6 Economic Partnership Agreement with
the West African region
| Committee's assessment
| Legally and Politically important |
| Committee's decision | Cleared from scrutiny
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| Document details | Council decision on the signature, provisional application and conclusion of Economic Partnership Agreement with sixteen West African states, the Economic Community of West African States (ECOWAS) and the West African Economic and Monetary Union (WAEMU)
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| Legal base | (a) Articles 207(3), 207(4), 208 and 218(5) TFEU; QMV;
(b) Articles 207(3), 207(4), 208, and 218(6)(a) TFEU; QMV
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| Department | International Development
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| Document numbers | (a) (36339), 13217/14 + ADDs 1-18, COM(14) 576
(b) (36341), 13263/14 + ADDs 1-18, COM(14) 578
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Summary and Committee's conclusions
6.1 The EU has negotiated an Economic Partnership
Agreement (EPA) with 16 West African states,[25]
the Economic Community of West African States (ECOWAS)[26]
and the West African Economic and Monetary Union (more commonly
known by its French acronym, UEMOA).[27]
6.2 The Commission has proposed Council Decisions
(a) authorising the EU to sign and provisionally apply the EPA,
and (b) to conclude (ratify) the EPA.
6.3 The then Minister (Lynne Featherstone) strongly
supported the Commission's proposals, as well as the creation
of a commitment of €6.5 billion, some of which can be drawn
upon as part of the "Development Programme" included
in the EPA. All EU Member States and at least two-thirds of West
African countries would need to ratify the agreement before the
EPA would enter into force, and this is likely to take over a
year to complete.
6.4 Whilst this Agreement raises no issues of general
policy, we are conscious that agreements such as this one can
give rise to competence creep to the extent that the EU acts in
areas where it does not have exclusive competence. Whilst
it is possible for the EU to act in areas where it shares competence
with Member States, the norm is for the Member States to act.
We therefore asked the Minister (now Baroness Northover) to identify
any specific provisions where the EU is proposing to act in respect
of which it does not have exclusive competence.
6.5 In response the Minister concludes by assuring
the Committee that the Government remains vigilant to the risk
of competence creep and that the steps undertaken lead her "firmly
of the view that we have adequate protection on competence and
are able to resist provisional application of articles which are
not properly within the EU's competence".
6.6 This conclusion is based on cross Government
consultation and consultation with like-minded Member States which
has revealed that no Article of the Agreement presents an insurmountable
reason for opposing provisional agreement. She highlights Articles
46 to 48 of the Agreement, concerning agricultural, fisheries
and food security, as provisions of shared EU and Member State
competence. In respect of these provisions she indicates that
any obligations they impose are of a high level nature, vaguely
worded and provide no actual remit or requirement for the Commission
to act.
6.7 All other Member States have agreed the Commission's
proposal to sign the EPA at the Foreign Affairs Council (Development)
in Brussels on 12 December. The Minister assesses that the UK
would suffer "significant damage" to its reputation
if it were to delay signature of an Agreement which the Government
has consistently argued is good for the development of West Africa.
6.8 We note the careful consideration given to
the question of competence by the Government and the risk of reputational
damage if the UK does not agree to speedy signature of the Agreement.
6.9 We also recognise that, in this case, the
risk of competence creep is low. First, this is not a question
of the EU acting where it has no competence, but of acting where
it shares competence, contrary to normal practice. Second the
essence of the Agreement concerns trade and development cooperation.
The former is a matter of exclusive EU competence,[28]
and the latter is a matter of "parallel competence"
where EU action does not prevent Member State action.[29]
Third, the development cooperation provisions of the Agreement
themselves minimise competence creep in many instances by, in
many cases, clearly distinguishing between activity to be undertaken
by the EU and that to be undertaken by the Member States.
6.10 Balancing the low risk of competence creep
against the reputational risk identified by the Minister we are
content to clear these documents.
Full
details of the documents:
(a) Draft Council Decision on the signing and provisional application
of the Economic Partnership Agreement (EPA) between the West African
States, ECOWAS and the UEMOA and the European Union and its Member
States: (36339), 13217/14 + ADDs 1-18, COM(14) 576; (b) Draft
Council Decision on the conclusion of the Economic Partnership
Agreement (EPA) between the West African States, ECOWAS and the
UEMOA, of the one part, and the European Union and its Member
States: (36341), 13263/14 + ADDs 1-18, COM(14) 578.
