Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the ACP-EU Committee of Ambassadors, with regard to amending Decision No 3/2019 of the ACP-EU Committee of Ambassadors of 17 December 2019 to adopt transitional measures pursuant to Article 95(4) of the ACP-EU Partnership Agreement
Date: 2021-10-28
Institutions: Directorate-General for International Partnerships, European Commission
Subjects: ACP-EU Committee of Ambassadors, Cotonou Agreement, negotiation of an agreement (EU), renewal of an agreement

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   EUROPEAN COMMISSION  Brussels, 28.10.2021  COM(2021) 686 final 2021/0358 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the ACP-EU Committee of Ambassadors, with regard to amending Decision No 3/2019 of the ACP-EU Committee of Ambassadors of 17 December 2019 to adopt transitional measures pursuant to Article 95(4) of the ACP-EU Partnership Agreement  
 
EXPLANATORY MEMORANDUM 

1. SUBJECT MATTER OF THE PROPOSAL 

The present Commission decision contains a proposal on a Council decision on the position to 
be taken by the Union in the ACP-EU Committee of Ambassadors, on an amendment of the 
Decision  No  3/2019  on  transitional  measures  pursuant  to  Article  95(4)  of  the  Partnership 
Agreement between the EU and the African, Caribbean and Pacific (ACP) Group of States1, 
signed in Cotonou on 23 June 2000 (‘Cotonou Partnership Agreement’ or ‘CPA’) (‘decision 
on transitional measures’)2. The latter was amended for the first time by Decision No 2/2020 
of  the  Committee  of  Ambassadors  of  4  December  20203  extending  the  application  of  the 
Cotonou  Partnership  Agreement  until  30  November  2021.  The  Commission  proposes  the 
further  extension  of  the  application  of  the  entirety  of  the  provisions  of  the  Cotonou 
Partnership  Agreement  until  30  June  2022,  or  until  the  entry  into  force  or  provisional 
application  of  the  new  Partnership  Agreement  between  the  Union  and  the  ACP  States, 
whichever is sooner.  

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Cotonou Partnership Agreement 

Since 2000, the Cotonou Partnership Agreement has been the framework for the EU 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  17  December  2019,  the  application  of  the  provisions  of  the  Cotonou  Partnership 
Agreement  was  extended  through  the  Decision  No  3/2019  of  the  ACP-EU  Committee  of 
Ambassadors  until  31  December  2020  or  until  entry  into  force  of  the  new  Partnership 
Agreement  between  the  Union  and  the  ACP  States,  whichever  is  sooner.  The  latter  was 
amended for the first time by Decision No 2/2020 of the ACP-EU Committee of Ambassadors 
of 4 December 20204 extending the application of the Cotonou Partnership Agreement until 
30 November 2021.  

Negotiations  towards  a  new  ACP-EU  Partnership  Agreement  were  launched  in  September 
2018.  On  15  April  2021,  the  chief  negotiators  initialled  the  text  of  a  new  Partnership 
Agreement  between  the  Union  and  the  members  of  the  Organisation  of  African,  Caribbean 
and  Pacific  States  (OACPS).  The  Commission  later  sent  its  proposal  for  signature  to  the 
Council.  The  negotiations  were  however  reopened  and  are  currently  ongoing  for  what 
concerns the legal nature of the agreement. It has become clear that the negotiations will not 
result in a new Agreement ready to be applied by the current expiry date of the application of 
the  Cotonou  Partnership  Agreement  on  30  November  2021.  The  situation  would  result  in  a 
vacuum in the EU-ACP relations that must be filled. 

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Council  Decision  of  19  December  2002  concerning  the  conclusion  of  the  Partnership  Agreement 
between  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  L  65, 
08.03.2003, p.27). 
Decision  No  3/2019  of  the  ACP-EU  Committee  of  Ambassadors  of  17  December  2019  to  adopt 
transitional measures pursuant to Article 95(4) of the ACP-EU Partnership Agreement [2020/2]. 
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. 
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. 

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2.2. 

The ACP-EU Council of Ministers 

The  ACP-EU  Council  of  Ministers  is  a  ministerial  level  body,  set  up  by  the  Agreement 
(Article  15  CPA).  It  comprises,  on  the  one  hand,  members  of  the  Council  of  the  European 
Union  and  members  of  the  European  Commission  and,  on  the  other,  a  member  of  the 
government of each ACP State. The functions of the Council of Ministers include, amongst 
other things, taking the decisions necessary for the implementation and execution of the CPA. 
The Council of Ministers takes its decisions by common agreement of the Parties. In order for 
the decisions to be valid, (i) half the members of the Council of the European Union (i.e. 14 
Ministers from EU Member States), (ii) one member of the Commission, and (iii) two-thirds 
of  the  members  representing  the  governments  of  the  ACP  States  (i.e.  government  members 
from 55 different ACP States) have to be present. 

