exemption from
approval under the EU Act 2011) but also those in respect of programmes
containing JHA obligations (Fiscalis 2020 and Customs 2020). This
would therefore trigger the application of the opt-in Protocol.
So we also noted in our conclusions that the Government intended
to pursue its policy of asserting the application of the opt-in
Protocol to the Council Decisions, in the absence of the citation
of a Title V legal base. We repeated our view, known to the Government,
that the opt-in Protocol did not apply in those circumstances.
5.4 We asked the Minister to keep us informed
of progress in securing a change of legal base and to respond
to an outstanding letter on the EU-Kosovo Framework Agreement.
The Minister's Letter of 27 February 2014
5.5 In his letter, the Minister says that:
· the
Government has persisted in making clear its opposition to the
Article 212 TFEU legal base;
· discussions
have commenced in the Working Party of Eastern Europe and Central
Asia (COEST);
· as with the
Georgia and Kosovo Framework Agreements, the Commission continues
to argue that there is no need to cite all the individual legal
bases of the EU programmes involved where they provide for their
extension to a third country;
· the Government
is continuing to press the Commission for a complete and precise
list of all the programmes that Azerbaijan
will be able to participate in, which it needs in order to assess
which legal bases need to be cited in the current documents;>
· the
Commission is unwilling to provide this list and instead asserts
that a "generic list should suffice given each European Neighbourhood
Policy country would need its own agreement in order to participate
in a programme";
· he apologies
for not informing the Committee earlier that, due to a misunderstanding
between EEAS and FCO officials,
the publication of the final language version of the two Council
Decisions on 7 February was overlooked;
·
this means, according to the Government (and consistent with
the approach taken by the Government on the Georgia Agreement),
that the eight-week period for the Committee to opine on the opt-in
has already begun and will expire on 4 April; and
· the
UK continues to push for adoption of these Decisions to be delayed
in order to allow national parliaments sufficient time to consider
the question of the opt-in, but this will ultimately be beyond
the Government's control as the Decisions are to be adopted by
QMV.
5.6 The Minister concludes his
letter by saying that he will keep us informed of progress in
the negotiations.
Conclusion
5.7 We thank the Minister for this update.
We note the Government's view that the process for enhanced parliamentary
scrutiny on the opt-in has already commenced and expires on 4
April. We will not be expressing any opinion on the purported
opt-in decision as we do not recognise that the opt-in process
is triggered in the absence of a Title V legal base.
5.8 We also note that the Minister will keep
us informed of progress in the negotiations on these documents.
We ask, in particular, for a prompt update should the Commission
agree to change the single legal base to the multiple legal bases
of the EU programmes falling within the scope of the Framework
Agreement.
5.9 In the meantime, the documents remain
under scrutiny.
10 See headnote. Back
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