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: 2023-06-16
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, 16.6.2023  COM(2023) 339 final 2023/0196 (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 by Decision No 2/2020 of the ACP-EU 
Committee  of  Ambassadors  of  4  December  20203,  decisions  No  3/20214  of  26  November 
2021, and No 1/20225 of 21 June 2022, extending the application of the Cotonou Partnership 
Agreement  until  30  November  2021,  30  June  2022,  and  30  June  2023  respectively.  The 
Commission proposes the further extension of the application of the entirety of the provisions 
of the Cotonou Partnership Agreement until 30 September 2023, 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 by Decision No 2/2020 of the ACP-EU Committee of Ambassadors of 4 December 
20206,    Decisions  No  3/20217  of  26  November  2021,  and  No  1/20228  of  21  June  2022, 
extending the application of the Cotonou Partnership Agreement until 30 November 2021, 30 
June 2022, and 30 June 2023 respectively. 

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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  3/2021  of  the  ACP-EU  Committee  of  Ambassadors  of  26  November  2021  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 1/2022 of the  ACP-EU Committee of  Ambassadors of 21 June 2022 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 (n. 3). 
Decision No 3/2021 (n. 4). 
Decision No 1/2022 (n. 5). 

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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 sent its proposal for signature in June 2021 to 
the Council. The Council changed the nature of the Partnership Agreement from an EU-only 
agreement to a mixed agreement. This change was finally accepted by the Commission for the 
sake of compromise and the need to see the Partnership Agreement (“PA”) signed as swiftly 
as  possible.  This  amended  text  has  been  however  halted  at  the  level  of  COREPER.  It  has 
become clear that the discussions taking place at the level of the Council of the EU 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  June  2023.  The  situation  would  result  in  a  legal 
vacuum in the EU-ACP relations that must be avoided and filled. 

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 Ambassadors9. 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. 

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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). 

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According  to  Article  (1)  of  the  Rules  of  Procedure  of  the  Committee  of  Ambassadors10,  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-June 2023. 

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 September 2023, or until the entry into force or provisional application of the 
new Partnership Agreement between the Union and the ACP States, whichever comes first.  

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 
September  2023,  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 

4.1. 

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’.11 

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 

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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). 
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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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 
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.12 

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.13 

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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2023/0196 (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')14 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 June 2023 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’)15 as lastly amended by Decision No 1/2022.16 

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 No 3/2019 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 
where  it  will  take  the  decision  to  amend  transitional  measures  pursuant  to  Article 
95(4) of the ACP-EU Partnership Agreement. 

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]. 
Decision No 1/2022 of the  ACP-EU Committee of  Ambassadors of 21 June 2022 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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(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 September 2023, 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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