2.3. 

Transitional measures 

Article  95(4),  second  subparagraph  CPA  reads  as  follows:  “The  Council  of  Ministers  shall 
adopt  any  transitional  measures  that  may  be  required  until  the  new  Agreement  comes  into 
force”. As per Article 95(4) second subparagraph CPA, transitional measures can be applied 
to extend the applicability of all or parts of the CPA, until the date of application of the new 
Agreement (provisional application or entry into force). In order to maintain legal, political, 
and  institutional  continuity  with  the  ACP,  given  that  the  new  Agreement  will  not  become 
applicable  before  the  expiry  of  the  existing  legal  framework,  it  is  necessary  to  extend  the 
adopted transitional measures in view of continuing the application of the current Agreement. 

2.4. 

The  amendment  of  transitional  measures  by  the  ACP-EU  Committee  of 
Ambassadors 

In accordance with Article 95(4) CPA, the decision on transitional measures is to be taken by 
the ACP-EU Council of Ministers. However, pursuant to Article 15(4) CPA, the Council of 
Ministers  may  delegate  powers  to  the  Committee  of  Ambassadors.  To  this  end,  on  23  May 
2019,  the  Council  of  Ministers  delegated  the  power  to  adopt  the  decision  on  transitional 
measures to the Committee of Ambassadors5. 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. 

According to Article (1) of the Rules of Procedure of the Committee of Ambassadors6, it shall 
meet regularly, in particular to prepare meeting of the Council of Ministers, and whenever it 
proves necessary, at the request of one of the parties. Given this flexibility, the Committee of 
Ambassadors can ensure that the amendment of the decision on transitional measures is taken 
in a timely manner, and no later than mid November 2021. 

Therefore,  at  one  of  its  meetings,  the  ACP-EU  Committee  of  Ambassadors  is  to  adopt  the 
amendment to the decision on transitional measures (‘the envisaged act’). The purpose of the 
envisaged act is to further extend the application of the Cotonou Partnership Agreement, in its 
entirety, until 30 June 2022, or until the entry into force or provisional application of the new 
Partnership Agreement between the Union and the ACP States, whichever comes first.  

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Decision No 1/2019 of the ACP-EU Council of Ministers of 23 May 2019 on the delegation of powers 
to the ACP-EU Committee of Ambassadors on the decision to adopt transitional measures pursuant to 
Article 95(4) of the ACP-EU Partnership Agreement [2019/920] (OJ L146, 05.06.2019, p. 114). 
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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3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The  Commission  proposes  that  the  current  decision  on  transitional  measure  of  the  CPA  is 
amended  in  view  of  extending  the  application  of  the  Cotonou  Partnership  Agreement  until 
30 June 2022, unless the new Agreement enters into force or is provisionally applied before 
that date.  

In view of the above, the proposed position of the Union is to be adopted at a session of the 
ACP-EU Committee of Ambassadors. 

4. 

LEGAL BASIS 

4.4. 

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 

Pursuant to Article 95(4), second subparagraph of the of the ACP-EU Partnership Agreement 
signed  in  Cotonou  on  23  June  2000,  transitional  measures  can  be  applied  to  extend  the 
applicability  of  all  or  parts  of  the  CPA,  until  the  date  of  application  of  the  new  Agreement 
(provisional  application  or  entry  into  force  after  ratification  by  all  Parties).  Notably,  “The 
Council of Ministers shall adopt any transitional measures that may be required until the new 
Agreement comes into force”. 

It is therefore clear that the act which the ACP-EU Committee of Ambassadors is called upon 
to adopt constitutes an act having legal effects. The envisaged decision of the Committee of 
Ambassadors will be binding under international law in accordance with Articles 15 and 16 of 
the Agreement. 

The Committee of Ambassadors is a body set up under Article 16 of the Cotonou Partnership 
Agreement. 

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. 

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  position  is  taken  on  the 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components and if one of 

7 

Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI-EU-C-2014-
2258, paragraphs 61 to 64. 

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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 main objective and content of the envisaged act relate to the functioning of the CPA as a 
whole, notably extending its application beyond the foreseen expiry date. Thus the substantive 
legal basis of the Council decision must be determined in the light of the Cotonou Partnership 
Agreement as a whole.8 

The CPA has been concluded as an association agreement and thus was based on Article 310 
of the Treaty establishing the European Community, the  equivalent of Article 217 TFEU. It 
follows that the substantive legal basis of the proposed decision is Article 217 TFEU. 

