5 EU-Turkmenistan
relations
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
|
| Document details | Draft Council and Commission Decision on the C
conclusion of Partnership and Cooperation Agreement (PCA)
|
| Legal base | Articles 91, 100(2), 207, 209 and Article 218(6)(a) TFEU; Article 101 of the Treaty establishing the European Atomic Energy Community; QMV
|
| Department | Foreign and Commonwealth Office
|
| Document number | (36553), —
|
Summary and Committee's conclusions
5.1 Partnership and Co-operation Agreements (PCAs)
were introduced as an instrument for developing the EU's relationship
with third countries in the early 1990s. They were primarily targeted
at the countries of the former Soviet Union, though more recently
their geographical scope has widened. These agreements provide
a broad framework for developing the EU's political and economic
relations with the countries in question, and establish an institutional
basis within which these relations can be discussed regularly.
5.2 Turkmenistan is the only one of the five Central
Asian States that does not have a PCA with the EU. An EU-Turkmenistan
PCA was signed on 25 May 1998, but has not yet entered into force.
Turkmenistan ratified the PCA in 2004. However, only once all
Member States have ratified and following the assent of the European
Parliament, and conclusion and ratification by the EU will its
PCA enter into force. In the absence of a full PCA, an Interim
Trade Agreement (ITA), dating back to 2009, currently exists between
Turkmenistan and the European Union.
5.3 When that ITA was submitted for scrutiny, the
then Minister for Europe (Baroness Kinnock of Holyhead) said that
the aim was to allow for application in particular of the trade-related
provisions of the PCA, which are within the European Community's
exclusive competence, pending ratification by all Member States
of the PCA itself. She recalled that previous attempts to secure
the European Parliament's (EP) support for the ITA in 2000, 2001
and 2003 were rejected because of concerns over Turkmenistan's
poor human rights record; but a 22 April 2009 EP Resolution had
now cleared the way for the ITA to enter into force (see paragraphs
5.4-5.13 below for details). The ITA stipulated respect for democracy
and human rights as a condition for cooperation and also included
provisions that allowed either party to terminate it by notifying
the other party and, if appropriate, for a suspension of the agreement
if there was evidence that the human rights and other relevant
conditions were not being met. But the then Government was not
yet to ratify the PCA because of its concerns about human rights
in Turkmenistan.
5.4 The current Minister for Europe (Mr David Lidington),
now says that the Government has decided to move ahead with UK
ratification of this PCA. He begins his description of the PCA
(see paragraph 5.18 below for details) in the following terms:
"The Agreement sets out that democratic and
human rights principles as well as principles of a market economy
underpin the PCA. It provides for a regular political dialogue
at Ministerial, official and potentially expert level intended
to strengthen links between the parties and encourage convergence
both economically and on positions on international issues of
mutual concern to increase stability and security."
5.5 He also says that:
· since taking office in 2006, President
Berdimuhamedov promised to introduce a number of reforms; there
have been some encouraging developments in some areas; but much
more progress is needed; and Turkmenistan remains a "Country
of Concern" in the FCO Human Rights Report;
· however, the Government considers that
greater engagement with Turkmenistan is more likely to exercise
a constructive influence on the Turkmen government in a positive
direction than a policy of isolation;
· although the human rights situation continues
to be a cause for concern and progress has been slow, his judgement
is that a closer, broad-based relationship will give the UK and
EU partners greater influence on human rights than placing restrictions
on engagement;
· the small British Embassy in Ashgabat
works actively on human rights, including close co-operation with
partners such as the UN and the Organization for Security and
Co-operation in Europe to promote further reform in Turkmenistan;
· co-operation to strengthen democracy and
respect for human rights is an essential component of the PCA,
and its entry into force would give the UK an additional tool
for promoting reform;
· while he would not expect the PCA's entry
into force to lead to an immediate change in the pace or scale
of reform, the Government would seek to make use of it —
along with the UK's wider engagement — to continue to press
for positive change (see paragraphs 5.18-5.21 below for details).
