27 The EU and Kosovo: Stabilisation
and Association Agreement (SAA)
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | Proposal for Council Decisions on the conclusion and signing of a Stabilisation and Association Agreement (SAA) between the EU and Kosovo
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| Legal base | (a) Articles 217, 218(6)(a)(i) and 218(8) TFEU; unanimity (b) Article 101 Euratom; QMV
(c) Articles 217, 218(5) and 218(8) TFEU; unanimity
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| Department | Foreign and Commonwealth Office
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| Document numbers | (a) (36826), 8532/15 + ADDs 1-3, COM(15) 181;
(b) (36827), 8534/15 + ADDs 1-3, COM(15) 182;
(c) (36828), 8535/15 + ADDs 1-4, COM(15) 183
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Summary and Committee's conclusions
27.1 Kosovo became independent on 17 February 2008. The Minister
for Europe (Mr David Lidington) notes that the United Kingdom
was the first country to recognise Kosovo. The Government's objective
is "a stable, prosperous and multi-ethnic Kosovo, making
progress towards eventual EU and NATO membership", and both
it and its predecessor have consistently wanted to see Kosovo
joining other Western Balkans countries in concluding an SAA (Stabilisation
and Association Agreement[ 257]).
27.2 Negotiations started in October 2013, and the
draft text of the agreement was initialled in July 2014. The Agreement
identifies a number of aims and areas for co-operation between
the EU and Kosovo: to help strengthen democracy and the rule of
law; to contribute to political, economic and institutional stability;
to provide an appropriate framework for political dialogue; to
support Kosovo's efforts to develop its economic and international
co-operation; to support Kosovo's efforts to complete its transition
to a functioning market economy; to promote harmonious economic
relations and gradually to develop a free trade area between the
EU and Kosovo; and to foster regional co-operation.
27.3 The Minister characterises Kosovo as "a
key driver of regional stability", and states that it is
therefore strongly in UK interests that progress and development
in Kosovo is maintained. He emphasises the importance in the Government's
eyes of "a credible European future if its leaders are to
sustain the path of reform", and states that "the promise
of an SAA has helped to drive continuing reform". Kosovo
"remains committed to implementation of its agreement of
April 2013 on the normalisation of its relationship with Serbia",
and its new government has "remained firmly committed to
the reform agenda and is focusing on the country's serious socio-economic
problems". The "European perspective" offered by
the SAA "remains critical to this process", because
it "reassures Kosovo's people, and helps promote stability
at a sensitive time for security on Europe's borders". Signature
and implementation of the SAA will help promote integration in
Kosovo; will create pressure for Kosovo's leaders to make hard
choices on the rule of law and much needed political and economic
reform; and will bring added scrutiny and assistance to help strengthen
Kosovo's weak public institutions. Conversely, the loss of Kosovo's
European perspective would be very damaging. For all these reasons,
"the UK strongly supports signature, conclusion and ratification
of an SAA with Kosovo".
27.4 The "normalisation" process to
which the Minister refers was reached after ten rounds of the
"EU-facilitated Dialogue", chaired by the then EU High
Representative (Baroness Ashton), on 19 April 2103, when Serbia's
then Prime Minister Ivica Dai© and Kosovo's
then Prime Minister Hashim Thaçi finally reached a landmark
agreement aimed at normalising relations between Serbia and Kosovo.[ 258]
The agreement came just before the 22 April 2013 meetings of the
EU's General Affairs and Foreign Affairs Councils. At stake was
whether to open negotiations on Serbia becoming a possible EU
member and an SAA between Kosovo and the EU. An agreement on normalisation
of relations would open a European integration future for both;
failure to agree would set this back and freeze the process. On
28 June 2013, the European Council agreed to open accession negotiations
with Serbia, which began in January 2014. From the political perspective,
this SAA is the quid pro quo for Kosovo.
27.5 The
"EU-facilitated Dialogue" process continues. So far
as whether implementing this SAA will in practice produce "pressure
for Kosovo's leaders to make hard choices on the rule of law"
remains to be seen; the most immediate such hard choice concerns
sustained and effective Government support, in the face of determined
political opposition, for the investigative process in which the
EU's largest CSDP mission is involved, viz., establishment of
a special out-of-country court regarding EULEX's Special Investigative
Taskforce. But the Minister's judgement that failure to sign and
ratify this Agreement would be damaging appears to be well-founded.
27.6 There are, however, nonetheless substantial
legal and procedural concerns over some of the details. The Minister
asserts that the UK opt-in is triggered. In principle we share
the doubts now expressed by the EU institutions, although their
position is considerably complicated by the fact that the current
text of the Agreement recognises that the UK opt-in is triggered.
