CELEX: 52020PC0193
Language: en
Date: 2020-05-12
Title: Proposal for a COUNCIL DECISION establishing the position to be taken on behalf of the European Union in the EPA Committee set up by the stepping stone Economic Partnership Agreement between Côte d'Ivoire, of the one part, and the European Community and its Member States, of the other part, in connection with the adoption of the list of arbitrators

EUROPEAN COMMISSION
            Brussels, 12.5.2020
            COM(2020) 193 final
            2020/0077(NLE)
            Proposal for a
            COUNCIL DECISION
            establishing the position to be taken on behalf of the European Union in the EPA Committee set up by the stepping stone Economic Partnership Agreement between Côte d'Ivoire, of the one part, and the European Community and its Member States, 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 stepping stone Economic Partnership Agreement between Côte d’Ivoire, of the one part, and the European Community and its Member States, of the other part (‘the Agreement’)
                  1
               , in connection with the envisaged adoption of the list of persons who are willing and able to serve as arbitrators.
            
            
               2.Context of the proposal
            
            
               2.1.EU-Côte d’Ivoire Stepping Stone Economic Partnership Agreement
            
            
               
                  The aim of the Agreement is to establish an initial framework for an economic partnership agreement in accordance with the Cotonou Agreement. Since 3 September 2016, 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 73 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
                     2
                  . 
               
            
            
               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 64 of the Agreement. 
               
               
                  Article 64(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 persons that could serve as arbitrators in dispute settlement proceedings in accordance with Title V 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 taken on the Union's behalf
            
            
               
                  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 stepping stone Economic Partnership Agreement between Côte d’Ivoire, of the one part, and the European Community and its Member States, of the other part, regarding the establishment of the list of persons who are willing and able to serve as arbitrators under Article 64 of the Agreement.
               
               
                  The Parties to the Agreement have approved this proposal for a decision, initialled it at the fourth EPA Committee meeting on 27 and 28 November 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 2020.
               
               
                  This decision is essential for rendering operational the provisions of Title V of the Agreement on dispute avoidance and settlement 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’
                     3
                  .
               
            
            
               4.1.2.
                     Application to the present case
            
            
               The EPA Committee is a body set up by an agreement, namely the stepping stone Economic Partnership Agreement between the Côte d’Ivoire, of the one part, and the European Community and its Member States, 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 64 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
            
            
               Since the arbitration procedure is in essence applicable to the trade sector, 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 sub-paragraph of Article 207(4), in conjunction with Article 218(9) TFEU.
            
            
               5.PUBLICATION OF THE ENVISAGED ACT
            
            
               As the decision of the EPA Committee will amend the Agreement, it must be published in the Official Journal of the European Union once it has been adopted.
            
            
               2020/0077 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
            
               establishing the position to be taken on behalf of the European Union in the EPA Committee set up by the stepping stone Economic Partnership Agreement between Côte d'Ivoire, of the one part, and the European Community and its Member States, 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 stepping stone Economic Partnership Agreement between Côte d'Ivoire, of the one part, and the European Community and its Member States, of the other part (‘the Agreement’)
                  4
               ,
            
            
               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 2009/156/EC
                  5
                and has been applied on a provisional basis since 3 September 2016.
            
            
               (2)In accordance with Article 64(1) of the Agreement, the EPA Committee establishes a list of persons 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 persons who are willing and able to serve as arbitrators in accordance with Article 64(1) of the Agreement.
            
            
               (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.
            
            
               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 59, 3.3.2009, p. 2.
               
               
                  
                     (2)
                  
                        OJ L 194, 31.7.2018, p. 158.
               
               
                  
                     (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 59, 3.3.2009, p. 3.
               
               
                  
                     (5)
                  
                        OJ L 59, 3.3.2009, p. 1. 
               
            
      
    ---documentbreak--- 
      
         
               EUROPEAN COMMISSION
            Brussels, 12.5.2020
            COM(2020) 193 final
            ANNEX
            to the
            Proposal for a Council Decision
            establishing the position to be taken on behalf of the European Union in the EPA Committee set up by the stepping stone Economic Partnership Agreement between Côte d'Ivoire, of the one part, and the European Community and its Member States, of the other part, in connection with the adoption of the list of arbitrators
            
               
         
         
            
               DRAFT
            
            
               DECISION No .../2020 of the EPA Committee
                  established by the stepping stone Economic Partnership Agreement
                  between Côte d'Ivoire, of the one part, 
                  and the European Community and its Member States, of the other part
            
            
               of ... 
            
            
               concerning the adoption of the list of arbitrators
            
            
               THE EPA COMMITTEE,
            
            
               Having regard to the stepping stone Economic Partnership Agreement between Côte d’Ivoire, of the one part, and the European Community and its Member States, of the other part (‘the Agreement’), signed in Brussels on 3 March 2009 and applied on a provisional basis since September 2016, in particular Article 64(1) thereof,
            
            
               Whereas:
            
            
               The Agreement provides that the EPA Committee is to establish a list of 15 persons who are willing and able to serve as arbitrators in the settlement of disputes that may arise between the Parties,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               1.The list of 15 persons who are willing and able to serve as arbitrators is hereby established in accordance with Article 64(1) of the Agreement and is set out in the Annex to this Decision.
            
            
               2.The list of arbitrators referred to in paragraph 1 is established without prejudice to any special rules provided for in the Agreement or which may be decided by the EPA Committee.
            
            
               Article 2
            
            
               The list of arbitrators referred to in Article 1 may be amended by a decision of the EPA Committee in accordance with Article 67 of the Agreement.
            
            
               Article 3
            
            
               This Decision shall enter into force on the date of its signature.
            
            
               Done at …, …
            
            
               For the Republic of Côte d’Ivoire
                     For the European Union
            
            
               ...
                     …
            
         
         
            
               ANNEX
            
            
               List of arbitrators (Article 64(1) of the Agreement)
            
            
               Arbitrators selected by Côte d’Ivoire:
            
            
               Mr Abbe YAO – Côte d’Ivoire
            
            
               Mr Abdouramane OUATTARA – Côte d’Ivoire
            
            
               Mr Joachim BILA AKA – Côte d’Ivoire
            
            
               Mr Narcisse AKA – Côte d’Ivoire
            
            
               Mr Karim FADIKA – Côte d’Ivoire
            
            
               Arbitrators selected by the European Union:
            
            
               Mr Claus-Dieter EHLERMANN – Germany
            
            
               Mr Giorgio SACERDOTI – Italy
            
            
               Mr Jacques BOURGEOIS – Belgium
            
            
               Mr Pieter Jan KUIJPER – Netherlands
            
            
               Ms Hélène RUIZ FABRI – France
            
            
               Arbitrators jointly selected by the two Parties:
            
            
               Mr Martial AKAKPO - Togo
            
            
               Ms Anna KOUYATE – Mali
            
            
               Mr Thomas COTTIER – Switzerland
            
            
               Ms Merit E. JANOW – United States
            
            
               Mr Helge SELAND – Norway