3 EU-Tunisia relations
| Committee's assessment
| Legally and politically important
|
| Committee's decision
| Not cleared from scrutiny; further information requested
|
| Document details
| EU-Tunisia Framework Agreement
|
| Legal base
| (c) Article 212, in conjunction with Article 218(5) TFEU; QMV
(d) Article 212, in conjunction with Article 218(6)(a) of the TFEU; QMV
|
| Department
| Foreign and Commonwealth Office
|
Summary and Committee's conclusions
3.1 These draft Council Decisions relate
to the signing, provisional application, and conclusion of a Protocol
to the Euro-Mediterranean Agreement, which will enable Tunisia
to apply to join European Union programmes through its participation
in the European Neighbourhood Policy (ENP).
3.2 The participation of Tunisia in
the programmes covered by these decisions is in accordance with
the EU-Tunisia European Neighbourhood Policy Action Plan, which
supports the implementation of the Euro-Mediterranean Agreement.
3.3 Tunisia has agreed to contribute
financially to the budget of the specific programmes in which
it participates. Tunisian representatives will be allowed to take
part as observers, and as members of the management committee
for the points which concern Tunisia in these relevant programmes.
3.4 Projects and initiatives submitted
by participants from Tunisia will be subject to the same conditions,
rules and procedures as those applied to Member States. Participation
in these associations and groups therefore aims to help align
Tunisia with international standards.
3.5 We note the Government is seeking
to amend the legal bases put forward by the Commission of Article
212 TFEU (economic, financial and technical cooperation with third
countries) to add specific ones reflecting the individual programmes
covered by the Framework Agreement. These would include one or
more from Title V of Part Three TFEU (an area of freedom security
and justice) which would trigger the UK justice and home affairs
opt-in under Protocol 21. Previous experience in the cases of
similar earlier agreements with Georgia, Azerbaijan and Kosovo
indicate that it is unlikely to succeed, in which case the UK
would be asserting that the UK opt-in is engaged without the proposals
having a Title V legal basis. We have consistently taken the
view that the UK opt-in is not engaged in these circumstances
and are reinforced in this view by the Government's failure in
case C-277/12, on which the Court of Justice delivered its judgment
on 11 June 2014.
3.6 However, we retain this matter
under scrutiny pending notification from the Minister for Europe
(Mr David Lidington) as to whether the UK, given its assertion
that the opt-in is engaged, regards itself as participating in
these proposals and to what extent; and, if it does not regard
itself as participating, what steps it is taking to make this
transparent.
Full details of the documents:
Council Decision on the signing and
provisional application of a Protocol to the Euro-Mediterranean
Agreement establishing an Association between the European Community
and its Member States and the Republic of Tunisia, on a Framework
Agreement between the European Union and the Republic of Lebanon
on the general principles for the participation of the Republic
of Lebanon in Union programmes: (35992) 9289/14 + ADD 1, COM(14)
202, Council Decision on the conclusion of a Protocol to the Euro-Mediterranean
Agreement establishing an Association between the European Community
and its Member States and the Republic of Tunisia on a Framework
Agreement between the European Union and the Republic of Lebanon
on the general principles for the participation of the Republic
of Lebanon in Union programmes: (35993) 9294/14 + ADD 1, COM(14)
203.
Background
3.7 The EU programmes in question promote
co-operation in different, specific fields and were, in principle,
originally conceived for Member States. However, the regulations
for these programmes also allow for the possibility of third country
participation, provided that certain terms and conditions are
met. The EU has already signed similar protocols with Israel,
Morocco, Moldova, Ukraine, Armenia, Georgia, and Azerbaijan.
The Minister's Explanatory Memorandum of 2 June
2014
3.8 The Minister describes Tunisia as
"the region's post-revolution success story":
"In 2013 it overcame a serious
political crisis through consensus, and is establishing itself
as a model for peaceful democratic transition. A new progressive
Constitution and Electoral Law have been approved in 2014, and
plans are underway to hold elections this year, in accordance
with the Constitution. The UK supports the principle of "more
(EU assistance) for more (progress on reform)" established
in 2011 by the revised European Neighbourhood Policy. Access to
Union programmes should enable Tunisia to engage further with
the EU, further familiarise it with EU policies and working methods,
and allow for progressive integration into EU networks. This ties
in with our policy objectives, and would be a positive next step
in the maturing EU-Tunisia bilateral relationship."
3.9 With regard to the Legal and Procedural
Issues, the Minister says:
"The approach taken by the
Commission in proposing Article 212 TFEU as the substantive legal
basis for adoption of these draft Council Decisions mirrors the
approach that the Commission took in relation to similar recent
Council Decisions relating to Kosovo's, Georgia's and Azerbaijan's
participation in Union programmes. However, this approach is a
departure from the practice undertaken for Framework Agreements
agreed prior to the Kosovo, Georgia and Azerbaijan agreements.
The Government disagrees with the approach taken by the Commission
and considers that the Council Decisions under consideration should
cite all of the substantive legal bases for the programmes covered
in the Framework Agreement, as was the practice prior to these
last three agreements. The Government will therefore seek to have
the legal basis amended by the Council, by seeking to add to the
draft Council Decision all substantive legal bases for the programmes.
"In respect of the current
proposed Council Decisions, Tunisia will be eligible to apply
to participate in all Union programmes, subject to meeting the
necessary criteria. Two of these programmes (Fiscalis 2020 and
Customs 2020) contain JHA obligations and as such trigger Protocol
21 (the UK's JHA opt-in protocol). As such the Government will
push for the citation of the relevant Title V of Part Three TFEU
legal bases and considers that the JHA opt-in has been triggered.
The Committees will wish to note that the last language version
of the Council Decision on signing and provisional application
was published on 2 May 2014, triggering the three month JHA opt-in
window, which therefore expires on 2 August 2014.
"The Committees will also wish
to note that the 8-week period for enhanced scrutiny of these
decisions was triggered by the publication of the last language
version and that that period expires on 27 June.
"It is Government policy to
consider each opt-in decision on a case by case basis. The
Committees will recall that for recent, similar, agreements with
Georgia and Moldova the UK asserted the opt-in and opted into
the agreements in respect of the provisions relate to Union programmes
that contained JHA content. This approach served to protect
our wider position on the JHA opt in, and reflected that the UK
participated in the underlying Union programmes (Fiscalis 2020
and Customs 2020).
"The Committees should note
that this approach, on asserting the JHA Protocol, may be affected
by the European Court of Justice judgment on 11 June 2014 in case
C-377/12 Commission v. Council which concerns a challenge
to the Council Decision on the signing of the EU-Philippines Partnership
and Co-operation Agreement. That case concerns whether a Title
V legal base should be cited in the context of the Council Decision
concerning the Philippines Partnership and Cooperation agreement.
The Government will consider carefully its position once that
judgment is handed down; until that point, the Government's position
remains that our JHA opt-in is triggered by the content of a measure
and that where the EU is assuming obligations in an international
agreement, the Council decisions approving the signature and conclusion
of that agreement should cite all appropriate legal bases in respect
of those obligations."
Previous Committee Report
None; but see (35680) 18055/13: Thirty-ninth
Report HC 83-xxxvi (2013-14), chapter 8 (12 March 2014).
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