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Document 52019PC0105

Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union in the Joint Committee established by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part, regarding the adoption of its Rules of Procedure

COM/2019/105 final

Brussels, 22.2.2019

COM(2019) 105 final

2019/0055(NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf of the European Union in the Joint Committee established by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part, regarding the adoption of its Rules of Procedure


EXPLANATORY MEMORANDUM

1.SUBJECT MATTER OF THE PROPOSAL

The proposal concerns the decision establishing the position to be adopted on behalf of the Union in the Joint Committee established by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part, in connection with the envisaged adoption of a decision on the Rules of Procedure of the Joint Committee.

2.CONTEXT OF THE PROPOSAL

2.1.The EU-Japan Strategic Partnership Agreement

The Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part (‘the Agreement’) aims to strengthen the partnership between the EU and its Member States and Japan and to deepen and enhance bilateral cooperation on issues of mutual interest, reflecting shared values and common principles. This will be done through measures such as intensifying high-level dialogue. The Agreement will create a coherent, legally binding framework for the EU’s relations with Japan. The Agreement was signed in Tokyo on 17 July 2018 and is provisionally applied as of 1 February 2019.

2.2.The Joint Committee

The Joint Committee is set up by Article 42 of the Agreement. Its main task is to coordinate the overall partnership which is built upon the Agreement, and to ensure the proper functioning and effective implementation of the Agreement. The Joint Committee’s other functions include: being a forum to explain any relevant changes to policies, programmes or competencies relevant to the Agreement; deciding on additional areas of cooperation that are not listed in the Agreement, provided that they are consistent with the aims of the Agreement; and endeavouring to resolve disputes which might arise from interpreting, applying or implementing the Agreement.

The Joint Committee is to make recommendations and adopt decisions, where appropriate, and facilitate specific aspects of cooperation based on the Agreement. The Joint Committee operates by consensus and should meet once a year in Tokyo and Brussels alternately. The Joint Committees is to adopt its rules of procedure.

2.3.The envisaged act of the Joint Committee

The purpose of the envisaged act is to adopt, in accordance with Article 42(5) of the Agreement, the rules of procedure underpinning the organisation of the Joint Committee to allow for the implementation of the Agreement.

3.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 Joint Committee. The position should be based on the draft decisions of the Joint Committee.

4.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

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 Committee is a body set up by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part.

The act the Joint Committee is called upon to adopt constitutes an act having legal effects. This is because in accordance with Article 42(2)(g) of the Agreement, the Joint Committee is to adopt decisions which are binding upon the Parties to the Agreement.

The envisaged act does not supplement or amend the institutional framework of the Agreement.

The procedural legal basis for the proposed decision, therefore, 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

Rules of procedure concern the general functioning of a body set up on the basis of an agreement. Therefore, the field within which the envisaged decision falls must be determined in the light of the Agreement as a whole 2 .

Taking into account the number and nature of the CFSP provisions in the Agreement, the main objective and content of the envisaged act relate to economic, financial and technical cooperation with third countries. This is the case despite the fact that the signing of the Agreement was based on Article 37 TEU and Article 212(1) TFEU. The assessment has changed in light of the subsequent Court ruling in case C-244/17 Commission v Council (Kazakhstan). Therefore, the substantive legal basis of the proposed decision is Article 212(1) TFEU.

4.3.Conclusion

The legal basis of the proposed decision should therefore be Article 212(1) TFEU read in conjunction with Article 218(9) TFEU.

2019/0055 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf of the European Union in the Joint Committee established by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part, regarding the adoption of its Rules of Procedure

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 212(1), in conjunction with Article 218(9), thereof,

Having regard to the proposal of the European Commission,

Whereas:

(1)The Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part 3 (‘the Agreement’) was signed in Tokyo on 17 July 2018 and is provisionally applied as of 1 February 2019.

(2)Article 42(1) of the Agreement establishes a Joint Committee to coordinate the overall partnership which is built upon the Agreement (‘the Joint Committee’).

(3)Article 42(5) of the Agreement provides that the Joint Committee is to adopt its rules of procedure.

(4)The Joint Committee’s rules of procedure should be adopted as soon as possible in order to ensure the effective implementation of the Agreement.

(5)It is appropriate to establish the position to be taken on the Union's behalf within the Joint Committee as the Rules of Procedure will determine the functioning of the Joint Committee, which is responsible for administering the Agreement and ensuring its proper implementation.

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on behalf of the Union in the first meeting of the Joint Committee established pursuant to Article 42 of the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part, regarding the adoption of its Rules of Procedure, shall be to support the adoption by the Joint Committee of its Rules of Procedure as set out in the draft Decision of the Joint Committee attached to this Decision.

Article 2

This Decision is addressed to the Commission.

