17 The EU and Bosnia and Herzegovina:
Stabilisation and Association Agreement
| Committee's assessment
| Legally and politically important |
| Committee's decision | Cleared from scrutiny; drawn to the attention of the Foreign Affairs Committee
|
| 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
17.1 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 Bosnia
and Herzegovina (BiH).
17.2 The current political framework in BiH 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[72]
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
an SAA, and a positive assessment of the situation in BiH by the
PIC SB based on full compliance with the Dayton Agreement.
17.3 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[73]), 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, last autumn, 19 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.
17.4 Then, after a joint British/German initiative
last November,[74] the
EU High Representative/Vice-President (HR; Federica Mogherini)
and the Enlargement Commissioner (Johannes Hahn) visited Sarajevo
in December, at the end of which 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."[75]
17.5 They were then invited by the December 2014
Foreign Affairs Council:
"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."[76]
17.6 In his Explanatory Memorandum of 11 February,
the Minister for Europe (Mr David Lidington) reiterated the line
taken by the HR in Sarajevo: that the initiative "is not
intended as a watering down of any of the conditionality attached
to Bosnia's EU accession process" and said that it "merely
resequences it — all the conditionality will still need
to be met before candidate status is awarded".
17.7 Though there was no decision yet as to when
the HR would bring the Council Decision on conclusion to the Foreign
Affairs Council, "thereby bringing the SAA into force in
short order", the Minister nonetheless said that the EEAS
currently planned to bring the matter forward at the 16 March
2015 Foreign Affairs Council, with the Council Decision on conclusion
being agreed shortly after, possibly as an A-point[77]
at any Council.
17.8 The Committee recalled its long-standing concern
over the "conditionality" keystone of the EU integration
process, stemming back to this SAA in 2007-08, the subsequent
accession and post-accession process in Bulgaria and Romania and,
most recently, Croatia.
17.9 In sum, as matters then stood, we did not feel
that we were in a position to conclude one way or the other whether
or not the factors that prevented agreement in 2012 had been overcome.
We did not know what had transpired between then and now to justify
this significant step forward — other than the political
judgement by the Council that the process needed in some way to
be kick-started. Moreover, it was clear from the HR/VP's subsequent
statement concerning her impending further visit to Sarajevo that,
even now, matters were in the balance. We therefore asked the
Minister to write immediately after her visit, in order to provide
the clarification that was currently absent and explain what position
the Government would be taking in the Council, and why. We also
asked him for further information about the state of play generally
concerning fulfilment of the "Five Objectives and Two Conditions",
and what was proposed with regard to the restrictive measures
that were due to be renewed next month. Also, this being a "mixed
agreement", we asked the Minister what steps were proposed
to make it clear that the EU was acting only where it had exclusive
competence, and to make it transparent which parts of the SAA
were covered by this proposal. And, as has been our consistent
position,[78] we did
not agree that the UK opt-in was engaged.
17.10 Since then, the HR has signified endorsement
on 23 February by the BiH Parliament of the EU initiative, noting
that the key issue will be the implementation of reforms; saying
that the EU is ready to support the BiH leadership and its people
in the way forward; and stating that she will now report back
to the March Foreign Affairs Council about the "positive
developments" and "recommending that the European Union
reciprocates, including on the Stabilisation and Association Agreement".
She also spoke of "the risk of going back to disillusion"
as high, and of "no one here or in Brussels" being able
to "afford going back to political stalemate that has been
there for so long". She also made clear that her expectation
is that "work will start now immediately", at all levels,
"putting in place measures for building a functional market
economy" and "undertaking measures to strengthen the
rule of law, and to strengthen the reconciliation process, and
to strengthen the administrative capacities, and enhancing the
efficiency of institutions at all levels". She also found
that "the strong political will is there", assured her
interlocutors that "the same strong political will is there
in Brussels, in the European institutions, among the Member States",
and stated that she counted "on this political will to be
able to deliver some good, positive steps for the people of Bosnia
and Herzegovina" (see below for the full statement).
