Brussels, 14.10.2019

COM(2019) 462 final

2019/0220(NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Joint Committee and the Subcommittee on Trade and Investment established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part as regards the adoption of decisions on the rules of procedure of the Joint Committee and the rules of procedure of the Subcommittee on Trade and Investment


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 rules of procedure of the Subcommittee on Trade and Investment to be taken on the Union's behalf in the Joint Committee and the Subcommittee on Trade and Investment established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part ('the Agreement').

2.Context of the proposal

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

The Agreement aims to establish a strengthened partnership between the EU, its Member States and Mongolia and to deepen and enhance cooperation on issues of mutual interest, reflecting shared values and common principles. The Agreement will create a coherent, legally binding framework for the EU's relations with Mongolia. The Agreement entered into force on 1 November 2017.

2.2.The Joint Committee and the Subcommittee on Trade and Investment

The Joint Committee is set up by Article 56 of the Agreement. Its main tasks are to: (a) ensure the proper functioning and implementation of this Agreement; (b) set priorities in relation to the aims of this Agreement; (c) make recommendations for promoting the objectives of this 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 meets at the appropriate high level. The Joint Committee is to adopt its rules of procedure. It may set up specialised working groups to deal with specific issues.

The Subcommittee on Trade and Investment is set up by Article 28 of the Agreement. Its task is to assist the Joint Committee in the performance of its tasks by dealing with all areas of cooperation on trade and investment.

2.3.The envisaged act of the Joint Committee and of the Subcommittee on Trade and Investment

The Joint Committee shall adopt a decision regarding the adoption of its rules of procedure and of specialised working groups. The Subcommittee on Trade and Investment shall adopt a decision regarding the adoption of its rules of procedure ('the envisaged act').

The purpose of the envisaged acts is to adopt, in accordance with Articles 28 (3) and 56 (6) of the Agreement, the rules of procedure underpinning the organisation of the Joint Committee and the rules of procedure of the Subcommittee on Trade and Investment and of specialised working groups 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-Mongolia Joint Committee and the rules of Procedure of the Subcommittee on Trade and Investment and of specialised working groups. The position should be based on the draft decisions of the Joint Committee and of the Subcommittee on Trade and Investment.

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 and the Subcommittee on Trade and Investment are bodies 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 Mongolia, of the other part.

The acts which these bodies are called upon to adopt constitute acts having legal effects. This is because in accordance with Article 56 (2) of the Agreement, the Joint Committee and the Subcommittee on Trade and Investment shall adopt decisions which are binding on the Parties.

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.

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 rules of procedure of the Joint Committee concern the general functioning of a body set up on the basis of an agreement. Therefore, the field within which the 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 act

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.

2019/0220 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Joint Committee and the Subcommittee on Trade and Investment established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part as regards the adoption of decisions on the rules of procedure of the Joint Committee and the rules of procedure of the Subcommittee on Trade and Investment

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 Mongolia, of the other part (‘the Agreement’) entered into force on 1 November 2017.

(2)Article 56 (1) of the Agreement establishes a Joint Committee to ensure the proper functioning and implementation of the Agreement.

(3)Article 56 (6) of the Agreement provides that the Joint Committee is to adopt its rules of procedure and Article 56 (4) provides that it may set up specialised working groups.

(4)Article 28 (1) of the Agreement establishes a Subcommittee on Trade and Investment

(5)Article 28 (3) of the Agreement provides that the Sub-committee on Trade and Investment establish its rules of procedure.

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

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

HAS ADOPTED THIS DECISION:

Article 1

The position on the envisaged adoption of the rules of procedure of the Joint Committee to be taken on the Union's behalf in the EU-Mongolia Joint Committee shall be based on the draft Decision of the Joint Committee attached to this Decision.

The position on the envisaged adoption of the rules of procedure of the Subcommittee on Trade and Investment to be taken on the Union's behalf in the EU-Mongolia Subcommittee on Trade and Investment shall be based on the draft Decision of the Subcommittee on Trade and Investment 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 61to 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, Commission v Council (Philippines), paragraphs 36-37.

