CELEX: 52019PC0432
Language: en
Date: 2019-09-20
Title: Proposal for a COUNCIL DECISION establishing the position to be adopted on behalf of the Union in the Association Committee set up by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, concerning the exchange of information with Morocco for the purpose of evaluating the impact of the agreement in the form of an Exchange of Letters on the amendment of the Euro-Mediterranean Agreement

EUROPEAN COMMISSION
            Brussels, 20.9.2019
            COM(2019) 432 final
            2019/0204(NLE)
            Proposal for a
            COUNCIL DECISION
            establishing the position to be adopted on behalf of the Union in the Association Committee set up by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, concerning the exchange of information with Morocco for the purpose of evaluating the impact of the agreement in the form of an Exchange of Letters on the amendment of the Euro-Mediterranean Agreement
            
               
         
         
            
               EXPLANATORY MEMORANDUM
            
            
               1.Subject matter of the proposal
            
            
               This proposal concerns the decision establishing the position to be adopted on behalf of the Union in the Association Committee set up by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part
                  1
               , with regard to the envisaged adoption of a decision concerning the exchange of information with Morocco for the purpose of evaluating the impact of the agreement in the form of an Exchange of Letters of 25 October 2018 on the amendment of the Euro-Mediterranean Agreement
                  2
               
            
            
               2.Context of the proposal
            
            
               2.1.The EU-Morocco Association Agreement
            
            
               The Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (‘the Association Agreement’), created a free-trade area between the European Union and Morocco based on reciprocal tariff liberalisation of trade in industry, agriculture and fishery products.  It establishes a free-trade area guaranteeing Morocco very extensive preferential access to the EU market. The Association Agreement entered into force on 1 March 2000.
            
            
               By Decision (EU) 2019/217 of 28 January 2019
                  3
               , the Council approved the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, with a view to extending the tariff preferences laid down in the Association Agreement to products originating in Western Sahara.
            
            
               2.2.The EU-Morocco Association Committee
            
            
               Set up by the Association Agreement, the EU-Morocco Association Committee is responsible for the implementation of the Agreement. It also has the power to take decisions for the management of the Association Agreement.  The Association Committee adopts its decisions by agreement between the parties. In the period between meetings, it may adopt decisions by written procedure if both parties so agree.
            
            
               2.3.The envisaged act of the EU-Morocco Association Committee
            
            
               The EU-Morocco Association Committee has to adopt a decision on the arrangements for evaluating the impact of the agreement approved by the Council on 28 January 2019, particularly on sustainable development and with regard to the advantages for the people concerned and the exploitation of the natural resources of Western Sahara (‘the envisaged act’). It must be adopted at the latest two months after the entry into force of this agreement.
            
            
               The envisaged act is aimed at laying down arrangements for the exchange of information between the parties for the purpose of evaluating the impact of the extension of the tariff preferences provided for in the Association Agreement to products from Western Sahara.
            
            
               The envisaged act will become binding on the parties in accordance with the second paragraph of Article 83 of the Association Agreement, which provides as follows: ‘It shall draw up its decisions by agreement between the Parties. These decisions shall be binding on the Parties, which shall take the measures necessary to implement the decisions taken.’ 
            
            
               3.Position to be taken on the Union's behalf
            
            
               
                  From the entry into force of the Association Agreement, the trade preferences set out in the Association Agreement were applied de facto to products originating in Western Sahara, a non-self-governing territory. In its judgment of 21 December 2016 in Case C-104/16 P
                     4
                  , the Court of Justice of the European Union ruled that the Association Agreement between the Union and Morocco did not apply to Western Sahara.
               
               
                  The practice of applying the trade preferences set out in the Association Agreement and its protocols on a de facto basis to products originating in Western Sahara could not, therefore, continue. The bilateral agreements between the European Union and Morocco can, however, be extended to cover products from Western Sahara under certain conditions, provided that the appropriate legal basis exists.
               
