7 The EU and Bosnia and Herzegovina:
Stabilisation and Association Agreement
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
|
| Document details | Council and Commission Decision on the conclusion of the Stabilisation and Association Agreement between the European Communities and their Member States and Bosnia and Herzegovina
|
| Legal base | Articles 217, 218(6), 218(8) TFEU and Article 101 of the Treaty establishing the European Atomic Energy Community; unanimity
|
| Department | Foreign and Commonwealth Office
|
| Document number | (36653), —
|
Summary and Committee's conclusions
7.1 The current political framework emerged from the 1995 Dayton
Agreement, which ended a bitter three-and-a half-year war. The
longstanding goal has always been for BiH to work its way towards
European accession. The BiH authorities need to deliver five objectives
(well established, approved by the PIC SB[49]
and all previously recognized by BiH authorities as obligations)
revolving around creating a sustainable, multi-ethnic, democratic,
law-based State; and fulfil two conditions — signing of
a Stabilisation and Association Agreement (SAA), and a positive
assessment of the situation in BiH by the PIC SB based on full
compliance with the Dayton Agreement.
7.2 But things have not gone according to plan. Delivery or fulfilment
of these "Five Objectives and Two Conditions" has proved
elusive. The SAA itself has already been ratified by all Member
States (in the case of the UK, in 2010[50]),
but conclusion (ratification) by the EU has been held up by the
failure of local political leaders to deliver their side of the
bargain. In 2012, the incentives provided by the EU accession
process were reinforced by the possibility of imposing restrictive
measures, such as travel restrictions and asset or funding freezes,
against local political troublemakers; these were renewed most
recently in early 2014 (and are due to expire on 22 March 2015).
And in 2012, an earlier version of the documents now submitted
for scrutiny was not agreed because of Member State concerns about
continued lack of progress. Thus, nineteen years after Dayton,
a country of four million inhabitants remained divided by mistrust
between the various ethnic groups, the upshot of which has been
political stagnation, a lack of badly needed reform and the consequential
stagnation of the Bosnian EU accession process.
7.3 On 6 November 2014, the British and German foreign ministers
met their eight western Balkan counterparts and then proposed
a new joint initiative, the key points of which the two Foreign
Ministers set out in a joint article in the German daily newspaper
"Frankfurter Rundschau" and in an "open letter"
in Bosnia and Herzegovina and neighbouring countries. Their proposals
focused on improvements in economic and social policy and good
governance, so as to create jobs, strengthen the rule of law and
reduce corruption and criminality. The two foreign ministers
called on the political leaders of Bosnia and Herzegovina to commit
in writing to "making the country's institutions fit"
at all levels as a precondition for working effectively with the
European Union; urged them to draw up a broad reform agenda with
the European Union to help the country make progress on the road
towards EU membership; and extended an offer to the people of
Bosnia and Herzegovina and to the politicians they have elected:
if they implement the necessary reforms, they would "work
to achieve progress on the country's path towards Europe".
7.4 They also promised actively to seek broad-based political
support for their initiative from neighbouring Croatia and Serbia,
EU partners and the USA. However, the most important factor,
they argued, was leadership on the part of Bosnian politicians,
who must have the interests of their whole country at heart, regardless
of ethnic affiliations.[51]
7.5 This initiative was followed up in a 5 December 2014 visit
to Sarajevo by the EU High Representative/Vice-President, Federica
Mogherini, and the Enlargement Commissioner, Johannes Hahn; in
an end-of-visit statement, the HR said:
"From our side this would mean not lowering the bar and changing
the EU conditionality — that is not something that is on
the agenda — but it might mean that we can look at how the
sequence can be changed or can be better addressed to make sure
that there are some concrete deliverables in terms of reforms,
starting from the economic and social reforms and getting also
to the functionality of the state."[52]
7.6 The initiative was subsequently endorsed by the 15 December
2014 Foreign Affairs Council, who invited HR Mogherini and Commissioner
Hahn:
"to continue engaging with the BiH leadership to secure at
the earliest its irrevocable commitment to undertake reforms in
the framework of the EU accession process… [in order to]…
establish functionality and efficiency at all levels of government
and allow Bosnia and Herzegovina to prepare itself for future
EU membership" (see second annex to our previous Report for
the full Council Conclusions[53]).