27.7 On the basis of the Government's assertion
that the UK opt-in is triggered, we ask the Minister, in
the light of earlier Government undertakings,[ 259]
whether he was in a position to provide the Committee with an
indication of the factors affecting the opt-in decision when he
provided the Explanatory Memorandum and whether he can do so now.
27.8 We support the principle of transparency
over the UK opt-in in the text of international agreements. The
parties to those agreements are entitled to clarity as to which
provisions apply (or not) to the UK or the EU. We urge the same
degree of transparency in future external agreements. However,
in this case, that apparent transparency is replaced by legal
confusion if the consequential Decisions enabling the EU to sign
and conclude the Agreement (documents (a) and (b)) were to be,
on their face, inimical to the UK opt-in. That will happen if
the proposals as they stand are adopted. Given the requirement
for unanimity for their adoption, we expect this legal confusion
to be sorted out; and ask the Minister how he proposes to do so,
including the possibility of adding a legal basis to each Decision
from Title V of Part Three TFEU.
27.9 Normally, where an external agreement covers
a matter where competence is shared, we follow our predecessors
in favouring the Member States' exercising that competence. That
cannot happen here as only the EU is entering into this SAA. However,
as recital (5) to each proposed Decision makes clear, the SAA
covers matters of shared competence. The Minister indicates that
the UK has accepted an EU only Agreement in return for assurances
that it would make clear that it is a unique case, that it does
not change the current distribution of competence, and that it
does not set a precedent for future EU agreements. We ask the
Minister to indicate where in the text of SAA or, more appropriately,
the proposed Decisions these assurances are given concrete expression.
We also ask the Minister to identify those elements of the SAA
which fall within shared competence.
27.10 We support the Minister's view on the need
for a CFSP legal base and note, moreover, that there was one for
the original Council Decision authorising the negotiation.
27.11 In the meantime, the Council Decisions remain
under scrutiny.
Full
details of the documents:
(a) Proposal for a Council Decision on the conclusion, on behalf
of the European Union, of the Stabilisation and Association Agreement
between the European Union and the European Atomic Energy Community,
of the one part, and of Kosovo*, of the other part: (36826), 8532/15
+ ADDs 1-3, COM(15) 181; (b) Recommendation for a Council Decision
approving the conclusion, by the European Commission, on behalf
of the European Atomic Energy Community, of the Stabilisation
and Association Agreement between the European Union and the European
Atomic Energy Community, of the one part, and of Kosovo*, of the
other part: (36827), 8534/15 + ADDs 1-3, COM(15) 182; (c) Proposal
for a Council Decision on the signing, on behalf of the European
Union, of the Stabilisation and Association Agreement between
the European Union and the European Atomic Energy Community, of
the one part, and of Kosovo, of the other part: (36828), 8535/15
+ ADDs 1-4, COM(15) 183.
Background
27.12 Following the Commission's publication of its
Annual Enlargement Package in October 2012, the December
2012 General Affairs Council (GAC) agreed conclusions on the reports
on individual enlargement countries. Inter alia, these
noted that the Council would return to the questions of Macedonia
and Serbia opening accession negotiations, and of Kosovo opening
negotiations on a Stabilisation and Association Agreement (SAA),
under the next Presidency, with reports to be presented on these
issues by the Commission and High Representative/Commission Vice
President in the Spring 2013. The reports were designed to provide
a basis for the Council to take stock and give direction ahead
of enlargement discussions and possible decisions at the 25 June
GAC and the June 2013 European Council.
27.13 The reports on Macedonia and Serbia analysed
the further progress towards meeting the Copenhagen criteria for
membership: particularly the areas in which the December 2012
GAC conclusions had called for further action. The Kosovo report
analysed specific issues set out in those conclusions concerning
Kosovo's readiness to negotiate an SAA.
27.14 With regard to Kosovo, the then (and current)
Minister for Europe said:
"In October 2012, the Commission issued a Feasibility
Study for a Stabilisation and Association Agreement (SAA) between
the European Union and Kosovo. The study concluded that Kosovo
is largely ready to open negotiations for a SAA, but that there
were four short-term priorities that needed to be met. The Commission
assesses that the four priorities have been met. The Commission
has submitted its proposal for a Council Decision authorising
the opening of negotiations on a Stabilisation and Association
Agreement. This document is classified as 'restraint' and so will
not be provided for scrutiny; however we will write to the scrutiny
committees once the draft proposal has been adopted in Council,
outlining the UK's position in the ensuing negotiations."
