Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the EPA Committee established under the stepping stone Economic Partnership Agreement between Ghana, of the one part, and the European Community and its Member States, of the other part, as regards the adoption of the Rules of Procedures of the EPA Committee

EXPLANATORY MEMORANDUM

This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Committee established under the stepping stone Economic Partnership Agreement (also ‘EPA’) between Ghana, of the one part, and the European Community and its Member States, of the other part (‘the EPA Committee’), in connection with the envisaged adoption of the Rules of Procedure of the EPA Committee.

The stepping stone Economic Partnership Agreement between Ghana, of the one part, and the European Community and its Member States, of the other part (‘the Agreement’) aims at:

1. Allowing Ghana to benefit from the enhanced market access granted by the Union within the framework of EPA negotiations and thereby avoiding trade disruption between Ghana and the Union when the transitory trade regime of the Cotonou Agreement expires on 31 December 2007, while waiting for the conclusion of a full EPA;

2. Establishing the grounds for the negotiation of an EPA which contributes to poverty reduction, promotes regional integration, economic cooperation and good governance in West Africa and improves capacities of West Africa in the fields of trade policy and trade-related issues;

3. Promoting the harmonious and gradual integration of Ghana into the world economy in accordance with its political choices and its development priorities;

4. Strengthening existing links between the Parties on the basis of solidarity and mutual interest;

5. Creating an agreement compatible with Article XXIV of GATT 1994.

The Agreement is provisionally applied between Ghana, of the one part, and the European Union and its Member States, of the other part, from 15 December 2016.

Article 73 of the Agreement establishes the EPA Committee and provides that it is responsible for the administration in all fields covered by the Agreement and the achievement of all tasks mentioned in the Agreement.

Article 73 of the Agreement foresees that the Parties agree that the composition, organisation and operation of this EPA Committee will respect the principle of equality. The Committee will determine its organisation and functioning rules. The EPA Committee meetings may also be open to third parties. The Economic Community of West African States (ECOWAS) Commission may be invited to the EPA Committee meetings, according to its internal procedures.

Article 2 of the Rules of Procedures, to be adopted, indicates that the EPA Committee shall be composed of representatives of the European Union and of representatives of Ghana, at ministerial or senior official level.

Article 9 of the Rules of Procedures, to be adopted, foresees that the EPA Committee shall adopt its decisions and recommendations by consensus.

During the first half of 2020, the EPA Committee is to adopt a decision regarding its Rules of Procedure (‘the envisaged act’).

The purpose of the envisaged act is to establish the rules on the organisation and functioning of the EPA Committee.

This proposal for a Council Decision establishes the position to be taken on the Union's behalf in the EPA Committee set up by the Agreement with regard to the Rules of Procedures of the EPA Committee.

The Parties to the Agreement discussed the envisaged Rules of Procedures and agreed that, subject to the Union's decision-making procedures, the EPA Committee should adopt these Rules of Procedure in the first half of 2020.

The substance of the envisaged Rules of Procedure is similar to that of Rules of Procedure of other trade agreements of the Union.

The Rules of Procedure are essential for completing the institutional framework of the Agreement and hence for ensuring a smooth implementation of the Agreement.

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 .

The EPA Committee is a body set up by an agreement, namely the EU-Ghana stepping stone EPA.

The act which the EPA Committee is called upon to adopt constitutes an act having legal effects as it will establish binding legal rules for the functioning of the EPA Committee.

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.

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.

The main objective of the Agreement and content of the envisaged act relate to the common commercial policy.

Therefore, the substantive legal basis of the proposed decision is Article 207(4), first subparagraph, TFEU.

The legal basis of the proposed decision should be Article 207(4), first subparagraph TFEU, in conjunction with Article 218(9) TFEU.

As the act of the EPA Committee will introduce the rules of procedure for the EPA Committee under the Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the EPA Committee established under the stepping stone Economic Partnership Agreement between Ghana, of the one part, and the European Community and its Member States, of the other part, as regards the adoption of the Rules of Procedures of the EPA Committee

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(4) first subparagraph, in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

1. The stepping stone Economic Partnership Agreement (‘EPA’) between Ghana, of the one part, and the European Community and its Member States, of the other part, was signed by the European Union and its Member States on 28 July 2016 ² (‘the Agreement’). It is provisionally applied between the European Union and its Member States, of the one part, and Ghana, of the other part, from 15 December 2016 ³ .

2. Pursuant to Article 73(3) of the Agreement, the EPA Committee is responsible for the administration in all fields covered by that Agreement and the achievement of all tasks mentioned in that Agreement. Pursuant to Article 73(2) the EPA Committee determines its organisation and functioning rules.

3. The EPA Committee is to adopt a decision with regard to its Rules of Procedures in the first half of 2020.

4. It is appropriate to establish the position to be taken on the Union's behalf in the EPA Committee, as the envisaged EPA Committee decision will establish legally binding rules for the functioning of the EPA Committee,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union's behalf shall be based on the decision of the EPA Committee establishing the Rules of Procedure of the EPA Committee which is attached to this Decision.

Article 2

This Decision is addressed to the Commission.

Done at Brussels,

ATTACHMENT

DECISION No …/2020 OF THE EPA COMMITTEE

set up by the Stepping Stone Economic Partnership Agreement between Ghana of the one part, and the European Community and its Member States, of the other part, regarding the adoption of the Rules of Procedure of the EPA Committee

THE EPA COMMITTEE,

Having regard to the Stepping Stone Economic Partnership Agreement between Ghana, of the one part, and the European Community and its Member States, of the other part ¹ (hereinafter referred to as ‘the Agreement’), signed in Brussels on 28 July 2016, and in particular Article 73 thereof,

Whereas the Agreement provides that the EPA Committee is to determine the rules governing its organisation and functioning,

HAS ADOPTED THIS DECISION:

Article 1

The Rules of Procedure of the EPA Committee are established as set out in Annex.

Article 2

This Decision shall enter into force on the date of its adoption.

Done at,

ANNEX

RULES OF PROCEDURE OF THE EPA COMMITTEE

established by Article 73 of the Stepping Stone Economic Partnership Agreement between Ghana, of the one part, and the European Community and its Member States, of the other part

ARTICLE 1

Role and Name of the EPA Committee

1. The Committee established pursuant to Article 73(1) of the Stepping Stone Economic Partnership Agreement between Ghana, of one part, and the European Community and its Member States, of the other part, (hereafter referred to as “Agreement”) is responsible for all matters referred to in Article 73(3) of the Agreement.

2. The above Committee shall be referred to in documents of the Committee, including decisions and recommentdations, as “EPA Committee”.

ARTICLE 2

Composition and Chair

1. The EPA Committee is composed of representatives of the European Union and representatives of Ghana at ministerial level or senior official level, or their designees.

2. Representation of the Parties shall normally be at senior official level, or exceptionally at ministerial level whenever both Parties agree that the circumstances so require.

3. The EPA Committee at ministerial level shall be co-chaired by the Member of the European Commission in charge of trade and by the Minister for Trade and Industry of Ghana.

4. The EPA Committee at senior official level shall be co-chaired by a senior official as representative of the European Commission and by a senior official as representative of Ghana.

5. Each Party shall notify to the other Party the name, position and contact details of the senior official who is in charge of co-chairing the EPA Committee for that Party. This senior official is deemed to have the authorisation of representing the Party until the date the Party has notified to the other Party a new Co-chair.

ARTICLE 3

Secretariat

1. Officials from the department responsible for Trade for each Party shall act together as Secretariat of the EPA Committee.

2. In line with Article 73(4) of the Agreement, each Party shall notify to the other Party the name, position and contact details of the official who is the member of Secretariat of the EPA Committee for that Party. This official is deemed to continue acting as member of the Secretariat for the Party until the date the Party has notified to the other Party a new member.

ARTICLE 4

Meetings

1. The EPA Committee shall meet once a year, unless the Co-chairs decide otherwise, or in urgent cases at the request of either Party.

2. The meetings shall be held at an agreed date and time alternately in Brussels and in Accra, unless agreed otherwise by the Co-chairs.

3. The meetings shall be convened by the Co-chair of the Party hosting the meeting.

4. A meeting may be held in person or by videoconference or by any other means.

ARTICLE 5

Delegations

A reasonable period of time in advance of a meeting, the official acting as Secretary of the EPA Committee for each Party shall inform the official acting as Secretary of the other Party of the intended composition of the delegations of the European Union and of Ghana respectively. The lists shall specify the name and function of each member of the delegation.

ARTICLE 6

Agenda for the meetings

1. At least 14 days in advance of a meeting, a provisional agenda for each meeting shall be drawn up by the Secretary of the EPA Committee on the basis of a proposal made by the Party hosting the meeting with a deadline for the other Party to provide comments.

2. The agenda shall be adopted by the EPA Committee at the beginning of each meeting. Items not appearing on the provisional agenda may be placed on the agenda by consensus.

ARTICLE 7

Invitation of experts

The Co-chairs of the EPA Committee may, by mutual agreement, invite experts (i.e. non-government officials) to attend the meetings of the EPA Committee in order to provide information on specific subjects and only for the parts of the meeting where such specific subjects are discussed.

ARTICLE 8

Minutes

1. Draft minutes of each meeting shall be drawn up by the official acting as member of the Secretariat of the Party hosting the meeting, within 21 days from the end of the meeting, unless otherwise decided by the Co-chairs. The draft minutes shall be transmitted for comments to the member of the Secretariat of the other Party. Where the present rules apply to the meetings of sub-committees, the minutes of the sub-committee’s meeting shall be made available for any subsequent meetings of the EPA Committee.

2. The minutes shall, as a general rule, summarise each item on the agenda, specifying where applicable:

   1. all documents submitted to the EPA Committee;

   2. any statement that one of the Co-chairs of the EPA Committee requested to be entered in the minutes; and

   3. the decisions taken, recommendations made, statements agreed upon and conclusions adopted on specific items.

3. The minutes shall include a list of all decisions of the EPA Committee taken by written procedure pursuant to Article 9(2) since the last meeting of the Committee.