4.3. Conclusion 

The main objective and content of the envisaged act relate to the functioning of the CPA as a 
whole, notably extending its application beyond the foreseen expiry date. Thus the substantive 
legal basis of the Council decision must be determined in the light of the Cotonou Partnership 
Agreement as a whole.9 

The CPA has been concluded as an association agreement and thus was based on Article 310 
of the Treaty establishing the European Community, the equivalent of Article 217 TFEU. It 
follows  that  the  substantive  legal  basis  of  the  proposed  decision  is  Article  217  TFEU.

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in  particular, 

See, 
judgment 
[ECLI:EU:C:2018:662], p. 40 and the case law referred to. 
See, 
judgment 
[ECLI:EU:C:2018:662], p. 40 and the case law referred to. 

in  particular, 

in  case  C-244/17  Commission  v  Council 

in  case  C-244/17  Commission  v  Council 

(“Kazakhstan”) 

(“Kazakhstan”) 

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2021/0358 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the ACP-EU Committee 
of Ambassadors, with regard to amending Decision No 3/2019 of the ACP-EU 
Committee of Ambassadors of 17 December 2019 to adopt transitional measures 
pursuant to Article 95(4) of the ACP-EU Partnership Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 217, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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The  Partnership  Agreement  between  the  members  of  the  African,  Caribbean  and 
Pacific  Group  of  States  ('ACP')  of  the  one  part,  and  the  European  Union  and  its 
Member States, of the other part ('the ACP-EU Partnership Agreement')10 was signed 
in Cotonou on 23 June 2000. The ACP-EU Partnership Agreement entered into force 
on  1  April  2003  and  is  to  be  applied  until  30  November  2021  in  accordance  with 
Decision No 3/2019 of the ACP-EU Committee of Ambassadors of 17 December 2019 
to  adopt  transitional  measures  pursuant  to  Article  95(4)  of  the  ACP-EU  Partnership 
Agreement (‘decision on transitional measures’)11 as amended by 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. 

Pursuant  to  the  first  subparagraph  of  Article  95(4)  of  the  ACP-EU  Partnership 
Agreement,  negotiations  towards  a  new  ACP-EU  Partnership  Agreement  were 
launched in September 2018. The new Agreement will not be ready to be applied by 
the expiry date of the current ACP-EU Partnership Agreement. It is therefore deemed 
necessary to amend the Decision No3/2019 on transitional measures to further extend 
the application of the provisions of the current ACP-EU Partnership Agreement. 

The  second  subparagraph  of  Article  95(4)  of  the  ACP-EU  Partnership  Agreement 
provides  for  the  Council  of  Ministers  to  adopt  transitional  measures  that  may  be 
required until the new Agreement comes into force. 

Pursuant  to  Article  15(4)  CPA,  on  23  May  2019,  the  ACP-EU  Council  of  Ministers 
delegated the powers to adopt the transitional measures to the ACP-EU Committee of 
Ambassadors. The ACP-EU Committee of Ambassadors is to have a regular meeting 

Agreement  (OJ  L317,  15.12.2000,  p.  3)  as  amended  by  the  Agreement  signed  in  Luxembourg  on  25 
June 2005 (OJ L209, 11.8.2005, p.27) and by the Agreement signed in Ouagadougou on 22 June 2010 
(OJ L287, 4.11.2010, p 3). 
Decision  No  3/2019  of  the  ACP-EU  Committee  of  Ambassadors  of  17  December  2019  to  adopt 
transitional measures pursuant to Article 95(4) of the ACP-EU Partnership Agreement [2020/2]  

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where  it  will  take  the  decision  to  amend  transitional  measures  pursuant  to  Article 
95(4) of the ACP-EU Partnership Agreement. 

(5) 

(6) 

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. 

The provisions of the ACP-EU Partnership Agreement will continue to be applied with 
the  aim  of  maintaining  continuity  in  relations  between  the  Union  and  its  Member 
States, on the one hand, and the ACP States, on the other. Accordingly, the amended 
transitional  measures  are  not  intended  for  amendments  to  the  ACP-EU  Partnership 
Agreement as provided for in Article 95(3) thereof, 

HAS ADOPTED THIS DECISION:  

Article 1 

The position to  be taken on the Union's behalf  at  the ACP-EU Committee of Ambassadors, 
pursuant  to  Article  95(4)  of  the  ACP-EU  Partnership  agreement,  is  to  amend  the  Decision 
No 3/2019 on transitional measures to extend the application of the provisions of the ACP-EU 
Partnership  Agreement  in  their  entirety,  until  30  June  2022,  or  until  the  entry  into  force  or 
provisional  application  of  the  new  Partnership  Agreement  between  the  Union  and  the  ACP 
States, whichever comes first. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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