The Partnership Co-operation Agreements (PCA) concluded between the EU and its member states on the one hand and the Republic of the Philippines and the Socialist Republic of Vietnam, on the other, provide a legal framework for further engagement and co-operation between the EU and the Philippines and the EU and Vietnam across a broad range of areas, including political dialogue, trade, energy, transport, investment, human rights, education, science and technology, justice, asylum and migration.
The proposed Council decision on the conclusion of the PCAs was brought forward by the European Commission citing two legal bases on trade and development. This did not reflect the earlier Council decision on signature which included transport, readmission and environment legal bases as well as trade and development. The Government supported the addition of the legal bases and judged that the provisions concerning readmission included Justice and Home Affairs (JHA) obligations, which engaged the UK’s JHA opt-in. The Government decided not to opt in to these provisions.
It is normal practice to issue a written statement to Parliament advising of the Government’s opt-in decision. This did not happen immediately as the Government wanted to consider any impact on its opt-in policy from the judgment of the Court of Justice of the European Union (CJEU) in case C-377/12 (EU/member states PCA with the Philippines). This case focused on whether additional legal bases should be cited for JHA and other content in PCAs.
Following the judgment, the Government accept that the opt-in is not engaged for agreements where the predominant purpose is development co-operation, unless there are relevant provisions that contain obligations so extensive that they constitute objectives distinct from those of development co-operation; or where it is arguable that the relevant provisions do not fall within the ambit of development co-operation for other reasons.
The Government consider that since the predominant purpose of the Philippines and Vietnam agreements are development co-operation, and the agreements do not contain JHA content which is sufficiently distinct from that aim, the UK’s JHA opt-in is not engaged in relation to the Council decision concluding either agreement. However, the UK reserves the right to engage the opt- in where any future agreements, concluded within the context of the Philippines or Vietnam PCAs, contain JHA provisions. Furthermore, in relation to other types of agreements between the EU and third countries which do not have a predominant development co-operation purpose, it remains the UK’s policy to assert that the opt-in applies.