Documents considered by the Committee on 13 November 2017 Contents

18Comprehensive and Enhanced Partnership Agreement with Armenia

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested

Document details

(a) Joint Proposal for a Council Decision on the signing, on behalf of the European Union, and provisional application of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part; (b) Joint Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part; (c) Recommendation for a Council Decision approving the conclusion by the Commission, on behalf of the European Atomic Energy Community, of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Armenia, of the other part;

Legal base

(a) Articles 207 and 209, in conjunction with Article 218(5) and the second paragraph of Article 218(8) TFEU (b) Articles 207 and 209, in conjunction with Article 218(6) (a) and the second paragraph of Article 218(8) TFEU (c) second paragraph of Article 101 EURATOM; (a) and (b) unanimity, (c) QMV

Department

Foreign and Commonwealth Office

Document Numbers

(a) (39074), 12503/17, JOIN(2017) 36 + ADDS 1—6; (b) (39076), 12525/17, JOIN(2017) 37 + ADDs 1—6; (c) (39075), 12527/17, COM(2017) 549

Summary and Committee’s conclusions

18.1These proposed Decisions would enable (a) the EU to sign and provisionally apply a Comprehensive and Enhanced Partnership Agreement (CEPA) between the EU and its Member States, and Armenia (b) the EU to conclude (ratify) the CEPA and (c) enable the EURATOM Community to conclude (ratify) the Agreement.

18.2Currently EU-Armenian relations are conducted under a Partnership and Co-operation Agreement which came into force in 1999. In December 2015 the European External Action Service announced211 that the EU and Armenia had opened negotiations on a new overarching framework for the deepening of bilateral relations. It was billed as an instrument planned to:

“reset EU-Armenia relations within the wider framework of the recently-reviewed European Neighbourhood Policy and of the Eastern Partnership. It also serves as an opportunity to definitively turn the page following uncertainties created in 2013 when the negotiated EU-Armenia AA/DCFTA [Association Agreement/Deep and Comprehensive Free Trade Agreement] could not be completed following Armenia’s decision to join the Eurasian Economic Union.”

18.3The negotiations concluded with the initialling of a text for the CEPA in March this year and the Commission made these proposals on 25 September.

18.4In his Explanatory Memorandum the Minister (Sir Alan Duncan) explains that the Agreement does not go as far as establishing an association between the EU and Armenia, but covers:

18.5The Government is supportive of the priorities the EU has set out in the CEPA and its conclusion and signature.

18.6The Minister indicated that he expected the Decisions to be adopted on 21 November prior to their signature on 24 November, but wrote to the Committee on 25 October to indicate that as the Committee had not been reconstituted “I have to override your Committee’s scrutiny of the Council Decisions”.

18.7We should be grateful if the Minister would clarify whether any of these Decisions have been adopted and if so when. In the meantime we retain them under scrutiny.

18.8The CEPA is a mixed agreement i.e. entered into by both the EU and its Member States, each exercising competence in respect of some part of CEPA. However, there is no indication in documents (a) or (b) where the EU is exercising its competence or the Member States’ theirs. We therefore ask Minister to indicate whether he intends to ensure (or has ensured) that the legal texts make it clear that the EU is only exercising competence where it is exclusive, in line with the Government policy that normally Member States should exercise shared competence.212

18.9Document (a) provides for the EU to trigger provisional application of the whole CEPA, even the parts of it (currently not identified) which fall under either Member States’ exclusive competence or shared competence.213 This present approach is out of line with previous Government practice, which is to list the provisions being provisionally applied and to limit that list to matters of EU exclusive competence.214 Will the Minister indicate whether there has been a change of approach, and if so why?

18.10In relation to Brexit, the Minister provides no further information other than a pro forma paragraph informing us that a referendum took place on 23 June 2016, that the people of the United Kingdom voted to leave the European Union and that the UK will continue to negotiate, implement and apply EU legislation whilst it remains a full member of the EU. We would be grateful for further information as to the implications of Brexit; in particular does the Government consider that, as the UK is entering CEPA in its own right, it will continue to apply after Brexit, and, if so, to what extent. If not, is the Government considering entering into its own separate agreement with Armenia and, if so, which aspects of the CEPA would it intend to follow and which not.

18.11In his Explanatory Memorandum the Minister indicates that “There are no JHA issues that would trigger the opt-in.” However Title III of CEPA from Articles 12 to 21 is entitled “Justice, Freedom and Security” and ostensibly falls within the scope of the UK opt-in under Protocol 21 to the Treaties; and the final recital of CEPA indicates that the Protocol was in scope, at least, in the mind of the parties. We include some further background to the application of UK opt-in at paragraphs 13 and 14 below, and ask the Minister to set out more fully his reasons for indicating why the UK opt-in does not apply.

