EUROPEAN COMMISSION

Brussels, 6.12.2017

JOIN(2017) 44 final

2017/0327(NLE)

Joint Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf of the European Union, in the Joint Committee established by the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part, as regards the adoption of decisions on the Rules of procedure of the Joint Committee and the adoption of the terms of reference of the subcommittees and working groups

EXPLANATORY MEMORANDUM

1.Subject-matter of the proposal

The present proposal concerns the decision establishing the position to be adopted on behalf of the Union in the Joint Committee established by the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part.

2.Context of the proposal

2.1.The EU-New Zealand Partnership Agreement on Relations and Cooperation

The Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part (‘the Agreement’) aims to establish a strengthened partnership between the EU and its Member States and New Zealand and to deepen and enhance cooperation on issues of mutual interest, reflecting shared values and common principles, including through intensifying high-level dialogue. The Agreement will create a coherent, legally binding framework for the EU’s relations with New Zealand. The Agreement is provisionally applied in part as of 12 January 2017.

2.2.The Joint Committee

The Joint Committee is set up by Article 53 of the Agreement. Its main tasks are to facilitate implementation and to further the general aims of the Agreement, as well to maintain overall coherence in the EU-New Zealand relations. Other functions of the Joint Committee include: monitoring the development of the relations between the EU and NZ; exchanging views and making suggestions on any issues of common interest; endeavouring to resolve disputes which might arise in areas covered by the Agreement.

The Joint Committee is to make recommendations and adopt decisions, where appropriate, to give effect to the specific aspects of the Agreement. The Joint Committee operates by consensus and it meets at the high official level. The Joint Committees is to adopt its rules of procedure. It may set up subcommittees and working groups to deal with specific issues.

2.3.The envisaged act of the Joint Committee

During its first meeting, the Joint Committee is to adopt decisions regarding the adoption of the Rules of procedure of the Joint Committee and the terms of reference of the subcommittees and working groups (‘the envisaged acts’).

The purpose of the envisaged acts is to adopt, in accordance with Article 53(4) of the Agreement, the Rules of procedure underpinning the organisation of the Joint Committee and the terms of reference of the subcommittees and working groups 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 EU-New Zealand Joint Committee and the terms of reference of the subcommittees and working groups. The position should be based on the draft decisions of the Joint Committee.

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 notion 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 Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part.

The acts which the Joint Committee is called upon to adopt constitute acts having legal effects. This is because in accordance with Article 53(3)(i) of Agreement, the Joint Committee is to adopt decisions, which are binding upon the Parties to the Agreement.

The envisaged acts do 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 adopted 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.

With regard to an envisaged act that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one being incidental to the other, the substantive legal basis of a decision under Article 218(9) TFEU will have to include, exceptionally, the various corresponding legal bases.

4.2.2.Application to the present case

The envisaged acts aim at furthering the objectives of the Agreement and at facilitating its implementation.

The Agreement pursues objectives and includes components from the areas of the Common Foreign and Security Policy, the Common Commercial Policy and cooperation with developed countries. These aspects of the Agreement are inseparably linked without one being incidental to the other. The signing of the Agreement was based on Article 37 TEU, Article 207 TFEU and Article 212(1).

The envisaged acts should therefore be based on the same substantive legal bases.

4.3.Conclusion

In light of the above, the legal basis of the proposed decision should therefore be Article 37 TEU, Article 207 TFEU and Article 212(1) TFEU read in conjunction with Article 218(9) TFEU.

2017/0327 (NLE)

Joint Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf of the European Union, in the Joint Committee established by the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part, as regards the adoption of decisions on the Rules of procedure of the Joint Committee and the adoption of the terms of reference of the subcommittees and working groups

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 37 thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 207 and 212(1), in conjunction with Article 218(9), thereof,

Having regard to the joint proposal by the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy,

Whereas:

(1)The Partnership Agreement between the European Union and its Member States, of the one part, and New Zealand, of the other part (‘the Agreement’) was signed in Brussels on 5 October 2016 and it is provisionally applied as of 12 January 2017.

(2)Article 53(1) of the Agreement establishes a Joint Committee to facilitate the implementation of the Agreement.

(3)Article 53(4) of the Agreement provides that the Joint Committee is to adopt its rules of procedure and that it may set-up sub-committees and working groups to deal with specific issues.

(4)Article 53(5) of the Agreement provides that the Parties are to co-chair the Joint Committee.

