Proposal for a COUNCIL REGULATION laying down rules for the exercise of the Community's rights in the implementation of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part
Date: 2022-03-11
Institutions: European Commission, Secretariat-General
Subjects: EAEC, EU programme, European Joint Undertaking, United Kingdom, application of the law, cooperation agreement (EU), nuclear fusion, nuclear research, trade agreement (EU), withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 11.3.2022  COM(2022) 100 final 2022/0070 (NLE)  Proposal for a COUNCIL REGULATION laying down rules for the exercise of the Community's rights in the implementation of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  Trade  and  Cooperation  Agreement  between  the  Union  and  the  United  Kingdom  (the 
“Trade and Cooperation Agreement”)1 provides that, in accordance with the conditions set out 
therein, the Parties may adopt certain unilateral measures.  

As regards matters falling under the Euratom Treaty, unilateral measures may be adopted by 
the  European  Atomic  Energy  Community  (“the  Community”)  in  the  cases  and  under  the 
conditions  laid  down  in  Articles  718  and  719  of  the  Trade  and  Cooperation  Agreement, 
without having to first resort to the dispute settlement mechanism. The unilateral measures in 
question concern the partial or total suspension of the participation of the United Kingdom in 
the Union programmes as well as its partial or total termination.  

The  Council,  in  its  decision  on  the  conclusion  of  the  Trade  and  Cooperation  Agreement 
empowered  the  Commission  to  adopt  the  above  mentioned  measures  as  regards  matters 
falling under the Treaty on the Functioning of the European Union2, on behalf of the Union 
and  “until  a  specific  legislative  act  regulating  the  adoption  of  the  measures”  under  this 
Agreement be adopted.  

The Commission and the Council also agreed on a joint statement, issued at the time of the 
conclusion of the Trade and Cooperation Agreement, which provides that, without prejudice 
to its right of initiative under the Treaties, the Commission “will aim to propose the specific 
legislative act referred to above no later than 31 March 2022”3.  

This legislative proposal fulfils this political commitment as regards matters falling under the 
Euratom  Treaty,  namely  the  association  of  the  United  Kingdom  with  the  Research  and 
Training programme of Euratom and with the European Joint Undertaking for ITER and the 
Development  of  Fusion  Energy  governed  by  Part  Five  of  the  Trade  and  Cooperation 
Agreement  (Participation  in  Union  programmes,  sound  financial  management  and  financial 
provisions).  The  proposed  Regulation  ensures  that  the  Community  can  act  in  a  timely  and 

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3 

Trade  and  Cooperation  Agreement  between  the  European  Union  and  the  European  Atomic  Energy 
Community,  of  the  one  part,  and  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland,  of  the 
other part (the ‘Trade and Cooperation Agreement’).  Agreement concluded, as regards matters falling 
under  the  Euratom  treaty,  pursuant  to  Commission  Decision  (Euratom)  2020/2255  of  29  December 
2020  on  the  conclusion,  by  the  European  Commission,  and  provisional  application  of  the  Agreement 
between  the  Government  of  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  and  the 
European  Atomic  Energy  Community  for  Cooperation  on  the  Safe  and  Peaceful  Uses  of  Nuclear 
Energy and on the conclusion, by the European Commission, on behalf of the European Atomic Energy 
Community,  and  provisional  application  of  the  Trade  and  Cooperation  Agreement  between  the 
European  Union  and  the  European  Atomic  Energy  Community,  of  the  one  part,  and  the  United 
Kingdom  of  Great  Britain  and  Northern  Ireland,  of  the  other  part  (OJ  L  445,  31.12.2020,  p.  2).  The 
Agreement applied provisionally as of 1 January 2021 and entered into force on 1 May 2021. 
Council  Decision  (EU)  2021/689  of  29  April  2021  on  the  conclusion,  on  behalf  of  the  Union,  of  the 
Trade  and  Cooperation  Agreement  between  the  European  Union  and  the  European  Atomic  Energy 
Community,  of  the  one  part,  and  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland,  of  the 
other part, and of the Agreement between the European Union and the United Kingdom of Great Britain 
and  Northern  Ireland  concerning  security  procedures  for  exchanging  and  protecting  classified 
information, OJ L 149, 30.4.2021, p. 2, 
Statement by the Commission and the Council on the monitoring and implementation of the Trade and 
Cooperation Agreement, paragraph 3. 