Brussels, 14.10.2019

COM(2019) 462 final

ANNEXES

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 Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part, as regards the adoption of decisions on the rules of procedure of the Joint Committee and the rules of procedure of the Subcommittee on Trade and Investment


ANNEX I

Decision No 1/ of 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 Mongolia, of the other part ('the EU-Mongolia Joint Committee')

of….

adopting its Rules of Procedure

THE EU-MONGOLIA 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 Mongolia, of the other part (‘the Agreement’), and in particular Article 56 thereof,

Whereas:

(1)The Agreement entered into force on 1 November 2017.

(2)Pursuant to Article 56(6), the EU-Mongolia Joint Committee is to adopt its own rules of procedure.

HAS DECIDED AS FOLLOWS:

Sole Article

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

This Decision enters into force on the date of its adoption.

Done at Brussels/Ulaanbaatar,

For the EU-Mongolia Joint Committee

The Chair

ANNEX

RULES OF PROCEDURE OF THE EU-MONGOLIA JOINT COMMITTEE

Article 1
Composition and chair

1.    The Joint Committee established in accordance with Article 56 of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part (‘the EU-Mongolia Joint Committee') shall perform the tasks provided for in Article 56 of the Agreement.

2.    The EU-Mongolia Joint Committee shall be composed of representatives of the Parties as defined by the Agreement at the highest possible level.

3.    The EU-Mongolia Joint Committee shall be chaired alternately by the Minister of Foreign Affairs of Mongolia and the High Representative of the Union for Foreign Affairs and Security Policy, for a period of one calendar year. The Chairs may delegate their authority to preside over all or part of the meetings of the EU-Mongolia Joint Committee to a senior official.

Article 2
Meetings

1.    The EU-Mongolia Joint Committee shall normally meet once a year, unless otherwise agreed by the Parties. Meetings of the EU-Mongolia Joint Committee shall be convened by the Chair. Meetings shall be held alternately in Brussels and Ulaanbaatar, on a date fixed by mutual agreement. Extraordinary meetings of the EU-Mongolia Joint Committee may be held at the request of either Party, if the Parties so agree.

2.    By way of exception and if the Parties agree, the meetings of the EU-Mongolia Joint Committee may also be held through technical means, for example by means of videoconference.

Article 3
Delegations

1.    Each Party shall inform the Chair of the intended composition of its delegation, before each meeting of the EU-Mongolia Joint Committee.

2.    The Chair, in agreement with the Parties, may invite experts or representatives of other bodies to the meeting to act as observers or to provide information on a particular subject. The Parties shall agree on the terms and conditions under which those experts or representatives of other bodies may attend the meetings.

Article 4
Information to the public

1.    The meetings of the EU-Mongolia Joint Committee shall not be public unless otherwise decided by the Chair, in agreement with the Parties. When a Party submits information designated as confidential to the EU-Mongolia Joint Committee, the other Party shall treat that information as such.

2.    The EU-Mongolia Joint Committee may issue statements to the public as it deems appropriate.

Article 5
Secretariat

A representative of the European External Action Service and a representative of the Government of Mongolia shall act jointly as Secretaries of the EU-Mongolia Joint Committee. They shall be made aware of all communication, to and from the Chair, including by any written means such as electronic mail.

Article 6
Agendas for meetings

1.    The Chair shall draw up a provisional agenda for each meeting of the EU-Mongolia Joint Committee. The provisional agenda shall be sent, together with the relevant documents, to the Parties at least 21 days before the date of the meeting.

2.    Either Party may request the Chair to place an item on the agenda.

3.    The agenda shall be adopted by the EU-Mongolia Joint Committee at the beginning of each meeting. Items other than those appearing on the provisional agenda may be placed on the agenda if the Parties so agree.

4.    The Secretaries of the EU-Mongolia Joint Committee shall make public the provisional agenda of the EU-Mongolia Joint Committee before the meeting.

5.    In special circumstances and in agreement with the Parties, the Chair may shorten the time-limit referred to in paragraph 1 in order to take account of the requirements of the particular case.

Article 7
Agreed minutes

1.    The conclusions of the meetings of the EU-Mongolia Joint Committee shall be recorded in the form of agreed minutes.