17.11 The Minister for Europe has now provided a
full analysis of the process that has led the Government to its
present position: that it will support the coming-into-force of
the SAA. In sum, the EU accession process has not worked thus
far; the country is mired in political and economic stagnation
and, with a majority Muslim population and 60% youth unemployment,
is inherently unstable; to "persist stubbornly with the previous
EU approach at the potential expense of stability, was not in
our interests"; last October's elections provided an opportunity
to generate new, more positive momentum. But there has been "no
lowering of the bar in terms of conditionality": rather,
a "re-sequencing of that conditionality through a broadening
of the reform agenda up front, with a focus on socio-economic
and functional reforms to stabilise the economy, improve the effectiveness
of government, create jobs and strengthen the rule of law".
The Government's aim is to secure the implementation of important
reforms that should have a stabilising effect, and then deal with
more challenging issues "from further along the EU accession
process when there is more on the table to negotiate with, and
more financial and other incentives available, including through
pre-accession funds". In this context, conclusion of the
SAA, which entails contractually-binding reform commitments on
the part of the BiH authorities, "should be seen more as
a challenge not a reward".
17.12 This new approach has been warmly welcomed
by the PIC Steering Board — save for Russia opting out of
its December 2014 conclusions because of its "opinion that
Euro-Atlantic integration is not the sole perspective for BiH".
17.13 All 14 BiH party leaders, including the Republika
Srpska President Dodik, and now the national Parliament, have
signed up to an irrevocable Written Commitment, and thus to BiH's
territorial integrity, political independence and sovereignty
as well as a wide-reaching and politically very challenging reform
agenda. The BiH authorities have thus now delivered what was requested
of them by the December 2014 Foreign Affairs Council.
17.14 The Government has succeeded in putting the
EU reform agenda back at the heart of the political debate at
all levels of government in BiH. The need now is urgently to capitalise
on the momentum and move forwards to the next stage: the definition
and subsequent implementation of a detailed Agenda for Reform,
within the framework of the agreed Written Commitment. Any failure
to deliver the SAA would be seen as a breach of trust on the part
of the EU. This would be extremely damaging at a time when BiH
faces the possibility of increasing political instability, and
when Republika Srpska is pursuing closer ties to Russia. It would
also severely undermine the UK's own credibility as the co-creator
of the new EU strategy (see below for the full text of the Minister's
letter).
17.15 The Minister's case is politically compelling.
Now is not to the time to discuss whether "resequencing"
is or isn't "lowering the bar in terms of conditionality".
It is plain that, despite the new momentum and the level of support
for, and "irrevocable" nature of, the Written Commitment,
the country still faces immense challenges in using this opportunity
actually to implement the radical changes in approach that will
be necessary to move forward peacefully and progressively. Also,
as the Minister says, the so-called "Sejdiæ Finci"
case[79] will
still have to be resolved before BiH could join the EU, and "probably"
even before it could receive Candidate Status. The Committee,
and no doubt its successor, will continue to keep an eagle eye
on the process, particularly as and when any suggestion begins
to surface of BiH moving to that next stage (we note that, already,
the Minister is qualifying the "Sejdiæ Finci"
issue, which we think unwise). The next Commission Country Progress
Report, towards the end of this year, will accordingly be of more
than usual significance.
17.16 In the meantime, we now clear the draft
Council and Commission Decision from scrutiny.
17.17 In doing so we draw the attention of the
House to the likelihood that the Government will seek to opt into
the provisions of the SAA in respect of Mode 4 services (which
touch upon immigration policy) on the basis that complying with
these provisions are unlikely to give rise to an impact on immigration.
For our part we remain of the view that the opt-in is not engaged
and therefore the UK automatically participates in any decision
adopted.
17.18 We also ask the Minister, in pursuance of
his confirmation that the Government will continue to provide
the Committee with a clear explanation of its approach to EU competence,
to provide a copy of the Decision, when it is in the public domain,
together with explanations (a) how the text makes it clear that
the EU is only concluding the SAA in respect of matters for which
it has exclusive competence and (b) how the legal instruments
identify those elements of the SAA in respect of which the EU
is exercising competence.
17.19 We note the Minister's explanation of the
risk of competence creep in the provisional application of agreements
and the steps proposed to mitigate this risk. However, this particular
risk does not appear to arise because this Decision is limited
to the conclusion (ratification) of the SAA, and does not provisionally
apply any of it.
17.20 We also draw these developments to the attention
of the Foreign Affairs Committee.