               
                  On 29 May 2017 the Council authorised the Commission to open negotiations with a view to providing a legal basis to grant preferences to products originating in Western Sahara, and adopted negotiating guidelines. Two rounds of talks were held in 2017. The lead negotiators initialled the draft agreement on 31 January 2018. On 25 October 2018 the agreement was signed by the Parties. On 28 January 2019 the Council, with the consent of the European Parliament, adopted a decision on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, thereby providing a legal basis for granting products from Western Sahara the same tariff preferences as products from Morocco.
               
               
                  The amendment to the relevant Protocols to the Association Agreement also allows EU tariff preferences to be granted on the basis of an evaluation of the advantages for local populations and respect for human rights.
               
               
                  As requested by the Council in the negotiating directives adopted on 29 May 2017, the Commission evaluated the possible impact of the agreement on sustainable development, particularly with regard to the advantages for the people concerned and the exploitation of the natural resources of Western Sahara (‘the territories concerned’). This evaluation focuses on trade flows originating in Western Sahara, more specifically fishery products, agricultural products and phosphates. It is based on an evaluation of data available for the past as well as on forecasts. This evaluation revealed that granting the tariff preferences set out in the EUMorocco Association Agreement has had a positive impact on the people concerned and that this impact is likely to continue and even be enhanced in the future. The evaluation of the impact figures in the report of 11 June 2018
                     5
                   by the Commission and the European External Action Service (EEAS) on the benefits for the people of Western Sahara and the public consultation on extending tariff preferences to products from Western Sahara.
               
            
         
         
            
               
                  In order to monitor the effects of the agreement on the people concerned and the exploitation of the natural resources of the territories in question, the agreement specifically provides for a suitable framework and procedure to allow the parties to evaluate its consequences during implementation, via regular exchanges of information. The European Union and Morocco agreed to exchange information at least once a year by means of the Association Committee set up under the EU-Morocco Association Agreement. The purpose of this proposal is precisely to lay down the specific arrangements for the evaluation exercise provided for in the agreement with a view to their adoption by the Association Committee.
               
               
                  The purpose of the exchange of information tallies with that of the report of the Commission and the EEAS referred to above. 
               
               
                  As regards the impact on the territory’s economy, the information available to date primarily concern agriculture and fishing, but the preferences concern all products; the data to be exchanged could therefore evolve according to developments in Western Sahara. The exchange does not exclusively concern economic aspects (‘benefits’ in the narrow meaning of the word) but is intended to allow a broader evaluation covering such aspects as sustainable development and the impact on the exploitation of natural resources.
               
               
                  In addition to the exchange of information provided for in the agreement, Morocco has agreed to set up a mechanism for collecting statistics on exports to the EU of products originating in Western Sahara, which will be made available on a monthly basis to the Commission and the Member States’ customs administrations.
               
               
                  Lastly, the use of the phrase ‘have agreed to exchange’ in the agreement of 25 October 2018 underlines the fact that the exchange is not unilateral. Morocco could therefore ask the European Union for information on production and trade in specific product categories of interest to Morocco, on the basis of the information systems that already exist.
               
               
                  This proposal complies with current trade policy. It is also in line with the overall aims of the European Neighbourhood Policy and with the Union’s overall policy on Morocco, which seeks to strengthen a special partnership with the country without prejudicing the outcome of the procedure implemented by the UN in relation to Western Sahara.
               
            
            
               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 covers 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’
                  6
               .
            
            
               4.1.2.Application to the present case
            
            
               The EU-Morocco Association Committee was set up by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part.
            
            
               The act which the Association Committee is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Article 83 of the Agreement.
            
            
               The envisaged act does not supplement or amend the institutional framework of the Agreement.
            
            
               Accordingly, the procedural legal basis of the proposed decision is Article 218(9) TFEU.
            
            
               4.2.Substantive legal basis
            
            
               4.2.1.Principles
            
            
               The substantive legal basis of a decision under Article 218(9) TFEU depends primarily on the objective and content of the act envisaged in respect of which a position is taken on behalf of the Union. If the act envisaged 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 objective and content of the envisaged act relate primarily to the common commercial policy.
            
