CELEX: 52018JC0025
Language: en
Date: 2018-08-13
Title: Joint Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, in the Joint Committee established by the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part, as regards the adoption of decisions of the Joint Committee on the Rules of procedure of the Joint Committee and the adoption of the terms of reference of the subcommittees and working groups

EUROPEAN COMMISSION
            Brussels, 13.8.2018
            JOIN(2018) 25 final
            2018/0307(NLE)
            Joint Proposal for a
            COUNCIL DECISION
            on the position to be adopted, on behalf of the European Union, in the Joint Committee established by the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part, as regards the adoption of decisions of the Joint Committee on the Rules of procedure of the Joint Committee and the adoption of the terms of reference of the subcommittees and working groups
            
               
         
         
            
               EXPLANATORY MEMORANDUM
            
            
               1.CONTEXT OF THE PROPOSAL
            
            
               
                  The present proposal concerns the decision establishing the position to be adopted on behalf of the Union in the Joint Committee established by the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part.
               
            
            
               1.1.The EU-Australia Framework Agreement
            
            
               The Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part (‘the Agreement’) aims to establish a strengthened partnership between the EU and its Member States and Australia and to deepen and enhance cooperation on issues of mutual interest, reflecting shared values and common principles, including through intensifying high-level dialogue. The Agreement will create a coherent, legally binding framework for the EU’s relations with Australia. 
            
            
               1.2.The Joint Committee 
            
            
               The Joint Committee is set up by Article 56 of the Agreement. Its main tasks are to facilitate implementation and to further the general aims of the Agreement, as well to maintain overall coherence in the EU-Australia relations. Other functions of the Joint Committee include: monitoring the development of the relations between the EU and Australia; exchanging views and making suggestions on any issues of common interest; endeavouring to resolve disputes which might arise in areas covered by the Agreement. 
            
            
               The Joint Committee is to make recommendations and adopt decisions, where appropriate, to give effect to the specific aspects of the Agreement. The Joint Committee operates by consensus and it meets at the senior official level. The Joint Committees is to adopt its rules of procedure. It may set up subcommittees and working groups to deal with specific issues. 
            
            
               1.3The envisaged act of the Joint Committee
            
            
               The purpose of the envisaged acts is to adopt, in accordance with Article 56(4) of the Agreement, the Rules of procedure underpinning the organisation of the Joint Committee and the terms of reference of the subcommittees and working groups to allow for the implementation of the Agreement. 
            
            
               2.Position to be adopted on behalf of the Union
            
            
               The position to be adopted on behalf of the Union should aim at the adoption of the Rules of procedure of the EU-Australia Joint Committee and the terms of reference of the subcommittees and working groups. The position should be based on the draft decisions of the Joint Committee. 
            
            
               3.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
            
            
               3.1Procedural legal basis
            
            
               3.1.1Principles
            
            
               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 notion 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’.
                  1
               
            
            
               3.1.2Application to the present case
            
            
               The Joint Committee is a body set up by the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part.
            
         
         
            
               The acts the Joint Committee is called upon to adopt constitute acts having legal effects. This is because in accordance with Article 56(3)(i) of Agreement, the Joint Committee is to adopt decisions, which are binding upon the Parties to the Agreement.
            
            
               The envisaged acts do not supplement or amend the institutional framework of the Agreement.
            
            
               The procedural legal basis for the proposed decision, therefore, is Article 218(9) TFEU.
            
            
               3.2Substantive legal basis
            
            
               3.2.1Principles
            
            
               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 a position is adopted 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.
            
            
               With regard to an envisaged act that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one being incidental to the other, the substantive legal basis of a decision under Article 218(9) TFEU will have to include, exceptionally, the various corresponding legal bases.
            
            
               3.2.2Application to the present case
            
            
               The envisaged acts aim at furthering the objectives of the Agreement and at facilitating its implementation. 
            
            
               The Agreement pursues objectives and includes components from the areas of the Common Foreign and Security Policy, the Common Commercial Policy and cooperation with developed countries. These aspects of the Agreement are inseparably linked without one being incidental to the other. The signing of the Agreement was based on Article 37 TEU, Article 207 TFEU and Article 212(1).
            
            
               The envisaged act should therefore be based on the same substantive legal bases.
            
            
               3.3Conclusion
            
            
               In light of the above, the legal basis of the proposed decision should therefore be Article 37 TEU, Article 207 TFEU and Article 212(1) TFEU read in conjunction with Article 218(9) TFEU.
            
