EUROPEAN COMMISSION

Brussels, 5.8.2015

COM(2015) 390 final

2015/0170(NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union within the Association Committee in Trade configuration established by the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

Reasons for and objectives of the proposal

The attached proposal constitutes the legal instrument for establishing the Union position to be adopted on its behalf in a body set up by an association agreement between the Union and a third country. In particular, it relates to the implementation of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part ('the Agreement').

The Agreement was signed on 27 June 2014, and is provisionally applied, pending ratification by the Member States, since 1 September 2014. Council decision 2014/492/EU of 16 June 2014 1 approved the signing of the Agreement, on behalf of the European Union and the European Atomic Energy Community and their Member States, and the provisional application of certain provisions thereof.

The Agreement established the Association Committee in Trade configuration, which monitors the implementation of Title V (Trade and Trade-related matters) of the Agreement and resolves related issues. This Committee has to establish a list of arbitrators to ensure the proper functioning of the dispute settlement mechanism, as provided for in Article 404 of the Agreement.

Consistency with existing policy provisions in the policy area

This proposal implements the Union’s common commercial policy toward an Eastern Partner country, based on the provisions of the above-mentioned Agreement. It aims to set up the necessary institutional instruments enabling the Union and the Republic of Moldova to effectively address bilateral disputes concerning the application and interpretation of the Agreement. It is consistent with the Union's approach to dispute settlement disciplines negotiated or implemented within free trade agreements with other trade partners.

Consistency with other Union policies

This proposal is consistent and complements the other external policies of the Union, notably the European Neighbourhood Policy and the development cooperation policy in relation to the Republic of Moldova.

2.Legal basis, subsidiarity and proportionality

Legal basis

The legal basis for establishing the Union position to be taken in the committees set up by the Agreement between the Union and the Republic of Moldova is the Treaty on the Functioning of the European Union ('TFEU'), and in particular its Article 207(4) in conjunction with Article 218(9) thereof.

Subsidiarity (for non-exclusive competence)

The common commercial policy, in accordance with Article 3 of the TFEU, is defined as an exclusive Union competence. Therefore, the subsidiarity principle does not apply.

Proportionality

This proposal is necessary in order to implement the Union’s international commitments set out in the Agreement with the Republic of Moldova.

Choice of the instrument

This proposal is in accordance with Article 218(9) TFEU, which envisages the adoption by the Council of decisions. There exists no other legal instrument that could be used in order to achieve the objective expressed in this proposal.

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

Ex-post evaluations/fitness checks of existing legislation

Not applicable.

Stakeholder consultations

Stakeholder consultations are not applicable to this proposal.

Collection and use of expertise

The Commission has taken into account input provided by Member States in recent years as regards Union nationals who are suitable and qualified to act as arbitrations in disputes brought under the Union's trade agreements.

Impact assessment

The proposal relates to the implementation of institutional aspects of the Agreement, and in particular its Title V on Trade and trade-related matters, between the Union and the Republic of Moldova. The proposal does not have any impact on the economic, social or environmental policy of the Union. The Agreement has been provisionally applied since 1 September 2014, and its implementation is at a very early stage.

Regulatory fitness and simplification

The Agreement between the Union and the Republic of Moldova is not subject to REFIT procedures; it does not imply any costs for SMEs; and it does not raise any issues from the viewpoint of the digital environment.

Fundamental rights

The proposal does not have consequences for the protection of fundamental rights.

4.BUDGETARY IMPLICATIONS

Not applicable.

5.OTHER ELEMENTS

Implementation plans and monitoring, evaluation and reporting arrangements

The implementation of the Agreement is reviewed regularly by the EU-Republic of Moldova Association Council. The European Commission also committed to report annually on the implementation of Title V (Trade and trade-related matters) of the Agreement, including on the elements included in this proposal, to the European Parliament.

Explanatory documents (for directives)

Not applicable.

Detailed explanation of the specific provisions of the proposal

The proposal aims to adopt a Union position in relation to the implementation of the trade part of the Agreement between the Union and the Republic Moldova. Title V (Trade and trade-related matters) of that Agreement includes Chapter 14 (Dispute Settlement), which provides for a mechanism to resolve trade-related disputes between the parties to the Agreement, concerning the application or interpretation of the trade part of that Agreement. The arbitration procedure set out in Chapter 14 provides that the complaining party may request establishment of an arbitration panel to resolve a bilateral dispute. Article 404 of the Agreement sets out the rules for the composition of the panel. The Agreement envisages the establishment of a list of qualified individuals who may serve as arbitrators. Accordingly, a draft list of arbitrators who are willing and able to serve on an arbitration panel has been discussed with the Government of the Republic of Moldova, providing for five candidate arbitrators from the Union, five candidate arbitrators from the Republic of Moldova and five third-country nationals who may serve as chairpersons of an arbitration panel. The list will be used in cases when an arbitration panel needs to be established.

