Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the ACP-EU Committee of Ambassadors regarding the amendment of Decision No 3/2016 of the ACP-EU Committee of Ambassadors on the Centre for the Development of Enterprise (CDE)
Date: 2021-03-30
Institutions: Directorate-General for International Partnerships, European Commission
Subjects: ACP countries, Centre for the Development of Enterprise, cooperation agreement (EU), revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 30.3.2021  COM(2021) 150 final 2021/0074 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the ACP-EU Committee of Ambassadors regarding the amendment of Decision No 3/2016 of the ACP-EU Committee of Ambassadors on the Centre for the Development of Enterprise (CDE)  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in  the ACP-EU Committee of Ambassadors in  connection with  the  envisaged adoption of a 
decision amending ACP-EU Committee of Ambassadors Decision No 3/2016, with the aim to 
allow  the  Curator  to  ensure  the  implementation  of    the  passive  phase  of  the  Centre  for 
Development of Enterprise (CDE) until the CDE has settled all its liabilities and realised all 
its assets. 

2. 

CONTEXT OF THE PROPOSAL 

The Cotonou Partnership Agreement 

2.1. 
Since 2000, the Cotonou Partnership Agreement (CPA)1 has been the framework for the EU’s 
relations with 79 ACP countries. The Agreement was concluded for a period of 20 years, from 
1 March 2000 until 29 February 2020. It was subsequently revised in 2005 and 2010.   

On 4 December 2020, the application of the provisions of the Cotonou Partnership Agreement 
was,  for  the  second  time,  extended  through  a  decision  of  the  ACP-EU  Committee  of 
Ambassadors on transitional measures, until 30 November 2021 or until entry into force of the 
new Agreement or until the provisional application between the Union and the ACP States of 
the new Agreement, whichever comes first2. 

2.2. 

The ACP-EU Committee of Ambassadors 

The Committee of Ambassadors is established pursuant to Article 16 CPA. It comprises, on 
the  one  hand,  the  permanent  representative  of  each  Member  State  to  the  EU  and  a 
representative of the Commission and, on the other, the head of mission of each ACP State to 
the EU.  

The Committee of Ambassadors assists the Council of Ministers in the fulfilment of its tasks 
and carries out any mandate entrusted to it by the Council (Article 16(2) CPA). In that regard, 
the  Council  of  Ministers  may  delegate  powers  to  the  Committee  of  Ambassadors  (Article 
15(4)  CPA).  It  also  monitors  the  implementation  of  the  Agreement  and  progress  towards 
achieving the objectives set therein.   
According to Article 1 of the Rules of Procedure of the Committee of Ambassadors3, it shall 
meet regularly, in particular to prepare meetings of the Council of Ministers and, whenever it 
proves necessary, at the request of one of the parties. Article 5 of the Rules of Procedure of 
the Committee of Ambassadors also provides for a written procedure. 

The envisaged act of the ACP-EU Committee of Ambassadors 

2.3. 
At its 39th session held on 19 and 20 June 2014 in Nairobi, the ACP-EU Council of Ministers 
agreed,  in  a  Joint  Declaration,  to  proceed  with  the  orderly  closing  of  the  CDE,  a  joint 

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Agreement  amending  for  the  second  time  the  Partnership  Agreement  between  the  Members  of  the 
African, Caribbean and Pacific Group of States, of the one part, and the European Community and its 
Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, 15.12.2000, p. 3; 
OJ L 287, 28.10.2005, p. 4; OJ L 287, 4.11.2010, p. 3 ) 
Decision  No  2/2020  of  the  ACP-EU  Committee  of  Ambassadors  of  4  December  2020  to  amend 
Decision  No  3/2019  of  the  ACP-EU  Committee  of  Ambassadors  to  adopt  transitional  measures 
pursuant to Article 95(4) of the ACP-EU Partnership Agreement (OJ 2020 L 420, 14.12.2020, p. 32). 
Decision No 3/2005 of the ACP-EU Council of Ministers of 8 March 2005 concerning the adoption of 
the Rules of Procedure of the ACP-EC Committee of Ambassadors (OJ L95, 14.04.2005, p.51). 

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technical  body  of  the  ACP-EU  Partnership  Agreement  established  in  its  Annex  III.  In  this 
Joint Declaration, the Council of Ministers, pursuant to Article 15(4) CPA, delegated powers 
to  the  ACP-EU  Committee  of  Ambassadors  to  take  the  necessary  decisions,  ‘including  the 
relevant amendment to Annex III of the Cotonou Agreement’4. 
The  ACP-EU  Committee  of  Ambassadors,  in  its  Decision  No  4/20145,  authorised  the  CDE 
Executive  Board  to  take  all  appropriate  measures  to  prepare  for  the  closure  of  the  CDE. 
Subsequently, the CDE Executive Board signed a contract with a Curator until 31 December 
2016. 

