Proposal for a Council Decision concerning the conclusion of consultations with the Republic of Madagascar under Article 96 of the ACP-EC Partnership Agreement
Date: 2010-04-26
Institutions: European Commission
Subjects: ACP countries, EU relations, Madagascar, cooperation agreement (EU), democracy, political cooperation, rule of law

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EUROPEAN COMMISSION 

Brussels, 26.4.2010 
COM(2010)181 final 

2010/0096 (NLE) 

Proposal for a 

COUNCIL DECISION 

concerning the conclusion of consultations with the Republic of Madagascar under 
Article 96 of the ACP-EC Partnership Agreement 

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EXPLANATORY MEMORANDUM 

In the wake of the forcible transfer of power that occurred in Madagascar on 17 March 2009, 
Mr. Andry Rajoelina was proclaimed President of the High Transitional Authority. 

Since this forcible transfer of power constitutes a flagrant violation of the essential elements 
set  out  in  Article  9  of  the  ACP-EC  Partnership  Agreement,  hereinafter  "the  Cotonou 
Agreement",  on  9  June  2009  the  Council  and  the  Commission  sent  a  letter  inviting 
Madagascar's  High  Transitional  Authority  to  consultations  in  accordance  with  Article  96  of 
that Agreement. 

At  the  opening  meeting  of  the  consultations  held  in  Brussels  on  6  July  2009,  the  European 
Union did not consider that any satisfactory proposals had been made by the Malagasy side. 

In a spirit of openness to dialogue and fully aware of the complexity of the political situation 
in Madagascar, the European Union has proposed that the consultations remain open in order 
to  encourage  Madagascar's  High  Transitional  Authority  to  continue  negotiations  with  the 
country's various political factions, under the aegis of the joint mediation team consisting of 
the African Union, the Southern African Development Community (SADC), the Organisation 
Internationale  de  la  Francophonie  and  the  United  Nations,  in  order  to  reach  a  consensual 
agreement that would allow a return to constitutional order. 

Under the aegis of this joint mediation team for Madagascar and, particularly, following the 
appointment of President Chissano at the SADC Summit in June 2009, the leaders of the four 
political factions  signed in Maputo on 9 August 2009 'the Maputo Political Agreement' and 
the 'Charter of the Transition', plus other agreements providing, in particular, for the creation 
of  institutions  to  manage  the  transition  process  and  organise  presidential  and  legislative 
elections  within  fifteen  months.  These  agreements,  which  were  to  be  implemented  over  the 
ensuing  thirty  days  with  appointments  to  key  posts  in  the  transition  institutions  made  by 
consensus,  have  been  supplemented  by  the  'Additional  Act  to  the  Malagasy  Charter  of  the 
Transition',  which  was  signed  by  the  leaders  of  the  four  political  factions  on  6  November 
2009 in Addis Ababa. 

Despite  the  many  efforts  of  the  joint  mediation  team  with  the  support  of  the  international 
community  over  the  last  few  months  and  despite  the  most  recent  ad  hoc  initiative  of  the 
President  of  the  AU  Commission,  the  political  factions  have  not  reached  agreement  on  the 
implementation of the transition process to which they agreed in Maputo and in Addis Ababa. 
Rather,  Mr.  Rajoelina  has  embarked  upon  a  unilateral  transition  process,  including  the 
appointment of a Prime Minister and a government and the organisation of elections for the 
month  of  May  2010,  which  runs  counter  to  both  the  spirit  and  the  letter  of  the  Maputo 
agreements and the Addis Ababa Charter. 

The  European  Union  considers  that  it  cannot  be  a  party  to  this  unilateral  transition  plan, 
which, moreover, cannot bring a lasting resolution to the current crisis that would restore the 
constitutional order in Madagascar.  

Accordingly, it is proposed: 

–  to  decide  to  close  consultations  with  Madagascar's  High  Transitional  Authority  in 
accordance with Articles 9 and 96 of the Cotonou Agreement and to inform the Malagasy 
authorities of a series of appropriate measures concerning Community aid for cooperation 

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with  Madagascar.  These  measures  will  not  affect  any  operations  that  might  be 
implemented  to  facilitate  a  return  to  constitutional  legality  or  humanitarian  measures  or 
measures that directly benefit the population, and they will preserve the legal certainty of 
contracts for the implementation of operations already under way. 