2015/0170 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union within the Association Committee in Trade configuration established by the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first paragraph of Article 207(4), in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)Article 464(3) and (4) of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part (ʻthe Agreementʼ), provide for the provisional application of the Agreement in part, as specified by the Union.

(2)Article 3 of Council Decision 2014/492/EU 2 specifies the provisions of the Agreement to be applied provisionally, including the provisions on the establishment and functioning of the Association Committee in Trade configuration and on dispute settlement. In accordance with Article 464(4) of the Agreement, the provisional application of those provisions is effective from 1 September 2014.

(3)Article 404(1) of the Agreement provides that the Association Committee in Trade configuration, as set out in Article 438(4) of the Agreement, is to agree on a list of individuals to serve as arbitrators in dispute settlement proceedings within six months from the beginning of the provisional application of the Agreement, in accordance with Article 464(5) of the Agreement.

(4)In accordance with Article 404(1) of the Agreement, a draft list of arbitrators to serve on an arbitration panel has been discussed with the Government of the Republic of Moldova, providing for five candidate arbitrators from the Union, five candidate arbitrators from the Republic of Moldova and five third-country nationals who may serve as chairpersons to an arbitration panel.

(5)It is therefore appropriate to establish the position to be adopted on behalf of the Union within the Association Committee in Trade configuration in relation to the list of individuals to serve as arbitrators in dispute settlement,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on behalf of the Union within the Association Committee in Trade configuration in relation to the adoption of the list of individuals to serve as arbitrators in dispute settlement shall be based on the draft Decision of that Committee attached to this Decision.

Minor changes to the draft Decision may be agreed to by the representatives of the Union within the Association Committee in Trade configuration without further decision of the Council.

Article 2

This Decision shall enter into force on the day of its adoption.

Done at Brussels,

(1) OJ L 260, 30.8.2014, p. 1.

(2) Council Decision 2014/492/EU of 16 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part (OJ L 260, 30.8.2014, p. 1).

EUROPEAN COMMISSION

Brussels, 5.8.2015

COM(2015) 390 final

ANNEX

to the

Proposal for a Council Decision

on the position to be taken on behalf of the European Union within the Association Committee in Trade configuration established by the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part

Draft

Decision No 1/2015 of the EU-REPUBLIC OF MOLDOVA Association Committee in Trade configuration

of …2015

on the establishment of the list of arbitrators referred to in Article 404(1) of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part

THE Association COMMITTEE IN TRADE CONFIGURATION,

Having regard to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, signed in Brussels on 27 June 2014, and in particular Article 404(1) thereof,

Whereas:

(1)In accordance with Article 464 of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part (ʻthe Agreementʼ), parts of the Agreement, including the provision on the establishment of the list of arbitrators, are applied provisionally as of 1 September 2014.

(2)In accordance with Article 404(1) of the Agreement, the Association Committee in Trade configuration, as set out in Article 438(4) of the Agreement, is to establish a list of 15 individuals to serve as arbitrators,

HAS ADOPTED THIS DECISION:

Article 1

The lists of individuals who may serve as arbitrators for the purposes of Article 404(1) of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, are set out in the Annex to this Decision.

Article 2

This Decision shall enter into force on the day of its adoption.

Done at …, …

ANNEX

LIST OF ARBITRATORS REFERRED TO IN ARTICLE 404(1) OF THE AGREEMENT

Arbitrators proposed by the Republic of Moldova

1.Sergiu BĂIEŞU

2.Eduard SERBENCO

3.Lilia GRIBINCEA

4.Octavian CAZAC

5.Mihail BURUIANĂ

Arbitrators proposed by the European Union

1.Claus–Dieter EHLERMANN

2.Giorgio SACERDOTI

3.Jacques BOURGEOIS

4.Pieter Jan KUIJPER

5.Ramon TORRENT

Chairpersons

1.David UNTERHALTER (South Africa)

2.Merit JANOW (United States)

3.    William DAVEY (United States)

4.    Leora BLUMBERG (South Africa)

5.    Helge SELAND (Norway)