7.7 The proposal now is that the EU should put itself in a position
swiftly to conclude the SAA, and before the end of March.
7.8 The Minister for Europe (Mr David Lidington) highlights both
the previous and this Government's longstanding support for BiH's
progress towards EU membership, including the SAA. He notes that,
on launching "his initiative", the Foreign Secretary
stressed that there was a short window of opportunity to get BiH
moving back along its EU path; and says that, with this in mind,
the European External Action Service (EEAS) and Commission has
moved quickly in taking the initiative forward. He reiterates
the line taken by the HR: that the initiative "is not intended
as a watering down of any of the conditionality attached to Bosnia's
EU accession process" and says that it "merely resequences
it — all the conditionality will still need to be met before
candidate status is awarded". Though there is no decision
yet as to when the High Representative will bring the decision
to the Foreign Affairs Council with a view to adopting that the
Council Decision on conclusion, "thereby bringing the SAA
into force in short order", the Minister nonetheless says
that the EEAS "currently plans" to bring BiH
for discussion at the March Foreign Affairs Council, with the
Council Decision on conclusion being agreed shortly after, possibly
as an A-point at any Council.
7.9 It is plain both from what has been outlined
above and what is set out in the "Background" section
below that the "conditionality" question, which is supposedly
at the heart of the accession process, is epitomised in the BiH
story thus far. After having allowed Bulgaria and Romania to
enter the EU prematurely (so much so that they remain "in
special measures" even now) and then revised the process
twice — first with regard to Croatia, and then again for
all subsequent applicants — in order to secure the proper
functioning of democratic institutions prior to accession, it
is not at all clear that the process is not being "massaged"
once again, for what are judged to be wider political reasons.
The Minister provides no evidence of what has transpired since
last November to warrant this "re-sequencing", which
would effectively award the crucial step forward of an SAA while
the underlying problems were essentially kicked down the road.
Nor does he make any mention of the sanctions "stick"
in the EU tool box, and or, therefore, explain either why it is
to be dropped next month or continued — notwithstanding
whatever positive political developments there have been to justify
"bringing the SAA into force in short order".
7.10 However, a week after the Minister submitted
his Explanatory Memorandum, the High Representative of the Union
for Foreign Affairs and Security Policy (HR; Federica Mogherini)
announced on 18 February that BiH's Presidency had agreed "an
irrevocable commitment to undertake reforms in the framework of
the EU accession process signed by all 14 political party leaders
represented in the Parliament of Bosnia and Herzegovina",
which would proceed to the BiH Parliament on Monday 23 February;
and that she would visit BiH on that day to meet the members of
the BiH Presidency, the leadership of both Houses of the state-level
Parliament, the Presidents of the entities, Republika Srpska and
the Federation of BiH, the Chairman-designate of the BiH Council
of Ministers and the two incoming entity Prime Ministers; and
to attend and address a joint session of both Houses. Commenting
ahead of her visit, HR/VP Mogherini said:
"Bosnia and Herzegovina — and above
all its people — deserve to move closer to the European
Union and get the benefits this process will bring. The EU-related
reforms will help address the fragile socio-economic situation
in the country and spur jobs and investment. Good progress has
been made so far in developing the written commitment to the EU
agenda. Endorsement by the Parliament would open the way for the
EU to take a decision on putting the Stabilisation and Association
Agreement between us and BiH into full force."[54]
7.11 As matters presently stand, we do not feel
that we are in a position to conclude one way or the other whether
or not the factors that prevented agreement in 2012 have been
overcome. We do not know what has transpired between then and
now to justify this significant step forward — other than
the political judgement by the Council that the process needs
in some way to be kick-started. Moreover, it is clear from the
HR/VP's statement that, even now, matters are in the balance.