            
            
               2018/0307 (NLE)
            
            
               Joint Proposal for a
            
            
               COUNCIL DECISION
            
            
               on the position to be adopted, on behalf of the European Union, in the Joint Committee established by the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part, as regards the adoption of decisions of the Joint Committee on the Rules of procedure of the Joint Committee and the adoption of the terms of reference of the subcommittees and working groups
            
            
               THE COUNCIL OF THE EUROPEAN UNION,
            
            
               Having regard to the Treaty on European Union, and in particular Article 37 thereof,
            
         
         
            
               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207 and 212(1), in conjunction with Article 218(9), thereof,
            
            
               Having regard to the joint proposal of the High Representative of the Union for Foreign Affairs and Security Policy and of the European Commission,
            
            
               Whereas:
            
            
               (1)The Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part
                  2
                ('the Agreement') was signed in Manila on 7 August 2017 and is provisionally applied as of […];
            
            
               (2)Article 56(1) of the Agreement establishes a Joint Committee to facilitate the implementation of the Agreement ('the Joint Committee');
            
            
               (3)Article 56(4) of the Agreement provides that the Joint Committee is to adopt its rules of procedure and that it may set-up sub-committees and working groups to deal with specific issues;
            
            
               (4)The Joint Committee's rules of procedure and the terms of reference of the sub-committees and working groups should be adopted as soon as possible,  in order to ensure the effective implementation of the Agreement;
            
            
               (5)The position of the Union within the Joint Committee should therefore be based on the attached draft Joint Committee Decisions,
            
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The position to be taken on behalf of the Union in the first meeting of the Joint Committee shall be based on the draft Decisions of the Joint Committee attached to this Decision.
            
            
            
            
            
            
               Article 2
            
            
               This Decision shall enter into force on the date of its adoption.
            
            
            
               Done at Brussels,
            
         
         
            
               
                     For the Council
               
               
                     The President
               
            
         
         
            
                  
                     (1)
                  
                        Case C-399/12 Germany v Council (OIV), ECLI:EU:C:2014:2258, paragraphs 61-64. 
               
               
                  
                     (2)
                  
                        OJ L 237, 15.09.2017, p. 7.
               
            
      
    ---documentbreak--- 
      
         
               EUROPEAN COMMISSION
            Brussels,13.8.2018
            JOIN(2018) 25 final
            Joint Proposal for a
            ANNEXES
            to the
            Council Decision
            on the position to be adopted, on behalf of the European Union, in the Joint Committee established by the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part, as regards the adoption of decision of the Joint Committee on the Rules of Procedure of the Joint Committee and on terms of reference of the subcommittees and working groups
            
               
         
         
            
               ANNEX 1
            
            
            
               Decision No 1/2018 of the EU-Australia Joint Committee
            
            
               of …
            
            
               adopting its Rules of Procedure
            
            
            
               THE EU-AUSTRALIA JOINT COMMITTEE,
            
            
               Having regard to the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part
                  1
                (‘the Agreement’), and in particular Article 56 thereof,
            
            
               Whereas:
            
            
               (1)Parts of the Agreement have been applied provisionally since […],
            
            
               (2)The Joint Committee should therefore adopt its rules of procedure,
            
            
            
               HAS ADOPTED THIS DECISION:
            
            
            
               Article 1
            
            
               The rules of procedure of the EU-Australia Joint Committee, as set out in the Annex, are hereby adopted.
            
            
            
               Article 2 
            
            
               This decision will enter into effect on the date of its adoption.
            
         
         
            
            
               Signed at …, 
            
            
            
               For the EU-Australia Joint Committee
            
            
               The Co-Chairs
            
            
            
               Annex to Decision 1
            
            
               EU-Australia Framework Agreement
            
            
               RULES OF PROCEDURE OF THE JOINT COMMITTEE
            
            
            
               Article 1
            
            
               Tasks and composition
            
            
               1.The Joint Committee will perform the tasks provided for in Article 56 of the Agreement.
            
            
               2.The Joint Committee will be composed of representatives of the Parties at the appropriate level.
            
            
            
               Article 2
            
            
               Chair
            
            
               The Joint Committee will be co-chaired by the two sides.
            