            
               Therefore the substantive legal basis of the proposed decision is Article 207(3) and (4), first subparagraph, TFEU. 
            
            
               4.3.Conclusion
            
            
               The legal basis of the proposed decision should be Article 207(4) TFEU, in conjunction with Article 218(9) TFEU.
            
            
               5.PUBLICATION OF THE ENVISAGED ACT
            
            
               Given that the act of the Association Committee will add to the Association Committee’s rules of procedure, it should be published in the Official Journal of the European Union once it has been adopted.
            
            
               2019/0204 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
            
               establishing the position to be adopted on behalf of the Union in the Association Committee set up by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, concerning the exchange of information with Morocco for the purpose of evaluating the impact of the agreement in the form of an Exchange of Letters on the amendment of the Euro-Mediterranean Agreement
            
            
               THE COUNCIL OF THE EUROPEAN UNION,
            
            
               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(3) and (4), first subparagraph, in conjunction with Article 218(9) thereof,
            
            
               Having regard to the proposal from the European Commission,
            
            
               Whereas:
            
            
               (1)The Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (‘the Association Agreement’), was concluded on behalf of the European Union by Council and Commission Decision 2000/204/EC, ECSC
                  7
                of 24 January 2000 and entered into force on 1 March 2000. 
            
            
               (2)By Decision (EU) 2019/217 of 28 January 2019, the Council approved the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Association Agreement (‘amendment of Protocols 1 and 4’)
                  8
                with a view to extending the tariff preferences laid down in the Association Agreement to products originating in Western Sahara.
            
            
               (3)In accordance with Article 81 of the Association Agreement, an Association Committee was set up to manage the Agreement. Pursuant to Article 83 of the Agreement, the Association Committee has the power to take decisions for the management of the Agreement as well as in areas where the Association Council has delegated its powers to it.
            
            
               (4)Within two months of the entry into force of the amendment to Protocols 1 and 4, the Association Committee has to adopt a decision on the arrangements for evaluating the impact of the agreement, particularly on sustainable development and with regard to the advantages for the people concerned and the exploitation of the natural resources of Western Sahara (‘the territories concerned’).
            
            
               (5)It is appropriate to establish the position to be taken on the Union's behalf in the Committee, as the envisaged decision will be binding on the Union. 
            
            
               (6)In order to monitor the effects of the agreement on the people concerned and the exploitation of the natural resources of the territories in question, the Agreement specifically provides for a suitable framework and procedure to allow the parties to evaluate its consequences during implementation, via regular exchanges of information. The European Union and Morocco have agreed to exchange information at least once a year by means of the Association Committee set up under the EUMorocco Association Agreement. The specific arrangements for the evaluation exercise should therefore be laid down with a view to their adoption by the Association Committee. 
            
         
         
            
               (7)The purpose of the exchange of information tallies with that of the joint report of 11 June 2018 by the Commission and the European External Action Service on the benefits for the people of Western Sahara and the public consultation on extending tariff preferences to products from Western Sahara
                  9
               . 
            
            
               (8)As regards the impact on the territory’s economy, the information available to date primarily concern agriculture and fishing, but the preferences concern all products; the data to be exchanged could therefore evolve according to developments in Western Sahara.  The exchange does not exclusively concern economic aspects (‘benefits’ in the narrow meaning of the word) but is intended to allow a broader evaluation covering such aspects as sustainable development and the impact on the exploitation of natural resources.
            
            
               (9)Morocco has agreed to set up separately a mechanism for collecting statistics on exports to the EU of products originating in Western Sahara, which will be made available on a monthly basis to the Commission and the Member States’ customs administrations.
            
            
               (10)Morocco will be able to ask the European Union for information on production and trade in specific product categories of interest to Morocco, on the basis of information systems that already exist,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The position to be adopted on behalf of the Union in the Association Committee set up by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, is based on the draft decision of the Association Committee annexed to this Decision.
            
            
               Article 2
            
            
               This Decision is addressed to the Member States and the Commission.
            
            
               Done at Brussels,
            
            
               
                     For the Council
               
               
                     The President
               
            
         
         
            
                  
                     (1)
                  
                        OJ L 70, 18.3.2000, p. 2.
               