2.    The Chair shall summarise the conclusions reached by the EU-Mongolia Joint Committee at each meeting. The two Secretaries shall jointly draw up draft minutes on the basis of those conclusions, preferably at the end of the meeting or at the latest within 30 calendar days following the date of the meeting.

3.    The EU-Mongolia Joint Committee shall approve the draft preferably at the end of the meeting or at the latest within 45 calendar days of the date of the meeting or by any other date agreed by the EU-Mongolia Joint Committee. Once the EU-Mongolia Joint Committee has approved the draft minutes, two original copies shall be signed by the Chair. Each Party shall receive one original copy.

Article 8
Decisions and recommendations

1.    The EU-Mongolia Joint Committee may agree to adopt recommendations or decisions for the purposes of attaining the objectives of the Agreement.

2.    Decisions or recommendations of the EU-Mongolia Joint Committee shall be entitled ‘Decision’ or ‘Recommendation’ respectively, followed by a serial number, the date of their adoption and a description of the subject matter. Each decision shall state the date on which it enters into force.

3.    Where circumstances so require, the EU-Mongolia Joint Committee may adopt its Decisions or Recommendations by written procedure.

4.    Decisions and recommendations of the EU-Mongolia Joint Committee shall be established in two authentic copies each signed by the Chair.

5.    The Parties may publish the decisions and recommendations of the EU-Mongolia Joint Committee in their official journals.

Article 9
Expenses

1.    Each Party shall bear the expenses it incurs in relation to its participation in the meetings of the EU-Mongolia Joint Committee, both with regard to staff, travel and subsistence expenditure and to postal and telecommunications expenditure. Each Party shall bear the expenses it incurs in connection with interpretation at meetings and translation.     

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

Article 10
Specialised working groups

1.    The EU-Mongolia Joint Committee may set up specialised working groups to assist it in the performance of its tasks.

2.    The EU-Mongolia Joint Committee may decide to abolish any specialised working group, adopt or amend their terms of reference.

3.    The specialised working groups shall have decision-making powers. They shall make detailed oral and written reports of their activities to the EU-Mongolia Joint Committee after each of their meetings and may make recommendations to the EU-Mongolia Joint Committee.

Article 11
Amendment to the Rules of Procedure

The Rules of Procedure may be amended by common agreement of the Parties in accordance with Article 8.



ANNEX II

Decision No 1/…. of the EU-Mongolia Subcommittee on Trade and Investment established by the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part (' the EU-Mongolia Subcommittee on Trade and Investment')

of….

adopting its Rules of Procedure

THE EU-MONGOLIA SUBCOMMITTEE ON TRADE AND INVESTMENT,

Having regard to the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part (‘the Agreement’), and in particular to Article 28 thereof,

Whereas:

(1)Pursuant to Article 28 of the Agreement, the EU-Mongolia Subcommittee on Trade and Investment was established in order to assist the Joint Committee in the performance of its tasks, by dealing with all areas covered by Title IV of the Agreement (Cooperation on Trade and Investement Issues).

(2)Pursuant to Article 28(3) of the Agreement, the EU-Mongolia Subcommittee on Trade and Investment is to establish its rules of procedures.

HAS DECIDED AS FOLLOWS:

Sole Article

The Rules of Procedure of the EU-Mongolia Subcommittee on Trade and Investment, as set out in the Annex, are hereby adopted.

This Decision enters into force on the date of its adoption.

Done at Brussels/Ulaanbaatar

For the EU-Mongolia Subcommittee on Trade and Investment

The Chair



ANNEX

RULES OF PROCEDURE OF THE EU-MONGOLIA SUBCOMMITTEE ON TRADE AND INVESTMENT

Article 1
Composition and chair

1.    The Subcommittee that is established under Article 28 of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part (‘the EU-Mongolia Subcommittee on Trade and Investment’) shall perform the tasks provided for in Article 28(2) of the Agreement.

2.     The EU-Mongolia Subcommittee on Trade and Investment shall be composed of representatives of the Union and Mongolia at an appropriate level and shall be chaired alternately by a representative of the European Commmission service in charge on the EU side and by […] on the Mongolian side, for a period of one calendar year.

