Legal constraints on the EU's ability to withdraw EPA preferences: By Lorand Bartels
On 30 September 2011 the European Commission issued a proposal to withdraw 18 ACP countries from the list of beneficiaries of preferences under Regulation 1528/2007 as of 1 January 2014. (1) This proposal is based on a provision in the Regulation permitting withdrawal of any ACP country that does not ratify an interim or full EPA within a ‘reasonable period of time' such that the entry into force of the agreement is ‘unreasonably delayed'.
There are various problems with the Commission's proposal. For a start, it is based on the ACP countries' ‘failure to take steps towards ratification' - something that is not mentioned in the relevant provision of the Regulation. And it is not manifestly clear that, in each individual case, there will be an ‘undue delay' in the entry into force of the respective agreement if there are no steps towards ratification by 1 January 2014. It took five years for the EU-Israel Association Agreement, signed in 2000, to be ratified by all 15 EU Member States and to enter into force. (2)
Nor does the proposal give proper reasons for its conclusion; it simply lists the dates the agreements were initialled, and claims that there has been no progress in ratification to date. This is insufficient under EU law (Article 296 TFEU), which requires all EU legal acts to state the reasons on which they are based. It is doubtful that the proposal satisfies this requirement.
But the Commission's proposal suffers from a more serious problem: it is likely to violate international law, and would therefore be invalid under EU law, if it were adopted. This is because Regulation 1528/2007 constitutes an example of unilateral ‘provisional application' of the respective EPAs which can only be terminated under special conditions. These have not been satisfied.
‘Provisional application' is a mechanism, recognized by Article 25 of the Vienna Convention on the Law of Treaties, by which parties that have initialled or signed an international agreement ‘apply' a treaty before it enters into force. Provisional application, while it is in effect, is binding: a series of arbitrations has held the Energy Charter Treaty to be binding on Russia, Georgia, Gibraltar and Bulgaria on this basis. The claims in the arbitration against Russia alone were worth $100 billion. (3)
The EU will dispute the claim that Regulation 1528/2007 is an example of ‘provisional application'. It will point to the fact that the initialled agreements distinguish between unilateral ‘application' and mutual ‘provisional application', and that, by its own terms, the Regulation is intended to be an act of unilateral ‘application'. Recital 4 of the Regulation refers to provisions in the agreements authorising the parties, unilaterally, to ‘apply' these agreements.
But the distinction between unilateral ‘application' and mutual ‘provisional application' is unknown to the Vienna Convention. Article 25 applies to any act by which a party ‘applies' an international agreement prior to its entry into force. It does not matter what the act is called, whether it is previously agreed, whether it applies the agreement in part or in whole, or - most importantly - whether it is unilateral or mutual.
The result is that Regulation 1528/2007 can only be terminated in accordance with Article 25(2) of the Vienna Convention. This provision lists three ways in which this can be done: by agreement between the parties; according to the treaty itself; and when the party seeking to terminate notifies the other party or parties that it does not intend to become a party to the treaty. Where these conditions are not satisfied, the provisions of the treaty being provisionally applied are treated as applicable for that party.
The EU is still able to remove ACP countries from the list of beneficiaries. However, if it wishes to do this, it must notify them of its intention not to become a party to the respective agreements. What it cannot do is remove beneficiaries from Annex I of the Regulation as the Commission is proposing to do - not, at least, without violating Article 25(2) of the Vienna Convention on the Law of Treaties, and thereby also EU law itself.
Author: Dr Lorand Bartels is a University Senior Lecturer in Law and Fellow of Trinity Hall, University of Cambridge. Research for this note was conducted at the request of the Commonwealth Secretariat.
1 Commission Proposal to amend Annex I to Council Regulation (EC) No 1528/2007 COM(2011) 598 final. The 18 countries are Botswana, Burundi, Cameroon, Comoros, Cote d'Ivoire, Fiji, Ghana, Haiti, Kenya, Lesotho, Mozambique, Namibia, Rwanda, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe.
2 France and Belgium were the last to ratify. The Agreement entered into force on 1 June 2000.