5.6 The Minister also raises a number of legal and
scrutiny issues (see below for details), which we address in our
Conclusion.
5.7 We draw this document to the attention of
the House as a further example of the Government failing to meet
its scrutiny obligations. As the Minister explains, this Decision
was first published in 2011 and should have been deposited then.
This oversight came to his notice in September 2013 but even so
the Explanatory Memorandum was not submitted until 5 December
2014. We do not consider this delay justified by the need to ensure
that the UK was in a position to ratify the Agreement, nor the
need to consider the implications of the Philippines judgment
of the Court of Justice.[21]
As that judgment was delivered on 11 June 2014, there has been
plenty of time to consider its implications without the need for
further delay in bringing this matter to the attention of Parliament.
We trust the internal procedures implemented in the Foreign and
Commonwealth Office to minimise the risk of the same mistakes
recurring have effect.
5.8 We look forward to receiving the text of the
Decision as soon it is publicly available and expect the Government
to press vigorously for the early removal of the limité
restriction which in our view is not justified.
5.9 We note that, in the light of the judgment
of the Court of Justice in the Philippines case, the Government
has not identified any compelling legal reasons to disagree with
the retention, as the legal basis for this Decision, of only Articles
91 and 100(2) (transport), Articles 207 TFEU (common commercial
policy) and Article 209 (development cooperation). However in
that judgment the Court considered the transport elements of that
particular PCA did not merit a separate legal basis as they were
covered by the general development cooperation legal basis. We
therefore ask the Minister to identify how this PCA is different
such as to justify this difference of approach; and to inform
us whether retention of the transport legal bases is likely to
be challenged.
5.10 As this is a mixed Agreement, in respect
of which the EU and the Member States exercise their competence
separately, we ask the Minister to identify the steps that will
be taken to ensure that the EU decision is clearly confined to
those matters for which the EU has exclusive competence,
and also whether any steps will be taken to make transparent where
the EU and the Member States are exercising their respective competence.
5.11 As we have indicated in numerous previous
similar situations we do not consider that the UK opt-in is engaged
in respect of a measure which lacks, as in this case, a legal
basis from Part Three, Title V of the TFEU concerning the Area
of Freedom, Security and Justice. Nevertheless, given that the
Government does assert that the opt-in is engaged, we should be
grateful to be informed whether the Government intends to seek
to opt in once this Decision has been adopted, and the reasons
for that decision.
Full details of the documents:
(36553), —: Draft Council and Commission Decision on the
conclusion by the European Union and the European Atomic Energy
Community of the Partnership and Cooperation Agreement establishing
a Partnership between the European Communities and their Member
States, of the one part, and Turkmenistan, of the other part.
Background
5.12 In his Explanatory Memorandum of 5 December
2014, the Minister for Europe recalls that the EU-Turkmenistan
PCA was signed on 25 May 1998, but has not yet entered into force.
He notes that:
— France and the UK have yet to ratify
it, though "we understand that France intends to do so";
— the 12 Member States that acceded to
the EU in 2004 and 2007 will accede to the PCA by means of a Protocol
and it is expected that Croatia will also do so in due course;
— Turkmenistan ratified the PCA in 2004;
— Turkmenistan is the only one of the five
Central Asian States that does not have a PCA with the EU;
— only once all Member States have ratified
and following the assent of the European Parliament, and conclusion
and ratification by the EU will its PCA enter into force;
— in the absence of a full PCA, an Interim
Trade Agreement (ITA) currently exists between Turkmenistan and
the European Union.
5.13 In an earlier Explanatory Memorandum of 9 July
2009, the then Minister for Europe explained that on 22 April
2009 the European Parliament had adopted a Resolution supporting
the Council's decision to approve an ITA between the European
Community and Turkmenistan (which was signed in November 1999
and concluded in December 1998). Previous attempts to secure the
European Parliament's support for the ITA in 2000, 2001 and 2003
were rejected because of concerns over Turkmenistan's poor human
rights record. The 22 April 2009 EP Resolution cleared the way
for the ITA to enter into force. The Council Decision also provided
(by way of an exchange of letters) for the application of additional
working languages in light of enlargement since the ITA was signed.
