10 The EU and Ukraine
| Committee's assessment
| Legally and politically important
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| Committee's decision
| Cleared from scrutiny (by a Resolution of the House of 12 November 2013)
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| Document details
| Council Decisions on the signature and conclusion of the EU-Ukraine Association Agreement
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| Legal base
| (a) Article 31(1) and 37 TEU and Articles 217 and 218 (5), (7) and (8) TFEU; unanimity
(b) Articles 217 and 218 (6), (7) and (8) TFEU; QMV
(c) Article 79(2)(b) TFEU in conjunction with Article 218 TFEU; unanimity
(d) Article 79(2)(b) TFEU in conjunction with Article 218 (6) and (8) TFEU; unanimity
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| Department
| Foreign and Commonwealth Office
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Summary and Committee's conclusions
10.1 The Association Agreement with
Ukraine is intended to support and encourage reform in Ukraine
to bring it closer to EU norms, as well as to give Ukraine gradual
access to parts of the EU Internal Market, and includes a Deep
and Comprehensive Free Trade Area. The Agreement would be the
first of its kind; similar Agreements are being negotiated with
Moldova, Georgia, Armenia and Azerbaijan.
10.2 In November 2013, four decisions
authorising the EU to sign and provisional apply the Association
Agreement between the EU and Ukraine, and subsequently to conclude
(ratify) it, were cleared from scrutiny by debate in European
Committee B on 11 November 2013, and by resolution of the House
the following day. This was in anticipation of the Agreement being
signed at the Vilnius summit later that month. In the event the
Agreement was not signed as planned.
10.3 However, following the subsequent
events in Ukraine, on 21 March 2014 the EU Council and the new
Ukraine authorities signed certain core political chapters and
the EU decided to provisionally apply them — although, in
accordance with Article 486 of the Agreement provisional application
does not actually take effect until the Ukraine has ratified the
Agreement. These were: the preamble and Article 1 (outlining
the objectives of the Agreement); Title I - General Principles;
Title II - Political Dialogue and reform, Political Association,
Cooperation and Convergence in the field of Foreign and Security
Policy; Title VII - Institutional, General and Final Provisions.
In the Final Act of the Summit at which this happened the parties
also confirmed their intention to proceed to signature and conclusion
of the rest of the Agreement. This process was not subject to
separate parliamentary clearance from scrutiny.
10.4 Following the election of President
Poroshenko on 25 May 2014, both he and the Council want to press
ahead with the signature and provisional application of the other
elements: Title III - Freedom, Justice and Security; Title IV
- Trade and Trade-related Matters; Title V - Economic and Sector
Cooperation; and Title VI - Financial Cooperation, with Anti-fraud
Provisions.
10.5 The Minister for Europe (Mr David
Lidington) now assures the Committee that nothing has been added
to the text of the Agreement that cleared scrutiny last year;
both the Council Decision authorising provisional application
and the Association Agreement will therefore be substantively
the same as documents previously cleared by the Committee. The
aim being to sign the Agreement at the European Council on 27
June, the Minister says that all processes will need to be completed
by 18 June, in advance of the 23 June Foreign Affairs Council.
The Minister explains that, pending entry into force of the Agreement,
only a limited number of articles within these Titles will be
applied provisionally, once Ukraine has ratified the Agreement.
The Government has, he says, negotiated a limited scope for provisional
application to protect Member State competence:
"As these documents are in essence
the same as those which cleared scrutiny in September 2013, and
there is an important political imperative to sign the Association
Agreement with Ukraine as soon as possible to enable the EU to
strengthen its support for Ukraine, I am formally requesting that
your Committee exempt the documents from scrutiny."
10.6 Previously the JHA elements of
the Agreement had been subject to separate authorisations that
gave proper recognition that the UK opt-in under Protocol 21 of
the Treaties applied. Although this is not part of the Commission's
original proposal, the Minister is confident that this separation
will be restored to the final text.
10.7 Although the Decisions authorising
the EU to sign and provisionally apply the Association Agreement
may indeed add nothing to those which cleared scrutiny in November
last year, they are nevertheless of political and legal importance
in their own right. We therefore request that the documents be
deposited. However, taking account of the importance and urgency
of the matter, we agree to waive scrutiny clearance for the purposes
of agreeing the Decisions at the Foreign Affairs Council on 23
June.