–  should the prospect arise of a positive outcome involving a consensual agreement between 
all  the  factions  in  Madagascar  on  a  transition  process,  the  European  Union  reserves  the 
right to adopt measures in support of this process. 

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2010/0096 (NLE) 

Proposal for a 

COUNCIL DECISION 

concerning the conclusion of consultations with the Republic of Madagascar under 
Article 96 of the ACP-EC Partnership Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 218(2) thereof, 

Having regard to the ACP-EC Partnership Agreement signed in Cotonou on 23 June 20001, as 
revised in Luxembourg on 25 June 20052 (hereinafter referred to as the 'Cotonou Agreement'), 
and in particular Article 96 thereof, 

Having regard to the Internal Agreement between representatives of the governments of the 
Member  States,  meeting  within  the  Council,  on  measures  to  be  taken  and  procedures  to  be 
followed  for  the  implementation  of  the  Cotonou  Agreement3,  and  in  particular  Article  3 
thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  essential  elements  referred  to  in  Article  9  of  the  Cotonou  Agreement  have  been 
violated. 

On  6  July  2009,  under  Article  96  of  the  Cotonou  Agreement,  consultations  were 
opened with Madagascar in the presence of representatives of the African, Caribbean 
and  Pacific  (ACP)  Group  of  States,  during  which  representatives  of  the  High 
Transitional Authority failed to present satisfactory proposals or undertakings. 

The  European  Union  proposed  that  consultations  remain  open  in  order  to  encourage 
Madagascar's High Transitional Authority to continue negotiations with the country's 
political  factions  under  the  aegis  of  the  joint  mediation  team  in  order  to  arrive  at  a 
consensual agreement. 

Under  the  aegis  of  the  joint  mediation  team  headed  by  President  Chissano, 
Madagascar's four political factions signed, in Maputo on 9 August 2009, agreements 
including  provisions  for  the  establishment  of  transition  institutions  to  manage  the 
transition  process  and  organise  presidential  and  legislative  elections  within  fifteen 

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OJ L 317, 15.12.2000, p. 3. 
OJ L 287, 28.10.2005, p. 4. 
OJ L 317, 15.12.2000, p. 376, as amended in OJ L 247, 9.9.2006, p. 48. 

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months. These agreements were supplemented by the 'Additional Act to the Malagasy 
Charter of the Transition', which was signed in Addis Ababa on 6 November 2009. 

(5) 

Since then, no compromise has been reached between the four political factions on the 
practical implementation of these agreements. The High Transitional Authority, which 
currently  holds  the  reins  of  power,  has,  however,  committed  itself  to  a  unilateral 
transition  process,  including  the  appointment  of  a  Prime  Minister  and  a  government 
and  the  organisation  of  elections  for  May  2010,  which  runs  counter  to  the  spirit  and 
the letter of the Maputo agreements and the Addis Ababa Charter.  

(6) 

Consequently,  the  consultations  opened  under  Article 96  of  the  Cotonou  Agreement 
should be closed and appropriate measures adopted.  

HAS DECIDED AS FOLLOWS: 

Consultations with the Republic of Madagascar under Article 96 of the Cotonou Agreement 
are hereby closed. 

Article 1 

The measures set out in the annexed letter are hereby adopted as appropriate measures under 
Article 96(2)(c) of the Cotonou Agreement. 

Article 2 

Article 3 

This  Decision  shall  enter  into  force  on  the  day  of  its  adoption.  It  shall  be  published  in  the 
Official Journal of the European Union. 

It shall remain in force for a period of 12 months. It shall be re-examined regularly. 

Done at Brussels, 

For the Council 
The President 

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ANNEX 

Draft letter 

Sir, 
The European Union attaches great importance to the essential elements set out in Article 9 of 
the  ACP-EC  Partnership  Agreement  signed  in  Cotonou  on  23 June  2000  and  revised  in 
Luxembourg  on  25  June  2005,  hereinafter  'the  Cotonou  Agreement',  concerning  respect  for 
human  rights,  democratic  principles  and  the  rule  of  law,  which  underpin  the  ACP-EC 
Partnership. 
The  EU  therefore  reacted  immediately  to  the  forcible  transfer  of  power  that  occurred  in 
Madagascar on 17 March 2009 and took the view that it constituted a flagrant violation of the 
essential elements set out in Article 9 of the Cotonou Agreement. 
Acting under Article 96 of the Agreement, the EU entered into a political dialogue with the 
ruling regime, which led to the opening of consultations with a view to assessing the situation 
and  possible  solutions  for  a  rapid  return  to  constitutional  order.  At  the  opening  meeting  of 
these consultations, which were held in Brussels on 6 July 2009, the European Union did not 
consider that any satisfactory proposals had been made by the Malagasy side. 

