EUROPEAN COMMISSION

Brussels, 29.4.2019

COM(2019) 199 final

2019/0098(NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Joint Committee established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part as regards the adoption of decisions on the rules of procedure of the Joint Committee and of the terms of reference of the specialised sub-committees.

EXPLANATORY MEMORANDUM

1.SUBJECT MATTER OF THE PROPOSAL

This proposal concerns the decision establishing the position on the envisaged adoption of the Rules of Procedure of the Joint Committee and of the terms of reference of the specialised sub-committees to be taken on behalf of the Union in the Joint Committee established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part ('the Agreement').

2.CONTEXT OF THE PROPOSAL

2.1.The EU-Philippines Framework Agreement on Partnership and Cooperation

The Agreement aims to establish a strengthened partnership between the EU and its Member States and the Philippines, and to deepen and enhance bilateral 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 the Philippines. The Agreement was signed on 11 July 2012 in Phnom Penh and entered into force on 1 March 2018.

2.2.The Joint Committee

The Joint Committee is set up by Article 48 of the Agreement. Its main tasks are to ensure the proper functioning and implementation of the Agreement, the setting of priorities in relation to the aims of the Agreement and making recommendations for promoting the objectives of the Agreement. Other functions of the Joint Committee include to oversee the proper functioning of any sectoral agreement or protocol concluded or to be concluded between the Parties.

The Joint Committee is to make recommendations and take decisions, where appropriate, to attain the objectives of the Agreement. The Joint Committee meets at senior official level. The Joint Committee is to adopt its rules of procedure. It may set up specialised sub-committees to deal with specific issues.

2.3.The envisaged act of the Joint Committee

During its first meeting, the Joint Committee is to adopt a decision regarding the adoption of the rules of procedure of the Joint Committee and a decision concerning the terms of reference of the specialised sub-committees (‘the envisaged acts’).

The purpose of the envisaged acts is to adopt, in accordance with Article 48 (5) of the Agreement, the rules of procedure underpinning the organisation of the Joint Committee and the terms of reference of the specialised sub-committees to allow for the implementation of the Agreement.

3.POSITION TO BE TAKEN ON THE UNION'S BEHALF

The position to be adopted on behalf of the Union should aim at the adoption of the rules of procedure of the EU – Philippines Joint Committee and the terms of reference of the specialised sub-committees. 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 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 an agreement, namely the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part.

The act which the Joint Committee is called upon to adopt constitutes an act having legal effects. This is so because in accordance with Article 48(5) of the Agreement, the Joint Committee is obliged to adopt its own rules of procedure which will be binding on the Union.

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 acts in respect of which a position is taken on the Union's behalf. If an 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 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. Rules of Procedure concern the general functioning of a body set up on the basis of an agreement. Therefore, the field within which the contested decision falls must be determined in light of the Agreement as a whole. 2

In this particular case, the predominant purpose and component of the Agreement is cooperation with a developing country (Article 209 TFEU). 3 Thus, the appropriate legal basis should be Article 209 TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Article 209 TFEU in conjunction with Article 218(9) TFEU.

5.PUBLICATION OF THE ENVISAGED ACTS

As the act of the Joint Committee will set out its rules of procedure, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

2019/0098 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Joint Committee established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part as regards the adoption of decisions on the rules of procedure of the Joint Committee and of the terms of reference of the specialised sub-committees.

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 209 in conjunction with Article 218 (9), thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)The Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (‘the Agreement’) entered into force on 1 March 2018.

(2)Article 48 (1) of the Agreement establishes a Joint Committee to ensure the proper functioning and implementation of the Agreement.

(3)Article 48 (5) of the Agreement provides that the Joint Committee is to adopt its rules of procedure and Article 48 (3) provides that it may set up specialised sub-committees.

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

(5)It is therefore appropriate to establish the position to be taken on the Union's behalf within the Joint Committee. The position of the Union within the Joint Committee should be based on the attached draft Joint Committee Decisions.

HAS ADOPTED THIS DECISION:

Article 1

The position on the envisaged adoption of the rules of procedure of the Joint Committee and the adoption of the terms of reference of its sub-committees, to be taken on the Union's behalf in the first meeting of the EU-Philippines Joint Committee, shall be based on the draft decisions of the Joint Committee attached to this Decision.

Article 2

This decision is addressed to the Commission.