Full details of the documents

(a) Joint Proposal for a Council Decision on the signing, on behalf of the European Union, and provisional application of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part: (39074), 12503/17 + ADDs 1—6, JOIN(2017) 36; (b) Joint Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part: (39076), 12525/17+ADDs 1—6, JOIN(2017) 37; (c) Recommendation for a Council Decision approving the conclusion by the Commission, on behalf of the European Atomic Energy Community, of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Armenia, of the other part: (39075), 12527/17, COM(2017) 549.

Background—the UK opt-in.

18.12The Government’s longstanding approach has been that the UK opt-in under Protocol 21 applies where the measure includes content falling within Title V of Part Three TEU, which concerns “Area of Freedom, Security and Justice” formerly known as Justice and Home affairs (JHA). In this case the relevant content is CEPA to which the EU proposals refer. The previous Committee, in line with the EU institutions, considered that Protocol 21 was engaged only if the legal basis (in this case of the proposals) was found in Title V TFEU. There is no such legal basis in the proposals contained in documents (a) and (b).

18.13When it first formulated the policy of asserting that the UK opt-in applied to proposals with Title V content but no Title V legal basis, the Government did so on the basis that it would assert the UK opt-in when there are Title V obligations, but not when the Title V content comprised political commitments or declaratory statements. In CEPA there are provisions drafted as commitments in the following areas: to co-operate in the effective functioning of institutions in the area of law enforcement, the fight against corruption and the administrations of justice (Article 12); to ensure full implementation of the EU-Armenia Agreement of 1 January 2014 on readmission and issuance of visas (Article 15); to cooperate in combating and preventing criminal and illegal activities, and enhance bilateral, regional and international cooperation among law-enforcement bodies (Article 16); to ensure a balanced and integrated approach towards preventing and combatting illicit drugs as well as new psychoactive substances (Article 17); to cooperate to prevent the use of the Parties’ financial and relevant non-financial systems for the laundering of the proceeds of criminal activities (Article 18).

The Minister’s Explanatory Memorandum

18.14In addition to the matters outlined above the Minister explains:

“Armenia views the UK as a role model for political and economic governance. We have a strong track record in providing high quality practical support since Armenian independence starting with DFID and now continuing through CSSF, the Global Britain Fund and commencing in FY 18/19 the Good Governance Fund. We are leading the way in supporting the government’s programme through initiatives to combat corruption, increase the capacity of parliament and support judicial and economic reforms. The Armenian Government has proactively approached us with requests for our assistance in areas (investment promotion, employment law, judicial reform) where they see the UK as a world leader. We are content that the Agreement is aligned with UK objectives.”

The Minister’s Letter of 25 October

18.15The Minister explains:

“The Council Decisions constitute the legal instruments for a) the signing and conclusion on behalf of the EU of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Armenia, of the other part and (b) the conclusion of that Agreement by the Commission on behalf of the European Atomic Energy Community (Euratom).

“An Explanatory Memorandum on the Council Decisions was submitted to you and the House of Lords committee for Parliamentary scrutiny on 5 October. The House of Lords EU select committee cleared the documents on 17 October at the Chairman’s sift.

“As the European Scrutiny Committee has not been re-constituted following the 2017 General Election, you will appreciate that I have to override your Committee’s scrutiny of the Council Decisions.”

Previous Committee Reports

None.


211 https://eeas.europa.eu/headquarters/headquarters-homepage_en/4489/EU%20and%20Armenia%20launch%20negotiations%20for%20a%20new%20agreement.

212 EU exclusive competence may only be exercised by the EU, but shared competence may be exercised by either the EU or the Member States. The most transparent approach to competence would be for these proposed decisions to identify the specific provisions of CEPA where the EU is exercising competence, failing which they could make clear that the EU is only exercising exclusive competence—an approach taken, for example, in decisions 2017/865 and 2017/866 concerning the signing and conclusion of the Istanbul convention on preventing and combatting violence against women and domestic violence, the subject of chapter [insert number] of this Report.

213 Article 285 of CEPA provides that “the European Union and the Republic of Armenia may provisionally apply this Agreement in whole or in part, in accordance with their respective internal procedures and legislation, as applicable.

214 For a recent example see the Minister’s letter to the previous Committee in respect of the Strategic Partnership Agreement with Canada reported by the previous Committee on 8 February 2017.




20 November 2017