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
17.21 In his Explanatory Memorandum of 11 February
2015, the Minister for Europe highlighted both the previous and
this Government's longstanding support for BiH's progress towards
EU membership, including the SAA. He noted that, on launching
"his initiative", the Foreign Secretary had stressed
that there was a short window of opportunity to get BiH moving
back along its EU path; and said that, with this in mind, the
European External Action Service (EEAS) and Commission had moved
quickly in taking the initiative forward. He reiterated 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 said that it "merely resequences
it — all the conditionality will still need to be met before
candidate status is awarded". Though there was no decision
yet as to when the High Representative would bring the decision
to the Foreign Affairs Council with a view to adopting the Council
Decision on conclusion, "thereby bringing the SAA into force
in short order", the Minister nonetheless said 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.
Our assessment
17.22 It was plain both from what the Minister said
and what was set out in the "Background" section of
our previous Report[80]
that the "conditionality" question, which is supposedly
at the heart of the accession process, is epitomised in the BiH
story thus far — right from the outset in 2007-08.[81]
17.23 Subsequently, after having allowed Bulgaria
and Romania to enter the EU prematurely (so much so that they
remain "in special measures" even now[82])
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 was not at all clear to us that the process
was not being "massaged" once again, for what were judged
to be wider political reasons.
17.24 The Minister provided no evidence of what had
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 did he make any mention of the sanctions "stick"
in the EU tool box, and or, therefore, explain either why it was
to be dropped next month or continued — notwithstanding
whatever positive political developments there had been to justify
"bringing the SAA into force in short order".
17.25 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."[83]
17.26 In sum, as matters then stood, we did not feel
that we were in a position to conclude one way or the other whether
or not the factors that prevented agreement in 2012 had been overcome.
We did not know what had transpired between then and now to justify
this significant step forward — other than the political
judgement by the Council that the process needed in some way to
be kick-started. Moreover, it was clear from the HR/VP's statement
that, even now, matters were in the balance. We therefore asked
the Minister to write immediately after her visit, in order to
provide the clarification that was currently absent and explain
what position the Government would be taking in the Council, and
why. We also asked him to explain, more generally, to what extent
the "Five Objectives and Two Conditions" had been fulfilled,
and what more had to be achieved before a positive assessment
of the situation in BiH by the PIC SB based on full compliance
with the Dayton Agreement could be expected (for example, had
the PIC been involved in this present exercise?).
17.27 We also asked to know what was proposed with
regard to the restrictive measures that were due to be renewed
in March.
17.28 As is often the case with "mixed agreements"
where both the EU and the Member States were acting, we were concerned
about the risk of competence creep which could arise when it was
not clear what were the roles played by the EU and the Member
States. Such lack of transparency gave the Commission the opportunity
to assert that the EU had acted in an area in which is shared
between the EU and the Member States. We therefore also asked
the Minister what steps were proposed to make it clear that the
EU was is acting only where it had exclusive competence,
and to make it transparent which parts of the SAA were covered
by this proposal.
17.29 The Minister also asserted that the UK opt-in
applied to this proposal because it included some Mode IV trade
commitments which required 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 provided no further analysis of, at
least, the factors affecting the UK's opt-in decision, as we were
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.
17.30 As has been our consistent position, which
is in line with the jurisprudence of the Court of Justice,[84]
we did not agree that the UK opt-in was engaged, as the proposal
did not have a legal basis found in Title V of Part Three TFEU.
Whilst this difference of view has no significant practical effect,
given that the UK has also ratified the SAA in its own right,
we asked the Minister whether, in the event that the Government
did not exercise the opt-in which it claimed, it would consider
that any decision which did not recognise the existence of the
UK opt-in was valid.
17.31 In the meantime, we retained the draft Council
and Commission Decision under scrutiny.[85]
17.32 On 23 February 2015, after her visit to Sarajevo,
the HR (Federica Mogherini) issued the following statement:
"It is a pleasure for me to be here in Sarajevo
just a couple of months after my first and last visits. I am happy
today that I have had a chance to meet Members of the Presidency
— I would like to thank them for their role and the leadership
in these months to reach the written commitment. I had a meeting
with the Presidents of both entities, with the Parliament leadership,
I have had a chance of addressing the Parliament in a day that
I defined as historical; it is really important to me and —
I hope — to the whole country. I had a meeting with the
Chairman-designate of the Council of Ministers, with the Prime
Minister of Republika Srpska and the nominee for the Prime Minister
of the Federation, and finally — but not least — I've
just had an exchange of views with journalists, media and cultural
activists in Ars Aevi and then I'm heading to the HQ of EUFOR
Althea.
