Institutional aspects of the partnership between the European Union and the newly independent states of the former Soviet Union: Case studies of Russia and Ukraine

Common Market Law Review

Volumn 37, Issue 5, 2000, Pages 1211-1235

  Hillion, Christophe ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 84891456280     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.1023/A:1005638403918     Document Type: Article

References (124)

1. 1. Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, Former Yugoslav Republic of Macedonia, and Albania.
2. 2. Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kirghizhstan, Moldova, the Russian Federation, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.
3. 3. Ukraine, as well as Moldova, has made clear her aspiration to become an EU member. President of the European Commission Romano Prodi reacted cautiously to Ukraine’s aspirations: “for objective reasons, the EU is not ready to speak of membership for Ukraine, the aim must be to work constructively through the existing PCA and for relationships to be built over time” (emphasis added); see Euro-east, No. 83, Dec. 1999, 38.
4. 4. Russia already has borders with Finland.
5. 5. O.J. 1999, L 157.
6. 6. O.J. 1999, L 331.
7. 7. Mr Verheugen, then German Secretary of State for Foreign Affairs, said after the Cologne European Council had formally approved the CS on Russia, that the purpose of the strategy “whose strategic importance goes well beyond today’s decision alone” is to strengthen “the strategic partnership” between the EU and Russia; Agence Europe, 3 June 1999.
8. 8. The official Title of the PCAs is “Agreement on Partnership and Cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part”.
9. 9. Council and Commission Decision of 30 Oct. 1997 on the conclusion of a PCA between the EC and their Member States, of the one part, and the Russian Federation, of the other part (O.J. 1997, L 327); Council and Commission Decision of 26 Jan. 1998 on the conclusion of the PCA between the EC and their Member States, of the one part, and Ukraine, of the other part (O.J. 1998, L 49); Council and Commission Decision of 28 May 1998 on the conclusion of a PCA between the EC and their Member States, of the one part, and the Republic of Moldova, of the other part (O.J. 1998, L 181); Council and Commission Decision on the conclusion of a PCA between the EC and their Member States, of the one part, and Armenia, of the other part (O.J. 1999, L 239); Council and Commission Decision on the conclusion of a PCA between the EC and their Member States, of the one part, and Azerbaijan, of the other part (O.J. 1999, L 246); Council and Commission Decision on the conclusion of a PCA between the EC and their Member States, of the one part, and Georgia, of the other part (O.J. 1999, L 205); Council and Commission Decision on the conclusion of a PCA between the EC and their Member States, of the one part, and the Republic of Kazakhstan, of the other part (O.J. 1999, L 196); Council and Commission Decision on the conclusion of a PCA between the EC and their Member States, of the one part, and the Kyrgyz Republic, of the other part (O.J. 1999, L 196); Council and Commission Decision on the conclusion of a PCA between the EC and their Member States, of the one part, and Uzbekistan, of the other part (O.J. 1999, L 229); see also the proposal for a Council and Commission Decision on the conclusion of the PCA between the EC and its Member States, on the one hand, and Belarus, on the other hand (COM(95)44); the proposal for a Council and Commission Decision on the conclusion of the PCA between the EC and its Member States, on the one hand, and Turkmenistan, on the other hand (O.J. 1998, C 50/2).
10. 10. See Pinder, “Les ne´gociations entre la CEE et le COMECON”, Politique e´trange‘re, Sept. 1980; de la Serre, “A la recherche d’une Ostpolitik” in L’Union europe´enne: Ouverture a’ l’Est? PUF, 1994, p. 11 and Delwit, “Historique des relations entre la Communaute´ et les pays de l’Europe Centrale et Orientale” in Un de´fi pour la Communaute´ europe´enne: Les bouleversements a l’Est et au Centre du Continent; Collection Etudes Europe´ennes, Universite´ de Bruxelles, 1991, p. 7.
11. 11. Council Decision of 22 June 1988 on the conclusion of the Joint Declaration on the Establishment of official relations between the European Economic Community and the Council for Mutual Economic Assistance; O.J. 1988, L 157/34.
12. 12. In the aftermath of the EEC/COMECON mutual recognition, the European Council in Rhodes in Dec. 1988 underlined its determination to strengthen the international role of the EC and to take the necessary actions to go beyond the division of Europe.
