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


55 The EU and Bosnia and Herzegovina: Stabilisation and Association Agreement

Committee's assessment Legally and politically important
Committee's decisionCleared from scrutiny by previous Committee on 4 March 2015; further information received
Document detailsCouncil 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 baseArticles 217, 218(6), 218(8) TFEU and Article 101 of the Treaty establishing the European Atomic Energy Community; unanimity
DepartmentForeign and Commonwealth Office
Document number(36653), —

Summary and Committee's conclusions

55.1 The EU Bosnia and Herzegovina Stabilisation and Association Agreement (the SAA) was signed in 2008 but not ratified by the EU. All Member States have ratified it but the Council has refrained from taking this Decision to enable the EU to conclude (ratify) it, thereby delaying its entry into force. The Report of our predecessor Committee of 4 March 2015 sets out the background of this Decision in more detail, indicates that our predecessor Committee cleared this document from scrutiny and sought further information as to transparency in the legal documents as to the extent to which the EU and the Member States were exercising competence.

55.2 The then (and current) Minister for Europe (Mr David Lidington) wrote on 13 April 2015 to indicate that, contrary to a view previously expressed, the Government accepts that the UK opt-in is not engaged in respect of the provisions of the SAA on Mode IV Services.[ 407] By letter dated 17 June, he has responded to the request from the previous Committee as to transparency in the legal texts as to the exercise of competence.

55.3 Although not mentioned in the letter of 17 June the SAA came into force on 1 June 2015.

55.4 We are grateful for the letters from the Minister.

55.5 In respect of the UK opt-in we note that the Government would have intended to opt in to the provisions on Mode IV Services in the SAA and therefore the fact that it now accepts that the UK opt-in is not engaged has no practical significance. Although we agree that the issue is not of practical significance, we nevertheless find the Minister's reasons for accepting that the UK opt-in is not engaged unsatisfactory for the reasons set out below. We do not pursue this further because our view, as was that of our predecessor, is that the UK opt-in has never been engaged for a different reason, namely that the proposal (now an adopted Decision) lacks a legal base from Title V of Part Three TFEU. However, we highlight that this unsatisfactory analysis, coming on top of the misunderstanding as to the nature of the proposed Decision, (raised in our predecessor Committee's Report of 4 March) indicates that this matter has not been considered carefully enough by the Minister and his advisers.

55.6 The Minister's letter of 17 June concerning the exercise of external competence is of wider significance in that it acknowledges that the Government takes a "pragmatic approach on a case-by-case basis which may ultimately mean a lack of clarity on the face of the agreement or the face of the Council Decision as to who exactly is entering which obligations and on what basis". The lack of clarity demonstrated in this case arises in respect of many other EU external agreements.

55.7 We note that the Minister is comforted "by the position that the balance of competence is set out in the treaties and cannot be modified by a Third Country Agreement or a Council Decision". However no such comfort can be taken in respect of mixed agreements[ 408] covering an area of shared competence[ 409] as is the case here. This is because the Treaties envisage that in such cases competence can be exercised by either the EU or the Member States. Our preference, as was that of our predecessor, is that Member States should exercise their competence in these circumstances. Leaving the matter unclear gives rise to potential competence creep by giving an opportunity for the Commission to argue in the future that the EU has, in fact, exercised the shared competence. Therefore this is a matter which we shall continue to review carefully in future.

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), —.

The Minister's letter of 13 April 2015

55.8 In his letter the then (and current) Minister for Europe states:

"I am now writing to inform the Committee that the Council Secretariat has subsequently confirmed that this (latest) version of the Council Decision is not a new proposal but a revised version of the original pre-Lisbon Treaty Council Decision text of 2008. Accordingly, since this is not a new Council Decision text, the UK is unable to assert the opt-in.

"Political stagnation in BiH meant that adoption of the original measure in 2008 had been postponed until now in light of progress on the EU's new initiative on BiH. However, as the content of the current Council Decision does not differ substantively from the original version it is unlikely that the Council Secretariat would agree to issue a new proposal.

"Given that it is the Mode IV provisions of the agreement that trigger the JHA opt-in, and our proposal was in any case to opt in to these provisions, the fact that we have not been able to formally assert the opt-in in regard to the Council Decision on Conclusion, has no practical implications as far as the UK's commitment to this agreement is concerned."

Our analysis of the letter of 13 April 2015

55.9 The Minister accepts that the UK is unable to assert the opt-in because the proposal is not new but a revised version of a 2008 text. We accept that this would mean that the deadline for opting in at the negotiation stage was missed. However, in these circumstances, the opt-in would still be engaged with the consequence that the UK would remain a non-participant. Indeed the UK opt-in Protocol[ 410] envisages that if the UK does not opt-in at the negotiation stage then it can do so once the proposal has been adopted. This is very different to the Minister's apparent acceptance that the result of missing the original deadline to opt-in at the negotiation stage means that the UK is unable to assert the opt-in at all, and therefore automatically participates in the measure.

55.10 The position is not affected by the fact that the original proposal predates the coming into force of the Lisbon Treaty. The Treaties in force in 2008 afforded the UK an opt-in in respect of matters concerning visas, asylum and immigration, which are the areas which overlap with Mode IV services. The Lisbon Treaty expanded the UK opt-in to include other matters but did not change the essence of the UK opt-in for matters which were covered by it beforehand.

The Minister's letter of 17 June 2015

55.11 In this letter the Minister addresses the outstanding issues relating to the transparency of the exercise of external competence:

    "In your letter, you also asked for an explanation of (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. I am afraid neither the text of the SAA itself nor the Council Decision sets out article by article whether it is only the EU that is entering the obligation or whether it is the EU and the Member States, or indeed only the Member States. Rather, as Article 1 of the Council and Commission Decision makes clear the European Union approves the whole of the SAA between the EU and its member states on the one side and Bosnia and Herzegovina on the other. Separately, the member states approve the whole of the SAA (and not just those parts covered by member state competence).

    "On your second question, specifying where competence lies article-by-article risks negotiations in the Council becoming intractable and untimely. We therefore always take a pragmatic approach on a case-by-case basis which may ultimately mean a lack of clarity on the face of the agreement or the face of the Council Decision as to who exactly is entering which obligations and on what basis. In this context, we are guided by the position that the balance of competence is set out in the treaties and cannot be modified by a Third Country Agreement or a Council Decision."

Previous Committee Reports

Thirty-fifth Report HC 219-xxxiv (2014-15), chapter 17 (4 March 2015): 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).





407   Mode IV Services involve the service provider crossing into another territory to provide the serve and therefore have implications for immigration policy. Back

408   A mixed agreement is an international agreement entered into by both the EU and its Member States. Back

409   Competence that is shared can be exercised by either the EU or the Member States. Back

410   Now Protocol 21. Previously Protocol 4. Back


 
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