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effective  manner  to  protect  its  interests  in  implementing  and  enforcing  the  Trade  and 
Cooperation  Agreement.  The  proposed  Regulation  empowers  the  Commission  to  adopt  the 
measures referred to above, as well as to suspend and repeal them as appropriate, by means of 
implementing acts. 

• 

Consistency with existing policy provisions in the policy area 

There  are  no  precedents  of  any  policy  provisions  governing  the  withdrawal  of,  and  the 
Community’s partnership with, a former Member State. 

The proposed Regulation is lex specialis with regard to other provisions of Community law to 
the extent that these provisions govern the same subject matter. 

An  Agreement  between  the  Government  of  the  United  Kingdom  of  Great  Britain  and 
Northern Ireland and the European Atomic Energy Community for Cooperation  on the Safe 
and  Peaceful  Uses  of  Nuclear  Energy  was  concluded  at  the  same  time  as  the  Trade  and 
Cooperation Agreement4. 

• 

Consistency with other Union policies 

A separate legislative proposal governs inter alia the adoption of unilateral and enforcement 
measures in the area of the Union’s research and development programmes. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  bases  are  those  in  the  Euratom  Treaty  that  govern  the  areas  in  which  unilateral 
measures may have to be adopted, namely Articles 7, 47 and 48, in conjunction with Article 
106a  which  declares  Article  291  of  the  Treaty  on  the  Functioning  of  the  European  Union 
applicable to the Euratom Treaty. 

• 

n/a 

• 

Subsidiarity (for non-exclusive competence)  

Proportionality 

To  the  extent  that  the  Community’s  rights  to  be  exercised  are  set  out  in  the  Trade  and 
Cooperation  Agreement,  the  proposed  measures  do  not  exceed  what  is  strictly  necessary  to 
achieve the objective to  ensure  a swift and effective exercise of those rights.  Moreover, the 
conditions  applying under the Agreement to  the  adoption of unilateral  measures ensure that 
these measures are limited to what is strictly necessary to achieve the specific purposes laid 
down therein. 

• 

Choice of the instrument 

The  form  of  a  regulation  fits  best  the  objective  pursued,  namely  to  lay  down  general 
principles and uniform conditions for the exercise of the rights available to the Community in 
implementing and enforcing the Trade and Cooperation Agreement. 

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Agreement concluded pursuant to Commission Decision (Euratom) 2020/2255.  

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3. 

• 

n/a 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Stakeholder consultations 

The initiative is of a procedural and institutional nature. 

• 

n/a 

• 

Collection and use of expertise 

Impact assessment 

No impact assessment has been carried out for the following reasons:  

1. 

2. 

• 

n/a 

• 

No  policy  options  are  available  to  the  Commission  because:  (a)  the  envisaged 
proposal  organises  how  measures  already  agreed  in  an  international  agreement  are 
taken within the Community with no margin for variation, and (b) the Commission 
has committed before the European Parliament and the Council to submit a proposal 
for this legislative act by a given date.  

No directly identifiable impacts are expected given the procedural nature of the act. 

Regulatory fitness and simplification 

Fundamental rights 

Measures adopted under the proposed Regulation would be a lawful action by the Community 
under  the  Charter  of  Fundamental  Rights.  This  is  because  this  action  would  be  taken  in 
conformity with the requirements that the action be taken on the basis of a proper legal basis, 
by the competent authorities, in pursuit of a legitimate objective, namely that of exercising the 
Union’s rights under the above Agreements, and in line with the principle of proportionality. 

4. 

n/a 

5. 

• 

BUDGETARY IMPLICATIONS 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

A review of the implementation of the proposed Regulation is foreseen within five years of its 
entry  into  force.  This  period  is  in  line  with  the  joint  review  of  both  Parties  to  the  TCA  as 
provided for in Article 776 of the TCA. 

