REPORT on the proposal for a Council decision on the conclusion of a Second Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, to take account of the accession of the Republic of Bulgaria and Romania to the European Union

13.4.2007 - (16522/2006 – COM(2006)0777 – C6‑0077/2007 – 2006/0259(CNS)) - *

Committee on International Trade
Rapporteur: Helmuth Markov

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Council decision on the conclusion of a Second Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, to take account of the accession of the Republic of Bulgaria and Romania to the European Union

(16522/2006 – COM(2006)0777 – C6‑0077/2007 – 2006/0259(CNS))

(Consultation procedure)

The European Parliament,

–   having regard to the proposal for a Council decision (COM(2006)0777)[1],

–   having regard to Council decision on the signature and provisional application of a Second Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, to take account of the accession of the Republic of Bulgaria and Romania to the European Union (16522/2006),

–   having regard to Articles 57(2), 71, 80(2), 133(1), 133(5) and 181 in conjunction with the first subparagraph, first and second sentences of Article 300(2) of the EC Treaty,

–   having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6‑0077/2007),

–   having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–   having regard to Rules 51, 83(7) and 35 of its Rules of Procedure,

–   having regard to the report of the Committee on International Trade (A6‑0138/2007),

1.  Approves the proposal for a Council decision as amended and approves the conclusion of the protocol;

2.  Instructs its President to forward its position to the Council and the Commission, and the governments and parliaments of the Member States and the United Mexican States.

Text proposed by the Commission	Amendments by Parliament
Amendment 1 Citation 1
Having regard to the Treaty establishing the European Community, and in particular Articles 57(2), 71, 80(2), 133(1), 133(5) and 181 in conjunction with the first subparagraph, first and second sentences of Article 300(2) and the first subparagraph of Article 300(3) thereof,	Having regard to the Treaty establishing the European Community, and in particular Articles 57(2), 71, 80(2), 133(1), 133(5) and 181 in conjunction with the first subparagraph, first and second sentences of Article 300(2) and the second subparagraph of Article 300(3) thereof,
Justification
This protocol of adaptation of a Partnership and Cooperation Agreement, which requires the Parliament’s assent for its conclusion, should itself be referred to the Parliament under the assent procedure, within the meaning of Article 300(3) EC, rather than under simple consultation.

• [1]  Not yet published in OJ.

EXPLANATORY STATEMENT

The content of the present Proposal consists in a sole article approving the conclusion of the Second Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement. The aim of the present Additional Protocol is expressed in its Article 1 which holds that "The Republic of Bulgaria and Romania are hereby incorporated as Parties to the Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part". That Article shows that the aim is to incorporate two new Parties to the main Agreement.

The rapporteur believes that there are not important substantial issues at stake and agrees with the extension of the Economic Partnership, Political Coordination and Cooperation Agreement to Bulgaria and Romania.

There is, however, an important legal and procedural issue that deserves careful consideration: the Commission is proposing to conclude the Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement with the United Mexican States on a legal basis different to that used as a legal basis for the Main Agreement. This change, is regrettably, not explained by the Commission in the Explanatory Memorandum.

After careful examination, pending the opinion of the Legal Affairs Committee and in view of the opinion by the Legal Service, the rapporteur contends that this protocol of adaptation of a PCA, which requires the Parliament’s assent for its conclusion, should itself be referred to the Parliament under the assent procedure, within the meaning of Article 300 (3) EC, rather than under simple consultation.

The rapporteur has therefore tabled a single amendment to change one of the legal bases. In particular, I propose to replace the first subparagraph of Article 300 (3) EC by the second subparagraph of Article 300 (3) EC, thereby requiring the assent of Parliament instead of simple consultation.

The legal arguments for this amendment are the following:

a) The Economic Partnership, Political Coordination and Cooperation Agreement with the United Mexican States (the main agreement) was concluded on the basis of Articles 44(2), 47, 55, 57(2), 71, 80(2), 133 and 181 thereof, in conjunction with the second sentence of Article 300(2) and the second subparagraph of Article 300(3) EC, thereby requiring the assent of Parliament. It is contended that the assent of Parliament was requested because the Agreement established "a specific institutional framework by organising cooperation procedures" in terms of the second subparagraph of Article 300(3) EC;

b) The Additional Protocol modifies the main agreement and forms an integral part of it. When it will be concluded, the institutional framework of the EU-Mexico Economic Partnership, Political Coordination and Cooperation Agreement will itself be formally modified, because both the Joint Council and the Joint Committee will be extended through the inclusion of two new Members, that is to say Bulgaria and Romania;

c) To that extent, it can be argued that the proposal for a Council decision purports a modification of the "specific institutional framework?' foreseen in the main agreement, within the meaning of Article 300(3), second subparagraph, EC, and that the assent procedure of the European Parliament is therefore required.

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Helmuth Markov

Chairman

Committee on International Trade

BRUSSELS

Subject:           Opinion on the legal basis of the Proposal for a Council Decision on the conclusion of a Second Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, to take account of the accession of the Republic of Bulgaria and Romania to the European Union (COM(2006)0777 – C6‑0077/2007 – 2006/0259(CNS))[1]

Dear Mr Chairman,

By letter of 8 March 2007 you asked the Committee on Legal Affairs pursuant to Rule 35(2), to consider whether the legal basis of the above Commission proposal was valid and appropriate.

The committee considered the above question at its meeting of 20 March 2007.

The legal basis proposed is Articles 57(2), 71, 80(2), 133(1), 133(5) and 181 in conjunction with the first subparagraph, first and second sentences of Article 300(2) and the first subparagraph of Article 300(3) of the EC Treaty.