5.14 The then Minister went on to explain that the
aim of the ITA was to allow for application in particular of the
trade-related provisions of the PCA, which are within the European
Community's exclusive competence, pending ratification by all
Member States of PCA itself.
5.15 The then Minister also said that:
— the EP Resolution of 22 April 2009: noted
inter alia that relations between the European Communities
and Turkmenistan were currently governed by an outdated agreement
between the EEC and USSR (concluded in 1989), which did not contain
a human rights clause; recognised that Turkmenistan played an
important role in the Central Asia region, and that close cooperation
between it and the European Union was desirable; went on to note
that the situation in Turkmenistan had improved since the change
of president, but that substantive progress was still needed in
several key areas, such as human rights, the rule of law, democracy
and individual freedoms; underlined the importance of economic
and trade relations for the opening-up of Turkmen society and
the improvement of the democratic, economic and social situation
of Turkmen citizens; and called for regular scrutiny by the European
Union of the human rights situation in Turkmenistan;
— the ITA stipulated respect for democracy
and human rights as a condition for cooperation, which should
in turn have the potential lever to strengthen the reform process
in Turkmenistan; and also included provisions that allowed either
party to terminate it by notifying the other party and, if appropriate,
for a suspension of the agreement if there was evidence that the
human rights and other relevant conditions were not being met;
— the UK had yet to ratify the PCA because
of concerns about human rights in Turkmenistan;
— she would write to the Committee before
taking steps towards ratification.
5.16 The Committee concluded that, at that stage,
the application of this interim agreement did not warrant a substantive
Report — the time for that being when matters had reached
the point when the Government proposed ratification.
5.17 Her successor now says that, having previously
withheld ratification based on concerns over the human rights
situation in Turkmenistan, the Government has now decided to move
ahead with UK ratification of this PCA.
5.18 The Minister describes the PCA in the following
terms:
"The Agreement sets out that democratic and
human rights principles as well as principles of a market economy
underpin the PCA. It provides for a regular political dialogue
at Ministerial, official and potentially expert level intended
to strengthen links between the parties and encourage convergence
both economically and on positions on international issues of
mutual concern to increase stability and security.
"Trade business and investment measures in the
Agreement include reciprocal most-favoured nation treatment for
trade in goods and it addresses some barriers to trade. Further,
the Agreement provides for equal treatment of nationals of the
parties employed in each other's' territories. It also includes
sections on the establishment and equal treatment of companies;
the provision of cross border services; and enhanced economic
co-operation including through facilitating currency convertibility
and limiting restrictions on movements of capital and payments.
"The section on legislative cooperation sets
out that, with technical assistance, Turkmenistan will work to
make its legislation compatible with that of the EU. This will
focus on a number of areas of law including customs law, company
law, laws on banking and other financial services, company accounts
and taxes, intellectual property, protection of workers at the
workplace, rules on competition and practices affecting trade,
public procurement, protection of health and life of humans, animals
and plants, the environment, consumer protection, indirect taxation,
technical rules and standards, nuclear laws and regulations, transport
and telecommunications.
"In the section on Economic Cooperation the
PCA seeks to strengthen existing economic ties and contribute
to the process of economic reform and development in Turkmenistan.
The cooperation will concentrate in particular, on economic and
social development, human resources development, support for enterprises
(including privatisation, investment and development of financial
services), agriculture and food, energy and civil nuclear safety,
transport, postal services and telecommunications, tourism, environmental
protection and regional cooperation.
"The Agreement also provides for co-operation
on democracy and human rights, primarily in the form of technical
assistance programmes, with the aim of reinforcing democratic
institutions, strengthening the rule of law and protecting human
rights and freedoms according to international law and OSCE principles.
This may involve technical assistance programmes in the drafting
and implementation of relevant legislation and regulations; the
functioning of the judiciary; the role of the State in questions
of justice; and the operation of the electoral system.