13. 13. For an analysis of this agreement, see Shemiatenkov, “Pre´misses du partenariat: L’accord de cooperation avec l’URSS” in Raux and Korovkine (Eds.), Le Partenariat entre l’Union europe´enne et la Fe´de´ration de Russie (Apoge´e, 1998), pp. 37–44.
14. 14. O.J. 1988, L 327.
15. 15. O.J. 1989, L 339.
16. 16. For more details, see Maresceau, “The European Union and Central and Eastern Europe” in Demaret et. al., Regionalism and Multilateralism after the Uruguay Round (European Interuniversity Press, 1997).
17. 17. The Presidents of Belarus, Russia and Ukraine, meeting in the outskirts of Minsk on 8 Dec. 1991, acknowledged the end of the Soviet Union and signed an agreement establishing a “Commonwealth of Independent States”. On 21 Dec. 1991, eleven Presidents of the former Soviet Republics met in Alma-Ata to sign the definite text of the Agreement establishing the CIS. The three Baltic States (Estonia, Latvia, and Lithuania) did not participate, nor did Georgia which joined later. The text of the CIS Charter can be found in Documents d’actualite´s internationales, No. 9, 1 May 1993, p. 171.
18. 18. Ex-Art. A TEU.
19. 19. Bull. EC, 12-1991, point 1.4.13.
20. 20. The Russian Federation, recognized successor of the Soviet Union for international treaties, took over the EC-USSR Trade and Cooperation Agreement, see Documents d’Actualite´ Internationale, No. 7, 1 April, 1992.
21. 21. See the Communication of the Commission on the Relations between the Community and the Independent States, which suggested the replacement of the old TCA by another agreement taking into account the NIS political and economic transformation as well as the objectives of the new EU; Bull. EC 1/2-1992, point 1.4.2.
22. 22. The Baltic States were treated as CEECs. See O.J. 1998, L 26 (Latvia); O.J 1998, L 51 (Lithuania) and O.J. 1998, L 68 (Estonia).
23. 23. French acronym for “Pologne-Hongrie, Aide a’ la Restructuration Economique” initially based on Council Regulation 3906/89 on economic aid to the Republic of Hungary and the Polish People’s Republic (O.J. 1989, L 375/11); it then became the EU aid programme to Central and Eastern Europe. For more details on assistance to Central and Eastern Europe, see for instance Mayhew, Recreating Europe (Cambridge University Press 1998), in particular pp. 132–158.
24. 24. Initially established in July 1991 to support the economic reforms taking place in the USSR, the Technical Assistance to the Commonwealth of Independent States (TACIS) became an instrument of financial assistance to the various NIS. It aims at supporting the economic and political transformation undertaken by these countries, as such it is an instrument supporting the partnership as it helps to achieve the objectives of the PCA. See O.J. 1991, L 201/2; O.J. 1993, L 187/1; and O.J. 1996, L 165/1. On 29 December 1999, the Council adopted the new Tacis Regulation for the period 2000–2006. See also Tacis on the Europa server: http://europa.eu.int/comm/dg1a/tacis/index. htm.
25. 25. About the differentiation, see Maresceau, “Association, Partnership, Pre-accession and Accession” in Maresceau, Enlarging the European Union, Longman 1997, pp. 3–22.
26. 26. See from the same author, “Partnership and Co-operation Agreements between the EU and the New Independent States of the Ex-Soviet Union”, 3 EFARev. (1998/3).
27. 27. E.g. the last sentence of Art. 3 PCA with Russia states that “(t)he Parties shall examine together in the year 1998 whether circumstances allow the beginning of negotiations on the establishment of a free trade area”.
28. 28. Indeed, this differentiated approach with respect to NIS might be reviewed considering that the EU has recognized Turkey as an official candidate for accession. A future enlargement to Turkey would create new NIS neighbourhood for the EU, i.e. Georgia, member of the Council of Europe – as Moldova, Russia and Ukraine – and Armenia.
29. 29. See Case 12/86, Demirel v. City of Schwa¨bish Gumd, [1987] ECR 3719. See in general on developments in the EAs, in this Review: Inglis, “The Europe Agreements compared in the light of their pre-accession orientation”.
30. 30. See note 1.