Done at Brussels,

(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)    For the scope of the development policy see case C-377/12, Commission vs. Council (the Philippines), paragraphs 36-37.

EUROPEAN COMMISSION

Brussels, 29.4.2019

COM(2019) 199 final

ANNEXES

to the

Proposal for a Council Decision

on the position to be taken on behalf of the European Union in the Joint Committee established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part as regards the adoption of decisions on the rules of procedure of the Joint Committee and of the terms of reference of the specialised sub-committees.

ANNEX I

DECISION No 1 /[../..] OF THE JOINT COMMITTEE

of...

adopting its Rules of Procedure

THE EU-PHILIPPINES JOINT COMMITTEE,

Having regard to the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (‘the Agreement’), and in particular Article 48 thereof,

Whereas:

(1)    The Agreement entered into force on 1 March 2018.

(2)    The Rules of Procedure of the Joint Committee should therefore be adopted,

HAS DECIDED AS FOLLOWS:

Sole Article

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

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

Done at...,

For the EU-Philippines Joint Committee
The Chair

Annex A

Rules of Procedure of the Joint Committee

Article 1

Tasks and Composition

1.    The Joint Committee shall perform the tasks provided for in Article 48 of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (‘the Agreement’), hereinafter jointly referred to as ‘the Parties’ and individually as the ‘Party’.

2.    The Joint Committee shall be composed of representatives of both sides at senior official level.

Article 2

Meetings

1.    The Joint Committee shall meet normally every two years. The meeting of the Joint Committee shall be convened by the Chair. Meetings shall be held in Manila and Brussels alternately, on a date fixed by mutual agreement. Special sessions of the Joint Committee may be held at the request of either Party, if the Parties so agree.

2.    If both Parties agree, the meetings of the Joint Committee may exceptionally be held by means of video- or teleconference.

3.    Meetings of the Joint Committee shall be conducted exclusively and in confidence between representatives of the Parties, unless both Parties agree to do otherwise.

Article 3

Chair

The Party hosting the first Joint Committee meeting shall hold the chair from the date of that meeting until 31 December that year. The Joint Committee shall be then chaired alternately for a period of two years henceforth.

Article 4

Participants

1.    The members of the delegation of each Party shall be composed of representatives of the Parties to be led at the senior official level.

2.    Both Parties shall inform their counterparts of the actual composition of its delegation twenty-one (21) working days before the meeting.

3.    The Chair shall ensure that all participants of the Joint Committee meetings are duly designated representatives of the Parties. Concerns on the composition of the delegation shall be submitted to the Chair.

4.    The Parties, upon prior agreement, may invite third parties to a meeting to provide information on a particular subject if deemed necessary. Each Party must inform their counterpart at least twenty-one (21) working days before the meeting of their intent to invite a third party.

Article 5

Secretariat

A representative of the European External Action Service and a representative of the Department of Foreign Affairs of the Republic of the Philippines shall act jointly as Secretaries of the Joint Committee. All communications to and from the Chair shall be forwarded to the Secretaries. Correspondence to and from the Chair may be by any written means, including electronic mail.

Article 6

Agendas for meetings

1.    The Chair shall draw up a provisional agenda for each meeting. The provisional agenda shall be sent, together with the relevant documents, at least twenty-one (21) working days before the meeting.

2.    The agenda shall be adopted by the Joint Committee. Items other than those appearing on the provisional agenda may be placed on the agenda, if the Parties so agree.

Article 7

Minutes

1.    The two Secretaries shall jointly prepare a draft summary of the outcome/conclusions of the meeting.

2.    The Head of Delegation of each Party shall approve and sign the draft summary in two copies. Each Party shall receive one original of the approved and signed summary.

Article 8

Decisions and recommendations

1.    The Joint Committee may take decisions or make recommendations in order to attain the objectives of the Agreement. Decisions and recommendations shall be adopted by common agreement of the Parties. Decisions and recommendations shall be adopted following completion by the Parties of their respective internal procedures in accordance with their laws and regulations.

2.    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, no 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 without opposition.

Article 9

Expenses

1.    Each Party shall bear the expenses it incurs as a result of participating in the meetings of the Joint Committee, both with regard to staff, travel and subsistence expenditure and to postal and telecommunications expenditure.

2.    Each Party shall bear the expenses it incurs in connection with interpreting at meetings and translation.

3.    The Party hosting the meeting shall bear the expenses in connection with the organisation of meetings and reproduction of documents.