Pursuant to ACP-EU Committee of Ambassadors Decision No 3/2016 (hereinafter referred to 
as the ‘Decision No 3/2016’)6 , the closure phase has been followed by a ‘passive phase’ in 
which the CDE solely exists for the purposes of its liquidation.  

Decision  No  3/2016  has  introduced  the  necessary  changes  in  Annex  III  to  the  ACP-EU 
Partnership  Agreement  and  constitutes  the  new  legal  framework  of  the  CDE  as  from 
1 January 2017 (Article 3(1) Decision No 3/2016). 

The  passive  phase,  managed  by  a  Curator,  comprises  administrative  tasks,  amongst  other 
things,  keeping  the  archives  of  the  CDE,  replying  to  any  administrative  formality,  or 
managing residual  litigations  that could  not have been settled during the  closure phase. The 
passive phase started on the day after the closure phase, namely on 1 January 2017. According 
to  the  recitals  of  Decision  No  3/2016,  it  was  the  ACP-EU  Committee  of  Ambassadors’ 
intention  that  the  passive  phase  should  end  after  a  period  of  4  years  or  when  the  CDE  has 
settled all its liabilities and realised all its assets, whichever happens earlier. 

According to Article 2(1) Decision No 3/2016, before the end of the closure phase, namely 31 
December  2016,  the  European  Commission  should  contract  a  Curator  to  ensure  the 
implementation  of  the  passive  phase  as  from  1  January  2017  for  a  period  of  four  years,  or 
until the CDE has settled all its liabilities and realised all its assets, whichever happens earlier. 
The  Commission  subsequently  signed  a  service  contract  with  the  Curator  on  21  December 
2016 for an initial implementing period of four years. 

In the last months of 2020, it appeared that the CDE would not have settled all its liabilities 
and realised all its assets by 31 December 2020. 

Therefore, the ACP-EU Committee of Ambassadors is to adopt an amendment to Article 2(1) 
of Decision No 3/2016, in view of allowing the Curator to ensure the implementation of the 
CDE’s passive phase until the CDE has settled all its liabilities and realised all its assets. This 
will ensure the proper closure of the implementation of the passive phase under the Curator’s 
management.  The  members  of  the  Committee  of  Ambassadors  of  the  Organisation  of  ACP 
States signalled their agreement to such an amendment in January 2021. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The Commission proposes that the Union agree to the envisaged amendment of  Article 2(1) 
Decision  No  3/2016.  The  proposed  position  of  the  Union  is  to  be  taken  at  a  session  of  the 
ACP-EU Committee of Ambassadors or by written procedure, as appropriate. 

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Joint ACP-EU Declaration on the Centre for Development of Enterprise (CDE), 3 July 2014, ACP-UE 
2120/14. 
Decision  No  4/2014  of  the  ACP-EU  Committee  of  Ambassadors  of  23  October  2014  regarding  the 
mandate to be given to the Executive Board of the Centre for the Development of Enterprise (CDE) (OJ 
L 330, 15.11.2014, p. 61). 
Decision No 3/2016 of the ACP-EU Committee of Ambassadors regarding the revision of Annex III to 
the ACP-EU Partnership Agreement (OJ L 192, 16.7.2016 p. 77). 

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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 concept 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’7. 

4.1.2.  Application to the present case 

The  ACP-EU  Committee  of  Ambassadors  is  a  body  set  up  by  an  agreement,  namely  the 
Cotonou Partnership Agreement. 

The act which the ACP-EU Committee of Ambassadors is called upon to adopt constitutes an 
act  having  legal  effects.  The  envisaged  act  will  be  binding  under  international  law  in 
accordance  with  Articles  15  and  16  CPA.  Pursuant  to  Article  15(3)  CPA,  the  Council  of 
Ministers  may  take  decisions  that  are  binding  on  the  Parties  of  the  Agreement,  while  in 
accordance  with  Article  15(4)  CPA,  the  Council  of  Ministers  may  delegate  powers  to  the 
Committee of Ambassadors. The Committee of Ambassadors is set up under Article 16 of the 
CPA.  Pursuant  to  Article  16(2)  CPA,  the  Committee  of  Ambassadors  can  adopt  or  amend 
decisions  binding  on  the  parties  within  the  mandate  conferred  on  it  by  the  Council  of 
Ministers. 

The  European  Union  is  a  contracting  party  alongside  its  Member  States  to  the  Cotonou 
Partnership Agreement and will thus be bound by the envisaged decision of the Committee of 
Ambassadors. 