            
            
               Article 3
            
         
         
            
               Meetings
            
            
               1.The Joint Committee will normally meet once a year, unless otherwise decided by the Parties. The meetings will be convened by the Co-Chairs and held alternately in Brussels and Canberra, on a date fixed by mutual decision. Extraordinary meetings of the Joint Committee may be held at the request of either Party, if the Parties so mutually decide.
            
            
               2.The Joint Committee will normally meet at the level of senior official but may meet at ministerial level.
            
            
            
               Article 4
            
            
               Publicity
            
            
               Unless otherwise decided, meetings of the Joint Committee will not be public.
            
            
            
               Article 5
            
            
               Participants
            
            
               1.Before each meeting, the Co-Chairs will be informed, through the secretaries of the intended composition of their side's delegation.
            
            
               2.Where appropriate and with the approval of the Parties, experts or representatives of other bodies may be invited to attend Joint Committee meetings as observers or in order to provide information on a particular subject.
            
            
            
            
               Article 6
            
            
               Secretaries
            
            
               A representative of the European External Action Service and a representative of the Department of Foreign Affairs and Trade of Australia will act jointly as secretaries of the Joint Committee. All communications to and from the Co-chairs of the Joint Committee will be forwarded to the secretaries. Correspondence to and from the Co-chairs of the Joint Committee may be by any written means, including electronic mail.
            
            
            
               Article 7
            
            
               Agendas for meetings
            
         
         
            
               1.The Co-chairs will draw up a provisional agenda for each meeting. This will be forwarded, together with the relevant documents, to the other Party no later than 15 days before the beginning of the meeting.
            
            
               2.The provisional agenda will include items submitted to the Co-Chairs no later than 21 days before the beginning of the meeting.
            
            
               3.The final agenda will be adopted by the Joint Committee at the beginning of each meeting. Items other than those on the provisional agenda may be placed on the agenda if the Parties so mutually decide.
            
            
               4.With the approval of the Parties to the Agreement, the Co-chairs may shorten the time limits referred to in Article 7(1) and Article 7(2) where required.
            
            
            
               Article 8
            
            
               Minutes
            
            
               1.The secretaries will jointly produce draft minutes of each meeting, normally within 30 calendar days of the end of the meeting. The draft minutes will be based on a summary by the Co-chairs of the conclusions reached by the Joint Committee.
            
            
               2.The draft minutes will be approved by both Parties within 45 calendar days of the end of the meeting or by any other date jointly approved by the Parties. Once there is mutual consent on the draft minutes, two original copies will be signed by the Co-Chairs and the secretaries. Each Party will receive one original copy.
            
            
            
               Article 9
            
            
               Decisions and recommendations
            
            
               1.The Joint Committee may take decisions or recommendations. These will be entitled ‘Decision’ or ‘Recommendation’, followed by a serial number, the date of their adoption and a description of the subject matter. Each decision will state the date of its entry into force. 
            
            
               2.The Joint Committee may decide to adopt decisions or recommendations by means of a written procedure. In such cases, the Parties will mutually decide a time-limit for the duration of the procedure. If at the expiry of that time-limit, no Party has expressed opposition to the proposed decision or recommendation, the Co-chairs of the Joint Committee will declare the decision or recommendation to have been adopted by mutual consent. 
            
            
               3.Decisions and recommendations adopted by the Joint Committee will be recorded in two valid copies signed by the Co-Chairs of the Joint Committee.
            
            
               4.Each Party may decide to publish the Joint Committee’s decisions and recommendations in its respective official publication.
            
            
            
               Article 10
            
            
               Correspondence
            
            
               1.Correspondence addressed to the Joint Committee will be directed to the secretary of the Party to which the author belongs, who will in turn inform the other secretary.
            
         
         
            
               2.The secretaries will ensure that correspondence addressed to the Joint Committee is forwarded to the Co-Chairs and circulated, where appropriate, in line with Article 11.
            
            
               3.Correspondence from the Co-Chairs will be sent to the Parties by the secretaries and circulated, where appropriate, as documents referred to in Article 11.
            
            
               4.Correspondence to and from the Co-Chairs may be by any written means, including electronic mail.
            
            
            
               Article 11
            
            
               Documents
            
            
               Where the deliberations of the Joint Committee are based on documents, those documents will be numbered and circulated by the secretaries to the participants.
            