"The section on cooperation on crime and illegal
immigration sets out that there will be a focus on areas including
economic crime and illegal transactions of various goods. The
Agreement also contains provisions for cultural and financial
cooperation.
"A Cooperation Council, which will meet annually
at Ministerial level, will be established to supervise the implementation
of the Agreement. It will examine any major issues arising within
the framework of this Agreement and any other bilateral or international
issues of mutual interest for the purpose of attaining the objectives
of this Agreement.
"The agreement also includes the following Annexes:
· "Annex I Indicative list of advantages
granted by Turkmenistan to the Independent States in accordance
with Article 7(3);
· "Annex II Community reservations
in accordance with Article 21(2);
· "Annex III Turkmen reservations in
accordance with Article 21(4);
· "Annex IV Financial services, referred
to in Article 24(3);
· "Annex V Intellectual, industrial
and commercial property conventions referred to in Article 40.
"As set out below, while the human rights situation
in Turkmenistan remains a matter of substantial concern, we judge
that we are more likely to exert influence on Turkmen policy in
this area through constructive engagement than through seeking
to further block this agreement and isolate the government of
Turkmenistan."
5.19 With regard to Legal and Procedural Issues,
the Minister says:
"Legal Basis: Articles, 91 and 100(2) (Transport),
Articles 207 (Common Commercial Policy) and 209 (Development cooperation),
in conjunction with Article 218(6)(a) of the Treaty on the functioning
of the European Union; Article 101 of the Treaty establishing
the European Atomic Energy Community.
"The Government considers that the Justice and
Home Affairs opt-in is engaged. This is because the PCA contains
provisions relating to Mode IV services (see Article 26 on intra-corporate
transferees). The Government's position is that the Mode IV provisions
on the temporary movement of personnel (which concern the admission
of third country nationals onto the territory of the United Kingdom)
fall within the scope of the United Kingdom's Title V opt-in.
Unfortunately on this occasion the Government regrettably missed
the opportunity to opt in to the Mode IV provisions of the Agreement.
As the UK did not opt in, the UK is not bound by these provisions.
However, the UK is in fact already compliant with them through
our points-based immigration system, and so already acts consistently
with the obligations in the agreement.
"Impact on UK Law: As a mixed Agreement it will
require specification as an EU Treaty in accordance with Section
1(3) of the European Communities Act 1972. Compliance with this
Agreement also requires an amendment to the Equality Act 2010
(Work on Ships and Hovercraft) Regulation 2011 in order to add
Turkmenistan to the list of states designated under the Act. Further,
an amendment may be required to the Race Relations Order 1997
(Amendment) Order (Northern Ireland) 2012. FCO officials are in
contact with NI officials over this."
5.20 The Minister also makes the following "Other
Observations":
"The original draft decision was dated October
2011. You will note that the date on this document is October
2014; in the light of the Philippines judgement (case C-377/12)
in the ECJ earlier this year, the Council and Commission Legal
Services proposed removing all legal bases except those on common
commercial policy (207), development cooperation (209) and transport
(91 and 100(2)) — all in conjunction with 218(6) and also
Article 101 of the Treaty establishing the European Atomic Energy
Community. We have not identified any other compelling legal
or policy reason for the UK to disagree with the removal of the
relevant legal bases.
"The Committee will note that the documents
are currently marked limité. They are therefore
being provided to the Committee under the Government's authority
and arrangements agreed between the Government and the Committee
for the sharing for EU documents carrying a limité
marking. 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. My officials in UKRep are pushing the
EEAS for unclassified versions, but I hope the Committee may start
scrutiny using the texts provided."
The Government's view
5.21 The Minister comments as follows:
"On succeeding Niyazov in 2006, President Berdimuhamedov
promised to introduce a number of reforms, notably in health,
education, agriculture, pensions and internet access. While there
have been some encouraging developments in some areas, including
the registration of the Catholic Church, the adoption of a new
Penal Code, limited ICRC access to detention facilities, the hosting
of a significant international media conference for the first
time in 2012, the establishment of human rights resource centres
in each of the country's five regions, and constructive engagement
by the authorities during Turkmenistan's second Universal Periodic
Review in 2013, much more progress is needed. Turkmenistan remains
a "Country of Concern" in the FCO Human Rights Report.
