Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents


25 Strategic Partnership Agreement between the EU and Canada

Committee's assessment Legally and politically important
Committee's decisionNot cleared; further information requested
Document detailsCouncil Decision on the signing and provisional application of the Strategic Partnership Agreement
Legal baseArticle 37 TEU and Article 212 (2) and 218 (5) TFEU; unanimity
DepartmentForeign and Commonwealth Office
Document numbers(36787), 7906/15 + ADD 1, JOIN(15) 10

Summary and Committee's conclusions

25.1 The present proposal concerns the signature and provisional application of a Strategic Partnership Agreement between the EU and its Member States, and Canada. Negotiations began in September 2011; the Agreement was initialled on 8 September 2014.

25.2 Cooperation between the EU and Canada has evolved considerably since the 1976 Framework Agreement — the first EU agreement with an OECD country — and now covers a broad range of sectors including environment, justice and security, migration and integration, fisheries, education, culture, human rights, northern development and indigenous issues, youth exchanges and transport security.

25.3 The aim of the Strategic Partnership Agreement (SPA) is twofold:

·  to enhance EU-Canada political ties and cooperation on foreign policy and security issues by taking their relationship to the level of a strategic partnership; and

·  to upgrade cooperation in a large number of policy areas going beyond trade and economics.

25.4 As the Commission puts it in its accompanying Explanatory Memorandum, the Agreement "considerably contributes to the improvement of the partnership which is based on the EU and Canada's joint values such as respect for democratic principles and human rights and fundamental freedoms, rule of law, international peace and security" (see paragraphs 25.18-25.22 below for details).

25.5 The proposal would enable the EU to sign the Agreement and provisionally apply most of it. Noting that the UK has a strong and longstanding bilateral relationship with Canada, underpinned by the Canada-UK Joint Declaration, the Minister for Europe (Mr David Lidington) says that the SPA will:

"support our wider prosperity objectives with Canada, as well as broadening engagement, dialogue and cooperation with Canada on a number of bilateral issues to include Member States as a result."

25.6 Much more than most such agreements between the EU and a third party, this one is based on values that are wholeheartedly shared, and is thus to be wholeheartedly welcomed from the political perspective. Familiar concerns arise, however, over some of the legal and procedural aspects.

25.7 There are two matters arising on this Decision which give rise to concerns as to competence creep. First, as with other similar mixed agreements, we support the principle that Member States should exercise competence not only over matters for which only they have competence, but also over matters for which competence is shared, leaving the EU to exercise only its exclusive competence. We ask whether the Minster (Mr David Lidington) shares this approach and if so how he intends to make this clear in the legal documents.

25.8 Second, as the Minister rightly acknowledges, the proposal gives rise to a risk that the EU would be acting (by provisionally applying parts of the Agreement) where the Member States are otherwise exercising competence. We note the Minister will update the Committee on steps to deal with UK competence concerns. In doing so we ask him to indicate whether he regards the absence of any reference in Article 30(2) of the Agreement to provisional application by Member States as meaning that provisional application on the part of the Union and the Member States is only possible in respect of matters for which the EU is exercising competence.

25.9 We further note that a recital to the Agreement recalls that some of its provisions fall within Title V of Part Three TFEU[ 242] and therefore engage the UK opt-in. In principle we support such transparency as this is a matter which affects international partners. However, this recital does not specify which provisions are affected. Furthermore the proposed Decision contradicts this recital as it is framed in terms which does not recognise the UK opt-in. We look forward to the update from the Minister as to the steps he is taking to address this contradiction. In the meantime we follow our predecessor Committee in recalling that we do not consider that the UK opt-in is engaged:

·   where the Member States are exercising competence; and

·  where the EU is exercising competence, but the legal instrument for it to do so lacks a formal Title V legal base, as is currently the case with this proposed Decision.

25.10 Each of these legal issues reinforces the desirability of the proposed Decision making it clear that the EU is only acting in respect of matters for which it has exclusive competence.

25.11 In the meantime, we retain the proposal under scrutiny.

Full details of the documents: Council Decision on the signing, on behalf of the European Union, and provisional application of the Strategic Partnership Agreement between the European Union and its Member States, and Canada: (36787), 7906/15 + ADD 1, JOIN(15) 10.

