CELEX: 52019PC0348
Language: en
Date: 2019-07-25
Title: Proposal for a COUNCIL DECISION establishing the position to be adopted on behalf of the European Union in the EPA Committee set up by the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part, in connection with the adoption of the list of arbitrators

EUROPEAN COMMISSION
            Brussels, 25.7.2019
            COM(2019) 348 final
            2019/0160(NLE)
            Proposal for a
            COUNCIL DECISION
            establishing the position to be adopted on behalf of the European Union in the EPA Committee set up by the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part, in connection with the adoption of the list of arbitrators
            
               
         
         
            
               EXPLANATORY MEMORANDUM
            
            
               1.Subject matter of the proposal
            
            
               This proposal concerns the Decision establishing the position to be adopted on behalf of the European Union (‘the Union’) in the EPA Committee set up by the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part (‘the Agreement’)
                  1
               , in connection with the envisaged adoption of the list of individuals who are willing and able to serve as arbitrators.
            
            
               2.Context of the proposal
            
            
               2.1.EU - Central Africa Economic Partnership Agreement
            
            
               
                  The aim of the Agreement is to establish an initial framework for a full regional economic partnership agreement in accordance with the Cotonou Agreement. The Central Africa Party is hitherto composed of the Republic of Cameroon. Since 4 August 2014, the Agreement has been applied on a provisional basis.
               
            
            
               2.2.EPA Committee
            
            
               
                  The EPA Committee is the joint institutional body of the Agreement. Article 92 of the Agreement provides that the EPA Committee is to be responsible for the administration of all the fields covered by the Agreement and for the achievement of all the tasks mentioned therein. The EPA Committee is to reach its decisions by consensus. The operation of the EPA Committee is laid down in its Rules of Procedure
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                  .
               
            
            
               2.3.Act envisaged by the EPA Committee
            
            
               
                  At its fifth meeting on [date], the EPA Committee must adopt a decision concerning the adoption of the list of arbitrators (‘the envisaged act’) in accordance with Article 85 of the Agreement.
               
               
                  Article 85(1) of the Agreement provides that ‘the EPA Committee shall [...] establish a list of 15 individuals who are willing and able to serve as arbitrators’.
               
               
                  The purpose of the envisaged act is to establish a list of fifteen individuals that could serve as arbitrators in dispute settlement proceedings in accordance with Title VI of the Agreement. The adoption of this list is essential to finalising the operational framework for the Agreement's provisions on dispute avoidance and settlement.
               
            
            
               3.Position to be adopted on behalf of the Union
            
            
               
                  This proposal for a Council Decision establishes the position to be taken on behalf of the Union in the EPA Committee set up by the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part, regarding the establishment of the list of individuals who are willing and able to serve as arbitrators under Article 85 of the Agreement.
               
               
                  The Parties to the Agreement have approved this proposal for a decision, initialled it at the fourth EPA Committee meeting on 18 and 19 February 2019 and, subject to the EU's decision-making procedures, should adopt it at the next EPA Committee meeting due to take place at the end of 2019.
               
               
                  This decision is essential for rendering the Agreement's provisions of Title VI on dispute avoidance and settlement operational and hence for ensuring the smooth implementation of the Agreement.
               
            
            
               4.Procedural 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
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                  ’.
               
            
            
               4.1.2.Application to the present case
            
            
               The EPA Committee is a body set up by an agreement, namely the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part.
            
            
               The act which the EPA Committee is called upon to adopt is an act having legal effects. The envisaged act will be binding under international law in accordance with Article 85 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 envisaged act in respect of which a position is taken on behalf of the Union. 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 common commercial policy. Therefore, the substantive legal basis of the proposed decision is Article 207 TFEU.
            
            
               4.3.Conclusion
            
            
               The legal basis of the proposed decision should be the first subparagraph of Article 207(4) TFEU in conjunction with Article 218(9) TFEU.
            
            
               2019/0160 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
            
               establishing the position to be adopted on behalf of the European Union in the EPA Committee set up by the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part, in connection with the adoption of the list of arbitrators
            
            
               THE COUNCIL OF THE EUROPEAN UNION,
            
            
               Having regard to the Treaty on the Functioning of the European Union (‘TFEU’), and in particular the first subparagraph of Article 207(4), in conjunction with Article 218(9), thereof,
            
         
         
            
               Having regard to the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part (‘the Agreement’)
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               ,
            
            
               Having regard to the proposal from the European Commission,
            
            
               Whereas:
            
            
               (1)The Agreement was concluded on behalf of the European Union (‘the Union’) by Decision 2009/152/EC
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                and has been applied on a provisional basis since 4 August 2014.
            
