2.3.2 A political dialogue involving the EU institutional framework ...... We can make our voice heard, but the member states are in the driving seatâ . 242 Further: ...
7+((92/9,1*6WKH@
UHLQIRUFHG SROLWLFDO GLDORJXH aim at promoting a stable and prosperous Europe, and are founded on the principles of democracy, respect for human rights, the rule of law
and on the market economy” (emphasis added).308 It is symptomatic that the Partnership and the political dialogue are distinguished by the actors involved, even if such dialogue is formally part of the PCAs as stipulated in Article 1 of each PCA. Similarly, at the first meeting of the Cooperation Council with Russia, the Parties pointed out that “ implementing the PCA would ensure greater coherence between the various aspects of their relations, such as the political dialogue on foreign policy issues of mutual interest; cooperation in the fight against organised crime; trade relations and economic cooperation” .309 Having pointed out the constituting aspects of the Partnership, which indeed correspond to the different policy areas of the EU, the Cooperation Council nevertheless endorsed the “ Joint Work Programme for 1998” on the one hand, and “ Conclusions on foreign policy subjects” on the other hand. In other words, the Parties deal with CFSP matters and other PCA affairs differently, although meeting in the same framework. This substantive distinction is replicated by an institutional distinction.
$SROLWLFDOGLDORJXHLQYROYLQJWKH(8LQVWLWXWLRQDOIUDPHZRUN
political dialogue to accompany and consolidate the rapprochement between the Community and Ukraine. 308
This statement was reiterated at the sixth EU-Russia Summit in Paris on 30 October 2000
(EU/Russia, 2000b). 309
Press Release of the first Cooperation Council between the EU and the Russian Federation
(EU/Russia Cooperation Council, 1998b). The theme of coherence was equally prominent at the first meeting of the EU-Ukraine Cooperation Council (EU/Ukraine Cooperation Council, 1998).
93
The political dialogue is systematic and institutionalised. First of all, the Agreements provide for consultations at the highest political level. The PCA with Russia foresees regular meetings between the President of the Council of the EU and the President of the Commission on one side, and the President of the Russian Federation, on the other. The practice of presidential meetings has also developed in the context of the EU-Ukraine Partnership, although not explicitly provided for in the PCA.310 This formula has become the so-called “ EU-Russia [or Ukraine] Summits” . Secondly, the political dialogue takes place at ministerial level within the Cooperation Council, set out in the Title “ Institutional, General and Final Provisions” of each PCA. This body assembles once a year the members of the Council of the EU and members of the Commission on the one hand, and members of the Partner’ s Government, on the other, but can meet more often when circumstances require.311 A Cooperation Committee, made of representatives of EU Member States and Commission on the EU side and representatives of the Partner’ s Government on the other, assists the Cooperation Council in performing its duties at senior civil servant level.312 The Cooperation Council essentially monitors the implementation of the Agreement, and “ examine[s] any major issues arising within the framework of the Agreement and any other bilateral or international issues of mutual interest for the purpose of attaining the objectives of the Agreement” .313 The remit of the Cooperation Council is potentially very wide and yet its powers are legally limited. Each PCA endows it with the power to make UHFRPPHQGDWLRQV on 310
EU/Ukraine Summit (1998).
311
In practice, the Cooperation Council has met in Troïka formations; see EU-Russia Summit (2003a).
312
In addition, sub-committees and working parties operating under its aegis assist the Committee
(Arts. 92-93, PCA Russia; Arts. 87-88, PCA Ukraine). 313
Art. 90 PCA Russia; Art. 85 PCA Ukraine. The President of the Cooperation Council is
alternatively a “ representative of the Community” and a member of the Government of the Partner. The PCAs are ambiguous as regards the “ Community side” . One has to look at the provisions of the two Council and Commission Decisions on the Conclusion of the Agreements to understand the expression “ representative of the Community” . Art. 2(2) of the two Decisions provides that the President of the Council shall chair the Cooperation Council and shall present the Community’ s position. A representative of the Commission shall have a similar role in the Cooperation Committee.
