CELEX: 52018PC0724
Language: en
Date: 2018-11-05
Title: Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Joint Council established under the Economic Partnership Agreement between the European Union and its Member States, of the on part, and the SADC EPA States, of the other part as regards the adoption of the Rules of Procedure for the Joint Council and for the Trade and Development Committee

EUROPEAN COMMISSION
            Brussels, 5.11.2018
            COM(2018) 724 final
            2018/0374(NLE)
            Proposal for a
            COUNCIL DECISION
            on the position to be taken on behalf of the European Union in the Joint Council established under the Economic Partnership Agreement between the European Union and its Member States, of the on part, and the SADC EPA States, of the other part as regards the adoption of the Rules of Procedure for the Joint Council and for the Trade and Development Committee
            
               
         
         
            
               EXPLANATORY MEMORANDUM
            
            
               1.Subject matter of the proposal
            
            
               This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Joint Council set up by the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the Southern African Development Community (‘SADC’) EPA States, of the other part, in connection with the envisaged adoption of the Rules of Procedure of the Joint Council and the Rules of Procedure of the Trade and Development Committee.
            
            
               2.Context of the proposal
            
            
               2.1.The Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part
            
            
               The Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part (‘the Agreement’) aims to:
            
            
               (a)contribute to the reduction and eradication of poverty through the establishment of a trade partnership consistent with the objective of sustainable development, the MDGs and the Cotonou Agreement; 
            
            
               (b)promote regional integration, economic cooperation and good governance to establish and implement an effective, predictable and transparent regional regulatory framework for trade and investment between the Parties and among the SADC EPA States; 
            
            
               (c)promote the gradual integration of the SADC EPA States into the world economy in conformity with their political choices and development priorities; 
            
            
               (d)improve the SADC EPA States' capacity in trade policy and trade-related issues; 
            
            
               (e)support the conditions for increasing investment and private sector initiatives and enhancing supply capacity, competitiveness and economic growth in the SADC EPA States; and 
            
            
               (f)strengthen the existing relations between the Parties on the basis of solidarity and mutual interest. 
            
            
               The Agreement is provisionally applied between the European Union and its Member States, of the one part, and Botswana, Lesotho, Namibia, Eswatini and South Africa, of the other part, from 10 October 2016, and between the European Union and its Member States, of the one part, and Mozambique, of the other part, from 4 February 2018.
            
            
               2.2.The Joint Council
            
            
               Article 100 of the Agreement establishes the Joint Council and provides that it "shall oversee and administer the implementation of this Agreement".
            
            
               Article 101 of the Agreement provides that the Joint Council shall be composed, on the one hand, of the relevant members of the Council of the EU and relevant members of the European Commission or their representatives, and, on the other hand, of the relevant Ministers of the SADC EPA States or their representatives. The functions of the Joint Council's include establishing its own rules of procedure and the rules of procedure of the Trade and Development Committee.
            
            
               Article 102 of the Agreement foresees that the Joint Council adopts decisions by consensus and that those decisions shall be binding on the Parties. 
            
            
               2.3.The envisaged act of the Joint Council
            
            
               During its first meeting, the Joint Council is to adopt a decision regarding the Rules of Procedure of the Joint Council and the Rules of Procedure of the Trade and Development Committee (‘the envisaged act’).
            
         
         
            
               The purpose of the envisaged act is to establish the rules on the organisation and functioning of the Joint Council and of the Trade and Development Committee.
            
            
               3.Position to be taken on the Union's behalf
            
            
               This proposal for a Council Decision establishes the position to be taken on the Union's behalf in the Joint Council set up by the EU-SADC EPA with regard to the rules of procedures of the Joint Council and of the Trade and Development Committee.
            
            
               The Parties to the Agreement discussed these rules of procedures and agreed that, subject to the EU's decision making procedures, these should be adopted at the first meeting of the Joint Council that is foreseen for the first semester of 2019. 
            
            
               The substance of the attached rules of procedure is very similar to that of rules of procedure of other Economic Partnership Agreements or other trade agreements. 
            
            
               Rules of procedure are essential for completing the institutional framework of the Agreement and hence for ensuring a smooth implementation of the Agreement. 
            
            
               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’
                  1
               .
            
            
               4.1.2.Application to the present case
            
            
               The Joint Council is a body set up by an agreement, namely the EU-SADC EPA.
            
            
               The act which the Joint Council is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Article 102(2) of the Agreement. 
            
            
               The envisaged act does not supplement or amend the institutional framework of the Agreement.
            
