8 Partnership and Co-operation Agreements:
Philippines, Vietnam and Singapore
| Committee's assessment
| Legally important |
| Committee's decision | (a)-(d) Cleared from scrutiny; (e) and (f) Cleared from scrutiny (decision reported on 9 April 2014)
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| Document details | (a) and (b) Council Decisions on the signing and conclusion of Partnership and Co-operation Agreements (PCAs) between the EU and its Member States and the Philippines; (c) and (d) Council Decisions on the signing and conclusion of PCAs between the EU and its Member States and Vietnam;
(e) and (f) Council Decisions on the signing of a PCA between the EU and its Member States and Singapore, separated into two Council Decisions relating to readmission and non-readmission matters
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| Legal base | (a) Articles 79(3), 91, 100, 191(4), 207 and 209 in conjunction with Article 218(5) TFEU; (b) Articles 207 and 209 in conjunction with 218(6)(a) TFEU;
(c) Articles 207 and 209 in conjunction with Article 218(5) TFEU; (d) Articles 207 and 209 in conjunction with Article 218(6)(a) TFEU; (e) Articles 207 and 212, in conjunction with Article 218(5) TFEU; (f) Articles 91, 100, 191(4), 207 and 212 TFEU (Non-Readmission Council Decision) and Articles 79(3) and 218(5) (Readmission Council Decision)
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| Department | Foreign and Commonwealth Office
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| Document numbers | (a) (32472), —; (b) (35680), 18055/13 + ADD 1, COM(14) 925; (c) (32369), 18041/10, COM(10) 699;
(d) (35681), 18056/13, + ADD 1, COM(14) 924; (e) (35813), 6634/14 + ADDs 1-2, COM(14) 70; (f) (35825), —
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Summary and Committee's conclusions
8.1 These documents comprise various Council Decisions in relation
to the signing and conclusion of Partnership and Co-operation
Agreements (PCAs) with the Philippines, Singapore and Vietnam.
The Council Decision relating to signature of the EU-Singapore
PCA (document (f)) has been split into two Council Decisions:
one dealing with non-Readmission matters and the other dealing
with Readmission.
8.2 Documents (a)-(d) (relating to Philippines and
Vietnam PCAs) have only been retained under scrutiny because we
have been waiting for a response from the Government for its view
on the application of the UK's JHA opt-in (Protocol 21 to the
Treaties) in the light of the judgment of the Court of Justice
of 11 June 2014 on the EU-Philippines PCA.[21]
8.3 The most recent, formal request to the Government
for this information was made in our letter of 3 September 2014
to the Minister for Modern Slavery and Organised Crime (Karen
Bradley). This letter also addressed the 2014 Six-Month Update
on the application of the JHA opt-in. We now report on the Minister's
response to that letter in so far as it applies to the current
documents.
8.4 We thank the Minister for her letter. We note,
in particular, the Government's position that, in light of the
judgment of the Court of Justice in the case of the EU-Philippines
Partnership and Co-operation Agreement (PCA):
i) the JHA opt-in is not engaged in relation
to the Philippines and Vietnam agreements (see documents (a)-(d))
and the UK's previous opt-in decision in relation to these agreements
is null and void; and
ii) in the case of the Singapore agreement
(see documents (e) and (f)), a JHA legal base should be cited
for the readmission provisions and that whether or not a JHA legal
base is cited, the UK's JHA opt-in will be triggered by those
provisions. As the Government has not opted into these provisions,
then the UK will not be bound by them as part of the EU. The UK
will also be bound in its own right by the remainder of the JHA
chapter in the agreement, as it contains no provisions where the
EU is required to exercise competence.
8.5 In our view the UK opt-in is engaged only
where there is a Title V TFEU legal basis for the EU measure.
The Government now accepts that the opt-in is not engaged in respect
of the Philippines and Vietnam PCAs, albeit for different reasons.
8.6 Given that the Government's policy is based
on its assessment of the JHA content of proposed agreements, we
welcome its commitment "to set out in future Explanatory
Memoranda" its assessment of whether "the JHA content
constitutes whole, partial non-ancillary, or incidental JHA content".