10.8 In addition to the deposit of
these texts, we ask the Minister to provide the texts agreed on
21 March, and all associated statements or declarations, in order
to provide the complete picture. As with the recent Association
Agreements with Georgia and Moldova, we remain concerned to identify
clearly those provisions in respect of which the EU is exercising
competence to sign the Agreement, or provisionally applying it,
where is does not have exclusive competence.[33]
We ask that the Minister's Explanatory Memorandum identify these.
Full details of the
documents: (a)
Draft Council Decision on the signing, on behalf of the European
Union, and provisional application of the Association Agreement
between the European Union and its Member States, and Ukraine,
with the exception of the provisions relating to the treatment
of third-country nationals legally employed as workers in the
territory of the other party: (35362), —; (b) Draft Council
Decision on the signing, on behalf of the European Union, of the
Association Agreement between the European Union and its Member
States, and Ukraine, as regards the provisions relating to the
treatment of third-country nationals legally employed as workers
in the territory of the other party: (35363), —; (c) Draft
Council Decision on the conclusion of the Association Agreement
between the European Union and its Member States, and Ukraine,
with the exception of the provisions relating to the treatment
of third-country nationals legally employed as workers in the
territory of the other party: (35364) —; (d) Draft Council
Decision on the conclusion, on behalf of the European Union, of
the Association Agreement between the European Union and its Member
States, and Ukraine, as regards the provisions relating to the
treatment of third-country nationals legally employed as workers
in the territory of the other party: (35365), —.
Background
10.9 These Council Decisions authorise
the signature and provisional application, and the conclusion,
of an Association Agreement between the EU and Ukraine. The full
background is set out in our earlier Reports of July and October
2013.[34]
10.10 In his Explanatory Memorandum
of 14 June 2013, the Minister for Europe explained that:
— relations between the EU
and Ukraine are currently based on a Partnership and Cooperation
Agreement that entered into force in 1998;
— in 2007, the EU and Ukraine
began negotiations on an Association Agreement that would deepen
and broaden the political and economic relationship;
— in 2008, following Ukraine's
accession to the WTO, negotiations were widened to include a Deep
and Comprehensive Free Trade Area;
— the Agreement process supports
and encourages reform in Ukraine to bring it closer to EU norms,
as well giving Ukraine gradual access to parts of the EU Internal
Market;
— this Agreement, including
a Deep and Comprehensive Free Trade Area, is the first of its
kind; and
— similar Agreements are being
negotiated with Moldova, Georgia, Armenia and Azerbaijan.
10.11 The Minister recalled the December
2012 Foreign Affairs Council adopted Conclusions expressing the
EU's commitment to signing the Association Agreement as soon as
Ukraine demonstrated progress on electoral reform; addressing
selective justice; and implementing the reforms in the Association
Agenda. The Conclusions[35]
indicated that, were the conditions met, signature might be possible
by the time of the Eastern Partnership Summit in Vilnius in late
November 2013. The Council also said that signature might be
accompanied by provisional application of parts of the Agreement;
the Minister said that "provisional application would be
a balance of economic and values issues of mutual benefit, and
be designed to encourage early reform", and that the exact
composition of the scope of provisional application had yet to
be agreed.
10.12 The Council Decisions were subsequently
cleared from scrutiny via a debate in European Committee B on
11 November 2013. [36]
10.13 However, under pressure from Russia,
the Ukraine decided not to sign the Association Agreement at the
Vilnius summit of 29 November 2013.
10.14 On 20 February 2014, EU Foreign
Ministers agreed that because of the serious deterioration of
the situation in Ukraine, the EU should immediately begin work
on targeted measures against those individuals responsible for
human rights violations, violence and the excessive use of force.
10.15 On 6 March, an emergency European
Council welcomed the EU foreign ministers' decision and in a
subsequent statement,[37]
among other things, said:
"First, we strongly condemn Russia's
unprovoked violation of Ukrainian sovereignty and territorial
integrity. We call on Russia to immediately withdraw its armed
forces; and allow immediate access for international monitors.
We consider the decision by Crimea's Supreme Council to hold a
referendum as contrary to the Ukrainian constitution and therefore
illegal."
