25 Strategic Partnership Agreement between
the EU and Canada
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared; further information requested
|
| Document details | Council Decision on the signing and provisional application of the Strategic Partnership Agreement
|
| Legal base | Article 37 TEU and Article 212 (2) and 218 (5) TFEU; unanimity
|
| Department | Foreign 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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