8.7 We now clear the current documents (a)-(d)
from scrutiny, documents (e) and (f) having been cleared from
scrutiny on 9 April 2014.
8.8 Full
details of the documents: (a)
Proposal for a Council Decision on the signing
of the Framework Agreement on Partnership and Cooperation between
the European Union and its Member States, of the one part, and
the Republic of the Philippines, of the other part: (32472),
—; (b) Proposal
for a Council Decision on the conclusion of the Framework Agreement
on Partnership and Cooperation between the European Union and
its Member States, of the one part, and the Republic of the Philippines,
of the other part: (35680), 18055/13 + ADD 1, COM(14) 925; (c)
Proposal for a Council Decision on the signing
of the Framework Agreement on Comprehensive Partnership and Cooperation
between the European Union and its Member States, of the one part,
and the Socialist Republic of Vietnam, of the other part: (32369),
18041/10, COM(10) 699; (d)
Proposal for a Council Decision on the conclusion
of the Framework Agreement on Comprehensive Partnership and Cooperation
between the European Union and its Member States, of the one part,
and the Socialist Republic of Vietnam, of the other part: (35681),
18056/13, + ADD 1, COM(14) 924; (e)
Proposal for a Council Decision on the signing,
on behalf of the Union, of the Partnership and Cooperation Agreement
between the European Union and its Member States, of the one part,
and the Republic of Singapore, of the other part: (35813), 6634/14
+ ADDs 1-2, COM(14) 70; (f)
Proposal for a Council Decision on the signing,
on behalf of the Union, of the Partnership and Cooperation Agreement
between the European Union and its Member States, of the one part,
and the Republic of Singapore, of the other part, with the exception
of matters related to readmission and Proposal for a Council Decision
on the signing, on behalf of the Union, of the Partnership and
Cooperation Agreement between the European Union and its Member
States, of the one part, and the Republic of Singapore, of the
other part, as regards matters related to readmission: (35825),
—.
Background and previous scrutiny
8.9 The background to the current documents, the
Government's view of them and the application of the JHA opt-in
to them is set out in our previous Reports as listed below.
Minister's letter of 4 February 2015
8.10 The Minister says:
"I would also like to take this opportunity
to respond to your letter of 3 September in relation to the 2014
6-Month Update on the application of the opt-in. I apologise for
the delay in responding. That delay was due to the Government's
need to consider the complex issues related to the impact of the
Philippines judgment (case C-377/12) on the UK's JHA opt-in."
8.11 She continues:
"You ask whether the Government is participating
in and bound by the draft Council Decisions on the conclusion
of agreements with Vietnam, the Philippines and Singapore. The
Government has now concluded its consideration of the CJEU judgment
in case C-377/12 in relation to the appropriate legal base for
the Council Decision authorising signature of the EU-Philippines
Partnership and Co-operation agreement.
"Case C-377/12 was brought by the Commission,
asking for the annulment of the Council Decision authorising signature
of the EU-Philippines agreement. The Decision on signature cited
a number of legal bases including Article 207 TFEU (common commercial
policy) and Article 209 TFEU (development cooperation) in conjunction
with Article 218(5) TFEU. The Council had added a number of further
legal bases relating to the readmission of third country nationals
(Article 79(3) TFEU, transport (Articles 91 and 100 TFEU) and
the environment (Article 191(4) TFEU.
"The Court concluded that the Council was
wrong in adding the legal bases relating to readmission, transport
and the environment and that a development co-operation legal
base sufficed. This was because the relevant provisions contributed
to the pursuit of the objectives of development cooperation.
