Legally and politically important
Cleared from scrutiny
Joint Proposal for a Council Decision on the signing, on behalf of the European Union and provisional application of the Co-operation Agreement on Partnership and Development between the European Union and its Member States, and the Republic of Afghanistan
Article 37 TEU, Articles 207, 209, 218(5) and 218(8) TFEU
Foreign and Commonwealth Office
(38105), 12507/16 + ADD 1, JOIN(16) 45
16.1The Cooperation Agreement on Partnership and Development (CAPD) with Afghanistan lays out a framework for future cooperative dealings between the EU and Afghanistan and reflects shared interests in the following areas:
16.2Originally, the CAPD with Afghanistan was to be an “EU-only” agreement without input from Member States. However Member States, including the UK, did not agree on the grounds that it covered matters for which there was unexercised shared competence. As a result the CAPD became a mixed agreement.
16.3At its meeting of 2 November, the Committee sought information from the Government on how it was ensuring that EU action in respect of the CAPD would be limited to the Union’s exclusive competence. The Committee also requested clarification on the application of the terms of the agreement to UK-Afghan relations post-Brexit.
16.4The Minister for Europe and the Americas, (Sir Alan Duncan), has now written, setting out the Government’s position on competence. He notes that whether and how EU agreements continue to apply to the UK post-Brexit will be an important topic in the withdrawal negotiations. He adds that there has been strong and long-standing cooperation between the UK and Afghanistan.
16.5We are grateful to the Minister for his reply to our queries. We now clear the document from scrutiny ahead of agreement and signature later this month.
16.6In doing so, we draw the attention of the House to the lack of clarity as to the extent to which the EU is exercising competence. The Government is satisfied that it is not necessary to pursue this in the face of acceptance by other Member States despite the need for unanimity. It draws comfort that there is insufficient risk of competence creep including the need to comply with its own policy that the Member States should exercise shared competence from (a) an absence of any concrete legal obligations in the Agreement and (b) inferences that can be drawn from the limitation of provisional application.
16.7Reason (a) points to an intention for the Agreement to be essentially one of good intentions which may or may not be realised, and devalues apparent obligations contained in the Agreement, such as the one to exchange information on all issues relevant to combatting criminal activities found in Article 25.
Joint Proposal for a Council Decision on the signing, on behalf of the European Union and provisional application of the Co-operation Agreement on Partnership and Development between the European Union and its Member States, and the Republic of Afghanistan: (38105), + ADD 1, JOIN(16) 45.
16.8On 10 November 2011, the Council adopted a Decision authorising the European Commission to negotiate a Cooperation Agreement on Partnership and Development (‘CAPD’) between the European Union and the Islamic Republic of Afghanistan. The negotiations were concluded on 29 April 2015 following the fourth round of negotiations held in Brussels. The CAPD was initialled on 2 July 2015 in Kabul.
16.9On 7 September 2016 COREPER upheld the unanimous decision among EU Member States to make the CAPD with Afghanistan a mixed Agreement. COREPER asked the Commission and High Representative to revise the proposal accordingly and to insert new provisions on the provisional application for the CAPD. The new mixed Agreement was then agreed upon by the Afghan side.
16.10On the question of competence, the Minister says:
“The UK assessment is that the absence of concrete legal obligations in the CAPD, when taken alongside the language in the Council Decision limiting the EU’s ability to provisionally apply the agreement, is sufficient to limit the risks to UK interests from competence creep. Therefore, we are not seeking a change to the wording of the CAPD or the provisional application, which has been accepted by all other Member States.”
16.11On the Brexit–related matters, the Minister adds:
“As the Committee is aware, the issue of whether and how EU agreements continue to apply to the UK will be an important topic in the negotiations over the future UK-EU relationship. It would be wrong to set out unilateral positions in advance of the negotiations, including on any plans for transitional arrangements, should they be required. However, it is worth noting that the UK enjoys a close working relationship with the Government of Afghanistan, with strong and long-standing cooperation across political, military and development issues.”
25 Shared competence can be exercised by either the EU or the Member States.
26 A mixed agreement is entered into by both the EU and its Member States.
27 Shared competence can be exercised by either the EU or the Member States; it is a policy choice.
9 December 2016