Article 10

Specialised Sub-Committees

1.    In accordance with Article 48(3) of the Agreement, the Joint Committee may set up specialised sub-committees in order to assist it in the performance of its tasks. The specialised sub-committees shall report to the Joint Committee exclusively after each of their meetings.

2.    The Joint Committee shall define the Terms of Reference (TOR) of each specialized subcommittee.

3.    The Joint Committee may decide to amend the Terms of Reference (TOR) or abolish any existing specialized sub-committee.

4.    The specialized sub-committees may make recommendations for the approval of the Joint Committee.

ANNEX II

DECISION No 2/[../..] OF THE EU-PHILIPPINES JOINT COMMITTEE

of....

establishing specialised sub-committees and adopting their terms of reference

THE EU-PHILIPPINES JOINT COMMITTEE,

Having regard to the Framework Agreement on Partnership and Cooperation between the European

Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (‘the

Agreement’), and in particular Article

48(3) thereof, and to Article [10] of the Rules of Procedure of the Joint Committee,

Whereas:

(1)    To allow for expert level discussions on the key areas falling within the scope of the Agreement, specialised sub-committees should be established.

(2)    According to Article [8] of the Joint Committee's Rules of Procedure, the Joint Committee may decide to adopt decisions by means of a written procedure, [If the written procedure is used in this case]

HAS ADOPTED THIS DECISION:

Sole Article

The specialised sub-committees listed in Annex A are hereby established. The terms of reference of the specialised sub-committees shall be as set out in Annex B.

Done at,

For the EU- Philippines Joint Committee
The Chair

Annex A

EU-Philippines Joint Committee

Specialised Sub-Committees

Annex B

Terms of reference of specialised sub-committees established under the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part, hereinafter jointly referred to as ‘the Parties’ and individually as the ‘Party’.

Article 1

The specialised sub-committees shall discuss subjects or specific projects related to the relevant area of cooperation.

Article 2

The specialised sub-committees shall work under the authority of the Joint Committee. They shall report and transmit their summary of outcomes/conclusions to the Chair of the Joint Committee within thirty (30) working days after each meeting.

Article 3

1.    The specialised sub-committees shall be composed of representatives of the Parties. The heads of delegations of the relevant specialised sub-committees shall inform each other of the representation of both parties at the specialized sub-committees prior to the meeting.

2.    Upon written agreement by the relevant heads of delegations of the specialised sub-committees, the specialised sub-committees may invite third parties to their respective meetings and may hear them regarding specific points on the agenda, as appropriate. Each Party must inform their counterpart at least ten (10) working days before the meeting of their intent to invite a third party. The selection of the third party/parties shall be agreed upon by the Parties prior to the meeting.

Article 4

The specialised sub-committees shall be chaired and, in principle, hosted by the Party holding the Chair of the Joint Committee.

Article 5

A representative of the European External Action Service or of the relevant Directorate General of the European Commission and a representative of the concerned lead agency for the Government of the Republic of the Philippines shall act jointly as Secretaries of the specialised sub-committees.

Article 6

1.    The specialised sub-committees shall meet whenever circumstances require upon agreement of the Parties, on the basis of a written request from either Party. Each meeting shall be held at a place and date agreed by the Parties. If both Parties agree, the meetings of the sub-committees may exceptionally be held by means of video- or teleconference.

2.    Where one Party requests a meeting of a specialised sub-committee, the Secretary of the other Party shall reply within twenty-one (21) working days of receipt of that request.

3.    Taking into account Article 3(2) with regard to third parties, each Party shall inform the Chair of the intended composition of its delegation in due time before the meeting.

Article 7

1.    The Chair shall communicate the draft agenda to the Parties not later than twenty-one (21) working days before the meeting.

2.    Either Party may request the Chair to place an item on the agenda of a meeting of a specialised sub-committee. Items other than those appearing on the provisional agenda may be placed on the agenda, if the Parties so agree.

Article 8

1.    The Secretaries shall jointly prepare the draft summary of outcomes/conclusions

2.    The Head of Delegation of each Party shall approve and sign the draft summary in two copies prior to the end of each meeting. Each Party will receive one original of the approved and signed summary.

3.    The meetings of the specialised sub-committees shall be conducted exclusively and in confidence between representatives of both Parties, unless both Parties agree to do otherwise.