UNNUMBERED DOCUMENT
EXPLANATORY MEMORANDUM ON A EUROPEAN UNION DOCUMENT
Proposal for a Council Decision on the conclusion of the Framework Agreement
between the European Union and its Member States, of the one part, and the Republic
of Korea, of the other part, with the exception of matters related to readmission
Proposal for a Council Decision on the conclusion of the Framework Agreement
between the European Union and its Member States, of the one part, and the Republic
of Korea, of the other part, as regards matters related to readmission
Submitted by the Foreign and Commonwealth Office on 23 October 2013.
SUBJECT MATTER
1.
The draft Council Decisions will conclude the Framework Agreement on
Comprehensive Partnership and cooperation between the European Union (EU) and the
Republic of Korea (RoK). This is an updated version of the Council Decision, which
was deposited in Parliament on 1 August 2013, and upon which we submitted the
Explanatory Memorandum of 28 August 2013.
2.
The Agreement will provide a framework to consolidate and strengthen cooperation
between the European Union and its Member States (MS) and the RoK in a range of
sectors of mutual interest. This includes promoting democratic principles and respect
for human rights; countering the proliferation of weapons of mass destruction;
combating illicit trade of small arms and light weapons; taking measures against the
most serious crimes of concern to the international community; and combating
terrorism.
3.
The Agreement will allow for further engagement and cooperation between the Parties
in regional and international organisations; on trade and investment; economic policy
dialogue; business cooperation; and further engagement and cooperation on fields
including taxation, customs, competition policy, the information society, science and
technology, energy, transport, maritime transport policy, consumer policy, health,
employment and social affairs, environment and natural resources, climate change,
agriculture, rural development and forestry, marine and fisheries.
4.
The Agreement was negotiated in parallel with the EU-RoK Free Trade Agreement
(FTA), which was signed on 6 October 2010, but it has taken time for Member States,
including the UK, to complete domestic ratification. The Framework Agreement forms
the contractual basis for the EU’s relationship with Korea. This was designed to satisfy
the long-standing EU policy that all FTAs must either contain political clauses
(commitments in the fields of human rights and non-proliferation), or be linked to
Partnership and Cooperation Agreements (PCA) or updated Framework Agreements
containing such provisions. Following domestic ratification by EU Member States,
these Council Decisions are the final step towards the Agreement entering into force.
5.
The revised Council proposal splits the decision on conclusion into two, with one
decision covering the Justice and Home Affairs (JHA) content on the readmission of
nationals illegally present in another State, and the other covering the remaining
content. The legal base for the Council Decision on readmission is Article 79(3) of the
Treaty on the Functioning of the European Union (TFEU) (border checks, asylum and
immigration).
This is consistent with the approach taken in the EU-Indonesia PCA where two Council
Decisions were drafted to cover, respectively, Title V and non-Title V competences.
The Title V competence is Art 79(3) TFEU, relating to a readmission provision.
6.
In line with the approach we took with the Indonesia PCA, we are minded to support
the inclusion of a separate JHA legal base. However, we would not opt-into these
elements of the agreement and are minded to assume the obligations in our own right.
This would mean the UK is bound by the readmission commitment, but not as part of
the EU. This is our preferred approach because the readmission provision falls in an
area of unexercised shared competence, where either the EU or Member States could
act. We take the view that the EU should not bind the UK by its exercise of such a
shared competence. We are able to take this approach due to the mixed competence
nature of the agreement and because it is unclear from the text whether the EU or the
Member States (or both) would be entering into the commitments on readmission.
7.
The proposed non-JHA Council Decision has the following legal bases: Articles 91 and
100 TFEU (transport), Article 191(4) TFEU (environment), Article 207 TFEU
(common commercial policy) and Article 212 TFEU (economic, financial and technical
cooperation). The UK is currently arguing that the transport provisions should be solely
undertaken by Member States and is seeking their removal from the Council Decision.
However, if this is not possible we will make a UK statement asserting the limits to the
exercise of EU competence in this area.
8.
This Council Decision is likely to be tabled for adoption at the Foreign Affairs Council
on 18 November 2013. As stated in the Explanatory Memorandum of 28 August, the
Decision covers JHA obligations and enhanced scrutiny timings apply. The last
language version of this draft Council Decision was published on 29 July; as such, the
Government’s opt-in decision will need to be taken by 28 October 2013.
SCRUTINY HISTORY
9.
An Explanatory Memorandum on a Proposal for a Council Decision on the signing of
the European Community and provisional application of the Framework Agreement
between the European Community and its Member States, of the one part, and the
Republic of Korea, of the other part was submitted for Parliamentary Scrutiny on 7
December 2009. The House of Commons European Scrutiny Committee cleared the
document as “politically important” on 15 December 2009 (ESC 31167, 4th Report,
Session 2009/10). The House of Lords Select Committee on the European Union
cleared the document on 10 December 2009 after referral to Sub-Committee C.
