Amended proposal for a COUNCIL DECISION on the position to be adopted on behalf of the European Union in the Partnership Council established by 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, as regards the adoption of decisions on the rules of procedure of the Partnership Council, the Partnership Committee and those of specialised subcommittees or any other body
Date: 2019-07-19
Institutions: European Commission, European External Action Service
Subjects: Armenia, EAEC, Eastern Partnership, cooperation agreement (EU), cooperation policy, joint body (EU), rules of procedure

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   EUROPEAN COMMISSION  Brussels, 19.7.2019  COM(2019) 345 final 2018/0395 (NLE)  Amended proposal for a COUNCIL DECISION on the position to be adopted on behalf of the European Union in the Partnership Council established by 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, as regards the adoption of decisions on the rules of procedure of the Partnership Council, the Partnership Committee and those of specialised subcommittees or any other body  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns a decision on the position to be adopted on the Union’s behalf in the 
Partnership  Council  established  by  the  EU-  Armenia  Comprehensive  and  Enhanced 
Partnership  Agreement  ('CEPA'  or  'the  Agreement'),  in  connection  with  the  adoption  of  the 
rules  of  procedure  of  the  Partnership  Council  and  of  the  Partnership  Committee  and  the 
establishment of sub-committees and other bodies. 

2. 

CONTEXT OF THE PROPOSAL 

2.1.  

The EU-Armenia Comprehensive and Enhanced Partnership Agreement 

The  CEPA  aims  to  enhance  the  comprehensive  political  and  economic  partnership  and 
cooperation  between  the  EU  and  Armenia,  based  on  common  values  and  close  links, 
including by increasing the participation of the Republic of Armenia in policies, programmes 
and  agencies  of  the  European  Union.  It  creates  a  strong  enabling  framework  for  enhanced 
political dialogue on all areas of mutual interest, promoting the development of close political 
relations. 

The CEPA sets out general principles and objectives for EU-Armenia relations and creates an 
institutional structure for the implementation of the Agreement. 

It was applied provisionally from 1 June 2018. 

2.2.  

The Partnership Council 

The  Partnership  Council  is  established  by  Article  362  of  the  Agreement.  It  supervises  and 
regularly reviews the implementation of the Agreement.  

The  Partnership  Council  consists  of  representatives  of  the  Parties  at  ministerial  level  and 
meets  at  regular  intervals,  at  least  once  a  year,  and  when  circumstances  require.  The 
Partnership Council may meet in any configuration, by mutual agreement. It adopts its own 
rules of procedure. 

The Partnership Council takes decisions within the scope of the Agreement in cases provided 
for  therein.  The  decisions  are  binding  upon  the  Parties,  which  are  to  take  appropriate 
measures  to  implement  them.  The  Partnership  Council  may  also  make  recommendations.  It 
adopts  its  decisions  and  recommendations  by  agreement  between  the  Parties,  subject  to  the 
completion of the Parties' respective internal procedures.  

2.3.  

The Partnership Committee 

The  Partnership  Committee  is  established  by  Article  363  of  the  Agreement.  It  assists  the 
Partnership Council in the performance of its duties and functions, and prepares the meetings 
of the Partnership Council.   

The Partnership Committee has the power to adopt decisions in areas in which the Partnership 
Council  has  delegated  powers  to  it  in  the  cases  provided  for  in  the  Agreement.  Those 
decisions are binding upon the Parties, which are to take appropriate measures to implement 
them.  The  Partnership  Committee  adopts  its  decisions  by  agreement  between  the  Parties, 
subject to the completion of the Parties' respective internal procedures.  

It  is  composed  of  representatives  of  the  Parties,  in  principle  at  senior  official  level.  It  is 
chaired alternately by a representative of the EU or of the Republic of Armenia. It normally 
meets at least once a year. Its rules of procedure are adopted by the Partnership Council. 

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2.4.  

Envisaged act of the Partnership Council 

The Partnership Council is to adopt a decision on its own rules of procedure and those of the 
Partnership Committee, as well as on the establishment of sub-committees and other bodies. 