In a spirit of openness to dialogue and taking full account of the complexity of the political 
situation in Madagascar, the European Union proposed that the consultations remain open in 
order  to  encourage  Madagascar's  High  Transitional  Authority  to  continue  negotiations  with 
Madagascar's  political  factions  under  the  aegis  of  the  joint  mediation  team  made  up  of  the 
the  Organisation 
the  Southern  African  Development  Community, 
African  Union, 
Internationale de la Francophonie and the United Nations, in order to arrive at a consensus 
that would permit a return to constitutional order. 

Under  the  aegis  of  this  joint  mediation  team  for  Madagascar,  and  particularly  after  the 
appointment of President Chissano at the SADC Summit in June 2009, the leaders of the four 
political factions signed in Maputo on 9 August 2009 the Maputo Political Agreement and the 
Charter  of  the  Transition,  plus  other  agreements  providing,  in  particular,  for  the  creation  of 
the  institutions  to  manage  the  transition  process  and  organise  presidential  and  legislative 
elections over the next fifteen months. These agreements, which were to be implemented over 
the ensuing thirty days with appointments to key posts in the transition institutions made by 
consensus,  have  been  supplemented  by  the  Additional  Act  to  the  Malagasy  Charter  of  the 
Transition, which was signed by the leaders of the four political factions on 6 November 2009 
in Addis Ababa. 

Despite  the  many  efforts  of  the  joint  mediation  team  with  the  support  of  the  international 
community  over  the  last  few  months,  and  despite  the  most  recent  ad  hoc  initiative  of  the 
President of the AU Commission, the political factions have not been able to reach agreement 
on the implementation of the transition process to which they agreed in Maputo and in Addis 
Ababa. Rather, Mr. Rajoelina has embarked upon a unilateral transition process, including the 
appointment of a Prime Minister and a government and the organisation of elections for the 
month  of  May  2010,  which  runs  counter  to  both  the  spirit  and  the  letter  of  the  Maputo 
Agreements and the Addis Ababa Charter. 

In light of the foregoing, the European Union has decided to close the consultation period and 
has  decided  under  Article  96(2)(c)  of  the  Cotonou  Agreement  to  adopt  the  appropriate 
measures described below: 

–  Humanitarian and emergency aid is not affected. 

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–  Budgetary aid provided for in the national indicative programmes (NIP) of the 9th and 10th 

EDF shall be suspended. 

–  Projects  and  programmes  already  under  way  under  the  9th  EDF  shall  continue  to  be 
implemented except for activities and payments directly involving the government and its 
agencies. Modifications and addenda to current contracts shall be examined on a case-by-
case basis. New contracts shall be suspended. 

–  The  implementation  of  the  National  Indicative  Programme  (NIP)  -  10th  EDF  shall  be 

suspended. 

–  The European Commission may implement certain projects and programmes that directly 

benefit the population. 

–  Regional projects shall be evaluated on a case-by-case basis. 

–  The European Commission reserves the right to assume immediately, wholly or partially, 

the functions of National Authorising Officer for the EDF. 

–  The  European  Union  will  continue  to  monitor  closely  developments  in  Madagascar  and 
may give its support to, if applicable, the implementation of a consensual political solution 
to the crisis. 

–  The  political  dialogue  provided  for  in  Article 8  of  the  Cotonou  Agreement  shall  be 
maintained and conducted, as far as possible, in coordination with the International Contact 
Group on Madagascar. It may be stepped up if a consensus-based solution for a return to 
constitutional  order  is  reached.  The  European  Union  will  continue  to  monitor  closely 
developments in Madagascar and may give its support to, if applicable, the implementation 
of a consensual political solution to the crisis.  

These appropriate measures shall be adopted for an initial period of twelve months.  

The European Union reserves the right to examine and revise the measures mentioned above 
in order to take into consideration any developments, positive or negative, in the situation in 
Madagascar. 

We wish to assure you, Mr. Chairman, of our highest consideration. 
For the European Union 

The Commission 
José Manuel BARROSO 

The Council

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