Article 2
Meetings

1.    The EU-Mongolia Subcommittee on Trade and Investment shall meet annually, shortly before the meeting of the EU-Mongolia Joint Committee. Meetings of the EU-Mongolia Subcommittee on Trade and Investment shall be convened by the Chair. Meetings shall be held in Brussels and Ulaanbaatar alternately, on a date fixed by mutual agreement. Special sessions of the EU-Mongolia Subcommittee on Trade and Investment may be held at the request of either Party, if the Parties so agree. 

2.    If the Parties agree, the meetings of the EU-Mongolia Subcommittee on Trade and Investment may be held by means of videoconference.

Article 3
Delegations

1.     Each Party shall inform the Chair of the intended composition of its delegation, before each meeting of the EU-Mongolia Subcommittee on Trade and Investment.

2.    The Chair, in agreement with the Parties, may invite experts or representatives of other bodies to the meeting to act as observers or to provide information on a particular subject. The Parties shall agree on the terms and conditions under which those observers and representatives of other bodies may attend the meetings.

Article 4
Information to the public

1.    Unless otherwise decided by the Chair, in agreement with the Parties, the meetings of the EU-Mongolia Subcommittee on Trade and Investment shall not be public. When a Party submits information designated as confidential to the EU-Mongolia Subcommittee on Trade and Investment, the other Party shall treat that information as such.

2.    The EU-Mongolia Subcommittee on Trade and Investment may issue statements and reports to the public as it deems appropriate.

Article 5
Secretariat

1.    A representative of the European Commission service in charge and a representative of the Ministry of Foreign Affairs of Mongolia shall act jointly as Secretaries of the EU-Mongolia Subcommittee on Trade and Investment.

Article 6
Agendas for meetings

1.    The Chair shall draw up a provisional agenda for each meeting of the EU-Mongolia Subcommittee on Trade and Investment.

2.    Either Party may request the Chair to place an item on the agenda.

3.    The agenda shall be adopted by the EU-Mongolia Subcommittee on Trade and Investment at the beginning of each meeting. Items other than those appearing on the provisional agenda may be placed on the agenda if the Parties so agree.

4.    The Secretaries of the EU-Mongolia Subcommittee on Trade and Investment shall make public the provisional agenda of the EU-Mongolia Subcommittee on Trade and Investment before the meeting.

Article 7
Minutes

1.    The conclusions of the meetings of the EU-Mongolia Subcommittee on Trade and Investment shall be recorded in the form of agreed minutes.

2.    The Chair shall summarise the conclusions reached by the EU-Mongolia Subcommittee on Trade and Investment at each meeting and report them to the EU-Mongolia Joint Committee. The two Secretaries shall jointly draw up draft minutes on the basis of those conclusions, preferably at the end of the meeting or at the latest within 30 calendar days following the date of the meeting.

3.    The EU-Mongolia Subcommittee on Trade and Investment shall approve the draft preferably at the end of the meeting or at the latest within 45 calendar days following the date of the meeting or by any date agreed by the EU-Mongolia Subcommittee on Trade and Investment.

Article 8
Decisions

1.    The EU-Mongolia Subcommittee on Trade and Investment may agree on decisions where provided for by the Agreement.

2.    Decisions of the EU-Mongolia Subcommittee on Trade and Investment shall be entitled ‘Decision of the Subcommittee on Trade and Investment’ followed by a serial number, the date of their adoption and a description of the subject matter. Each decision shall state the date on which it enters into force.

3.    Where circumstances so require, the EU-Mongolia Subcommittee on Trade and Investment may adopt its Decisions by written procedure.

4.    Decisions of the EU-Mongolia Subcommittee on Trade and Investment shall be established in two authentic copies each signed by the Chair.

5.    The Parties may publish the decisions of the the EU-Mongolia Subcommittee on Trade and Investment in their respective official journals.

Article 9
Expenses

1.    Each Party shall bear the expenses it incurs in relation to its participation in the meetings of the EU-Mongolia Subcommittee on Trade and Investment, both with regard to staff, travel and subsistence expenditure and to postal and telecommunications expenditure. Each Party shall bear the expenses it incurs in connection with interpretation at meetings and translation.

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

Article 10
Amendment of the Rules of Procedure

The Rules of Procedure may be amended by common agreement of the Parties.