31. 31. See “The Stabilization and Association Process for countries of South-Eastern Europe”; COM(99)235. See also the Commission report on the feasibility of negotiating a Stabilization and Association Agreement with the former Yugoslav Republic of Macedonia, COM(1999)300 and the report of the EP Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy on the Commission Recommendation for a Council Decision authorizing the Commission to negotiate a Stabilization and Association Agreement with the former Yugoslav Republic of Macedonia, PE 232.458.
32. 32. It is worth noting that the re-elected Ukrainian President Kuchma has measured the impact of such a development by underlining in his inaugural speech that the Ukraine is a “part of Central, Southern and Southern-Eastern Europe all at once”, see Euro-east No. 83, Dec. 1999, p. 42. Indeed, the Ukrainian Foreign Minister has argued for Ukraine to be admitted to the reconstruction process in South-Eastern Europe. At present Ukraine is only an observer to the Stability Pact for Southeastern Europe (European Report, 10 May 2000). Also, leaders of 20 out of 28 Moldova parliamentary and out-of-parliament political parties have asked to join the Stability Pact for Southeastern Europe and to sign an Association Agreement (BBC Monitoring Service: 12 May 2000).
33. 33. As the PCA also covers matters relating to the European Coal and Steel Community and European Atomic Energy Community, a general reference to the ECSC Treaty, particularly Art. 95, and to Art. 101 EAEC was made in the Council and Commission Decisions on the Conclusion of the PCAs.
34. 34. Opinion 1/94, WTO [1994] ECR I-5267. For comments on the opinion, see for instance: Tridimas and Eeckhout, “The external Competence of the Community and the Case-law of the Court of Justice: Principles versus Pragmatism”, 14 YEL (1994), 143; Simon, “La compe´tence de la Communaute´ pour conclure l’accord OMC: l’avis 1/94 de la Cour de Justice”, (1994) Europe, Chronique 9.
35. 35. Only the Kyrgyz Republic is a WTO Member.
36. 36. Among the GATT principles set out in the PCA, “the Parties shall accord to one another the Most-Favoured-Nation treatment according to Art. I, paragraph 1 of the GATT”. Additionally, Art. III(2) GATT introduces the principle of non-discrimination in internal taxes, charges or regulations. A reference is made to Art. V (2, 3, 4, 5) GATT to guarantee the freedom of transit, regarded as an essential condition of attaining the objectives of the Agreement. Other GATT principles on valuation for customs purposes (Article VII (1, 2, 3, 4a, 4b, 4d, 5)), on the limitation of fees and formalities connected with the importation and exportation (Art. VIII), on the marks of origin (Art. IX), on the obligation of publication and of uniform, impartial and reasonable administration of trade regulations (Art. X) are applicable mutatis mutandis between the Parties. One should add that the derogation to these principles are also inspired by GATT; for an analysis on GATT/WTO provisions in the PCA, see Lebullenger, “Un Accord confronte´ aux re‘gles du GATT et de l’OMC” in Raux and Korovkine, op. cit. supra note 13, p. 199.
37. 37. On the basis of its exclusive competence, the Community has also concluded specific agreements. One may mention the Agreement concluded by the Community with the Russian Federation on trade in textile products (O.J. 1998, L 222). An Agreement has been concluded in the form of an exchange of letters between the European Community and Ukraine establishing a double-checking system without quantitative limits in respect of the export of certain steel products covered by the EC and ECSC Treaties from the Ukraine to the Community (O.J. 1997, L 210); the same agreement has been concluded with Russia (O.J. 1997, L 300).
38. 38. In the Council and Commission Decision on the Conclusion of the PCA with Russia the following legal basis is stated: Art. 44(2) (ex 54(2)), the last sentence of Art. 47(2) (ex 57(2)) and Art. 55 (ex 66) for the PCA provisions on services and establishment; Art. 57(3) (ex 73c(3)) for the provisions on payments (connected with the movement of goods) and capitals; Art. 71 (ex 75), Art. 80 (ex 84(2)) for the provisions on transports; Art. 93 (ex 99), and Art. 94 (ex 100) for the provisions on direct and indirect taxation, in conjunction with the second sentence of Art. 300 (ex 228(2) and 228(3)) EC, together with Art. 95 ECSC and Art. 101 Euratom. See also the Commission Document on the amended proposal for a Council and Commission Decision on the conclusion of the PCAs with Belarus, Kazakhstan, Kirghizhstan, Moldova and Ukraine (O.J. 1995, C 127/2). For an analysis of this inflation of legal basis, see Flaesch-Mougin, “Quel partenaire europe´en pour la Fe´de´ration de Russie: Union europe´enne, Communaute´, Etats membres?” in Raux and Korovkine, op. cit. supra note 13, p. 66; Peers, “EC frameworks of international relations: Cooperation, Partnership and Association” in Dashwood and Hillion (Eds.), The General law of EC external Relations (Sweet and Maxwell, to be published by the end of 2000).