"Let me start by saying that the developments
we have seen in this couple of months and finishing with the endorsement
today by the Parliament are very positive developments, a reaction
to the EU initiative that we launched here in December. And let
me be clear on the fact that this is obviously on one side a historical
moment, an achievement in itself but also a starting point because
we all know that the key issue will be the implementation of reforms.
We all know this is the most difficult part of the job. Let me
say that the EU is ready to support Bosnia and Herzegovina and
its leadership and its people in the way forward.
"I will now report back to the Foreign Ministers
in our next Foreign Affairs Council in March. Reporting about
the positive developments and recommending that the European Union
reciprocates, including on the Stabilisation and Association Agreement.
I think everybody is very much aware of the fact that, on one
side, yes - today can be a historical moment, on the other side
the risk of going back to disillusion is high and that no one
here or in Brussels can afford going back to political stalemate
that has been there for so long.
"What people here in Bosnia and Herzegovina
ask for is a European future for their country and I think that
is very clear that it is time to deliver on this. We expect that
work will start now immediately, at all levels, on an initial
reform agenda. This would mean moving ahead with economic and
social measures in the framework of the Compact for Growth and
Jobs. It will mean putting in place measures for building a functional
market economy. It will mean undertaking measures to strengthen
the rule of law, and to strengthen the reconciliation process,
and to strengthen the administrative capacities, and enhancing
the efficiency of institutions at all levels.
"I will close with the overall feeling that
the strong political will is there. I found this in all my interlocutors
today, in all institutions, in all individuals. And let me assure
you that the same strong political will is there in Brussels,
in the European institutions, among the Member States and I count
on this political will to be able to deliver some good, positive
steps for the people of Bosnia and Herzegovina."[86]
The Minister's letter of 3 March 2015
17.33 The Minister responds as follows:
THE ENLARGEMENT PROCESS
"The UK Government continues to support the
enlargement of the European Union (EU), subject to firm but fair
conditionality, both because Euro-Atlantic integration, through
NATO and the EU, is the best vehicle in delivering political and
economic stability to countries in Europe and UK objectives in
the region as well as because the process of conditions-based
accession itself is one of the best tools we have for encouraging
reforms.
THE POLITICAL DIMENSION IN BIH
"We have a strong national interest in the stability
of Bosnia and Herzegovina, and of the wider Balkans region. The
legacy of the war of the 1990s is a country that remains deeply
divided, politically and socially. Political elites are heavily
invested in a dysfunctional and corrupt status quo, and divisive
rhetoric from some political quarters continues to substitute
for concrete policy responses to BiH's many challenges. The UK
has remained one of the leading supporters of the EU Force (EUFOR
Operation Althea), which is charged with maintaining a safe and
secure environment under a Chapter VII UN Security Council Resolution,
most recently through its temporary reinforcement last year with
a Squadron from the Light Dragoons. As a member of the Peace Implementation
Council (PIC) Steering Board, we have a responsibility to oversee
the implementation of the Dayton Peace Agreement. So as a country
we have invested heavily in BiH's stability and progress over
many years.
"In recent years, however, the EU accession
process has not succeeded in leveraging reform as it has elsewhere
in the region. While other countries have continued to make progress
towards the EU, BiH has stalled. In particular, the BiH authorities
have failed to fulfil the two pre-conditions set in 2008 for the
SAA to enter into force. The implementation of the judgement by
the European Court of Human Rights in the so-called 'Sejdiæ
Finci' case[87] has been
a particular sticking point, as this requires constitutional changes
which are perceived by some as a threat to the post-Dayton political
system, which is based upon quota allocations for the three main
ethnic groups (Bosniak, Bosnian Serb and Bosnian Croat). In the
current political context, and despite numerous attempts by the
EU, the resolution of Sejdiæ Finci as a precondition for
further progress has been shown to be unrealistic. It has also
meant that the EU has not focused sufficiently on BiH's many other
challenges.