            
               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 a 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 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 Article 207 TFEU, in conjunction with Article 218(9) TFEU.
            
            
               2018/0374 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
            
               on the position to be taken on behalf of the European Union in the Joint Council established under the Economic Partnership Agreement between the European Union and its Member States, of the on part, and the SADC EPA States, of the other part as regards the adoption of the Rules of Procedure for the Joint Council and for the Trade and Development Committee
            
            
               THE COUNCIL OF THE EUROPEAN UNION,
            
            
               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207, in conjunction with Article 218(9) thereof,
            
            
               Having regard to the proposal from the European Commission,
            
            
               Whereas:
            
            
               (1)The Economic Partnership Agreement between the European Union and its Member States, of the one part, and the Southern African Development Community (‘SADC’) EPA States, of the other part, was signed by the European Union and its Member States on 10 June 2016
                  2
                (‘the Agreement’). It is provisionally applied between the European Union and its Member States, of the one part, and Botswana, Lesotho, Namibia, Eswatini and South Africa, of the other part, from 10 October 2016, and between the European Union and its Member States, of the one part, and Mozambique, of the other part, from 4 February 2018.
            
            
               (2)Pursuant to Article 102(1) of the Agreement, the Joint Council may adopt decisions in respect of all matters covered by this Agreement. Pursuant to Article 101(3)(h) and (i) the Joint Council establishes its own rules of procedure and the rules of procedure of the Trade and Development Committee.
            
            
               (3)The Joint Council during its first meeting is to adopt decisions with regard to its Rules of Procedure and the Rules of Procedure of the Trade and Development Committee.
            
            
               (4)It is appropriate to establish the position to be taken on the Union's behalf in the Joint Council, as the envisaged Joint Council decision will be binding on the Union,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The position to be taken on the Union's behalf in the first meeting of the Joint Council shall be based on the draft decision of the Joint Council with regard to the Rules of Procedure of the Joint Council and the Rules of Procedure of the Trade and Development Committee which is attached to this Decision.
            
            
               Article 2
            
         
         
            
               This Decision is addressed to the Commission.
            
            
               Done at Brussels,
            
            
               
                     For the Council
               
               
                     The President
               
            
         
         
            
                  
                     (1)
                  
                        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. 
               
               
                  
                     (2)
                  
                        Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part (OJ L 250, 16.9.2016, p. 3). 
               
            
      
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               EUROPEAN COMMISSION
            Brussels, 5.11.2018
            COM(2018) 724 final
            ANNEX
            to the
            Proposal for a Council Decision
            on the position to be taken on behalf of the European Union in the Joint Council established under the Economic Partnership Agreement between the European Union and its Member States, of the on part, and the SADC EPA States, of the other part as regards the adoption of the Rules of Procedure for the Joint Council and for the Trade and Development Committee
            
               
         
         
            
               ATTACHMENT
            
            
               DECISION No 1 OF THE JOINT COUNCIL
            
            
               of
            
            
               on the adoption of the Rules of Procedure of the Joint Council and of the Trade and Development Committee
            
            
               THE JOINT COUNCIL,
            
            
               Having regard to the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part ("the Agreement"), signed in Kasane on 10 June 2016, and in particular Articles 100, 101 and 102 thereof,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               1.The Rules of Procedure of the Joint Council are established as set out in Annex I.
            
            
               2.The Rules of Procedure of the Trade and Development Committee are established as set out in Annex II.
            
            
               3.This Decision shall enter into force on the date of its adoption.
            
            
               Done at ................ on…………………
            
            
                  
            
            
                     
                        For the Joint Council
                     
                  
               
                     
                        Minister for Trade of 
                     
                  
                  
                     
                        EU representative
                     
                     
                     
                     
                  
               
               ANNEX I
            
            
               RULES OF PROCEDURE OF THE JOINT COUNCIL
            
            
               CHAPTER I
            
            
               ORGANISATION
            
            
               Article 1
            
            
               Composition and Chair
            
         
         
            
               1.The Joint Council that is established by Article 100 of the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part, ("the Agreement") shall perform its duties as provided for in Articles 100 and 101 of the Agreement.
            
            
               2.Reference to "the Parties" in these Rules of Procedure shall be in accordance with the definition provided for in Article 104 of the Agreement. 
            
            
               3.As provided for in Article 101(1) of the Agreement, the Joint Council shall be composed, on the one hand, of the relevant members of the Council of the EU and relevant members of the European Commission or their representatives, and, on the other hand, of the relevant Ministers of the SADC EPA States or their representatives.
            