(5)In order to ensure the effective implementation of the Agreement, the Joint Committee’s rules of procedure should be adopted as soon as possible.

(6)The position of the Union within the Joint Committee should therefore be based on the attached draft Joint Committee Decisions,

HAS ADOPTED THIS DECISION:

Article 1

The position to be adopted, on behalf of the Union, in the first meeting of the EU-New Zealand Joint Committee shall be based on the draft Decisions of the Joint Committee attached to this Decision.

Article 2

The High Representative of the Union for Foreign Affairs and Security Policy shall chair the Joint Committee provided for in Article 53 of the Agreement. The Union or, as the case may be, the Union and the Member States, shall be represented in the Joint Committee depending on the subject matter.

Article 3

This Decision is addressed to the Commission and the High Representative of the Union for Foreign Affairs and Security Policy.

Done at Brussels,

(1)    Case C-399/12 Germany v Council (OIV), ECLI:EU:C:2014:2258, paragraphs 61-64.

EUROPEAN COMMISSION

Brussels,6.12.2017

JOIN(2017) 44 final

Joint Proposal for a

ANNEX

to the

Council Decision

on the position to be adopted, on behalf of the European Union, in the Joint Committee established by the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part, as regards the adoption of decisions on the Rules of procedure of the Joint Committee and the adoption of the terms of reference of the subcommittees and working groups

ANNEX

DECISION No 1/… OF THE EU-NEW ZEALAND JOINT COMMITTEE

of …

adopting its rules of procedure

THE EU-NEW ZEALAND JOINT COMMITTEE,

Having regard to the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part (‘the Agreement’), and in particular Article 53 thereof,

Whereas:

(1)Parts of the Agreement have been applied provisionally since 12 January 2017.

(2)The Joint Committee should therefore adopt its rules of procedure.

HAS DECIDED AS FOLLOWS:

The rules of procedure of the EU-New Zealand Joint Committee, as set out in the Annex, are hereby adopted.

Done at …,

Annex

EU-New Zealand Partnership Agreement on Relations and Cooperation

RULES OF PROCEDURE OF THE JOINT COMMITTEE

Tasks and composition

1.The Joint Committee shall perform the tasks provided for in Article 53 of the Agreement.

2.The Joint Committee shall be composed of representatives of the Parties at the appropriate level.

Chair

3.The Joint Committee shall be chaired alternately by each of the Parties, for a period of one calendar year.

4.By way of derogation from paragraph 3, the first period shall begin on the date of the first Joint Committee meeting and end on 31 December of that year.

Meetings

5.The Joint Committee shall normally meet once a year, unless otherwise decided by the Parties. The meetings shall be convened by the Chair and held alternately in Brussels and Wellington, on a date fixed by mutual agreement. Extraordinary meetings of the Joint Committee may be held at the request of either Party, if the Parties agree.

6.The Joint Committee shall normally meet at the level of senior official, unless otherwise agreed by the Parties.

Publicity

7.Unless otherwise decided, meetings of the Joint Committee shall not be public.

Participants

8.Before each meeting, the Chair shall be informed, through the Secretaries of the intended composition of their Party’s delegation.

9.Where appropriate and with the agreement of the Parties, experts or representatives of other bodies may be invited to attend Joint Committee meetings as observers or in order to provide information on a particular subject.

Secretaries

10.A representative of the European External Action Service and a representative of the Ministry of Foreign Affairs and Trade of New Zealand shall act jointly as Secretaries of the Joint Committee. All communications to and from the Chair of the Joint Committee shall be forwarded to the Secretaries.

Agendas for meetings

11.The Chair shall draw up a provisional agenda for each meeting. This shall be forwarded, together with the relevant documents, to the other Party no later than 15 days before the beginning of the meeting.

12.The provisional agenda shall include items submitted to the Chair no later than 21 days before the beginning of the meeting.

13.The final agenda shall 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 two Parties so agree.

14.With the agreement of the Parties, the Chair may shorten the time limits referred to in paragraphs 11 and 12 where required.

Minutes

15.The Secretaries shall jointly produce draft minutes of each meeting, normally within 30 calendar days of the end of the meeting. The draft minutes shall be based on a summary by the Chair of the conclusions reached by the Joint Committee.