Background

25.12 On 8 December 2010, the Council adopted a Decision authorising the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy to negotiate a Framework Agreement between the European Union and its Member States, of the one part, and Canada, of the other part.

25.13 The EU and Canada have a history of extensive political and economic cooperation, formally dating back to 1976 when the EU signed a Framework Agreement with Canada — the first EU agreement with an OECD country — which provided a framework to deepen relations and enhance political association and cooperation between the Parties.

25.14 The 1990 Declaration on Transatlantic Relations, between the European Community and its Member States and Canada, further strengthened the partnership, on both the bilateral and multilateral level, in a range of areas such as economic, scientific and cultural cooperation.

25.15 Then:

—  in 1996, the Canada-EU Joint Political Declaration and Action Plan were adopted in order to enhance the cooperation in pursuit of common objectives and on the basis of deeply-held, shared, principles; and

—  in 2004, the Parties concluded a Partnership Agenda with the objective of advancing international security, global economic prosperity, cooperation on issues of Justice and Home Affairs, addressing global and regional challenges and fostering closer links between the citizens of the EU and Canada.

25.16 The Partnership Agenda established an intensified dialogue which allowed a more strategic, sustained and coherent approach to issues affecting Canada and the EU involving an increasingly wide range of sectors.

25.17 The cooperation between the EU and Canada has evolved with time and now covers a broad range of sectors including environment, justice and security, migration and integration, fisheries, education, culture, human rights, northern development and indigenous issues, youth exchanges and transport security.

The Strategic Partnership Agreement

25.18 The Commission explains that the SPA builds on a two-pillar structure:

—  political cooperation on foreign policy and security issues of common interest (WMD, SALW, counter-terrorism, promoting international peace and security, cooperation in multilateral fora); and

—  broad sectoral cooperation (economic and sustainable development, promoting free trade and enhancing investment, judicial cooperation, taxation etc.).

25.19 The Agreement is accordingly composed of provisions on the basis for cooperation (Title I), human rights, fundamental freedoms, democracy and rule of law (Title II), international peace and security and effective multilateralism (Title III), economic and sustainable development (Title IV), justice, freedom and security (Title V), political dialogue and consultation mechanism (Title VI), as well as final provisions (Title VII).

25.20 The Commission says that the SPA will enhance EU-Canada cooperation on a range of bilateral, regional and multilateral issues, and enable the Parties "to act together to project their shared values to third countries" on key issues such as "international peace and security, democracy and the rule of law, justice, freedom and security".

25.21 The Agreement:

—  "provides the basis of the cooperation which includes the principles set out in the Charter of the United Nations and respect for international law. It further enforces the Parties engagement in upholding and advancing democracy, human rights and fundamental freedoms.

—  "strengthens political, economic and sectoral cooperation across a wide range of policy fields such as sustainable development, research and innovation, education and culture, migration, counter terrorism and the fight against organised crime and cybercrime. It restates the Parties commitment to safeguard international peace and security by preventing the proliferation of weapons of mass destruction and taking measures to deal with illicit trade in Small Arms and Light Weapons.

—  "provides the mechanism for conducting political dialogue by organising annual Summits at Leaders level and consultations at ministerial level. It also establishes a Joint Ministerial Committee, which replaces the previous Transatlantic Dialogue, and a Joint Cooperation Committee with the objective of monitoring the development of the strategic relationship between the Parties.

—  "provides for the possibility of suspending its application in case of a violation of essential elements. In addition, the Parties recognize that such cases could also serve as grounds for the termination of the CETA."[ 243]

25.22 The final provisions set out conditions for provisional application of certain parts of the agreement prior to its entry into force.

25.23 In his Explanatory Memorandum of 30 June 2015, the Minister describes signature of the SPA alongside the CETA as "key to strengthening the EU's and Member States' relationships with a key bilateral partner". Noting that the UK has a strong and longstanding bilateral relationship with Canada, underpinned by the Canada-UK Joint Declaration, the Minister says that the SPA will:

"support our wider prosperity objectives with Canada, as well as broadening engagement, dialogue and cooperation with Canada on a number of bilateral issues to include Member States as a result."