               
                  
                     (2)
                  
                        OJ L 34, 6.2.2019, p. 4.
               
               
                  
                     (3)
                  
                        OJ L 34, 6.2.2019, p. 1.
               
               
                  
                     (4)
                  
                        Judgment of the Court of Justice of 21 December 2016, Council of the European Union v Polisario Front, C-104/16 P, ECLI:EU:C:2016:973.
               
               
                  
                     (5)
                  
                        Commission staff working document (SWD (2018) 346 final) accompanying the proposal for a Council decision on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, (COM (2018) 481 final).
               
               
                  
                     (6)
                  
                        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. 
               
               
                  
                     (7)
                  
                        OJ L 70, 18.3.2000, p. 1.
               
               
                  
                     (8)
                  
                        OJ L 34, 6.2.2019, p. 4.
               
               
                  
                     (9)
                  
                        SWD (2018) 346 final.
               
            
      
    ---documentbreak--- 
      
         
               EUROPEAN COMMISSION
            Brussels, 20.9.2019
            COM(2019) 432 final
            ANNEX
            to the
            Proposal for a Council Decision
            establishing the position to be adopted on behalf of the Union in the Association Committee set up by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, concerning the exchange of information with Morocco for the purpose of evaluating the impact of the agreement in the form of an Exchange of Letters on the amendment of the Euro-Mediterranean Agreement
            
               
         
         
            
               DRAFT 
            
            
               DECISION No … 
               OF THE EU-MOROCCO ASSOCIATION COMMITTEE
            
            
               of ...
            
            
               concerning the exchange of information between the European Union and the Kingdom of Morocco for the purpose of evaluating the impact of the agreement in the form of an Exchange of Letters of 25 October 2018 
            
            
            
               THE EU-MOROCCO ASSOCIATION COMMITTEE,
            
            
               Having regard to the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco of 25 October 2018 on the amendment of Protocols 1 and 4 to the EuroMediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part,
            
            
               Having regard to the Euro-Mediterranean Agreement of 26 February 1996 establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, and in particular Article 83 thereof,
            
            
               
            
               Whereas:
            
            
               (1)The agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, entered into force on 19 July 2019.
            
            
               (2)Under this agreement, products originating in Western Sahara (hereafter ‘the territories concerned’) that are subject to control by the Moroccan customs authorities benefit from the same trade preferences as those granted by the European Union to products covered by the Association Agreement between the European Union and the Kingdom of Morocco. 
            
            
               (3)In a spirit of partnership and in order to allow the parties to assess the impact of the agreement, particularly on sustainable development and with regard to the advantages for the people concerned and the exploitation of the natural resources of the territories in question, the European Union and the Kingdom of Morocco have agreed to exchange information at least once a year by means of the Association Committee.
            
            
               (4)The specific arrangements for this evaluation exercise are to be adopted by the Association Committee no later than two months after the entry into force of the agreement,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               
            
               Article 1
            
            
               1.
                     In order to allow the parties to assess the impact of the agreement during its application as an instrument for sustainable development, the EU and the Kingdom of Morocco have agreed as follows:
            
            
               -
                     The European Union and Morocco will exchange data considered relevant in the main areas of activity concerned and economic, social and environmental statistics, particularly with regard to the advantages for the people concerned and the exploitation of the natural resources of the territories concerned. A list of relevant information is annexed to this Decision.
            
         
         
            
               -
                     The exchange will be based on a prior written communication sent at least two months before the Association Committee meeting; the communication may be followed by requests for clarification and supplementary questions raised in the subject areas covered by this Decision, which must be sent at least one month before the meeting.
            
            
               2.
                     In a spirit of partnership and in order to allow them to assess the impact of the Agreement, the parties have also agreed that Morocco may, on the basis of existing information systems, ask the European Union for information on production and trade in specific product categories of particular interest to Morocco. The European Union and the Kingdom of Morocco have agreed as follows:
            
            
               -
                     Morocco will send its request in writing to the European Union three months before the Association Committee meeting. 
            