"The result of this impasse has been political
and economic stagnation. By almost any metric, BiH is not doing
well. Public frustration spilled over last February into violent
riots. Terrible floods in May 2014, and again later in the year,
have compounded the challenges faced by ordinary people. While
the conflict risk is still lower than many other areas globally,
local instability and dysfunction on the EU's border could pose
a real risk to our national interests. And we are concerned about
the medium-term consequences of the current position. With youth
unemployment at a staggering 59.5%, and an educational system
that is run along divided, ethnic lines, young people in BiH are
susceptible to political manipulation. As a country with a majority
Muslim population, a number of young people have already gone
to fight in Syria and Iraq. It is clear that BiH is inherently
unstable in its current form and if we did nothing, it will get
worse. After careful consideration, the UK Government came to
the position that to persist stubbornly with the previous EU approach,
at the potential expense of stability, was not in our interests,
and we decided to try to use the political opportunity offered
by October's elections to generate some new, more positive momentum.
"It was for these reasons that, in November
last year, the Foreign Secretary launched a joint initiative on
BiH with German Foreign Minister Steinmeier. The initiative was
subsequently unanimously adopted by Member States as the EU's
strategy for BiH at the December 2014 Foreign Affairs Council.
"A precondition for our approach has been no
lowering of the bar in terms of conditionality. The UK is a staunch
advocate of firm-but-fair conditionality in the EU accession process
and our credibility on this issue is strong. 'Sejdiæ Finci'
will still have to be resolved before BiH could join the EU, and
probably even before it could receive Candidate Status. But we
have advocated the re-sequencing of that conditionality through
a broadening of the reform agenda up front, with a focus on socio-economic
and functional reforms to stabilise the economy, improve the effectiveness
of government, create jobs and strengthen the rule of law. There
are a number of reasons why we believe this approach makes sense:
1. "Socio-economic reforms are important
and urgently needed in their own right, given discouraging economic
projections for BiH, and the need for economic stability as a
basis for political stability. Following October's elections,
there is a broad consensus on the need for such reforms, which
we should not ignore. And socio-economic reforms will not only
improve the lives of ordinary people in BiH, but will help to
satisfy some essential elements of the Copenhagen criteria and
the EU acquis, which were neglected under the EU's previous approach.
2. "A focus on 'jobs and justice'-type reforms
aligns the EU approach more closely with issues that are directly
relevant to a much larger proportion of the BiH population. While
support for an EU future remains high, the previous focus on complex
constitutional and technical reforms meant that, for many people
in BiH, the EU appeared remote and BiH's EU future is distant.
This approach offers a much better chance of generating stronger
public support, to put pressure on governments to deliver much-needed
reforms and to hold them accountable for success or failure in
future elections.
3. "A focus on socio-economic reforms offers
the possibility of closer alignment of the EU's reform priorities
with those of the International Financial Institutions, such as
the IMF and World Bank. A more coherent international approach
in BiH is highly desirable and should allow us to increase significantly
the financial incentives and leverage for reform in a way that
was not possible when the EU was focusing on early constitutional
change.
"Overall, our aim has been to generate new momentum,
to secure the implementation of important reforms that should
have a stabilising effect, and then to deal with more challenging
issues from further along the EU accession process when there
is more on the table to negotiate with, and more financial and
other incentives available, including through pre-accession funds.
In this context, the conclusion of the SAA, which entails a number
of contractually-binding reform commitments on the part of the
BiH authorities, should be seen more as a challenge not a reward.
The SAA requires greater coordination between the BiH political
parties in order to bind them into a process to deliver challenging
reforms. The SAA will create the mechanisms for dialogue to lever
further challenging reforms by BiH's leaders. At the same time,
the EU can suspend the SAA if necessary. Article 129 states that
'Either Party may suspend this Agreement, with immediate effect,
in the event of non-compliance by the other Party with one of
the essential elements of this Agreement'.
"In this context and as set out in my letter
to you of 22 January 2015, the UK Government continues to advocate
the strongest possible 'EU toolbox' in BiH, and continues to support
restrictive measures as part of a broader comprehensive EU strategy.
Restrictive measures are an important lever alongside other instruments
such as political facilitation, IPA financing, the Office of the
High Representative (OHR), the monitoring and support of reform
progress through bodies to be established by the SAA when it enters
in to force, and the EUFOR Operation Althea mission. The measures
allow the EU to freeze assets and impose travel bans on individuals
and those associated with them.