            
               (2)In accordance with Article 85(1) of the Agreement, the EPA Committee establishes a list of individuals who are willing and able to serve as arbitrators.
            
            
               (3)The EPA Committee, at its annual meeting on [date], is to adopt a decision establishing the list of individuals who are willing and able to serve as arbitrators.
            
            
               (4)It is appropriate to establish the position to be taken on the Union's behalf in the EPA Committee, as the envisaged decision will be binding on the Union.
            
            
               (5)Article 85(1) of the Agreement provides for the establishment of the list of individuals who are willing and able to serve as arbitrators.
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The position to be taken on behalf of the Union in the EPA Committee shall be based on the EPA Committee’s draft decision on the list of individuals who are willing and able to serve as arbitrators, annexed to this Decision.
            
            
               Article 2
            
            
               This Decision is addressed to the Commission.
            
            
               Done at Brussels,
            
            
               
                     For the Council
               
               
                     The President
               
            
         
         
            
                  
                     (1)
                  
                        OJ L 57, 28.2.2009, p. 2
               
               
                  
                     (2)
                  
                        OJ L 17, 21.1.2017, p. 46
               
               
                  
                     (3)
                  
                        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 
               
               
                  
                     (4)
                  
                        OJ L 57, 28.2.2009, p. 2
               
               
                  
                     (5)
                  
                        OJ L 57, 28.2.2009, p. 1
               
            
      
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               EUROPEAN COMMISSION
            Brussels, 25.7.2019
            COM(2019) 348 final
            ANNEX
            to the
            Proposal for a Council Decision
            establishing the position to be adopted on behalf of the European Union in the EPA Committee set up by the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part, in connection with the adoption of the list of arbitrators
            
               
         
         
            
               ATTACHMENT
            
            
               DECISION N°xx/2019 of the EPA Committee
                  set up by the interim agreement with a view to an Economic Partnership Agreement
                  between the European Community and its Member States, of the one part,
                  and the Central Africa Party, of the other part,
            
            
               of xx/xx/2019
            
            
               concerning the adoption of the list of arbitrators
            
            
               THE EPA COMMITTEE,
            
            
               Having regard to the interim agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part, (the ‘Agreement’), signed in Brussels on 15 January 2009, and applied on a provisional basis since 4 August 2014, and in particular Article 85(1) thereof,
            
            
               Whereas:
            
            
               (1)Under the terms of the Agreement and this Decision, the Central Africa Party is composed of the Republic of Cameroon,
            
            
               (2)The Agreement provides that the EPA Committee shall establish a list of fifteen (15) individuals who are willing and able to serve as arbitrators in the settlement of disputes,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The list of fifteen (15) arbitrators as provided for in Article 85(1) has been established as set out in the Annex.
            
            
               The list has been established without prejudice to any special rules provided for in the Agreement or which may be decided by the EPA Committee.
            
            
               Article 2
            
            
               This list may be amended by a decision of the EPA Committee in accordance with Article 92(4) of the Agreement.
            
            
               Article 3
            
            
               This Decision shall enter into force upon its signature.
            
            
               Done at xx, on xx
            
            
                     
                        For the Republic of Cameroon
                     
                     
                  
                  
                     
                        For the European Union
                     
                  
               
                     
                        Alamine Ousmane MEY
                     
                  
                  
                     
                        Cecilia MALMSTRÖM
                     
                  
               
         
            
               
            
               ANNEX
            
            
               List of arbitrators (Article 85(1))
            
            
               Arbitrators selected by the Central Africa Party (Cameroon):
            
            
               Ms Mildred Alugu BEJUKA – Cameroon
            
            
               Mr Jean Michel MBOCK BIUMLA – Cameroon
            
            
               Mr Henri-Désiré MODI KOKO BEBEY – Cameroon
            
            
               Mr David NYAMSI – Cameroon
            
            
               Mr Sadjo OUSMANOU – Cameroon
            
            
               Arbitrators selected by the European Union:
            
            
               Mr Jacques BOURGEOIS – Belgium
            
            
               Mr Claus-Dieter EHLERMANN – Germany
            
            
               Mr Pieter Jan KUIJPER – Netherlands
            
            
               Mr Giorgio SACERDOTI – Italy
            
            
               Mr RamonTORRENT – Spain
            
            
               Arbitrators jointly selected by the two Parties:
            
            
               Mr Thomas COTTIER – Switzerland
            
            
               Mr Fabien GELINAS – Canada
            
            
               Ms Merit E. JANOW – United States
            
            
               Ms Anna KOUYATE – Mali
            
         
         
            
               Mr Helge SELAND – Norway