Explanatory Memorandum to COM(2021)637 - EU position as regards the adoption of the Rules of Procedure for two Special Committees established by the Economic Partnership Agreement with the SADC EPA States - Main contents
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| dossier | COM(2021)637 - EU position as regards the adoption of the Rules of Procedure for two Special Committees established by the Economic ... |
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| source | COM(2021)637  |
| date | 20-10-2021 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Special Committee on Customs and Trade Facilitation and in the Special Committee on Geographical Indications and Trade in Wines and Spirits 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 Special Committee on Customs and Trade Facilitation and of the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits, respectively.
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 Special Committee on Customs and Trade Facilitation and the Special Committee on Geographical Indications and Trade in Wine and Spirits
Article 50 of the Agreement establishes the Special Committee on Customs and Trade Facilitation and provides that its functions shall include “determining its own rules of procedures” (2)(f).
Article 13 of the Protocol 3 “Geographical indications and trade in wines and spirits” to the Agreement establishes the Special Committee on Geographical Indications and Trade in Wines and Spirits and provides that “the Special Committee shall determine its own rules of procedure” (5).
2.3.The envisaged acts of the Special Committee on Customs and Trade Facilitation and of the Special Committee on Geographical Indications and Trade in Wines and Spirits
The purpose of the envisaged acts is to establish the Rules of Procedure of the Special Committee on Customs and Trade Facilitation and the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits, respectively.
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 Special Committee for Geographical Indications and Trade in Wines and Spirits and in the Special Committee on Customs and Trade Facilitation set up by the EU-SADC EPA with regard to the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits and of the Special Committee on Customs and Trade Facilitation, respectively.
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 subsequent meetings of the Special Committee on Customs and Trade Facilitation and of the Special Committee on Geographical Indications and Trade in Wines and Spirits.
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’. Finally, the notion of ‘acts having legal effects’ also includes acts of an organisational nature that influence the way in which decisions are made within the body, for instance if a body with decision-making powers adopts or modifies its rules of procedure.
4.1.2.Application to the present case
The Special Committee on Geographical Indications and Trade in Wines and Spirits and the Special Committee on Customs and Trade Facilitation are bodies set up by an agreement, namely the EU-SADC EPA.
The respective acts which the two committees are called upon to adopt constitute acts having legal effects because they are acts of an organisational nature that influence the way in which decisions are made within the body. The envisaged act will be binding under international law in accordance with Articles 50 of the Agreement and Article 13 of the Protocol 3 to the Agreement, respectively.
The envisaged acts do 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 i, first subparagraph, of the TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 207 i, first subparagparh, of the TFEU, in conjunction with Article 218(9) TFEU.
5. Publication of the envisaged act
As the acts of the Special Committee on Geographical Indications and Trade in Wines and Spirits and the Special Committee on Customs and Trade Facilitation will amend the respective rules of procedure, it is appropriate to publish it in the Official Journal of the European Union after its adoption.