10.16 In response to this further deterioration
in the crisis, the Government arranged a general debate on Ukraine
on 18 March.[38]
Further consideration of the Association Agreement
10.17 The main business concerning Ukraine
at our meeting on 26 March 2014 was the restrictive measures adopted
by the Council on 17 March, the day after the "referendum"
in Crimea. They provide for travel restrictions and an asset
freeze on certain persons responsible for actions which undermine
or threaten the territorial integrity, sovereignty and independence
of Ukraine, including actions on the future status of any part
of the territory which are contrary to the Ukrainian Constitution.[39]
10.18 We also considered correspondence
from Minister for Europe which recalled the decision of the 6
March European Council, at the request of the Ukrainian Prime
Minister, to bring forward signature of the political chapters
of the EU's Association Agreement (AA). The Minister explained
that: "Nothing additional or new to the text of the AA which
was cleared from scrutiny in 2013 will now be signed". Title
III covering Freedom, Justice and Security had been excluded from
the scope of the Decision on signature. Only the following Titles
would accordingly be authorised for signature:
— Preamble - Article 1;
— Title I - General Principles;
— Title II - Political Dialogue
and reform, Political Association, Cooperation and Convergence
in the field of Foreign and Security Policy; and
— Title VII - Institutional,
General and Final Provisions.
10.19 The Minister further explained
that, pending its entry into force:
"under Title II, provisional application
will only cover Articles 4, 5 and 6. Articles 7 and 10, for example,
on Common Security and Defence Policy and Common Foreign and Security
Policy will not be provisionally applied. The 'Final Act' document
that will be signed by all parties also includes a commitment
to proceed to signature and conclusion of the whole agreement
in due course. A second Decision on signature would be needed
for other measures."
10.20 In a further letter of 21 March,
to the Committee Chair, the Minister said:
"We spoke earlier in the week about
your concerns regarding the CFSP elements of the EU-Ukraine Association
Agreement (AA). As you know the political elements of that Agreement
are being signed at today's European Council. To my mind there
are three key points which I hope will reassure you on this issue.
"First, as I outlined in my letter
to you of Monday 17 March, the political parts of the text being
signed are identical to that which was agreed in 2012 and which
cleared scrutiny in 2013. In fact, the whole text of the AA is
identical to that of 2012 and 2013. So everything that we discussed
during the relevant debates and exchange of correspondence holds.
That includes the fact that — under Title II on "Political
dialogue and reform, political association, cooperation and convergence
in the field of foreign and security policy" — only
Articles 4, 5 and 6 on political dialogue and dialogue on domestic
reform are being provisionally applied. Articles 7 and 10,
for example, are not being provisionally applied.
I attach the text of those articles in Title II which are being
provisionally applied.
"Second, and more substantively,
the provisions in the relevant Title II of the AA are not some
kind of defence or military cooperation treaty. The provisions
on military training and exercises referred to in the treaty relate
to EU CSDP missions: this is about allowing Ukraine to participate
in CSDP missions/training and in doing so helping to improve Ukraine's
defence and security capacity, doctrine (based on NATO standards)
and inter-operability. There are no specific provisions or obligation
for military exercises in Ukraine. 'Live' military exercises
are a matter for EU Member States. These provisions are
in line with other third state CSDP partnerships. As you know,
Ukraine already has a Framework Participation Agreement on CSDP
and has taken part in the anti-piracy Operation Atalanta, including
contributing a frigate earlier this year.
"Third, I consider that even if
this agreement did contain more significant provisions on defence
cooperation, that this would be a matter for the Ukrainian Government
to decide, with whichever party they wish to agree such an agreement.
The idea that Russia (or any other State) should have a veto over
this kind of sovereign act is objectionable in the extreme. Russia's
patently illegal action over Crimea is even more objectionable."
10.21 The Minister wrote again on 4
April: confirming that the political chapters of the EU-Ukraine
Association Agreement were signed on 21 March; confirming also
that the text of Titles of the Agreement constituting the political
chapters was identical to that which cleared scrutiny in 2013;
and saying that he had ensured that a complete copy of the Association
Agreement text was available in the Library of the House for the
convenience of Members. He also noted that, at the March European
Council, the EU and Member States restated their commitment to
signing the remainder of the Association Agreement with Ukraine
in due course.
