Explanatory Memorandum to COM(2023)321 - EU position in the Joint Committee established by the UK withdrawal agreement as regards adding two newly adopted Union acts to Annex 2 to the Windsor Framework - Main contents
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| dossier | COM(2023)321 - EU position in the Joint Committee established by the UK withdrawal agreement as regards adding two newly adopted Union acts ... |
|---|---|
| source | COM(2023)321 |
| date | 09-06-2023 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union’s behalf in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’) in connection with the envisaged adoption of a Joint Committee Decision amending Annex 2 to the Windsor Framework1, which forms an integral part of the Withdrawal Agreement.
2. Context of the proposal
2.1. The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community and the Windsor Framework
The Withdrawal Agreement sets out the arrangements for the orderly withdrawal of the United Kingdom from the Union and Euratom. The Withdrawal Agreement entered into force on 1 February 2020. On 27 February 2023, the European Commission and the Government of the United Kingdom reached a political agreement in principle on the Windsor Framework. The Joint Committee established by the Withdrawal Agreement held in London on 24 March 2023 adopted the new arrangements relating to the Windsor Framework and the two Parties agreed to work together intensively and faithfully to implement all elements of the Windsor Framework.
2.2. The Joint Committee
The Joint Committee established under Article 164(1) of the Withdrawal Agreement comprises representatives of the Union and of the United Kingdom. It is co-chaired by the Union and the United Kingdom. Annex VIII to the Withdrawal Agreement lays down the rules of procedure of the Joint Committee. The Joint Committee meets at least once a year or at the request of the Union or the United Kingdom and it sets its meeting schedule and agenda by mutual consent.
The tasks of the Joint Committee are laid down in Article 164 of the Withdrawal Agreement and consist principally of:
- overseeing the implementation and application of the Agreement directly or through the work of the specialised committees reporting to it;
- adopting decisions and recommendations, including amendments to the Agreement in the cases provided therein;
- preventing problems and resolving disputes that may arise regarding the interpretation and application of the Agreement.
2.3. The envisaged act of the Joint Committee
At its next meeting, the Joint Committee is to adopt a decision adding two newly adopted Union acts that fall within the scope of the Windsor Framework to Annex 2 to the Windsor Framework (‘the envisaged act’), pursuant to its Article 13 i.
The envisaged act will become binding on the Parties in accordance with Article 166(2) of the Withdrawal Agreement. In accordance with Rule 9 of the Rules of Procedure of the Joint Committee and Specialised Committees, decisions adopted by the Joint Committee will specify the date at which they take effect.
3. Position to be taken on the Union's behalf
3.1. Annex 2 (‘Provisions of Union law referred to in Article 5(4)’) to the Windsor Framework
Annex 2 to the Windsor Framework contains the provisions of Union law referred to in Article 5 i thereof.
On 30 May 2023, the Union adopted two Regulations laying down new rules:
- for a simplification of requirements and procedures for the entry into Northern Ireland from other parts of the UK of consignments of agri-food retail goods, plants for planting, seed potatoes, and machinery and vehicles, which have been operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals, namely pet dogs, cats, and ferrets. The new simplifications are accompanied by safeguards necessary for the protection of the integrity of the Union’s internal market, and the protection of public, animal and plant health and of consumers in the Union;
- relating to medicinal products for human use intended to be placed on the market in Northern Ireland and amending Directive 2001/83/EC. Once the new rules start applying they will ensure that novel medicines will be authorised and placed on the market in Northern Ireland in accordance with UK rules and UK authorisation procedures only. In addition, prescription medicines placed on the Northern Ireland market should not carry the EU safety features (unique identifier/anti-tampering device) that are obligatory in the EU to prevent their further circulation on the EU market. The new rules are accompanied by safeguards to ensure that UK authorised medicines do not move to a Member State.
These newly adopted Union acts relate to the internal market for goods and hence fall within the scope of the Windsor Framework and should be added to its Annex 2.
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 Council’s 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.’
In addition, 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’2.
4.1.2. Application to the present case
The Joint Committee is a body set up by an agreement, namely the Withdrawal Agreement.
The act which the Joint Committee is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Article 166(2) of the Withdrawal Agreement.
The envisaged act does not supplement or amend the institutional framework of the Withdrawal 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 sole objective and content of the envisaged act is to add two newly adopted Union acts to Annex 2 to the Windsor Framework.
The conclusion of the Withdrawal Agreement was based on Article 50(2) of the Treaty on European Union (TEU).
Therefore, and in accordance with the basic principle that an act can be amended only by an act of the same type, the substantive legal basis of the proposed decision is Article 50(2) TEU.
4.3. Conclusion
The legal basis of the proposed decision should be Article 50(2) TEU, in conjunction with Article 218(9) TFEU.
5. Publication of the envisaged act
As the act of the Joint Committee will amend Annex 2 to the Windsor Framework, it is appropriate to publish it in the Official Journal of the European Union after its adoption.