            
               4.The Joint Council shall be chaired, at Ministerial level, alternately by a representative of the Council of the European Union and a representative of the European Commission on behalf of the EU Party, and by a representative of the SADC EPA States. The first meeting of the Joint Council shall be co-chaired by the Parties. 
            
            
               5.The mandate corresponding to the first period shall begin on the date of the first meeting of the Joint Council and end on 31 December of the same year. 
            
            
               Article 2
            
            
               Meetings
            
            
               1.As provided for in Article 102(4), the Joint Council shall meet at regular intervals, not exceeding a period of two (2) years, and extraordinarily whenever circumstances so require, if the Parties so agree. 
            
            
               2.The meetings shall be held in Brussels or in the territory of one of the SADC EPA states alternately, unless the Parties agree otherwise.
            
            
               3.Unless the Parties agree otherwise, meetings of the Joint Council shall be convened by the Party holding the Chair, after consulting the other Party. 
            
            
               4.The Parties may agree to hold the meetings of the Joint Council via electronic means.
            
            
               Article 3
            
            
               Observers
            
            
               The Joint Council may decide to invite observers on an ad hoc basis and determine which agenda items will be open to those observers. 
            
            
               Article 4
            
            
               Secretariat
            
            
               1.The Party hosting the meeting of the Joint Council shall act as the Secretariat. 
            
            
               2.When the meeting takes place via electronic means, the Party holding the chairmanship shall act as the Secretariat. 
            
            
               CHAPTER II
            
            
               FUNCTIONING
            
         
         
            
               Article 5
            
            
               Documents
            
            
               Where the deliberations of the Joint Council are based on written supporting documents, such documents shall be numbered and circulated by the Secretariat of the Joint Council as documents of the Joint Council.
            
            
               Article 6
            
            
               Notification and Agenda for the Meetings
            
            
               1.The Secretariat shall notify the Parties of the convening of a Meeting and request inputs for the agenda no later than thirty (30) days before the meeting. In case of an urgent matter and / or unforeseen circumstances to be considered the meeting may be convened at short notice. 
            
            
               2.A provisional agenda for each meeting shall be drawn up by the Secretariat of the Joint Council. It shall be forwarded by the Secretariat to the Chair and members of the Joint Council no later than fourteen (14) days before the beginning of the meeting. 
            
            
               3.The provisional agenda shall include items in respect of which the Secretariat of the Joint Council has received a request for inclusion in the agenda by a Party.
            
            
               4.The agenda shall be adopted by the Joint Council at the beginning of each meeting. Items other than those appearing on the provisional agenda may be placed on the agenda if the Parties so agree.
            
            
               5.The Chairperson of the Joint Council may, upon agreement by all Parties, invite experts to attend its meetings in order to provide information on specific subjects.
            
            
               Article 7
            
            
               Report of Meeting
            
            
               Unless the Parties agree otherwise, the Report of each meeting shall be drawn up by the Secretariat of the Joint Council and adopted at the end of each meeting.
            
            
               Article 8
            
            
               Decisions and recommendations
            
            
               1.As provided for in Article 102 of the Agreement, the Joint Council shall adopt by consensus decisions or recommendations in the cases provided for in the Agreement.
            
            
               2.Where the Joint Council is empowered under the Agreement to adopt decisions or recommendations, such acts shall be entitled "Decision" or "Recommendation" respectively in the report of the meetings. The Secretariat of the Joint Council shall give any adopted decision or recommendation a serial number, the date of adoption and a description of their subject-matter. Each decision or recommendation shall provide for the date of its entry into force. 
            
            
               3.In the event that a SADC EPA State is not in attendance, the decisions and/ or recommendations of the meeting shall, be communicated to that member that was unable to attend the meeting by the Secretariat. That SADC EPA State shall provide a written response within ten (10) calendar days from dispatch of the decisions and/ or recommendations, indicating those decisions and/ or recommendations they are not in agreement with, including reasons thereof. In the absence of the above mentioned written response within ten (10) calendar days, the decisions and/ or recommendations shall be deemed adopted. In the event that the SADC EPA State that did not attend disagrees with decisions and/ or recommendations, the procedure in Paragraph 4 will apply. 
            
            
               4.In the period between meetings, the Joint Council may adopt decisions and recommendations by written procedure or by electronic means if both Parties so agree. A written procedure shall consist of an exchange of notes between representatives of the Parties. 
            