94
further developments and interpretation of the Agreement, or indeed to settle disputes. In contrast to decisions adopted by the Association Councils set up by e.g. the Europe Agreements, such recommendations do not in principle have binding effect on the Parties. In other words, the Cooperation Council cannot legally develop the Partnership in the same manner as the Association Council may develop the Association. Indeed, while the PCAs clearly provide that the Parties undertake to consider the development of the relevant titles of the Agreements, as circumstances allow, any such development can only be put in effect by virtue of another agreement between them in accordance with their respective constitutional procedures.314 As regard the determination of the common positions on the Union side, one has to look at the two Decisions on the Conclusion of the Agreements.315 Article 2(1) of each Decision provides that the position to be adopted “ by the Community” in the Cooperation Council and the Cooperation Committee has to be “ determined by the Council, on a proposal from the Commission, or where appropriate, by the Commission, in each case in accordance with the relevant provisions [of the EC/ECSC/EAEC Treaties]” . Considering that the political dialogue falls outside the Community remit, the position of “ the Community” has to be supplemented by a Union’ s position on the nonCommunity issues. In accordance with Article 27 TEU, this additional position is established by the EU Presidency, and the Commission is fully associated.316 The General Affairs Council plays a crucial role in ensuring consistency of the Community position and the position to be defended under the political dialogue heading.317 The combination of both positions constitutes the overall 8QLRQposition, 314
Art. 3 PCA Russia; Art. 4 PCA Ukraine
315
Art. 300(2) second subpara. (introduced by the Treaty of Amsterdam) concerning the procedure to
establish the positions to be adopted on behalf of the Community in a body set up by an agreement do not in principle apply here, for they apply only to bodies that are called upon to adopt decisions having legal effects. Further: Dashwood (1998a: 1025). 316
In practice, it may even propose a common position under the non-Community aspects of the PCAs.
Its involvement depends on the political sensitivity of the issue (interview, EU official). 317
Art. 13(3) TEU (ex Art. J.8(2)) TEU. See, for instance, the conclusions of the GAC 19 July 1999,
which with respect to the EU-relations with Ukraine, “ took note of the information given by the
95
which is then presented by the Presidency of the Council in the Cooperation Council.318 Thirdly, the political dialogue involves parliamentarians.319 The Parliamentary Cooperation Committee, consisting of members of the European Parliament on the one hand, and of members of the Partner’ s parliament on the other, may require information on the Agreement’ s implementation. It has the right to be informed of the recommendations formulated by the Cooperation Council, which is free to publish them. The Parliamentary Committee can itself make recommendations to the Cooperation Council. This systematic and institutionalised political dialogue involves each political institution of the EU mentioned in Article 3 TEU. For instance, the Summits involve not only the President of the Council (Member State holding the Presidency of the Union) and the President of the Partner country, but also the President of the Commission. Together, they deal with all matters covered by the PCAs, including sometimes bitter trade disputes.320 Moreover, since the Amsterdam Treaty, the Secretary General of the Council/High Representative (HR) for CFSP has taken part in the meetings of both the Cooperation Council and the Summits. The HR’ s participation indeed conforms to Article 26 of the TEU (Amsterdam version), which provides that the HR shall lead the political dialogues.321 His/her presence at the Presidency on the preparation of the Ukraine Summit to be held in Kiev on 23 July 1999… the Council also established the position of the EU for the Second Cooperation Committee meeting to be held in Kiev on 28 July 1999” (General Affairs Council, 1999b). 318
An equivalent process takes place for preparing the position to be presented at the Summit level. In
cases where no common position has been established in the context of the political dialogue, no position is presented at all, and Member States are not supposed to voice their individual position in this context (interview, EU official). 319
The Parliamentary Cooperation Committee, consisting of members of the European Parliament on
the one hand and of members of the partner’ s parliamentary body, may require information on the Agreement’ s implementation. It shall be informed of the recommendations adopted by the Cooperation Council, who is free to publish them, and can itself make recommendations to the latter. 320
E.g. the Daewoo case in the context of EU-Ukraine relations. Hillion (1998c).