You informed us that your committee is considering amending the legal basis so as to refer to the second subparagraph of Article 300(3) rather than the first subparagraph of that provision.

This change in the legal basis would give Parliament the benefit of the assent procedure rather than mere consultation.

The lead committee has sought the opinion of the Legal Service, which supports this change in the legal basis.

Pertinent provisions of the EC Treaty

Article 300(3)

3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time-limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.

Appraisal

The question to be determined is whether the agreement in question establishes a specific institutional framework by organising cooperation procedures.

It is noted, in limine, that it is settled case-law of the Court of Justice[2] that the choice of legal basis for Community acts is to be determined solely by reference to objective criteria that are amenable to judicial review, and in particular the aim and content of the act being proposed.

The content of proposal under consideration consists in a sole article approving the conclusion of the Second Additional Protocol to the Economic Partnership, Political Coordination and the Cooperation Agreement. The aim of the Additional Protocol is expressed in its Article 1, which holds that "The Republic of Bulgaria and Romania are hereby incorporated as Parties to the Economic Partnership, Political Coordination and Cooperation and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part". It is clear from that article that the aim is to incorporate two new Parties to the main Agreement.

It should be noted that the main Agreement required the assent of Parliament under the second subparagraph of Article 300(3), since it clearly established a "specific institutional framework" (a Joint Council having the power to take decisions binding on the Parties and to decide on the establishment of a specific trade or trade-related dispute-settlement procedure and a Joint Committee to assist the Joint Council).

As the Legal Service points out in its opinion, the Court of Justice has yet to interpret the concept of a "specific institutional framework" within the meaning of the second subparagraph of Article 300(3).

However, protocols are generally concluded on the same legal basis as the main agreement and Article 3 of the proposed Protocol provides that it is to form an integral part of the main agreement.

Furthermore, when the Additional Protocol is concluded, the institutional framework will itself be formally modified, because both the Joint Council and the Joint Committee will be extended through the inclusion of two new Members - Members of the Council representing Bulgaria and Romania. To that extent, it is considered that the proposal for a Council decision sets out to modify the "specific institutional framework" provided for in the main Agreement, and that hence reference should be made to the second subparagraph of Article 300(3) of the EC Treaty.

Conclusion

In light of the foregoing, it is considered that: the proposal for a Council Decision sets out to modify the "specific institutional framework" provided for in the main Agreement, of which the proposed Protocol forms an integral part.

At its meeting of 20 March 2007 the Committee on Legal Affairs accordingly decided, unanimously[3], to recommend that you that the legal basis should be changed so as to refer to the second paragraph of Article 300(3) of the EC Treaty, which requires the assent and not merely consultation of Parliament.

Yours sincerely,

(sgd) Giuseppe Gargani

Chairman of the Committee on Legal Affairs

• [1]  Not yet published in OJ.
• [2]  See Case C-338/01 Commission v. Council [2004] ECR. I-7829, para. 54; Case C-211/01 Commission v. Council [2003] ECR. I-8913, para. 38; Case 62/88 Greece v. Council [1990] ECR I-01527, para. 62.
• [3]  The following were present for the final vote: Giuseppe Gargani (chairman), Cristian Dumitrescu (vice-chairman), Rainer Wieland (vice-chairman), Francesco Enrico Speroni (vice-chairman), Sharon Bowles, Mogens N.J. Camre, Marek Aleksander Czarnecki, Monica Frassoni, Jean-Paul Gauzès, Kurt Lechner, Klaus-Heiner Lehne, Katalin Lévai, Eva Lichtenberger, Toine Manders, Antonio Masip Hidalgo, Hans-Peter Mayer, Manuel Medina Ortega, Marie Panayotopoulos-Cassiotou, Michel Rocard, Aloyzas Sakalas, Gabriele Stauner, József Szájer, Jacques Toubon, Jaroslav Zvěřina, Tadeusz Zwiefka.

PROCEDURE

Title	Second Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement between the EC and Mexico to take account of the accession of Bulgaria and Romania to the EU
References	COM(2006)0777 - C6-0077/2007 - 2006/0259(CNS)
Date of consulting Parliament	19.2.2007
Committee responsible        Date announced in plenary	INTA 13.3.2007
Committee(s) asked for opinion(s)        Date announced in plenary	AFET 13.3.2007
Not delivering opinions        Date of decision	AFET 27.2.2007
Rapporteur(s)        Date appointed	Helmuth Markov 28.2.2007
Legal basis disputed        Date of JURI opinion	JURI 20.3.2007
Discussed in committee	21.3.2007
Date adopted	11.4.2007
Result of final vote	+: –: 0:	24 0 0
Members present for the final vote	Kader Arif, Carlos Carnero González, Daniel Caspary, Christofer Fjellner, Béla Glattfelder, Eduard Raul Hellvig, Jacky Henin, Ģirts Valdis Kristovskis, Caroline Lucas, Erika Mann, Helmuth Markov, Cristiana Muscardini, Georgios Papastamkos, Tokia Saïfi, Peter Šťastný, Robert Sturdy, Gianluca Susta, Daniel Varela Suanzes-Carpegna, Corien Wortmann-Kool
Substitute(s) present for the final vote	Panagiotis Beglitis, Elisa Ferreira, Vasco Graça Moura, Pia Elda Locatelli, Ivo Strejček, Margrietus van den Berg
Substitute(s) under Rule 178(2) present for the final vote	Emanuel Jardim Fernandes, Anne Ferreira, Markus Pieper