"The ability to impose restrictive measures
is important in ensuring that BiH is faced with the right balance
between incentives and deterrents. Although no individuals are
currently listed under these measures, widespread knowledge of
the existence of restrictive measures is important to encourage
BiH's leaders to stimulate reforms and make progress towards EU
and NATO integration, whilst serving as a deterrent to those who
may wish to undermine BiH stability and territorial integrity.
"The Council is now holding its annual discussion
on restrictive measures and I shall be writing to you shortly
about the outcome.
"We have seen some encouraging progress since
October's elections and the launch of the initiative. Our new
approach has been warmly welcomed, including by the PIC Steering
Board in its conclusions of December 2014 - although Russia chose
to opt out of that conclusion, stating that 'the Russian Federation
is of the opinion that Euro-Atlantic integration is not the sole
perspective for BiH'.
"As requested within the terms of the new EU
strategy, all of BiH's fourteen party leaders (including the Republika
Srpska President Dodik) have signed up to an irrevocable Written
Commitment which sets out a wide-reaching reform agenda, the implementation
of which will be politically very challenging. BiH's State Parliament
approved the Written Commitment on 23 February. This commits the
parties to undertake for them hugely difficult socio-economic
reforms, implement the EU Coordination Mechanism[88]
as well as to address functionality, security and political reforms.
Importantly, the Written Commitment also reaffirms the territorial
integrity, political independence and sovereignty of BiH.
"The BiH authorities have now delivered what
was requested of them by the December 2014 Foreign Affairs Council
as the precondition, under the new strategy that we created for
bringing into force the SAA. We have succeeded in putting the
EU reform agenda back at the heart of the political debate at
all levels of government in BiH. And we need urgently to capitalise
on the momentum that we have generated and move forwards to the
next stage of the strategy, which is the definition and subsequent
implementation of a detailed Agenda for Reform, within the framework
of the agreed Written Commitment. Any delay on our part, or a
failure to deliver the SAA, would be seen as a breach of trust
on the part of the EU. This would be extremely damaging at a time
when BiH faces the possibility of increasing political instability,
and when Republika Srpska is pursuing closer ties to Russia. It
would also severely undermine the UK's own credibility as the
co-creator of the new EU strategy. For these reasons, the UK Government
intends to support the Council's decision for the SAA to enter
into force.
"We also keep the 'Five Objectives and Two conditions'
under review. The first condition — signing of the SAA —
has taken place. Sufficient progress has also been made to satisfy
the PIC on the implementation of three objectives:
— "The Brcko Final Award (third objective);[89]
— "Fiscal Sustainability (fourth objective),
which has been promoted through an Agreement on a Permanent Indirect
Tax Authority Co-efficient methodology and the establishment of
a National Fiscal Council; and
— "Progress on the entrenchment of
the rule of law (fifth objective), through the adoption of a national
war crimes strategy, the passage of law on aliens and asylum,
and the adoption of a national justice Sector Reform Strategy.
"Work is still needed to find an acceptable
and sustainable resolution of the issue of appointment of property
between the state and other levels of government (first objective)
and on defence property (second objective). Once this has been
achieved, there will need to be a positive assessment of the situation
in BiH by the PIC on full compliance with the Dayton Agreement.
EU COMPETENCE
"On the issue of EU competence more generally
in the provisional application of future third country agreements,
I can confirm that the Government will continue to provide the
Committee with a clear explanation of its approach. There may
be occasions in the future when it is in the UK national interest
for parts of third country agreements to be provisionally applied,
not solely in areas of the EU's exclusive competence (for example
in areas of shared competence where the EU has already acted).
However, the Government will continue to rigorously oppose the
provisional application of Articles which are properly within
the competence of the Member States, and will continue to press
for clarity through joint declarations in those areas of provisional
application where there is a risk of ambiguity about the division
of competence between the EU and its Member States.
JUSTICE AND HOME AFFAIRS (JHA) ASPECTS
"The JHA opt-in is triggered in respect of Article
56 of the agreement. This is a standard Mode IV obligation which,
in the case of this SAA, requires Member States to facilitate
the posting of key personnel from Bosnian companies in their territories.
The UK Government has already agreed identical Mode IV commitments
within the WTO, and we believe that these provisions are unlikely
to give rise to an impact on immigration. On that basis, I am
minded to opt in to the proposed Council Decision.