27.15 As detailed in our predecessors' Report of
21 May 2013, the heart of the matter had then been the positive
developments, since April 2013, in the Serbia/Kosovo relationship,
culminating in the initialling in Brussels by the prime ministers
of both countries of the "First agreement of principles governing
the normalisation of relations". For the Minister, this demonstrated
the powerful influence that a conditions-based EU enlargement
process could bring to bear in improving neighbourly relations
and promoting regional security and stability. Brokered (over
no fewer than ten rounds of talks) by the then EU High Representative
for Foreign Affairs and Security Policy, it was described by The
Economist as "nothing short of historic".[ 260]
27.16 The emphasis thereafter was on implementation,
with the UK and Germany in the lead, and the focus on dismantling
the "parallel structures" of Serbian governance in northern
Kosovo. As the Minister made clear in his three subsequent letters
(set out in our predecessors' other Report[ 261]),
the process was expected to go down to the wire, and did.
27.17 In the third of those letters, of 10 July 2012,
the Minister declared himself pleased that — "as set
out in the post European Council statements to the House"
— the European Council had agreed to open accession negotiations
with Serbia and that a negotiating mandate for a Stabilisation
and Association Agreement (SAA) with Kosovo was adopted. The Minister
attached copies of the relevant conclusions,[ 262]
and said that these decisions "represent significant steps
forward for Serbia and Kosovo on their respective EU paths".
27.18 The Minister confirmed that the decision on
whether to agree to open accession negotiations with Serbia "was
a finely balanced one". The Government had taken the decision
only shortly before the European Council that Serbia had made
sufficient progress against the conditionality of a "visible
and sustainable improvement in relations with Kosovo" to
warrant a positive decision on opening accession negotiations.
Nonetheless, the process of normalisation of relations with Kosovo
would need to continue throughout the accession process, with
full normalisation of relations before Serbia could accede to
the EU; the Government had therefore secured GAC conclusions that
agreed that steps leading to the normalisation of relations between
Belgrade and Pristina would also be addressed in the negotiating
framework for the accession negotiations.[ 263]
27.19 Turning to Kosovo, the Minister continued thus:
"A good outcome was secured also for Kosovo,
with the adoption of the negotiation mandate for the Stabilisation
and Association Agreement (these documents, as set out in previous
correspondence, are classified). As the first milestone on the
road to EU membership, this sends an important signal that Kosovo's
future is European. As set out previously, the five EU countries
which have yet to recognise Kosovo opposed the negotiating of
an SAA which would require Member State signature and ratification.
I very much regret that they chose to adopt this position. Whilst
we respect the non-recognisers' positions, it is evident that
non-recognition complicates Kosovo's EU track.
"As the negotiating directives for the SAA are
on an EU-only basis, the UK has taken a rigorous approach in ensuring
that the directives are confined to areas of EU competence only
and that they do not represent any shift in competence. The amendments
the UK secured to the original Commission text, taken as a package
and individually, are visible and strong safeguards of UK positions
on matters of competence. They fortify an overarching principle
of this negotiation: that an EU-only SAA is without prejudice
to any future negotiations on similar agreements, or to the positions
of EU institutions and Member States on competences.
"On the CFSP elements of the negotiating directives,
we have secured important safeguards. The scope of CSFP matters
is reduced by excluding certain elements such as those relating
to non-proliferation and counter-terrorism. The negotiating directives
include specific CFSP legal bases (article 37 TEU and Article
31(1) TEU). Citing Article 37 makes clear that it is the High
Representative (and no one else) who will be engaging on the aspects
of CFSP specified in the EU-only agreement. The Council and the
Commission also agreed in a statement that the adoption of the
decision to authorise the EU to negotiate an SAA with Kosovo is
without prejudice to the nature and scope of any similar agreements
to be negotiated in the future in particular as regards matters
falling within the Common Foreign and Security Policy. This is
also reiterated in the recital of in the non JHA Council Decision,
'Whereas this authorisation to negotiate an SAA with Kosovo as
an EU-only Agreement is without prejudice to to the nature and
scope of any similar agreements to be negotiated in future, in
particular as regards the Common Foreign and Security Policy'.
"In the area of Title V JHA measures, we have
secured a strong package of safeguards which protects our position
fully, including through recognition of our opt-in rights in respect
both of this negotiating mandate and of the future signature and
conclusion stages of the agreement. We have secured language which
makes clear that the outcome of negotiations on any JHA matters
is not binding on the UK unless we choose to opt in. The safeguards
we have secured are mutually reinforcing, and render explicit
the distinct nature of JHA in relation to the SAA as a whole.
