Explanatory Memorandum to JOIN(2018)10 - Signing and provisional application of the Strategic Partnership Agreement with Japan

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dossier JOIN(2018)10 - Signing and provisional application of the Strategic Partnership Agreement with Japan.
source JOIN(2018)10 EN
date 27-04-2018


1. CONTEXT OF THE PROPOSAL


On 29 November 2012, the Council adopted a Decision authorising the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy to negotiate a framework agreement between the European Union and its Member States, of the one part, and Japan, of the other part. The negotiations began in April 2013 and were concluded in April 2018.

Negotiations were carried out in consultation with the Working Party on Asia and the Pacific (COASI), which was appointed as the consultative committee. The European Parliament has been kept regularly informed throughout the negotiations.

The High Representative and the Commission consider that the objectives set by the Council in its negotiating directives have been met and that the draft Strategic Partnership Agreement can be submitted for signature and provisional application.

The present proposal concerns the legal instrument that authorises the signing and provisional application of the Agreement.


2. AIM AND CONTENT OF THE AGREEMENT

The EU and Japan have a history of extensive political, economic and sectoral cooperation, which has evolved over time. Building on shared fundamental values, the EU established a Strategic Partnership with Japan in 2001.

The Strategic Partnership Agreement is the first-ever bilateral framework agreement between the EU and Japan. The Agreement greatly strengthens the overall partnership by promoting political and sectoral cooperation and joint actions on issues of common interest, including on regional and global challenges. The Agreement will provide a legal foundation for improving bilateral cooperation and cooperation in international and regional organisations and fora. It will help promote shared values and principles, in particular democracy, the rule of law, human rights and fundamental freedoms.

The Agreement will serve as a platform for closer cooperation and dialogue across a broad range of bilateral, regional and multilateral issues. It strengthens political, economic and sectoral cooperation across a wide spectrum of policy fields, such as climate change, research and innovation, maritime affairs, education, culture, migration, counter-terrorism and the fight against organised crime and cybercrime. It restates the Parties’ commitment to safeguard international peace and security by preventing the proliferation of weapons of mass destruction and taking measures to deal with the illicit trade in small arms and light weapons.

It establishes a Joint Committee with the objective of coordinating the overall partnership which is built upon this Agreement.

The Agreement provides for the possibility of suspending its application if there is a violation of essential elements of the Agreement, i.e. the human rights clause (Article 2(1) of the Agreement) and the non-proliferation clause (Article 5(1) of the Agreement). In addition, the Parties note that in such cases a Party may take other appropriate measures outside the framework of this Agreement in accordance with international law.

The Strategic Partnership Agreement and the Economic Partnership Agreement are part of one negotiating context and have a clear legal link. Together, they are expected to provide tangible benefits and opportunities to the people of the EU and Japan.


3. LEGAL BASIS OF THE PROPOSED DECISION


3.1. Substantive legal basis


The European Court of Justice has held 1  that a measure that simultaneously pursues a number of objectives, or that has several components that are inseparably linked without one being incidental to the other, and to which various provisions of the Treaty therefore apply, must be founded, exceptionally, on the various corresponding legal bases, unless the procedures laid down for each legal basis are incompatible with each other.


The Agreement pursues objectives and contains components in the areas of (i) common foreign and security policy (CFSP) cooperation and (ii) economic, financial and technical cooperation with third countries. These aspects of the Agreement are inseparably linked without one being incidental to the other.


The legal basis of the proposed decision should therefore include Article 37 of the Treaty on European Union (TEU) and Article 212 of the Treaty on the Functioning of the European Union (TFEU).


3.2. Procedural legal basis


Article 218(5) TFEU provides for the adoption of a decision to authorise the signing of an agreement and its provisional application before entry into force. The second subparagraph of Article 218(8) TFEU provides that the Council is to act unanimously if the agreement covers a field for which unanimity is required for the adoption of a Union act. The CFSP is a field in which unanimity is required for the adoption of a Union act.


3.3. Conclusion


The legal basis of the proposed decision should therefore be Articles 37 TEU and 212 TFEU, in conjunction with Articles 218(5) TFEU and the second subparagraph of Article 218(8) TFEU. No additional provisions are required as a legal basis 2 .


4. OTHER LEGAL ELEMENTS OF THE PROPOSAL


The Union and Japan agreed that ensuring implementation of the Agreement as soon as possible after its signature would be mutually beneficial. However, given legal constraints on the Japanese side, it was not possible to use the EU standard language on provisional application.


The Parties have instead agreed that certain parts of the Agreement are to be applied ‘pending its entry into force’ and that they shall have ‘the same legal effect as if the Agreement were in force between the Parties’ (see Article 47(2) and (3) of the Agreement). A declaration to be made by the European Union upon the signing of the Agreement will clarify that the legal effect of the parts to be applied pending entry into force is to be interpreted in a manner that is consistent with Article 25 ‘Provisional application’ of the Vienna Convention on the Law of Treaties.


5. NECESSITY OF PROPOSED DECISION


Article 216 TFEU provides that the Union may conclude an agreement with one or more third

countries where the Treaties so provide or where this is (i) necessary to achieve, as part of the Union’s policies, one of the objectives referred to in the Treaties, (ii) is provided for in a legally binding Union act, or (iii) is likely to affect common rules or alter their scope.


The Treaties provide for the conclusion of agreements such as the Strategic Partnership Agreement, namely in Articles 37 TEU and 212 TFEU. Moreover, the conclusion of the Strategic Partnership Agreement is necessary for achieving — in the framework of CFSP and economic, financial and technical cooperation with third countries — objectives referred to in the Treaties. These include objectives in the areas of: human rights, non-proliferation of weapons of mass destruction, counter-terrorism, the fight against corruption and organised crime, migration, environment, energy, climate change, transport, employment and social affairs, education and agriculture. The Strategic Partnership Agreement brings the partnership and cooperation to a more strategic level.


The Agreement must be signed before it can be concluded on behalf of the Union.