1 European Neighbourhood Policy (ENP)
and Lebanon
| Committee's assessment
| Legally and politically important
|
| Committee's decision
| Not cleared from scrutiny; further information requested
|
| Document details
| Council Decision: implementation of the second EU-Lebanon ENP Action Plan
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| Legal base
| Article 29 TEU; unanimity
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| Department
| Foreign and Commonwealth Office
|
Summary and Committee's conclusions
1.1 The second EU-Lebanon ENP Action
Plan was negotiated between August 2012 and January 2013. It outlines
the priority objectives for EU-Lebanon partnership, covering a
broad range of subjects, and elaborates specific benchmarks, indicators,
timelines and possible EU interventions for each of them. The
Minister for Europe (Mr David Lidington) described it as "the
key document that will guide the EU's bilateral relations with
Lebanon for an initial duration of three years from its adoption".
We first considered it at our meeting on 4 September 2013.
1.2 How much of what was proposed would
fall foul of the Syria crisis and whatever its aftermath might
be, was moot: but not for there and then, we concluded. What
did continue to need highlighting, however, was the Minister's
views on the use of a Council Decision in this context (as he
did with regard to a similar EU-Morocco Action Plan, which we
considered at the same meeting),[1]
viz:
"The United Kingdom does not
agree that a Council Decision citing a substantive Common Foreign
and Security Policy (CFSP) legal base is the appropriate mechanism
for adopting the EU's position within the Association Council
with regard to the adoption of a recommendation to adopt the Action
Plan. The Action Plan itself does not contain any legally binding
obligations and moreover the Association Council will simply 'recommend'
its adoption to the Parties to the Euro-Mediterranean Agreement.
The United Kingdom considers that the Council is being asked
to adopt an EU position that is essentially political and therefore
should properly be adopted by way of Council Conclusions adopted
by consensus. Furthermore the Action Plan covers a broad range
of subject-areas and it is unlikely that they would all fall within
the Union's CFSP."
1.3 This is an issue that we have explored
at length with the Minister, both in relation to the earlier EU-Palestine
Action Plan[2] and, more
generally, in the evidence that he has given to the Committee
during the course of its inquiry into the scrutiny process in
the House.
1.4 The Minister contended that the
Council Decision by which that earlier Action Plan was adopted
was not legally binding. At issue for the Government then was
a desire for a policy document such as an ENP Action Plan not
to be legally binding: for the Committee, to ensure that all
ENP Action Plans are depositable documents.
1.5 The Minister said (in a letter to
the Committee of 22 March 2013) that the Government had argued
consistently that a Council Decision was not the right means to
adopt a text of a political nature; and that the Council Decision
for the EU-Palestine Action Plan was not a legally binding decision
pursuant to Article 288 TFEU. He went on to say:
"There is no substantive legal
base cited on the face of the Council decision. As the I/A cover
note for the decision acknowledges, the text of the Action Plan
is of a political nature having no legally binding effects for
the Parties; and the position to be approved by the Council is
not based on Article 218(9) TFEU. On the basis of the I/A cover
note, it is clear that this act of the Council is not a decision
as provided for in Article 288 TFEU but rather a sui generis
Council decision that creates political rather than legal
commitments. The Council decision and the cover note were agreed
by consensus on 18 March."
1.6 We deemed this a novel argument,
because the Treaties do not provide for non-legally binding Council
Decisions such as this.
1.7 Subsequently, when giving evidence
to the Committee's inquiry on 3 July 2013, the Minister was asked
if he would agree to our revised Standing Order referring to action
plans by name as depositable documents; and responded thus:
"No. The problem with action
plans is that they cover such a wide range of documents. They
are not defined in the treaties in any way. Sometimes action plans
can be documents that are politically important; they will define
the EU strategy towards a particular country or region of the
world. We do try in Government, where that is the case, to submit
them for scrutiny. If they are issued as Council decisions or
Commission communications, first of all, they are depositable
under the scrutiny process anyway. The enlargement strategy, which
was a communication, and the joint communications of the EAS and
the Commission on the counterterrorism action plan for the Horn
of Africa and Yemen were caught by scrutiny."[3]
1.8 Our view was (and continues to be)
that ENP Action Plans, in whatever form they are to be adopted,
should be depositable documents precisely because they are political
commitments, and ones that — as the Minister says here
— define EU strategy and policy towards a country or region.
