C. LEGAL AND PROCEDURAL ISSUES
54. COMMISSION COMMUNICATION AND PROPOSAL FOR A DECISION
SETTING UP A CONSULTATION PROCEDURE CONCERNING EXTERNAL RELATIONS
IN THE FIELD OF MARITIME TRANSPORT (6869/97 and 6869/97 COR2)
Letter from Lord Geddes, Chairman of Sub-Committee
B, to Glenda Jackson CBE MP, Parliamentary Under Secretary of
State, Department of the Environment, Transport and the Regions
The above proposal was considered by Sub-Committee B at its
meeting this morning. The Sub-Committee, having noted your doubts
about what added value would be brought about by the proposed
new Decision" on consultation procedures, would welcome clarification
on a number of points that arise from your EM. In particular:
- What existing or proposed bilateral and multilateral
agreements involving the United Kingdom would be affected by the
proposal?
- To what extent is a Member State's freedom of action
curtailed in the event of a negative opinion from the Commission?
Would it be prohibited as a matter of law from entering into the
agreement in question?
- To what extent would the decision change the present
position and practice regarding the ability of Member States to
speak and participate in international fora on matters within
their competence?
- Are you content that this decision can be brought
forward on the basis of Article 84(2)? If so, what are the implications
for other transport sectors, such as aviation?
The Committee also noted that, according to a recent Commons
Written Answer, there was a general debate" on the Commission's
Communication at the last Transport Council on 17-18 June. We
would be interested to know the outcome of that debate and in
particular, the attitude of other Member States to the proposed
Council Decision.
We shall retain the documents under scrutiny pending your
reply.
10 July 1997
Letter from Glenda Jackson CBE MP, Parliamentary Under
Secretary of State, Department of the Environment, Transport and
the Regions, to Lord Geddes, Chairman of Sub-Committee B
Thank you for your letter of 10th July, asking for clarification
on a number of points arising from my EM of 23 May on the Commission
Communication on external relations in maritime transport, and
for information on the outcome of the general debate on this matter
at the Transport Council on 17-18 June.
I am responding to your points in the order set out in your
letter.
1. The proposal would not affect existing UK bilateral maritime
transport agreements, and there are currently no proposals for
any new agreements. The UK's general approach on bilateral maritime
agreements has been not to enter into them unless there are exceptional
circumstances resulting in serious problems in maritime relations
(and hence we have only three agreements - with South Korea, China,
and one with Russia dating from 1968). This has been based on
the view that the best way to ensure the continuation of existing
predominantly open international shipping trades is through broad
multilateral consensus, rather than on the basis of a proliferation
of bilateral agreements. The UK has not entered into multilateral
maritime agreements outside of international fora nor are there
currently any plans to do so.
2. The proposed Decision provides that a bilateral maritime
agreement cannot be signed if the Commission raises objections,
and that the Member State shall re-negotiate the agreement in
accordance with the Commission's views. This would prevent the
Member State acting if the Commission objected. Accordingly the
legal position seems to be that if a Member State were to sign
an agreement despite Commission objections, the State would be
in breach of EC law by virtue of that alone irrespective of whether
the agreement did in fact contravene EC law as the Commission
claimed.
3. Under the proposed Decision, Member States would be represented
at international organisations by the Presidency where competence
rests with Member States, rather than member States speaking for
themselves. This has already happened under existing arrangements
in some instances, where a co-ordinated approach was felt necessary
or desirable. This was, for instance, the approach adopted in
the maritime talks at the World Trade Organisation prior to their
temporary suspension until 2000. The existing arrangements have
tended to work well, so the case for formalisation of them does
not seem conclusive.
The proposed Decision does not seem to envisage (and is silent
on) the scenario where a Member State might wish to unilaterally
sign up to an agreement inside an international organisation,
contrary to the rest of the member States and the Commission.
Given that the existing arrangements for co-ordinated action have
worked well, it sees unlikely that such a difficult position would
in practice arise. Were it to do so, I am advised that the legal
position would be unclear: if could be argued that the Decision's
silence on this means that the pre-existing position is unaffected
and unilateral action is allowed for; conversely it could be argued
that since the proposed Decision appears to remove the ability
of Member States to speak separately from the Community in international
organisations, it implicitly removes their ability acting alone
to sign agreements in such organisations. Even under the current
arrangements for maritime transport, if such a scenario were to
arise there would likely to be scope for legal dispute on precisely
which aspects of the agreement were with the Member State's competence
and which within the Communities'.
4. The advice I have received is that this proposal is probably
within Article 84(2). There are implications for other transport
sectors. Any similar proposals would have to be judged on the
appropriateness of the proposal to that sector. In the case of
aviation, relations with Member States and third countries are
typically governed by bilateral agreements. In some cases, Council
has authorised the Commission to negotiate collectively on behalf
of Member States, but in other cases it has declined to do so.
During the debate at the 17-18 June Transport Council, member
States generally subscribed to the broad objectives of securing
liberalisation of international shipping and non-discriminative,
fair, competitive operating conditions for EU shipping in third
countries. They considered that the Community probably has available
sufficient legal, political and commercial powers for pursuing
its shipping objectives (though there remains scope for discussion
as to whether further measures might be desirable, and if so whether
available powers are being used as effectively as possible). They
were generally content with the present legislation, and saw no
case for changing the existing arrangements for consultation on
external relations issues.
17 July 1997
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