            
               5.Decisions and recommendations adopted by the Joint Council shall be authenticated by making an authentic copy signed by a representative of the European Union and by a representative of the SADC EPA States. 
            
         
         
            
               Article 9
            
            
               Public Access
            
            
               1.The meetings of the Joint Council shall not be public, unless otherwise decided. 
            
            
               2.The Parties may decide to publish the decisions and recommendation of the Joint Council. 
            
            
               CHAPTER III
            
            
               FINAL PROVISIONS
            
            
               Article 10
            
            
               Expenses
            
            
               1.Each Party shall meet any expenses it incurs as a result of participating in the meetings of the Joint Council, both with regard to staff, travel and subsistence expenditure and with regard to postal and telecommunications expenditure.
            
            
               2.Expenditure in connection with the organisation of meetings, the provision of interpretation services and reproduction of documents shall be borne by the Party hosting the meeting.
            
            
               Article 11
            
            
               Trade and Development Committee
            
            
               As provided for in Article 103(5) of the Agreement, the Trade and Development Committee shall report to the Joint Council.
            
            
               Article 12
            
            
               Amendment of the Rules of Procedure 
            
            
               These Rules of Procedure may be amended in writing by a decision of the Joint Council in accordance with Article 8.
            
            
               ANNEX II
            
            
               RULES OF PROCEDURE OF THE TRADE AND DEVELOPMENT COMMITTEE
            
            
               CHAPTER I
            
            
               ORGANISATION
            
         
         
            
               Article 1
            
            
               Composition and Chair
            
            
               1.The Trade and Development Committee that is established in accordance with Article 103 of Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part, ("the Agreement") shall perform its duties as provided for in Article 103 of the Agreement.
            
            
               2.Reference to "the Parties" in these Rules of Procedure shall be in accordance with the definition provided for in Article 104 of the Agreement. 
            
            
               3.As provided for in Article 103(1) of the Agreement, the Trade and Development Committee shall be composed of the representatives of the Parties, normally at the level of senior officials.
            
            
               4.As provided for in Article 103(2) of the Agreement, the Trade and Development Committee shall be chaired alternately by a senior official of the European Commission and by a senior official of the SADC EPA States. The first meeting of the Trade and Development Committee shall be co-chaired by a senior official of the European Commission and by a senior official of the SADC EPA States.
            
            
               5.The mandate corresponding to the first period shall begin on the date of the first meeting of the Trade and Development Committee and end on 31 December of the same year. 
            
            
               Article 2
            
            
               Meetings
            
            
               1.The Trade and Development Committee shall meet at least once a year or at the request of either Party. The meetings shall be held in Brussels or in the territory of one of the SADC EPA states alternately, unless the Parties agree otherwise.
            
            
               2.Unless the Parties agree otherwise, meetings of the Trade and Development Committee shall be convened by the Party holding the Chair, after consulting the other Party. 
            
            
               3.The Parties may agree to hold the meetings of the Trade and Development Committee via electronic means.
            
            
               Article 3
            
            
               Observers
            
            
               The Trade and Development Committee may decide to invite observers on an ad hoc basis and determine which agenda items will be open to those observers. 
            
            
               Article 4
            
            
               Secretariat
            
            
               1.The Party hosting the meeting of the Trade and Development Committee shall act as the Secretariat. 
            
            
               2.When the meeting takes place via electronic means, the Party holding the chairmanship shall act as the Secretariat. 
            
            
               CHAPTER II
            
         
         
            
               FUNCTIONING
            
            
               Article 5
            
            
               Documents
            
            
               Where the deliberations of the Trade and Development Committee are based on written supporting documents, such documents shall be numbered and circulated by the Secretariat of the Trade and Development Committee as documents of the Trade and Development Committee.
            
            
               Article 6
            
            
               Notification and Agenda for the Meetings
            
            
               1.The Secretariat shall notify the Parties of the convening of a Meeting and request inputs for the agenda no later than 30 days before the meeting. In case of an urgent matter and / or unforeseen circumstances to be considered the meeting may be convened at short notice. 
            
            
               2.A provisional agenda for each meeting shall be drawn up by the Secretariat of the Trade and Development Committee. It shall be forwarded by the Secretariat to the Chair and members of the Trade and Development Committee no later than 14 days before the beginning of the meeting. 
            
            
               3.The provisional agenda shall include items in respect of which the Secretariat of the Trade and Development Committee has received a request for inclusion in the agenda by a Party.
            
