Explanatory Memorandum to COM(2023)450 - EU position within the Committee on Government Procurement on the adoption of its Rules of Procedure for the selection of the Chairperson - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)450 - EU position within the Committee on Government Procurement on the adoption of its Rules of Procedure for the selection of ... |
|---|---|
| source | COM(2023)450  |
| date | 17-07-2023 |
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Committee on Government Procurement (‘the Committee’) in connection with the envisaged adoption of its rules of procedure for the selection of the Chairperson.
2.1.The Agreement on Government Procurement
The Agreement on Government Procurement (‘the Agreement’) is a plurilateral agreement within the framework of the WTO, which aims to mutually open government procurement markets among its Parties. The revised version of the Agreement entered into force on 6 April 2014.
The European Union is a Party to the Agreement.
On 12 May 2023, the Committee circulated the draft rules on procedure for the selection of the Chairperson of the WTO Committee on Government Procurement (document GPA/W/349).
The decision enables the Commission to express the final position on behalf of the European Union on the draft rules of procedure for the selection of the Chairperson.
2.2.The Committee on Government Procurement
The Committee was established to administer the implementation of the GPA. It is composed of representatives from each of the Parties as well as WTO members and inter-governmental organizations with observer status.
The Committee meets regularly, around four times a year, to give Parties the opportunity to consult on any matters relating to the implementation and operation of the Agreement or the furtherance of its objectives. It also carries out other responsibilities as may be assigned to it by the Parties.
The Committee annually informs the WTO General Council of its activities and of developments relating to the implementation and operation of the Agreement.
The European Union, like all other Parties, is a member of the Committee, where it is represented by the Commission.
2.3.The envisaged act of the Committee
The purpose of the envisaged act is to adopt the rules of procedure for the selection of the Chairperson of the Committee.
The adoption of the Decision will be subject to the Parties' respective internal procedures.
3.Position to be taken on the Union's behalf
There are currently no rules of procedure regulating the adoption of the Chairperson of the Committee. The draft rules of procedure for the selection of the Chairperson of Committee
provide the rules of that selection among the representatives to the Committee, the rules of the appointment of the Chairperson, as well as the rules of the selection of an interim Chairperson in specific cases.
The draft rules of selection of the Chairperson of the Committee are as follows:
(1)The Parties shall select a Chairperson from among their representatives to the Committee on a yearly basis.
(2)The Parties may decide to extend the term of the Chairperson, drawing on Chairperson’s work plan for the following year.
(3)A candidate shall be selected as Chairperson on the basis of the candidate’s capacity, experience, availability and competencies to undertake the attendant responsibilities. The Chairperson will serve in their personal capacity.
(4)The outgoing Chairperson shall hold consultations to facilitate the selection. If there is no Chairperson, the Parties may appoint, by consensus, an interim Chairperson or invite the Party that provided the previous Chairperson to hold such consultations.
(5)Prior to, or in the course of the consultations, the candidate(s) for the position of the Chairperson shall be given an opportunity to present proposed plans to the Parties for the period of chairing the Committee.
(6)The appointment shall take place at the first regular Committee meeting of the year. If the office of Chairperson becomes vacant in the middle of a year, the Parties shall aim to find a replacement within the shortest possible delay.
(7)The appointment shall take effect at the end of the meeting provided in the preceding paragraph. If there is no Chairperson at that time, it shall take effect immediately.
(8)The Chairperson shall hold office until the end of the first regular meeting of the following calendar year, unless the Chairperson is no longer able to serve or resigns at an earlier time.
(9)If the Parties are unable to reach consensus on the selection of a Chairperson, so that the Committee is prevented from fulfilling its obligation to meet at least once a year, the Committee may appoint, by consensus, an interim Chairperson from among the candidates, or alternatively invite the Party that provided the previous Chairperson, to temporarily facilitate the meetings of the Committee until such time as a Chairperson can be appointed.
(10)The Parties may decide to complement these rules of procedure further. The rules of procedure may be reviewed within five years of their adoption.
4.COMMISSION’S ASSESSMENT OF THE DRAFT RULES OF PROCEDURE
The draft rules of procedure for the selection of the Chairperson of the Committee are satisfactory. They intend to provide legal certainty for the selection process of the Chairperson.
Recommendation
It is proposed that the Commission be authorised to express within the Committee the position of the European Union in favour of the adoption of the draft rules of procedure for the selection of the Chairperson of the Committee.
5.Legal basis
5.1.Procedural legal basis
5.1.1.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’.
5.1.2.Application to the present case
The Committee is a body set up by the Agreement.
The act which the Committee is called upon to adopt constitutes an act having legal effects.
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.
5.2.Substantive legal basis
5.2.1.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 several aims or has several components and if one of those aims or components is identifiable as the main one, whereas the others are 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.
5.2.2.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.
5.3.Conclusion
The legal basis of the proposed decision should be Article 207 TFEU, in conjunction with Article 218(9) TFEU.
6.Publication of the envisaged act
As the act of the Committee will amend the Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption