16 Partnership and Co-operation Agreements:
Philippines and Vietnam
| Committee's assessment
| Legally important |
| Committee's decision | Cleared from scrutiny (decision reported on 11 February 2015)
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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
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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 conjunct-tion with Article 218(6)(a) TFEU
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| Department | Foreign and Commonwealth Office
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| Document numbers | (a) (32472), —; (b) (35680), 18055/13 + ADD 1, COM(13) 925; (c) (32369), 18041/10, COM(10) 699;
(d) (35681), 18056/13, + ADD 1, COM(13) 924
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Summary and Committee's conclusions
16.1 These documents comprise various Council Decisions in relation
to the signing and conclusion of Partnership and Co-operation
Agreements (PCAs) with the Philippines and Vietnam. They had been
retained under scrutiny pending a response from the Government
on the question of the application of the UK's JHA opt-in (Protocol
21 to the Treaties) to those documents in the light of the judgment
of the Court of Justice (CJEU) of 11 June 2014 on the EU-Philippines
PCA.[85]
16.2 In our last Report of 11 February, we reported
on a letter of 4 February on these issues which we had received
from the Minister for Modern Slavery and Organised Crime (Karen
Bradley). We cleared the documents on the strength of that response.
We now report on two further letters we have received from the
Minister for Europe (Mr David Lidington) which essentially reproduce
the Government view already provided by the Home Office on these
documents. However, they additionally provide the Government's
view on the CJEU judgment in the case of United Kingdom v Council
(C-656/11) on the agreement between the EU (and its Member States)
and Switzerland on free movement of persons.
16.3 We thank the Minister for his letters. In
response, we refer him to the conclusions set out in our Report
of 11 February.
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(13) 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(13) 924.
Background and previous scrutiny
16.4 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 letters of 18 February 2015
16.5 The Minister's two letters of this date, one
addressing the EU-Vietnam PCA, the other the EU-Philippines PCA,
are substantially the same in content. They also largely reproduce
the Government view on the impact of the CJEU judgment on the
EU-Philippines PCA as provided by the Minister for Modern Slavery
and Organised Crime (Karen Bradley) and set out in our Report
of 11 February.
16.6 First, the Minister apologises for the delay
in replying to the Committee's questions on both of the PCAs raised
in its Report of 12 March 2014. He explains:
"This was due to the time it took for the ECJ
to reach a judgement on case C-377/12 on the EU-Philippines PCA
and to allow for cross-Whitehall consultations on the Government
position following that judgement to be concluded.
"The Home Secretary has now written to you to
setting out the views of the Government on the judgement. These
are as follows.
"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 subsequently 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'.
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 judgement
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 judgement on the UK's arguments that the existence of
Protocol 21 means that exercises of JHA competence need to be
considered differently from 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 judgement, 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 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 judgement
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 judgement 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."
16.7 The Minister concludes that as both the Vietnam
and Philippines agreements cite Article 209 development co-operation
legal bases, the Court's judgment means that the JHA opt-in is
not engaged in either case and that the UK's previous opt-in decision
in relation to those agreements is null and void.
16.8 The Minister then provides us with the Government's
view of the CJEU judgment on the EU-Switzerland agreement (a matter
which was not covered by the 4 February letter from the Home Office):
"Regarding the EU/Switzerland agreement, the
view of this Government as set out in the House of Lords evidence
session on 14 January is below. This refers to the EU-Swiss social
security dossier (the Proposal for a Council Decision on the position
to be adopted on behalf of the Union in the Joint Committee established
by the Agreement of 21 June 1999 between the European Community
and its Member States, of the one part, and the Swiss Confederation,
of the other part, on the free movement of persons as regards
the replacement of Annex II on the coordination of social security
schemes).
"The Commission initially proposed the Decision
in 2010 on the basis of Article 79(2)(b) TFEU, in conjunction
with Article 218(9) TFEU. The UK did not opt in but offered to
reach a separate agreement with Switzerland. Switzerland indicated
that they could not accept this and the Commission withdrew the
original proposal and produced a proposal with an Article 48 TFEU
legal base. The UK (and Ireland) voted against the new proposal
but it was adopted under Qualified Majority Voting by the Council.
A Judgement in the Swiss case was given on 27 February 2014. Although
the Court rejected the UK's argument for a JHA legal base, it
relied heavily on the fact that, in its view, Switzerland has
been "equated" to a Member State of the EU by virtue
of, and for the purposes of, the Agreement on Free Movement and
the relevant Regulations incorporated under that. We do not consider
it has broader application, whether to Turkey or to EU international
agreements in general."
Previous Committee Reports
(a) Thirty-third Report HC 219-xxxii (2014-15), chapter
8, (11 February 2015); 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-third Report HC 219-xxxii
(2014-15), chapter 8, (11 February 2015); Thirty-ninth Report
HC 83-xxxvi (2013-14) chapter 8 (12 March 2014); (c)
Thirty-third Report HC 219-xxxii (2014-15),
chapter 8, (11 February 2015);
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-third Report HC 219-xxxii (2014-15),
chapter 8, (11 February 2015);
Thirty-ninth Report HC 83-xxxvi (2013-14)
chapter 6 (12 March 2014).
85 C-377/12: Commission v Council. Back
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