            
            
               Article 12
            
            
               Expenses
            
            
               1.Each Party  will meet any expenses it incurs as a result of participating in the meetings of the Joint Committee with regard to staff, travel, and subsistence expenditure as well as postal and telecommunications expenditure.
            
            
               2.Expenditure in connection with the organisation of meetings and the reproduction of documents will be borne by the Party hosting the meeting.
            
            
            
               Article 13
            
            
               Amendment of the rules of procedure
            
            
               1.The Parties may mutually decide to amend these rules of procedure, in line with Article 9.
            
            
               2.Joint Committee may decide to set up subcommittees and working groups to assist it in carrying out its tasks.
            
            
               3.The Joint Committee may decide to abolish any subcommittee or working group that it has established or to determine or amend its terms of reference.
            
            
               4.The Subcommittees and Working Groups will report to the Joint Committee after each of their meetings.
            
            
               5.The Working Groups will have no decision-making power, but may submit recommendations to the Joint Committee.
            
         
         
            
            
               ANNEX 2
            
            
            
               Decision No 2/2018 of the EU-Australia Joint Committee
            
            
               of … 
            
            
               on the adoption of Subcommittees’ and Working Groups’ terms of reference
            
            
            
            
               THE EU-AUSTRALIA JOINT COMMITTEE,
            
            
               Having regard to the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part (‘the Agreement’), and in particular Article 56 thereof, and to Article 13 of the Joint Committee’s rules of procedure,
            
            
               Whereas:
            
            
               (1)
                     Pursuant to Article 13(2) of its rules of procedure, the Joint Committee may set up Subcommittees and Working groups to assist it in the performance of its tasks,
            
            
            
               HAS ADOPTED THIS DECISION:
            
            
            
               Article 1
            
            
               The terms of reference of the Joint Committee’s Subcommittees and Working Groups, as set out in the Annex, are hereby adopted.
            
            
            
               Article 2
            
            
               This decision will enter into effect on the date of its adoption
            
         
         
            
            
               Signed at …, xxxx.
            
            
            
                  For the EU-Australia Joint Committee
            
            
                  The Co-Chairs 
            
            
            
               
            
               Annex to Decision 2
            
            
               Terms of reference
            
            
               of Subcommittees and Working groups
            
            
            
               Article 1
            
            
               The Subcommittees and Working Groups may discuss the implementation of the Agreement in their areas of responsibility. They may also discuss subjects or specific projects relating to the relevant area of bilateral cooperation.
            
            
            
               Article 2
            
            
               The Subcommittees and Working Groups will work under the authority of the Joint Committee. They will report and transmit their minutes and conclusions to the Co-Chairs of the Joint Committee within 30 calendar days of the end of each meeting.
            
            
            
               Article 3
            
            
               1. The Subcommittees and Working Groups will be composed of representatives of both Parties.
            
            
               2. The Subcommittees and Working Groups may invite experts to their meetings and may hear them regarding specific points on the agenda.
            
         
         
            
            
               Article 4
            
            
               The Subcommittees and Working Groups will be co-chaired by the two sides.
            
            
            
               Article 5
            
            
               A representative of each side will act jointly as secretaries of the Subcommittees and Working Groups.
            
            
            
               Article 6
            
            
               1. The Subcommittees and Working groups will meet whenever circumstances require, on the basis of a written request from either Party each meeting will be held at a place and on a date mutually decided by the Parties
            
            
               2. Where one Party requests a meeting, the secretary of the other Party will reply within 15 working days of receipt of that request. In cases of particular urgency, Subcommittees' and Working Groups' meetings may be convened at shorter notice, subject to the mutual consent of the Parties.
            
            
               3. Meetings of the Subcommittees and Working Groups will be jointly convened by the two Secretaries.
            
            
            
            
               Article 7
            
            
               1. Either Party may request the co-chairs to put an item on the agenda for a meeting. Such requests will be submitted to the Secretaries at least 15 working days, and any supporting documentation at least 10 working days, before the meeting.
            
            
               2. The secretaries will communicate the draft agenda to the Parties not later than 5 working days before the meeting. In exceptional circumstances, the Parties may mutually decide to add items to the agenda at short notice.
            
            
            
               Article 8
            
            
               1. The secretaries will jointly produce draft minutes of each meeting.
            
            
               2. Unless the Parties decide otherwise, meetings will not be public.
            
         
         
            
            
         
         
            
                  
                     (1)
                  
                        OJ EU L ….