We therefore ask the Minister to write immediately after her visit,
in order to provide the clarification that is currently absent
and explain what position the Government will be taking in the
Council, and why. We would also like him to take the opportunity
to explain, more generally, to what extent the "Five Objectives
and Two Conditions" have been fulfilled, and what more has
to be achieved before a positive assessment of the situation in
BiH by the Peace Implementation Council Steering Board (PIC SB)
based on full compliance with the Dayton Agreement could be expected
(for example, has the PIC been involved in this present exercise?).
7.12 We would also like to know what is proposed
with regard to the restrictive measures that are due to be renewed
next month.
7.13 As is often the case with "mixed agreements"
where both the EU and the Member States are acting, we are concerned
about the risk of competence creep which could arise when it is
not clear what are the roles played by the EU and the Member States.
Such lack of transparency gives the Commission the opportunity
to assert that the EU has acted in an area in which competence
is shared between the EU and the Member States. We therefore also
ask the Minister what steps are proposed to make it clear that
the EU is acting only where it has exclusive competence,
and to make it transparent which parts of the SAA are covered
by this proposal.
7.14 The Minister also asserts that the UK opt-in
applies to this proposal because it includes some Mode IV trade
commitments which require Member states to facilitate the posting
of key personnel from Bosnian companies to their territories and
that "we are minded to advise that the UK should opt-in to
these provisions". He provides no further analysis of, at
least, the factors affecting the UK's opt-in decision, as we are
entitled to expect from the undertaking made by the then leader
of the House of Lords, Baroness Ashton, on 9 June 2008, confirmed
by himself in his written ministerial statement of 20 January
2011.
7.15 As has been our consistent position, which
is in line with the jurisprudence of the Court of Justice[55],
we do not agree that the UK opt-in is engaged, as the proposal
does not have a legal basis found in Title V of Part Three TFEU.
Whilst this difference of view does not have a significant practical
effect, given that the UK has also ratified the SAA in its own
right, the Minister is asked whether, in the event that the Government
does not exercise the opt in which it claims, it would consider
that any decision which does not recognise the existence of the
UK opt-in is valid.
7.16 In the meantime, we shall retain the draft
Council and Commission Decision under scrutiny.
Full
details of the documents:
Council and Commission Decision on the conclusion of the Stabilisation
and Association Agreement between the European Communities and
their Member States, of the one part, and Bosnia and Herzegovina,
of the other part: (36653), —.
Background
7.17 The Stabilisation and Association process (the
EU's policy framework for South East Europe prior to EU accession)
provides for the establishment of Stabilisation and Association
Agreements (SAA) with potential EU members, which include BiH.
7.18 On 30 April and 14 May 2008, the Committee considered,
and retained under scrutiny, a Council Decision on the signing
and conclusion of the SAA (which would be subject to ratification
in national parliaments, and could take up to a year), and a Council
Decision on the conclusion of an Interim Agreement on trade and
trade-related matters (which would come into force immediately).
7.19 As our 2008 Report under reference recalls,
this process began in 2005, with the opening of negotiations between
the Commission and the BiH authorities, with the then Minister
for Europe (Mr Douglas Alexander) explaining that the conclusion
of negotiations would depend on BiH's progress in developing its
legislative framework and administrative capacity, implementing
police restructuring and public broadcasting legislation, and
full cooperation with the International Criminal Tribunal for
the Former Yugoslavia (ICTY). Subsequently, his successor (Mr
Jim Murphy) had said in April 2008 that police reform legislation
had completed its passage through the BiH parliament, following
which the Commission assessed that BiH had made sufficient progress
on the four key pre-conditions and had recommended SAA signature,
which he supported.
7.20 For its part, the then Committee noted that
the agreements had plainly been very thoroughly prepared, and
raised no legal questions. However, although the Commission had
assessed that Bosnia and Herzegovina had made sufficient progress
on the four key pre-conditions, and had satisfied the Minister
that this assessment was well-founded, the then Committee felt
that there was nothing in the documents or his Explanatory Memorandum
to demonstrate how this was so. Conversely, it recalled that in
the intervening years it had been made aware of the difficulties
of implementing police restructuring from earlier consideration
of the changes in the mandates the EU Special Representative and
International High Representative, and of the police mission EUPOL,
and of the difficulties encountered by the Peace Implementation
Council (PIC). The then Committee also noted that as recently
as February 2008 the PIC Steering Board, while noting progress
and that "signing of the SAA is finally in reach as soon
as the necessary conditions are met", had also said that
"important underlying problems, which gave rise to recent
crises, remain in BiH". They went on to list attempts to
weaken progressively the institutions and legitimacy of the state;
renewed tensions between political actors over the future constitutional
make-up of the country as well as the role and competencies of
the state; deterioration in the limited degree of cooperation
among BiH actors shown in late 2007; and unacceptable challenges
to the Dayton Peace Agreement.
7.21 The then Committee also recalled its wider concern
over related developments in the Western Balkans, and over the
EU's approach to "conditionality", which had led to
the debate on 29 April 2008 in European Committee B. During that
debate, the Minister leading it (Meg Munn) referred to a deteriorating
political situation in BiH and the fundamental challenges that
remained, including continuing nationalist rhetoric, attempts
to question the structures of the state, and challenges to the
Dayton peace agreement; and there was much wider discussion about
political considerations undermining the conditionality upon which
the accession process was, and should continue to be based.[56]
So, on 14 May 2008, the Committee again asked the Minister for
further justification as to why he thought signing this major
agreement now would help to overcome those challenges rather than
reinforce them.
7.22 His reply is set out in our 2008 Report under
reference. With regard to the then Committee's concern that, driven
by a desire to maintain stability in difficult times, the EU was
again risking compromising its commitment to conditionality,
the then Minister said:
"I would argue the opposite: that the hard won
agreement on police reform on 16 April is an example of conditionality
delivering. It is the Government's view that this should now be
recognised by SAA signature. This is an assessment shared by the
High Representative, the European Commission, the Head of the
EU Police Mission and the 27 EU member states."
7.23 The UK ratified the SAA on 20 April 2010 having
put in place the necessary implementation in the form of The European
Union (Definition of Treaties) (Stabilisation and Association
Agreement) (Bosnia and Herzegovina) Order 2010 which comes into
force on the date on which the SAA enters into force.
The then Committee's assessment
7.24 The then Committee, though appreciative of the
Minister's detailed response, remained unconvinced that signature
of the SAA did not amount to a shift in the EU's position, since
implementation of legislation (the 2005 requirement) was much
more than adoption, no matter how significant that act itself
might be — especially when implementation was likely to
be far from straightforward. As the then Minister explained, this
had to be preceded by agreement on constitutional reform, which
in the light of the wider, and deteriorating, context, was unlikely
to materialise in the near future.
7.25 Nonetheless, the then Committee noted that,
as the then Minister had pointed out, "full implementation
of police reform will need to remain a key element in the EU's
conditionality", by which it assumed that there would be
no prospect of Bosnia and Herzegovina moving beyond this stage
of the accession process unless and until such police reform has
indeed been fully implemented.
