Explanatory Memorandum to COM(2022)653 - EU position in the Committee on Trade and Sustainable Development with Japan on the List of Experts and Rules of Procedure regarding relevant Articles of Chapter 16 - Main contents
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| dossier | COM(2022)653 - EU position in the Committee on Trade and Sustainable Development with Japan on the List of Experts and Rules of Procedure ... |
|---|---|
| source | COM(2022)653  |
| date | 28-11-2022 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the positions to be taken on the Union's behalf in the Committee on Trade and Sustainable Development established pursuant to Article 22.3 of the Agreement between the European Union and Japan for an Economic Partnership, in connection with the envisaged adoption of
(a)the List of individuals who are willing and able to serve as experts for the panel to be convened to examine the matter concerning the interpretation or application of the relevant Articles of Chapter 16 (Trade and Sustainable Development) of the EU-Japan EPA,
(b)the Rules of Procedure for the panel of experts.
2. Context of the proposal
2.1.The Agreement between the European Union and Japan for an Economic Partnership
The Agreement between the European Union and Japan for an Economic Partnership (‘the Agreement’) aims to liberalise and facilitate trade and investment, to promote a closer economic relationship between the Parties, as well as to promote the development of international trade in a way that contributes to sustainable development.
The Agreement was concluded by the Council of the European Union on 20 December 2018 after ratification by the European Parliament on 12 December 2018. The Agreement entered into force on 1 February 2019.
2.2.The Committee on Trade and Sustainable Development
Article 22.3 (1) of the Agreement establishes specialised committees, including the one on Trade and Sustainable Development, comprising representatives of both Parties. All decisions and recommendations of the specialised committee shall be taken by consensus and may be adopted either by meeting in person or in writing (Article 22.3 (3) (f)).
2.3.The envisaged acts of the Committee on Trade and Sustainable Development
Pursuant to paragraph 4(d) of Article 16.18, the Committee on Trade and Sustainable Development shall establish a list of at least ten individuals who are willing and able to serve as experts for the panel to be convened to examine the matter concerning the interpretation or application of the relevant Articles of Chapter 16 (Trade and Sustainable Development) of the EU-Japan EPA.
The list shall be composed of three sub-lists: a sub-list for each Party and a sub-list of individuals who are not nationals of either Party and who shall act as the chairperson of the panel.
A draft list of twelve individuals who are willing and able to serve as experts has been prepared between the parties.
The list meets the requirements of the paragraph 4(d) of Article 16.18 of the Agreement whereby each sub-list shall include at least three individuals. The sub-list for the EU includes four individuals, the sub-list for Japan includes four individuals and the sub-list of jointly agreed chairpersons includes four individuals.
Furthermore, pursuant to paragraph 2 of Article 16.18 the Committee on Trade and Sustainable Development shall adopt the rules of procedure for the panel of experts.
Draft rules of procedure have been prepared between the parties.
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 list of experts and the rules of procedure. The position should be based on the draft decision of the Committee on Trade and Sustainable Development.
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 Committee on Trade and Sustainable Development is a body set up by an agreement, namely the Agreement between the European Union and Japan for an Economic Partnership.
The act which the Committee on Trade and Sustainable Development is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Articles 16.8 and 22.3 of the Agreement.
The envisaged act does 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.
4.2.2.Application to the present case
The main objective and content of the envisaged act relate to the common commercial policy.
Therefore, the substantive legal basis of the proposed decision is Article 207 TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 207 TFEU, in conjunction with Article 218(9) TFEU.