39. 39. Art. 2(1) of the Decision on the Conclusion of the PCA with Russia indicates that the position to be adopted by the Community in the Cooperation Council and the Cooperation Committee shall be “determined by the Council, on a proposal from the Commission, or where appropriate by the Commission, in each case in accordance with the relevant provisions of the Treaties establishing the European Community, the European Coal and Steel Community and the European Atomic Energy Community” (emphasis added)”, see Council and Commission Decision of 30 Oct. 1997 on the conclusion of the PCA with Russia, cited supra note 9. See the analysis by Flaesch-Mougin, op. cit. supra note 38, pp. 67–68.
40. 40. See e.g. the Preamble of the PCA with Russia.
41. 41. Preamble of the PCA with Russia exclusively (third indent).
42. 42. Both documents are stated in Art. 11 (ex J.1) TEU.
43. 43. A Joint Declaration to Art. 107, annexed to the PCA with Russia (the same Declaration exists in the PCA with Ukraine, concerning Art. 102) defines “the material breach” by reference to Art. 60(3) of the Vienna Convention on the Law of Treaties (1969) as either a repudiation of the Agreement not sanctioned by the general rules of international law or a violation of the essential elements of the Agreement.
44. 44. The PCA dispute settlement mechanism normally requires that before a Party retaliates in response to the other Party’s non-compliance with its obligations, the former must supply the Cooperation Council with all the relevant information required for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties (Art. 101 PCA with Russia). For an illustration of how the Parties may handle a dispute, see the remarks from the same author on the “Daewoo” trade dispute between the EU and Ukraine, “Trade dispute overshadows entry into force of EC agreement”, 6 EU Focus (1998).
45. 45. Art. 61(1) of the Vienna Convention provides that the “material breach” by one Party allows the other Party to terminate the Agreement or suspend, partly or wholly its implementation, in observance of the procedure set out in Art. 65 which requires three months between the notification and the suspension. The “case of special urgency” allows derogation from the obligations set out in Art. 65 of the Vienna Convention.
46. 46. Council Declaration of 11 May 1992, Press Release No. 6326/92.
47. 47. COM(95) 216.
48. 48. In the case of Ukraine, respect for the principles of market economy by reference to the “Documents of the CSCE Bonn Conference” is another “essential element” of the Agreement; see Art. 2 PCA.
49. 49. Art. 1 PCA with Ukraine, Art. 1 PCA with Russia; also in other PCAs.
50. 50. See Art. 90 PCA with Russia; Art. 85 PCA with Ukraine.
51. 51. E.g. Art. 101 PCA with Russia.
52. 52. See Joint Statement EU-Russia Summit, 29 May 2000, Press Release No. 8976/00.
53. 53. See the Joint Press Release of the first EU-Ukraine Summit, 16 Oct. 1998; No. 12113/98.
54. 54. Art. 101(3) PCA with Russia, Art. 96(3) PCA with Ukraine.
55. 55. In the case of Ukraine, six sub-committees were created in the framework of the PCA, the most important being the one on trade and market access.
56. 56. See Rules of Procedure of the Cooperation Council and the Cooperation Committee (O.J. 1998, L 187/170 for Russia, O.J. 1998, L 194/25 for Ukraine).
57. 57. Art. 11 of the rules of Procedure of the Cooperation Council on Publicity provides in para. 2 that “[e]ach Party may decide to publish recommendations of the Cooperation Council in its respective official gazette” (emphasis added).
58. 58. Art. 8 PCA with Ukraine, Art. 8 PCA with Russia.