The  envisaged  act  does  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.  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 taken on the 
Union's behalf.  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. 

4.2.2.  Application to the present case 

The substantive legal basis of the Council decision should be the same as that for the adoption 
of Council Decision (EU) 2016/1098 of 4 July 2016 on the position to be taken on behalf of 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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the European Union within the ACP-EU Committee of Ambassadors regarding the revision of 
Annex III to the ACP-EU Partnership Agreement8, that is Article 209(2) TFEU. 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 209(2) TFEU, in conjunction with 
Article 218(9) TFEU. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As the act of the ACP-EU Committee of Ambassadors will amend Decision No 3/2016 of the 
ACP-EU Committee of Ambassadors, it is appropriate to publish it in the Official Journal of 
the European Union after its adoption. 

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OJ L 182, 7.7.2016, p. 39–43. 

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2021/0074 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union within the ACP-EU 
Committee of Ambassadors regarding the amendment of Decision No 3/2016 of the 
ACP-EU Committee of Ambassadors on the Centre for the Development of Enterprise 
(CDE) 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the Partnership Agreement between the members of the African, Caribbean 
and  Pacific  Group  of  States  of  the  one  part,  and  the  European  Community  and  its  Member 
States of the other part, (hereinafter referred to as the ‘ACP-EU Partnership Agreement’), 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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Article 15(4) of the ACP-EU Partnership Agreement states that the ACP-EU Council 
of Ministers may delegate powers to the ACP-EU Committee of Ambassadors.  
At its  39th  session held on 19 and 20 June 2014 in  Nairobi, the ACP-EU Council of 
Ministers  agreed,  in  a  Joint  Declaration,  to  proceed  with  the  orderly  closing  of  the 
Centre  for  the  Development  of  Enterprise  (hereinafter  referred  to  as  CDE).  For  this 
purpose, the ACP-EU Council of Ministers decided to grant a delegation of powers to 
the  ACP-EU  Committee  of  Ambassadors  to  take  the  matter  forward  with  a  view  to 
adopting the necessary decisions. 

The revision of the Annex III of the ACP-EU Partnership Agreement has been adopted 
with the Decision No 3/2016 of the ACP-EU Committee of Ambassadors of 12 July 
20169  which  has  introduced  the  necessary  changes  in  Annex  III  to  the  ACP-EU 
Partnership Agreement, as well as established the new legal framework of the CDE as 
from  1  January  2017,  during  which  its  legal  personality  is  maintained  solely  for  the 
purposes of its liquidation. 

Article  2(1)  of  Decision  3/2016  stipulates  that  a  Curator  should  ensure  the 
implementation of the passive phase as from 1 January 2017 for a period of 4 years or 
until the CDE has settled all its liabilities and realised all its assets, whichever happens 
earlier. 

The  CDE  shall  not  have  settled  all  its  liabilities  and  realised  all  its  assets  before  31 
December 2020. It is therefore deemed necessary to amend Decision 3/2016 ACP-EU 
Committee of Ambassadors to ensure the proper closure of the implementation of the 
passive phase under the Curator’s management. 

Decision No 3/2016 of the ACP-EU Committee of Ambassadors regarding the revision of Annex III to 
the ACP-EU Partnership Agreement (OJ L 192, 16.7.2016 p. 77). 

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(6) 

(7) 

At  one  of  its  meetings,  or  by  written  procedure,  the  ACP-EU  Committee  of 
Ambassadors is to adopt the amendment to Decision No 3/2016. 

It is appropriate to establish the position to be taken on the Union’s behalf in the ACP- 
EU Committee of Ambassadors, as the envisaged act is binding on the Union. 

HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  adopted  by  the  Union  in  the  ACP-EU  Committee  of  Ambassadors 
regarding the CDE is: 

– 

– 

to  replace  Article  2(1)  of  Decision  3/2016  of  the  ACP-EU  Committee  of 
Ambassadors by the following: ‘The European Commission shall contract a Curator 
to  ensure  the  implementation  of  the  passive  phase  until  the  CDE  has  settled  all  its 
liabilities and realised all its assets’; 

that  the  decision  of  the  ACP-EU  Committee  of  Ambassadors  amending  Decision 
3/2016 of the ACP-EU Committee of Ambassadors applies as of 1 January 2021. 

This Decision is addressed to the Commission. 

Article 2 

After  its  adoption,  the  Decision  of  the  ACP-EU  Committee  of  Ambassadors  shall  be 
published in the Official Journal of the European Union.  

Done at Brussels, 

For the Council 
The President 

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