10.
On 30 November 2012 the UK notified the European Council and the Republic of
Korea that we had completed domestic ratification. The first draft of the Council
Decision on the conclusion of the EU-RoK Framework agreement was deposited in
Parliament on 1 August 2013. An Explanatory Memorandum was submitted on 28
August 2013, which highlighted the JHA content in the agreement. The House of Lords
Select Committee on the European Union cleared the document on 3 September 2013 at
the Chairman’s sift.
The House of Commons European Scrutiny Committee assessed the document to be
“legally and politically important” at its meeting on 11 September 2013 (ESC 35238,
14th Report, Session 2013/14) and is holding the Explanatory Memorandum under
scrutiny pending clarification on which additional legal bases are being sought. A
revised Council Decision was deposited in Parliament on 10 October 2013.
MINISTERIAL RESPONSIBILITY
11.
The Secretary of State for Foreign and Commonwealth Affairs is the Minister with
overall responsibility for UK policy on the EU’s Common Foreign and Security Policy.
Given the broad content of the Framework Agreement the Secretaries of State at the
Home Office, HMT, BIS, Ministry of Justice, the Departments for Transport,
Education, International Development, Health, Energy and Climate Change, and
Environment and Rural Affairs will also have an interest.
INTEREST OF THE DEVOLVED ADMINISTRATIONS
12.
The UK’s Foreign Affairs policy is a reserved matter under the UK’s devolution
settlements and no devolved administration interests arise. The devolved
administrations have therefore not been consulted in the preparation of this EM.
POLICY IMPLICATIONS
13.
The Framework Agreement is key to strengthening the EU’s relationship with the RoK
- an emerging regional power with a highly developed economy and a high rate of
sustainable long-term growth. The RoK matters for our prosperity and security
interests. It is the fourth largest economy in Asia - highly compatible with UK export
strengths and with the potential for further growth. Korea shares many of our values
and is a natural partner on foreign policy - especially as it is currently a non-permanent
member of the UN Security Council. We have a substantial programme of work to
deepen cooperation in 2013, for which President Park’s State Visit to the UK in
November 2013 will be the centrepiece. This Framework Agreement will be an
opportunity to develop relationships across a range of mutually beneficial sectors and
will also be an opportunity to demonstrate the UK’s commitment to deepening our
trade and foreign policy links, and recognise the progress the RoK has made in many
areas, including on economic strength and democratisation.
SUBSIDIARITY
14.
The Framework Agreement is a mixed agreement which will be concluded by both the
EU and its Member States.
15.
The elements of the Agreement which fall within the exclusive competence of the EU
can only be concluded by the EU.
LEGAL AND PROCEDURAL ISSUES
16.
Legal Base:
i)
Council Decision on readmission elements of the agreement: Article 218
(6)(a) TFEU; Article 79(3) TFEU (border checks, asylum and immigration);
ii)
Council Decision on matters other than readmissions: Article 218(6) (a)
TFEU; Articles 91 and 100 TFEU (transport), Article 191(4) TFEU
(environment), Article 207 TFEU (common commercial policy) and Article
212 TFEU (economic, financial and technical cooperation).
17.
Voting Procedures: Qualified Majority Voting.
18.
Impact on UK Law: As this is a mixed agreement it has been specified as an EU Treaty
in accordance with Article 1(3) of the European Communities Act, 1972. No additional
implementation measures are envisaged.
19.
Application to Gibraltar: Yes.
20.
Fundamental rights analysis: No fundamental rights issues apply.
APPLICATION TO THE EUROPEAN ECONOMIC AREA
21.
None.
REGULATORY IMPACT ASSESSMENT
22.
Not applicable.
FINANCIAL IMPLICATIONS
23.
None for the UK.
TIMETABLE
24.
The last language version of this draft Council Decision was published on 29 July
2013; the Government’s opt-in decision will need to be taken by 28 October 2013. As
per the usual enhanced JHA scrutiny procedures, the Government committed not to
make an opt-in decision until the Parliamentary Scrutiny Committees had eight weeks
from the date of publication of the last language version, on this occasion 29 July 2013,
to opine. We submitted an Explanatory Memorandum on 28 August 2013 alerting
Parliament that the proposed agreement contained JHA obligations and we would be
seeking additional legal bases. Unfortunately, due to the EU summer break, there was
little progress on this agreement following the publication of the first draft of the
Council Decision. The revised Council Decision was published on 10 October 2013.
We appreciate the late publication of this document has meant there is little time for
Parliament to further consider JHA issues in advance of the UK’s opt in window
expiring on 28 October 2013.
25.
The Council Secretariat is likely to table this draft Decision for adoption at the Foreign
Affairs Council on 18 November 2013. Before the Framework Agreement is concluded,
negotiations will continue.
OTHER OBSERVATIONS
26.
None.
The Rt Hon David Lidington MP
Minister for Europe
Foreign and Commonwealth Office