            
               -
                     The exchange will be based on a prior written communication sent by the European Union at least two months before the Association Committee meeting; the communication may be followed by requests for clarification and supplementary questions, which must be sent at least one month before the meeting.
            
            
               3.
                     The parties will exchange their conclusions in the framework of the Association Committee by (xx) each year at the latest. 
            
            
               4.
                     The minutes including the Association Committee’s conclusions must be approved by the parties in the month following the meeting.
            
            
               Article 2
            
            
               The Annex shall form an integral part of this Decision.
            
            
               Article 3
            
            
               This Decision shall enter into force on the date of its adoption by the Association Committee. 
            
            
               Done at [Rabat][Brussels], [x/x/] 2019
            
            
               For the EU-Morocco Association Committee
            
            
               ANNEX
            
            
            
               Relevant information for the purposes of the exchange of information provided for in the agreement
            
            
            
               The information is to be used to update the joint report of 11 June 2018 by the Commission and the European External Action Service (EEAS)
                  1
               , which showed the benefits for the people of Western Sahara of extending tariff preferences to products from the territories concerned . The exchange of information must therefore encompass detailed information enabling the agreement’s impact to be evaluated during its implementation, including general information on the territories and people concerned. . This information is intended solely for the purposes of evaluation and the updating of the report by the Commission and the EEAS.  The following are examples of relevant information:
            
            
            
               1.General information
            
            
               Social statistics for the territories concerned, whose products are subject to control by the Moroccan customs authorities, such as population (if possible, by age and sex), jobs (absolute number, number dependent on exports and on exports to the European Union), wage levels, human development indicator, education (for example, number of establishments, places, pupils, rate of enrolment), health (for example, number of hospitals, beds and doctors), basic services (for example, access to drinking water and electricity), levels of poverty, transport.
            
         
         
            
            
               Economic statistics for the territory, such as annual rate of growth in GDP and per capita GDP, key sectors, scale of production, percentage exported and percentage exported to the European Union.
            
            
            
               Environmental statistics for the territory, such as: use of natural resources, in particular water, waste treatment (agriculture, mining), sustainable management of fish stocks, pollution.
            
            
            
               2.Data for the main export sectors
            
            
               In particular for the agriculture and fishery sectors and other sectors where the territories concerned export to the European Union, such as:
            
            
               - production by type of product (for example, tomatoes, melons, etc. and, in the case of fishing, by species)
            
            
               -the surface farmed (irrigated areas and greenhouses) and the volumes harvested
            
            
               -exports to the European Union (and elsewhere) in volume and value
            
            
               -processing establishments by sector and the activities carried out there
            
            
               -the jobs (temporary or permanent) directly and indirectly generated (transport, suppliers, storage, etc.) by these activities and in these establishments
            
            
               -or the measures in place for the sustainable management of resources, including water (average water use and sources of water supply).
            
            
            
               3.Projects under way
            
            
               Projects under way with a marked impact on the development of the territories concerned, including the territory’s sustainable development (renewable energy, sound management of natural resources). 
            
            
            
               4.Other relevant information
            
            
               All information making it possible to assess the activities of local economic operators concerned by the agreement, such as corporate social responsibility.
            
            
         
         
            
               As stated in the correspondence exchanged by the Commission and the Embassy of the Kingdom of Morocco on 6 December 2018, Morocco is setting up a mechanism for collecting information on exports covered by the Association Agreement, as amended by the Exchange of Letters, which will systematically and regularly provide and make available each month precise data so that the European Union and the competent authorities of its Member States have transparent and reliable information on the origin of these exports to the Union.
            
            
            
               5.Information provided by the European Union
            
            
               Information on trade in specific products exported to Morocco, by type of product, volume and value and, where these data are available, on their production.
            
            
            
         
         
            
                  
                     (1)
                  
                  
                      
                           Report of 11 June 2018 on the benefits for the people of Western Sahara and the public consultation on extending tariff preferences to products from Western Sahara, SWD(2018) 346 final.