The Court concluded that the provisions of the agreement relating
to readmission, transport and the environment did not contain
obligations so extensive that they could constitute objectives
distinct from those of development cooperation. In order to amount
to such "distinct objectives", and thus merit the citation
of separate legal bases, the Court held that the provisions in
question would need to be neither secondary to the objective of
development cooperation nor indirect in relation to it. The Court
did not indicate precisely which provisions it considered to be
"secondary" to the development cooperation objective
and which were "indirect" in relation to it. The Court
also noted that a JHA legal base may be appropriate for more extensive
JHA provisions, distinct from development co-operation, and we
consider that the conclusion in paragraph 59 of the judgment on
readmission must be read in the light of the analysis in paragraph
58.
"The Court appears to have undertaken an
aim and content consideration of the agreement, in line with its
usual process for defining legal base. However, the Court did
not give judgment on the UK's arguments that the existence of
Protocol 21 means that exercises of JHA competence need to be
considered differently to the Court's usual process for deciding
the correct legal base. The Court did not consider the implications
of its findings for the application of Protocol 21, nor whether
and how the UK's opt-in is triggered.
"Following the judgment, the Government
accepts that for Agreements in respect of which the predominant
purpose is development cooperation, additional legal bases in
the accompanying Council Decisions will not be required unless:
· the
JHA content is capable of falling outside of the development cooperation
legal base; or
· the
JHA provisions are more extensive than those in the Philippines
agreement so that they constitute objectives distinct from those
of development cooperation.
"However, whilst the reasoning of the judgment
is not clear, the fact that the agreement in question was a development
cooperation agreement and that development cooperation itself
is a distinct area of competence which pursues broad objectives
which touch on a variety of specific matters was clearly relevant
to the CJEU's conclusions. As the Court specifically considered
whether the relevant provisions constituted an exercise of development
co-operation competence, we take the view that the judgment cannot
be applied to other types of agreements with third countries,
including Association Agreements under Article 217 TFEU, Economic,
Financial and Technical Co-operation Agreements under Article
212 TFEU, and agreements relating to Common Commercial Policy
under Article 207 TFEU.
"For third country agreements without an
Article 209 TFEU development co-operation legal base, the Government
will continue to seek citation of a JHA legal base where there
is JHA content being entered into by the EU, and will continue
to assert the JHA opt-in to those obligations.
"Therefore, in relation to the Philippines
and Vietnam agreements, both of which have an Article 209 development
co-operation legal base, the Court's judgment means that the JHA
opt-in is not engaged. The UK's previous opt-in decision in relation
to these agreements is null and void.
"In relation to the Singapore Partnership
and Co-operation Agreement, which has an Article 212 TFEU legal
base, the Government considers that a JHA legal base should be
cited for the readmission provisions and that whether or not a
JHA legal base is cited, the UK's JHA opt-in will be triggered
by those provisions. The Government has not opted in to these
provisions so the UK will not be bound by them as part of the
EU. The UK will also be bound in our own right by the remainder
of the JHA chapter in the agreement, as it contains no provisions
where the EU is required to exercise competence."
8.12 The Minister adds:
"The Government agrees to set out in future
Explanatory Memoranda whether the JHA content constitutes whole,
partial non-ancillary, or incidental JHA content."
Previous Committee Reports
(a) Thirty-ninth Report HC 83-xxxvi (2013-14), chapter
6 (12 March 2014); Thirty-first Report HC 428-xxviii (2010-12),
chapter 3 (24 May 2011); Nineteenth Report HC 428-xvii (2010-12),
chapter 5 (16 February 2011); Eighteenth Report HC 428-xvi (2010-12),
chapter 7 (9 February 2011); (b) Thirty-ninth Report HC 83-xxxvi
(2013-14), chapter 8 (12 March 2014); (c)
Thirty-ninth Report HC 83-xxxvi (2013-14),
chapter 6 (12 March 2014); Eighteenth Report HC 428-xvi (2010-12),
chapter 7 (9 February 2011); (d)
Thirty-ninth Report HC 83-xxxvi (2013-14),
chapter 6 (12 March 2014); (e) and (f) Forty-sixth Report HC 83-xli
(2013-14), chapter 16 (9 April 2014); Forty-first Report HC 83-xxxviii
(2013-14), chapter 6 (19 March 2014).
21 C-377/12: Commission v Council. Back
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