7.26 In the meantime, the then Committee recognised
that, its concerns notwithstanding, the then Minister's assessment
was not simply his own, but was widely shared. Accordingly, it
cleared the Council Decisions from scrutiny.[57]
The draft Council Decision and Commission Decision
7.27 In his Explanatory Memorandum of 11 February
2015, the Minister for Europe (Mr David Lidington) recalls:
— that
representatives of the governments of Bosnia and Herzegovina and
all EU Member States (including the UK) signed the Agreement on
16 June 2008; the House of Lords and House of Commons both debated
a Statutory Instrument of Ratification (2010 No 766) specifying
the Agreement as a Community Treaty respectively on 1 March 2010
and 2 March 2010; in both Houses, Ministers set out the benefits
that the SAA would bring to BiH and the EU; the statutory instrument
received cross-party support in the debates in both houses, and
was approved by the Privy Council on 17 March 2010; the UK ratified
the Agreement on 20 April 2010; and that all other EU Member States
have ratified the Agreement; and
— explains that the draft Council and Commission
Decision is "an update of draft Decision 6364/12 of 8 March
2012 (now cancelled), which was not agreed at the time because
of Member State concerns about lack of progress on Bosnia and
Herzegovina's EU path".
The Government's view
7.28 The Minister begins by recalling this and the
previous Government's longstanding support for BiH's progress
towards EU membership, including the SAA, and continues as follows:
"In light of a period of political and economic
stagnation BiH, which could risk EU security and stability, the
Foreign Secretary and German Foreign Minister Steinmeier launched
an initiative aimed at re-invigorating BiH's EU accession path.
"This was adopted at the 16 December 2014 Foreign
Affairs Council as the EU's new initiative to BiH. Under the EU
initiative, the BiH Presidency and party leaders would sign up
to an irrevocable written commitment to respect the territorial
integrity, political independence and sovereignty of BiH and to
undertake political, social and economic reforms. This is the
first step of the initiative, which will allow the EU to decide
to bring BiH's SAA into force and to reactivate BiH's EU accession
path. The tri-partite BiH Presidency has now drawn up the written
commitment and signed it. It has been forwarded to party leaders
for their signature and will then go to the State Parliament for
a declaratory vote. The Council will then take a decision to bring
into force the SAA."
7.29 Perhaps mindful of the present and previous
Committees' interest in this aspect of the process, the Minister
then says:
"The initiative is not intended as a watering
down of any of the conditionality attached to Bosnia's EU accession
process, merely resequences it — all the conditionality
will still need to be met before candidate status is awarded."
7.30 Then, turning to the question of timing, the
Minister says:
"There is no decision yet as to when the High
Representative will bring the decision to the Foreign Affairs
Council with a view to adopting that the Council Decision on conclusion,
thereby bringing the SAA into force in short order. The European
External Action Service (EEAS) has indicated that the decision
could be taken towards the end of March.
"On launching his initiative on BiH, the Foreign
Secretary stressed that there was a short window of opportunity
to get BiH moving back along its EU path. With this in mind, the
EEAS and Commission has moved quickly in taking forward the initiative.
The EEAS currently plans to bring BiH for discussion at
the March Foreign Affairs Council, with the Council Decision on
conclusion of the SAA being agreed shortly after (possibly as
an A-point at any Council[58])".
7.31 Finally, the Minister says:
"The eight week window for enhanced scrutiny
on JHA was triggered by the publication of the last language version
of the Council Decision on 20 January and as such expires on 17
March. We would kindly ask for expedited clearance of this document
in order to allow the Government to agree its position on the
JHA opt-in before the end of March."
Previous Committee Reports
None, but see (29604), 8222/08 and (29605), 8228/08:
Twenty-sixth Report HC 16-xxiii (2007-08), chapter 21
(4 June 2008); also see (35841), —: Thirty-ninth Report
HC 83-xxxvi (2013-14), chapter 12 (12 March 2014); and
(36572), —: Thirty-first Report HC 219-xxx (2014-15), chapter
6 (28 January 2015).
Annex: the High Representative's
press release of 18 February 2015
"HR/VP Mogherini to visit
Bosnia and Herzegovina; progress being made on country's EU path.