• 

n/a 

• 

Explanatory documents (for directives) 

Detailed explanation of the specific provisions of the proposal 

Article 1 lays down the subject matter of the proposed Regulation, namely to establish rules 
and  procedures  to  ensure  an  effective  and  timely  exercise  of  the  Community's  rights  in 
enforcing and implementing the Trade and Cooperation Agreement .  

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These rights may be exercised by means of the unilateral measures  as defined in the second 
paragraph  of  that  Article,  in  accordance  with  the  rules  laid  down  in  Article  2  and  the 
committee procedure laid down in Article 3.  

Finally,  Article  5  provides  for  a  review  of  this  Regulation  by  the  Commission  within  five 
years of its entry into force, in order to ascertain that it remains fit for purpose. 

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2022/0070 (NLE) 

Proposal for a 

COUNCIL REGULATION 

laying down rules for the exercise of the Community's rights in the implementation of 
the Trade and Cooperation Agreement between the European Union and the European 
Atomic Energy Community, of the one part, and the United Kingdom of Great Britain 
and Northern Ireland, of the other part 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community,  and  in 
particular Articles 7, 47 and 48 in conjunction with Article 106a thereof, 

Having regard to the proposal from the European Commission,  

After consulting the Scientific and Technical Committee, 

(1) 

(2) 

(3) 

On 29 December 2020, the Commission concluded, on behalf of the European Atomic 
Energy  Community  (“the  Community”),  the  Trade  and  Cooperation  Agreement 
between the European Union and the European Atomic Energy Community, of the one 
part, and the United Kingdom of Great Britain and Northern Ireland, of the other part5 
(the ‘Trade and Cooperation Agreement’). The Trade and Cooperation Agreement was 
applied provisionally as of 1 January 2021 and entered into force on 1 May 2021. The 
Trade  and  Cooperation  Agreement  covers  matters  falling  under  competences  of  the 
Community,  namely  the  association  with  the  Research  and  Training  programme  of 
Euratom and with the European Joint Undertaking for ITER and the Development of 
Fusion  Energy  governed  by  Part  Five  of  the  Trade  and  Cooperation  Agreement 
(Participation  in  Union  programmes,  sound  financial  management  and  financial 
provisions). 

The Trade and Cooperation Agreement provides that the Parties may adopt unilateral 
measures,  in  particular  as  regards  the  suspension  of  certain  obligations  under  the 
Agreement,  in  the  specific  cases  and  subject  to  the  conditions  and  procedures  laid 
down  therein.  As  regards  matters  falling  under  the  Euratom  Treaty,  unilateral 
measures may be adopted by the Community in the cases and under the conditions laid 
down in Articles 718 and 719 of the Trade and Cooperation Agreement. The unilateral 
measures in question concern the partial or total suspension of the participation of the 
United Kingdom in the Union programmes as well as its partial or total termination.  

Should  the  need  arise  to  protect  its  interests  in  the  implementation  of  the  Trade  and 
Cooperation Agreement, the Community should be in a position to make appropriate 
use  of  the  instruments  available  to  it  swiftly  and  in  a  proportionate,  effective  and 
flexible manner, while fully involving Member States. It is therefore necessary to lay 
down  rules  and  procedures  governing  the  adoption  of  unilateral  measures  in  the 
exercise of the Community's rights under the Trade and Cooperation Agreement. 

(4) 

Unilateral  measures  should  be  limited  to  what  is  strictly  necessary  to  achieve  their 
purpose,  having  regard  to  the  actual  or  potential  damage  to  Community  interests 

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OJ L 149, 30.4.2021, p. 10. 

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(5) 

(6) 

(7) 

arising from the case. They should meet the conditions laid down in Articles 718 and 
719 of the Trade and Cooperation Agreement.  

The rules and procedures laid down in this Regulation should be a  lex specialis with 
regard to any provisions of Community law governing the same subject matter.  

In order to ensure that this Regulation remains fit for purpose, the Commission should 
undertake,  within  five  years  of  its  entry  into  force,  a  review  of  its  scope  and 
implementation and report its findings to the Council and to the European Parliament. 