The purpose of the envisaged act is to adopt, in accordance with Articles 362(4) and 363(4) of 
the Agreement, rules of procedure governing the functioning of the Partnership Council and 
of the Partnership Committee, and to establish sub-committees and other bodies to allow for 
implementation of the CEPA. 

3. 

POSITION TO BE ADOPTED ON BEHALF OF THE UNION 

The position to be adopted on behalf of the Union should enable the adoption of the rules of 
procedure of the Partnership Council and of the Partnership Committee. 

4. 

LEGAL BASIS 

4.1.  

Procedural legal basis 

 4.1.1.   Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement’. 

The notion of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’1. 

4.1.2.  Application to the present case 

The Partnership Council and the Partnership Committee are bodies established by the CEPA. 

The  acts  set  out  in  the  annex  to  this  Decision  constitute  acts  having  legal  effects,  because 
Article 362(6) of the Agreement empowers the Partnership Council to adopt decisions that are 
binding on the parties.  The acts  do not  supplement  or amend the institutional  framework of 
the Agreement. 

Therefore, the procedural legal basis for the proposed Decision is Article 218(9) TFEU. 

4.2. 

 Substantive legal basis  

4.2.1 Reasons for the amended proposal 

On  29  November  2018,  the  High  Representative  and  the  Commission  adopted  the  Joint 
proposal  for  a  Council  Decision  on  the  position  to  be  adopted  on  behalf  of  the  European 
Union in the Partnership Council established by the CEPA 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,  as regards the adoption of decisions  on the rules of 
procedure  of  the  Partnership  Council,  the  Partnership  Committee  and  those  of  specialised 
subcommittees  or  any  other  body  ('the  Joint  Proposal').  The  Joint  Proposal  was  based  on 
Article 37  TEU  and  Articles  91,  100(2),  207  and  209  TFEU  in  conjunction  with  Article 
218(9)  TFEU.  In  light  of  the  Court  ruling  in  case  C-244/17  Commission  v  Council 
(Kazakhstan), which most recently applied the centre of gravity test for the determination of 

1 

Case C-399/12 Germany v Council (OIV), ECLI: EU: C: 2014:2258, paragraphs 61-64. 

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the  legal  basis  of  Union  acts  on  international  agreements,  and  for  the  reasons  explained 
below,  the  legal  bases  of  the  proposed  Decision  should  be  amended  and  should  include 
Articles 91, 100(2), 207 and 209 TFEU in conjunction with Article 218(9) TFEU. 

4.2.2. Principles  

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the  objective  and  content  of  the  envisaged  act  in  respect  of  which  a  position  is  adopted  on 
behalf of the Union. If the envisaged act pursues two aims or has two components and if one 
of  those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component.  

With regard to an envisaged act that simultaneously pursues a number of objectives, or that 
has  several  components,  which  are  inseparably  linked  without  one  being  incidental  to  the 
other,  the  substantive  legal  basis  of  a  decision  under  Article  218(9)  TFEU  will  have  to 
include, exceptionally, the various corresponding legal basis.  

It is equally noted that it is not the procedure that defines the legal basis of a measure but the 
legal basis of a measure that determines the procedure to be followed in adopting it. 

4.2.3. Application to the present case 

The  Rules  of  procedure  of  the  Partnership  Council  and  Partnership  Committee  concern  the 
general functioning of a body set up on the basis of an agreement. Therefore, the field within 
which  the  envisaged  decision  falls  must  be  determined  in  the  light  of  the  Agreement  as  a 
whole . 

The  main  objective  and  content  of  the  envisaged  act  relate  to  development  cooperation 
(Article  209  TFEU)  and  trade  (Article  207  TFEU).  In  addition,  given  that  some  provisions 
related to trade in transport services in the Trade Part of the CEPA are not covered by Article 
207, Articles 91, 100(2) TFEU should also be added. 

The  limited  number  of  CFSP  provisions  are  not  such  as  to  constitute  a  distinct  aim  or 
component. Rather, they are incidental to the CEPA predominant component. Therefore, they 
do not require a separate legal basis. This is the case despite the fact that the Council Decision 
on  the  signing  of  the  Agreement  was  based  also  on  Article  37  TEU  (see  Council  Decision 
2018/104 of 20 November 2017). The assessment has changed in light of the Court ruling in 
case C-244/17 Commission v Council (Kazakhstan). 