"The UK Government's position is that there
is at least a respectable argument that a JHA legal base should
be cited for Mode IV provisions, on the grounds that the aim and
content of a number of the provisions are focussed on immigration.
The Government maintains that the opt-in still applies to measures
in an international agreement such as this one based on their
content, even if a Title V legal base is not cited.
"Broadly speaking, the Government's position
on the validity of any measure will depend on a close analysis
of the particular measure at issue. Unless and until successfully
challenged before the CJEU, a measure properly adopted by the
Institutions pursuant to the Treaties will be valid. Although
entirely hypothetical, had we decided not to opt in to the Mode
IV provisions within the Bosnia SAA, we would not consider ourselves
bound by this particular provision by virtue of Article 2 of Protocol
21. If there was nothing on the face of the measure which clarified
the UK's position in regard to the opt-in, we would lay a minute
statement to provide this clarification."
Previous Committee Reports
Thirty-fourth Report HC 219-xxxiii (2014-15), chapter
7 (25 February 2015): also 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).
72 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
73
The text of the SAA is available as Cmd 7743. Back
74
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. See annex to our Twenty-eighth
Report HC 219-xxvii (2014-15), chapter 14 (7 January 2015). Back
75
See Remarks by High Representative/Vice-President Federica Mogherini. Back
76
The full Council Conclusions. Back
77
i.e., for adoption without any further discussion. Back
78
Which is in line with the jurisprudence of the Court of Justice:
c.f. Cases C-656/11, C-658/11, C-81/13 and C-337/12. Back
79
Dervo Sejdiæ and Jakob Finci, are citizens of Bosnia and
Herzegovina, as well as prominent public figures. But Sejdiæ
is of Roma origin and Finci is Jewish and according to the Bosnian
Constitution only "constituent peoples" (Bosniacs, Croats
and Serbs) and not "others" (Jews, Roma and other national
minorities) can be elected in the House of Peoples of the Parliamentary
Assembly and the Presidency. Following the launch of legal procedures
on the matter, the European Court of Human Rights issued a ruling
in the Sejdiæ-Finci case urging Bosnia and Herzegovina to
review its electoral legislation in order to ensure the respect
of equal rights for all citizens. This has yet to happen; see
the Minister's letter for further detail. Back
80
See Thirty-fourth Report HC 219-xxxiii (2014-15), chapter 7 (25
February 2015). Back
81
See in particular (29604), 8222/08 and (29605), 8228/08: Twenty-sixth
Report HC 16-xxiii (2007-08), chapter 21 (4 June 2008), and the
29 April 2008 debate in European Committee B. Back
82
See (36634), 5711/15 + ADD 1 and (36635), 5712/15 + ADD 1 at chapter
16 of this Report for the Committee's consideration of the Commission's
latest reports under the Cooperation and Verification Mechanism. Back
83
See Press Release. Back
84
Cases C-656/11, C-658/11, C-81/13 and C-337/12. Back
85
Thirty-fourth Report HC 219-xxxiii (2014-15), chapter 7 (25 February
2015). Back
86
See Remarks by High Representative/Vice-President Federica Mogherini. Back
87
Dervo Sejdiæ and Jakob Finci, are citizens of Bosnia and
Herzegovina, as well as prominent public figures. But Sejdiæ
is of Roma origin and Finci is Jewish and according to the Bosnian
Constitution only "constituent peoples" (Bosniacs, Croats
and Serbs) and not "others" (Jews, Roma and other national
minorities) can be elected in the House of Peoples of the Parliamentary
Assembly and the Presidency. Following the launch of legal procedures
on the matter, the European Court of Human Rights issued a ruling
in the Sejdiæ-Finci case urging Bosnia and Herzegovina to
review its electoral legislation in order to ensure the respect
of equal rights for all citizens. Back
88
In addition to disregard for human rights exemplified by the Sejdic
and Finci case, the country faces serious obstacles in speaking
with "one voice", i.e., notwithstanding Bosnia's complicated
constitutional structure, a single attitude towards EU integration,
and in this case politicians working together without suggesting
that any part of the country should have a separate EU path. See
analysis of this complex issue. Back
89
See Office of the High Representative (OHR) for full information
on this matter. Back
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