"However, the Government believes in greater
engagement with Turkmenistan, believing that this is more likely
to exercise a constructive influence on the Turkmen government
in a positive direction than a policy of isolation. Although the
human rights situation continues to be a cause for concern and
progress has been slow, our judgement is that a closer, broad-based
relationship will give us and EU partners greater influence on
human rights than placing restrictions on engagement.
"Our small Embassy in Ashgabat works actively
on human rights. It works closely with partners such as the UN
and the Organization for Security and Co-operation in Europe to
promote further reform in Turkmenistan, including areas highlighted
by the UK during Turkmenistan's second Universal Periodic Review
last year (such as greater freedom of expression in the media;
progress towards a more pluralistic society; a more substantive
programme of cooperation on access by independent organisations,
including by Special Rapporteurs; and progress on UN recommendations
on freedom of religion and belief). Co-operation to strengthen
democracy and respect for human rights is an essential component
of the PCA, and its entry into force would give us an additional
tool for promoting reform. While we would not expect the PCA's
entry into force to lead to an immediate change in the pace or
scale of reform, we would seek to make use of it — along
with our wider engagement — to continue to press for positive
change."
5.22 Looking ahead, the Minister concludes with the
following Timetable:
"We expect this document to be adopted at some
point during the first part of 2015 following completion of UK
scrutiny. Conclusion of the Agreement will depend on completion
of French ratification and European Parliament assent. An Order
in Council authorizing UK ratification will be sent for Parliamentary
approval following the Christmas recess."
The Minister's letter of 5 December 2014
5.23 The Minister writes concerning what he describes
as:
"an unfortunate administrative error which
led to the Council and Commission Decision on conclusion of the
Turkmenistan PCA not being deposited for scrutiny at the appropriate
point, and the Government's opt-in deadline being missed."
5.24 He then says:
"I apologise sincerely for this oversight,
and would like to reassure the Committee that steps have already
been taken to prevent reoccurrence."
5.25 He continues thus:
"When this Decision was first published in 2011,
officials regrettably failed to identify that this was a depositable
document, and so it was not deposited for scrutiny at the appropriate
point. This Decision has now been submitted for scrutiny along
with an Explanatory Memorandum and, as the Government's scrutiny
reserve remains in place, the Committee still has an opportunity
to scrutinise this document prior to its adoption.
"At the same time, officials also did not identify
that the UK's opt-in had been triggered and, as a result, the
Government regrettably missed the opportunity to opt in to certain
Mode IV provisions of the Agreement relating to intra-company
transfers. Further detail on this issue is set out in the Explanatory
Memorandum.
"After these oversights were first identified
and brought to my attention in September 2013, I instructed my
officials to take the necessary steps to ensure I could provide
the Committees a comprehensive account of Government's position
on these documents. However, my writing to you on this was unfortunately
delayed for a number of reasons, including the need to ascertain
that, by the time the PCA came to be ratified, the UK would be
in a position to meet its obligation to use our best endeavours
to ensure legislative compliance with its provisions, and the
subsequent changes to the cited legal bases, on which the Explanatory
Memorandum elaborates.
"These oversights naturally do not meet the
high standards that I and the Committees expect. I have personally
met relevant officials to discuss the steps needed in order to
prevent re-occurrence. The FCO has since implemented internal
procedures designed to minimise the risk of the same mistakes
reoccurring, including reworking the guidance given to desk officers
and raising awareness amongst staff of policy relating to third
country agreements."
Previous Committee Reports:
None, but see (35680), 18055/13: Thirty-ninth Report
HC 83-xxxvii (2013-14), chapter 8 (12 March 2014) and Twenty-sixth
Report HC 19-xxiv (2008-09), chapter 12 (15 July 2009).
21 Case C-377/12. Back
| 