Background
6.11 On its website, the European Commission notes
that Economic Partnership Agreements:
· date back to the signing of the Cotonou
Agreement in 2000;
· are "tailor-made" to suit specific
regional circumstances;
· go beyond conventional free-trade agreements,
focusing on ACP (Africa, Caribbean and Pacific) development, taking
account of their socio-economic circumstances and include co-operation
and assistance to help ACP countries implement the Agreements;
· opened up EU markets fully and immediately
(unilaterally by the EU since 1 January 2008), but allowed ACP
countries 15 (and up to 25) years to open up to EU imports while
providing protection for the sensitive 20% of imports;
· provide scope for wide-ranging trade co-operation
on areas such as services and standards; and
· are also designed to be "drivers
of change that will kick-start reform and help strengthen rule
of law in the economic field, thereby attracting foreign direct
investment, so helping to create a 'virtuous circle' of growth".[30]
6.12 This EPA is a mixed trade and development agreement
between the EU and its Member States and the West African region
which aims to promote trade and, through trade, support development,
sustainable growth and poverty reduction in West Africa. It contains
standard safeguards, e.g., infant industries, with 25% of products
excluded from liberalisation altogether. For Member States, the
financial impact would be negligible (the UK could expect to lose
around €860,000 in revenue from tariffs each year). The
EU has pledged to provide development assistance to implement
the EPA, with €6.5 billion promised from 2015-19, with this
spending split between the European Commission and the Member
States (see our first Report for full details)[31].
The Minister's Letter of 1 December 2014
6.13 The Minister addresses the competence concerns
by first informing the Committee that consultations with other
Government Department, the Council Legal Service and like-minded
Member States identified no article of the Agreement as providing
insurmountable reason for opposing provisional application. She
continues:
"In our previous communication to the Committee,
we indicated that some small parts of the EPA may not fall within
the exclusive competence of the EU. However, on examination, the
text in the EPA relating to these issues is mostly of a high level
nature, contains no requirements for the Commission to act, and
therefore has no direct implications on UK competence. Therefore
the relevant Departments are content to agree Provisional Application.
"For example, UK officials looked particularly
at elements of the EPA's Chapter 6 covering Agriculture, Fisheries,
and Food Security - areas which fall within shared competence.
Article 46 requires that "The Parties recognise" the
areas in Chapter 6; that they "play a key role"; that
these areas "are of great interest", and that they "must
be viewed in the context of sustainable development and the Millennium
Development Goals." Article 47 only refers to "appropriate
measures" that have been negotiated appropriately elsewhere
in the agreement. And Article 48 refers to the Cotonou Agreement
already in place between the EU and the ACP while saying that
"both parties shall examine all cooperation measures"
but not going so far as committing the EU to action.
"Additional articles examined were similarly
not found to impose legal obligations that will require implementation
action by the EU or the making or amending of EU internal rules."
6.14 She then outlines the risk of damage if the
UK delays signature:
"The EPA now needs to be signed by all EU
and West African states. All other Member States are ready to
sign the agreement, and they have agreed with the Commission's
proposal for formal signature at the Foreign Affairs Council (Development)
in Brussels on 12 December. The UK is now therefore being urgently
asked also to approve that we move to signature. If we do not
now quickly approve, this would cause significant damage to the
UK's reputation in Brussels, with other EU Member States and with
West Africa. The UK's credibility would also be questioned if
we were to delay signature and provisional application of an EPA
which we have consistently argued is good for the development
of West Africa.
"I want to reassure you that the Government
remains vigilant of the risk of competence creep. However, I am
firmly of the view that we have adequate protection on competence
and are able to resist provisional application of articles which
are not properly within the EU's competence. I hope for your quick
approval so that we can agree to move with suitable speed towards
signature and realise the trade and development benefits which
this EPA will deliver."
Previous Committee Reports
Twentieth Report HC 219-xix (2014-15), chapter 13
(19 November 2014), Thirteenth Report HC 219-xiii (2014-15), chapter
13 (15 October 2014).
25 Benin, Burkina Faso, Cape Verde, Côte d'Ivoire,
Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mauritania, Mali,
Niger, Nigeria, Senegal, Sierra Leone and the Togolese Republic. Back
26
These 16, minus Mauritania. Back
27
Members of the West African Economic and Monetary Union (also
known by its French acronym, UEMOA) are Benin, Burkina Faso, Cote
d'Ivoire, Guinea-Bissau, Mali, Niger, Senegal, and Togo. Back
28
Article 3 TFEU. Back
29
Article 4(4) TFEU. Back
30
See http://ec.europa.eu/trade/policy/countries-and-regions/development/economic-partnerships/.
Also see http://trade.ec.europa.eu/doclib/docs/2009/september/tradoc_144912.pdf
for an overview of the EPA negotiations with Central Africa, Eastern
and Southern Africa, the Eastern African Community, the South
African Development Community, the Caribbean and the Pacific. Back
31
Thirteenth Report HC 219-xvii (2014-15), chapter 13 (15 October
2014). Back
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