The Minister's letter of 12 June 2014
10.22 The Minister begins with the recent
Presidential election:
"The election of President Poroshenko
in a decisive first-round victory on 25 May has given Ukraine
the chance to move forward from the turmoil of the last few months
and address the underlying problems of the country through wide-ranging
reforms. But the situation in the east of Ukraine remains of
grave concern, and the UK and wider international community are
continuing to support Ukraine and make clear to Russia that its
actions will have consequences. I wanted to update you on developments,
in particular with regard to our action in the European Union."
10.23 The Minister notes that the Foreign
Secretary updated Parliament on 13 May following his visit to
Ukraine on 6-7 May, and the Foreign Affairs Council meeting on
12 May.[40] He continues
thus:
"His statement covered the UK response
to the situation in Ukraine, including: a) support to Ukraine
and b) pressure on Russia to de-escalate the situation.
"Under the category of support
to Ukraine, the Foreign Secretary noted the Foreign Affairs Council's
firm commitment to sign the remaining provisions of the Association
Agreement with Ukraine, including a Deep and Comprehensive Free
Trade Area, as soon as possible after the presidential elections.
You will recall that in my letter to you of 17 March, I informed
you that EU Heads of State and Government had, at the request
of the Ukrainian Prime Minister, agreed to bring forward signature
of the political chapters of the EU's Association Agreement with
Ukraine. These chapters were signed at an Extraordinary Summit
on 21 March. In his inauguration speech on 7 June, President
Poroshenko made clear his commitment to a European future for
Ukraine and that his pen was in his hand ready to sign rest of
the Association Agreement.
"Some will question whether Ukraine
and the EU should sign the Association Agreement when retaliation
from Russia remains likely and Ukraine has many internal problems
to resolve. Our firm position is that Russia should not be allowed
to have a veto over Ukraine's future. Signing the Association
Agreement will not come at the expense of dialogue with Russia,
and the UK will continue to urge Russia and Ukraine to engage
constructively to de-escalate the tensions in the east of the
country. We are encouraging President Poroshenko to continue
to engage with the whole country in an inclusive dialogue, and
ensure that any security operations remain measured and respect
the safety and security of non-combatants. I am also convinced
that the Association Agreement provides the best support framework
for Ukraine to take forward the reforms that are essential to
build a stable, prosperous, democratic country.
"The Prime Minister met President
Putin on 5 June and called on him to recognise the legitimate
election of President Poroshenko. He urged Putin to take action
to contribute to ending the destabilisation of eastern Ukraine,
stop arms crossing the border from Russia into Ukraine, and cease
Russian support for separatist groups. The Prime Minister
made clear that if these things did not happen, stronger sanctions,
applied by economic sector, would follow. G7 leaders affirmed
last week our non-recognition of Russia's illegal annexation of
Crimea and condemned the unacceptable interference in Ukraine's
sovereign affairs by the Russian Federation."
10.24 The Minister then turns to the
implications of AA signature for parliamentary scrutiny. He begins
with the history hitherto:
"As you will recall, we originally
submitted draft Council Decisions in June 2013 in expectation
of a Ministerial decision on whether to sign the Association Agreement
with Ukraine at the Eastern Partnership Summit on 28-29 November
2013. The draft Council Decisions on signature and provisional
application of an Association Agreement between Ukraine and the
EU cleared scrutiny in the Commons via a debate in European Committee
B on 11 November 2013 and the resolution of the House agreed the
following day. These decisions also cleared scrutiny in the Lords
on 15 October at the EU Select Committee Chairperson's sift. However,
President Yanukovych subsequently announced that Ukraine's preparations
for signature of the Association Agreement would be put on hold.
"In my letter of 17 March, I explained
that a Council Decision had been circulated authorising signature
and provisional application of the 'political chapters' of the
Association Agreement. The 'Final Act' document signed by all
parties in March included a commitment to proceed to signature
and conclusion of the whole agreement in due course. Nothing
had been added to the text of the Agreement which was cleared
from scrutiny in 2013. The March Council Decision authorised signature
and provisional application of the following Titles from the AA
text previously cleared from scrutiny:
"Preamble - Article 1
"Title I - General Principles
"Title II - Political Dialogue
and reform, Political Association, Cooperation and Convergence
in the field of Foreign and Security Policy
"Title VII - Institutional,
General and Final Provisions."