4. The minutes shall also include a list of the names, titles and capacity of all individuals who attended the meeting of the EPA Committee.

5. The Secretary shall adjust the draft minutes on the basis of comments received and the draft minutes, as revised, shall be approved by the Parties within 60 days of the date of the meeting, or by any other date agreed by the Co-chairs. Once approved, two originals of the minutes shall be established by the Secretariat and the Parties shall each receive one original of the minutes.

ARTICLE 9

Decisions and recommendations

1. The EPA Committee may adopt decisions and recommendations in respect of all matters where the Agreement so provides. The EPA Committee shall adopt decisions and recommendations by consensus.

2. In the period between meetings, the EPA Committee may adopt decisions or recommendations by written procedure. For that purpose, the text of a draft decision or recommendation shall be presented in writing by a Co-chair to the other Co-chair. The other Party shall have one month, or any longer period of time specified by the proposing Party, to express its agreement to the draft decision or recommendation. If the other Party does not express its agreement, the proposed decision or recommendation shall be discussed and may be adopted at the next meeting of the EPA Committee. The draft decisions or recommendations shall be deemed to be adopted once the other Party expresses its agreement and shall be recorded in the minutes of the next meeting of the Committee pursuant to Article 8(3).

3. Where the EPA Committee is empowered under the Agreement to adopt decisions or recommendations, such acts shall be entitled ‘Decision’ or ‘Recommendation’, respectively. The Secretariat of the EPA Committee shall give any decision or recommendation a progressive serial number, the date of adoption and a description of their subject-matter. Each decision and recommendation shall provide for the date of its entry into force.

4. The decisions and recommendations adopted by the EPA Committee shall be established in duplicate, authenticated by the Co-chairs and transmitted one to each Party.

ARTICLE 10

Transparency

1. The EPA Committee may decide to meet in public.

2. In line with Article 73(5) of the Agreement the Co-chairs may, by mutual agreement, invite to the meetings of the EPA Committee representatives of civil society to attend as observers as well as other third parties, like the West African Economic and Monetary Union (WAEMU) and the Commission of Economic Community of West African States (ECOWAS).

3. Each Party may decide on the publication of the decisions and recommendations of the EPA Committee in its respective official publication or online.

4. All documents submitted by a Party should be considered as confidential, unless that Party decides otherwise.

5. Provisional agendas of the meetings shall be made public before the meeting of the Committee takes place. The minutes of the meetings shall be made public following their approval in accordance with Article 8.

6. Publication of documents mentioned under paragraphs 3 to 5 shall be made in compliance with each Party’s applicable data protection rules.

ARTICLE 11

Languages

1. The working language of the EPA Committee shall be English.

2. The EPA Committee shall adopt decisions concerning the amendment or interpretation of the Agreement in the languages of the authentic texts of the Agreement. All other decisions of the EPA Committee shall be adopted in the working language referred to in paragraph 1.

3. The present Rules of Procedure and any decisions adopted by the EPA Committee, with the exception of decisions of the Committee to amend or interpret the Agreement, are authentic in the working languages of the Committee. Decisions of the EPA Committee that amend or interpret the Agreement are authentic in all languages in which the Agreement is authentic.

4. Each Party shall be responsible for the translation of decisions and other documents into its own official language(s), if required pursuant to this Article, and it shall meet expenditures associated with such translations.

ARTICLE 12

Expenses

1. Each Party shall meet any expenses it incurs as a result of participating in the meetings of the EPA Committee, both with regard to staff, travel and subsistence expenditure and with regard to video or teleconferences, postal and telecommunications expenditure.

2. Expenditure in connection with the organisation of meetings and reproduction of documents shall be borne by the Party hosting the meeting.

3. Expenditure in connection with the provision of interpretation services to and from the working language of the EPA Committee at meetings shall be borne by the Party hosting the meeting.

ARTICLE 13

Special Committee for customs and trade facilitation

1. Special Committee for customs and trade facilitation shall be established in accordance with Article 34 of the Agreement for the purposes specified in that article.

2. In line with Article 34, the Special Committee on customs and trade facilitation shall report to the EPA Committee on results, decisions and conclusions from each of its meetings. The EPA Committee shall be informed in writing of the contact points designated by the Special Committee. All relevant correspondence, documents and communications of the Special Committee regarding the implementation and the application of Chapter 3 (Customs and trade facilitation) of the Agreement shall be forwarded to the Secretariat of the EPA Committee simultaneously.

3. The present Rules of Procedure shall apply mutatis mutandis to the Special Committee.

ARTICLE 14

Working groups

For the effective performance of the functions envisaged in Article 73(3) of the Agreement and in accordance with Article 73(2) the EPA Committee may decide to create under its authority working groups to facilitate technical discussion on specific subjects under the Agreement. The EPA Committee shall determine the composition and tasks of such working groups. The working groups shall report to the EPA Committee.

ARTICLE 15

Amendments of the Rules of Procedure

These Rules of Procedure may be amended in writing by a decision of the EPA Committee in accordance with Article 9.