59. 59. Press Release No. 05273/98 of the first Cooperation Council between the EU and the Russian Federation. The first Cooperation Council between the EU and Ukraine also underlined that the “PCA would lead to greater coherence between the various aspects of the relations between the EU and Ukraine”; see Press Release No. 9594/98.
60. 60. Document “Conclusions on Foreign Policy Subjects by the EU/Russia Cooperation Council on 27 January”.
61. 61. The press releases of the Cooperation Council meetings with Russia and Ukraine respectively mention that “Ministers had an exchange of view on Foreign policy issues over dinner” (emphasis added). Dinners and lunches should not be underestimated; they may have an institutional impact on the Community! See in that respect the Bangladesh Joined cases C-181/91 & C-248/91, EP v. Council and Commission, [1993] ECR 3685.
62. 62. “[On the basis of Art. 84 PCA] both sides will seek to give new impetus to cooperation in tackling organized crime including drug trafficking and illegal activities in the sphere of economics. They will explore in particular the possibilities for enhancing practical law enforcement cooperation”, point 17 of “Joint PCA work programme for 1998”, Annex 1 to the Press Release of the first Cooperation Council between the EU and the Russian Federation, op. cit. Indeed the Press Release states that the “Cooperation Council welcomed the commitment of the Parties to step up their fight against organized crime in its various manifestations” (emphasis added).
63. 63. See Press Release No. 8741/00 following the third meeting of the Cooperation Council on 23 May 2000.
64. 64. See the Joint Statement following the Russia – EU Summit, Press Release No. 8976/00.
65. 65. This development might not necessarily be appreciated on the side of the Commission, particularly of the Commissioner in charge of external relations. See in general, on delimitation of EU and EC external competences, in this Review, Wessel, “The inside looking out: Consistency and delimitation in EU external relations”.
66. 66. For a deeper analysis of this new instrument, see Dashwood, “External relations provisions of the Amsterdam Treaty”, 35 CML Rev. (1998), 1019–1045; and des Nerviens, “Les relations exte´rieures”, 33 RTDE (1997), 801–812.
67. 67. Art. 13(3.1) TEU.
68. 68. Art. 13(1) TEU.
69. 69. Document submitted to the Vienna European Council, 11–12 Dec. 1998, Press Release No. 13643/98.
70. 70. See point 74, Conclusions of the Presidency, Vienna European Council, 11–12 Dec. 1998, Bull. EU 12/98 p. 8.
71. 71. Document submitted to the Vienna European Council, 11–12 Dec. 1998, op. cit.
72. 72. There was also an “exchange of information” on the CS towards Ukraine and on the Ukraine’s strategy of integration with the EU at the EU-Ukraine Summit on 23 July 1999; see para 4 of the Joint Press Communique´, No. 10391/99.
73. 73. Europe No. 7465, 15 May 1999, p. 8.
74. 74. See Press Release 99/152 of the second meeting of the Cooperation Council between the EU and Russia. Brussels, 17 May 1999.
75. 75. See point 78, Presidency Conclusions, Cologne European Council, 3–4 June 1999; Bull. EU 6/99; p. 7.
76. 76. See point 56, Presidency Conclusions, Helsinki European Council, 10–11 Dec. 1999; Bull. EU 12/99; p. 7.
77. 77. COM(95)223.
78. 78. COM(96)593.
79. 79. See Part on “Instruments and Means” in the two CSs.
80. 80. Art. 18(4) TEU indicates that the Commission is “fully associated in the tasks referred to in paragraphs 1 and 2”, that is inter alia implementation of decisions taken under the CFSP. Art. 27 TEU provides that the Commission is “fully associated with the work carried out in the common foreign and security policy field”.
81. 81. Art. 22 (ex J.12) TEU.
82. 82. See Dashwood, op. cit. supra note 66, 1031.
83. 83. Art. 21 (ex J.11) TEU.
84. 84. See e.g. Report of 12 Feb. 1998 on the Commission Communication “The future of relations between the European Union and Russia” and the Action Plan “The European Union and Russia – the future relationship” (A4-0060/98); Report of 11 Feb. 1998 on the Communication from the Commission to the Council on an Action Plan for Ukraine (A4-0059/98); Report of 19 Feb. 1999 on the Commission Communication “Towards a European Union strategy for relations with the Independent States of Central Asia” (A4-0069/99); Report of 13 Sept. 1996 on the Commission Communication “Towards a European Union strategy for relations with the Transcaucasian Republics” (A4-0279/96).
