Угода про асоціацію проти угоди про партнерство - стаття

 
На сайті Спільноти Східного Партнерства можна прочитати статтю президента УАЄС Романа Петрова "Угода про асоціацію проти угоди про партнерство. У чому різниця?"

Стаття опублікована 18 листопада 2010 року, в ній йдеться про угоди про асоціацію між ЄС і третіми країнами, які стали одним із найбільш упізнаваних брендів зовнішньої політики ЄС.

Джерело: easternpartnership.org


Association agreement versus partnership agreement. What is the difference?

Association agreements between the EU and third countries became one of the most recognisable brands of the EU external policy.

Association agreements between the EU and third countries have become one of the most recognisable brands of the EU external policy. In particular, this relates to the countries of the EU’s eastern neighbourhood (Ukraine, Moldova, Belarus and the Caucasus countries) which have either already started negotiations on association agreements with the EU, or are about to do so in the nearest future. These countries are participating in the Eastern Partnership initiative launched by the EU in 2009. One of the Eastern Partnership’s objectives is to pave the way for upgrading these countries’ existing bilateral contractual relations with the EU. As of now, the bilateral relations between the EU and the countries of the Eastern Partnership are still being governed by almost identical, but outdated partnership and association agreements which were concluded in 1994-1998. Therefore, it is important to clarify two questions. First, what actually is the meaning of an association and a partnership under EU law? Second, what advantages may association agreements bring to the countries of the Eastern Partnership?

Ironically, it appears that neither EU legal sources nor academics can provide clear answers on the meaning of an association or a partnership in EU external relations. The only way to comprehend the scope and content of an association or partnership under EU law is to study the EU’s founding treaties, the case law of the European Court of Justice (ECJ) and the bilateral association & partnership agreements concluded by the EU with other countries. In short, one may say that an association and a partnership differ in their specific legal bases in the EU’s founding treaties and special procedures.

The legal base for concluding association agreements under EU law is Article 217 of the Treaty on the Functioning of the European Union (TFEU). It states that:

The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.

One of the few explicit guidelines on the scope of an association in EU external relations comes from the ECJ in its Demirel judgment, wherein it is stated that an association agreement implies “creating special privileged links with a non-member country which must, at least to a certain extent, take part in the [Union] system”. Therefore, we may distinguish several elements which are inherent to association agreements under EU law: 1) reciprocal rights and obligations; 2) common action and special procedure; 3) privileged links between the EU and a third country; 4) the participation of a third country in the EU system. Some features of association agreements make this form of bilateral contractual relations particularly beneficial for a third country. These are: reciprocal rights & obligations, and the prospect of full EU membership. If the former feature constitutes a core of an association between the EU and a third country, the latter feature means that the fact of signing of an association agreement does not automatically imply the eventual membership of that third country in the EU. EU law considers entering into association relations with the EU and obtaining full EU Member State status as two different processes, although it is true that most of the EU Member States entered into association with the EU prior to acquiring full EU membership.

In the past two decades, the EU has concluded several association agreements with far-reaching integration objectives, which either led or might lead to eventual EU membership (the European Economic Area agreement between the EU and Norway, Iceland and Liechtenstein, the former Europe Agreements between the EU and Central & East European countries, the Stabilisation and Association Agreements between the EU and Western Balkan countries). These agreements contain specific reciprocal obligations. For example, there are EU commitments to ensure the access of the third country’s nationals to its internal market, and to provide financial assistance for certain political and legal reforms. In return, the third countries accept specific obligations such as the voluntary harmonisation of their national legislation with that of the EU, and the implementation of specified international conventions. However, most of the EU association agreements do not pursue the objective of EU membership. Instead, the association agreements are either narrow agreements focused on sectoral cooperation (like the bilateral sectoral cooperation agreements between the EU and Switzerland) or association agreements on close political and economic cooperation leading to the establishment of free-trade areas between the parties (like the association agreements with Mediterranean countries (Morocco, Tunisia, Israel and others). These association agreements aim at establishing a zone of peace, prosperity and stability in the region without formal EU membership, as well as at establishing, over a transitional period, free trade in industrial goods and the progressive liberalisation of trade in the agricultural sector; trade in services; cooperation in political, economic, social and cultural matters, and justice and home affairs. After the Treaty of Lisbon came into force, association agreements remained one of the major pillars of the EU’s external policy. The Treaty of Lisbon distinguishes association agreements by a separate legal basis (Article 217 TFEU) and a specific procedure (Article 218 TFEU). In the latter case, association agreements differ from other EU external agreements by the fact that the decision to conclude an association agreement with a third country comes only after a unanimous vote by the Council and the consent of the European Parliament. This implies that any EU Member State or majority in the European Parliament may block the conclusion of an association agreement with a third country. Furthermore, the Treaty of Lisbon (Article 21(1) Treaty on European Union (TEU)) states that the EU’s external policy should be ‘guided by the principles….of democracy, rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’, and third countries should share these principles in their pursuit of bilateral relations with the EU. Subsequently, it implies that future generations of EU external agreements will impose an obligation on third countries to share EU’s democratic values. Such an obligation is likely to be subject to regular monitoring on behalf of the EU institutions.