"The High Representative of
the European Union for Foreign Affairs and Security Policy/Vice-President
of the European Commission, Federica Mogherini, will visit Bosnia
and Herzegovina on Monday 23rd February, as the country prepares
to take a step forward on its EU integration path.
"Following the initiative
of the EU to bring new momentum to Bosnia and Herzegovina's EU
integration, outlined in the Conclusions of the Foreign Affairs
Council held in December 2014, Bosnia and Herzegovina's Presidency
has agreed an irrevocable commitment to undertake reforms in the
framework of the EU accession process. The commitment has been
signed by all 14 political party leaders represented in the Parliament
of Bosnia and Herzegovina, and it proceeds to the Parliament of
Bosnia and Herzegovina on Monday 23rd February.
"During her visit, HR/VP Mogherini
will meet the members of the BiH Presidency and the leadership
of both houses of the state level Parliament. She will then, upon
invitation of the Presidency of Bosnia and Herzegovina, attend
and address a joint session of both Houses of the Parliament.
HR/VP Mogherini will also meet the Presidents of the entities,
Republika Srpska and the Federation of BiH, and the Chairman-designate
of the BiH Council of Ministers and the two incoming entity Prime
Ministers.
"Commenting ahead of her visit,
HR/VP Mogherini said: 'Bosnia and Herzegovina — and above
all its people — deserve to move closer to the European
Union and get the benefits this process will bring. The EU-related
reforms will help address the fragile socio-economic situation
in the country and spur jobs and investment. Good progress has
been made so far in developing the written commitment to the EU
agenda. Endorsement by the Parliament would open the way for the
EU to take a decision on putting the Stabilisation and Association
Agreement between us and BiH into full force.'"[59]
49 The Peace Implementation Council (PIC) - 55 countries
and international organisations that sponsor and direct the peace
implementation process - oversees all this. The PIC Steering
Board (PIC SB) nominates the HR, representing the International
Community; the UN Security Council (which approved the Dayton
Agreement and the deployment of international troops in BiH) then
endorses the nomination. The Steering Board also provides the
HR with political guidance. The Steering Board members are
Canada, France, Germany, Italy, Japan, Russia, United Kingdom,
United States, the Presidency of the European Union, the European
Commission, and the Organisation of the Islamic Conference (OIC),
which is represented by Turkey. In Sarajevo, the HR chairs weekly
meetings of the Ambassadors to BiH of the Steering Board members.
In addition, the Steering Board meets at the level of political
directors three times a year. At the outset the HR was "double-hatted"
as EUSR and HR. Currently, the HR is "free-standing",
ever since the EUSR also became Head of the EU delegation. Back
50
The text of the SAA is available as Cmd 7743. Back
51
See http://www.auswaertiges-amt.de/EN/Aussenpolitik/Laender/Aktuelle_Artikel/BosnienUndHerzegowina/141006_
Steinmeier_Hammond_Neustart_Bosnien.html,
which is reproduced at the first annex to our Twenty-eighth Report
HC 219-xxvii (2014-15), chapter 14 (7 January 2015). Back
52
See http://ec.europa.eu/commission/2014-2019/hahn/announcements/remarks-high-representativevice-president-federica-mogherini-end-visit-bosnia-and-herzegovina_en. Back
53
Also available at http://italia2014.eu/media/4325/council-conclusions-on-bosnia-and-herzegovina.pdf.
Back
54
See the Annex to this chapter of our Report for the full details.
Back
55
Cases C-656/11, C-658/11, C-81/13 and C-337/12. Back
56
The record of the debate is available at http://www.publications.parliament.uk/pa/cm200708/cmgeneral/euro/
080429/80429s01.htm. Back
57
See (29604), 8222/08 and (29605), 8228/08: Twenty-sixth Report
HC 16-xxiii (2007-08), chapter 21 (4 June 2008). Back
58
I.e., without discussion. Back
59
See http://eeas.europa.eu/statements-eeas/2015/150218_02_en.htm
Back
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