It is to be noted that the number and nature of the CFSP provisions in CEPA is comparable to 
those of the Agreement with Kazakhstan and of other agreements on which decisions based 
on non-CFSP legal bases were adopted after the Kazakhstan judgment. 

5. 

CONCLUSION 

In the light of the above, the legal basis of the proposed Decision should be  Article 37 TEU 
and Articles 91, 100(2), 207 and 209 TFEU in conjunction with Article 218(9) TFEU and the 
proposal must be made by the Commission alone. The High Representative of the Union for 
Foreign Affairs and Security Policy has been consulted and agrees on this.   

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2018/0395 (NLE) 

Amended proposal for a 

COUNCIL DECISION 

on the position to be adopted on behalf of the European Union in the Partnership 
Council established by 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, as 
regards the adoption of decisions on the rules of procedure of the Partnership Council, 
the Partnership Committee and those of specialised subcommittees or any other body 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Article 37 thereof, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 91, 100(2), 207 and 209 in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission and the High Representative of 
the Union for Foreign Affairs and Security Policy, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The  Comprehensive  and  Enhanced  Partnership  Agreement  between  the  European 
Union  and  its  Member  States,  of  the  one  part,  and  the  Republic  of  Armenia,  of  the 
other  part  (‘the  Agreement’)2,  was  signed  in  Brussels  on  24  November  2017  and 
applied provisionally from 1 June 2018. 

Articles  362  and  363  of  the  Agreement  establish  a  Partnership  Council  and  a 
Partnership Committee to facilitate the implementation of the Agreement. 

Pursuant to Article 362(4) of the Agreement, the Partnership Council is to establish its 
own  rules  of  procedure  and  pursuant  to  Article  363(4)  of  the  Agreement,  the 
Partnership Council determines in its rules of procedure the duties and functioning of 
the Partnership Committee.   

In  order  to  ensure  the  effective  implementation  of  the  Agreement,  the  rules  of 
procedure  of  the  Partnership  Council  and  of  the  Partnership  Committee  should  be 
adopted. 

Article 364 (2) of the CEPA provides that the Partnership Council may decide to set 
up any  subcommittees and other bodies in specific areas that can assist it in carrying 
out  its  duties.  It  further  provides  that  the  Partnership  Council  shall,  in  its  rules  of 
procedure,  determine  the  composition  and  the  duties  of  such  committees  and  bodies 
and how they shall function, 

The Partnership Council, during  its [...] session/meeting  on [date],  is  to  adopt the 
rules of procedure of the Partnership Council, the Partnership Committee and those of 
specialised subcommittees or any other body.. 

2 

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1532441113638&uri=CELEX:22018A0126(01) 

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(7) 

(8) 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Partnership  Council,  as  its  decisions  on  the  rules  of  procedure  of  the  Partnership 
Council,  the  Partnership  Committee  and  those  of  specialised  subcommittees  or  any 
other body, and on the establishment of subcommittees will be binding on the Union. 

The  Union’s  position  in  the  Partnership  Council  should  therefore  be  based  on  the 
attached  draft  texts  of  the  rules  of  procedure  of  the  Partnership  Council  and  of  the 
Partnership Committee  its annex. 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be adopted on the Union’s behalf in the EU-Armenia Partnership Council as 
regards  the  rules  of  procedure  of  the  Partnership  Council,  the  Partnership  Committee  and 
those  of  specialised  subcommittees,  including  for  the  subcommittee  on  Geographical 
Indication3or  any  other  body,  and  as  regards  the  establishment  of  subcommittees  shall  be 
based  on  the  draft  acts  of  the  Partnership  Council  attached  to  this  Decision.  Minor 
amendments to the draft Decision may be accepted without further decision by the Council. 

This Decision is addressed to the Commission and the High Representative of the Union for 
Foreign Affairs and Security Policy. 

Article 2 

This Decision shall enter into force on [...]. 

Done at Brussels, 

Article 3 

For the Council 
The President 

3 

The Geographical Indications Sub-Committee created by Article 240 of the agreement is responsible for 
adopting its own rules of procedure. 

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