The meaning of ‘partnership’ under EU law is not completely clear either. Meanwhile, partnership agreements are being concluded on the basis of Article 212 TFEU, which states that such agreements pursue the objectives of economic, financial and technical co-operation measures, including assistance, in particular financial assistance, with third countries other then developing countries. Such measures shall be consistent with the developing policy of the Union and shall be carried out within the framework of the principles and objectives of its external action.

In contrast to association agreements, the procedure to conclude partnership agreements is less complicated. For instance, the Council may issue a decision to conclude a partnership agreement after a qualified majority vote and, in some cases, even without the consent of the European Parliament. It also follows that a partnership does not imply any prospect of full EU membership and, as a rule, does not designate common institutions to be set up under the agreement and issue binding decisions.

However, in our opinion, this does not mean that a partnership agreement should not contain at least some special privileged links and reciprocal rights, as in an association agreement. In fact, partnership agreements have been concluded by the EU with third countries which are characterised by elements that are reminiscent of association agreements. For instance, in the Simutenkov case, the ECJ drew a parallel between the EU-Russia PCA and the EU-Slovakia association agreement with regard to recognising the PCA provisions as having a direct effect within the EC legal order. It argued that a partnership agreement or an agreement other than an association agreement may lead [emphasis added] to the achievement of the objectives expected from an association agreement.
 
One may argue that any future generation of association agreements between the EU and the countries of the Eastern Partnership will pursue specific objectives inherent to the nature of the Eastern Partnership initiative. On the one hand, association agreements with the countries of the Eastern Partnership could be distinguished by greatly enhanced objectives which are typical of most EU association agreements (close political and economic co-operation, the establishment of a free trade area, far-reaching approximation of national legislation to that of the EU). On the other hand, association agreements with the countries of the Eastern Partnership will be marked by some specific objectives aimed at ensuring the functioning of a democratic society, establishing a deep and comprehensive free trade area, the possibility of establishing a visa-free regime, cross-border and regional cooperation, and other objectives. The establishment of a deep and comprehensive free trade area would imply approximation of national laws and standards in line with the EU acquis.
 
Therefore, gradually moving to the second question, we may argue that signing an association agreement with the EU should trigger serious internal reforms in the Eastern Partnership countries. First of all, future association agreements will serve as a template for further political and economic reforms in these countries. The obligation to share the EU’s common democratic values will imply regular monitoring by the EU institutions. Thereby this should prevent the Eastern Partnership countries from undemocratic practices. Establishing a deep and comprehensive free-trade area will open new markets for the neighbourhood countries’ products on the EU’s internal market, and will enhance internal competition within the EU neighbourhood. The new joint institutions set up under the framework of association agreements will help to pursue the programme of approximating the laws with the help of its binding decisions. However, it is important that the Eastern Partnership countries take full advantage of the reciprocity under the association agreements with the EU, and ensure their nationals’ access to the freedoms of the EU internal market, and the visa-free regime with the EU. Eventually the principle of reciprocity should lead to the neighbouring countries’ informal participation in the EU’s decision making process.

The process of effectively implementing the association agreements will constitute the greatest challenge for the countries of the Eastern Partnership. These countries have to prove their adherence to the EU’s common democratic and economic values, and ensure the proper functioning of their deep and comprehensive free trade areas. The latter objective may be achieved only under the condition of establishing truly competitive market economies and the adoption of international and EU legal standards. What are the possible sanctions which could be imposed on the countries of the Eastern Partnership in case of non-implementation and/or the violation of binding and soft obligations under the future association agreements? Several factors could be relevant. First, the joint institutions to be set up under the framework of the association agreements could be given the role of dispute settlement bodies with the right to issue binding decisions. In this case, the parties to an association agreement will be bound by a decision of the dispute settlement body under international law. Second, following the widely-used practice in the EU’s external agreements, any future association agreements with the countries of the Eastern Partnership may contain so-called ‘evolutionary’ and ‘conditionality’ clauses. These are provisions in the EU’s external agreements with specific objectives (for instance, granting a visa-free regime, the status of a candidate country to join the EU), the attainment of which is conditional either on certain actions on behalf of a party to an agreement (such as the elimination of trade barriers and uncompetitive practices) or the effective functioning of democratic and market-economy standards (such as free and fair elections and fighting corruption). However, it should be acknowledged that these ‘evolutionary’ and ‘conditionality’ clauses are only effective if the general objectives of an association agreement are attractive. In the meantime, we can only hope that the overall objectives of the association agreement between the EU and the countries of the Eastern Partnership will give enough encouragement for countries like Ukraine and Moldova to ensure its effective implementation.