If they do not, then they are mis-named: and if they are thus
named, they should be subject to the normal scrutiny process.
As we have noted here and elsewhere, prior to the Lisbon Treaty
they were adopted via Council Decisions; and we can see no justification
for departing from this practice. Nor can the Council secretariat,
the Commission or other Member States.
1.9 We indicated that our Standing Orders
would have to be amended to include strategies and action plans
specifically if they were not to be adopted by Council Decisions
in the future in order to ensure proper prior parliamentary scrutiny.
1.10 In the meantime, we continued to
retain this Council Decision under scrutiny.
1.11 We note that the difference
of view over the correct legal basis for the EU's adoption of
this Action Plan has not been resolved. The novel arrangement
applied here is a temporary fix to meet the political imperative
of putting the Action Plan into place as soon as possible. The
legal informality and uncertainty are unsatisfactory given the
political importance of the Action Plan. This is amply demonstrated
by the fact that the Minister has only been able to provide us
with the Decision in the form of two limité documents.
This unsatisfactory position should be resolved as soon as possible
to avoid continuing to blight the proper process for putting into
place other such future Action Plans.
1.12 We therefore ask the Minister
to inform us of the prospect of resolving this legal dispute,
either by agreement or litigation.
1.13 The Minister has declined thus
far to support a change to our Standing Orders to address this:
and we continue to await the Government's long overdue response
to our Twenty-fourth Report, Reforming the European Scrutiny
System in the House of Commons,[4]
(which contains appropriately revised new Standing
Orders). The Minister's position would appear to be essentially
doctrinal, rather than one based on a principled unwillingness
to allow prior scrutiny of the Action Plan itself. We therefore
ask him — pending the Government's response to our Scrutiny
Report — to undertake to ensure that any future Action Plans
under the ENP be deposited for prior scrutiny, by doing so voluntarily
if necessary, using the powers available to him under the Scrutiny
Reserve Resolution.
Full details of the
documents: Council Decision
on the Union position within the Association Council established
by the Euro-Mediterranean agreement establishing an Association
between the European Community and its Member States and the Republic
of Lebanon, with regard to the adoption of a Recommendation on
the implementation of the second EU-Lebanon ENP Action Plan: (35213),
—.
Background
1.14 The Minister then wrote on 10 December
2013, informing the Committee that the 16 December Foreign Affairs
Council would agree a Union position on the adoption of the EU-Morocco
Action Plan by means of an I/A note. The Minister described this
as "an ad hoc approach" that would apply only to the
EU-Morocco Action Plan and the EU-Lebanon Action Plan; and told
us that the latter would be adopted by the same mechanism, but
at a later Council meeting likely in early 2014. The Minister
said that "[i]n this particular case I considered that the
use of an I/A note was acceptable because, though it may not have
the political weight of Council Conclusions, it is, like Council
Conclusions, an exercise of Council's Article 16 policy-making
function, and agreed by consensus, in line with the UK Government's
position." The Minister also said that "the Council
will make a Declaration which confirms that this approach does
not constitute a precedent beyond the EU-Morocco and EU-Lebanon
Action Plans", and that "in future the Council procedure
will be determined with regard to the content of the Action Plan".
The Minister expected discussions on the question of the form
of adoption of future ENP Action Plans to continue and undertook
to keep the Committee updated on their progress.
1.15 The Minister also acknowledged
the Committee was "likely to consider this an override of
scrutiny", and expressed regret "that this was necessary
in this case in order to avoid blocking the adoption of the EU-Morocco
Action plan at the EU-Morocco Association Council on 16 December,
which would have had a serious impact on both EU and UK relations
with Morocco".
1.16 The Committee recalled its letter
of 27 November — to which the Minister made no reference
— in which it explained that it was holding both Action
Plans under scrutiny for the sole reason that it opposes the Government's
policy of seeking to have Action Plans adopted by Council Conclusions.
The Committee also said in that letter that to waive scrutiny
or clear from scrutiny at this stage would not only contradict
the Committee's policy to date, but also undermine the important
principle at stake. As the Committee said there and on several
previous occasions, were this approach to become the norm, Action
Plans would no longer fall within the scrutiny reserve, with serious
adverse consequences for parliamentary scrutiny of key EU external
action. Having stated clearly in that letter that, should an
override take place, it would consider it to be a serious breach
of the scrutiny reserve, we had no choice but to reiterate our
position and confirm that such a breach has now been committed.