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)    Case C-244/17 Commission v Council (Kazakhstan), ECLI:EU:C:2018:662, paragraph 40.
(3)    OJ L 216, 24.8.2018, p. 4.
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Brussels, 22.2.2019

COM(2019) 105 final

ANNEX

to the

Proposal for a Council Decision

on the position to be adopted, on behalf of the European Union in the Joint Committee established by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part, regarding the adoption of its Rules of Procedure


ANNEX

DECISION No 1/2019
OF THE JOINT COMMITTEE ESTABLISHED BY THE

EU-JAPAN STRATEGIC PARTNERSHIP AGREEMENT

of …

adopting its rules of procedure

THE JOINT COMMITTEE,

Having regard to the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part 1 ('the Agreement'), and in particular Article 42 thereof,

Whereas:

(1)Parts of the Agreement have been applied pending entry into force since 1 February 2019.

(2)In order to ensure the effective application pending entry into force of the Agreement, the Joint Committee should be established as soon as possible,

(3)Pursuant to Article 42 paragraph 5 of the Agreement, the Joint Committee should therefore adopt its rules of procedure,

HAS ADOPTED THIS DECISION:

1.The rules of procedure of the Joint Committee, as set out in the Annex, are hereby adopted.

2.The Decision will enter into effect on the date of its adoption.

Signed at…,

   For the Joint Committee

   The Co-Chairs



Annex to Decision No 1/2019

Strategic Partnership Agreement
between the European Union and its Member States, of the one part,

and Japan, of the other part

Rules of Procedure of the Joint Committee

Article 1

Tasks and composition

1.The Joint Committee will perform the tasks provided for in Article 42 of the Strategic Partnership Agreement between the European Union and its Member States, hereinafter referred to as 'the Union Party', of the one part, and Japan, of the other part ('the Agreement').

2.The Joint Committee will be composed of  representatives of the Parties.

Article 2

Chair

The Joint Committee will be co-chaired by the representatives of the Union Party of the one part, and Japan, of the other part. Hereinafter referred to collectively as the "Parties" and individually as the "Party".

Article 3

Meetings

1.The Joint Committee will normally meet once a year in Tokyo and Brussels alternately, on a date fixed by consensus. It will also meet at the request of either Party by consensus.

2.The Joint Committee will normally meet at the level of senior official, unless otherwise decided by the Parties.

Article 4

Publicity

Unless otherwise decided by the Parties, meetings of the Joint Committee will not be public.

Article 5

Secretaries

A representative of the European External Action Service and a representative of the Ministry of Foreign Affairs of Japan 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.



Article 6

Participants

1.Before each meeting, the Co-Chairs will be informed, through the Secretaries, of the intended composition of the delegation of each Party.

2.Where appropriate and  by consensus, experts or representatives of relevant entities may be invited to attend Joint Committee meetings as observers or in order to provide information on a particular subject.

Article 7

Agendas for meetings

1.The Co-Chairs will draw up a provisional agenda for each meeting.

2.The Provisional Agenda will be set no later than fifteen 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 decide.

4.The Co-Chairs may decide to shorten the time limits referred to in paragraph 2 where required. 

Article 8

Minutes

1.The Secretaries will jointly produce minutes of each meeting, as soon as possible but not later than two months from the end of each meeting, unless otherwise decided by consensus. The draft minutes will include, as a general rule, the final agenda and a summary of the discussions under each agenda item.

2.The draft minutes will be approved in writing by the Parties as soon as possible but no later than two months after the end of each meeting unless otherwise decided by consensus. 



Article 9

Decisions and recommendations

1.Within its functions and tasks pursuant to Article 42 of the Agreement, the Joint Committee will make recommendations and adopt decisions, where appropriate. These will be entitled 'Recommendation' or 'Decision', followed by a serial number, the date of their adoption and a description of the subject matter. Each recommendation or decision will state the date of its entry into effect.

2.The Joint Committee makes recommendations and adopts decisions by consensus.

3.The Joint Committee may decide to make recommendations and adopt decisions by means of a written procedure through an exchange of notes between the Co-Chairs of the Joint Committee.

4.Recommendations and Decisions of the Joint Committee will be adopted in writing by the Co-Chairs. 

5.Each Party may decide to publish the Joint Committee's recommendations and decisions in any appropriate medium. 

Article 10

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 11 

Working Groups

1.The Joint Committee may decide to set up Working Groups to assist it in carrying out its tasks.

2.The Joint Committee may decide to abolish any Working Group that it has established or to determine or modify its terms of reference.

3.The Working Groups will report to the Joint Committee after each of their meetings.

Article 12

Modification of the rules of procedure

The Parties may modify the rules of procedure in line with Article 9.

(1)    OJ EU L xxx, xx.xx.xxxx, p. x.
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