25.24 The Minister goes on also to note that, as a framework political agreement, the SPA covers a wide range of policy areas including:

"upholding and advancing democratic principles, human rights and fundamental freedoms (Title II); international peace and security and effective multilateralism (Title III); economic and sustainable development (Title IV), and justice, freedom and security (Title V)."

25.25 The Minister continues thus:

"The EEAS, supported by the European Commission, are proposing to provisionally apply the SPA in its entirety (except for Article 24 on Consular Protection). This and other ongoing Third Country Agreements (TCAs) demonstrate a trend to conclude or progress agreements as EU-only when they clearly contain areas of Member State competence. Given this, and the non-inclusion of any form of JHA recital in the Council Decision, the Foreign and Commonwealth Office is continuing negotiations with the European External Action Service (EEAS) to safeguard UK competence concerns and will inform the Committees of the outcome of these negotiations in due course."

25.26 Turning to the Justice and Home Affairs Implications, the Minister says:

"The Government considers that Article 18(2), which relates to judicial cooperation in civil and commercial matters, engages the UK's JHA opt-in, and is minded to opt in. While the provisions in Article 18(2) are not specific about the type of cooperation that may be envisaged, we believe that on balance it would be beneficial for the UK to be involved, in any work between the EU and one of our closest Commonwealth partners. This is because there is exclusive EU external competence for certain of the Hague Conventions covered by that Article, which means that only the EU can sign up to the commitment to develop cooperation with Canada as regards the negotiation, ratification and implementation of the Conventions concerned. As a party to these Conventions as part of the EU, it is possible that such cooperation may have an impact on the UK. The JHA content contained within this agreement is incidental to the predominant purpose of the agreement, and in line with current policy, the Government considers that the opt-in has been triggered.

"As the last language version of the Council Decision was published on 13 April, the deadline for opting into the JHA provisions in this agreement is 13 July. A written update will be provided in due course.

"For other provisions related to JHA: Article 6 (cooperation in combating terrorism); Article 18(1) (judicial cooperation in criminal matters); Article 19 (cooperation against illicit drugs); Article 20 (fight against organised crime); Article 21 (money laundering); and Article 22 (cybercrime), we are able to assume these in our own right as a signatory to the SPA, and so the opt-in is not engaged."

25.27 The Minister's Explanatory Memorandum is accompanied by a letter of the same date in which he notes that the documents were published in the Official Journal of the European Union on 13 April 2015, and that the deadline for opting into the Justice and Home Affairs (JHA) provisions in this agreement is thus 13 July.

25.28 He continues as follows:

"The European External Action Service (EEAS), supported by the Commission, would like to provisionally apply every article of the SPA except for Article 24 on Consular Protection. Negotiations on provisional application have begun at EU Working Group level and will continue into the autumn. In negotiations to date the UK has made clear that provisional application negotiations would be sensitive given the ambitious EEAS proposal for provisional application. Officials are working alongside likeminded Member States to agree compromise solutions which will satisfy our policy imperatives with regard to EU competence concerns.

"The Government considers that Article 18(2) triggers the UK opt-in and I am minded to opt in to this Article. There are a number of other Articles related to JHA, and these are provisions that we intend to assume in our own right as a signatory to the Agreement. These are: Article 6 (cooperation in combating terrorism); Article 18(1) (judicial cooperation in criminal matters); Article 19 (cooperation against illicit drugs); Article 20 (fight against organised crime); Article 21 (money laundering); Article 22 (cybercrime).

"The deadline for the UK to confirm its opt-in position to the Presidency of the European Council is 13 July. While I hope that Committee is able to examine this item by 13 July, I appreciate that it has not yet been formed, so this short timeframe may be inadequate to properly examine the documents. We will of course ensure that any Council Decision on this is submitted for scrutiny at the earliest point possible."

25.29 The Minister concludes by undertaking to write again about the outcome of the negotiations on provisional application as soon as they are concluded.

Previous Committee Reports

None.


242   This Title concerns the Area of Freedom, Security and Justice. Back

243   The EU-Canada Comprehensive Economic and Trade Agreement. Back


 
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Prepared 30 July 2015