85. 85. The EP claims that “the provisions of Art. J.11 (new Art. 21 TEU), already in the Maastricht Treaty, have never been applied, despite repeated calls by Parliament, notably during the annual debate on the CFSP” (emphasis added). See Report containing a proposal for a European Parliament recommendation to the Council on the common strategy towards the Russian Federation (A4-0219/99).
86. 86. Ibid.
87. 87. See para 4 of Part I (“Vision of the EU for its Partnership with Russia”) in the CS on Russia and para 7 of Part I (“Vision of the EU for its Partnership with Ukraine”) in the CS on Ukraine; see also point 78, Presidency Conclusions, Cologne European Council, 3–4 June 1999, op. cit.
88. 88. See “Dossier” on Ukraine Common Strategy, Euro-east, No. 79, July 1999.
89. 89. In contrast to the final text, the draft of the CS on Ukraine stated exactly the same “strategic goals” as the one set out in the CS on Russia.
90. 90. Para. 8 of Part I of the CS on Ukraine. Part I of the CS on Russia contains the same provisions except that it refers only to the objectives of the CS but not to “the objectives of the PCA”.
91. 91. In the case of Ukraine, “Cooperation in the field of Environment, Energy and nuclear safety” are covered by both the PCA (Arts. 61, 62, 63) and CS (Part III, “Specific Initiatives”).
92. 92. Para. 5, Part I of the CS on Russia.
93. 93. Para. 7, Part I of the CS on Ukraine.
94. 94. See point 41 in “Instruments and Means” of the CS on Ukraine; point 2 of “Instruments and Means” in the CS on Russia. Moreover, the CS on Ukraine requires the positions taken by the Community and its Member States in all relevant fora to conform to the CS, see point 8 of Part I of the CS on Ukraine. In that sense, the CS on Ukraine goes further than the CS on Russia which obliges only the Member States to conform their positions to the CS in all relevant fora, not the Community; see para 5 of Part I.
95. 95. Ibid.
96. 96. Art. 13(2) TEU.
97. 97. Art. 13(3) TEU.
98. 98. Art. 23(2) TEU.
99. 99. “European Council Declaration on the Common Strategy on Russia” and “European Council Declaration on the Common Strategy on Ukraine”. See notes 5 and 6 supra.
100. 100. See para. 2 of the Declaration, op. cit.
101. 101. The Finnish Presidency’s Progress Report on the Implementation of the Common Strategy of the EU on Russia and the Presidency Work Plan, submitted to the Helsinki European Council, clearly recognized the “cross-pillar” feature of the CS; see Press Release No. 13860/99.
102. 102. In its Report on the CS towards the Russian Federation, the EP considers that “the purpose of the common strategy should be both to add value to the existing partnership and to ensure the coherence and consistency of the EU’s relationship with the Russian Federation, both within and between each of the pillars of the EU’s activities (“cross-pillar approach”) (emphasis added)”; Report cited supra note 85.
103. 103. No implementing measure has been adopted so far with respect to Ukraine.
104. 104. Council Joint Action 1999/878/CFSP of 17 Dec. 1999 establishing an EU cooperation programme for non-proliferation and disarmament in the Russian Federation. O.J. 1999, L 331/11.
105. 105. Art. 23 TEU provides that, by derogation from the rule applying in the field of CFSP, namely decisions being taken by unanimity at the Council, “the Council shall act by qualified majority when adopting joint actions, common positions or taking any other decision on the basis of a common strategy”.
106. 106. O.J. 2000, C 106/5.
107. 107. Point 4 of the “Areas of Action” in the CS on Russia provides that the EU will cooperate with Russia in inter alia, fight against organized crime, money laundering and illicit traffic in human beings. Moreover, the “Specific Initiatives” include provisions on fight against organized crime whereby the Union is “proposing to set up a plan focused on common action with Russia to fight against organized crime, including actions to fight corruption, money laundering, trafficking in drugs, human beings and illegal immigration”.
108. 108. Art. 29(2) (ex K.1(2)) TEU states that the objective linked to the police and judicial cooperation in criminal matters shall be achieved by “preventing and combating crime, organized or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud”.
