55 The
EU and Bosnia and Herzegovina: Stabilisation and Association
Agreement
| Committee's assessment
| Legally and politically important |
| Committee's decision | Cleared from scrutiny by previous Committee on 4 March 2015; further information received
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| 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
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| Legal base | Articles 217, 218(6), 218(8) TFEU and Article 101 of the Treaty establishing the European Atomic Energy Community; unanimity
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| Department | Foreign and Commonwealth Office
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| Document number | (36653), —
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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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