10.25 He continues as follows:
"On 11 June the College of Commissioners
put forward a new Council Decision to agree signature and provisional
application of the remaining Titles of the Association Agreement.
These are:
"Title III - Freedom, Justice
and Security
"Title IV - Trade and Trade-related
Matters
"Title V - Economic and Sector
Cooperation
"Title VI - Financial Cooperation,
with Anti-fraud Provisions
"Again, nothing has been added
to the text of the Agreement that cleared scrutiny last year.
The new draft Council Decision differed from the Decisions previously
considered by the Committees in one respect:
"It is a single Decision and not
split to give a Title V legal base for the article regarding the
provisions relating to the treatment of third-country nationals
legally employed as workers in the territory of the other party;
"The UK has lobbied to ensure that
this change is reversed. This will be discussed at COEST on 12
June where, based on informal assurances, we are optimistic that
the Title V legal base will be reinstated and the Decision split.
Both the Council Decisions and the Association Agreement will
therefore be substantively identical to documents previously cleared
by the Committees. The aim is to sign the Agreement at the June
European Council on 27 June, which means that all processes will
need to be completed by 18 June, in advance of the Foreign Affairs
Council on 23 June.
"Pending entry into force of the
Agreement, only a limited number of articles within these Titles
will be applied provisionally once Ukraine has ratified the Agreement.
The UK Government negotiated a limited scope for provisional
application to protect Member State competence. The Agreement
being presented to the European Council respects the deal reached
in September. Under Title III on Justice, Freedom and Security,
for example, provisional application will only cover Articles
14 and 19. Article 14 is a general chapeau article on rule
of law and respect for human rights and fundamental freedoms;
in September the UK secured a Joint Statement that makes clear
that cooperation under this article does not constitute an exercise
of competence by the European Union pursuant to Title V of Part
III of the Treaty on the Functioning of the EU. This Statement
is annexed to the new Council Decision and Final Act. Article
19 only applies to the UK in respect of a pre-existing re-admission
agreement and, as I have previously advised the Committee, the
UK opted into this provision in September 2013. The only other
aspect of the Agreement where the UK declared its opt-in and opted
in is Mode 4. My Explanatory Memorandum of 9 October set out
the UK's approach and position.
"As these documents are in essence
the same as those which cleared scrutiny in September 2013, and
there is an important political imperative to sign the Association
Agreement with Ukraine as soon as possible to enable the EU to
strengthen its support for Ukraine, I am formally requesting that
your Committee exempt the documents from scrutiny."
Previous Committee Reports
Nineteenth Report HC 83-xviii (2013-14),
chapter 5 (23 October 2013); also see (35880) — and (35881)
—: Forty-fourth Report HC 83-xxxix (2013-14), chapter 3
(26 March 2014).
33 For details, see the record of the European Committee
debate on these Agreements, which is available at http://www.publications.parliament.uk/pa/cm201415/cmgeneral/euro/140609/140609s01.pdf
(Gen Co Deb, European Committee B, 9 June 2014, cols. 3-28). Back
34
See (34969) 9706/13 and (35029) 9856/13: Seventeenth Report HC
83-xvi (2013-14), chapter 7 (9 October 2013) and Twelfth Report
HC 83-xii (2013-14), chapter 7 (17 July 2013). Back
35
The Council Conclusions are available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/134136.pdf Back
36
Via a European Committee debate: http://www.publications.parliament.uk/pa/cm201314/cmgeneral/euro/131111/131111s01.htm
(Gen Co Deb, European Committee B, 11 November 2013,
cols. 3-20). Back
37
The text of the statement by EU Heads of State and Government
is available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/141373.pdf Back
38
The record of that debate is available at http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140318/debtext/140318-0001.htm#14031867000001
(HC Deb, Tuesday 18 March 2014, cols. 650-701). Back
39
See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2014:078:0006:0015:EN:PDF
for full details. Back
40
For the Foreign Secretary's statement, see http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140513/debtext/140513-0001.htm#14051357000001
(HC Deb, 13 May 2014, cols. 575-90). Back
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