109. 109. Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering; O.J. 1991, L 166/77. A new proposal has been prepared by the Commission for a EP and Council Directive amending Council Directive 91/308/EEC; see COM(1999)352.
110. 110. See supra.
111. 111. See fifth indent, Preamble of the AP.
112. 112. The Presidency also underlines that concerning cooperation in Justice and Home Affairs, the “PCA Sub-Committee 6 (dealing, inter alia, with fight against crime) is a central common institution for dialogue in this area”. See Presidency’s Progress Report on the Implementation of the Common Strategy of the European Union on Russia and the Presidency’s Work Plan; Press Release No. 13860/99.
113. 113. Before any reference to the PCA, the Preamble of the AP refers to the Common Strategy on Russia endorsed by the 1999 Cologne European Council and to Russia’s “Medium-term strategy for development of relations between the Russian Federation and the EU (2000 to 2010)”, then to the Union’s Action Plan on organized crime approved by the Amsterdam European Council in 1997 and to the EU drug strategy (2000–2004) endorsed by the Helsinki European Council in 1999.
114. 114. The AP refers to para 56 of the Conlusions of the Tampere European Council, requiring “all competences and instruments, particularly external relations to be used in an integrated and consistent way to build an area of freedom, security and justice” (emphasis added).
115. 115. The overall approach follows the “Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice” adopted by the Justice and Home Affairs Council of 3 Dec. 1998. Part E of the Plan’s introductory part states that “the advances introduced by the Amsterdam Treaty will also enhance the Union’s role as a player and partner on the international stage…, this external aspect of the Union’s action can be expected to take on a new and more demanding dimension. Full use will need to be made of new instruments available under the Treaty…. In those subjects which remain in Title VI of the TEU, the Union can also make use of the possibility for the Council to conclude international agreements in matters relating to Title VI of the Treaty, as well as for the Presidency, assisted by the General Secretariat of the Council and in full association with the Commission, to represent the Union in these areas”; O.J. 1999, C 19.
116. 116. The development of the co-operation covered by the PCA is a complex venture given the lack of binding effect attached to the recommendations of the Cooperation Council. Any further measure to develop the PCA implies the negotiation, the conclusion and the ratification of an additional agreement between the Parties in accordance with their respective procedures. Art. 3 of the PCA with Russia provides that: “The Parties undertake to consider development of the relevant titles of this Agreement The Cooperation Council may make recommendations on such developments. Such development shall only be put into effect by virtue of an Agreement between the parties in accordance with their respective procedures”.
117. 117. In a speech given on 29 May 2000 at Maly Manege in Moscow, Prodi, President of the Commission, explained why the CS had been adopted: “It was essential to bring our partnership into line with the new emerging dimensions of the EU – the introduction of the Euro and the significant headway made in the fields of Justice and Home Affairs and of our Common Foreign and Security Policy. Russia was the obvious choice for our very first Common Strategy, which is a new foreign policy tool under the Amsterdam Treaty”; see europa.eu.int/comm/external relations/russia/summit./prodi speech 29 05 00.htm.
118. 118. E.g., the provisions on the establishment of a free trade area with Ukraine are different in the PCA and in the CS. The former provides in Art. 3 that the Parties “shall examine together in the year 1998 whether circumstances allow the beginning of negotiations on the establishment of a free trade area”. The latter provides that the Union will examine the circumstances which might, in addition to the WTO accession, allow for the future establishment of an EU-Ukraine free trade area.
119. 119. Art. 3 (ex C) TEU.
120. 120. Art. 13(3) TEU, last indent.
121. 121. Document submitted to the Vienna European Council, 11–12 Dec. 1998, Press release No. 13643/98.
122. 122. As mentioned earlier, the EP called for the “consultation of the European Parliament on CSs to be made the subject of an interinstitutional agreement which [would] spell out the respective responsibilities and commitments of Parliament, the Commission and the Council (and in particular of its Presidency and High Representative for the CFSP), so that the CS constitutes an instrument which is both democratic and effective”; op. cit. supra note 85, p. 5. See also Wessel, op. cit. supra note 65.
123. 123. Op. cit.
124. 124. See Case C-170/96, Commission v. Council, [1998] ECR I-2763; annotation by Simon, Europe, 220, July 1998, 6–7.