16.The draft minutes shall be approved by both Parties within 45 calendar days of the end of the meeting or by any other date agreed by the Parties. Once there is agreement on the draft minutes, two original copies shall be signed by the Chair and the Secretaries. Each Party shall receive one original copy.

Decisions and recommendations

17.The Joint Committee may agree to adopt decisions or recommendations. These shall be entitled ‘Decision’ or ‘Recommendation’, followed by a serial number, the date of their adoption and a description of the subject matter. Each decision shall state the date of its entry into force.

18.The Joint Committee may decide to adopt decisions or recommendations by means of a written procedure. In such cases, the Parties shall agree a time-limit for the duration of the procedure. If at the expiry of that time-limit, neither Party has expressed opposition to the proposed decision or recommendation, the Chair of the Joint Committee shall declare the decision or recommendation to have been adopted by common agreement.

19.Decisions and recommendations adopted by the Joint Committee shall be authenticated by two original copies signed by the Chair of the Joint Committee.

20.Each Party may decide to publish the Joint Committee’s decisions and recommendations in its respective official publication.

Correspondence

21.Correspondence addressed to the Joint Committee shall be directed to the Secretary of the Party to which the author belongs, who will in turn inform the other Secretary.

22.The Secretaries shall ensure that correspondence addressed to the Joint Committee is forwarded to the Chair and circulated, where appropriate, in line with paragraph 25.

23.Correspondence from the Chair shall be sent to the Parties by the Secretaries and circulated, where appropriate, as documents referred to in paragraph 25.

24.Correspondence to and from the Chair may be by any written means, including electronic mail.

Documents

25.Where the deliberations of the Joint Committee are based on documents, those documents shall be numbered and circulated by the Secretaries to the participants.

Expenses

26.Each Party shall 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.

27.Expenditure in connection with the organisation of meetings and the reproduction of documents shall be borne by the party hosting the meeting.

Subcommittees and Working Groups

28.Joint Committee may decide to set up Subcommittees and Working Groups to assist it in carrying out its tasks.

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

30.The Subcommittees and Working Groups shall report to the Joint Committee after each of their meetings.

31.The Working Groups shall have no decision-making power, but may submit recommendations to the Joint Committee.

Amendment of the rules of procedure

32.The Parties may agree to amend these rules of procedure, in line with paragraphs 17 to 20.

DECISION No 2/… OF THE EU-NEW ZEALAND JOINT COMMITTEE

of ….

on the adoption of Subcommittees’ and Working Groups’ terms of reference

THE EU-NEW ZEALAND JOINT COMMITTEE,

Having regard to the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part (‘the Agreement’), and in particular Article 53 thereof, and to paragraphs 28 to 31 of the Joint Committee’s rules of procedure,

Whereas:

Pursuant to paragraph 28 of its rules of procedure, the Joint Committee may set up subcommittees and working groups to assist it in the performance of its tasks,

HAS DECIDED AS FOLLOWS:

The terms of reference of the Joint Committee’s Subcommittees and Working Groups shall be as set out in the Annex.

Done at …, xxxx.

Annex

Terms of reference
of Subcommittees and Working Groups

1.The Subcommittees and Working Groups shall discuss the implementation of the Agreement in their areas of responsibility, as specified by the Joint Committee. They may also discuss subjects or specific projects relating to the relevant area of bilateral cooperation.

2.The Subcommittees and Working Groups shall work under the authority of the Joint Committee. They shall transmit their minutes and recommendations to the Joint Committee within the timeframes specified by the Joint Committee.

3.The Subcommittees and Working Groups shall be composed of representatives of both Parties.

4.The Subcommittees and Working Groups may invite experts to their meetings and may hear them regarding specific points on the agenda.

5.The Subcommittees and Working Groups shall be chaired by the Party holding the Chair of the Joint Committee.

6.A representative of each party shall act jointly as Secretaries of each Subcommittee and Working Group. The Secretaries shall have the same functions as the Secretaries of the Joint Committee.

7.The Subcommittees and Working Groups shall meet at least as often as directed by the Joint Committee. Extraordinary meetings may be held at the request of either Party, if the Parties agree. Each meeting shall be held at a place and on a date commonly agreed by the Parties.

8.Subcommittees and Working Groups shall operate in accordance with the Joint Committee's Rules of Procedure regarding agendas, minutes, recommendations, correspondence, documents, and expenses, unless otherwise specified by the Joint Committee.

9.Unless the Parties decide otherwise, meetings shall not be public.