"The Council Decision on the SAA mandate was
split, allowing for a separate Council Decision on JHA areas.
As stated in both Council Decisions, the UK is not bound by or
subject to the application of the Council Decision insofar as
it relates to the Area of Freedom, Security and Justice covered
by Title V of the Treaty on the Functioning of the European Union.
The SAA negotiating directives now cite a substantive legal basis
on JHA, (Article 79(3) TFEU) making it clear that the opt-in applies.
Moreover, to address the concern that other JHA legal bases might
need to be cited consequent to the outcome of the negotiations,
a recital was inserted in the non-JHA Council Decision, noting
that the application of the opt-in will need to be assessed at
signature and conclusion stage.
"No formal start date for the SAA negotiations
has been announced, but we expect they will open in the autumn.
It will be important for Kosovo to keep up momentum on reform
and continue to play its part in implementing the 19 April agreement
with Serbia."[ 264]
The draft Council Decisions
27.20 In his Explanatory Memorandum of 18 June 2015,
the Minister notes that, on 30 April 2015, the European External
Action Service (EEAS) circulated the document, a Proposal for
a Council Decision on the Signature of the Stabilisation and Association
Agreement (SAA) between the European Union and Kosovo; and then
on 4 May 2015, circulated the documents: a Proposal for a Council
Decision on the Conclusion of the Stabilisation and Association
Agreement (SAA) between the European Union and Kosovo; and a Recommendation
for a Council Decision by the European Commission on behalf of
the European Atomic Energy Community, of the Stabilisation and
Association Agreement (SAA) between the European Union and Kosovo.
The Government's view
27.21 The Minister describes the Government as "a
strong supporter of Kosovo's progress towards eventual EU membership"
and emphasises the importance in his eyes of signature, conclusion
and ratification of an SAA to continuing reform in Kosovo and
implementation of its agreement of April 2013 on the normalisation
of its relationship with Serbia (see paragraph 27.04 above for
detail).
27.22 The Minister then notes that the five EU Member
States that do not recognise Kosovo[ 265]
insisted on an EU-only SAA:
"The UK accepted this, in return for assurances
that the agreement would make clear it is a unique case, that
it does not change the current distribution of competence, and
that it does not set a precedent for future EU agreements. We
are also seeking the citation of a CFSP legal base."
27.23 Looking ahead, the Minister says:
"It is not yet clear when the Council will be
invited to adopt the Council Decision, opening the way for signature
of the SAA. The European External Action Service (EEAS) and the
Commission have indicated that the Decisions are expected to be
adopted before the summer. The final language versions of the
Council Decisions have not yet issued. However, since the EU Institutions
do not agree that the UK's opt-in Protocol applies to this SAA,
adoption may take place before the usual JHA opt-in three month
deadline."
Previous Committee Reports
None, but see (34866), 8740/13 and (34867), 8742/13:
Twelfth Report HC 83-xii (2013-14), chapter 20 (17 July
2013) and Third Report HC 83-iii (2013-14), chapter 24
(21 May 2013).
257 The Stabilisation and Association Agreement constitutes
the framework of relations between the European Union and the
Western Balkan countries for implementation of the Stabilisation
and Association Process. The agreements are adapted to the specific
situation of each partner country and, while establishing a free
trade area between the EU and the country concerned, also identify
common political and economic objectives and encourage regional
co-operation. In the context of accession to the European Union,
the agreement serves as the basis for implementation of the accession
process. Back
258 See press release of 19 April 2013 Serbia and Kosovo reach
landmark deal for full background. Back
259 By the then Leader of the House of Lords, Baroness Ashton of 9
June 2008 affirmed by the Minister in his Written Ministerial
Statement of 20 January 2011. Back
260
See (34866), 8740/13
and (34867), 8742/13: Third Report HC 83-iii (2013-14), chapter
24 (21 May 2013). Back
261 See (34866), 8740/13 and (34867), 8742/13: Twelfth Report HC 83-xii
(2013-14), chapter 20 (17 July 2013). Back
262 General Affairs Council conclusions of 25 June 2013 and European
Council conclusions of 26-27 June 2013. Back
263 See (34866), 8740/13 and (34867), 8742/13: Twelfth Report HC 83-xii
(2013-14), chapter 20 (17 July 2013). Back
264 See (34866), 8740/13 and (34867), 8742/13: Twelfth Report HC 83-xii
(2013-14), chapter 20 (17 July 2013). Back
265 Cyprus, Greece, Spain, Slovakia and Romania. Back
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