In order to ensure uniform conditions for the implementation of this Regulation, and in 
particular  in  order  to  ensure  the  swift,  effective  and  flexible  exercise  of  the 
corresponding  Community’s  rights  under  the  Trade  and  Cooperation  Agreement, 
implementing  powers  should  be  conferred  on  the  Commission  to  adopt  unilateral 
measures and to give effect to those measures as necessary in the internal legal order 
of the Community. Those powers should also  extend to the modification, suspension 
or  repeal  of  the  adopted  measures.  They  should  be  exercised  in  accordance  with 
Regulation (EU) No 182/2011 of the European Parliament and of the Council6. Given 
that  the  envisaged  measures  entail  the  adoption  of  acts  of  general  scope,  the 
examination  procedure  should  be  used  for  the  adoption  of  those  measures.  The 
Commission  should  adopt  immediately  applicable  implementing  acts  where,  in  duly 
justified cases, imperative grounds of urgency so require for the appropriate protection 
of the Community’s interests.  

(8) 

The European Parliament has been consulted on a voluntary basis and has delivered an 
opinion7, 

HAS ADOPTED THIS REGULATION: 

Article 1 
Subject matter and scope 

1. 

2. 

(a) 

(b) 

This  Regulation  lays  down  rules  and  procedures  to  ensure  an  effective  and  timely 
exercise  of  the  Community's  rights  in  implementing  the  Trade  and  Cooperation 
Agreement  between  the  European  Union  and  the  European  Atomic  Energy 
Community, of the one part, and the United Kingdom of Great Britain and Northern 
Ireland, of the other part (‘the Trade and Cooperation Agreement’). 

This Regulation applies to the following measures adopted by the Community on the 
basis of Articles 718 and 719 of the Trade and Cooperation Agreement: 

the  suspension  of  the  application  of  Protocol  I  to  the  Trade  and  Cooperation 
Agreement,  in  relation  to  one  or  more  Community  programmes,  activities,  or 
exceptionally parts thereof; 

the  termination  of  the  application  of  Protocol  I  to  the  Trade  and  Cooperation 
Agreement,  in  relation  to  one  or  more  Community  programmes,  activities,  or 
exceptionally parts thereof. 

6 

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Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning  mechanisms for control by Member States of 
the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). 
[…] 

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Article 2 
Exercise of the Community’s rights 

Notwithstanding  any  provisions  of  Community  law  adopted  pursuant  to  Articles  7, 
47 and 48 of the Euratom Treaty, the Commission shall be empowered to adopt the 
measures  referred  to  in  Article  1(2)  of  this  Regulation,  and  to  give  effect  to  those 
measures, by means of implementing acts.  

The Commission shall be empowered to amend or repeal the measures referred to in 
Article 1(2), point (a), by means of implementing acts.  

Where  there  is  a  particular  concern  of  one  or  more  Member  States  as  regards  a 
significant change to the conditions referred to in Article 718(1), points (a) to (c), of 
the Trade and Cooperation Agreement, that or those Member States may request the 
Commission to suspend the participation of the United Kingdom in the Community 
programme or programmes concerned in accordance with paragraph 1 of this Article. 
If the Commission does not respond positively to such a request, it shall inform the 
Council in a timely manner of its reasons. 

The  implementing  acts  referred  to  in  paragraphs  1  and  2  of  this  Article  shall  be 
adopted in accordance with the examination procedure referred to in Article 3(2). 

On  duly  justified  imperative  grounds  of  urgency,  the  Commission  shall  adopt 
immediately applicable implementing acts in accordance with the procedure referred 
to in Article 3(3).  

Article 3 
Committee procedure 

The Commission shall be assisted by the UK Committee. That committee shall be a 
committee within the meaning of Regulation (EU) No 182/2011. 

Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 shall apply. 

Where  reference  is  made  to  this  paragraph,  Article  8  of  Regulation  (EU)  No 
182/2011, in conjunction with Article 5 thereof, shall apply. 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

3. 

Article 4 
Review 

By  [Publications  Office:  Please  insert  the  date  five  years  after  the  entry  into  force  of  this 
Regulation],  the  Commission  shall  present  a  report  to  the  Council  and  to  the  European 
Parliament on the application of this Regulation. 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 5 

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This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the Council 
The President 

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