The meaning of 'association' under EU law A study on the law and practice of EU association agreements STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, analyses the law and practice of EU association agreements. It maps out different types of association agreements concluded on the legal basis of Article 217 TFEU and identifies the key features characterising the nature of association under EU law. ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Constitutional Affairs and was commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens’ Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] RESPONSIBLE RESEARCH ADMINISTRATOR Eeva PAVY Policy Department for Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHORS Peter VAN ELSUWEGE, Ghent European Law Institute, Ghent University Merijn CHAMON, Ghent European Law Institute, Ghent University LINGUISTIC VERSION Original: EN Manuscript completed in February 2019 © European Union, 2019 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. The meaning of 'association' under EU law - A study on the law and practice of EU association agreements _____________________________________________________________________________________ CONTENTS LIST OF ABBREVIATIONS 5 EXECUTIVE SUMMARY 8 INTRODUCTION 9 1. THE TREATY FRAMEWORK 10 1.1. Article 217 TFEU 10 1.2. Article 8 TEU 12 2. ASSOCIATION AGREEMENTS IN PRACTICE: INSTITUTIONAL AND PROCEDURAL ASPECTS 15 2.1. The choice of legal basis 15 2.2. The role of the European Parliament 17 2.3. The practice of mixity and its implications 18 2.4. The implementation (and direct effect) of association agreements 20 3. A TYPOLOGY OF ASSOCIATION AGREEMENTS 22 3.1. Association agreements as pre-accession instruments 24 3.1.1. The ‘first generation’ of pre-accession association agreements 24 3.1.2. The ‘Europe Agreements’ with the Central and Eastern European countries 26 3.1.3. The Stabilisation and Association Agreements with the Western Balkan countries 27 3.2. Association Agreements as alternatives for membership 28 3.2.1. The Agreement on the European Economic Area 28 3.2.2. The ‘sectoral’ association of Switzerland 29 3.2.3. Association Agreements with the EU’s Eastern neighbours (Ukraine, Moldova and Georgia) 30 3.2.4. Association as a means to define the EU-UK relationship post-Brexit? 31 3.3. Association Agreements as a framework for privileged relations with non-European countries 32 3.3.1. Association of the ACP countries 32 3.3.2. The Euro-Mediterranean Association Agreements 33 3.3.3. The proliferation of Association Agreements with Central and Latin America 34 4. COMMON FEATURES OF ASSOCIATION AGREEMENTS 36 4.1. Scope and content 36 4.1.1. Political dimension 37 4.1.2. Trade liberalisation 40 4.1.3. Sectoral cooperation 41 3 Policy Department for Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ 4.2. Multilevel institutional structure 43 4.3. Dispute settlement 46 5. CONCLUSIONS 48 4 The meaning of 'association' under EU law - A study on the law and practice of EU association agreements _____________________________________________________________________________________ LIST OF ABBREVIATIONS AA Association Agreement AASM Associated African States and Madagascar ACP African, Carribean and Pacific AFSJ Area of Freedom, Security and Justice AG Advocate General CJEU Court of Justice of the European Union CFSP Common Foreign and Security Policy CEECs Central and Eastern European Countries CEPA Comprehensive and Enhanced Partnership Agreement CETA Comprehensive Economic Trade Agreement DCFTA Deep and Comprehensive Free Trade Area EaP Eastern Partnership EEA European Economic Area EEC European Economic Community EFTA European Free Trade Association EPCA Enhanced Partnership and Cooperation Agreement EMAA Euro-Mediterranean Association Agreement EMP Euro-Mediterranean Partnership ENP European Neighbourhood Policy EU European Union PCA Partnership and Cooperation Agreement SAA Stabilisation and Association Agreement SAP Stabilisation and Association Process 5 Policy Department for Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ TDCA Trade, Development and Cooperation Agreement TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UK United Kingdom WTO World Trade Organization 6 The meaning of 'association' under EU law - A study on the law and practice of EU association agreements _____________________________________________________________________________________ LIST OF TABLES TABLE 1 23 A typology of association agreements TABLE 2 37 Political dialogue provisions TABLE 3 38 Evolution of essential elements provisions TABLE 4 39 Recent essential elements provisions in (non-) association agreements 41 TABLE 5 Economic aims of ( non-)association agreements 42 TABLE 6 Competition law provisions in (non-)association agreements 44 TABLE 7 Association Council composition and decision-making 45 TABLE 8 Inter-parliamentary bodies LIST OF FIGURES 23 FIGURE 1 Map of third countries 'associated' with the EU 7 Policy Department for Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ EXECUTIVE SUMMARY Third countries may be associated to the EU through the conclusion of association agreements foreseen in Article 217 TFEU. However, the meaning of such an ‘association’ is rather elusive. This study shows how association agreements are broad and comprehensive agreements which have evolved over time, in line with the evolution of (internal) EU integration itself. From a material point of view, association agreements typically contain three main components: political dialogue, trade liberalisation and sectoral cooperation. Whereas such areas may also be covered in other types of agreements, association agreements generally include more far-reaching commitments in terms of trade integration and legislative approximation. They are considered to be the most ambitious and most far- reaching types of agreements concluded with third countries in a particular geographical area and, therefore, introduce a certain level of differentiation in the EU’s relations with third countries. Association agreements establish a long-term legal and institutional framework for cooperation. The establishment of joint institutions with decision-making capacities allows for the dynamic development of the association. ‘Association’ is therefore to be conceived of as a process rather than as an end in itself. Different types of association agreements, and thus ‘association’, may be identified. Broadly speaking, there is association as a pre-accession status, association as an alternative to membership and association as a privileged status of non-European countries. Notwithstanding the general flexibility regarding the precise scope and objectives of the established relationship, there are also certain limits to what is feasible under the association formula. In particular, the procedural and institutional rights of the associated countries are limited to decision-shaping and cannot involve any rights of representation or decision- making within the EU Institutions. The association formula may also be used for defining the post-Brexit relations with the United Kingdom. In fact, the political declaration setting out the framework for the future EU-UK relationship explicitly provides that the overarching institutional framework could take the form of an association agreement. From a pragmatic point of view, this would help avoiding potentially complex discussions regarding the choice of the correct legal basis for the new legal arrangement. In addition, the experience of the EU’s bilateral relations with Switzerland illustrates the importance of a well-designed institutional structure in order to guarantee legal certainty for citizens and businesses. Moreover, the establishment of joint bodies with decision-making powers allows for the dynamic development of the future relationship. The inherent flexibility of ‘association’ as a legal concept also means that the actual format of the new relations is not pre-defined. This may either be a comprehensive framework agreement, such as the association agreements with Ukraine, Moldova and Georgia, or a more focused agreement on market integration, such as the EEA agreement. Finally, it is noteworthy that the European Parliament’s role in