321
The PCAs institutional framework follows intimately the institutional evolution of the EU, see
further chapter 5.
96
Cooperation Councils incidentally confirms the connection between the PCAs and the CFSP as suggested above. In other words, the institutional framework of the PCAs appears to materialise the different facets of the Union on the international stage. This is typified by the way the meetings in the context of the Partnerships are usually referred to in official Press Releases,
namely
as
(8-Russia/Ukraine
Summits
and
(8-Russia/Ukraine
Cooperation Councils.322 At the same time, the plurality of external dimensions of the Union (CFSP, EC, and Member States) has ramifications in the institutionalised dialogue of the Partnerships.323
&RQFOXVLRQ
This chapter has shown that the PCAs represent instruments of EU external activities. They are inspired by the Union’ s multifarious objectives and include provisions that relate to all its sub-orders. The Agreements notably echo the CFSP objectives and encompass external dimensions of the JHA cooperation. Moreover, they incorporate a strong political conditionality which straddles the pillars and contributes to fulfilling 322
The first meeting of the cooperation council established by the PCA with Russia was referred to as
“ meeting of the EU/Russia cooperation council” (EU/Russia Cooperation Council, 1998b). That was the same with the first meeting of the Cooperation Council established by the PCA with Ukraine (EU/Ukraine Cooperation Council, 1998). 323
The PCA also foresees a potential role for the Union Troika, by mutual agreement (Art. 7(2) PCA
Russia; Art. 7, PCA Ukraine). In addition, it envisages the setting up of other procedures and mechanisms for political dialogue. On this point, the two agreements slightly differ. The PCA with Russia envisages particularly biannual meetings at senior official level between the EU Troika and officials of the partner country. It also invites the Parties to take full advantage of diplomatic channels, and to set up any other means including the possibility of expert meetings that could contribute to consolidating and developing the dialogue (Art. 8 PCA Russia). The PCA with Ukraine does not mention the biannual meetings of the Troika but refers to “ regular meetings” at the level of senior official between representatives of Ukraine and “ the Community” respectively. It is more elaborate on the diplomatic channels by mentioning contacts in the bilateral and multilateral field for instance in the United Nations and CSCE meetings. In contrast to the PCA with Russia, it also envisages exchange of information on matters of mutual interest concerning political cooperation in Europe (Art. 8 PCA Ukraine).
97
the objectives, if not obligations, of the European Union. Finally, the PCAs establish a political dialogue which enhances the foreign policy dimension of the Partnership and involves the Union’ s institutional framework, to develop the relationship in all its dimensions. The PCAs thus bring together the different facets of the Union within the same framework. The Union lacking treaty-making capacity at the time of concluding the Agreements, it could not itself be party to the PCAs, which are thus SURWR cross pillar agreements. Instead, it is through the participation of the Member States alongside the Community, and thus through the mixity of the Agreement, that the objectives of the Union could be fulfilled. Mixity is used by default to project the Union externally, in its different facets. This functional view of mixity is illustrated by the phrase “ Community and Member States acting in the framework of the European Union” which was referred to in the Preamble of the PCA with Russia. The PCAs therefore represent a new formula of mixed agreements, involving a twodimensional mixity. The first dimension of mixity in the PCAs relates to the distribution of powers between the Community and its Member States, as clarified by the Court. Various areas of the PCAs deal with shared competences, such as trade in services and establishment and thus require the Member States’ participation alongside the Community, as discussed in chapter 1. An emerging second dimension of mixity, explored in this chapter, flows from the new constitutional architecture of the Union, and particularly the distribution of decision-making powers between the EU sub-orders, enshrined in the TEU. In this context, the Member States take part in the PCAs acting in the framework of the Union and thus bound by the principles and provisions of the non-EC sub-orders. The twofold dimensions of mixity illustrated by the PCAs, thus involves complex interactions between the sub-orders and the Member States which are characteristic of the emerging system of EU external relations. The next part will examine the principles that organise these interactions, to ensure their overall coherence.
98