            
               4.The agenda shall be adopted by the Trade and Development Committee at the beginning of each meeting. Items other than those appearing on the provisional agenda may be placed on the agenda if the Parties so agree.
            
            
               5.The Chairperson of the Trade and Development Committee may, upon agreement by all Parties, invite experts to attend its meetings in order to provide information on specific subjects.
            
            
               Article 7
            
            
               Report of Meeting
            
            
               Unless the Parties agree otherwise, the Report of each meeting shall be drawn up by the Secretariat of the Trade and Development Committee and adopted at the end of each meeting.
            
            
               Article 8
            
            
               Decisions and recommendations
            
            
               1.As provided for in Article 103(6) of the Agreement, the Trade and Development Committee shall adopt by consensus decisions or recommendations in the cases provided for in the Agreement or where such power has been delegated to it by the Joint Council. 
            
            
               2.Where the Trade and Development Committee is empowered under the Agreement to adopt decisions or recommendations, or where such power has been delegated to it by the Joint Council, such acts shall be entitled "Decision" or "Recommendation" respectively in the report of the meetings. The Secretariat of the Trade and Development Committee shall give any adopted decision or recommendation a serial number, the date of adoption and a description of their subject-matter. Each decision or recommendation shall provide for the date of its entry into force. 
            
            
               3.In the event that a SADC EPA State is not in attendance, the decisions and/ or recommendations of the meeting shall, be communicated to that member that was unable to attend the meeting by the Secretariat. That SADC EPA State shall provide a written response within 10 calendar days from dispatch of the decisions and/ or recommendations, indicating those decisions and/ or recommendations they are not in agreement with, including reasons thereof. In the absence of the above mentioned written response within 10 calendar days, the decisions and/ or recommendations shall be deemed adopted. In the event that the SADC EPA State that did not attend disagrees with decisions and/ or recommendations, the procedure in Paragraph 4 will apply. 
            
            
               4.In the period between meetings, the Trade and Development Committee may adopt decisions and recommendations by written procedure or by electronic means if both Parties so agree. A written procedure shall consist of an exchange of notes between representatives of the Parties. 
            
         
         
            
               5.Decisions and recommendations adopted by the Trade and Development Committee shall be authenticated by making an authentic copy signed by a representative of the European Union and by a representative of the SADC EPA States. 
            
            
               Article 9
            
            
               Public Access
            
            
               1.The meetings of the Trade and Development Committee shall not be public, unless otherwise decided. 
            
            
               2.The Parties may decide to publish the decisions and recommendation of the Trade and Development Committee. 
            
            
               CHAPTER III
            
            
               FINAL PROVISIONS
            
            
               Article 10
            
            
               Expenses
            
            
               1.Each Party shall meet any expenses it incurs as a result of participating in the meetings of the Trade and Development Committee, both with regard to staff, travel and subsistence expenditure and with regard to postal and telecommunications expenditure.
            
            
               2.Expenditure in connection with the organisation of meetings, the provision of interpretation services and reproduction of documents shall be borne by the Party hosting the meeting.
            
            
               Article 11
            
            
               Special Committees and other bodies 
            
            
               1.The Special Committee on Customs and Trade Facilitation, established under Article 50 of the Agreement, the Agricultural Partnership, established under Article 68 of the Agreement, and the Special Committee on Geographical Indications and Trade in Wines and Spirits, established under Article 13 of Protocol 3 of the Agreement, shall report to the Trade and Development Committee.
            
            
               2.As provided for in Article 50(2)(f) of the Agreement and Article 13(5) of Protocol 3 of the Agreement respectively, the Special Committee on Customs and Trade Facilitation and the Special Committee on Geographical Indications and Trade in Wines and Spirits shall determine their own rules of procedure. 
            
            
               3.As provided for in Article 68(3) of the Agreement, the operational rules for the Agricultural Partnership shall be established by common agreement of the Parties acting within the Trade and Development Committee.
            
            
               4.As provided for in Article 103(3) of the Agreement, the Trade and Development Committee may establish any technical special groups to deal with specific matters falling within their competence. 
            
            
               5.The Trade and Development Committee shall establish the rules of procedure for special technical groups. The Trade and Development Committee may decide to abolish special technical groups and define or amend their terms of reference. 
            
            
               6.Special technical groups shall report to the Trade and Development Committee after each meeting. 
            
            
               Article 12
            
         
         
            
               Amendment of the Rules of Procedure 
            
            
               These Rules of Procedure may be amended in writing by a decision of Trade and Development Committee in accordance with Article 8.