Both Action Plans remained under scrutiny.
1.17 The Committee also noted that it
would return to this issue either when the Minister provided further
information about the adoption of the EU-Lebanon Action Plan or
the future discussions on the form of adoption of future ENP Action
Plans, or the Government responded to the points made about this
matter in the Committee's Report on the scrutiny of European business
in the House.[5]
1.18 The Committee then wrote once more
on 26 February, in response to further letters of 30 January and
13 February from the Minister informing it, firstly, that the
Foreign Affairs Council on 11 February would, and then that it
did, agree a Union position on the adoption of the EU-Lebanon
Action Plan by means of an I/A note. The Committee:
— asked the Minister to say
whether the Council had made a declaration regarding the Lebanon
Action Plan, as it did for the Morocco Action Plan, that this
mode of adoption was not a precedent for the future;
— asked him to provide the
Council cover sheet and all other relevant Council documentation
that accompanied both the Action Plans on adoption, so that the
Committee might gain a better understanding of the format of an
I/A Note;
— hoped that the discussions
on the mode of adoption would be resolved in the forthcoming Council
negotiations on the Tunisia Action Plan, and asked to be kept
apprised of developments in the negotiations;
— reiterated the Committee's
concern that draft Action Plans be deposited for scrutiny;
— the political imperatives
notwithstanding, could not but regard this a further serious breach
of scrutiny; and
— looked forward to the Government's
now overdue response to the Committee's conclusions on revisions
to the Committee's Standing Order, contained in its Scrutiny Report.
The Minister's letter of 15 May 2014
1.19 The Minister apologises for the
delay in responding to our letter of 26 February, and again asserts
that adoption of the Action Plan at the 10 February 2014 Foreign
Affairs Council "was a legitimate exercise of the Council's
political authority and acceptable from a legal perspective".
1.20 The Minister then continues as
follows:
"The Council made a Declaration
which confirmed that this approach did not constitute a precedent
for the future beyond the EU-Morocco and EU-Lebanon Action Plans,
and that in future the Council procedure would be determined with
regard to the content of the Action Plan. Further discussions
in Brussels on mode of adoption will arise in the context of the
next Action Plan (Tunisia), which is due for adoption in the near
future. I will update the Committee as these discussions progress."
1.21 The Minister also attaches to his
letter the two Lebanon related I/A Item Notes of 9 and 10 December
2013, but notes that both are marked limité, and
therefore "carry the usual caveat pertaining to limité
documents shared with the Committee, namely that 'they cannot
be published, nor can they be reported on in any way which would
bring detail contained in the documents into the public domain'".
1.22 The Minister then continues as
follows:
"As the Committee is aware,
'I' points and 'A' Points are agenda points which can be agreed
without discussion at COREPER and Council respectively.
A list of such points is normally considered and approved at the
start of each COREPER meeting and subsequently adopted
at the start of the relevant Council meeting. There is usually
no vote or discussion, although statements can be made orally
or in writing."
1.23 Finally, referring to the Committee's
concerns about the legal base for the adoption of ENP Action Plans,
the Minister says:
"The Government continues to
be of the view that such Action Plans should be adopted by Council
Conclusions based on the Council's Article 16 TEU policy-making
function, rather than by Council Decisions, as they are in principle
documents containing political commitments and are not
legally binding agreements. The Lebanon and Morocco Action Plans
contained no legally-binding obligations and so, as explained
in previous correspondence, it was appropriate for these documents
to be adopted by A points."
Previous Committee
Reports: Thirteen Report
HC 83-xiii (2013-14), chapter 16 (4 September 2013); also see
(34824) 8044/13: Third Report HC 83-iii (2013-14), chapter 22
(21 May 2013) and (34640) 17814/13: Sixth Report HC 86-vi (2013-14),
chapter 12 (19 June 2013).
1 See (34882) 8838/13: Thirteenth Report, HC 83-xiii
(2013-14), chapter 13 (4 September 2013). Back
2
See (34824) 8044/13: Third Report, HC 83-iii (2013-14), chapter 22
(21 May 2013). Back
3
See http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/uc109-iii/uc10901.htm,
Q562. Back
4
Twenty-fourth Report HC 109-ii (2013-14). Back
5
Reforming the European Scrutiny System in the House of Commons
is available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/109/109.pdf
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